The Court of Criminal Appeal has refused the Director of Public Prosecutions’ appeal against the dismissal of four drug charges, finding that a search warrant’s description of its signatory as a District Court judge was a fundamental error.
In a judgment delivered by Macken J on 12 October 2010, the court affirmed the Dublin Circuit Criminal Court order dismissing the charges against Gareth McCarthy. The appeal arose under section 9 of the Criminal Justice Act 1999. The court’s decision leaves the Circuit Court’s dismissal in place; it does not determine the allegations at a trial.
The charges alleged that McCarthy possessed cocaine and diamorphine at premises in Old Bawn, Tallaght, and possessed diamorphine for sale or supply. One count alleged possession of diamorphine worth at least €13,000 for sale or supply. The judgment records that the drugs were found in a bedroom during a search on 19 January 2008. McCarthy told gardaí in interview that he had received the package shortly before they arrived, did not know it contained heroin, and was to deliver it to another person to clear a drug debt. Those were his recorded claims, not findings by the appeal court.
A Peace Commissioner issued the warrant, but the document was headed “The District Court” and retained a printed description identifying the signatory as a judge of the District Court assigned to the district. The parties accepted that a Peace Commissioner had signed it. The prosecution argued the problem was a technical error that did not invalidate the warrant. McCarthy’s counsel argued that the warrant misleadingly claimed authority from a District Court judge and could not be corrected by evidence outside the document.
The Circuit Court had ruled the error fundamental and dismissed the charges under section 4E of the Criminal Procedure Act 1967. On appeal, the Court of Criminal Appeal agreed. It distinguished the case from *The People (DPP) v Edgeworth*, where the warrant’s printed District Court wording remained but the judge designation had been crossed out and the issuer was clearly identified as a Peace Commissioner.
The appeal court said the warrant in McCarthy’s case appeared to claim that it was issued by a District Court judge, leaving the issuing authority and jurisdiction unclear and misleading on the face of the document. It refused the DPP’s application and affirmed the Circuit Court order.