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Cite as: [1998] 3 IR 69, [1997] IEHC 173

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Hanahoe v. Hussey [1997] IEHC 173; [1998] 3 IR 69 (14th November, 1997)

THE HIGH COURT
1996 No. 307 J.R.


BETWEEN

ANTHONY T. HANAHOE MICHAEL E. HANAHOE AND TERENCE
HANAHOE PRACTISING AS MICHAEL E. HANAHOE & CO. AND ANTHONY T. HANAHOE AND TERENCE HANAHOE

APPLICANTS

AND

DISTRICT JUDGE GILLIAN HUSSEY THE COMMISSIONER OF AN
GARDA SIOCHANA IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS




JUDGMENT of Mr. Justice Kinlen delivered the 14th day of November, 1997.


1. The legal firm of Michael E. Hanahoe & Co. was established in 1939. It had and has the highest reputation in legal circles. This fact is accepted without question by the Respondents. Part of their practice was on the criminal side of the Court but certainly not the bulk of it.

2. There is national concern about the appalling increase in drug traffic in Ireland in the last 10 years which has devastated families and districts. The legislature in an effort to deal with this national scourge passed several acts including the Criminal Justice Act, 1994 most of which (including the relevant sections for the purposes of these proceedings) was brought into force on October 21st 1994 by the Criminal Justice Act, 1994 (Commencement) Order, 1994 (S.I. No. 324 of 1994). The case was very ably argued by Counsel on both sides and raises a number of legal problems for which there is as yet no precedent. The evidence and argument was heard over 9 days. I have tried in the course of this long judgment to set out all the arguments and to make findings of fact as I proceed and on those facts to ground my ultimate decision.


APPLICATION FOR WARRANT

3. The evidence tendered to the Court consisted of the two warrants, the two informations which were sworn and the oral evidence of Detective Inspector McGinn. She was the inspector in charge of the Money Laundering Investigation Unit.

4. She set up an operation code named "Operation Pineapple". This operation had been set up before the Criminal Assets Bureau was in existence. The operation was set up in April 1996. The operation was not a Criminal Assets Bureau investigation. Inspector McGinn was the Operational Inspector to deal with the day to day operational matters of the investigation. She would have reported once weekly to Chief Superintendent, Ted McCarthy who is the Chief Superintendent in charge of the Garda National Drugs Unit and she would also have reported to Assistant Commissioner, Tony Hickey who is in charge of the murder investigation team in Lucan into the murder of the late Veronica Guerin.

5. She had about 12 officers currently working in "Operation Pineapple" on a full-time basis under her command.

6. The principal suspects of her investigation were Mr. John Gilligan, his wife Geraldine Gilligan (also called on occasion, Matilda Dunne) and their associates. Investigations started as a result of the receipt of a Section 57 Disclosure of Information Under the Criminal Justice Act, 1994. From that information the Gardai could see that the principal suspects had substantial amounts of money and that they had used these substantial amounts of money to buy property. From these enquiries it was ascertained that Messrs. Michael E. Hanahoe & Company Solicitors dealt in (a) the conveyancing of this property, (b) the obtaining of the mortgages and (c) the discharge of mortgages in relation to the properties. Some of the vendors had agreed to release the files in their respective Solicitor's offices to the Gardai, while others refused. The Gardai were building up a file about the purchase and mortgaging of properties and possibly a quick discharge of mortgages on properties owned by Mr. and Mrs. Gilligan and their associates. As a result of these enquiries a meeting was held on the 30th September, 1996. It was attended by a number of Senior Gardai who were directly or indirectly involved in the investigation of money laundering, or, at least, involved in other investigations that were of interest to Inspector McGinn's investigation. This meeting took place in the Serious Crime Office of the Central Detective Unit at Harcourt Square. The meeting was chaired by Assistant Commissioner, Tony Hickey. In attendance were Chief Superintendent McCarthy from the National Drugs Unit, Chief Superintendent Murphy who is now attached to the Criminal Assets Bureau, Superintendent Felix McKenna who is now attached to the Criminal Assets Bureau, Inspector William McGee from the Garda Bureau of Fraud Investigations, Inspector Gerry O'Connell from the Lucan Investigation Team into the murder of the late Veronica Guerin and Sergeant John Matlin who had worked on "Operation Pineapple" but who is now attached to the Criminal Assets Bureau. The Criminal Assets Bureau had been set up at that time on an ad hoc basis and the legislation was not fully brought into force. Chief Superintendent Murphy and Superintendent McKenna were brought in to set it up. This meeting decided that the Gardai needed to consider the evidence which was in the office of Messrs. Michael E. Hanahoe & Company. After due consideration of the law they felt that the only way they could obtain this evidence was by way of a search warrant. After the decisions were taken, the meeting was joined by the now Criminal Assets Legal Bureau Officer, Barry Galvin, Solicitor.

7. Inspector McGinn was aware of the difference between Section 63 (it is basically an order to make material available) and Section 64 Search Warrant. The meeting gave due consideration to both provisions of the law and they felt it was necessary to go under Section 64 Warrant for a number of reasons.

8. She felt that if she did not gain immediate assess to the material which was in the office of Messrs. Michael E. Hanahoe & Company, Solicitors, her investigations would be seriously prejudiced. She could not complete an investigation file on money laundering unless she could prove all the evidential chain in the paper trail. She needed every bit of evidence which was available. She was asked for the reasons she had for taking the Section 64 route as opposed to the Section 63 route. She felt that Messrs. E. Hanahoe & Company, Solicitors for John and Geraldine Gilligan had been precluded by a duty of confidentiality from releasing the documents to her. She was also aware that John Gilligan was a very dangerous criminal, that he had contacts with the drugs and criminal fraternity operating in this country and elsewhere and that he had access to unlawfully held firearms. She was also aware that he would have prevented her in any way he could from obtaining evidence which would incriminate him in breaches of the criminal law. If she served the Section 63 Order on the Solicitors, they would have been obliged to seek instructions from their clients as to whether they, the Solicitors, or, the clients should seek to vary or discharge an order under Section 63 (6) of the Criminal Justice Act, 1994. If that had happened Mr. Gilligan would have become aware that she was looking for the documents. She would have been frustrated in any efforts she had made to obtain those documents. By the time she could have gone for Section 64 Warrants the documents would have disappeared. Mr. Gilligan would have stopped her whatever way he could from obtaining the documents. Nothing on this earth would have stopped Mr. Gilligan. He would have prevented her in whatever way he could from obtaining the evidence which was vital and primary evidence of the crime of money laundering.

9. This was the fifteenth time in "Operation Pineapple" that she had made an application for a Section 64 Warrant. During the course of the same operation she had made fifty applications for discovery under Section 63. However, the current case was the first time that she had ever made an application against a Solicitor's office. Section 64 Warrants were used against John Gilligan at his home in Enfield in County Kildare and on his financial advisors, his accountants, his insurance brokers and other people who had been advising him.

10. Fear that John Gilligan would have prevented her from obtaining the evidence was the consensus view of those who attended the meeting in Harcourt Square on the 30th September, 1994.

11. After the decision had been made Mr. Galvin joined the meeting to give an explanation as to how a Solicitor's office worked and about confidentiality and privilege. He also confirmed the view of the Gardai that if a Section 63 Order had been served on the Solicitor's office, that the Solicitor would have been obliged to contact his clients seeking instructions as to whether the Order should be varied, or, discharged, or, obeyed.

12. On the morning of the 3rd October various members of the Gardai were notified by Inspector McGinn that she required them at a conference at 12 noon. These were to be the search party. We will discuss in another part of this judgment who are the people who knew about this proposed search and when they knew. Basically they were the people of the meeting of the 30th September and those of the 3rd October. This will be considered when the Court deals with the leak to the media. Inspector McGinn produced two sworn informations, one was in respect of John Gilligan and the other was in respect of Geraldine Gilligan. She prepared the informations but she also prepared the wording of the warrant. These documents were prepared after the meeting of the 30th September and were finalised before the briefing on the 3rd October. These drafts were shown to Mr. Galvin and were then taken to a typist. They were typed in the presence of Inspector McGinn. The original hand-written documents were then destroyed by Inspector McGinn. The typed document was retained by Inspector McGinn until she went to Kilmainham Court House on the 3rd October. She made a copy to put into her working file on the morning of the 3rd October and brought the original document to Court. She swore the information before District Judge Gillian Hussey. The file until then was put away in the office of Inspector McGinn. The only person with whom she had consulted was Mr. Barry Galvin, Solicitor. The same routine was followed in respect of the warrants. The conference ended at 1.20 p.m. After the meeting concluded, she went to the canteen with the three members who were coming with her to Kilmainham. She had briefed the people at the meeting for the first time that she was going for this warrant and that it had to be very sensitively executed. She discussed the matter with Chief Superintendent Frank Glacken whom she met in the corridor and informed him that the procedure for the District Court should be a warrant under Section 64 of the Criminal Justice Act, 1994. She told him that they were planning to search the offices of Messrs. Michael E. Hanahoe & Company, Solicitors in Parliament Street in Dublin. She and her companions arrived at Kilmainham District Court at 1.40 p.m. Two of them had mobile phones. District Judge Hussey returned from lunch at 2.10 p.m. Two of the Gardai who were in the company remained in the car and another Detective Guard came into the Court House and subsequently procured a bible. District Judge agreed to hear the matter in Chambers when she heard it was a highly sensitive matter. Inspector Byrne stayed in the search area to await Inspector McGinn's arrival with the warrant. He telephoned her at approximately 1.50 p.m. He told her that there were two men across the road from the search site he suspected were "the media people". She directed him and his team to go to the Bridewell Garda Station and that she would be with them in due course. In the Judge's Chamber there was merely the Judge and Inspector McGinn. When she was alone with the District Judge she gave the following evidence as to what exactly took place:-


"I took the bible. I swore the oath. I presented my informations to the Judge. She took them from me. She asked me what was the purpose of my application. I said that I would like to lay the information before her and make application to obtain a warrant under Section 64 of the Criminal Justice Act, 1994. She took the informations from me and she read the informations. When she had finished reading the informations she put a number of questions to me. Actually she queried me on the address of Messrs. Michael E. Hanahoe & Company Limited, and then she amended the warrant accordingly. The address that I had on the warrant and the information was 19 Parliament Sunlight Chambers, Parliament Street, Dublin 2 when in fact it should have been 21 Parliament Street."

13. This change is actually reflected in the document. Inspector McGinn continues her evidence as follows:-


"The Judge then said to me that the documentation that would be in the offices of Messrs. Michael E. Hanahoe & Company, Solicitors wouldn't be in the possession of one Solicitor but would be in the offices generally and that my information should reflect that point. I changed my information to read 'Messrs. Michael E. Hanahoe & Company, Solicitors' as opposed to Michael Hanahoe which I had in my information. She initialed my information where I had that written and I countersigned it. The physical change is on the document.

She then asked me if the facts of the information were correct and I stated that they were. She then queried me about the subjects of my application, the suspects mentioned in the application, Mr. John and Geraldine Gilligan. I informed the Judge that John and Geraldine Gilligan were dangerous people of the most ruthless kind; that they were part of a gang that operated in the Drugs and Criminal Fraternity operating in this country and elsewhere; and that I believed that they had been involved in drug trafficking and money laundering; that both John and Geraldine Gilligan had operated an account in the name of Matilda Dunne; and that over a one year period over one million pounds had gone through that account. I told her that Mr. Gilligan and Mrs. Gilligan told me that this money had emanated from bookies' cheques. I told her that, yes, I had sourced the money into the account and that they had appeared from bookmakers' cheques but I knew from checking out that John Gilligan was not successful at betting and when he bet he was losing 10% to 15% each time and that I believed that this money was a result of drug trafficking. I told the Judge that in sourcing the money into the account and the follow-up evidential trail, that withdrawals from the Matilda Dunne account was used to purchase properties by Mr. John and Geraldine Gilligan and that my enquiries had led me to the offices of Messrs. Michael E. Hanahoe & Company, Solicitors and they had been involved in the purchase mortgage and discharge of these properties and that they had received Matilda Dunne accounts. The Judge then queried me, to know if I could get this information in any other way. I replied to the Judge that I couldn't, that John and Geraldine Gilligan were ruthless criminals and that I believed that the information was in the offices of Michael E. Hanahoe & Company, Solicitors and if they had knowledge that I was looking for that information they would have prevented me by whatever means open to them from obtaining this information; that I needed a warrant to secure the evidence which I believed was in the offices of Michael E. Hanahoe & Company, Solicitors. She then said to me, 'are you suggesting Inspector that Mr. Gilligan would burn or set fire to the offices of Messrs. Hanahoe & Company?' and I told her that I believed he would. I told the Judge that my investigation would have been seriously prejudiced unless I could secure immediate access to the material which is in the offices of Michael Hanahoe & Company, Solicitors. According My Lord as a result of that information and the sworn information that was documented, she granted me the subject of my application which was the warrant."

14. The above information took 20 minutes in the Judge's Chambers. The Inspector left the Chambers at 2.35 p.m and went in a patrol car to the Bridewell Garda Station. The warrant was executed. The Gardai entered in ones and twos. The Gardai realised that this was a very sensitive area and were willing to accept from the Solicitors what documents were privileged. She wanted to look at the files themselves and the book keeping from the computer. She had specialists with her to assist in doing that. She was satisfied that she had procured all the material necessary for her investigations. About 40 minutes into the search, Mr. Anthony Hanahoe arrived into the office and was extremely angry. He was enraged that the media were outside the premises and said this was "a set-up".


THE LEAK

15. As we have seen there were eight people who knew on the 30th September, 1996 at the meeting chaired by Assistant Commissioner Tony Hickey. They knew that it was intended to get a Warrant under Section 64 of the Act and to search the premises of Messrs. Michael E. Hanahoe & Company. They did not know the date or time thereof. They were subsequently joined after the decision was made by Mr. Barry Galvin, who is now the Legal Officer of the recently formed Criminal Assets Bureau. She also required a typist to type up work which, she had drafted and which had been approved by Mr. Galvin. She had initially considered making the raid in the morning but decided the Solicitors might be in Court and it would be better to proceed after lunch. Accordingly she called her conference at 12.00 noon. That was the first time that people were aware of the fact that the search was going to be made on that day in the afternoon. She explained everything to those who attended that meeting and who were to be basically the search party. After the meeting she informed her superior, Chief Superintendent Frank Glacken, what she was intending to do. The conference ended at 1.20 p.m.. She arrived at Kilmainham District Court at 1.40 p.m.. The District Justice arrived at 2.10. Inspector Byrne telephoned at 1.50 p.m. to say there were two men across the road from the search site, whom he suspected were "media people". Mr. Peter Thursfield is an Irish Times photographer. Some time between 2.00 and 2.30 p.m., he was directed by his Picture Editor to attend the raid on the offices of Hanahoe Solicitors. He walked from the Irish Times to the offices and says he got there between 2.30 and 3.00 p.m.. He went alone but shortly after he arrived he saw a photographer from the Star. His colleague from the Irish Times, Paul Cullen, joined him very shortly after he had arrived. There were people going in and out of the offices but it was only about 7.00 p.m. that he started taking photographs of people whom he could clearly identify as Gardai as they were carrying files. Mr. David O'Connell is the News Editor and the Night Editor of the Star newspaper. He received a phone call which was some time in advance of their 2.00 o'clock news conference. He would estimate that this was around 1.00 o'clock but cannot say precisely. The person on the phone spoke very calmly and stated that something of interest in relation to the Gilligan case was about to occur. There was a C.A.B. raid on the firm of Hanahoe Solicitors. The Editor did not know the address of this firm but the informant gave it to him. Immediately he sent over a photographer. He felt the raid was imminent and was hoping that if there were news, it would be in train in time for the 2.00 p.m. news conference. Mr. Senan Maloney, a journalist with the Star newspaper, stated that just after 1.00 o'clock he received information from his News Editor that he should get a photographer and go down himself to Parliament Street in advance of 2.00 o'clock. The information was given to Mr. Maloney before 1.00 o'clock and he arrived at the offices of the Applicants at about 1.50 p.m. accompanied by his photographer. He estimates that there were about six photographers and reporters before the Gardai entered the building. By the time they left (which was between 6.00 p.m. and 7.00 p.m.) there were ten or twelve.


INVESTIGATION OF THE LEAK

16. Several senior Garda witnesses accepted that there were only three possible scenarios in relation to "the leak". From the evidence it will be seen that possibly before or immediately after the conference at which the Detective Inspector revealed her plan, there was communication to the media. The first source would be the Gardai themselves. The second source was that the room was bugged. This had happened in the Incident Room in Lucan in or around this time. Thirdly, it would be heard inadvertently on the telephone by lines being crossed. Having regard to the evidence already recited, this Court is satisfied that as a matter of probability, the leak emanated from the Gardai.

17. The Inspector in charge decided to investigate whether any of the officers with whom she had been dealing would have leaked it. She asked each officer with whom she had been associated. Mirabili dictu ('most marvellous to relate') each officer denied he was the source of the leak. This was the only investigation by the Gardai authorities. The Solicitors profession was outraged about the whole incident. Evidence was tendered to the Court and was not disputed that the Applicants are eminent Solicitors enjoying the highest possible reputation with the public and with their own professional body. Two former Presidents of the Law Society and other eminent Solicitors have averred to that position. The Gardai also supported this view. The evidence is unanimous.

18. The Law Society the next day released a press statement which says:-


"The Law Society condemns in the strongest possible terms the Garda tip-off to the media which ensured that press photographers and reporters actually arrived in advance of Gardai yesterday as Gardai visited the office of a firm of Dublin Solicitors. It might reasonably be concluded that this leak was calculated to create a media circus which would reasonably do damage to the reputation of the Solicitor's firm concerned."

19. The same statement alleges:-

"Contrary to what was implied in the media reports, the visit related to a money laundering investigation and not to a murder investigation."

20. It also points out that the Applicant firm is one of the largest companies in the country and by far a great part of the firm's work does not relate to criminal law. This firm acts for many Gardai and in fact also defended the late Veronica Guerin. Mr. Andrew Smyth who was the President of the Incorporated Law Society at the relevant time also gave evidence about the high standing firm of Michael E. Hanahoe & Company. He was appalled when he saw the media coverage. He felt that a great wrong had been done to the firm and "that those who had instigated the raid obviously did not think of the fall-out from the raid apart from what their requirements were in relation to it". He pointed out that a Solicitor acting for someone who is buying property could in the course of his conveyancing practice bind himself by means of undertakings to banks, to lending institutions, to Solicitors on the other side with regard to various matters involved in the conveyancing. For those reasons alone he felt that you would have to retain control of the documentation and the file relating to the particular transactions so that if somebody did come in seeking the documentation, all of these matters would have to be looked into before he could even consider handing over the documentation. He thinks the public perception of a search under a Search Warrant would be something "rotten", for want of a better word, in the office and that if money laundering were the basis of it and this was known to the public as being the basis of it, but further from that, that the Solicitor himself has to be involved as a party to the money laundering. Mr. Smyth, as President of the Law Society, wrote to the Commissioner of An Garda Siochana. The letter which is dated the 9th October, 1996 reads as follows:-


"Dear Commissioner,

I am writing to complain in the strongest possible terms about the tip-off to the media which ensured that press photographers and reporters actually arrived in advance of the Gardai at the offices of Michael E. Hanahoe & Co. on the afternoon of the 3rd October, 1996.

This leak, coupled with the comments which were attributed to the Garda Press Office, inevitably led to a situation which in all likelihood has seriously damaged the reputation of the Solicitors firm concerned.

As the visit was a planned Garda operation, one can only conclude that the tip-off to the media in advance must have originated within the Gardai.

Solicitors everywhere are outraged by what was done to this firm. I regret to have to inform you that it has seriously damaged the good relations which had always existed between Solicitors and the Gardai. In this letter I am seeking your co-operation in an effort to restore such relations. Newspaper reports suggest that a Garda Internal Enquiry is underway to determine the source of the leak in question which in turn suggests that the leak was not officially authorised.

It must be pointed out, however, that many Solicitors are placing extremely sinister interpretations on this leak. Some view it as an officially sanctioned attempt by the Gardai to intimidate all firms of Solicitors who regularly act for the accused in the criminal law area. It would be therefore of enormous significance for me to hear from you formally whether or not that the leak was in fact officially authorised. I also very much need to know what assurances you can give in relation to avoiding any repetition of what happened in this case.

In addition, it would be highly desirably if a procedure could be agreed between the Gardai and the Law Society in relation to these matters. Finally, it seems to me that a public apology from the Gardai to the firm of Michael E. Hanahoe & Co. would be in order.

I believe that if the process of restoring relations between the Gardai and the Solicitors profession is to commence, you and I should meet to discuss the above at the earliest possible opportunity. I am hereby requesting such a meeting.

I look forward to receiving your response.


Yours sincerely,
Andrew F. Smyth.
President."

21. The Garda Commissioner replied in a letter dated the 22nd October, 1996 as follows:-



"Dear Mr. Smyth,
I am directed by the Commissioner to refer to your letter of the 9th October, 1996 regarding above and to his meeting with yourself and Mr. Ken Murphy on the 18th October, 1996 to discuss the same subject.

The Commissioner wishes me to say that the Garda authorities did not sanction release of information on the visit of the Gardai to the offices of Hanahoe & Company on the 3rd October, 1996. He said he had nothing to indicate that the information came from within the Garda Siochana and he was surprised and disappointed that the media were tipped-off.

The attendance of the media on the occasion did nothing to enhance the Garda investigation. In fact, the opposite was true. The Commissioner also emphasised that in the absence of evidence or specific indicators, it should not be automatically assumed that the tip-off came from Garda sources. He was most anxious that the excellent relationship continues between the Law Society and the Garda Siochana.

Since then the High Court action has been initiated against the Commissioner and Others.

Yours sincerely,
B.G. Garvey,
Chief Superintendent,
Personal Assistant to Commissioner."

22. The above two letters were published in the Law Society Gazette in November 1996. It was suggested by Assistant Commissioner Hickey that informal enquiries were carried out by Chief Superintendent McCarthy and Chief Superintendent Murphy but they do not seem to have had any reality. Chief Superintendent McCarthy agreed eavesdropping and inadvertence were not supported by any evidence. Assistant Commissioner Hickey also told the Court that the Dail was informed by the Minister for Justice that no enquiry had been held. Counsel for the Respondent agreed, without qualification, that there had been no enquiry. There is no physical file in existence to pursue the question of the leak, although it is conceded that the leak in this particular case might be a criminal offence.

23. The Court makes the following findings of fact:-

24. The firm of Messrs. Michael E. Hanahoe & Co. had prior to the search on the 3rd October, 1996 the highest reputation amongst their colleagues and amongst the Gardai.

25. Prior to the search of the offices of Messrs. Michael E. Hanahoe & Co., the investigation had necessitated the search of the Gilligan's premises pursuant to a Warrant in July 1996 and the search of Accountants in early August which had all attracted considerable publicity. Any intelligent observer could have anticipated the fact that the Gardai would turn up at the Hanahoe office at some stage to look for documents. In fact members of the firm had discussed that very possibility and had agreed that their duty as Solicitors and officers of the Court was to co-operate in every way with the Gardai. In fact the Gardai confirmed that they got the utmost co-operation from all the members of the firm except Mr. Anthony Hanahoe, who was annoyed, and regarded his firm as having been "set-up". These were perfectly understandable reactions in the circumstances of the case. Mr. Terry Hanahoe also was displeased with the Gardai actions.

26. The investigation had not concluded and other offices remained to be approached and/or searched in order to secure documentation and/or evidence. The search in the Accountants' offices had received publicity in the Irish Independent article of the 7th August, 1996 in which it is suggested that this information emanated from Garda sources, however this is not really an issue for determination by this Court. However, other than that publicity, the Gardai had succeeded in executing fourteen Section 64 Warrants and some forty or so Section 63 Warrants and made informal approaches to offices without any publicity prior to the search on the 3rd October, 1996.

27. The group of officers engaged in this investigation were efficient and highly experienced. They were in fact an elite group. They could not be described as careless, inattentive, inefficient or negligent. At the meeting of the 30th September, 1996 those present considered the possibility of Section 63 Orders or Section 64 Warrants. There was no note or memorandum of that meeting. The Gardai considered that immediate access to documentation could only be obtained under Section 64. They also considered that a possible application to the Court under S. 63 should be avoided, so that Mr. and Mrs. Gilligan would not be aware of the intention to obtain such documentation in view of their alleged ruthlessness. The briefing of the search team which had commenced at 12.00 noon concluded at approximately 1.20 p.m. on the 3rd October, 1996. Sometime not later than 1.30 p.m. an anonymous phone call was made to the News Room of the Star newspaper. The caller was calm and precise and his purpose was to alert the paper to the raid. The caller told Mr. O'Connell, the Editor of the Star, that there was something which would interest them in relation to the Gilligan case. There was to be a C.A.B. raid on the firm Hanahoe Solicitors. The raid was imminent. It was suggested to get down there as quickly as possible. The calls were made to the Irish Times and Mr. Peter Thursfield was alerted by his Picture Editor at around 2.30 p.m.. There was immediate presence at the Hanahoe office before 2.00 p.m.. They were noticed by Inspector Byrne and by a member of staff of the Solicitors' firm. The Search Warrant was granted at 2.30 or 2.35. Detective Inspector McGinn spent no more than fifteen to twenty minutes with the District Judge. There was no person present other than the Judge and the Inspector. The application was made under the Criminal Justice Act, 1996. The Detective Inspector did not discuss Section 63 of the Criminal Justice Act, 1996 with the District Judge and in particular they did not discuss the meaning or effect of Section 63(4). For the purposes of this judgment I insert here Sections 63 and 64 of the Criminal Justice Act (No. 15 of 1994):-


"63 (1) A member of the Garda Siochana may, for the purpose of an investigation into drug trafficking or an offence under Section 31 of this Act or an investigation into whether a person has benefited from drug trafficking or an offence in respect of which a confiscation order might be made under Section 9 of this Act, apply to a judge of the District Court for an order under subsection (2) of this section in relation to any particular material or material of a particular description.

(2) If on such an application being made the judge is satisfied that the conditions in subsection (4) of this section are fulfilled, he may order that the person who appears to him to be in possession of the material to which the application relates shall -
(a) produce it to a member of the Garda Siochana for him to take away, or
(b) give the member access to it, within such period as the order may specify.

(3) The period to be specified in an order under subsection (2) of this section shall be 7 days unless it appears to the judge that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in subsection (2) of this section are -
(a) that there are reasonable grounds for suspecting that a specified person has carried on drug trafficking or has committed an offence under Section 31 of this Act or has benefited from drug trafficking or from an offence in respect of which a confiscation order might be made under Section 9 of this Act.
(b) that there are reasonable grounds for suspecting that the material to which the application relates -
(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, and
(ii) does not consist of or include items subject to legal privilege,
and
(c) that there are reasonable grounds for believing that it is in the public interest, having regard -
(i) to the benefit likely to accrue to the investigation if the material is obtained, and
(ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.

(5) Where a judge makes an order under subsection (2)(b) of this section in relation to material on any premises, he may, on the application of a member of the Garda Siochana, order any person who appears to him to be entitled to grant entry to the premises to allow a member of the Garda Siochana to enter the premises to obtain access to the material.

(6) A judge of the District Court may vary or discharge an order made under this section.

(7) Where the material to which an application under this section relates consists of information contained in a computer -
(a) an order under subsection (2)(a) of this section shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible, and
(b) an order under subsection (2)(b) of this section shall have effect as an order to give access to the material in a form in which it is visible and legible.

(8) Subject to subsection (9) of this section, an order under subsection (2) of this section -
(a) shall not confer any right to production of, or access to, items subject to legal privilege, and
(b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.

(9) In the case of material which has been supplied to a Government department or other authority by or on behalf of the government of another state in accordance with an undertaking (express or implied) on the part of the department or authority that the material will be used only for a particular purpose or purposes no order under this section shall have the effect of requiring or permitting the production of, or the giving of access to, the material as mentioned in subsection (2) of this section for a purpose other than one permitted in accordance with the undertaking and the material shall not, without the consent of the other state, be further disclosed or used otherwise than in accordance with the undertaking.

(10) Any person who without reasonable excuse fails or refuses to comply with an order made under this section shall be guilty of an offence and shall be liable -
(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

64 (1) A member of the Garda Siochana may, for the purpose of an investigation into drug trafficking or an offence under Section 31 of this Act or an investigation into whether a person has benefited from drug trafficking or an offence in respect of which a confiscation order might be made under Section 9 of this Act, apply to a judge of the District Court for a warrant under this section in relation to specified premises.

(2) On an application being made under subsection (1) of this section, the judge may issue a warrant authorising a specified member of the Garda Siochana, accompanied by such other members of the Garda Siochana as the member thinks necessary, to enter, by force if necessary, and search the premises if he is satisfied -
(a) that an order made under Section 63 of this Act in relation to material on the premises has not been complied with, or
(b) that the conditions in subsection (3) of this section are fulfilled, or
(c) that the conditions in subsection (4) of this section are fulfilled.

(3) The conditions referred to in subsection (2)(b) of this section are-
(a) that there are reasonable grounds for suspecting that a specified person has carried on drug trafficking or has committed an offence under Section 31 of this Act or has benefited from drug trafficking or from an offence in respect of which a confiscation order might be made under Section 9 of this Act, and
(b) that the conditions in Section 63(4)(b) and (c) of this Act are fulfilled in relation to any material on the premises, and
(c) that it would not be appropriate to make an order under that section in relation to the material because -
(i) it is not practicable to communicate with any person entitled to produce the material, or
(ii) it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated, or
(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a member of the Garda Siochana could secure immediate access to the material.

(4) The conditions referred to in subsection (2)(c) of this section are -
(a) that there are reasonable grounds for suspecting that a specified person has carried on drug trafficking or has committed an offence under Section 31 of this Act or has benefited from drug trafficking or from an offence in respect of which a confiscation order might be made under Section 9 of this Act, and
(b) that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person or to drug trafficking or to an offence under Section 31 of this Act or to an offence in respect of which a confiscation order might be made under Section 9 of this Act which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularised, and
(c) that -
(i) it is not practicable to communicate with any person entitled to grant entry to the premises, or
(ii) entry to the premises will not be granted unless a warrant is produced, or
(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a member of the Garda Siochana arriving at the premises could secure immediate entry to them.

(5) Where a member of the Garda Siochana has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the warrant was issued."

28. We have seen the difference between Section 63 which is in the nature of a Notice to Produce and under Section 64 which is a Warrant granting immediate access to the documentation. The Judge and the Inspector did not discuss that the limited Order under Section 64 would suffice if coupled with a more general Order under Section 63. The Detective Inspector did not refer to any case law. She did not show the District Judge any evidence on her file.

29. The foregoing are the submissions which the Court received on behalf of the Applicants. The Court accepts the following findings of fact being supported by the evidence and as being relevant to the submission made on behalf of the Respondents.

30. At all levels within the Gardai, both senior management and operational level, there was an awareness that a search of a Solicitors' office was a serious undertaking. It was not to be undertaken lightly and required to be executed with discretion and sensitivity. It was also the first time in the history of the State that it was being done and it was being executed under very recent legislation. The application to Judge Gillian Hussey was made in her chambers. This was regarded as appropriate, having regard to the sensitivity of the situation and the requirement of discretion.

31. The fact that the members of the search party were not uniformed Gardai, used unmarked Garda cars which were parked a distance from the search site, also support the drawing of the inference that the intention was that the search should be conducted with discretion and certainly that publicity was not to be even sought. While we now know that the media were present at the offices of Hanahoe & Company before the search team arrived, the members of the search team succeeded in making their way into the offices without attracting media attention. The Gardai had a bona fide and proper belief that they needed access to documents likely to be found in the offices of Hanahoe & Company. The Applicants do not dispute this fact. The Gardai gave full and serious consideration to the appropriate route by which access to the documentation could be obtained and the Gardai considered the question of whether to proceed by way of Section 63 of Section 64. The matter was debated and sketched out at a lengthy and high powered meeting and the Gardai sought and followed legal advice.

32. The decision by the Gardai to opt for a Section 64 was, inter alia, governed by the knowledge of the character of the principal suspects and their concern that if immediate access was not obtained that Mr. Gilligan would "stop at nothing" to prevent them accessing the primary evidence believed to be in the possession of Hanahoe & Company. The Garda beliefs that if an application were made under Section 63 that the Hanahoe's would have been bound or at least entitled to inform their clients, was a correct one. The Gardai had a genuine fear that if Mr. Gilligan were told of the Section 63 Order they would be denied access to the documents. The Gardai were anxious to ensure that the correct procedure was followed and they were aware of the technical nature of the legislation and consulted with and were advised by Mr. Barry Galvin, Solicitor. He also advised on the form of the information and Warrant. The procedure contemplated in "Kenny's case" (D.P.P. -v- Kenny, [1990] 2 I.R. 110) was followed in the course of the application in Judge Hussey's chambers at Kilmainham District Court. Judge Hussey did not accept the information at face value or simply rely on what she was told. She probed and put questions to the Gardai, in particular in relation to the crucial question of the availability of an alternative procedure. Judge Hussey independently probed.

33. The actual search itself was conducted with discretion, efficiency and courtesy. They gained access without attracting the attention of the media who were undoubtedly present in the street. While the search party were on the premises they were scrupulous to avoid unnecessary embarrassment for the Hanahoe's or any unpleasantness. They accepted without question any claim for privilege or relevance of any of the documents. Two Detective Sergeants entered the premises later to assist in the operation. They also succeeded in entering the premises without becoming the focus of media attention. The Gardai were obviously distressed by the publicity. They sought to minimise and if possible avoid further publicity. So they canvassed the question of leaving by a rear exit carrying briefcases and using these as evidence bags and having female Gardai who were perceived as likely to be less conspicuous than those supplied with briefcases were all canvassed. In the event the decision of the Gardai should leave when and in the manner they did was taken not by them but by the Hanahoe's and in particular by Mr. Tony Hanahoe. They also submitted that every member of the Garda Siochana disapproved of the fact of publicity and was surprised and shocked by it. Publicity was potentially or actually detrimental to the success of the operation. It is accepted by the Respondents that no formal enquiry was directed. The evidence of senior police officers who had been involved in the investigation of leaks previously said that such formal investigations had not proven particularly successful in the past.

34. They also make the point that the person who contacted the "Star" stated that it was to be a C.A.B. raid. It is pointed out that in fact this was not a "C.A.B." operation. The Court does not regard this point as being particularly significant. The Respondents do not accept for one minute the Irish Independent story in relation to the search of Accountants' offices emanated from Garda sources. As regards the point made by the Applicants as regards why the Gardai should avoid a possible application under Section 63, the Respondents state that the main Garda concern at all stages had been to avoid a situation where the suspect was able to seize or destroy the evidence. The Court's challenge was of relevance only because it would facilitate such action by providing a window of opportunity. They also argue that Mr. O'Connell, Editor of the Star, claims to put this phone call somewhat earlier, just after 1.00 p.m.. The Court is satisfied that either during briefing session or very shortly after it, communication was made to Mr. O'Connell. Therefore, whether it was made at 1.00 p.m. or 1.30 p.m. is of no great significance. The Respondents accept Detective Inspector McGinn does not appear to have referred to Section 63 of the Criminal Justice Act, 1994 by name. Each information at paragraph 7 therefore sets out why a Section 63 Order would be inappropriate. However, she and the District Judge did discuss the question of alternative procedures for obtaining the evidence and that she was of course addressed to the information and Warrant. It is accepted that innocent parties can and may be the subject matter of Section 63 and Section 64 applications. They also point out that there is no evidence of financial loss by the firm or any of the individual partners. The evidence of Chief Superintendent McCarthy excludes eavesdropping. They argue that the day that he left the conference room there were no bugs there. However, this Court is satisfied as a matter of probability that the information to the media emanated from Garda sources. The Court is surprised at the attitude of the Commissioner and the Gardai to the investigation of this undoubted leak which may well be a criminal offence. The Court is satisfied that whether to apply for a Section 63 or a Section 64 Order is an operational matter for the Gardai. It would not in normal circumstances be appropriate for Judicial Review. The Gardai, for the reasons which they have explained, wanted to go with a Section 64 and had taken legal advice. Some lawyers would have reservations about that choice but it was clearly within their jurisdiction. In the absence of mala fides, or some similar ground it cannot be gainsaid. The Court accepts that there is a clear distinction between a Section 63 Production Order and a Section 64 Search Warrant. It accepts that under a Section 63 Production Order a person receives the Order and is allowed to produce the documentation and make their own decisions as to what documents fall within or without the Order. This is consistent with the approach on Discovery of Documents in civil proceedings. In the case of a Section 64 Warrant however, the decision is taken by the searcher. Accordingly, a searcher necessarily involves (scrupulously carried out) a consideration of many more documents than there is ultimately seized in order to satisfy the searcher that all relevant documents have been obtained. Accordingly, such a search is much more intrusive on the confidentiality of the relationship between the party searched and all his clients. In the present case the Gardai depended greatly on the information given to them by the Solicitors and their staff and there was great co-operation and the acceptance of decisions by the Solicitors' firm as to what was privileged and what was not relevant.

A Section 63 Production Order is necessarily limited to the documents identified therein. A contrast to a Section 64 Warrant carries with it the power under Section 64(5) which permits the Gardai to seize and retain any other material likely to be of substantial value to the investigation. It is obviously a much more intrusive Order.

35. The Gardai apparently saw a distinction between Section 63 and 64(a) and that Section 63 carried with it a time scale which necessarily meant a delay of at least seven days before the production of the documents raising the prospect of possible interference with the documents or material. However, Section 63(4) permits an abridgement at the time and accordingly contemplates the possibility of making an immediate Production Order and indeed to permit entry and access for that purpose. This Court accepts without question that any such intrusion on the personal rights of a citizen, building, privacy, property and the inviolability of a dwelling-house must therefore be closely scrutinised and expressly justified. As Hamilton P. (as he then was) said in Byrne -v- Grey , [1988] I.R. 31 at p. 38:-


"These powers encroach on the liberty of the citizen and the inviolability of his dwelling as guaranteed by the Constitution and the courts should construe a statute which authorises such encroachment so that it encroaches on such rights no more than the statute allows expressly or by necessary implication."

36. Lord Diplock in the House of Lords in R. -v- I.R.C., Ex. p. Rossminster Limited , [1980] AC 952 at 1008:-


"The construing court ought.... to remind itself, if reminder should be necessary, that entering a man's house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority."

37. In the case cited, Mr. Justice Hamilton found that a District Judge or Peace Commissioner issuing a Warrant must himself be satisfied that there is reasonable ground for suspicion and is not entitled to rely on the mere averment by a member of the Garda Siochana that he, the member of the Garda Siochana, had reasonable grounds for suspicion. Accordingly, the member of the Garda Siochana must be in a position to satisfy the District Judge of the relevant facts and justify such a finding. His view was reaffirmed by the Court of Criminal Appeal presided over by McCarthy J. in the People (D.P.P.) -v- Kenny , [1990] 2 I.R. 110 at 117:-


"There was no evidence that the Peace Commissioner inquired into the basis of the Garda's suspicion. On the contrary, on the evidence adduced at the trial the only conclusion is that the Peace Commissioner, deceased at the time of trial, acted purely on the say-so of Garda Conway as contained in the information. In doing so, he failed to exercise any judicial discretion; he failed to carry out his function under the section and, accordingly, the Warrant was invalid."
In D.P.P. -v- Gaffney , [1987] I.R. 173 at 181, Henchy J. stated that:-

"[A power to arrest without a Warrant is] a substantial invasion of the personal rights enjoyed before the enactment of those provisions and there should not be attributed to Parliament an intention that such personal rights were to be curtailed further than the extent expressed in the statute."

In the State (Lynch) -v- Cooney , [1982] I.R. 337, the Supreme Court held that in cases where a Minister or a District Justice had to be of opinion or satisfied that a certain state of affairs existed then a decision must be shown:-

(a) to be bona fide.
(b) factually sustainable.
(c) to be decided by a decision maker who directed himself or herself correctly in law.

38. It is alleged that in the present case the District Judge was faced with a dearth of relevant information, she did not have the statute and did not refer to any relevant law. Of course the Judge may be very familiar with the statute and therefore does not have to have the statute produced. However, in the case of serious invasion of constitutional rights, the learned Judge must be satisfied on the facts that the appropriate statute would apply and must seek to ensure that the constitutional rights of the citizen are protected. Any diminution of these rights must be in strict accordance with the established necessity and with strict application of the relevant statutes. It was submitted that the Warrant here did disproportionately and unjustifiably invade the constitutional rights of the citizen. Whether or not the search was attended by publicity, the lone publicity which it was submitted to was secured by the action of some servant of the State.


CHANGES EFFECTED BY THE CRIMINAL JUSTICE ACT, 1994.

39. The significance of the Criminal Justice Act, 1994 was that it greatly extended the power to grant search warrants and obtain orders in relation to materials and documents possibly relevant to the criminal investigation and/or prosecution. Hitherto persons subject to Search Warrants were essentially suspects and proposed Respondents in any investigation. However, the Criminal Justice Act, 1994 contemplated the obtaining of documentation from wholly innocent third parties who simply happened to have documentation or material which might be said to be relevant and might be used in evidence. Section 63 and Section 64 of the Act are identical to Section 27 of the Drug Trafficking Act, 1984 in the United Kingdom which in turn was modelled on the Special Procedure Provisions of the Police and Criminal Evidence Act, 1984 ("P.A.C.E."). Those Acts envisaged that documentation should be obtained for the purpose of criminal investigation from third parties. However, they also recognise that in certain situations of confidentiality or where the relationship was one of particular significance, a Search Warrant should not be immediately issued. Such relationships include the relationship between a Social Worker and a client, Accountants or Bankers and their customers or of course Solicitors and their clients. The structure of the legislation is to seek to effect the minimum interference in such relationships necessary to obtain the documentation or material necessary. The differences between Production Orders (such as those granted under Section 63) and search warrants (such as those granted under Section 64) has been the subject of considerable scrutiny in the United Kingdom in the years following the introduction of P.A.C.E. in 1984 and the Drug Traffic Act, 1984.

40. This Court is not satisfied that under Section 63(3) the Court could order immediate execution. The specified period "shall be seven days unless it appears to the Judge that a longer or shorter period would be appropriate in the particular circumstances of the application". It is not conceivable that it would give immediate execution as it is obvious from the general nature of a Section 63 Order that a person would require time within which to comply. The Court must allow a reasonable time for compliance.

41. The question as to whether to apply for a Section 63 Production Order or a Section 64 Search Warrant is initially, as we have seen, an administrative one. It is a decision to be made by the Gardai. They might reasonably determine whether Section 63 "might" be seriously prejudicial to their investigations. They may decide that they need immediate entry to the premises and immediate securing of the documents. This is an administrative decision. However, it is then for the Court to decide whether to implement its decision by granting a specific Order. The Court must be ever conscious of the fact that this is a new and serious invasion of constitutional rights including the invasion of privacy and possibly the invasion of confidential relationships. The Respondents accept that the People (D.P.P.) -v- Kenny , [1990] 2 I.R. 110, the D.P.P. -v- Gaffney , [1987] I.R. 173 and the State (Lynch) -v- Cooney , [1982] I.R. 337 are authority for the fact that the District Judge issuing a Warrant must himself or herself be satisfied that there are reasonable grounds for the relevant suspicions which entitle the Warrant to be issued. The District Judge is not entitled to rely upon a mere averment of a member of An Garda Siochana that that Garda has reasonable grounds or suspicion. In the present case the learned District Judge did examine the Detective Inspector on oath and there was undoubtedly additional evidence, not just a mere statement of opinion. The Court must look not merely on the oral evidence but also on the information and the Draft Warrant. The Warrant itself is a prima facie evidence that the District Judge came to appropriate conclusions. The District Court is now a Court of record (cf Section 13 of the Courts Act, 1971). Its Orders are therefore matters of record. It is argued by the Respondents that the onus is on the Applicants to show that the District Judge was not satisfied of the matters of which she has stated herself to be satisfied in the Search Warrant. It is alleged that the Applicants are estopped from going behind the Order of the District Judge. The onus of all such matters rests on the Applicant ( O'Keeffe -v- An Bord Pleanala , [1993] 1 I.R. 39). Normally the Courts will not interfere with the District Judge within her jurisdiction unless it can be shown that no reasonable District Judge would have come to the conclusions, which she did, based upon the evidence before her. It is argued that there was ample evidence which would entitle her to come to the conclusion that it was appropriate to order a Warrant under Section 64 rather than a Production Order under Section 63. In particular there was evidence before her that there was a risk to the investigation if immediate access was not obtained. It was argued whether she regarded that risk as sufficient to find compliance with Section 64(3)(c)(iii) is, as it was submitted, a matter for her on the basis of the O'Keeffe case already cited.

42. The Applicants also relied on several English authorities and the Respondents in their written submission and their oral submission dealt with these various cases. In R. -v- Maidstone Crown Court Ex. P. Waitt , [1988] Crim. L.R. 384, a Divisional Court considered an ex-parte Search Warrant which had been granted pursuant to paragraph 12 of the First Schedule to P.A.C.E..

43. The central difference between P.A.C.E. and the Drug Trafficking Legislation is that Production Orders under P.A.C.E. are obtained on inter parties hearings and not ex-parte. Search Warrants are obtained on an ex-parte application. The Divisional Court (Lloyd L.J. and McPherson J.) quashed the Warrant observing:-

"The Special Procedure under Section 9 and Schedule I is a serious inroad upon the liberty of the subject. The responsibility for ensuring that procedures are not abused lies with Circuit Judges. It is of cardinal importance that Circuit Judges should be scrupulous in discharging that responsibility. There is responsibility as gravest on the Circuit Judge who is asked to issue a Search Warrant under paragraph 12. It is essential that the reason for authorising this seizure is made clear. The preferred method of obtaining material for police investigation should always be by way of an Inter Parties Order under paragraph 4 after Notice of Application has been served under paragraph 8. An ex-parte application under paragraph 12 must never become a matter of common form and satisfaction is to fulfilment of the conditions is an important matter of substance."

44. The above paragraphs appeal greatly to this Court. The primary concern of the Judge hearing the application must be so far as is practicable, to protect the rights of the citizen. We live in an era of fantastic and intrusive invasions of privacy. The State, the media and the many electronic devices have combined in a growing and worrying assertion that the invasion is allowable because of the battle against crime and corruption and also based on the alleged "public's right to know". These invasions are increasing but the Courts must be the restraining arm to protect privacy and only allow invasion into privacy where on balance it can be justified. In the present case justification is the specific legislation which is new and must be carefully considered and analysed by any Judge making an Order on foot of it. The right to privacy is now recognised as a constitutional right (McGee v. Attorney General , [1974] IR 284. This right is confirmed by the Supreme Court in the matter of a Ward of Court, 1995 2 ILRM 401.

45. The next case mentioned by Counsel on both sides is R -v- Southampton Crown Court Ex. p. J and P. [1993] Crim. L.R. 962. In that case the firm of Solicitors was the subject of an ex-parte search warrant. Furthermore, in that case the firm was itself the subject

of the investigation. However, the Divisional Court (Watkins L.J., Auld, and Laws J.J.) while holding that the fact that the firm was the subject of an investigation might in certain circumstances justify a search warrant, nevertheless, quashed the warrant observing:-

"As the applicants themselves were under investigation this might have been a proper case to issue the warrants on an ex-parte basis, but the fact that the Solicitor himself was under investigation did not of itself justify ordering such an intrusion into his affairs and those of his clients. All the circumstances had to be considered, including the seriousness of the matter being investigated, evidence already available to the police, and the extent of which the Solicitor already knew of the interest in his affairs such as might have caused him to destroy or interfere with documents. Here, the police already had a good deal of evidence, or they could have (and in fact had) made inquiry of (other) persons".

46. The warrants were challenged successfully on three grounds in that case. Firstly, the warrant was found to have excessive width. This does not apply to the current warrant. Secondly, the warrant included privilege material while the warrant in this case expressly excludes same. The third ground suggests that the issuing Judge had not considered whether there were other ways in which the same material could be obtained. In the present case the Judge did consider this matter.

47. A warrant might be issued for the purpose of obtaining information which would assist the Gardai but it may also be used for the gathering of evidence necessary to pursue prosecutions. While the Gardai may have significant information they may still require documentary evidence which would be an essential part of any prosecution. Evidence gathering is as important as information gathering and is the necessary work of a Garda investigation. The foregoing line of authority was reviewed and endorsed in

R -v- Southwark Crown Court, ex-parte Sorsky Defries, [1996] Crim. L.R. 195. This case dealt with an application under international power which was the legislative equivalent to Section 55 of the Irish Act which permits sections 63 and 64 to be used for the benefit of a prosecution abroad. Again in this case the firm of accountants, the subject matter of the search warrant, were alleged to be participants in the money laundering scheme. The application to claim the warrant lasted for 15 minutes. The Divisional Court (McConnell L.J. and Waller J.) quashed the warrant holding:-

"The Judge should have taken his time and asked to be referred to the relevant statutory provisions and authorities....... There were passages in the authorities which, had they been to the Judge's mind, must have caused him to exercise great caution before granting the application".

In Williams -v- Summerfield , [1972] 2 Q.B. 512, Lord Widgery C.J. said that the issue of a search warrant was a very serious interference with the liberty of the subject, a step which would only be taken after the most mature and careful consideration of all the facts. In Maidstone Crown Court Ex P Waitt, [1988] Crim. L.R. 384 Lloyd L. J. said that the special procedure under Section 9 of Schedule 1 was a serious intrusion on the liberty of the subject and the responsibility for ensuring it was not abused lay with the Circuit Court who should be scrupulous in discharging his responsibility. In R. -v- Crown Court at Lewes, (1991) 93 CR. APP. R. 60, Bingham L. J. (as he then was) in summary said that Judges dealing with such applications were required to exercise the powers with great care and caution.

48. The Divisional Court in R. v. Southwark Crown Court concluded:-


"It is plain that such an intrusion upon the liberty of the subject could not be allowed to go through on the nod. Unfortunately, the plain impression given by what happened with regard to this application was that the Judge approached it on the basis that he could rely on what B had sworn to and not applied his own mind to being satisfied as to the various matters upon which it was necessary for him to be satisfied. It was argued by the applicants that given the alleged involvement of the firm it might be said that after proper consideration of the statutes and the facts the Judge might have been satisfied that service of the application might seriously prejudice the investigation. However, it would have required further argument as to whether he could have been satisfied, the material was likely to be of substantial value and material evidence ".
However:-
"He could not possibly have been so satisfied in the time available. Simply to read the information in 15 minutes would be good going but to have analysed it and sort it out what evidence related to which company and individual in that time would be beyond belief."

49. Finally, the Divisional Court held that in the particular circumstances of that case it was necessary for the Circuit Court Judge to give reasons for the decision to which he had come whereas in fact the entire procedures took a couple of minutes and the Circuit Judge was referred to practically nothing.

50. The Respondents pleaded that the nub of the matter is to be found in the ultimate conclusion of the Court in that case where it was held as follows:-


"Unfortunately, the plain impression given by what happened with regard to this application was that the Judge approached it on the basis that he would rely on what he had sworn to and not applied his own mind to being satisfied as to the various matters on which it was necessary for him to be satisfied".

51. It is submitted that that is the basis for the decision rather than any particular time scale. There is no evidence that the learned District Judge had no experience of such warrants or that she was unfamiliar with the Act. The onus to prove such matters lies firmly with the Applicants. The maximum "ignorantia juris quod quisque scire tenetur non excusat" - (ignorance of the law, which everyone is presumed to know, excuses no one) is applicable. Here a Court of record has issued warrants and there is a presumption in favour of their legality. However, it is important to consider the information on oath which was made by the Garda Inspector which was before the learned District Court and it reads as follows:-


"This is the information on oath of Detective Inspector Mary Theresa McGinn, a member of An Garda Siochana attached to the Garda Bureau of Fraud Investigation, Harcourt Street, Dublin 2.
1. I say that I am involved in an investigation into whether John Gilligan of Mucklon, Enfield, Co. Kildare and/or of 13 Corduff Avenue, Blanchardstown, Dublin 15 has committed an offence under Section 31 of the Criminal Justice Act, 1994 as amended or has benefited from drug trafficking.
2. I believe, as I said, John Gilligan has committed an offence under Section 31 of the Criminal Justice Act as amended and that he has benefited from drug trafficking.
3. I further say that I suspect that the material to which this application relates is likely to be of substantial value (whether by itself or together with other materials) to the investigation for the purpose of which this application is made.
4. The basis of my suspicion as to the involvement of the said John Gilligan and the value of the said material to the said investigation is as a result of information received by me:
(a) emanating from an investigation which was conducted pursuant to a report received under Section 57 of the Criminal Justice Act, 1994 as amended by Section 3 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 and
(b) from confidential sources which I believe to be reliable but which I do not wish to disclose for operational reasons.
As a result of the foregoing I believe that the said John Gilligan was released from prison on the 17th November, 1993, and since that date he has not been in receipt of realistic earnings. He has been seen in possession of substantial amounts of cash money, amounting to over 5 million pounds in an 18 month period. He has purchased substantial properties in his own name, in the joint names of himself and his wife, in the joint names of himself and his son, Darren, and in the joint names of himself and his daughter, Tracey. He has also been associated with financing and organising of several large controlled drug shipments from Holland to Ireland.
Confidential Gardai enquiries carried out also reveal that Michael E. Hanahoe & Company, Solicitors acted for the said John Gilligan in the purchase, mortgage and discharge of mortgage of a number of properties, the ownership of some of which have not been registered.
5. (a) I say that I suspect that the material for which I seek an order pursuant to Section 64(2) of the Criminal Justice Act, 1994 as amended by Section 4 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 does not consist of or include items subject to legal privilege.
(b) The basis of my suspicion is that I only seek an order relating to the following material:-
Material consisting of:
(i) Copy cheques, bank drafts, negotiable instruments and receipts and original and copy financial records relating to all monies received to the said John Gilligan or from any person on his behalf or paid to any person, firm or company by him or on his behalf other than legal fees and disbursement subject to legal privilege, and
(ii) Correspondence, copy correspondence, notes and memoranda and original or copies of contracts, requisitions on title, replies to requisitions on title, documents, PD forms, mortgages and discharges relating to property transactions by or for the said John Gilligan other than items subject to legal privilege.
6. I say that I believe that it is in the public interest having regard:-
(i) To the benefit likely to accrue to the said investigation if the material is obtained, namely, the said material forms and important evidential connection between the said John Gillian and substantial sums of money in his possession and control and various properties believed by me to have been purchased by him and
(ii) To the circumstances under which the person in possession of the material, that is to say Michael E. Hanahoe & Co., Solicitors, namely as Solicitor for the said John Gilligan where he is precluded by a duty of confidentiality from producing the said material or gaining access to it.
That an Order pursuant to Section 64(2) of the Criminal Justice Act, 1994 as amended by Section 4 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 should be made.
7. I further say and believe that it would not be appropriate to make an Order under Section 63 of the Criminal Justice Act, 1994 as amended by Section 3 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 because the investigation for the purpose of which this application is made might be seriously prejudiced unless a member of the Garda Siochana could secure immediate access to the material.
I hereby apply for a warrant pursuant to Section 64 of the Criminal Justice Act, 1994 as amended by Section 4 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 to enter the said premises and to search for and seize the said material".

52. It is signed by the Garda Officer and is sworn before the learned District Judge. These recitals are basically the same as appear on the search warrant in which the District Judge holds that she is satisfied on hearing an application on oath on the various matters set out in the information and now repeated in the warrant. The other information and warrant are identical, save for the name Geraldine Gilligan instead of John Gilligan and the fact that she sometimes used the alias Matilda Dunne.

53. The Court was then referred to the jurisprudence of the European Court of Human Rights. In the case of Niemietz -v- Germany (1993) 16 EHRR 97 the lawyer's office was searched in pursuance of a criminal investigation. The European Commission and the Court of Human Rights found that the search was a violation of the lawyer's Article 8 rights to have his private and family life, his home and his correspondence respected. Furthermore, the interference was not justified or proportionate to the legitimate aims pursuant and in paragraph 58 of the Judgment, the Commission observed:-


"58. These features of privacy are particularly strong as regards the lawyer's activities in his own law office. There he exercises domestic authority and general access by the public is excluded. Such privacy is a necessary basis for the lawyer/client relationship.

59. The Commission, having regard to these particular features of a lawyer's professional activities in his law office, finds that the search of his office amounts to an interference with his right to respect for his private life and home under Article 8(1) of the Convention."

54. At paragraph 74 of the Judgment the Commission stated:-


"The interference complained of affected the applicant in his position as a lawyer, i.e. as an independent organ in the administration of justice and as an independent Counsel of his clients, with whom he must entertain a relationship of confidentiality, ensuring the secrecy of information received from his clients and documents relating thereto. Such are also in demands of the right to a fair trial and the effective use of the defence rights as envisaged by Article 6(1) and (3) of the Convention in the cases of representation by Counsel. It appears that when the Search Warrant was issued against the applicant these aspects were not taken into due consideration".

55. At paragraph 37 of this Judgment the Court stated:-


"More importantly, having regard to the materials that were in fact inspected, the search impinged on professional secrecy to an extent that it appears disproportionate in the circumstances; it has, in this connection, to be recalled that where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention. In addition, the attendant publicity must have been capable of affecting adversely on the applicant's professional reputation in the eyes both of his existing clients and of the public at large".

56. The Court concluded that there was a breach of Article 8.

57. The Judgment of the Court of Human Rights is not simply of persuasive authority. It has been accepted that in cases of doubt or where jurisprudence is not settled, the Courts should have regard to the Convention for the Protection of Human Rights, see R. -v- Crown Court ex. p. Customs and Excise [1989] All E.R. 673 at 677. The 1994 Act was designed in part to implement the provisions of the European Directive. The Respondents distinguished that case by submitting that it in fact impinged to a disproportionate extent on professional secrecy. It alleged that it is clear, both in terms of the warrant (which expressly excluded privileged documents) and of the evidence in terms of the manner of the inspection scrupulous care was taken to ensure that there would be no improper or disproportionate breach of client confidentiality. The Applicant then relied on the developing Anton Piller Orders. However, they exist merely for the furtherance of remedies and allows such an individual highly unusual access by force to another individual's property. It is a different situation in which a warrant has been sought by a member of An Garda Siochana on foot of an express statutory power provided by the Oireachtas in the war against drugs.




EFFECT OF DELIBERATE LEAK ON OTHERWISE VALID WARRANT

58. It is submitted that if the Court concludes that the publicity attending the search on the Applicants' premises was procured by a member of the Garda Siochana or a person to whom the Respondents are responsible that even if the Court were to conclude that the warrant was otherwise valid such circumstance would invalidate the warrant. If the warrant is invalid then the entry onto the premises was wrongful both at Common Law and is a trespass and also is, as a matter of constitutional law, a violation of the rights of property and privacy of citizens. The Respondents argue that even if the warrant is invalid that no cause of action survives. A bone fide execution by a Garda Officer on foot of a warrant, which on the face of it is valid enjoys the protection conferred on it by the Constabulary (Ireland) Act, 1836, Section 50. It is submitted that none of the Respondents who may or may not be vicariously liable for the actions of such Garda Officers equally cannot be responsible. Vicarious Liability cannot arise unless there is primary liability [ Deighan -v- Ireland, [1995] 1 I.L.R.M 88 [1995] 2 I.R. 56] where Flood, J. says:-


"It therefore follows that if there is an immunity in respect of primary liability that immunity should also apply in respect of vicarious liability."

59. The Constabulary Act of 1856 was not pleaded and in fact was not mentioned by the Respondent until quite late in the hearing. Against protest from the Applicants' Counsel the Court granted permission to amend the defence by allowing reference to the Constabulary Ireland Act, 1836. However, this late amendment of pleadings might yet have consequences in relation to costs. Also, the question of the constitutionality of the Act was left open and can be argued, if need be, later in these proceedings. The Applicants submit that even if the warrants are not quashed in these proceedings the conduct of the Gardai or at least one or more members of the Gardai amounts to wrongdoing for which the Respondents are in law responsible. The information was deliberately leaked to the media. It is submitted that such conduct is not merely criminal as a breach of Section 9 of the Official Secrets Act and possibly Section 58 of the Criminal Justice Act, 1994 but also amounts to wrongdoing in the nature of misfeasance of public office. See Hogan and Morgan , Administrative Law in Ireland, 2nd Edit. 643-647. See also Deane -v- VHI , reported as Callinan & Ors -v- VHI , unreported S.C. 28/07/94 where Mr. Justice Blayney held that the exercise by the VHI of their powers in an unreasonable and unfair manner amounted to the tort of misfeasance of public office. It alleged that this conduct would amount to a deliberate and conscious breach of the constitutional rights and would also give rise to a claim for damages. It is regarded by the Applicant as significant that although an injustice has clearly been done that the Respondents took no steps to seek to remedy such injustice either by holding an enquiry, by apologising or by issuing a statement concerning the high reputations of the Hanahoes. The tort of misfeasance of public office is described in Halsbury's Laws of England, 4th Edit. Law 1 at p. 311 as follows:-


"There exists an independent tort of misfeasance by a public officer or authority which consists in the infliction of loss by the deliberate abuse of statutory power. Or by the usurpation of a power which the officer or authority knows he does not possess. It should be noted that where there has been no misfeasance the fact that a public officer or authority makes an ultra vires order or invalidly exercises statutory powers will not of itself found an action for damages".

60. For the tort of misfeasance of public office to be made out there must be either a malicious act or a knowing and a conscious abuse of power. It was submitted that in the absence of a finding that there was a deliberate and conscious leak on the part of senior Garda management that there could be no finding of the tort of misfeasance of public office. If the Court found that an individual Garda or other officer of the State had either maliciously or in conscious breach of his public duty deliberately leaked the relevant information, the actions of such officer would be wholly outside the scope of his employment and the Respondents could not be liable. The clear evidence of all the Respondents' witnesses was to the effect that secrecy and discretion were fully impressed upon them as part of their obligations. It is further argued that if the Court concludes that the disclosure was not deliberate but nevertheless emanated from some careless conduct on the part of one or more Gardai, then it is submitted that such conduct amounts to negligence for which the Respondents are also in law responsible. Such conduct clearly comes within the test of causes of action in negligence set out in Ward -v- McMaster , [1988] I.R. 337 at p. 349 where McCarthy J. said:-


"Whilst Costello J. essentially rested his conclusion on the 'fair and reasonable' test, I prefer to express the duty as arising from the proximity of the parties, the forseability of the damage, and the absence of any compelling exemption based on public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his rights of redress at the expense of a person or body that injured him".

It is accepted in their submissions by the Respondent that disclosure emanating from some careless conduct on the part of one or more Gardai would amount to negligence under the principle set out in Ward -v- McMaster, [1988] I.R. 337. (Emphasis added). They argued that the Court will have concluded that there was a valid warrant which was due to be validly executed. Therefore, the fact of its execution would itself become known to the public in due course. It is submitted and I quote:-

"The statutory obligation to secrecy is clearly connected with the duty towards the State not to prejudice the State's interest in secrecy generally and the integrity of prosecutions in particular. Insofar as there is a statutory duty of secrecy, it is submitted that it is owed not to the public but to the State. It is not accepted therefore by the Respondent that there is any duty on the part of a member of the Gardai of care towards the citizen in relation to information 'getting out' concerning matters which will in any event come into the public domain in the fullness of time."

61. Where the judgment of a Court of competence jurisdiction is brought under review, Lord Wensleydale has indicated the degree of weight attributable to it:-


"I take it to be perfectly clear that when a Court of Error is considering a former decision on appeal, that decision is not to be overturned unless the Court of Error is perfectly satisfied that a decision is wrong. Prima facie, it is to be considered a right decision and is not to be deprived of its effect unless it is clearly proved to the satisfaction of the Judge that that decision is wrong; but he must consider the whole circumstances together and if he still feels satisfied upon the whole of the case that the decision is wrong he ought undoubtedly to overturn it; it only to be considered as prima facie right. The onus probandi lies on the opposite part to make sure that it is wrong, and, if he satisfies the conscience of the Judge that it is wrong, it ought to be reversed." ( Mayr Beverley - v - A.G ., 6 H.L.C. 310 at 332).

62. It was submitted that if there is a statutory duty of secrecy it is owed not to the public but to the State. The Respondents argued that there is no duty on the part of a member of the Gardai of care towards a citizen in relation to information getting out concerning matters which will in any event come into the public domain in the fullness of time.

63. This Court does not accept such a proposition.

64. The submission further continues:-


"Even if there is such a duty of care it is respectively submitted that it would be necessary to establish as a matter of probability that the sort of negligence that occurred in relation to the matter 'getting out' was such as amounted to negligence. There are a whole range of possible ways in which inadvertence could have caused the information to come to the attention of some person who then informed the press. In those circumstances it is respectively submitted that the Plaintiff has failed to discharge the onus of proof insuring that there was a level of want of care that would be regarded as unreasonable and, thus constitute negligence."

65. This Court is satisfied as a matter of probability, based on the evidence which is being recited in this Judgment, that it was clearly negligent to allow this to happen. It produced an immediate result which was described as "a media circus". The tort was then complete. The damage was done. Admittedly, as the Respondents have submitted on many occasions in their submissions, the fact of the raid might have come out at a later stage. It would certainly get out in the course of any trial based on information received from this raid. However, the information was relayed so as to create "a media circus" and to highlight the search of the Solicitors office. It is essential in our society that lawyers of the highest ability should be available to provide a full and proper defence to persons accused of criminal offences. Unfortunately, public opinion does not always accept that principle and sometimes lawyers are identified with their clients which clearly violates Principle 18 of the United Nations Basic Principles on the role of lawyers. It is a fundamental right in a democratic society that an accused person be fully appraised of all charges made against them and that they have the choice of legal representation. This right is embodied in Article 6 of the European Convention of Human Rights. It would undermine our society if that were not so. The Courts must protect these standards. Sometimes criminal lawyers are wrongly accused of colluding with their clients and sharing in the profits of crime. These are very serious allegations and should not be accepted until there is proof to establish them. The vast majority of criminal lawyers provide wonderful work to secure liberty and to protect our democratic institutions. Sometimes a lawyer might be regarded, because of his success, as an enemy of the State. They are in fact a bulwark to protect justice and the people and are essential in any real democracy. In this case there is no evidence as to why anyone would want to damage the Hanahoe firm as they are well known and extremely successful. They have appeared for the Hanahoes and also appeared for the late Ms. Veronica Guerin.

66. There is no doubt that they suffered damage. They cannot prove any specific damages. They have received abuse and they are perceived by people who do not have a proper understanding of our system as being identified as people who are under suspicion of crime. The Law Society felt it was sinister and intimidatory in the eyes of some of its members.

67. This Court has already found as a matter of probability that the information leaked to the press came from a Garda source. Since they have accepted in their written submission that "careless conduct on the part of one or more Gardai would amount to negligence under the principles set out in Ward - v - McMaster , [1988] I.R. 337" , the Court doth find the Respondents negligent. The Court has already made several findings. They can be summarised as follows:-


1. The firm of Michael E. Hanahoe & Co. had prior to the search on the 3rd October, 1996 the highest reputation amongst their colleagues and amongst the Gardai.

2. The Gardai had succeeded in executing 14 Section 64 warrants and some 40 or so Section 63 warrants and informal approaches to offices without any publicity other than the alleged leak regarding the search of the Accountant's office prior to the search on the 3rd October, 1996.

3. The Gardai as a group decided that the appropriate procedure would be under Section 64 and that the Section 63 application should be avoided. This was an administrative decision and the reasons therefore are set out in an earlier stage of this judgment.

68. The learned District Judge had the two draft warrants and the informations and the oral evidence of Inspector McGinn before her. Her Court is now a court of record and therefore the maxim, "Omnia praesumuntur rite et solenniter saesse acta donec probetur in contrarium (co. Litt 232) - Everything is presumed to be rightly and duly performed until the contrary is shown" applies.


4. The Court is satisfied as a matter of probability based on those documents and the oral evidence and the questions asked by the Judge that the Court exercised its jurisdiction correctly.

5. The Court doth find as a matter of probability that the leak of information regarding the proposed search of the Applicants premises emanated from a Garda source.

6. The investigation of this probable leak was initially done by the officer in charge, Inspector McGinn, and thereafter the matter is "on hold". There is also evidence that such enquiries are not usually very productive.

7. Such a warrant is a very serious interference with the right to privacy. The Courts must protect this privacy and only allow invasion of that right under strict interpretation of any constitutional law which seeks to demean it.

8. The Court does not accept that the publicity attending the search would in itself invalidate the warrant in the circumstances of this case.

9. The Court is not satisfied that Section 63(3) allows the Court to order immediate execution.

10. The Respondents were negligent.

69. This was a deliberate leaking to the media which caused considerable embarrassment to Messrs. Hanahoe & Company. It was intended to embarrass and distress Messrs. Hanahoe & Company and it most certainly did. It was an outrageous interference with their privacy and their constitutional rights. At a late stage in this trial, the Respondents got permission to plead an additional defence. The Court granted permission. The amended pleading reads:-


"12(a) If, which is denied, the said warrants were involved for the alleged or any reasons the Respondents contend that the bona fide execution of same in obedience thereto enjoys the protection of Section 50 of The Constabulary (Ireland) Act, 1836".

70. It is presumed that the word "involved" should read "invalid". Also Section 50 of The Constabulary (Ireland) Act, 1836 deals with the wives of bankrupts! I assume they are relying on Section 19 of that Act (6th of William IV C. 13) which reads:-


"XIX. And be it enacted that if any chief or other constable or sub-constable shall neglect or refuse to obey and execute any warrant hereby directed to be by him executed, or shall be guilty of any neglect or violation of duty in his office, every such chief or other constable shall forfeit and incur such penalty, not exceeding £5, as any two or more justices of the peace after examination upon oath of one or more credible witness or witnesses, or upon confession of the party, shall think proper to impose or inflict and the amount of such penalty shall and may be deducted from and out of any salary accruing due to such offender upon this Act, upon a certificate thereof to be by the justices or whom he may be convicted and admitted to the paymaster of the county: provided always that it shall be lawful for the lord lieutenant or other chief, governor or governors to mitigate or remit any such penalty."

71. The present Chief Justice has dealt with this section in the case of Walsh -v- Ireland & The Attorney General , unreported decision of the Supreme Court, 30/11/94. That was a case where a warrant was issued, that the wrong man was arrested and charged. Basically, it was really a case of mistaken identity.

72. I was concerned about the application of that section to facts of this case and therefore put it in, with some other legal problems, which were discussed by Counsel in open Court which was done on Tuesday, the 14th October last. This section purports to limit the damages for a wrong done to him by a constable and even if it be constitutional, has to be read very narrowly. Senior Counsel for both parties agreed that if the Court held there was actionable negligence that the section does not apply.

(I trust that I have stated the position of both Counsel accurately. If not, I would be grateful if they would correct me).

73. Subject to the views of Counsel, I hold that this section does not provide a defence and do not decide whether it be constitutional or not. In the circumstances I will award damages. I have already indicated the negligence in this case. The fact that the raid took place would almost certainly get out at a later stage, in the opinion of this Court is not really relevant. This was a wilful act done to damage the Hanahoes. Mr. Hanahoe described it as a media circus. They cannot prove actual loss, but people came in and abused them and they were perceived by the media as being involved in the murder of Veronica Guerin and in money laundering. The Court is satisfied from the evidence from various senior Solicitors, including former Presidents of the Law Society and from the Hanahoe brothers that it has done them considerable and probably irreparable harm. Since it is accepted by the State that they are liable under the decision of Ward -v- McMaster on a finding of negligence, this Court must mark its strong disapproval of this conduct and to try and make some amends to the Applicants for the damage done. I award £80,000 damages, to cover damages to date and £20,000 damages for the future and I hope that this judgment will clarify public perception of the wrong that was done.


© 1997 Irish High Court


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