THE SUPREME COURT
Keane C.J.                                                                                                                     154/00
Denham, J.
Murphy J.
Murray J.
Hardiman J.

IN THE MATTER OF AN APPEAL PURSUANT

TO SECTION 34 OF THE CRIMINAL PROCEDURE

1967 and IN THE MATTER OF A REFERENCE OF A 

QUESTION OF LAW TO THE SUPREME COURT FOR

DETERMINATION

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

                                                                     Prosecutor/Appellant

and

JAMES EDGEWORTH

                                                                             Defendant/Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 29th day of
March, 2001 [nem diss.].

Background.
	On the 23rd and 24th days of February, 1998 the Defendant herein, Mr. Edgeworth, was tried before his Honour Judge Matthews in the Dublin Circuit Court on charges alleging the breach of Section 15 and Section 3 of the Misuse of Drugs Act, 1977 as amended.

	After the jury had been empanelled, a preliminary point was argued in relation to the validity of a search warrant under which the Gardaí had searched certain premises.  On this point being resolved in favour of the Defendant, with the consequence that a considerable body of evidence fell to be excluded, the Defendant was found not guilty by direction of the learned trial judge on both counts. 

	The Director has referred to this Court, pursuant to Section 34 of the Criminal Procedure Act, 1967, the point of law which, he says, led to this directed verdict.    

	Pursuant to Section 34(2) of the 1967 Act, the statement of the question of law to be referred to this Court has been settled by the Director of Public Prosecutions after a consultation with the learned trial judge.  It is as follows:-
	“Whether the learned trial judge was correct in law in holding that notwithstanding evidence of the appointment of the Commissioner and due issue of the warrant, it was bad in law and void and the entry unlawful because:
(a)	It failed to assert that the Peace Commissioner who signed it was a Peace Commissioner for the County	of Dublin and
	(b)	It was headed ‘The District Court’ ”.

	It may be noted that this was not the only ground argued at the trial against the validity of the warrant.   The first ground related to the proposition that the Peace Commissioner had not formed any view on the grounds put forward to support the issue of the warrant, but merely accepted that the Garda making the application was sincere in his view of the said grounds.   The Peace Commissioner gave evidence that Gardaí called to her looking for such warrants “very, very often” and that she had never refused to issue a warrant “because I always asked the one question about the information”.    This one question appeared to be as to whether the information on which the application was based was confidential because “.......usually when they come to me they all say that to me to sign, like, on confidential information”.    In this particular case “I asked him was it confidential information and he said yes, and he was positive”.   However, although there is no absolutely express statement of the ground on which the preliminary issue was decided in favour of the Defendant, it seems likely from the contents of pages 30 and 31 of the transcript that the ground was substantially that identified by the Director and set out above.   

The Warrant.
	The warrant in this case is dated the 11th November, 1996 and is signed by Maureen Smyth.   Under her signature the words “Judge of the District Court” have been crossed out and the words “Peace Commissioner” written below the deleted words, in capital letters.   The warrant itself is in common form and is headed with the official emblem of the Harp with “An Chúirt Duiche” on one side and “The District Court” on the other.  Underneath that is written “Misuse of Drugs Act, 1977, Section 26” and in capital letters “Search Warrant Dublin Metropolitan District”.

	At the trial, evidence was given before the learned trial judge by both Garda Galvin who applied for the warrant and Mrs. Smyth who issued it.   It is clear from this evidence that the application was made to Mrs. Smyth in her capacity as a Peace Commissioner for the County Borough of Dublin and the County of Dublin and the counties immediately adjoining that county.   She was so appointed on the 5th March 1981 by Mr. Jim Mitchell, the then Minister for Justice.   She produced her warrant of appointment to the learned trial judge.   

Grounds of challenge.
	The grounds of challenge in this matter are limited to the two mentioned above viz. whether the warrant is invalidated by the failure to specify that the Peace Commissioner was a Peace Commissioner for the County of Dublin, and by the fact that the warrant was entitled “The District Court”.

	Provision for the appointment of Peace Commissioners was made by Section 88 of the Courts of Justice Act, 1924.   This provided that:-
	“The Minister for Home Affairs may from time to time by warrant under his hand appoint and remove such and so many fit and proper persons as he shall think expedient in each county to be called ...... Peace Commissioners and to perform and exercise within such county and (if so expressed in his warrant of appointment) within the counties immediately adjoining such county the duties and powers of Peace Commissioners under this Act”.

	Section 26 of the Misuse of Drugs Act, 1977 provided that:-
“(1)	If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Síochána that there is reasonable ground  for suspecting that...... such Justice or Commissioner may issue a search warrant mentioned in subsection (2) of this Section”.

	Here, no question arises as to whether the Peace Commissioner was in fact so satisfied or as to whether the evidence available allowed her rationally to be so satisfied.   Nor does any question arise as to whether the warrant issued pursuant to the power just recited was in any particular form:    it appears to be common case that so long as such warrant complied with provisions of subsection (2) of Section 26 (as inserted by Section 13 of the Misuse of Drugs Act, 1984), no particular form of warrant had been prescribed or was required.

Conclusions.
	Article 40.5 of the Constitution provides:-
	“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”.

	This provision was commented upon by Mr. Justice Carney in DPP v. Henry Dunne [1994] 2 IR 537 at 540 as follows:-
	“The constitutional protection given in Article 40.5 of the Constitution in relation to the inviolability of the dwellinghouse is one of the most important, clear and unqualified protections given by the Constitution to the citizen”.

I respectfully agree.   

	In circumstances such as those arising in the present case, forcible entry to the premises in question could be secured “in accordance with law” by the operation of Section 26 of the Act of 1977, as amended.   This required that a Peace Commissioner or Judge of the District Court be satisfied of certain matters by the information on oath of a member of the Garda Síochána.   The matters in question are those set out at paragraphs (a) or (b) of subsection (1) of Section 26.   In this case, the information exhibited extends to the matters described in subparagraph (a) of the subsection.   There is no issue before this Court as to the adequacy of this information to satisfy the Peace Commissioner.

	Turning to the warrant, there is no doubt that, while it is not itself in any statutorily prescribed form, it complies with subsection (2) of Section 26 as amended.   In other words, in so far as its form is laid down by statute, it complies with the statutory requirement.  
	There is no doubt that the warrant is headed “The District Court” and with the other words set out earlier in this judgment.    Equally clearly, the document is signed by a person describing herself as a Peace Commissioner and not as a Judge of the District Court.   The heading of the warrant undoubtedly relates to the fact that a judge of the District Court is entitled to issue such warrants and no doubt frequently does.   No special form seems to have been provided by the authorities for use when the application for a warrant is made to a Peace Commissioner and not to a Judge of the District Court.   This is a regrettable omission but in my opinion is not such as invalidates a warrant in the form of the present one. 

	The present warrant features an inappropriate statement on the face of the document whose affect is to associate the document with the District Court whereas in fact it was issued without any application to a judicial personage at all.   It is not however a statement calculated to mislead and there was no evidence before the learned trial judge that any person was in fact misled.   The status of the person actually issuing the warrant appears clearly on its face.

	This situation may be contrasted with those obtaining in DPP v. Dunne, cited above, or Simple Imports Ltd. and Anor. v. The Revenue Commissioners   [2000] 2 IR 243.
	In the latter case, the Customs Consolidation Act, 1876 permitted the issue of a warrant:
	“If any officer of Customs shall have reasonable cause to suspect ...... and it shall be made to appear by information on oath before any District Judge.......”

This Court held that the rather odd syntax of the provision meant that “The District Judge, before issuing the warrant, must have come to the conclusion, from the information on oath of the Customs Officer, not merely that he (the officer) suspects that there are uncustomed or prohibited goods on the particular premises but that his suspicion is reasonable”.

	In fact, the warrants in question in Simple Imports omitted the recitation of the existence of a cause for suspicion which was “reasonable”.    The Court struck down the warrants as invalid.

	Similarly, in Dunne the warrant in question, which was in the same form as the warrant in the present case, had an essential averment struck out of its body.   This was the averment that a person was in possession of a controlled drug “on the premises to which the warrant related”.   This was plainly one of the requirements of Section 26(1) (a).   Carney J. held that he could not act on the proposition that the words struck out of the body of the warrant had been so struck out by inadvertence because “such an approach would facilitate the warrant becoming an empty formula”.

	I have no doubt that the warrants in question in the two cases cited were correctly found inadequate by the Superior Courts.    As was said by Keane C.J. in Simple Imports, referring to powers of search or seizure:-
	“These are powers which the Police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the Courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met”.

	In each of the cases cited, there had been a failure to demonstrate that the conditions laid down by the legislature had in fact been met.  In the first of them, Simple Imports, the warrant itself provided positive evidence that the condition precedent had not been met.   In the present case the position is quite different:   all the statutory criteria can be seen, at least on a prima facie basis, to have been met.   The misdescription, and that is the most it can be called, involved in the use of the heading “The District Court” is not a breach of any condition or criterion imposed by the legislature and is simply an error.   In my view there is no basis in law for the proposition that this error invalidates a document which accords with all specified requirements of the law.

	I turn now to the objection on the basis that Mrs. Smyth is described merely as a Peace Commissioner without the addition of a county or counties for which she holds this appointment.

	I believe that the appointment of a Peace Commissioner is subject to a territorial limitation.   Section 88 of the Act of 1924 provides for the appointment of such Peace Commissioners “in each county”.   They are so appointed “to perform and exercise within such county  ........the duties and powers of Peace Commissioners under this Act”.    (Emphasis added)

	Since this is the general power of a Peace Commissioner, I do not believe that it was necessary for the 1977 Act expressly to spell out a territorial limitation on the power either of a Peace Commissioner or a Judge of the District Court.   Nor do I believe that the omission of the latter Act to do so empowers a Peace Commissioner to issue warrants for an area outside the county in respect of which she has been appointed or the adjoining counties, as the case may be.
	It follows from this that, if at the trial Mrs. Smyth’s warrant of appointment had not been shown to extend to the area where the premises sought to be searched were situated, this would have been fatal to the validity of the warrant.  But there was no such omission at the trial and the uncontradicted evidence was that her appointment was in respect of the relevant county.   A warrant issued under the provisions of Section 26 is not required either by the terms of that section or by any general enactment or rule to carry on its face a statement of the counties to which a Peace Commissioner’s warrant of appointment relates.   The omission to do so is not a breach of any condition laid down by law for the issue of a warrant.   

	I would determine the question settled by the Director of Public Prosecutions, and set out at the start of this judgment, in the negative.