The DPP has lost a High Court appeal brought over a judge’s ruling that a substance alleged to be cocaine seized in a house raid had been found unlawfully because the garda who discovered it was not accompanied by his colleague named on the search warrant.
In a judgment, Judge Micheál P O’Higgins said Judge Andrew Cody was correct to conclude that the search at Richard Davis’s residence in St Cormac’s Park, Kilcormac, Co Offaly, was illegal when the purported cocaine was found by Garda Diarmuid Loughnane, on account of the fact that Garda Helen Colleran was not “accompanying him” at the time.
However, O’Higgins said the District Court judge was wrong to automatically dismiss the charge on this finding. The judge said the evidence should have been considered to determine if it could be admissible, using Supreme Court guidance.
However, because the DPP did not raise this issue in the District Court, O’Higgins said he would not allow it to be advanced in the High Court. He dismissed the appeal.
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The DPP’s “case stated” appeal turned on the interpretation of the section 26 of Misuse of Drugs Act 1977, the judge said.
This law requires gardaí carrying out powers granted by a search warrant to be “accompanied by” the individual Garda member who was granted and named on the warrant.
O’Higgins said the issue had importance beyond this case as “the phrase is used in many other statutes concerned with search warrants and garda powers”.
In October 2023, Cody dismissed the charge against Davis when he appeared in Tullamore District Court accused of possession of a quantity of cocaine at his dwelling.
Taking the facts found by the District Court judge, O’Higgins stated that Garda Helen Colleran had obtained the warrant to search Davis’s house.
On the morning of the search, Colleran was accompanied by Garda Diarmuid Loughnane. They both entered Davis’s house about 7.40am and began the search.
After some time, Colleran left the premises to conduct a separate search at two nearby properties. The garda had obtained a warrant to search these properties at the same time she was granted the warrant to search Davis’s house. Colleran later returned to Davis’s house.
Loughnane continued to search Davis’s house while Colleran left to search the other properties. He found the alleged cocaine “at the closing stages” of the search, O’Higgins noted.
The District Court judge felt the fundamental question he had to consider was whether Loughnane was accompanied by Colleran at the time he found, inspected and seized the alleged cocaine.
The District Court judge stated Colleran believed that all she was required to do to execute the warrant correctly was knock on the door of the property, produce the warrant, enter the property, and leave after a few minutes.
When Colleran did that, the judge found, she left Loughnane unaccompanied, and therefore removed Loughnane’s authority to continue to search, examine, inspect, seize or detain the alleged drugs.
Considering the ordinary meaning of the words, the District Court judge found that Loughnane was not “accompanied by” Colleran when he found the alleged cocaine, as is required under law.
He ruled the subsequent seizure and detention of the alleged cocaine was illegal, and dismissed the prosecution against Davis.
O’Higgins said he needed to decide whether Loughnane was “accompanied by” Colleran when he found the alleged cocaine. If not, the judge said he needed to determine the impact on the admissibility of Loughnane’s evidence concerning his finding of the alleged cocaine, and the decision to dismiss the charge against Davis.
O’Higgins found that Loughnane went beyond the authority granted to him by the search warrant, and agreed that the garda was not “in any sense” accompanied by Colleran in finding and seizing the alleged cocaine.
Considering the wording and structure of section 26, O’Higgins found that by including the words “accompanied by”, politicians had intended individual Garda members who are granted search warrants to “in a general sense, exercise a supervisory role over the search process”.
“It seems to me that these features of the text support the conclusion that the Oireachtas intended that any Garda members not named on the warrant would be empowered to carry out the powers granted by the warrant only by dint of such members accompanying the authorised member at the time the powers are being exercised,” O’Higgins said.
He said the District Court judge was correct in finding that the alleged cocaine was found, seized and detained by Loughnane illegally.
However, O’Higgins found that the District Court judge should have considered the evidence to determine its admissibility, notwithstanding the finding that it was gathered unlawfully. He said the District Court judge was wrong to automatically dismiss the charge against Davis following his finding that the search was unlawful.
O’Higgins referenced a Supreme Court ruling setting out that evidence gathered unlawfully can be admitted in certain circumstances – including if the prosecution establishes that the evidence was obtained unlawfully due to inadvertence or legal developments.
The District Court judge should have considered the evidence against the criteria set out in the Supreme Court judgment, DPP v JC, O’Higgins said.
O’Higgins noted that at no stage was the District Court judge invited to engage in such an exercise by the prosecution.
In those circumstances, O’Higgins said he would not allow the DPP to raise this point in the High Court. He noted the Supreme Court’s ruling that the onus is on the prosecution to seek the admissibility of the evidence.
“It has not been sufficiently explained why the points now sought to be advanced on appeal were not raised before the trial judge,” he said.
O’Higgins said that despite the fact the District Court judge should have considered the admissibility of the evidence, he proposed not to quash Davis’s acquittal and to dismiss the appeal.
