JUDGE James McNulty said he would resist a solicitor’s recommendation to state a case to the High Court.
He said he would do some research himself after an interesting point of law was raised at Skibbereen District Court.
Eamonn Fleming, the solicitor representing Kevin Lawlor of Lurriga, Skibbereen, who is facing three charges of drug possession, challenged the right of gardaí to search his client’s houseboat at Drom in Leap.
Gda Andrew Manning gave evidence that he and two other members of the gardaí were given permission to search the boat shortly after 7pm on August 15th 2022.
Gda Manning said they did not have a search warrant but they believed he was in possession of controlled substances.
While on the boat, the garda said the accused handed over a small amount of cannabis herb and a small amount of cannabis resin, but they proceeded with the search and found a small amount of LSD.
‘This is his dwelling,’ insisted Mr Fleming, who argued that the gardaí are obliged, in law, to obtain a search warrant if they want to search ‘a premises.’
‘This boat,’ Mr Fleming added, is a dwelling under the Convention of Human Rights and, in that regard, his client has inviolable rights.
Insp Ian O’Callaghan argued that the accused had given the gardaí permission to come on board and search the vessel. The inspector also stated that gardaí have a right to search ‘any vehicle, or vessel, in which there is a suspicion that drugs can be found.’
Judge McNulty said the definition of premises is a structure, a building. But Mr Fleming argued that the Supreme Court included, as a place of residence, a caravan, which is a mobile structure.
‘This boat is his place of residence. It has his postal address,’ Mr Fleming stated.
The judge reminded Mr Fleming that his client gave consent, but Mr Fleming said: ‘It would be a brave man who would ask three members of the gardaí if they had a search warrant.
‘He didn’t ask,’ he added, ‘because he presumed they had one.’
Judge McNulty adjourned the case to the September 12th sitting of Skibbereen District Court to give himself, Mr Fleming, and the gardaí time to consider the law.
