THE SUPREME COURT
Barrington J.
Keane J.
Barron J.

BETWEEN
SIMPLE IMPORTS LIMITED AND SEVEN IMPORTS LIMITED
Applicant
AND

THE REVENUE COMMISSIONERS, DISTRICT JUDGE HAMILL, DISTRICT JUDGE RIORDAN AND DISTRICT JUDGE REILLY
Respondents

[Judgments by Keane J., and Barron J.; Barrington J. agreed with Keane J.]

Judgment delivered the 19th day of January 2000, by Keane J.

The Factual and Statutory Background

This case raises an issue which has concerned the courts on a number of occasions in recent years, i.e. the validity of certain search warrants. The warrants now under challenge were issued by the three District Judges named as respondents in the proceedings and purported to authorise officers of the first named respondent, the Revenue Commissioners, to enter premises

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owned by the applicants in Dublin, Cork and Limerick, to search for material said to. be indecent, obscene or pornographic and, if found, to seize and remove such material. Another set of warrants purported to authorise the officers named to search for books or documents relating to transactions in contravention of the laws relating to customs and to seize and remove any such books or documents that might be found on the premises.

The first category of warrants was issued in purported exercise of a power conferred by s.205 of the Customs Consolidation Act, 1876, which provides that:-

“If any officer of Customs shall have reasonable cause to suspect that any uncustomed or prohibited goods are harboured kept or concealed in any house or other place either in the United Kingdom or the Channel Islands, and it shall be made to appear by information on oath before any justice of the peace in the United Kingdom or the Channel Islands, it shall be lawful for such justice, by special warrant under his hand, to authorise such officer to enter and search such house or other place, and to seize and carry away any such uncustomed or prohibited goods as may be found therein;: and it shall be lawful for such officer, and he is hereby authorised, in case of resistance, to break open any door, and to force and remove any

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other impediment or obstruction to such entry search or seizure as aforesaid: and such officer may i/he sees fit avail himself of the service of any constable or police officer to aid and assist in the execution of such warrant, and any constable or other police officer is hereby required when so called upon to aid and assist accordingly.”

The second category of warrants was granted in purported exercise of the power conferred by s.5(1) of the Customs and Excise (Miscellaneous Provisions) Act, 1988, which is as follows:-

“If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of an officer of Customs and Excise that there is reasonable ground for suspecting that any books or documents relating to transactions in contravention of the laws relating to customs are kept or concealed in any premises or place, such Justice or Commissioner may issue a search warrant under this section.”

The reference in the 1876 Act to a “justice of the peace” as adapted is a reference to a District Judge. Section 42 of that Act sets out a table of goods prohibited to be imported into the United Kingdom including:

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“Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.”

On foot of the warrants in question, officers of the Revenue Commissioners went to the premises of the applicants in Dublin, Cork and Limerick and seized a quantity of magazines, compact discs, videos and documents. On the 13th December, 1996, the applicants were given leave by the High Court to apply for the following reliefs by way of judicial review:-

(i)	A declaration that the warrants were unlawful, void and of no legal effect;

(ii)	An order of certiorari quashing the warrants;

(iii) 	An injunction directing the respondents to deliver up to the applicants all the goods seized on foot of the warrants;

(iv)	 Damages for trespass;

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(v)	An injunction preventing the respondents from dealing in any way with the goods seized on foot of the warrants.

The grounds upon which that relief was sought and which were pursued in the proceedings in the High Court and in this court were:-

(1)	That the warrants on their face showed a lack of jurisdiction;

(2)	That there was not information on oath before the District Judges from which it could have appeared to them or which could have satisfied them that the officers had reasonable cause for suspecting that there were uncustomed or prohibited goods on the premises or that they had reasonable ground for suspecting that books or documents relating to such goods were on the premises.

A statement of opposition having been filed on behalf of the respondents, a notice of motion seeking the reliefs in question came on for hearing before the late Shanley J. In a judgment delivered on June 12th, 1998, he dismissed the applicant’s claim. From that decision, they now appeal to this court.

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The Warrants and Informations

The warrants in each case were in a standard form, with the blank spaces being filled in with hand written entries. For the purposes of this judgment, it is sufficient to set out one warrant only in the case of each Act, since the warrants issued in Dublin, Cork and Limerick were substantially similar. They are set out in photocopied form in the appendix to this judgment.

It will be seen that, in the case of the 1876 Act, the warrant recites that it appears to the District Judge by the information on oath of the officer (Peter R. Mooney) that:-

“ … the said Peter R. Mooney hath cause to suspect and doth suspect that certain goods to wit indecent and or obscene pornographic material the same being uncustomed or prohibited goods are harboured, kept or concealed in a certain place to wit...”

In the case of the 1988 Act, the warrant recites that it appears to the District Judge by the information on oath of the officer that:-

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“... the said Peter R. Mooney has cause to suspect and doth suspect that certain Books or Documents relating to transactions in contravention of the laws relating to Customs are kept or concealed in a certain premises or place to wit

The affidavits filed in support of the statement of opposition exhibited the information on oath sworn by the officer concerned before the District Judge in each case. In addition, the affidavits set out what transpired in the course of the application for the issuing of the warrant.

In the Cork case, the officer, Mr. Patrick G. O’Regan, swore two informations. The first recited that he had reasonable cause to suspect and did suspect that uncustomed or prohibited goods, i.e. books magazines and video recorded tapes, were kept on the specified premises. In the information, he also stated that:-

“I observed on the premises what appeared to be indecent or obscene material which I believe to be for sale. I believe this material was imported into the State.”

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The second information sworn by him was broadly to the same effect but directed to the requirements of the 1988 Act. In the case of each of these informations, there is appended a note initialled by the District Judge as follows:-

“Oral evidence given”

In paragraph 5 of the Affidavit, Mr. O’Riordan says:-

“In the course of seeking the said Warrants, I advised District Judge Riordan that I had visited the premises and of the opinion I had formed and the basis there/or. District Judge Riordan questioned me and then issued the Warrant. I recall that he specifically raised a question as to the information being on a separate sheet and he requested that the basis for my suspicions, which I originally furnished on a separate sheet, should be shown on the information itself This was complied with.”

In the case of the Dublin premises, Mr. Mooney, in his affidavit said that he had been informed by Mr. Brendan Martin, a higher executive officer of the Investigation Bureau that he had visited the premises of the applicants

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and that indecent and/or obscene video tapes and magazines were on sale at the premises. Mr. Mooney said that he was of the opinion that these were prohibited goods imported in breach of the provisions of the customs legislation. The information sworn to him was broadly in the same form as that in the Cork case, but included an additional written note as follows:-

“From information I have obtained from Mr. Brendan Martin, HEO, Customs and Excise Investigation Division, indecent and/or obscene pornographic material is being sold and stored in the premises at 164 Capel Street, Dublin. Therefore, I request this warrant to enable me to search the premises and remove any prohibited material found thereon.

In the case of the Limerick premises, the officer, Mr. Gerard P. Garrahy, said that he visited the premises on the 4th December, 1996, and that:-

“I saw magazines of an explicit nature displayed on shelves, together with video tapes and compact discs with explicit titles. I formed the opinion that these materials were prohibited goods, and had been imported into the State, which importation was prohibited.”

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The information again was in the same form as the Cork and Dublin case, but included an additional note as follows:-

“I visited the premises of ‘Utopia’ at 7 Ellen Street, Limerick on 4.12.96 I saw magazines of an explicit nature displayed on shelves. I also saw video tapes and CDs with explicit titles.”

Submissions of the Parties

On behalf of the applicants, Mr. Hardiman, SC submitted that it was clear on the face of each of the warrants that the District Judge had not satisfied himself that there was reasonable cause or grounds for the suspicion of the officer concerned that there were uncustomed or prohibited goods or documents relating to them in the premises. The warrants were thus bad on their face and should have been quashed on that ground alone. The opinion to the contrary of the majority of the House of Lords in Reg. v. Inland Revenue Commissioners. Ex Parte Rossminster [1980] AC 952 should not be followed.

He further submitted that, in any event, it was clear that the District Judge in each of these cases had not satisfied himself, as was required by both the enabling provisions, that there were reasonable grounds for the suspicion

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of the officer concerned, but had simply accepted the averment of the officer that he (the officer) suspected that there were prohibited goods or documents relating to them on the premises, citing in support the decision of Hamilton P, as he then was, in Byrne v. Grey & Anor [1988] IR 31. He submitted that, in a case of this nature, where it would have been possible for the officers to buy the material which was on sale and produce it to the District Judge when applying for the warrant, the statutory preconditions for issuing the warrant could easily have been met but were not in fact met.

On behalf of the respondents, Mr. Feichín McDonagh, SC, submitted that the evidence in the case demonstrated that the District Judges, when issuing the warrants, had not simply accepted a bald averment from the officers that they had reasonable cause or grounds for their suspicions: each of the officers concerned had given oral evidence on oath of their reasons for believing that there were uncustomed or prohibited goods on the premises. In the case of the Cork and Limerick premises, that consisted of evidence that they had actually visited the premises and satisfied themselves that there was such material on display. In the case of the Dublin premises, the officer concerned had given oral evidence on oath that he had been informed by another officer that he had visited the premises and seen such material on display. He submitted that, in those circumstances, it was a matter for the District Judge to decide whether the evidence satisfied him that there were

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reasonable grounds for the officer’s suspicion and had no basis for the contention that the statutory precondition had not been met. The onus was on the applicants to satisfy the High Court that there has been a want of or excess of jurisdiction in the issuing of the warrants and this they failed to do.

As to the submission that the warrants were bad on their face, Mr. McDonagh submitted that it would be wrong to quash warrants which had been granted in a proper exercise by the District Judges of their jurisdiction under the relevant statutes because of what was alleged to be a defective statement of that jurisdiction on the face of the warrant. In such circumstances, the court was entitled to look behind the warrant in order to determine whether it was granted within jurisdiction. He submitted that the decision of the High Court in the present case was supported, not merely by the majority judgments of the House of Lords in Regina v Inland Revenue Commissioner, Ex Parte Rossminster [1980] AC 952 but also by the more recent decision of the Judicial Committee of the Privy Council in AG of Jamaica v. Williams and & Anor. [1998] AC 351.

Conclusions

Search warrants, such as those issued in the present case, entitle police and other officers to enter the dwellinghouse or other property of a citizen, carry out searches and (in the present case) remove material which they find on the premises and, in the course of so doing, use such force as is necessary

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to gain admission and carry out the search and seizure authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.

That principle has been recognised from early times by the common law. In a passage cited by Lord Hoffman in Attorney General of Jamaica v. Williams & Anor, [1998] AC 351, at p. 355, Camden CJ said in Entick v. Carrington (1765) 2 Wils. 275 at 291:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; i/he does he is a trespasser, though he does no damage at all; f he will tread upon his neighbour’s ground, he must justify it by law

Under the Constitution, this principle is expressly recognised, in Article 40.5, in the case of the dwelling of every citizen. Protection against unjustified searches and seizures is not, however, confined to the dwelling of the citizen: it extends to every person’s private property.

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Parliament, in stipulating that the power to issue the warrants now under consideration was to be vested in judges and could be exercised by them only provided certain preconditions were met, recognised that the citizen was entitled to such protection. It must be presumed that it was envisaged that the judges would, in no sense, permit themselves to be treated as ciphers, but would conscientiously satisfy themselves that the relevant preconditions had been satisfied.

In the case of the 1876 Act, the precondition was that

“If any officer of Customs shall have reasonable cause to suspect … and it shall be made to appear by information on oath before any [District Judge] ..”

[Emphasis added]

While the syntax is rather odd, the meaning is clear: the District Judge, before issuing the warrant, must have come to the conclusion, from the information on oath of the customs officer, not merely that he (the officer) suspects that there are uncustomed or prohibited goods on the particular premises but that his suspicion is “reasonable”. The District Judge is no doubt performing a purely ministerial act in issuing the warrant. He or she does not purport to adjudicate on any lis in issuing the warrant. He or she

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would clearly be entitled to rely on material, such as hearsay, which would not be admissible in legal proceedings. It is to be presumed, moreover, that the District Judge, in issuing the warrant, will act in accordance with the requirements of the relevant legislation and the onus of establishing that he or she failed to do so rests on the person challenging the validity of the warrant.

That having been said, the fact remains that, if the District Judges in the present case issued the warrants because they were satisfied that the officers concerned simply had cause or a “ground” for their suspicion, as the wording of the warrant indicates, the requirements of the legislation would not have been satisfied. It is plainly not sufficient that the officer considered he had cause to apply for the warrant: the District Judge must be satisfied, on the basis of the information provided by the officer, that, viewed objectively, the cause or ground relied on by the officer for his suspicion was reasonable.

What then is the consequence of a recital in the warrant which, if it correctly records the basis on which the warrant was issued, shows on its face that a statutory precondition for the exercise of the jurisdiction was not satisfied? To this difficult question, unfortunately, the authorities do not provide a wholly clear answer.

The decision of Hamilton P. in Byrne v. Grey & Anor., [1988] IR 31 which was discussed in the course of the argument, is not, in my view, relevant to this specific issue. The challenge to the validity of the warrant in

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that case was not based upon any alleged defects in the wording of the warrant itself. The warrant had, however, been issued following the swearing of an information which said no more than that the member of the Garda Síochána concerned had reasonable grounds for suspecting that cannabis was being cultivated on the particular premises. The learned President took the view that the District Justice or Peace Commissioner issuing the warrant under the relevant legislation had to be himself satisfied that there were reasonable grounds for suspicion and was not entitled to rely solely on a mere averment by the Garda that he had reasonable grounds for suspicion. Accordingly, the decision, although clearly relevant to the second ground upon which the applicants relied, is of no assistance to them on the first ground, i.e. that the warrants were bad on their face.

In contrast, in Reg. v. Inland Revenue Commissioners, Ex Parte Rossminster, [1980] AC 952 what was alleged to be a defect in the form of the warrant was relied on. That was a case in which searches were carried out on the respondent’s offices by officers of the Inland Revenue under powers alleged to have been conferred by certain fiscal legislation. That authorised an “appropriate judicial authority” to issue a warrant, if it was satisfied on information on oath given by an officer that there were reasonable grounds for suspecting that an offence involving any form of tax fraud had been committed and that evidence of it was to be found on the premises specified

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in the information. The warrants under challenge began with the following recital:-

“Information on oath having been laid this day by Raymond Quinlan in accordance with the provision of section 20C of the Taxes Management Act 1970 stating that there is reasonable ground for suspecting that an offence involving fraud in connection with or in relation to tax has been committed and that evidence of it is to be found on the premises described in the second schedule annexed hereto...

The warrant went on to authorise the named officer to enter the premises, search them and remove the evidence in question.

So far as it went, accordingly, the recital in the warrant in that case did not positively misstate the statutory precondition for granting the warrant. ft was attacked on a different ground, i.e. that, because it did not contain a statement that the judge himself was satisfied that there was reasonable ground for suspecting that a tax offence had been committed and that evidence of it was to be found on the premises, the warrant did not comply with the requirements of the section.

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The majority of the Law Lords rejected that challenge, while conceding, with varying degrees of emphasis, that it would be desirable that the warrant should make clear the statutory basis for its being issued, i.e. the fact that the judge was satisfied as to the matters in question. They were of the view that there was no defect as such in the warrant and that it was to be presumed that the judge issuing it was satisfied that the preconditions had been met. Thus, Lord Diplock said [at p.1009]:-

“Section 20C(1) makes it a condition precedent to the issue of the warrant that the circuit judge should himself be satisfied by information on oath that facts exist which constitute reasonable ground for suspecting that an offence involving some form of fraud in connection with or in relation to tax has been committed, and also for suspecting that evidence of the offence is to be found on the premises in respect of which the warrant to search is sought. It is not, in my view, open to your Lordships to approach the instant case on the assumption that the Common Serjeant did not satisfy himself on both of these matters, or to imagine circumstances which might have led him to commit so grave a dereliction of his judicial duties. The presumption is that he acted lawfully and properly; and it is only/air to him to say that, in my view, there is nothing in the evidence be/ore

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your Lordships to suggest the contrary; nor, indeed, have the respondents themselves so contended.”

Mr. Hardiman urged that these remarks, and similar observations in the speech of Viscount Dilhorne, go further than our courts should be prepared to go in presuming, in the absence of evidence to the contrary, that judges will act in accordance with the terms of the statute which confers on them a specific jurisdiction. I am satisfied, however, that the Superior Courts in this jurisdiction are entitled to assume, unless the contrary is established, that judges of the District Court act in accordance with the Constitution and the law in discharging their functions. Different considerations arise, however, where, as here, the warrant itself, unlike the warrant in Rossminster, recites that the District Judge has purported to. exercise the jurisdiction where the statutory preconditions for its exercise have not been met. It need hardly be said that the error was clearly unintentional and resulted from the use of a standard form which had obviously been in existence for some time.

It is indeed striking that, in the Rossminster case, Lord Salmon vigorously dissented and considered the warrant defective, even though, in contrast to the present case, there was no inaccuracy on its face. He said at p. 1019:-

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“Section 20C makes a wide inroad into the citizen’s basic human rights, the right to privacy in his own home and business premises and the right to keep what belongs to him. It allows the Inland Revenue the power to force its way into a man’s home or offices and deprive him of his private papers and books. In my view, it provides only one real safeguard against an abuse of power. That safeguard is not that the Inland Revenue is satisfied that there is reasonable ground/or suspecting that an offence involving fraud in relation to tax has been committed, but that the judge who issues the search warrant is so satisfied after he has been told on oath by the Inland Revenue full details of the facts which it has discovered. That is why I am inclined to the view that it is implicit in section 20C that a search warrant signed by the judge should state that he is so satisfied, i.e. that the warrant should always give the reason for its issue. In any event, I hope that in the future the practice will always be that such warrants state plainly that the judge who signed them is so satisfied.

“I am, however, convinced that search warrants like the present are invalid because they recite as the reason for their issue only that an officer of the Inland Revenue has stated on oath that there is

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reasonable ground for suspecting that offence involving fraud in relation to tax has been committed. If the judge gives that as his reason/or issuing a warrant, it seems to me to follow that his reason for issuing it cannot be that he is so satisfied by the information given to him on oath by an officer o/ the Inland Revenue of the detailed facts which the officer has ascertained; but that the judge’s reason for issuing the warrant was because the officer had stated on oath that there is reasonable ground to suspect, etc. I am afraid that I do not agree that the warrants in the present case make it clear that they were issued by the judge pursuant to the powers conferred on him by section 20C. Indeed, for the reasons I have given, I consider that the exact contrary is made clear by these warrants.”

Lord Salmon was, accordingly, prepared to arrive at that conclusion although the warrants in that case on their face did not recite an erroneous ground for the exercise of the jurisdiction, but, at worst, were incomplete in not including a separate and additional recital that the judge himself was satisfied that there was reasonable ground to suspect etc. If there had been, as here, a recital that the judge was simply satisfied that the officer had a ground for suspecting etc., the opinions of the majority might well have been different.

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In AG of Jamaica v. Williams, [1998] AC 351 a provision in virtually identical terms to s.205 of the 1876 Act was under consideration. In that case, the opening recital in the warrant was

“To Arthur McNeish or any customs officer.

Whereas the undersigned, one of Her Majesty’s justices of the peace in and for the Parish of Kingston being satisfied upon written information on oath that there is good reason to believe that in a certain place, to wit ... is kept or concealed uncustomed goods …”

The warrant then went on to authorise the search and seizure. In that case, unlike the present, the Judicial Committee, like the courts in Jamaica from which the appeal was brought, had no information about what passed between the officer and the justice issuing the warrant. Having referred to the recitals in the warrant, Lord Hoffman, delivering the judgment of the Judicial Committee, went on at o, 361:-

“Prima facie, this statement must be accepted and their Lordships agree with both lower courts that if the justice was satisfied that there was ‘good reason to believe’ that uncustomed goods etc. were on the premises, it must follow that he was satisfied that the officer had reasonable cause to suspect this to be the case.”

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Again, the position is not the same in this case. Here, the recital was to the effect that it appeared to the District Judge, or he was satisfied, that the officer had “cause” or a “ground” - not “good reason” - to suspect that there were uncustomed goods on the premises.

I am satisfied that the submission on behalf of the respondents that, in a case where the warrant itself states that it is being issued by the District Judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the District Judge evidence which entitled him to issue the warrant within the terms of the statute is not well founded. That proposition seems to me contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by the statute, a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed.

We are not concerned in this case with an issue which arose in Byrne v. Grey [1988] IR 31 her case decided by Hamilton P. Berkeley v. Edwards [1988] IR 217. In both cases, the court was of the view that the discretionary remedy of certiorari should be refused since the object in seeking it was to have excluded the evidence obtained on foot of the search warrant and the

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proper forum for the determination of the issue of the admissibility of the evidence was the forthcoming trial of the applicant.

In the present case, there will not necessarily be any criminal proceedings arising out of the seizure of the goods alleged to be uncustomed or prohibited. The applicants are, accordingly, clearly entitled to the immediate return of the property which has been seized on foot of an invalid warrant and are not obliged to avail of the somewhat archaic procedure prescribed by s.207 of the 1876 Act enabling the person from whom the seizure is made to give notice in writing within a month that he claims the property, in which case the customs are required to take proceedings for the forfeiture and condemnation of the property. [Under s.267, even where the claimant is successful, but there was “reasonable or probable cause” for the seizure, the damages to which he is entitled are limited to two old pence and he is not to recover any costs.]

That is sufficient to dispose of the appeal in the present case, but, had it been necessary so to decide I would have been satisfied that there was before the District Judges in each case sufficient evidence in the form of the informations on oath, accompanied in the Cork case by oral evidence, on which they would have been entitled to reach the conclusion that uncustomed or prohibited goods, and books and documents relating to them, were kept on the specified premises.

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For the reasons I have already given, I would allow the appeal and substitute for the Order of the High Court an order of certiorari quashing the warrants and an injunction directing the respondents to deliver up to applicants the goods seized on foot of the warrants. I would hear counsel on the question as to whether any of the other reliefs sought should be granted.

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APPENDIX IX
AN CHUIRT DUICHE

DISTRICT COURT

The Customs Consolidation Act 1876
39 & 40 Vict. c. 36

.

District Court Area of 	Dublin Metropolitan District	
District No		

Whereas it appears to me by the information on Oath of   Peter R Mooney

…………………………    ………………………. an Officer of
Customs & Excise that the said... Peter R Mooney 
hath cause to suspect and doth suspect that certain goods to wit:

Indecent and or obscene pornographic material 

…………………………    ……………………….

the same being uncustomed or prohibited goods are harboured, kept or concealed in a certain place
to wit, the house and premises of  … Mr James Bellamy 
at 164 Capel Street Dublin  … in the said * 
District
County

Now I therefore do authorise and empower you to enter into the said premises to search for the said goods and if the same or any part thereof shall be found upon such search to seize and carry away the same.

Signed William G Hamill
Judge of the District Court

Dated this 4th day of December 1996

TO: Peter R Mooney
Executive Officer
Officer of Customs & Excise.

*Delete words inapplicable.

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AN CHUIRT DUICHE

DISTRICT COURT

CUSTOMS AND EXCISE (MISCELLANEOUS PROVISIONS) ACT, 1988

SECTION 5

District Court Area of 	Dublin Metropolitan District	
District No		

Whereas it appears to me by the information on Oath of _______ _______ Peter R Mooney _________________ _________________ an Officer of Customs and Excise that the said  _______ Peter R Mooney  _______ has cause to suspect and doth suspect that certain Books or Documents relating to transactions in contravention the laws relating to Customs are kept or concealed in a certain premises or place to wit, _______ Mr James Bellamy _______  at  164 Capel Street Dublin _______

in the said * District  ________________ ___________________

Now I therefore do authorise and empower you to enter into the said premises or place to search, for the said Books or Documents, to inspect any Books or Documents found therein and to seize and carry away all or any such Books or Documents and any  uncustomed goods or goods found therein the importation of which is prohibited.

Signed: William G Hamill 
* Judge of the District Court.
* Commissioner of the said County

Dated this 4th day of December 1996

To: Peter R Mooney
Executive Officer of Customs and Excise.

* Delete words inapplicable

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Barrington J.
Keane J.
Barron J.
188/98
THE SUPREME COURT

SIMPLE IMPORTS LIMITED AND ANOR.

V

REVENUE COMMISSIONERS AND ORS.

JUDGMENT delivered on the 19th day of January 2000 by BARRON J.

On the 5th December, 1996 Customs Officers entered the premises of the applicants at 5 Capel Street, Dublin, 164A Capel Street, Dublin, 7 Earl Street, Limerick and 1 Dean Street, Cork pursuant to search warrants issued by second, third and fourth named respondents respectively. In pursuance of their search they removed from the premises various

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(2)

magazines, videos and documentation relating to the import, export, sale and distribution of such goods.

The present proceedings have been brought for a declaration that the warrants grounding the searches and seizures were unlawful, void and of no legal effect. It is submitted that there was no evidence before the district judges to justify the issue of the several warrants and that the warrants in any event failed to show jurisdiction on their face for two reasons:

(1)	They did not disclose that the Customs Officer had reasonable grounds for his suspicion that such goods were on the said premises; and

(2)	that they did not disclose that the district judge had reasonable cause for believing that the Customs Officer had such suspicion.

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(3)

There were seven such warrants in all, two in respect of the premises in Limerick and Cork and 164A Capel Street and one in respect of the premises 5 Capel Street, Dublin. This latter search warrant was issued pursuant to the Provisions of s. 5(1) of the Customs and Excise (Miscellaneous Provisions) Act, 1988. In respect of the other premises the warrants were issued under this section and also under s. 205 of the Customs Consolidation Act, 1876.

The relevant provisions of s. 5 of the 1988 Act are as follows:

“If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of an officer of Customs and Excise that there is reasonable ground for suspecting that any books or documents relating to transactions in contravention of the laws relating to customs are kept or concealed in any premises or place, such Justice or Commissioner may issue a search warrant under this section.”

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(4)

The relevant provisions of s. 205 of the 1876 Act are as follows:

“If any officer of Customs shall have reasonable cause to suspect that any uncustomed or prohibited goods are harboured, kept, or concealed in any house or other place ..., it shall be made to appear by information on oath before any justice of the peace ..., it shall be lawful for such justice, by special warrant under his hand, to authorise such officer to enter and search such house or other place, and to seize and carry away any such uncustomed or prohibited goods as may be found therein

The several warrants are in common form and each of them contains the following recital:

“Whereas it appears to me by the information on Oath of (naming the Customs Officer) an Officer of Customs and Excise that the said (officer) has cause to suspect and doth suspect that certain Books or Documents relating to transactions in contravention

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(5)

of the laws relating to Customs are kept or concealed in a certain premises (which are then named).

This case must be approached upon the basis that there should be a clear authority validly given before an involuntary search of premises can be enforced. The first matter to be considered is the power to authorise the search; then whether that power has been validly exercised; and finally, whether that exercise has been properly conveyed to the person concerned.

In the present case, the statutory authority is clear. It is contained in the two sections.

For the power to be validly exercised, there are two preconditions. First, the person applying for the warrant must have reasonable cause to suspect that there is relevant material to be found on a particular premises. Secondly, in this case, the judge must himself or herself have

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been satisfied from information on Oath given by the applicant that the applicant had that reasonable suspicion. In other words, the evidence before the judge must show that it is reasonable for the applicant to have the required suspicion, and it must also be shown that the judge was satisfied that this suspicion was reasonably held.

For the purpose of determining whether such exercise has been properly conveyed to the occupier of the premises concerned, it is necessary further to consider what the warrant itself should set out.

To answer these questions for the purposes of the present case, it is necessary to look to decided cases.

In Byrne v. Grey [1988] IR 31, upon which the applicant relies, the search warrant had been issued by a peace commissioner on the strength of an information on Oath of a police officer that he had a reasonable suspicion. There was no evidence to show that the peace commissioner

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had made up his own mind as to whether they were grounds for the police officer to have such suspicion, rather he accepted such averment without questioning it.

Hamilton P., as he then was, held that the person issuing the warrant had himself to be satisfied that there was reasonable ground for suspicion. He said at p. 40:

“It is quite clear that the District Justice or peace commissioner issuing the warrant must himself be satisfied that there is reasonable ground for suspicion. He is not entitled to rely on a mere averment by a member of the Garda Síochána that he, the member of the Garda Síochána, has reasonable grounds for suspicion.”

In that case the relief of certiorari was refused because Hamilton P. regarded the warrant as spent and the only matter at issue being whether or not the evidence obtained was admissible in the course of a subsequent

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criminal trial. He regarded this as a matter for a decision of the trial judge in those proceedings.

In Berkeley v. Edwards [19881 IR 217 upon which the respondent relies a similar issue also came before Hamilton P., as he then was. In that case, however, he accepted that there was sufficient evidence before the district judge to justify him in being satisfied that the applicant for the warrant had a reasonable suspicion.

The sufficiency of the warrant itself has been considered in England in Inland Revenue Commissioners and Another v. Rossminster Limited and Others [1980] AC 952. In that case the relevant warrants were issued to revenue officials. The relevant statutory authority empowered a judge if satisfied on information on Oath given by such officer that there was a reasonable ground for suspecting that an offence had been committed.

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As in the instant case, the importance was stressed of the need for the judge to be satisfied as to the existence of the reasonable suspicion of the applicant for the warrant. The sufficiency of the material before the judge in that case to enable him to be so satisfied was not contested.

The substantial issue so far as the instant case is concerned was whether that fact should have been stated on the face of the warrant.

This was held by the majority not to have been necessary. Lord Wilberforce was of the view however that it would have been wise to have included such a statement on the warrant. Lord Dilhorne emphasised the need for the judge to be so satisfied, but did not accept that the absence of any reference to such fact on the face of the warrant implied that he had not been so satisfied. Lord Diplock took broadly the same view. Lord Scarman regarded it as desirable to include such a recital on the warrant. In his view, the issue of the warrant was a judicial act and that the case

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should be approached upon the basis that the judge did satisfy himself upon the matters which he was required to be satisfied before issuing the warrants. However, he was satisfied that the particular warrants contained sufficient information to enable the occupier of the premises to know under what authority they had been issued.

Lord Salmon was in the minority. In his view, this could not be implied because the warrant gave a different reason, that the revenue officer was so satisfied. The warrant in that case stated:

“Information on oath having been laid this day by (naming the officer) in accordance with the provisions of (naming the section of the relevant Act) stating that there is reasonable ground for suspecting that an offence involving fraud... has been committed and that evidence of it is to be found on the premises (referred to)”.

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In his view, a warrant should also give the reason for its issue and when signed by a judge should state that he, the judge, was so satisfied. Dealing with the particular search warrants he said at p. 1019:

“I am, however, convinced that search warrants like the present are invalid because they recite as the reason for their issue only that an officer of the Inland Revenue has stated on oath that there is reasonable ground for suspecting that an offence involving fraud in relation to tax has been committed. If the judge gives that as his reason for issuing a warrant, it seems to me to follow that his reason for issuing it cannot be that he is so satisfied by the information given to him on oath by an officer of the Inland Revenue of the detailed facts which the officer has ascertained; but that the judge’s reason for issuing the warrant was because the officer had stated on oath that there is reasonable ground to suspect, etc.”

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Similar issues arose in Attorney-General of Jamaica v. Williams [1998] AC 351. In that case, the warrant stated on its face that the justice issuing it was satisfied upon written information on Oath that there was good reason to believe that uncustomed material was on the particular premises. The wording of the statute under which the warrant had been issued was very similar to s. 205 of the 1876 Act. It provided, inter alia:

“If any officer shall have reasonable cause to suspect that any uncustomed or prohibited goods are harboured, kept or concealed in any house or other place in the island, and it shall be made to appear by information on oath before any resident magistrate or justice in the island, it shall be lawful for such resident magistrate or justice by special warrant under his hand to authorise such officer to enter and search such house...”

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This case also upheld the proposition that it was insufficient for the revenue officer to have reasonable cause for suspicion, it had to appear to the justice issuing the warrant that he had such reasonable cause.

In that case there was a sworn information in writing which would not on its own have been sufficient to enable the justice to form the requisite opinion. There was no evidence that any additional evidence had been given to him. The Privy Council held that the statement on the face of the warrant that the justice himself was satisfied that the officer’s suspicion was based upon reasonable cause was prima facie to be accepted.

These two latter cases are significantly different. In the former, the warrant was validly issued, but the warrant itself did not so indicate. In the latter, there was evidence that the warrant was not validly issued, while at the same time the warrant itself indicated the basis, being a legal basis, from which the warrant was issued.

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Neither case is on all fours with the present. In my view, once the warrant is challenged in court, there should be an enquiry as to whether it was validly issued. Once that enquiry shows that it was - in this case that the officer had reasonable cause to suspect and that the judge was likewise so satisfied - then whatever is down on foot of the warrant cannot be unlawful on the ground that the warrant was not lawfully issued. However, if at the same time the warrant itself does not express this lawful authority, it will not be lawful to act on foot of it if it’s validity is challenged.

Here, the evidence shows that the several judges were not satisfied to accept the common form informations. They asked questions and heard oral evidence. To that extent, it is unnecessary to consider whether to adopt the views expressed in Attorney General of Jamaica v. Williams [1998] AC 351 whether the sworn informations would on their own have

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been insufficient. Here, I am satisfied that there is sufficient evidence to show that the Customs Officers had reasonable cause for their suspicions and that the judges were satisfied that they held such suspicions. I am satisfied that the decisions to issue the warrants were made within jurisdiction.

This leaves the question whether that exercise has been properly conveyed by the words in the warrant. This question leads to the further question, if it has not been properly conveyed, what is the legal effect of such omission?

The first of these issues is whether or not the warrants are good on their face.

All the members of the House of Lords in Rossminster were of the view that the warrant should state the legal reason for issuing the warrant although only Lord Salmon regarded it as being vital in the circumstances

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of that case. Even then, he did so because in his view the warrant gave an incorrect reason, that it was the Customs Officers alone who had the appropriate suspicion.

In the instant case, the warrants themselves indicate that it appeared to each District Judge that the Customs Officer had cause to suspect and did suspect the existence of uncustomed goods in the various premises. But what the warrants do not say on their face is that the district judges considered that there was reasonable cause to suspect.

In my view the absence of the word “reasonable” on the face of the warrant does not affect its validity. First, there was no error within jurisdiction relating to the issue of the warrant. Secondly, once the warrant has been signed by the judge expressly stating that it appeared to him that there was cause, it must be assumed that he has acted responsibly and not frivolously and that the warrant must be valid.

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Even if I am wrong in this view, the legal effect of the omission of the word “reasonable” could not invalidate the authority under which it was issued.

In the ordinary course certiorari did not issue for errors made within jurisdiction. The jurisdiction to quash a record bad on its face was exercised not just because the record itself was bad on its face but because it was evidence that the decision itself was made in error. The quashing of the order was, accordingly, a declaration to this effect. However, where the order is made within jurisdiction but at the same time appears on its face not to say so it seems to me that it is more appropriate that it should be regarded as ineffective. This is particularly so in relation to a search warrant because until it is challenged it seems to me that when it has been issued within jurisdiction the only reason why it can be challenged is that it does not say so.

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The execution of the warrants was not challenged. They were executed peacefully. If the appellant or his staff had not accepted the validity of the warrants they could have refused entry. In the instant case, their legal advice was that they were bound to allow entry and they did so.

The purpose of a warrant is to indicate to the person against whom it is to be executed that it has been issued under lawful authority. If on the face of the warrant it does not appear to be so then the person against whom it is directed can refuse to allow the entry to his premises. This does not, however, make the authority invalid in any way. The appropriate course in such circumstances would be for the Customs Officer to return to the district judge, to amend the warrant so that it does not show any error on its face or, alternatively, to obtain a fresh warrant

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without such error. In both cases, of course, the district judge would be required to again sign the warrant.

This view is supported by a passage in the judgment of the Privy Council given by Lord Hoffmann in Attorney General of Jamaica v. Williams [1998] AC 351 at p. 364 where it was said:

“Their Lordships agree that it is highly desirable for the warrant to contain an express statement of the statutory authority under which it was issued. If it does not, the householder might reasonably think that it was not based upon any authority and resist entry. But this does not mean that in a case in which the warrant was in fact issued under proper authority and there was no resistance to entry, the warrant should be treated as invalid, particularly when ... it is clear from the terms of the warrant that it was issued under the [section.]”

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In my view the question which arises in the present case is as to the nature of the warrant itself. If it is merely a document which is provided to assure the person against whom it is directed that the proposed search is a legal one, then it seems to me that if the search is allowed to proceed then the person against whom it has been made cannot subsequently object. However, if the purpose of the warrant is itself a legal statement, then it seems to me that if the statement is inaccurate its legality may be lost.

In my view the former is the more appropriate construction to be placed on the warrant and in those circumstances it seems to me that since the search was legally authorised the appellant cannot now complain that it was invalid. Nor is he entitled to say that the jurisdiction of the district judge was invalidly exercised merely because the valid exercise was not correspondingly indicated on the face of the warrant.

I would reject the appeal in this case.