Supreme Court Justice Woulfe disagreed with the majority’s view that a divisional detective superintendent was involved in an investigation for the purposes of issuing a search warrant. His dissent did not change the result of the appeal.
The judgment, delivered on 30 May 2022, concerns a warrant issued under section 29 of the Offences Against the State Act 1939, as amended. The case was brought by Joseph Behan, the appellant, against the People at the suit of the Director of Public Prosecutions, the respondent.
Woulfe said he preferred the alternative conclusion in a draft judgment by Justice Charleton. The majority judgment, proposed by Justice O’Malley, would find that the superintendent was not “independent of the investigation of the offence” under section 29(5). It reasoned that the superintendent was necessarily involved after being notified of a serious incident in his division, because his job included oversight to ensure the investigation was conducted effectively.
Woulfe disagreed that notification and a general oversight role meant inevitable involvement. He said the legislation appeared to empower a divisional detective superintendent in principle to issue a warrant, and envisaged that the superintendent might not be involved in a particular investigation despite having the potential to take part through the oversight role.
In Woulfe’s view, whether the superintendent was actually involved should be decided as a question of fact in each case, based on the superintendent’s involvement when the warrant was issued. It should not turn solely on the general oversight function.
However, Woulfe agreed with the majority on the potential application of the proviso in section 3 of the Criminal Procedure Act 1993. He said the Court could be satisfied that there had been no miscarriage of justice. Like Charleton, his dissent was confined to the superintendent’s involvement and did not extend to the outcome.
The supplied judgment extract does not state the Court’s formal order or the appeal’s precise disposition.