Tuesday 20 March 2018

Solider acquitted on cocaine charges by direction of Judge

Paul Deering

A soldier has been acquitted of the possession and sale or supply of €543 worth of cocaine by a jury following a direction from the trial Judge Keenan Johnson.

Anthony Clarke (35) of Oaklawn, Pearse Road, Sligo pleaded not guilty to the possession of cocaine and having it for sale or supply on August 24th 2014.

The not guilty verdict came on the second day of the trial following legal argument in the absence of the jury on the opening day surrounding the accused's arrest at what was called a crime checkpoint at Castlebaldwin on Sunday, August 20th 2014.

When the accused's car was searched subsequently at Sligo Garda Station, seven grammes of cocaine was found concealed in the vehicle, the Circuit Court trial before a jury of seven woman and five men were told.

In the jury's absence on the first of the two day trial Clarke's defence counsel, Mr Michael Bowman SC with Mr Keith O'Grady BL, instructed by Mr Gerard McGovern, solicitor had argued that Gardaí had not proper authority under which to set up the checkpoint and that it had been administered in an arbitrary fashion in that there was no defined protocol as a basis for stopping any vehicle and undertaking a search of it and its occupants.

The trial was briefly opened by Ms Dara Foynes BL (prosecuting) with State Solicitor Mr Hugh Sheridan before Judge Johnson acceded to the defence application which he had earlier ruled upon in the jury's absence.

Ms Foynes outlined how the crime checkpoint was set up on a traffic island at Castlebaldwin at 10am by Garda Eamon McDonnell and Detective Garda Lisa Sewell and Detective Garda Peter Cawley.

The accused's car was stopped and Garda McDonnell became suspicious and formed the opinion the driver may be in control of illegal substances. A search took place of the car and an item was found.

The defendant and the car were brought to Sligo Garda Station. A search of the accused proved negative and he was released. The car was then searched and 7gms of cocaine was found concealed which had a street value of €543.

Garda McDonnell told the court he was a member of the Drugs Unit based in Sligo and was using an unmarked Garda car which had its blue lights on when the checkpoint was being operated.

The Gardaí were in plainclothes but were wearing clothing which identified themselves as Gardaí.

One of the cars which Garda McDonnell stopped was a red 1998 Leitrim registered Ford Fiesta. The driver was wearing an army uniform and Garda McDonnell spoke with him.

The Garda agreed he became suspicious.

At this point, the trial was halted with Judge Keenan Johnson informing the jury he was directing them to find the accused not guilty by direction.

He outlined how he believed that the Gardaí did not have a valid basis to stop someone at the crime checkpoint. The right by Gardaí to stop and search someone had to be exercised in a careful fashion and proper protocol hadn't been used in this case, he said.

Earlier, in his eight page ruling on the matter in the absence of the jury, Judge Johnson stated Ms Foynes made the point that Gardaí had a common law power to stop vehicles in order to detect and prevent crime and that Garda McDonnell was using this power when he stopped the accused.

She stated that Garda McDonnell had observed a smell in the car and saw that he was nervous and Det Garda Sewell had told him the accused was shuffling with his left hand in the footwell prior to being stopped and these were reasonable grounds for undertaking the search.

Garda McDonnell found anabolic steroids in the accused's rucksack which was on the back seat of the car.

The Judge ruled that Garda McDonnell on the basis of the smell from the car and what he was told by Garda Sewell was sufficient to give reasonable cause to carry out a search and to make a further request that the accused got to the Garda Station for a full body search and also that of the car.

This did now however address the objections raised by Mr Bowman to the setting up of the checkpoint said Judge Johnson.

He noted Garda McDonnell did not set up the checkpoint pursuant to the road traffic acts and his belief was that in operating the crime detection checkpoint his power to stop and search arose under Section 19 of the Road Traffic Act 1961.

Under re-examination by Ms Foynes the Garda eventually averted to his inherent common law power to stop and search.

"It is abundantly clear to me that in establishing this crime prevention checkpoint, Garda McDonnell operated under the misapprehension that his entitlement to stop and search arose under Section 19 of the Road Traffic Act as opposed to common law," said Judge Johnson. This was important as the act gives Gardai specific powers to stop and search for the purposes of enforcing road traffic legislation.

"However, in the normal course of policing duties the rationale for the establishment of any crime checkpoint or drugs checkpoint should be clearly set out and documented. Such a system would prevent any abuse or perceived abuse of checkpoints and as such will strengthen public confidence and protect the Gardaí from charges of capriciousness or arbitrariness," said Judge Johnson.

He said it would appear that in the setting up of checkpoints for crime prevention no written authorisation is required from a senior office. He believed such should be the case setting out the location of the checkpoint, its duration and purpose. He stated it was arguable this was necessary in order to ensure the protection of citizen rights in respect of privacy, bodily integrity and movement.

Judge Johnson said he was satisfied that Garda McDonnell set up the checkpoint for the bona fide reasons of detection and prevention of crime but MrBowman strongly contended it was operated in an arbitrary fashion in that vehicles were stopped on a random basis without any proper criteria being in place to justify the stopping of the vehicles or their occupants.

Under cross examination, Garda McDonnell accepted the checkpoint was exercised in an arbitrary manner and contingent on whatever view he had when he decided to stop a person.

"He (Garda) went on to say that he stopped the accused because he was intrigued by his army uniform.....On his own admission Garda McDonnell had no reason or system in place on the date which justified the stopping of the accused," said the Judge.

He said he was clear the power to stop at the checkpoint was exercised in an arbitrary fashion. It therefore followed that the subsequent search of the accused and his vehicle was illegal and the results thereof were inadmissable.

Judge Johnson said when the Garda set up the checkpoint he should have had a criteria set out on foot of which he would stop people. This criteria has to be justified on the basis that it is fair, reasonable and proportionate.

The Garda could have determined that in order to prevent and detect crime, he was going to stop every car that travelled from Dublin that day or he could have stopped all persons under the age of 40 as these were more likely to be involved in the peddling or drugs or the perpetration of crime.

He said there should be a protocol in place which authorises the setting up of checkpoints their location, purpose and duration.

Judge Johnson added his comments refer exclusively to crime checkpoints and not those under the road traffic acts.

Sligo Champion