Hypothetical question regarding property damage

Knarr

Hi, I have a legal question about a 'completely fictitious scenario'.

Assume the Gardai, with a search warrent, were to damage your uncle or aunts door while entering their property looking for items of evidence in to relation to something the gardai believe you did. (and of course, if they were find nothing incriminating in that property)

Are your uncle and aunt entitled to get their door repaired?

What if the state claims agency refuses to pay for the damage to their property? - for example, a reason may be that the Gardai are allowed use whatever force necessary to enter a premises.

What could one do, hypothetically speaking. And how successful would it be in achieving the goal of getting a repair.

It would seem completely unjust that innocents (aunt and uncle, for example) would be left with a bill to repair damage to their own property.

FreudianSlippers

It is my understanding that if they have a warrant, it doesn't matter if they find anything or not, they are justified in forcing entry into the property.
Obviously there is a reason for granting the warrant so while they may be 'innocent' as in they have committed no crime, clearly there was the belief that they may have.
I'm not a huge criminal law fan, so I'm open to correction on this.

Knarr

OisinT wrote: »

It is my understanding that if they have a warrant, it doesn't matter if they find anything or not, they are justified in forcing entry into the property.
Obviously there is a reason for granting the warrant so while they may be 'innocent' as in they have committed no crime, clearly there was the belief that they may have.
I'm not a huge criminal law fan, so I'm open to correction on this.

Thanks Oisin.

The issue here is not whether they can enter a property, as, well, if they have a warrant then there is no question.

But when an innocents property has been damaged - then why should the state not be obliged to pay for that damage?

Since it is the State claims agency that manages and investigates claims then I dont think the question involves the Gardai.

FreudianSlippers

The point is that the warrant was issued by a Judge that was satisfied that there were/are reasonable grounds to search that property (or Garda Superintendent in the case of Offences Against the State Act 1939).

To carry out that search, they are entitled to use force. For example Section 6(1) of the Criminal Law Act 1997:
For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be, and such warrant or order may be executed in accordance with section 5 .


Section 48(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001:
A warrant under this section shall be expressed and shall operate to authorise a named member of the Garda Síochána, alone or accompanied by such other persons as may be necessary—
(a) to enter, within 7 days from the date of issuing of the warrant (if necessary by the use of reasonable force), the place named in the warrant...


Section 26(2) Misuse of Drugs Act, 1977:
A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter if need be by force the premises named in the warrant, to search the premises and any persons found therein, to examine any substance or article found therein, to inspect any book, record or other document found therein and, if there is reasonable ground for suspecting that an offence is being or has been committed under this Act in relation to a substance or article found on the premises or that a document so found is a document mentioned in subsection (1) (b) of this section or is a record or other document which the member has cause to believe to be a document which may be required as evidence in proceedings for an offence under this Act, to seize and detain the substance, article or document, as the case may be.


and so on...
The point is that while the "aunt and uncle" may be "innocent" (eg not found guilty of any crime), the Gardaí still have the authority granted to them by Judge (or Superintendent as aforementioned) to enter that property by force. The fact that nothing was found is more to the question of why the warrant was granted in the first place.
Furthermore, if they completely trashed the place looking for something, then questions and/or complaints may arise there.
If you want to complain, I believe the complaint is made to the Garda Ombudsman.

As I said before, I stand corrected on all of the above. I will not be venturing away from the Four Courts very frequently!


EDIT: I sort of see what you're getting at here by calling the aunt and uncle "innocent" (as in have committed no crime)... but they don't have to have committed a crime to be subject to a warrant. Sure, if you're suspected of child pornography and the Gardaí search your house and computer, but they find nothing - That doesn't necessarily mean that you had no child porn in your house and that there was not reasonable grounds for suspecting that you did. not calling you or your aunt and uncle child pornographers!

Knarr

OisinT wrote: »

The point is that the warrant was issued by a Judge that was satisfied that there were/are reasonable grounds to search that property (or Garda Superintendent in the case of Offences Against the State Act 1939).

To carry out that search, they are entitled to use force. For example Section 6(1) of the Criminal Law Act 1997:
For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be, and such warrant or order may be executed in accordance with section 5 .


Section 48(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001:
A warrant under this section shall be expressed and shall operate to authorise a named member of the Garda Síochána, alone or accompanied by such other persons as may be necessary—
(a) to enter, within 7 days from the date of issuing of the warrant (if necessary by the use of reasonable force), the place named in the warrant...


Section 26(2) Misuse of Drugs Act, 1977:
A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter if need be by force the premises named in the warrant, to search the premises and any persons found therein, to examine any substance or article found therein, to inspect any book, record or other document found therein and, if there is reasonable ground for suspecting that an offence is being or has been committed under this Act in relation to a substance or article found on the premises or that a document so found is a document mentioned in subsection (1) (b) of this section or is a record or other document which the member has cause to believe to be a document which may be required as evidence in proceedings for an offence under this Act, to seize and detain the substance, article or document, as the case may be.


and so on...
The point is that while the "aunt and uncle" may be "innocent" (eg not found guilty of any crime), the Gardaí still have the authority granted to them by Judge (or Superintendent as aforementioned) to enter that property by force. The fact that nothing was found is more to the question of why the warrant was granted in the first place.
Furthermore, if they completely trashed the place looking for something, then questions and/or complaints may arise there.
If you want to complain, I believe the complaint is made to the Garda Ombudsman.

As I said before, I stand corrected on all of the above. I will not be venturing away from the Four Courts very frequently!

Oisin, once again, thank you for that valuable insight. And you are absolutely right with the sections above.

But from those sections you have quoted I have a question.

""Garda Síochána may enter (if need be, by use of reasonable force) and search any premises""

The way I interpret the above is that it outlines something completely separate from whether a person should be compensated for damage resulting from force used.

As in, the above outlines the powers Gardai can use, but that is as far as it goes. - It does not address whether someone (or an innocent in this case) should be compensated for damaged property.

Or, is it the case that from the legal powers authorised, anything resulting from its use including personal injury or property damage are completely allowable and non-compensatable. (comparable to an injury while restraining an individual)

If in the case with the scenario above where innocents including quite possibly the suspect, are found to be guilty of nothing, and yet still have to pay for the property damage - then I think there is an incredible injustice taking place.

It boggles the mind to think why an innocent person should have to pay for damage to their private property by gardai.

FreudianSlippers

It's not necessarily that they are not guilty of anything, just that no evidence was obtained via the search.

I think the problem lies with your perception of innocence - the Judge obviously believes the Gardaí that there is evidence of some crime located in the property being searched or else the warrant wouldn't have been granted. This could be preliminary to bringing a case against the party/parties. Lets say it's stolen property and the Gardaí believe that while I stole the property, my aunt and uncle may have it in their house (whether knowingly or not). The warrant can be obtained and executed to search their premises for handling or possessing stolen property.

Now here's where I think I can finally answer your question: AFAIK if the Gardaí are executing a warrant they knock on the door and announce themselves - 2 possible scenarios arise here:
1) People are home
2) People are not home.

If people are home, 2 further scenarios arise:
1a) They accept the warrant and allow the Gardaí to enter and conduct the search.
1b) They do not allow the Gardaí to conduct the lawful search.

To break it down even further, in the case of scenario 2 or scenario 1b the Gardaí can break down the door (or whatever it is they do?!) and enter the premises to conduct the search. If nobody is home then the Gardaí do the search and try not to trash the place. If they DO trash the place (breaking things, etc) you may have grounds for complaint and should probably speak to the Garda Ombudsman and/or a Solicitor (if they're searching your place or a family member's place... you're probably going to need a solicitor soon anyway!). Again AFAIK, it is irrelevant whether the search procures any evidence or not - forcing entry into the house is acceptable.

The other part of your question seems to be about physical injury. I'd say this could arise in 1b. The Gardaí force entry and the occupants put up a physical resistance to the search and are somehow injured by the Gardaí when they try to carry out the search. This is probably similar to the reasonable force being used by Gardaí in carrying out an arrest. Once the force is reasonable in the circumstances, then there is likely no claim.

In short, I believe the answer is that they do not have to be compensated for damage caused once the force used was reasonable in the circumstances. I hope that answers your question, and it probably goes without saying that if this is anything more than hypothetical see a solicitor.

Knarr

OisinT wrote: »

It's not necessarily that they are not guilty of anything, just that no evidence was obtained via the search.

I think the problem lies with your perception of innocence - the Judge obviously believes the Gardaí that there is evidence of some crime located in the property being searched or else the warrant wouldn't have been granted. This could be preliminary to bringing a case against the party/parties. Lets say it's stolen property and the Gardaí believe that while I stole the property, my aunt and uncle may have it in their house (whether knowingly or not). The warrant can be obtained and executed to search their premises for handling or possessing stolen property.

Now here's where I think I can finally answer your question: AFAIK if the Gardaí are executing a warrant they knock on the door and announce themselves - 2 possible scenarios arise here:
1) People are home
2) People are not home.

If people are home, 2 further scenarios arise:
1a) They accept the warrant and allow the Gardaí to enter and conduct the search.
1b) They do not allow the Gardaí to conduct the lawful search.

To break it down even further, in the case of scenario 2 or scenario 1b the Gardaí can break down the door (or whatever it is they do?!) and enter the premises to conduct the search. If nobody is home then the Gardaí do the search and try not to trash the place. If they DO trash the place (breaking things, etc) you may have grounds for complaint and should probably speak to the Garda Ombudsman and/or a Solicitor (if they're searching your place or a family member's place... you're probably going to need a solicitor soon anyway!). Again AFAIK, it is irrelevant whether the search procures any evidence or not - forcing entry into the house is acceptable.

The other part of your question seems to be about physical injury. I'd say this could arise in 1b. The Gardaí force entry and the occupants put up a physical resistance to the search and are somehow injured by the Gardaí when they try to carry out the search. This is probably similar to the reasonable force being used by Gardaí in carrying out an arrest. Once the force is reasonable in the circumstances, then there is likely no claim.

In short, I believe the answer is that they do not have to be compensated for damage caused once the force used was reasonable in the circumstances. I hope that answers your question, and it probably goes without saying that if this is anything more than hypothetical see a solicitor.

Yes Oisin that has helped my understanding further. Although the focus of your answer is geared around the basis for entering the 'hypothetical' premises, or the build up to it/during it.

And im sorry to drag this on because you really have attempted to understand the scenario

But, two important details I should add to the hypothetical scenario if I havnt already. Irrespective of what the Judge and gardai suspected previous to the raid on "aunty and Uncles" home, - after it, and in the present, they have no evidence and found nothing. Infact, their suspect turns out to have been the wrong person and a mistaken identity - hypothetically speaking.

My question is about where the home owner in the above fictitious scenario stands now regarding the damage to their property - for something they had nothing what-so-ever to do with.

Thanks again Oisin.

FreudianSlippers

Ah well if it is the wrong person altogether then they may have cause to complain: Like house 61 instead of 60, or Michael Smith instead of Sean Smith etc.
But there is a difference between that and not having found the evidence they are looking for to secure a conviction - as in they have the correct person, but not found the evidence against that person yet. (which obviously isn't what you're thinking of)

Your best bet is to ring the Garda Ombudsman and explain the situation. If nothing arises from that conversation then definitely contact a solicitor - to whom the exact details can be given.

Sorry I can't be of any more help, but the thread is already verging on giving advice
But your extra info definitely made it crystal clear what you were getting at. Doubt the mods will buy the "hypothetical" nature of the question now though :P

Hope that helps - the Garda Ombudsman should definitely be able to at least point you in the right direction and if all else fails ring your solicitor.