The Court of Appeal has quashed a trial judge’s decision to dismiss a charge after finding there was a rational basis for issuing a search warrant. The ruling means the trial may proceed; it does not decide the charge or prevent the warrant from being challenged at trial.
The judgment, delivered ex tempore on 5 December 2014, concerned an appeal by the Director of Public Prosecutions against a decision under section 4(e) of the Criminal Procedure Act 1967. The trial judge had dismissed a charge after concluding that the information before the District Judge was insufficient to establish reasonable grounds to suspect that a controlled drug would be found at the relevant premises.
The warrant had been issued under section 26 of the Misuse of Drugs Act 1977. In a sworn information, the investigating Garda said a source had reported that a man living at the address possessed diamorphine for sale or supply. The Garda also said surveillance had shown known drug users frequenting the premises and that he believed diamorphine would be found there. The District Judge asked whether the Garda was satisfied with the information and asked him to confirm his signature.
The Court of Appeal said the issuing judge, rather than the Garda alone, had to be satisfied on information given under oath that there were reasonable grounds for suspicion. It found the District Judge could consider both the sworn information and answers given in response to questions. The court rejected the trial judge’s concerns that the Garda had not expressly stated his grounds for suspicion and that the information did not link the visitors to drugs found at the premises.
The court said the trial judge had treated a conceivable innocent explanation as enough to negate suspicion, although the legal test was suspicion rather than proof. It concluded that the information and surveillance described in the documents gave the District Judge a rational basis to issue the warrant. It also rejected an objection based on the confidential source’s reliability not being described in the statements.
The Court of Appeal stressed that the trial was a separate matter and that any inquiry or issue concerning the warrant could still be raised there. It ordered the trial court’s dismissal decision quashed under section 4(e)(8b), so the trial could proceed as if the charge had not been dismissed.