The Gazette 1982

april

1982

g a z e t t e

prosecution and 79 documents in the hands of the plaintiffs solicitors which were privileged. The Court further held that even had they decided otherwise they would not grant an order restraining the police from perusing the documents for information or making use of • that information since it would be impossible to enforce. The judiciary in England also seem to justify the seizure and retention of goods on the most tenuous grounds. In Malone v. Commissioner of Police (No. 1), 121 £11,000 was seized by the police in the course of a search. When the plaintiff applied to get it back to pay for his lawyers in a subsequent trial the Court of Appeal held it to be a necessary part of evidence against him on a charge of conspiracy to handle stolen goods. Stephenson L.J. held that merely proving the discovery of £11,000 was not enough and that it would be necessary to prove the notes themselves, given "how unpredictable is the course of a criminal trial". 122 He further seemed to believe that if the accused could later invent a story that the police had planted the money on him then the production of the money itself could somehow rebut this. My purpose is not to unduly criticise those learned gentlemen but to show how, through judicial rule-making, the law on this has become impossibly confused. It would not seem possible to say with certainty whether or not the police were acting within their powers, except upon argument on loosely constructed criteria and the focussing of minds of Appeal Court Judges. This is surely not satisfactory. In conclusion, I should say that I have not covered every aspect of police powers. In so far as I have gone I have had some difficulty in stating what the law is. This should not be the case. It is a matter of some urgency that reform take place. This should state the law in a clear fashion in such a manner as to be easily understood by citizens and police alike and difficult for the judiciary to alter. • 69. See Lord Porter in Lewis v. Times [1952] A.C. 676 at 691. 70. (1965] 1 Q.B. 348 at 367. 71. See Leigh, Police Powers op. cit., footnote 7, p. 55. 72. (1978) 66 Crim. App. R. 81. 73. at p.85, citing Lord Denning M.R. in Ghani v. Jones [ 1970] 1 Q.B. 693. 74. See generally on search warrants and powers of search, Sandes, Criminal Law and Procedure in Eire, 3rd ed. (1951) pp. 49-51. 75. See Criminal Law Act, 1976, Section 7. 76. Statutory Instrument No. 114 of 1955, entitled "Regulations as to the measuring and photographing of Prisoners, 1955." 77. (1966] I.R. 501. 78. D.P.P. v. Walsh — 17 January, 1980 — Supreme Court — unreported. 79. Dumbell v. Roberts [1944] 1 All E.R. 326 at 330. 80. Magistrates Courts Act, 1952, Section 40; and Section 8 of the Childrens* Act 1969 and R. v. Jones (1978] 3 All E.R. 1098. 81. (1965) 99 I.L.T.R. 59. 82. Adam v. McGarry [1933] S.L.T. 482, and U.S. v. Laub Baking Co. 283 F. Supp. 217 (1968). 83. (1968] S.L.R. 334. 84. Leigh, Police Powers, op. cit. footnote 7, p. 198. 85. [1964] 2 All E.R. 610. 86. Holt v. U.S. 218 U.S. 245 (1910).

87. U.S. v. Wade 338 U.S. 218 (1967). 88. [1956] I.R. 22. 89. For the duty of a District Justice in that circumstance see O'Loughlin J. in Dunne v. Clinton [1930] I.R. 366. 90. Report of the Committee to Recommend Certain Safeguards for Persons in custody and for members of An Garda Siochana (Prl 7158) (April 1978). 91. Glanville Williams, [1960] Crim.L.R. 598 at p.606. 92. See King v. Gardner (1980) 71 Cr.App.R. 13. 93. Ludlow v. Shelton, The Times, Feb. 3/4, 1938. 94. Hamshere v. Bower [ 1955] Crim.L.R.25. 95. Willey v. Peace (1951] 1 K.B. 94. 96. In the U.K. the power is section 666 of the Metropolitan Police Act, 1833. 97. Hadley v. Perks (1866) L.R. 1 Q.B. 444. 98. (1980) 70 Crim.App.R. at p. 148. 99. Op. cit., footnote 91, pp. 605/606. 100. Section 23 of the Misuse of Drugs Act, 1977. 101. Firearms Act, 1925, ss. 21-24, though without a general power except under the Criminal Law Act, 1976, section 15. 102. They are exerciseable also by the Defence Forces under command of a Garda Superintendent; see Section 5, Criminal Law Act, 1976. 103. (1968] I.R. 305 at p.309. 104. (1887) 20 L.R. Ir. 300; 16 Cox C.C. 245. 105. 269 U.S. 19 (1925). 106. Supra, footnote 6. 107. 23 L. Ed. 2d, 685 at 694. 108. (1934] 2 K.B. 164. 109. (1978) 66 Cr.App.R. 81. 110. See Agnello v. U.S., supra, footnote 105, per Butler J. 116. Crazier v. Cundy (1827) 2 B.&C. 232. 117. [1970] 1 Q.B. 693. 118. The Times, 4 Sept., 1971. 119. See Leigh, Police Powers, p. 183 et seq. ciliation' that takes place at the door of the Court, where the parties, motivated primarily by the fear of the imminent Court hearing, usually grudgingly and hastily reach a level of agreement which may notbe the bestthat could have been achieved. No one would disagree that the terms of a settle- ment arrived at by professional conciliation (with the law- yers in the background to do what they are really trained to do — putting the terms of settlement into legal form) would be far more likely to be honoured in spirit and in fact than would either, 'hammered' out of warring couples immedi- ately before, or imposed by a Court after, a mutually recriminating hearing. Let us all recognise a good idea when we see it. • The President, Mr Brendan Allen, was received by Uachtaran na hEireann on Thursday, 10 June, 1982. The President was accompanied by Mr Michael P. Houlihan, Senior Vice-President, Mr Desmond McEvoy, Junior Vice-President, and Mr James Ivers, Director General. 105 120. |1977] 2 All E.R. 431. 121. [1979] 1 All E.R. 256. 122. |1979] 1 All E.R. at p.262. Comment...