The Supreme Court has dismissed Joseph Behan’s appeal against his conviction over an attempted robbery at a North Dublin pizza shop, although the Court found that the superintendent who issued a search warrant was involved in the investigation and did not meet the statutory independence requirement.
In a judgment delivered on 30 May 2022, Ms Justice Iseult O’Malley said the detective superintendent’s oversight role meant he was part of the investigation team once notified of the serious incident. The relevant question was his position when he issued the warrant, she said, not what he did afterwards.
The warrant was issued at about 2.30am on 1 January 2019 under section 29 of the Offences Against the State Act 1939, as amended. The legislation generally requires a District Court judge to issue such warrants, but permits a superintendent to do so in urgent circumstances that make an application to a judge impracticable. A superintendent using that power must be independent of the investigation.
The attempted robbery took place shortly after midnight at a pizza shop in Edenmore Shopping Centre. CCTV showed the raider cycling from a house at No. 48 Edenmore Park to the shop and returning there after firing shots. Two staff members were injured, one seriously. A glove found in the house contained firearms residue and DNA matching Behan. The prosecution also relied on his DNA on a plastic bag used in the robbery and CCTV showing clothing and shoes matching those he had worn earlier that day.
At trial, Behan challenged the warrant. The trial judge held it valid and did not conduct a separate inquiry into whether the evidence should be excluded. The Court of Appeal dismissed his appeal. In the Supreme Court, Behan argued that the detective superintendent’s expected oversight role meant he was already involved when he issued the warrant. The prosecution argued that he had not previously taken part in the investigation and could assess the warrant independently.
Justice O’Malley said the superintendent was involved by virtue of his role once he was notified of the incident. She said she would be inclined to find a breach of the statute. The judgment records that two other members of the Court took a different view of how the independence requirement applied.
That conclusion did not decide the appeal. Justice O’Malley said the warrant decision itself was not open to real criticism: the superintendent viewed the CCTV and reached his own assessment, and another superintendent could have issued a valid warrant in the circumstances. She concluded that the error made no practical difference and that, even without the glove, the remaining evidence made acquittal a remote possibility. She found no miscarriage of justice and dismissed the appeal.