An application pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961. Paul Thorpe v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 17 February 2006
• Neutral Citation: [2006] IEHC 319
• Court: High Court
• Docket Number: [2005 No. 1174 SS]
• Date: 17 February 2006

[2006] IEHC 319

THE HIGH COURT

[No. 1174 SS/2005]

THORPE v DPP

IN THE MATTER OF SECTION 52(1) OF THE COURTS

(SUPPLEMENTAL PROVISONS) ACT, 1961

BETWEEN

PAUL THORPE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994

TEXTBOOK OF CRIMINAL LAW 2ED 1983 487

HOLDSWORTH HISTORY OF ENGLISH LAW 5ED VOL 3 603

JUSTICES OF THE PEACE ACT 1360

R v COUNTY COURT QUARTER SESSIONS APPEALS COMMITTEE 1948 1 KB 670

POYNING'S ACT 10 HEN 7 IR CHAP 22

PETTY SESSIONS (IRL) ACT 1851 S10

CRIMINAL JUSTICE (PUBLIC ORDER) 1994 S6

CRIMINAL JUSTICE (PUBLIC ORDER) 1994 S24

CRIMINAL JUSTICE (PUBLIC ORDER) 1994 S26

O'CONNOR IRISH JUSTICE OF THE PEACE 2ED 1915

TANNER, EX PARTE JUDGMENT 8 JULY 1889 REPORTED IN JUDGMENTS OF THE SUPERIOR COURTS IN IRELAND 1903

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES 1994 412

DAVIS, EX PARTE 1871 35 JP 551

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S54

GREGORY v WINDLE 1994 3 IR 613 1995 1 ILRM 131 1994 10 2954

STEEL v UK 1998 ECHR 603

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(5)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S16

KING v AG 1981 IR 233

AG v CUNNINGHAM 1932 IR 28

KELLY v O'SULLIVAN & DPP 1991 ILT 126 1990 7 1996

O'CONNOR IRISH JUSTICE OF THE PEACE 2ED 1915 VOL 1 31

WALSH CRIMINAL PROCEDURE 2002 157

CANTWELL v STATE OF CONNECTICUT 1940 310 US 296

SAICE v MID-AMERICA BANK 1999 USDC LEXIS 20845

GARNER v LOUISIANA 1961 US 157

MCCONNELL v CHIEF CONSTABLE OF THE GREATER MANCHESTER POLICE 1990 1 AER 423

RUSSELL ON CRIME 1964 12ED 660

SMYTH v DONNELY 2002 SC (JC) 2001 SLT 1007

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7

R v LEFEBVRE 1982 1 CCC (3d) 241

CANADIAN CRIMINAL CODE S8(a)

DOOLAN v DPP 1992 2 IR 39

WILLIAMS ARREST FOR BREACH OF THE PEACE 1954 CLR 578

HALPIN v RICE 1901 2 IR 593

HARKIN, EX PARTE 1889 2 LR 1 427

DUBLIN POLICE ACT 1842

TOWN POLICE CLAUSES ACT 1847

MERCHANT SHIPPING ACT 1894

SUMMARY JURISDICTION ACT 1908

MCCANN 2001 1 WLR 1084

CLINGHAM (FORMERLY C, A MINOR) v ROYAL BOROUGH OF KENSINGTON & CHELSEA 2002 UKHL 39

CRIME & DISORDER ACT 1998 S6 (UK)

PUBLIC ORDER ACT 1986 S5(1)(a) (UK)

JORDAN v GIBBON 1863 8 LT 391

LOCKLEY 1864 4 F & F 155

GREEN v BARTRAM 4 CAR & P 308

REECE v TAYLOR 5 DE G & SM 480

CRIMINAL LAW:

Offences;

WORDS AND PHRASES:

âÇÿBreach of the peace'

Summary prosecution - Breach of peace - Whether âÇÿbreach of peace' contrary to common law an offence known to law - Whether offence of breach of peace could be prosecuted in District Court - Whether breach of peace capable of taking place on private premises - Whether common law power of arrest for breach of the peace abolished by Criminal Justice (Public Order) Act 1994 (No 2) - AG v Cunningham [1932]IR 28, Kelly v O'Sullivan (1990) 9 ILTR 126 and McConnell v Chief Constable [1990] 1 WLR 364 followed - Case stated answered in favour of DPP (2005/1174SS - Murphy J -17/2/2006) [2006] IEHC 319; [2007] 1 IR 502 - DPP v Thorpe

The District Court stated a case on a point of law for the opinion of the High Court as follows: "Is the offence of the breach of the peace contrary to common law known to law? If the answer to that is yes, may the offence be prosecuted in the District Court and, if so, what is the available penalty?"

Held by Murphy J. in answering the questions in the affirmative and indicating that the penalty resultant on conviction was a matter for the District Court acting within the sentencing limits of the District Court that a breach of the peace contrary to common law was an offence known to common law. The common law offence was not abolished by the Criminal Justice (Public Order) Act 1994.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Roderick Murphy delivered on the 17th day of February, 2006

1. Case Stated

2 On 28th July, 2005, Judge Catherine Murphy, judge of the District Court assigned to the Dublin Metropolitan District stated a case on the point of law for the opinion of the High Court in relation to breach of the peace.

3 The facts prompting the case stated were as follows.

4 On 20th September, 2004, at Swords District Court, the applicant appeared on charge that on 20th February, 2004, he used threatening and abusive language and became very aggressive when asked to leave 36 Clonshaugh Glen, Priorswood, Dublin and refused to return a key thereby causing a breach of the peace contrary to common law.

5 Before entering upon the hearing of evidence the matter, counsel for the accused made an application to have the matter dismissed on the basis that the charge before the learned trial judge showed no offence known to law or alternatively that the District Court had no specific jurisdiction to impose a penalty in respect of such a charge. It was submitted that a breach of the peace contrary to common law was a power of entry and arrest but was not, of itself, an offence as would be, for example, an offence under the Criminal Justice ( Public Order) Act, 1994. No specific penalty was known in respect of the charge of breach of the peace contrary to common law.

6 The prosecuting sergeant submitted that a person may be arrested and charged with breach of the peace contrary to common law in circumstances where the provisions of the Criminal Justice ( Public Order) Act, do not apply, namely in private and not public places.

7 The question upon which the opinion of the High Court sought in relation to those facts and submissions is as follows:-

"Is the offence of the breach of the peace contrary to common law known to law?

If the answer to that is yes, may the offence be prosecuted in the District Court and, if so, what is the available penalty."

2. Submissions on behalf of the Applicant

8 2 2.1 George Birmingham, S.C., with Cathal McGreal, submitted that the formula of words "breach of the peace contrary to common law," connotated a power of arrest. It is a means of enforcing the appearance before court of a person whom a garda, or indeed any one citizen, finds committing a breach of the peace. He referred to Glanville Williams, Textbook on Criminal Law, 2nd edition (1983) at 487 where the various powers of summary arrest are referred to —

"Any one can arrest at common law for a breach of the peace. "Breach of the peace" is a traditional legal expression and is a ground of arrest though it is not the name of an offence."

9 Holdsworth, A History of English Law, Volume III, 5th Edition at 603 says:-

"...A constable may arrest anyone who in his presence commits a mere breach of the peace."

10 That power was made statutory by the passing of the Justices of the Peace Act 1360 (34 Edw. III).

11 At p. 600 the author explains that:-

"A constable (as opposed to the private citizen) had by statute or common law certain powers to arrest on suspicion or to prevent breaches of the peace, or to stop immoral conduct, which citizens had not got."

12 Lord Goddard C.J. expressed the view in his judgment in R. v. County Court Recession Appeals Committee [1948] 1 K.B. 670 at 673 in relation to the Justice of the Peace Act, 1360, (34 Edw. 3) which applies in Ireland by virtue of Poynings" Act, 10 Hen. 7 (Ir), C 22 [1495], that:-

"In my opinion the act of Edward III does not create any offence at all, it deals with people who break or are likely to break the peace or cause a breach of the peace."

13 Lord Goddard referred to descriptions by both Cooke and Blackstone who described the Act as an Act for preventative justice which enabled Justices at their discretion "to bind over a man, not because he has committed an offence, but because they think from his behaviour he may himself commit or cause others to commit offences against the King's peace. It is abundantly clear that for several centuries Justices have bound by recognisances persons whose conduct they consider mischievous or suspicious, but could not, by any stretch of the imagination, amount to a criminal offence for which they could have been indicted".

14 Lord Goddard continued later by saying:-

"There is no suggestion to be found (in any case) that before sureties can be required, a person must have committed a criminal offence, or that by ordering him to enter into sureties the court either expressly or impliedly convicts him of a criminal offence. There is no pretence for saying, where a magistrate merely requires a person brought before him, not for having committed a criminal offence, but for having acted in a way that may cause a breach of peace, to give a recognisance, that he has convicted him of anything. He is merely taking a precaution against the defendant committing an offence."

15 Mr. Birmingham further submitted that a complainant wishing to prosecute a breach of the peace may not have a summons issued under The Courts (No. 3) Act, 1986, in respect of such a complaint because breach of peace is not a criminal offence. Only a District Court judge may summons a person alleged of such misconduct under s. 10 of the Petty Sessions (Ireland) Act, 1851, which is far broader in its application and would not appear to be confined to criminal offences per se.

16 The Oireachtas had made provision by way of statute for a modern offence of threatening, abusive or insulting behaviour in a public place in s. 6 of The Criminal Justice ( Public Order) Act, 1994. The power of arrest provided for in s. 24 is vested in a police officer. Section 26, significantly, does not repeal the existing garda power of arrest and...