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1. The legal firm of Michael E. Hanahoe & Co. was established in 1939. It had and has the highest reputation in legal circles. This fact is accepted without question by the Respondents. Part of their practice was on the criminal side of the Court but certainly not the bulk of it.

2. There is national concern about the appalling increase in drug traffic in Ireland in the last 10 years which has devastated families and districts. The legislature in an effort to deal with this national scourge passed several acts including the Criminal Justice Act, 1994 most of which (including the relevant sections for the purposes of these proceedings) was brought into force on October 21st 1994 by the Criminal Justice Act, 1994 (Commencement) Order, 1994 (S.I. No. 324 of 1994). The case was very ably argued by Counsel on both sides and raises a number of legal problems for which there is as yet no precedent. The evidence and argument was heard over 9 days. I have tried in the course of this long judgment to set out all the arguments and to make findings of fact as I proceed and on those facts to ground my ultimate decision.

3. The evidence tendered to the Court consisted of the two warrants, the two informations which were sworn and the oral evidence of Detective Inspector McGinn. She was the inspector in charge of the Money Laundering Investigation Unit.

4. She set up an operation code named "Operation Pineapple". This operation had been set up before the Criminal Assets Bureau was in existence. The operation was set up in April 1996. The operation was not a Criminal Assets Bureau investigation. Inspector McGinn was the Operational Inspector to deal with the day to day operational matters of the investigation. She would have reported once weekly to Chief Superintendent, Ted McCarthy who is the Chief Superintendent in charge of the Garda National Drugs Unit and she would also have reported to Assistant Commissioner, Tony Hickey who is in charge of the murder investigation team in Lucan into the murder of the late Veronica Guerin.

5. She had about 12 officers currently working in "Operation Pineapple" on a full-time basis under her command.

6. The principal suspects of her investigation were Mr. John Gilligan, his wife Geraldine Gilligan (also called on occasion, Matilda Dunne) and their associates. Investigations started as a result of the receipt of a Section 57 Disclosure of Information Under the Criminal Justice Act, 1994. From that information the Gardai could see that the principal suspects had substantial amounts of money and that they had used these substantial amounts of money to buy property. From these enquiries it was ascertained that Messrs. Michael E. Hanahoe & Company Solicitors dealt in (a) the conveyancing of this property, (b) the obtaining of the mortgages and (c) the discharge of mortgages in relation to the properties. Some of the vendors had agreed to release the files in their respective Solicitor's offices to the Gardai, while others refused. The Gardai were building up a file about the purchase and mortgaging of properties and possibly a quick discharge of mortgages on properties owned by Mr. and Mrs. Gilligan and their associates. As a result of these enquiries a meeting was held on the 30th September, 1996. It was attended by a number of Senior Gardai who were directly or indirectly involved in the investigation of money laundering, or, at least, involved in other investigations that were of interest to Inspector McGinn's investigation. This meeting took place in the Serious Crime Office of the Central Detective Unit at Harcourt Square. The meeting was chaired by Assistant Commissioner, Tony Hickey. In attendance were Chief Superintendent McCarthy from the National Drugs Unit, Chief Superintendent Murphy who is now attached to the Criminal Assets Bureau, Superintendent Felix McKenna who is now attached to the Criminal Assets Bureau, Inspector William McGee from the Garda Bureau of Fraud Investigations, Inspector Gerry O'Connell from the Lucan Investigation Team into the murder of the late Veronica Guerin and Sergeant John Matlin who had worked on "Operation Pineapple" but who is now attached to the Criminal Assets Bureau. The Criminal Assets Bureau had been set up at that time on an ad hoc basis and the legislation was not fully brought into force. Chief Superintendent Murphy and Superintendent McKenna were brought in to set it up. This meeting decided that the Gardai needed to consider the evidence which was in the office of Messrs. Michael E. Hanahoe & Company. After due consideration of the law they felt that the only way they could obtain this evidence was by way of a search warrant. After the decisions were taken, the meeting was joined by the now Criminal Assets Legal Bureau Officer, Barry Galvin, Solicitor.

7. Inspector McGinn was aware of the difference between Section 63 (it is basically an order to make material available) and Section 64 Search Warrant. The meeting gave due consideration to both provisions of the law and they felt it was necessary to go under Section 64 Warrant for a number of reasons.

8. She felt that if she did not gain immediate assess to the material which was in the office of Messrs. Michael E. Hanahoe & Company, Solicitors, her investigations would be seriously prejudiced. She could not complete an investigation file on money laundering unless she could prove all the evidential chain in the paper trail. She needed every bit of evidence which was available. She was asked for the reasons she had for taking the Section 64 route as opposed to the Section 63 route. She felt that Messrs. E. Hanahoe & Company, Solicitors for John and Geraldine Gilligan had been precluded by a duty of confidentiality from releasing the documents to her. She was also aware that John Gilligan was a very dangerous criminal, that he had contacts with the drugs and criminal fraternity operating in this country and elsewhere and that he had access to unlawfully held firearms. She was also aware that he would have prevented her in any way he could from obtaining evidence which would incriminate him in breaches of the criminal law. If she served the Section 63 Order on the Solicitors, they would have been obliged to seek instructions from their clients as to whether they, the Solicitors, or, the clients should seek to vary or discharge an order under Section 63 (6) of the Criminal Justice Act, 1994. If that had happened Mr. Gilligan would have become aware that she was looking for the documents. She would have been frustrated in any efforts she had made to obtain those documents. By the time she could have gone for Section 64 Warrants the documents would have disappeared. Mr. Gilligan would have stopped her whatever way he could from obtaining the documents. Nothing on this earth would have stopped Mr. Gilligan. He would have prevented her in whatever way he could from obtaining the evidence which was vital and primary evidence of the crime of money laundering.

9. This was the fifteenth time in "Operation Pineapple" that she had made an application for a Section 64 Warrant. During the course of the same operation she had made fifty applications for discovery under Section 63. However, the current case was the first time that she had ever made an application against a Solicitor's office. Section 64 Warrants were used against John Gilligan at his home in Enfield in County Kildare and on his financial advisors, his accountants, his insurance brokers and other people who had been advising him.

10. Fear that John Gilligan would have prevented her from obtaining the evidence was the consensus view of those who attended the meeting in Harcourt Square on the 30th September, 1994.

11. After the decision had been made Mr. Galvin joined the meeting to give an explanation as to how a Solicitor's office worked and about confidentiality and privilege. He also confirmed the view of the Gardai that if a Section 63 Order had been served on the Solicitor's office, that the Solicitor would have been obliged to contact his clients seeking instructions as to whether the Order should be varied, or, discharged, or, obeyed.

12. On the morning of the 3rd October various members of the Gardai were notified by Inspector McGinn that she required them at a conference at 12 noon. These were to be the search party. We will discuss in another part of this judgment who are the people who knew about this proposed search and when they knew. Basically they were the people of the meeting of the 30th September and those of the 3rd October. This will be considered when the Court deals with the leak to the media. Inspector McGinn produced two sworn informations, one was in respect of John Gilligan and the other was in respect of Geraldine Gilligan. She prepared the informations but she also prepared the wording of the warrant. These documents were prepared after the meeting of the 30th September and were finalised before the briefing on the 3rd October. These drafts were shown to Mr. Galvin and were then taken to a typist. They were typed in the presence of Inspector McGinn. The original hand-written documents were then destroyed by Inspector McGinn. The typed document was retained by Inspector McGinn until she went to Kilmainham Court House on the 3rd October. She made a copy to put into her working file on the morning of the 3rd October and brought the original document to Court. She swore the information before District Judge Gillian Hussey. The file until then was put away in the office of Inspector McGinn. The only person with whom she had consulted was Mr. Barry Galvin, Solicitor. The same routine was followed in respect of the warrants. The conference ended at 1.20 p.m. After the meeting concluded, she went to the canteen with the three members who were coming with her to Kilmainham. She had briefed the people at the meeting for the first time that she was going for this warrant and that it had to be very sensitively executed. She discussed the matter with Chief Superintendent Frank Glacken whom she met in the corridor and informed him that the procedure for the District Court should be a warrant under Section 64 of the Criminal Justice Act, 1994. She told him that they were planning to search the offices of Messrs. Michael E. Hanahoe & Company, Solicitors in Parliament Street in Dublin. She and her companions arrived at Kilmainham District Court at 1.40 p.m. Two of them had mobile phones. District Judge Hussey returned from lunch at 2.10 p.m. Two of the Gardai who were in the company remained in the car and another Detective Guard came into the Court House and subsequently procured a bible. District Judge agreed to hear the matter in Chambers when she heard it was a highly sensitive matter. Inspector Byrne stayed in the search area to await Inspector McGinn's arrival with the warrant. He telephoned her at approximately 1.50 p.m. He told her that there were two men across the road from the search site he suspected were "the media people". She directed him and his team to go to the Bridewell Garda Station and that she would be with them in due course. In the Judge's Chamber there was merely the Judge and Inspector McGinn. When she was alone with the District Judge she gave the following evidence as to what exactly took place:-

13. This change is actually reflected in the document. Inspector McGinn continues her evidence as follows:-

14. The above information took 20 minutes in the Judge's Chambers. The Inspector left the Chambers at 2.35 p.m and went in a patrol car to the Bridewell Garda Station. The warrant was executed. The Gardai entered in ones and twos. The Gardai realised that this was a very sensitive area and were willing to accept from the Solicitors what documents were privileged. She wanted to look at the files themselves and the book keeping from the computer. She had specialists with her to assist in doing that. She was satisfied that she had procured all the material necessary for her investigations. About 40 minutes into the search, Mr. Anthony Hanahoe arrived into the office and was extremely angry. He was enraged that the media were outside the premises and said this was "a set-up".

15. As we have seen there were eight people who knew on the 30th September, 1996 at the meeting chaired by Assistant Commissioner Tony Hickey. They knew that it was intended to get a Warrant under Section 64 of the Act and to search the premises of Messrs. Michael E. Hanahoe & Company. They did not know the date or time thereof. They were subsequently joined after the decision was made by Mr. Barry Galvin, who is now the Legal Officer of the recently formed Criminal Assets Bureau. She also required a typist to type up work which, she had drafted and which had been approved by Mr. Galvin. She had initially considered making the raid in the morning but decided the Solicitors might be in Court and it would be better to proceed after lunch. Accordingly she called her conference at 12.00 noon. That was the first time that people were aware of the fact that the search was going to be made on that day in the afternoon. She explained everything to those who attended that meeting and who were to be basically the search party. After the meeting she informed her superior, Chief Superintendent Frank Glacken, what she was intending to do. The conference ended at 1.20 p.m.. She arrived at Kilmainham District Court at 1.40 p.m.. The District Justice arrived at 2.10. Inspector Byrne telephoned at 1.50 p.m. to say there were two men across the road from the search site, whom he suspected were "media people". Mr. Peter Thursfield is an Irish Times photographer. Some time between 2.00 and 2.30 p.m., he was directed by his Picture Editor to attend the raid on the offices of Hanahoe Solicitors. He walked from the Irish Times to the offices and says he got there between 2.30 and 3.00 p.m.. He went alone but shortly after he arrived he saw a photographer from the Star. His colleague from the Irish Times, Paul Cullen, joined him very shortly after he had arrived. There were people going in and out of the offices but it was only about 7.00 p.m. that he started taking photographs of people whom he could clearly identify as Gardai as they were carrying files. Mr. David O'Connell is the News Editor and the Night Editor of the Star newspaper. He received a phone call which was some time in advance of their 2.00 o'clock news conference. He would estimate that this was around 1.00 o'clock but cannot say precisely. The person on the phone spoke very calmly and stated that something of interest in relation to the Gilligan case was about to occur. There was a C.A.B. raid on the firm of Hanahoe Solicitors. The Editor did not know the address of this firm but the informant gave it to him. Immediately he sent over a photographer. He felt the raid was imminent and was hoping that if there were news, it would be in train in time for the 2.00 p.m. news conference. Mr. Senan Maloney, a journalist with the Star newspaper, stated that just after 1.00 o'clock he received information from his News Editor that he should get a photographer and go down himself to Parliament Street in advance of 2.00 o'clock. The information was given to Mr. Maloney before 1.00 o'clock and he arrived at the offices of the Applicants at about 1.50 p.m. accompanied by his photographer. He estimates that there were about six photographers and reporters before the Gardai entered the building. By the time they left (which was between 6.00 p.m. and 7.00 p.m.) there were ten or twelve.

16. Several senior Garda witnesses accepted that there were only three possible scenarios in relation to "the leak". From the evidence it will be seen that possibly before or immediately after the conference at which the Detective Inspector revealed her plan, there was communication to the media. The first source would be the Gardai themselves. The second source was that the room was bugged. This had happened in the Incident Room in Lucan in or around this time. Thirdly, it would be heard inadvertently on the telephone by lines being crossed. Having regard to the evidence already recited, this Court is satisfied that as a matter of probability, the leak emanated from the Gardai.

17. The Inspector in charge decided to investigate whether any of the officers with whom she had been dealing would have leaked it. She asked each officer with whom she had been associated. Mirabili dictu ('most marvellous to relate') each officer denied he was the source of the leak. This was the only investigation by the Gardai authorities. The Solicitors profession was outraged about the whole incident. Evidence was tendered to the Court and was not disputed that the Applicants are eminent Solicitors enjoying the highest possible reputation with the public and with their own professional body. Two former Presidents of the Law Society and other eminent Solicitors have averred to that position. The Gardai also supported this view. The evidence is unanimous.

18. The Law Society the next day released a press statement which says:-

19. The same statement alleges:-

20. It also points out that the Applicant firm is one of the largest companies in the country and by far a great part of the firm's work does not relate to criminal law. This firm acts for many Gardai and in fact also defended the late Veronica Guerin. Mr. Andrew Smyth who was the President of the Incorporated Law Society at the relevant time also gave evidence about the high standing firm of Michael E. Hanahoe & Company. He was appalled when he saw the media coverage. He felt that a great wrong had been done to the firm and "that those who had instigated the raid obviously did not think of the fall-out from the raid apart from what their requirements were in relation to it". He pointed out that a Solicitor acting for someone who is buying property could in the course of his conveyancing practice bind himself by means of undertakings to banks, to lending institutions, to Solicitors on the other side with regard to various matters involved in the conveyancing. For those reasons alone he felt that you would have to retain control of the documentation and the file relating to the particular transactions so that if somebody did come in seeking the documentation, all of these matters would have to be looked into before he could even consider handing over the documentation. He thinks the public perception of a search under a Search Warrant would be something "rotten", for want of a better word, in the office and that if money laundering were the basis of it and this was known to the public as being the basis of it, but further from that, that the Solicitor himself has to be involved as a party to the money laundering. Mr. Smyth, as President of the Law Society, wrote to the Commissioner of An Garda Siochana. The letter which is dated the 9th October, 1996 reads as follows:-

21. The Garda Commissioner replied in a letter dated the 22nd October, 1996 as follows:-

22. The above two letters were published in the Law Society Gazette in November 1996. It was suggested by Assistant Commissioner Hickey that informal enquiries were carried out by Chief Superintendent McCarthy and Chief Superintendent Murphy but they do not seem to have had any reality. Chief Superintendent McCarthy agreed eavesdropping and inadvertence were not supported by any evidence. Assistant Commissioner Hickey also told the Court that the Dail was informed by the Minister for Justice that no enquiry had been held. Counsel for the Respondent agreed, without qualification, that there had been no enquiry. There is no physical file in existence to pursue the question of the leak, although it is conceded that the leak in this particular case might be a criminal offence.

23. The Court makes the following findings of fact:-

24. The firm of Messrs. Michael E. Hanahoe & Co. had prior to the search on the 3rd October, 1996 the highest reputation amongst their colleagues and amongst the Gardai.

25. Prior to the search of the offices of Messrs. Michael E. Hanahoe & Co., the investigation had necessitated the search of the Gilligan's premises pursuant to a Warrant in July 1996 and the search of Accountants in early August which had all attracted considerable publicity. Any intelligent observer could have anticipated the fact that the Gardai would turn up at the Hanahoe office at some stage to look for documents. In fact members of the firm had discussed that very possibility and had agreed that their duty as Solicitors and officers of the Court was to co-operate in every way with the Gardai. In fact the Gardai confirmed that they got the utmost co-operation from all the members of the firm except Mr. Anthony Hanahoe, who was annoyed, and regarded his firm as having been "set-up". These were perfectly understandable reactions in the circumstances of the case. Mr. Terry Hanahoe also was displeased with the Gardai actions.

26. The investigation had not concluded and other offices remained to be approached and/or searched in order to secure documentation and/or evidence. The search in the Accountants' offices had received publicity in the Irish Independent article of the 7th August, 1996 in which it is suggested that this information emanated from Garda sources, however this is not really an issue for determination by this Court. However, other than that publicity, the Gardai had succeeded in executing fourteen Section 64 Warrants and some forty or so Section 63 Warrants and made informal approaches to offices without any publicity prior to the search on the 3rd October, 1996.

27. The group of officers engaged in this investigation were efficient and highly experienced. They were in fact an elite group. They could not be described as careless, inattentive, inefficient or negligent. At the meeting of the 30th September, 1996 those present considered the possibility of Section 63 Orders or Section 64 Warrants. There was no note or memorandum of that meeting. The Gardai considered that immediate access to documentation could only be obtained under Section 64. They also considered that a possible application to the Court under S. 63 should be avoided, so that Mr. and Mrs. Gilligan would not be aware of the intention to obtain such documentation in view of their alleged ruthlessness. The briefing of the search team which had commenced at 12.00 noon concluded at approximately 1.20 p.m. on the 3rd October, 1996. Sometime not later than 1.30 p.m. an anonymous phone call was made to the News Room of the Star newspaper. The caller was calm and precise and his purpose was to alert the paper to the raid. The caller told Mr. O'Connell, the Editor of the Star, that there was something which would interest them in relation to the Gilligan case. There was to be a C.A.B. raid on the firm Hanahoe Solicitors. The raid was imminent. It was suggested to get down there as quickly as possible. The calls were made to the Irish Times and Mr. Peter Thursfield was alerted by his Picture Editor at around 2.30 p.m.. There was immediate presence at the Hanahoe office before 2.00 p.m.. They were noticed by Inspector Byrne and by a member of staff of the Solicitors' firm. The Search Warrant was granted at 2.30 or 2.35. Detective Inspector McGinn spent no more than fifteen to twenty minutes with the District Judge. There was no person present other than the Judge and the Inspector. The application was made under the Criminal Justice Act, 1996. The Detective Inspector did not discuss Section 63 of the Criminal Justice Act, 1996 with the District Judge and in particular they did not discuss the meaning or effect of Section 63(4). For the purposes of this judgment I insert here Sections 63 and 64 of the Criminal Justice Act (No. 15 of 1994):-

28. We have seen the difference between Section 63 which is in the nature of a Notice to Produce and under Section 64 which is a Warrant granting immediate access to the documentation. The Judge and the Inspector did not discuss that the limited Order under Section 64 would suffice if coupled with a more general Order under Section 63. The Detective Inspector did not refer to any case law. She did not show the District Judge any evidence on her file.

29. The foregoing are the submissions which the Court received on behalf of the Applicants. The Court accepts the following findings of fact being supported by the evidence and as being relevant to the submission made on behalf of the Respondents.

30. At all levels within the Gardai, both senior management and operational level, there was an awareness that a search of a Solicitors' office was a serious undertaking. It was not to be undertaken lightly and required to be executed with discretion and sensitivity. It was also the first time in the history of the State that it was being done and it was being executed under very recent legislation. The application to Judge Gillian Hussey was made in her chambers. This was regarded as appropriate, having regard to the sensitivity of the situation and the requirement of discretion.

31. The fact that the members of the search party were not uniformed Gardai, used unmarked Garda cars which were parked a distance from the search site, also support the drawing of the inference that the intention was that the search should be conducted with discretion and certainly that publicity was not to be even sought. While we now know that the media were present at the offices of Hanahoe & Company before the search team arrived, the members of the search team succeeded in making their way into the offices without attracting media attention. The Gardai had a bona fide and proper belief that they needed access to documents likely to be found in the offices of Hanahoe & Company. The Applicants do not dispute this fact. The Gardai gave full and serious consideration to the appropriate route by which access to the documentation could be obtained and the Gardai considered the question of whether to proceed by way of Section 63 of Section 64. The matter was debated and sketched out at a lengthy and high powered meeting and the Gardai sought and followed legal advice.

32. The decision by the Gardai to opt for a Section 64 was, inter alia, governed by the knowledge of the character of the principal suspects and their concern that if immediate access was not obtained that Mr. Gilligan would "stop at nothing" to prevent them accessing the primary evidence believed to be in the possession of Hanahoe & Company. The Garda beliefs that if an application were made under Section 63 that the Hanahoe's would have been bound or at least entitled to inform their clients, was a correct one. The Gardai had a genuine fear that if Mr. Gilligan were told of the Section 63 Order they would be denied access to the documents. The Gardai were anxious to ensure that the correct procedure was followed and they were aware of the technical nature of the legislation and consulted with and were advised by Mr. Barry Galvin, Solicitor. He also advised on the form of the information and Warrant. The procedure contemplated in "Kenny's case" (D.P.P. -v- Kenny, [1990] 2 I.R. 110) was followed in the course of the application in Judge Hussey's chambers at Kilmainham District Court. Judge Hussey did not accept the information at face value or simply rely on what she was told. She probed and put questions to the Gardai, in particular in relation to the crucial question of the availability of an alternative procedure. Judge Hussey independently probed.

33. The actual search itself was conducted with discretion, efficiency and courtesy. They gained access without attracting the attention of the media who were undoubtedly present in the street. While the search party were on the premises they were scrupulous to avoid unnecessary embarrassment for the Hanahoe's or any unpleasantness. They accepted without question any claim for privilege or relevance of any of the documents. Two Detective Sergeants entered the premises later to assist in the operation. They also succeeded in entering the premises without becoming the focus of media attention. The Gardai were obviously distressed by the publicity. They sought to minimise and if possible avoid further publicity. So they canvassed the question of leaving by a rear exit carrying briefcases and using these as evidence bags and having female Gardai who were perceived as likely to be less conspicuous than those supplied with briefcases were all canvassed. In the event the decision of the Gardai should leave when and in the manner they did was taken not by them but by the Hanahoe's and in particular by Mr. Tony Hanahoe. They also submitted that every member of the Garda Siochana disapproved of the fact of publicity and was surprised and shocked by it. Publicity was potentially or actually detrimental to the success of the operation. It is accepted by the Respondents that no formal enquiry was directed. The evidence of senior police officers who had been involved in the investigation of leaks previously said that such formal investigations had not proven particularly successful in the past.

34. They also make the point that the person who contacted the "Star" stated that it was to be a C.A.B. raid. It is pointed out that in fact this was not a "C.A.B." operation. The Court does not regard this point as being particularly significant. The Respondents do not accept for one minute the Irish Independent story in relation to the search of Accountants' offices emanated from Garda sources. As regards the point made by the Applicants as regards why the Gardai should avoid a possible application under Section 63, the Respondents state that the main Garda concern at all stages had been to avoid a situation where the suspect was able to seize or destroy the evidence. The Court's challenge was of relevance only because it would facilitate such action by providing a window of opportunity. They also argue that Mr. O'Connell, Editor of the Star, claims to put this phone call somewhat earlier, just after 1.00 p.m.. The Court is satisfied that either during briefing session or very shortly after it, communication was made to Mr. O'Connell. Therefore, whether it was made at 1.00 p.m. or 1.30 p.m. is of no great significance. The Respondents accept Detective Inspector McGinn does not appear to have referred to Section 63 of the Criminal Justice Act, 1994 by name. Each information at paragraph 7 therefore sets out why a Section 63 Order would be inappropriate. However, she and the District Judge did discuss the question of alternative procedures for obtaining the evidence and that she was of course addressed to the information and Warrant. It is accepted that innocent parties can and may be the subject matter of Section 63 and Section 64 applications. They also point out that there is no evidence of financial loss by the firm or any of the individual partners. The evidence of Chief Superintendent McCarthy excludes eavesdropping. They argue that the day that he left the conference room there were no bugs there. However, this Court is satisfied as a matter of probability that the information to the media emanated from Garda sources. The Court is surprised at the attitude of the Commissioner and the Gardai to the investigation of this undoubted leak which may well be a criminal offence. The Court is satisfied that whether to apply for a Section 63 or a Section 64 Order is an operational matter for the Gardai. It would not in normal circumstances be appropriate for Judicial Review. The Gardai, for the reasons which they have explained, wanted to go with a Section 64 and had taken legal advice. Some lawyers would have reservations about that choice but it was clearly within their jurisdiction. In the absence of mala fides, or some similar ground it cannot be gainsaid. The Court accepts that there is a clear distinction between a Section 63 Production Order and a Section 64 Search Warrant. It accepts that under a Section 63 Production Order a person receives the Order and is allowed to produce the documentation and make their own decisions as to what documents fall within or without the Order. This is consistent with the approach on Discovery of Documents in civil proceedings. In the case of a Section 64 Warrant however, the decision is taken by the searcher. Accordingly, a searcher necessarily involves (scrupulously carried out) a consideration of many more documents than there is ultimately seized in order to satisfy the searcher that all relevant documents have been obtained. Accordingly, such a search is much more intrusive on the confidentiality of the relationship between the party searched and all his clients. In the present case the Gardai depended greatly on the information given to them by the Solicitors and their staff and there was great co-operation and the acceptance of decisions by the Solicitors' firm as to what was privileged and what was not relevant.

35. The Gardai apparently saw a distinction between Section 63 and 64(a) and that Section 63 carried with it a time scale which necessarily meant a delay of at least seven days before the production of the documents raising the prospect of possible interference with the documents or material. However, Section 63(4) permits an abridgement at the time and accordingly contemplates the possibility of making an immediate Production Order and indeed to permit entry and access for that purpose. This Court accepts without question that any such intrusion on the personal rights of a citizen, building, privacy, property and the inviolability of a dwelling-house must therefore be closely scrutinised and expressly justified. As Hamilton P. (as he then was) said in Byrne -v- Grey , [1988] I.R. 31 at p. 38:-

36. Lord Diplock in the House of Lords in R. -v- I.R.C., Ex. p. Rossminster Limited , [1980] AC 952 at 1008:-

37. In the case cited, Mr. Justice Hamilton found that a District Judge or Peace Commissioner issuing a Warrant must himself be satisfied that there is reasonable ground for suspicion and is not entitled to rely on the mere averment by a member of the Garda Siochana that he, the member of the Garda Siochana, had reasonable grounds for suspicion. Accordingly, the member of the Garda Siochana must be in a position to satisfy the District Judge of the relevant facts and justify such a finding. His view was reaffirmed by the Court of Criminal Appeal presided over by McCarthy J. in the People (D.P.P.) -v- Kenny , [1990] 2 I.R. 110 at 117:-

38. It is alleged that in the present case the District Judge was faced with a dearth of relevant information, she did not have the statute and did not refer to any relevant law. Of course the Judge may be very familiar with the statute and therefore does not have to have the statute produced. However, in the case of serious invasion of constitutional rights, the learned Judge must be satisfied on the facts that the appropriate statute would apply and must seek to ensure that the constitutional rights of the citizen are protected. Any diminution of these rights must be in strict accordance with the established necessity and with strict application of the relevant statutes. It was submitted that the Warrant here did disproportionately and unjustifiably invade the constitutional rights of the citizen. Whether or not the search was attended by publicity, the lone publicity which it was submitted to was secured by the action of some servant of the State.

39. The significance of the Criminal Justice Act, 1994 was that it greatly extended the power to grant search warrants and obtain orders in relation to materials and documents possibly relevant to the criminal investigation and/or prosecution. Hitherto persons subject to Search Warrants were essentially suspects and proposed Respondents in any investigation. However, the Criminal Justice Act, 1994 contemplated the obtaining of documentation from wholly innocent third parties who simply happened to have documentation or material which might be said to be relevant and might be used in evidence. Section 63 and Section 64 of the Act are identical to Section 27 of the Drug Trafficking Act, 1984 in the United Kingdom which in turn was modelled on the Special Procedure Provisions of the Police and Criminal Evidence Act, 1984 ("P.A.C.E."). Those Acts envisaged that documentation should be obtained for the purpose of criminal investigation from third parties. However, they also recognise that in certain situations of confidentiality or where the relationship was one of particular significance, a Search Warrant should not be immediately issued. Such relationships include the relationship between a Social Worker and a client, Accountants or Bankers and their customers or of course Solicitors and their clients. The structure of the legislation is to seek to effect the minimum interference in such relationships necessary to obtain the documentation or material necessary. The differences between Production Orders (such as those granted under Section 63) and search warrants (such as those granted under Section 64) has been the subject of considerable scrutiny in the United Kingdom in the years following the introduction of P.A.C.E. in 1984 and the Drug Traffic Act, 1984.

40. This Court is not satisfied that under Section 63(3) the Court could order immediate execution. The specified period "shall be seven days unless it appears to the Judge that a longer or shorter period would be appropriate in the particular circumstances of the application". It is not conceivable that it would give immediate execution as it is obvious from the general nature of a Section 63 Order that a person would require time within which to comply. The Court must allow a reasonable time for compliance.

41. The question as to whether to apply for a Section 63 Production Order or a Section 64 Search Warrant is initially, as we have seen, an administrative one. It is a decision to be made by the Gardai. They might reasonably determine whether Section 63 "might" be seriously prejudicial to their investigations. They may decide that they need immediate entry to the premises and immediate securing of the documents. This is an administrative decision. However, it is then for the Court to decide whether to implement its decision by granting a specific Order. The Court must be ever conscious of the fact that this is a new and serious invasion of constitutional rights including the invasion of privacy and possibly the invasion of confidential relationships. The Respondents accept that the People (D.P.P.) -v- Kenny , [1990] 2 I.R. 110, the D.P.P. -v- Gaffney , [1987] I.R. 173 and the State (Lynch) -v- Cooney , [1982] I.R. 337 are authority for the fact that the District Judge issuing a Warrant must himself or herself be satisfied that there are reasonable grounds for the relevant suspicions which entitle the Warrant to be issued. The District Judge is not entitled to rely upon a mere averment of a member of An Garda Siochana that that Garda has reasonable grounds or suspicion. In the present case the learned District Judge did examine the Detective Inspector on oath and there was undoubtedly additional evidence, not just a mere statement of opinion. The Court must look not merely on the oral evidence but also on the information and the Draft Warrant. The Warrant itself is a prima facie evidence that the District Judge came to appropriate conclusions. The District Court is now a Court of record (cf Section 13 of the Courts Act, 1971). Its Orders are therefore matters of record. It is argued by the Respondents that the onus is on the Applicants to show that the District Judge was not satisfied of the matters of which she has stated herself to be satisfied in the Search Warrant. It is alleged that the Applicants are estopped from going behind the Order of the District Judge. The onus of all such matters rests on the Applicant ( O'Keeffe -v- An Bord Pleanala , [1993] 1 I.R. 39). Normally the Courts will not interfere with the District Judge within her jurisdiction unless it can be shown that no reasonable District Judge would have come to the conclusions, which she did, based upon the evidence before her. It is argued that there was ample evidence which would entitle her to come to the conclusion that it was appropriate to order a Warrant under Section 64 rather than a Production Order under Section 63. In particular there was evidence before her that there was a risk to the investigation if immediate access was not obtained. It was argued whether she regarded that risk as sufficient to find compliance with Section 64(3)(c)(iii) is, as it was submitted, a matter for her on the basis of the O'Keeffe case already cited.

42. The Applicants also relied on several English authorities and the Respondents in their written submission and their oral submission dealt with these various cases. In R. -v- Maidstone Crown Court Ex. P. Waitt , [1988] Crim. L.R. 384, a Divisional Court considered an ex-parte Search Warrant which had been granted pursuant to paragraph 12 of the First Schedule to P.A.C.E..

43. The central difference between P.A.C.E. and the Drug Trafficking Legislation is that Production Orders under P.A.C.E. are obtained on inter parties hearings and not ex-parte. Search Warrants are obtained on an ex-parte application. The Divisional Court (Lloyd L.J. and McPherson J.) quashed the Warrant observing:-

44. The above paragraphs appeal greatly to this Court. The primary concern of the Judge hearing the application must be so far as is practicable, to protect the rights of the citizen. We live in an era of fantastic and intrusive invasions of privacy. The State, the media and the many electronic devices have combined in a growing and worrying assertion that the invasion is allowable because of the battle against crime and corruption and also based on the alleged "public's right to know". These invasions are increasing but the Courts must be the restraining arm to protect privacy and only allow invasion into privacy where on balance it can be justified. In the present case justification is the specific legislation which is new and must be carefully considered and analysed by any Judge making an Order on foot of it. The right to privacy is now recognised as a constitutional right (McGee v. Attorney General , [1974] IR 284. This right is confirmed by the Supreme Court in the matter of a Ward of Court, 1995 2 ILRM 401.

45. The next case mentioned by Counsel on both sides is R -v- Southampton Crown Court Ex. p. J and P. [1993] Crim. L.R. 962. In that case the firm of Solicitors was the subject of an ex-parte search warrant. Furthermore, in that case the firm was itself the subject

46. The warrants were challenged successfully on three grounds in that case. Firstly, the warrant was found to have excessive width. This does not apply to the current warrant. Secondly, the warrant included privilege material while the warrant in this case expressly excludes same. The third ground suggests that the issuing Judge had not considered whether there were other ways in which the same material could be obtained. In the present case the Judge did consider this matter.

47. A warrant might be issued for the purpose of obtaining information which would assist the Gardai but it may also be used for the gathering of evidence necessary to pursue prosecutions. While the Gardai may have significant information they may still require documentary evidence which would be an essential part of any prosecution. Evidence gathering is as important as information gathering and is the necessary work of a Garda investigation. The foregoing line of authority was reviewed and endorsed in

48. The Divisional Court in R. v. Southwark Crown Court concluded:-

49. Finally, the Divisional Court held that in the particular circumstances of that case it was necessary for the Circuit Court Judge to give reasons for the decision to which he had come whereas in fact the entire procedures took a couple of minutes and the Circuit Judge was referred to practically nothing.

50. The Respondents pleaded that the nub of the matter is to be found in the ultimate conclusion of the Court in that case where it was held as follows:-

51. It is submitted that that is the basis for the decision rather than any particular time scale. There is no evidence that the learned District Judge had no experience of such warrants or that she was unfamiliar with the Act. The onus to prove such matters lies firmly with the Applicants. The maximum "ignorantia juris quod quisque scire tenetur non excusat" - (ignorance of the law, which everyone is presumed to know, excuses no one) is applicable. Here a Court of record has issued warrants and there is a presumption in favour of their legality. However, it is important to consider the information on oath which was made by the Garda Inspector which was before the learned District Court and it reads as follows:-

52. It is signed by the Garda Officer and is sworn before the learned District Judge. These recitals are basically the same as appear on the search warrant in which the District Judge holds that she is satisfied on hearing an application on oath on the various matters set out in the information and now repeated in the warrant. The other information and warrant are identical, save for the name Geraldine Gilligan instead of John Gilligan and the fact that she sometimes used the alias Matilda Dunne.

53. The Court was then referred to the jurisprudence of the European Court of Human Rights. In the case of Niemietz -v- Germany (1993) 16 EHRR 97 the lawyer's office was searched in pursuance of a criminal investigation. The European Commission and the Court of Human Rights found that the search was a violation of the lawyer's Article 8 rights to have his private and family life, his home and his correspondence respected. Furthermore, the interference was not justified or proportionate to the legitimate aims pursuant and in paragraph 58 of the Judgment, the Commission observed:-

54. At paragraph 74 of the Judgment the Commission stated:-

55. At paragraph 37 of this Judgment the Court stated:-

56. The Court concluded that there was a breach of Article 8.

57. The Judgment of the Court of Human Rights is not simply of persuasive authority. It has been accepted that in cases of doubt or where jurisprudence is not settled, the Courts should have regard to the Convention for the Protection of Human Rights, see R. -v- Crown Court ex. p. Customs and Excise [1989] All E.R. 673 at 677. The 1994 Act was designed in part to implement the provisions of the European Directive. The Respondents distinguished that case by submitting that it in fact impinged to a disproportionate extent on professional secrecy. It alleged that it is clear, both in terms of the warrant (which expressly excluded privileged documents) and of the evidence in terms of the manner of the inspection scrupulous care was taken to ensure that there would be no improper or disproportionate breach of client confidentiality. The Applicant then relied on the developing Anton Piller Orders. However, they exist merely for the furtherance of remedies and allows such an individual highly unusual access by force to another individual's property. It is a different situation in which a warrant has been sought by a member of An Garda Siochana on foot of an express statutory power provided by the Oireachtas in the war against drugs.

58. It is submitted that if the Court concludes that the publicity attending the search on the Applicants' premises was procured by a member of the Garda Siochana or a person to whom the Respondents are responsible that even if the Court were to conclude that the warrant was otherwise valid such circumstance would invalidate the warrant. If the warrant is invalid then the entry onto the premises was wrongful both at Common Law and is a trespass and also is, as a matter of constitutional law, a violation of the rights of property and privacy of citizens. The Respondents argue that even if the warrant is invalid that no cause of action survives. A bone fide execution by a Garda Officer on foot of a warrant, which on the face of it is valid enjoys the protection conferred on it by the Constabulary (Ireland) Act, 1836, Section 50. It is submitted that none of the Respondents who may or may not be vicariously liable for the actions of such Garda Officers equally cannot be responsible. Vicarious Liability cannot arise unless there is primary liability [ Deighan -v- Ireland, [1995] 1 I.L.R.M 88 [1995] 2 I.R. 56] where Flood, J. says:-

59. The Constabulary Act of 1856 was not pleaded and in fact was not mentioned by the Respondent until quite late in the hearing. Against protest from the Applicants' Counsel the Court granted permission to amend the defence by allowing reference to the Constabulary Ireland Act, 1836. However, this late amendment of pleadings might yet have consequences in relation to costs. Also, the question of the constitutionality of the Act was left open and can be argued, if need be, later in these proceedings. The Applicants submit that even if the warrants are not quashed in these proceedings the conduct of the Gardai or at least one or more members of the Gardai amounts to wrongdoing for which the Respondents are in law responsible. The information was deliberately leaked to the media. It is submitted that such conduct is not merely criminal as a breach of Section 9 of the Official Secrets Act and possibly Section 58 of the Criminal Justice Act, 1994 but also amounts to wrongdoing in the nature of misfeasance of public office. See Hogan and Morgan , Administrative Law in Ireland, 2nd Edit. 643-647. See also Deane -v- VHI , reported as Callinan & Ors -v- VHI , unreported S.C. 28/07/94 where Mr. Justice Blayney held that the exercise by the VHI of their powers in an unreasonable and unfair manner amounted to the tort of misfeasance of public office. It alleged that this conduct would amount to a deliberate and conscious breach of the constitutional rights and would also give rise to a claim for damages. It is regarded by the Applicant as significant that although an injustice has clearly been done that the Respondents took no steps to seek to remedy such injustice either by holding an enquiry, by apologising or by issuing a statement concerning the high reputations of the Hanahoes. The tort of misfeasance of public office is described in Halsbury's Laws of England, 4th Edit. Law 1 at p. 311 as follows:-

60. For the tort of misfeasance of public office to be made out there must be either a malicious act or a knowing and a conscious abuse of power. It was submitted that in the absence of a finding that there was a deliberate and conscious leak on the part of senior Garda management that there could be no finding of the tort of misfeasance of public office. If the Court found that an individual Garda or other officer of the State had either maliciously or in conscious breach of his public duty deliberately leaked the relevant information, the actions of such officer would be wholly outside the scope of his employment and the Respondents could not be liable. The clear evidence of all the Respondents' witnesses was to the effect that secrecy and discretion were fully impressed upon them as part of their obligations. It is further argued that if the Court concludes that the disclosure was not deliberate but nevertheless emanated from some careless conduct on the part of one or more Gardai, then it is submitted that such conduct amounts to negligence for which the Respondents are also in law responsible. Such conduct clearly comes within the test of causes of action in negligence set out in Ward -v- McMaster , [1988] I.R. 337 at p. 349 where McCarthy J. said:-

61. Where the judgment of a Court of competence jurisdiction is brought under review, Lord Wensleydale has indicated the degree of weight attributable to it:-

62. It was submitted that if there is a statutory duty of secrecy it is owed not to the public but to the State. The Respondents argued that there is no duty on the part of a member of the Gardai of care towards a citizen in relation to information getting out concerning matters which will in any event come into the public domain in the fullness of time.

63. This Court does not accept such a proposition.

64. The submission further continues:-

65. This Court is satisfied as a matter of probability, based on the evidence which is being recited in this Judgment, that it was clearly negligent to allow this to happen. It produced an immediate result which was described as "a media circus". The tort was then complete. The damage was done. Admittedly, as the Respondents have submitted on many occasions in their submissions, the fact of the raid might have come out at a later stage. It would certainly get out in the course of any trial based on information received from this raid. However, the information was relayed so as to create "a media circus" and to highlight the search of the Solicitors office. It is essential in our society that lawyers of the highest ability should be available to provide a full and proper defence to persons accused of criminal offences. Unfortunately, public opinion does not always accept that principle and sometimes lawyers are identified with their clients which clearly violates Principle 18 of the United Nations Basic Principles on the role of lawyers. It is a fundamental right in a democratic society that an accused person be fully appraised of all charges made against them and that they have the choice of legal representation. This right is embodied in Article 6 of the European Convention of Human Rights. It would undermine our society if that were not so. The Courts must protect these standards. Sometimes criminal lawyers are wrongly accused of colluding with their clients and sharing in the profits of crime. These are very serious allegations and should not be accepted until there is proof to establish them. The vast majority of criminal lawyers provide wonderful work to secure liberty and to protect our democratic institutions. Sometimes a lawyer might be regarded, because of his success, as an enemy of the State. They are in fact a bulwark to protect justice and the people and are essential in any real democracy. In this case there is no evidence as to why anyone would want to damage the Hanahoe firm as they are well known and extremely successful. They have appeared for the Hanahoes and also appeared for the late Ms. Veronica Guerin.

66. There is no doubt that they suffered damage. They cannot prove any specific damages. They have received abuse and they are perceived by people who do not have a proper understanding of our system as being identified as people who are under suspicion of crime. The Law Society felt it was sinister and intimidatory in the eyes of some of its members.

67. This Court has already found as a matter of probability that the information leaked to the press came from a Garda source. Since they have accepted in their written submission that "careless conduct on the part of one or more Gardai would amount to negligence under the principles set out in Ward - v - McMaster , [1988] I.R. 337" , the Court doth find the Respondents negligent. The Court has already made several findings. They can be summarised as follows:-

68. The learned District Judge had the two draft warrants and the informations and the oral evidence of Inspector McGinn before her. Her Court is now a court of record and therefore the maxim, "Omnia praesumuntur rite et solenniter saesse acta donec probetur in contrarium (co. Litt 232) - Everything is presumed to be rightly and duly performed until the contrary is shown" applies.

69. This was a deliberate leaking to the media which caused considerable embarrassment to Messrs. Hanahoe & Company. It was intended to embarrass and distress Messrs. Hanahoe & Company and it most certainly did. It was an outrageous interference with their privacy and their constitutional rights. At a late stage in this trial, the Respondents got permission to plead an additional defence. The Court granted permission. The amended pleading reads:-

70. It is presumed that the word "involved" should read "invalid". Also Section 50 of The Constabulary (Ireland) Act, 1836 deals with the wives of bankrupts! I assume they are relying on Section 19 of that Act (6th of William IV C. 13) which reads:-

71. The present Chief Justice has dealt with this section in the case of Walsh -v- Ireland & The Attorney General , unreported decision of the Supreme Court, 30/11/94. That was a case where a warrant was issued, that the wrong man was arrested and charged. Basically, it was really a case of mistaken identity.

72. I was concerned about the application of that section to facts of this case and therefore put it in, with some other legal problems, which were discussed by Counsel in open Court which was done on Tuesday, the 14th October last. This section purports to limit the damages for a wrong done to him by a constable and even if it be constitutional, has to be read very narrowly. Senior Counsel for both parties agreed that if the Court held there was actionable negligence that the section does not apply.

73. Subject to the views of Counsel, I hold that this section does not provide a defence and do not decide whether it be constitutional or not. In the circumstances I will award damages. I have already indicated the negligence in this case. The fact that the raid took place would almost certainly get out at a later stage, in the opinion of this Court is not really relevant. This was a wilful act done to damage the Hanahoes. Mr. Hanahoe described it as a media circus. They cannot prove actual loss, but people came in and abused them and they were perceived by the media as being involved in the murder of Veronica Guerin and in money laundering. The Court is satisfied from the evidence from various senior Solicitors, including former Presidents of the Law Society and from the Hanahoe brothers that it has done them considerable and probably irreparable harm. Since it is accepted by the State that they are liable under the decision of Ward -v- McMaster on a finding of negligence, this Court must mark its strong disapproval of this conduct and to try and make some amends to the Applicants for the damage done. I award £80,000 damages, to cover damages to date and £20,000 damages for the future and I hope that this judgment will clarify public perception of the wrong that was done.