About this case:

• Citation:
  [2026] IEHC 104
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Micheál O’Higgins

Delivering judgment for the High Court, Mr Justice Micheál P. O’Higgins highlighted that the issue of statutory interpretation arising in the case “has importance beyond the facts of the respondent’s case because the phrase is used in many other statutes concerned with search warrants and garda powers”.

James Dwyer SC and David Staunton BL appeared for the appellant instructed by the Chief Prosecution Solicitor. Conor Devally SC and Suzanne Dooner BL appeared for the respondent instructed by Brophy and Martin Solicitors.

Background

On 26 October 2022, Garda Colleran obtained four search warrants. Four houses were searched on 27 October 2022, including the respondent’s dwelling at 5 St. Cormac’s Park, Co Offaly.

In the course of the searches, Garda Colleran attended the respondent’s dwelling for a brief period before leaving to search another address.

Garda Loughnane had entered the respondent’s dwelling in or around the same time as Garda Colleran. Garda Loughnane searched the rear shed and garage, and in the “closing stages” of the search, found the cocaine. Garda Colleran subsequently returned to St. Cormac’s Park.

The respondent came before the District Court facing a charge of unlawfully possessing a controlled drug, namely cocaine, contrary to sections 3 and 27(1) of the Misuse of Drugs Act 1977, as amended.

The District Court believed that the fundamental question to be considered was whether Garda Loughnane was accompanying Garda Colleran at the time he found, inspected and seized the cocaine, in circumstances where search warrants, pursuant to s.26(2) of the 1977 Act, authorise a named member of gardaí and those who accompany that member to inter alia enter and search premises.

In the District Court’s view, Garda Colleran had failed to appreciate the limits placed on her authority and the authority of the other gardaí who were supposed to be accompanied by her while searching St. Cormac’s Park, in that she failed to appreciate that only when she, the authorised officer, accompanied those other members, could those other members inter alia enter and search the premises.

In the absence of any definition within the 1977 Act, the District Court reasoned that the words “accompanied by” in s.26 must be given their ordinary meaning, that a person “goes along” with another person.

Concluding that Garda Loughnane was not accompanied by Garda Colleran when he found and seized the cocaine, the District Court was satisfied that the search and subsequent seizure and detention of the cocaine were illegal. Accordingly, the District Court dismissed the charges against the respondent.

The DPP requested the District Court to state a case to the High Court. 

The main questions of law to be answered concerned the correct meaning of the phrase “accompanied by” in s.26 of the 1977 Act, and the approach which a trial judge should take when assessing the admissibility of evidence obtained where the authority of a search warrant may have been exceeded.

The High Court

Having considered the parties’ submissions and the case law on statutory interpretation, the High Court noted the obligation on the courts, outlined by the Supreme Court in Simple Imports Limited v. Revenue Commissioners [2000] 2 IR 243, to ensure that conditions imposed by the legislature before powers of entry, search and seizure can be validly exercised “are strictly met”.

Turning to s.26(2), Mr Justice O’Higgins concluded that the authority of the search warrant was exceeded when a garda member, who was not accompanied by the authorised member, carried out purportedly on the authorisation of the warrant.

In so finding, the judge highlighted that the sequencing and language of s.26(2) indicates a legislative intention that all of the acts authorised thereunder should be governed by the “accompanied by” requirement and that “the powers conferred by the warrant should be channelled through the authorised member, without whom the derivative powers of the other garda members would not be engaged”.

The court explained that the Oireachtas could simply have empowered Garda members generally to participate in a search once the safeguard of applying to a judge for a warrant had been met, but instead opted for a structure of conferring various powers of a named authorised member and upon such other members provided that they are accompanied by the authorised member in a supervisory role over the operation, an “important policy choice” which “must be respected”.

Finding that the District Court was correct to rule that Garda Colleran was not accompanying Garda Loughnane at the relevant times, Mr Justice O’Higgins emphasised that “this does not mean that in all cases, irrespective of conditions of urgency or operational necessity, a temporary separation between an authorised member and other garda members will result in the latter losing the benefit of a s. 26 search warrant”.

As to the impact of the District Court’s finding of unlawfulness of the admissibility of the evidence and the validity of the respondent’s acquittal, the High Court considered that having determined that the search was unlawful, the District Court should have gone on to consider whether the evidence should nonetheless have been admitted by carrying out an assessment in line with People (DPP) v. J.C. [2017] 1 IR 417.

In this regard, Mr Justice O’Higgins stated that ordinarily, “a court must consider whether such evidence can nonetheless be admitted and whether the breach can be excused, such as where the breach has occurred due to inadvertence or, though not applicable here, can be excused as a consequence of a subsequent legal development”.

In the court’s view, the District Court erred in concluding that the unlawfulness of the search necessarily meant that the charge should be automatically dismissed, though Mr Justice O’Higgins highlighted that at no point had the District Court been invited by the parties to carry out a J.C. type enquiry.

As to the respondent’s objection to the DPP’s attempt to raise the J.C. issue in circumstances where it was not raised at trial, the High Court applied the approach in Lough Swilly Shellfish Growers v Bradley [2013] 1 IR 227 in exercising its discretion against allowing the point to be raised on appeal.

In particular, the court noted that it had not been sufficiently explained why points sought to be advanced by the DPP on appeal were not raised before the trial judge.

Conclusion

Accordingly, the High Court refused to disturb the District Court’s decision and disallowed the appeal.

Director of Public Prosecutions v Richard Davis [2026] IEHC 104