DPP -v- O'Driscoll, High Court,Judgment was delivered by Ms Justice Mary Finlay Geoghegan on January 14th, 2010
Judgment
This was a case stated to the High Court, as to whether it was open to a District Court judge to find that a member of An Garda Síochána had reasonable cause to suspect that a horse was being mistreated, and to enter lands without a warrant on foot of that suspicion. Ms Justice Finlay Geoghegan found it was not open to the judge to so find.
Background
The accused, Philip O’Driscoll, was charged with ill-treatment of 19 dogs in premises known as The Piggery, Megan’s Lane, Tallaght, on November 17th, 2008.
After submissions by solicitor for the accused, Judge David McHugh agreed to state two questions to the High Court. The first was: did the circumstances give rise to a reasonable cause to suspect that an offence was being or had been committed under the Control of Horses Act 1996, such that a garda was entitled without warrant to enter the lands? The second question was not pursued.
At the District Court hearing, two gardaí gave evidence of being informed by a DSPCA inspector that the association had an anonymous call over cruelty to horses at The Piggery, Megan’s Lane. They went there with the DSPCA inspector and entered.
The inspector gave evidence that a staff member had received an anonymous call claiming a horse was being mistreated on the premises. He said the association depended on information from the public on ill-treatment of animals, and that it was often anonymous. He accompanied the gardaí to the premises and climbed over a gate.
The general manager of the DSPCA said the organisation received about 11,000 calls a year, and outlined the procedure for dealing with them. On this occasion a horse box and rescue ambulance had been sent out.
The solicitor for the accused had submitted to the court the gardaí did not have reasonable cause to suspect an offence was being committed under the Control of Horses Act 1996.
Ms Justice Finlay Geoghegan cited the Act, which states that a member of the Garda may stop a vehicle or enter land if he or she has reasonable cause to suspect a horse is being mistreated. The Act also provides for a search warrant to be issued by the District Court if it is suspected a horse is being mistreated.
The solicitor for the accused said the test to establish what was reasonable suspicion should at least be what a District Judge would consider reasonable if a warrant was being applied for.
Decision
Ms Justice Finlay Geoghegan referred to cases where the question of “reasonable suspicion” and “reasonable cause for arrest” had been examined. It had never been held that a reasonable suspicion had to be based on the kind of evidence that would be admissible at a criminal trial, she said. In relation to this case, there was nothing to prevent a garda from forming a reasonable suspicion for the purpose of the 1996 Act upon hearsay information, even where the source was anonymous.
However, the simple receipt of hearsay information was not of itself a sufficient ground to constitute a reasonable suspicion. The garda should “satisfy himself that there did in fact exist reasonable grounds for suspicion”. Hearsay information should normally require a garda to consider both the source and nature of the information.
Where a third party complaint was communicated to a garda by a credible person like a DSPCA inspector, it was not open to the garda to exercise the powers conferred by the Act simply on that basis. A garda must be given sufficient particularity of the complaint and its source to make an assessment of whether the information constituted reasonable grounds to suspect a horse was being mistreated.
As the source was anonymous, the lack of particularity or facts in the complaint as communicated fell short of what may constitute reasonable grounds on which a garda could have cause to suspect an offence was being committed.
The answer to the question stated should be that it was not open to the District Court judge to find a member of An Garda Síochána had a reasonable cause to suspect an offence was being or had been committed under the Control of Horses Act 1996. The full judgment is on www.courts.ie
Niall Nolan BL, instructed by the Chief Prosecution Solicitor, for the DPP; Robert Dore, solicitor, for Mr O’Driscoll