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1982
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. •
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.
120. |1977] 2 All E.R. 431.
121. [1979] 1 All E.R. 256.
122. |1979] 1 All E.R. at p.262.
Comment...
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).
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