Sunday 25 September 2016

Sleeping man woken by 'trespassing' garda on his way to search another property awarded 9k

Ray Managh

Published 20/07/2016 | 12:15

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A garda, using his initiative to gain entry to a block of flats after seeing a partly open window, committed “a significant trespass” into a one-room studio where a man and his partner were asleep in bed, a judge decided today.

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Judge Francis Comerford, in the Circuit Civil Court, said the open window was a temptation to Garda Kevin Lawless but he had no idea who was in the flat for which the gardaí had no search warrant. He said there was a warrant to enter other apartments in the building.

Barrister John Ferry had earlier told the court that Department of Justice civil servant Gerard Forbes had been wakened by a torch shining in his face and raised voices from the window used to gain entry.

Mr Ferry, who appeared with Frank Ward solicitors, said it was two-and-a-half years after the November 2011 incident that Mr Forbes had been supplied with a warrant, albeit for other flats in the complex.

Judge Comerford said in a reserved judgment that Mr Forbes had been given the run-around by the authorities and the fact that there had been a lack of co-operation reflected badly on the gardaí.

Peter Leonard, counsel for the Garda Commissioner and the State, had told the court the gardaí had a warrant to search a number of flats at Bessborough Parade, Rathmines, Dublin, (not including Mr Forbes’s studio) and an arrest had been made of “a female target” in another area of the house.

Judge Comerford said he accepted that after Garda Lawless had gained entry through the window he had been given consent by Mr Forbes to continue through his studio to open the front door of the building to allow other gardaí gain access.

The judge said that Garda Lawless had entered Mr Forbes’s flat before that consent had been given and on the garda’s own evidence there was a significant trespass into Mr Forbes’s dwelling place.

“I am satisfied there was consent for the entry between the time Garda Lawless shone the torch on Mr Forbes and the time he entered the flat,” Judge Comerford said.

He said the gardaí didn’t have sufficient regard for a private dwelling place they were seeking to use to gain access to another flat for which they had a warrant. The initiative shown by Garda Lawless had gone too far.

Judge Comerford said he did not accept evidence by Mr Forbes that a second garda had entered his room after Garda Lawless and had assaulted him by pushing him or throwing his mobile phone across the room when he had attempted to phone his local garda station.

Awarding Forbes €9,000 damages for a “trespass of a very transient nature,” Judge Comerford said it had nevertheless been more than a technical trespass heightened by the fact that the entry had been into a bedroom.

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