Court of Appeal: Gardaí did not have reasonable grounds to forcibly enter woman’s home without warrant

About this case:

• Citation:
  [2018] IECA 289
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Gerard Hogan

Allowing the woman’s appeal after her claim had been dismissed in the High Court, Mr Justice Gerard Hogan said that the Gardaí had no reasonable cause for forcible entry pursuant to s. 6(1) of the Criminal Law Act 1997.

Background

In February 2012, Mr Sebastian Snaidy was arrested on foot of a European Arrest Warrant at the home of Ms Judyta Rozmyslowicz. He was released on bail to Ms Rozmyslowicz’s address, and was due to appear before the High Court on 24^th July 2012. According to Ms Rozmyslowicz, on the morning of his hearing, Mr Snaidy packed a suitcase and returned to Poland. That afternoon, two Gardaí called to Ms Rozmyslowicz’s home inquiring about Mr Snaidy’s whereabouts, at which point she told them she believed he had travelled to Dublin to attend court.

On the 19^th August 2012, four members of the Gardaí arrived at Ms Rozmyslowicz’s home to search for Mr Snaidy. Ms Rozmyslowicz said that he was not in her home, and demanded to see a copy of any warrant to search her home. The Gardaí did not have a warrant, and Ms Rozmyslowicz refused to given them consent to search the premises.

At this point, Garda O’Sullivan said she had seen some movement at a window upstairs – which Ms Rozmyslowicz said must have been her dog.

Detective Garda Hanrahan proceeded to push the door open against Ms Rozmyslowicz’s foot – causing her to fall and injure her ankle.

The four attending Gardaí proceeded to search the house, finding that no person other than Ms Rozmyslowicz was present in the house.

High Court

Ms Rozmyslowicz claimed damages for trespass and personal injuries sustained as a result of the forcible entry. She also claimed damages for violation of constitutional rights.

Giving evidence in the High Court, Detective Garda Hanrahan, who was one of the attending Gardaí at Ms Rozmyslowicz’s house, said that based on Garda O’Sullivan’s statement that she had seen a hand at the window, there were reasonable grounds to believe that Mr Snaidy was in the house and they were entitled to enter. He also denied that he had used force or injured the plaintiff during the course of entry to the house. Garda O’Sullivan also gave evidence that she had seen a hand and relayed this information to Gardaí before they entered the house.

In the course of the proceedings in the High Court, certain key aspects of the defendants’ evidence was not put in cross-examination of Ms Rozmyslowicz. It was said that this decision was part of the defendants’ strategy because it was anticipated that the State parties would apply for a direction. In the High Court, Fullam J stated that this was “unfortunate”, but that it did not give rise to any unfairness to Ms Rozmyslowicz considering Director of Public Prosecutions v. Brett [2011] IECCA 12.

In the High Court, Fullam J considered the principles endorsed in DPP v O’Driscoll (Supreme Court, 1st July, 2010), and found that Detective Garda Hanrahan had “a reasonable suspicion” that Mr Snaidy was in the house; that the Gardaí had indeed used force to enter the house; that they were entitled under law to search the dwelling in all the circumstances; and that the use of force had been justified (The People (Director of Public Prosecutions) v. Laide [2005] 1 I.R. 209 considered).

Court of Appeal

Firstly, considering the failure to put certain matters in cross-examination, and Fullam J’s reliance on Brett, Justice Hogan said that “the failure to put this case was quite fundamental and it went to the very fairness of the trial”, and that he doubted that Brett exemplified any wider principle than had been enunciated on the particular facts of that case. Indeed Justice Hogan said that Ms Rozmyslowicz would have been entitled to a retrial on this ground alone.

Justice Hogan said that the entirety of the appeal turned on the question of whether the Gardaí had “reasonable cause” within the meaning of s. 6(1) of the Criminal Law Act 1997 to effect forcible entry. Justice Hogan said that s. 6 must be seen against the constitutional guarantees in Article 40.5.

Considering Schrems v. Data Protection Commissioner [2014] 3 I.R. 75, Justice Hogan said that inviolability of the home in Article 40.5 “cannot quite literally mean what it says”, but that “the reference to inviolability in this context nonetheless conveys that the home enjoys the highest level of protection which might reasonably be afforded in a democratic society”.

Justice Hogan emphasised the need for appropriate legal justification for forcible entry to a private dwelling, and said that s. 6(1) of the Criminal Law Act 1997 “does not empower a purely warrantless search for no reason, since one of two possible pre-conditions are specified by the sub-section: the subject of the warrant of arrest must either be present in the house or the member in question must have “reasonable cause” to suspect that that person is present in the house”. 

In the High Court, Fullam J preferred the evidence of Ms Rozmyslowicz to that of the two Gardaí – that Garda O’Sullivan had said to her colleagues that she had seen “movement”, as distinct from a hand at the window. Justice Hogan said that this meant the key element which formed the basis for Detective Garda Hanrahan’s belief as to the existence of a reasonable cause to justify forcible entry “simply disappears”.

In circumstances where there were no other reasons present to justify reasonable cause for forcible entry, Justice Hogan said that the Gardaí must be held not to have discharged the evidential burden of demonstrating that they had a reasonable cause to believe Mr Snaidy was in Ms Rozmyslowicz’s home to justify forcible entry pursuant to s. 6(1) of the Criminal Law Act 1997.

Allowing the appeal, Justice Hogan remitted the case to the High Court for an assessment of damages.

• by Seosamh Gráinséir for Irish Legal News