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1. I agree with the judgment of Barrington J. on the answer to the question that has been referred to the Court.

2. However, since I believe that the trial should not have been halted on that ground, I add these words. It seems to me that the search warrant was entirely irrelevant in the circumstances of this case. Nothing was found as a result of the search. The gardai must also be taken to have gone to the house with the intention of arresting the respondent on suspicion of felony. If they had found something as a result of the search that might have strengthened

3. It is so that they gained entry to the house on producing the search warrant but they would have been entitled to enter the house, peaceably and without force in any event, to effect the arrest. There was nothing to suggest that there was anything defective about the warrant or that it was used in any mala fide way. I do not know of any statement of law that says the gardai are not entitled to go to a person’s dwellinghouse to effect an arrest providing they have the requisite suspicion. On the contrary, the old case of Davis .v. Russell [1829] 5 Bing. 354 decides that the police are so entitled to act. It was an action brought by the plaintiff, an elderly woman, who proved that between 10.00 pm and 11.00 pm at night constables, without producing any warrant, took her from her bed at her lodgings in Cheltenham, and conveyed her to prison where she remained until the next morning when she was brought before the magistrate upon a charge of theft, which was ultimately dismissed. Best C.J. recounts (at p.3 63):-

4. How does that old law align with our constitutional protections for the dwelling? The answer is provided in the case of The People (Attorney General) . v. Hogan I Frewen 360 , where the question arose as to whether a

5. While the case was appealed to the Supreme Court, and the appeal was successful, it was on a point not germane to anything that has come in for

6. The matter of arrest on suspicion is now regulated by s. 4 of the Criminal Law Act, 1997, which provides:-

7. I would wish, for my part, to prevent any misapprehension about the scope of what we were asked to decide in this reference. I would hold that the learned trial judge erred in ending the trial at the stage that he did. The arrest of the respondent was valid and, therefore, his detention was in order. It would be wrong if, in the future, trials were unnecessarily halted on unsustainable grounds.

8. This case concerns a net point of law referred to the Supreme Court pursuant to the provisions of the Criminal Procedure Act, 1967, by the Director of Public Prosecutions, after consultation with his Honour Judge Joseph Matthews, a Judge assigned to the Circuit Criminal Court for the County of Dublin.

9. The background to the reference is as follows. The trial of the above-named accused David Owens took place on the 10th day of November, 1997, before Judge Joseph Matthews sitting as the Judge assigned to the Circuit Criminal Court for the County of Dublin with a jury. The accused was arraigned and, having pleaded not guilty, a jury was empanelled to try the counts on the indictment. These consisted of three counts - assault occasioning actual bodily harm contrary to Section 47 of the Offences against the Person Act, 1861; having an article in a public area intending unlawfully to cause injury, incapacitate or intimidate contrary to Section 9 (5) of the Firearms and Offensive Weapons Act, 1990; and robbery contrary to Section 23 of the Larceny Act, 1916, as inserted by Section 5 of the Criminal Law (Jurisdiction) Act, 1976.

10. The offences were alleged to have been committed on the 21st October, 1994 (some three years before the trial). On the 9th November, 1994 Garda Vincent Byrne, acting on confidential information, received by a colleague, that some of the proceeds of the robbery might be found at 55 Doon Court, Poppintree, obtained from Mr. Fowler, a Peace Commissioner, a warrant to search the premises. Later on the same night, at about 1.10 a.m., Garda Byrne accompanied by three other Garda officers went to the premises 55 Doon Court, Poppintree. The door was opened by the accused David Owens. The search warrant was produced and the Gardai carried out a search of the premises but found nothing incriminating. Nevertheless Garda Byrne, on the basis of confidential information which he had received and of statements in his possession, believed that David Owens was responsible for the robbery and, after caution, arrested him on the premises and conveyed him to Ballymun Garda Station where he was detained pursuant to the provisions of Section 4 of the Criminal Justice Act, 1984. While in detention he made an incriminating statement which was the principal evidence to be proffered by the prosecution against him at his trial.

11. At the commencement of the trial the defence indicated that they were challenging the search warrant and putting the prosecution on formal proof of it. Their line of argument, which appears to have been accepted by the trial

12. Judge, was that if the search warrant was invalid the entry by the police officers into the premises was illegal and amounted to an unconstitutional invasion of the accused’s dwellinghouse; that the arrest was therefore invalid and also the detention of the accused pursuant to Section 4 of the Criminal Justice Act, 1984 was also invalid and any statement made by him, while in unlawful detention was inadmissible in evidence against him.

13. At the commencement of the trial, the defence having challenged the validity of the search warrant, the learned trial Judge agreed to try a preliminary issue relating to the search warrant in the absence of the jury.

14. The prosecution’s problem was that the Peace Commissioner, Mr. Peter Fowler, was eighty-five years old at the date of the issue of the search warrant, and, at the time of the trial - some three years later - was too ill to come to Court to explain his state of his mind at the time he issued the search warrant. In these circumstances the learned trial Judge felt that he was bound by the decision in The People [DPP] v. Byrne [1989] ILRM p. 613 . He, accordingly, held that the Peace Commissioner’s signature was not sufficient to establish the validity of the warrant and that the Peace Commissioner must be present in person to prove his state of mind and to be available, if necessary, for cross-examination by the defence.

15. The learned trial Judge ruled that there was no evidence to establish the validity of the search warrant. He thereupon ruled that the subsequent arrest and detention were invalid and unconstitutional and directed the jury to find the accused not guilty.

16. In these circumstances the Director of Public Prosecutions, after consultation with the trial Judge has referred to us for decision the following question-

17. As previously indicated the case by which the learned trial Judge felt bound was The People [Director of Public Prosecutions] v. Byrne [1989] ILRM 613. In that case the accused had been arrested in pursuance of Section 30 of the Offences against the State Act, 1939, and his initial period of detention had been extended for a further four hours by a Garda Chief Superintendent. During the period of extended detention an incriminating statement was made by the accused which the prosecution wished to adduce in evidence. The Chief Superintendent was no longer alive at the date of the trial

18. McCarthy, J. having referred to the presumption “omnia praesumunter rite esse acta” continued [at page 619] of his Judgment as follows:-

19. The Peace Commissioner, like the Chief Superintendent, is a public officer but he is not a Court of Record. A search warrant is also a document which may affect constitutional rights. It does not speak for itself in a criminal trial. It appears to me that the learned trial Judge was right in feeling himself bound by the decision in The People [Director of Public Prosecutions] v. Byrne. I would accordingly answer the question referred to us “Yes “.

20. No question was referred to us concerning the validity of the arrest in this case nor were any submissions made to us on that issue either by Counsel for the Director of Public Prosecutions or by Counsel assigned by the Court. I accordingly make no comment on that matter.