The failure to record, on the face of the warrant, the decision of the Director of Public Prosecutions to proceed by way of summary trial renders the warrant bad

The High Court has ruled that the failure to record, on the face of the warrant, the decision of the Director of Public Prosecutions to proceed by way of summary trial (i.e. judge alone) is a "fatal flaw", rendering the warrant bad. 

A minor convicted of possession of controlled drugs for unlawful sale or supply challenged the validity of his detention under Article 40 of the Constitution on the basis that the warrant, on foot of which the minor was committed to prison, fails to record the decision of the Director that the matter be tried summarily.

Mr. Justice Seamus Noonan, in his written judgment, stated that it is not in dispute that an accused is brought before the District Court on foot of a charge sheet. Or that the accused cannot know the form of trial (i.e. summary or indictable) until the Director's decision has been conveyed to a District Court judge. It is "settled law" that the Director alone decides the venue, subject to the District Court judge determining that the offence is minor. Indeed, the trial cannot proceed until the Director invokes the relevant jurisdiction.

It seems to me beyond argument that if the Director has determined that the accused be tried by jury, the District Judge cannot embark on a summary trial and, were he or she to do so, any resultant order would be quashed for the asking. That can be the only reason that in such circumstances the District Judge has no jurisdiction to try the accused. I cannot see how any other construction is possible. It must follow as a matter of logic that if the Director has made no decision one way or the other equally the District Judge has no jurisdiction.

Paraphrasing precedent, Mr. Justice Noonan described the decision of the Director as an "essential ingredient to the exercise of that jurisdiction". In the absence of such a decision by the Director there is simply no jurisdiction vested in the District Court.

Therefore Mr. Justice Noonan concluded that the failure to record, on the face of the warrant, the decision by the Director to proceed by way of summary trial renders the warrant bad. 

Unconstitutionally obtained evidence should not be automatically deemed inadmissible at trial

The Supreme Court has ruled that evidence obtained unconstitutionally should not be automatically deemed inadmissible at trial. The judgment refines the test for the exclusion of evidence first set out in the case of O'Brien in 1965 and again in Kenny in 1990.

The case stems from Gardaí in Waterford investigating three robberies on a bookmakers premises in mid-2011.

Two separate but connected issues  arose in the Supreme Court case. The first issue relates to the proper interpretation of the passage on appeals by the Director ect., on certain criminal proceedings. Specifically, whether Judge Mary Ellen Ring had erroneously excluded evidence in circumstances where it is accepted that the Judge was bound to follow, and properly applied, the Kenny judgment to the facts:

Can it be said that  a trial judge properly applied the established case law of a higher court by which that trial judge was bound, even if this Court takes the view that the established case law in question requires to be revisited in a material respect?

Mr. Justice Frank Clarke found that a trial judge can be properly described as having erroneously excluded evidence even where the trial judge was bound to follow what turns out to be an erroneous judgment. On that basis, Mr. Justice Clarke was satisfied that an appeal to the Court under section 23 is permissible.

The second issue concerned the statutory requirement that excluded evidence must be "compelling" for its exclusion to be appealed. Compelling evidence is defined as meaning that:

[...] the evidence is reliable, of significant probative value, and such that, when taken together with all other evidence adduced a jury might properly convict.

After establishing that there was sufficient material on the record of the trial to enable the Court to be satisfied that the evidence is compelling, Mr. Justice Clarke concluded that it was not necessary to reach a conclusion on a motion, submitted on behalf of the Director of Public Prosecutions, to introduce additional evidence.

The question before the Court was whether O'Brien or Kenny are correct, or, whether the test set out requires refining by identifying a point not identified in either case.

In O'Brien, the Supreme Court held that evidence should not be excluded if it can be shown that those gathering the evidence had knowledge that their actions were in breach of constitutional rights. Where as in Kenny, the Supreme Court held that evidence may be excluded if it can be shown that constitutional rights were breached, regardless of the knowledge or level of care involved, save in highly unusual and exceptional circumstances.

Mr Justice Clarke, in his judgment, felt O'Brien does not go far enough, while Kenny goes too far. Refining the test, Mr. Justice Clarke set out five principles.

One, the onus is on the prosecution to establish the admissibility of all evidence. However, Mr. Justice Clarke was keen to emphasis that the test which follows does not concern the integrity or probative value of the evidence. Rather, the test is concerned with objections to the admissibility of the evidence where it relates solely to the circumstances in which it was gathered.

Two, where a warrant is challenged the onus is on the prosecution to establish either: (a) that the evidence was not gathered in circumstances of unconstitutionality, or; (b) that, if the evidence was gathered in circumstances of unconstitutionally, it remains appropriate for the Supreme Court to admit the evidence.

Three, any facts the prosecution need to establish in order to discharge the onus must be established beyond reasonable doubt.

Four, evidence obtained in deliberate and conscious violation of constitutional rights should be excluded save in exceptional circumstances considered in existing precedent. If the evidence is obtained in violation of constitutional rights, but the prosecution shows  this was not conscious or deliberate, a presumption against the admission of the evidence arises. Moreover, where evidence is obtained in breach of constitutional rights but not deliberately or consciously, the evidence should be admitted where the prosecution can establish that the breach was inadvertent or due to later legal developments.

Five, evidence that could not have been constitutionally obtained  or gathered should be excluded, even if those involved in gathering evidence were unaware due to inadvertence of the absence of authority.

Mr. Justice Donal O'Donnell expressed agreement with the approach taken by Mr. Justice Clarke. While Mr. Justice John Murray concurred in part with Mr. Justice Adrian Hardiman, who, among others, dissented.

Mr. Justice Hardiman questioned whether the Court had jurisdiction to hear the appeal because an error on the part of Judge Ring had not been established. Indeed, the majority agreed that Judge Ring had not erred. Mr. Justice Hardiman also observed that a trial judge who follows a binding authority that is subsequently overturned by a higher court does not commit an error.

Both parties agreed that a decision on a retrial should be set aside until after the substantive issues were determined.

Photographic evidence must be supplied with speed camera summons

The High Court has ruled that photographic evidence must be included with the summons issued to an accused. There must also be evidence that the "permanent visual record" (i.e. photographs(s)) has been given to an accused prior to the trial commencing.

The case was referred to the High Court by District Court Judge Mary Devins after Michael Gilvarry of County Mayo was summonsed for doing 93 kilometres per hour in an 80 kilometres per hour zone in Ballina on October 30th, 2011.

During the case several witnesses were called, including Inspector John McDonald from the Garda Fixed Charge Processing Office. In evidence Inspector McDonald gave an overview of, inter alia, the Office's prosecution works dealing with the capture of information.

In the course of cross-examination Inspector McDonald accepted that a copy of the photographic image should be provided to an accused before the trial began.

The Inspector gave evidence to the existence of a contract between the Minister for Justice, the Garda Commissioner and the Go Safe Company, which was entered into in November 2009. The contract governed the outsourcing of functions from June 1st, 2011. Although he was not in a position to provide a copy of the contract to the Court.

Inspector McDonald also gave evidence that the "permanent visual record" provided by the Prosecution was the same as the original, but admitted that he was not familiar with the process of enhancement.

At the end of Mr. McDonald's evidence Ms. McGregor for Mr. Gilvarry made a total of five submissions.

Ms. McGregor submitted that there was no evidence before the Court that a "permanent visual record" was served on Mr. Gilvarry as required by the 2010 Act. Ms McGregor further submitted that there is no presumption with the 2010 Act that the relevant "permanent visual record" has been served on an accused.

Ms. McGregor submitted that the contract between the Minister for Justice, the Garda Commissioner and the Go Safe Company is the foundation of a number of presumptions relied upon by the Prosecution. Ms. McGregor cited sections 81(2)(ii), 81(6)(a) and (b) as examples.

Ms. McGregor submitted that the contract must be in evidence in order to prove: (i) that the person is authorised (e.g. Derek Walsh, the Go Safe Operator who gave evidence), and; (ii) the extent of the functions. Moreover, as the contract was not in evidence, the Court was not entitled to presume its existence or apply presumptions that might flow from its existence.

Finally, Ms. McGregor submitted that the "permanent visual record" is enhanced after downloading to the server and is therefore tainted as a result.

Judge Mary Devins adjourned the matter until November 2012, when she questioned the Director of the Go Safe Company about the contract. Mr. Browne said that the contract started on November 16th, 2010 and would run until November 15th, 2015.

Having indicated that she was unable to find any precedent dealing with the issues that arose in this case, Judge Devins posed three questions to the High Court.

One, was there evidence before the Court that the photographic evidence was served on Mr. Gilvarry as required by the 2010 Act? 

Two, does the prosecution need to provide a copy of the contract between Go Safe and the Minister for Justice or is it sufficient to give evidence of the existence of a contract? 

Three, is the photographic evidence tainted because it is enhanced after downloading to the server?

Answering the first question, Mr. Justice Kearns concluded that it is insufficient for a member of the Gardaí to state that it is normally the case that photographic evidence is included with the issued summons:

There must be evidence that it has in fact been given to an accused person before the trail commences. The evidential shortfall can easily be remedied if the statutory declaration of service of the summons were to also state that the summons, together with the "permanent visual record attached", have been served on [Mr. Gilvarry] prior to the trial.

On the second question, Mr. Justice Kearns found that it is not a necessary proof for the prosecution to provide a copy of the contract, or to formally prove every detail of the contract between Go Safe and the Minister for Justice. It is merely sufficient that the prosecution call a witness who is familiar with the parts of the contract that indicate that: (i) a contract envisaged by the relevant section was made; (ii) the parties to the contract, and; (iii) that contract is still in existence.

While there was no issue about the quality of the photographic evidence in this case, Mr. Justice Kearns observed that it is not necessary under the 2010 Act to prove that the technology used is accurate or in good working order. However, Mr. Justice Kearns observed that it is open to a defendant, such as Mr. Gilvarry, to give evidence that the photograph(s) furnished to him and submitted to the court were altered.

The power of arrest may only be exercised with such force as is reasonable in the circumstances

The Supreme Court has ruled an arrest for drink driving unlawful because the accused was unjustifiably handcuffed on foot of a personal routine of a Garda Sergeant.

Peter Cullen was stopped in Dublin 15 in September 2007 by Sergeant Moyles after being spotted driving erratically. While speaking to Mr. Cullen, Sergeant Moyles formed the opinion that he was intoxicated. Sergeant Moyles had Mr. Cullen provide a breath specimen, which he failed.

On cross examination in Dublin Circuit Court Sergeant Moyles stated that Mr. Cullen was cooperative at all times prior and subsequent to his arrest. Sergeant Moyles also stated that Mr. Cullen had not used threatening force in order to avoid arrest. Nor was there anything in the conduct of Mr. Cullen which might lead Sergeant Moyles to suspect that he might resist arrest. Sergeant Moyles also stated that it was his personal policy to handcuff any person arrested for drink driving, irrespective of the circumstances.

At the conclusion of the Prosecution's case, Counsel for Mr. Cullen applied for a direction on the basis that Sergeant Moyles had no reasonable grounds for the handcuffing. Counsel submitted that such restraint was unjustified and amounted to a conscious, deliberate and unlawful use of force, rendering Mr. Cullen's detention unlawful. Counsel also submitted that the exclusionary rule obligated a trial judge, in cases where a conscious breach of constitutional rights occurs, to exclude the admissibility of evidence except where the prosecution establish some extraordinary and excusing circumstance justifying the actions of Gardaí.

While Judge Terence O'Sullivan accepted that the Prosecution had failed to prove that handcuffing Mr. Cullen was lawful, proportionate or justified and, therefore, Sergeant Moyles acted lawfully, he referred two questions to the Supreme Court.

The first question posed was whether Judge O'Sullivan was entitled to hold that the handcuffing of Mr. Cullen, following arrest, was unjustified because Sergeant Moyles did not believe he was likely to resist arrest or attempt to escape from lawful custody.

The second question hindered on the first question being answered in the affirmative. The question posed was whether Judge O'Sullivan was correct to conclude that the handcuffing of Mr. Cullen was a conscious and deliberate breach of his constitutional rights.

Before answering the questions posed by Judge O'Sullivan, Mr. Justice Nial Fennelly set out the principles on: the use of reasonable force when making an arrest; the judgement of the Gardaí as to the reasonable force; the application of handcuffs; and, more general observations on lawful arrest and detention. Mr. Justice Fennelly also noted the courts are slow to review the operational decisions of individual Gardaí.

On the use of reasonable force when making an arrest, Mr. Justice Fennelly held that:

[...] the power of arrest, whether exercised by a police officer or by a citizen may be exercised and may only be exercised with the use of such force as is reasonable in the circumstances.

However Mr. Justice Fennelly concluded that what force is reasonable in the circumstances is for the individual Garda to judge, and that the law allows for a generous measure of judgement in this regard:

An error of judgement by an officer in applying force where he genuinely believes to be necessary will not either render the arrest invalid or expose the officer to legal remedy, whether criminal or civil. 

On the application of handcuffs, Mr. Justice Fennelly set out four principles.

One, that a Garda is fully entitled, and may be obliged, to apply handcuffs to an arrested person, where he or she believes that it is necessary to do so in the particular case. Two, the decision to apply handcuffs must be left to the individual Garda dependant on his own appreciation of the requirements of the individual case. Three, the factors to be taken in account are: the nature of the offence, the prevailing circumstances, and the personality and character of the individual to be arrested. Four, that a realistic latitude is shown by the law to Gardaí in this regard.

Mr. Justice Fennelly also set out three principles on lawful arrest and detention.

One, that an arrest is a pre-requisite for the authority to demand that a suspect provide blood, urine or breath specimens. Two, that an arrest may be invalid, if in the absence of lawful authority or consent of the owner, the arrest was carried out on private property. Three, detention that was originally lawful, can become unlawful because the suspect was held in detention without justification.

Thus, Mr. Justice Fennelly answered the first question in the affirmative because Sergeant Moyles failed to give consideration to the context, behaviour and demeanour of Mr. Cullen.

While on the second question Mr. Justice Fennelly deemed the arrest unlawful, but found it unnecessary to refer to the breach of constitutional rights or the exclusionary rule. 

Strict legal requirements must be met to execute search warrant

A retired Central Bank administrator who got four years and a €5,000 fine for the possession of hundreds of thousands of child porn images and videos had his conviction quashed because of  the incorrect date on the search warrant.

The Court of Criminal Appeal overturned the conviction of Raphael Farina after the Court found that the search warrant  used to search his home was dated incorrectly and consequently  did not permit entry to the apartment  of Mr. Farina in Dublin city centre.

Counsel for Mr. Farina, Ms. Aileen Donnelly SC told the Court of Criminal Appeal that a combination of five flaws in the search warrant obtained, rendered the search warrant invalid in law and incapable of permitting entry to the apartment.

Among the flaws were a misspelling of the address as ‘Springer’s Yard’, instead of the correct address as ‘Spranger’s Yard’. Another flaw was the absence of information regarding the issuing District Court area and number. The date of the search warrant as May 6th 2007 was actually issued on June 6th 2007.

The court also heard  that an alteration was made to the search warrant, with a line drawn through the May 6th 2007 date, after its execution.

Mr. Justice Donal O’Donnell noted that before a search warrant to enter a home can be executed, the legal requirements must be strictly met. He found that the defect in the date was fatal to the warrant because the document on its own terms stated that entry was permissible within seven days of May 6th 2007.

Mr. Justice O’Donnell noted the search warrant was meant to be understood in simple terms. Further, the warrant must be taken as it would appear when presented to the accused man.

Judgement was not reserved because Mr. Farina  has been in custody since 2011. No retrial was ordered.