The High Court affirmed the Circuit Court decision dismissing a woman’s claims over a Garda search at the Blue Banana nightclub in November 1996, and rejected her constitutional challenge to the statutory powers used in the operation. It refused the declarations she sought. The judgment reserved the question of costs of the appeal for submissions from counsel.
The judgment, delivered by Finnegan P. on 1 December 2003, dealt together with a Circuit appeal and a plenary action arising from the same events. The woman’s Circuit Court claim alleged assault, false imprisonment, negligence, breach of duty and statutory duty, and defamation.
She told the court that a female Garda searched her in the ladies’ toilet after she had objected to being strip searched. Her account was that her top was pulled over her head, exposing a breast, and that an officer looked up her skirt. Her sister and sister-in-law gave evidence about searches they said they experienced or witnessed. Garda witnesses described the operation as body searches and denied that the searches were conducted as the woman described.
The judge said he could not find, on the balance of probabilities, that her account of the search was correct. He relied in part on evidence from another woman, Elizabeth Casey, whose account was consistent with the Garda witnesses. The judge said he was not finding that the plaintiff had been dishonest, but that she had not discharged the evidential burden. He noted there was no suggestion she possessed or had used drugs.
The search was carried out under a warrant issued under section 26 of the Misuse of Drugs Act 1977, as amended. The judge found that the evidence of Detective Sergeant Corrigan about his visits to the nightclub provided reasonable grounds for suspicion, and that the information supporting the warrant had been sworn and the warrant issued on 23 November 1996.
The court also considered the woman’s challenge to section 26, which argued that it allowed people found on premises to be searched or arrested for search without individual suspicion and unjustifiably interfered with constitutional rights. Applying the approach in an earlier Supreme Court decision, the judge held the provision constitutional. He said the warrant requirement and the need to avoid disproportionate or unnecessary harassment, distress or embarrassment were safeguards, and found the Gardaí had exercised their powers proportionately and constitutionally in this case.
The judgment records that the defendants’ discovery had not disclosed the warrant or supporting information, which became an issue during the Circuit Court hearing. The judge described that failure as material when considering appeal costs and said he would hear counsel on the matter.