McCarthy (Cain) v The Chief Constable of the Police Service of Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Weatherup LJ |
| Judgment Date | 2016 |
| Neutral Citation | [2016] NICA 36 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 22 September 2016 |
1
Neutral Citation No. [2016] NICA 36 Ref:
WEA10025
Judgment: approved by the Court for handing down Delivered:
22/09/2016
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_________
CASE STATED FROM THE COUNTY COURT FOR THE
DIVISION OF BELFAST
_________
BETWEEN:
CAIN McCARTHY
Appellant;
-and-
THE CHIEF CONSTABLE OF THE POLICE SERVICE
OF NORTHERN IRELAND
Respondent.
________
Weatherup LJ, Weir LJ and McBride J
________
WEATHERUP LJ (delivering the judgment of the court)
[1] This is an appeal by way of Case Stated from the decision of Her Honour
Judge Smyth upholding the decision of District Judge McNally to refuse the
appellant’s application under section 31 of the Police (Northern Ireland) Act 1998
(“the 1998 Act”) for the return of property, namely, a quantity of tablets known as
legal highs, lawfully seized by the Police Service of Northern Ireland on 17 January
2014. Mr Sayers appeared for the appellant and Mr Lennon for the respondent.
[2] The factual findings set out in the Case Stated were as follows –
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“[2] The judgment is in Appendix B. The facts are
not in dispute. On 17 January 2014 the appellant was
stopped and searched by Constable McCallum
pursuant to section 23 of the Misuse of Drugs Act
1971. The appellant was found to be in possession of
63 tablets and was arrested on suspicion of possession
of drugs. Further analysis of the tablets revealed that
they included so-called legal highs, which are not
prohibited under the Misuse of Drugs Act and the
PPS directed no prosecution.
[3] At the relevant time, the appellant was
regarded by the PSNI Reducing Offending Unit as a
“priority offender”. Part of the role of police officers
in this Unit is to identify triggers for offending
behaviour, with a view to achieving the rehabilitation
of offenders.
[4] A history of the appellant’s contact with the
PSNI between 2010 and December 2014 was provided
to the Court in a document entitled ‘Appendix A’.
The appellant takes no issue with its contents. In
summary, the appendix sets out the details of
numerous occasions when the appellant was
apprehended for offending behaviour whilst under
the influence of substances. The substances included
legal highs and prescription drugs as well as aerosols
and alcohol.
[5] While under the influence of these substances,
it is accepted that the appellant has acted aggressively
and in a manner likely to cause harm to himself and
others. An incident of particular concern occurred on
3 February 2013 when the appellant had consumed
legal highs and other substances and his behaviour
resulted in an armed response team being tasked to
his mother’s home. The appellant smashed items of
furniture and took a knife to his bedroom, threatening
to cut his wrists. On 9 February 2013 and 8 March
2013, whilst on bail for offences of criminal damage,
the appellant was found to be highly intoxicated
through legal highs in breach of his bail conditions.
[6] Following the decision of the PPS not to
prosecute the appellant for possession of the legal
highs seized on 17 January 2014, the PSNI made an
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McVeigh's (Sean) Application (No2)
...or under the Torts (Interference with Goods) Act 1977, see the recent discussion by the Court of Appeal in McCarthy v Chief Constable [2016] NICA 36. [56] The applicant contends that the power to apply for recovery of property seized does not provide judicial oversight of a decision to reta......