Brady v DPP

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 23 April 2010
• Neutral Citation: [2010] IEHC 231
• Court: High Court
• Date: 23 April 2010

Brady v DPP

JUDICIAL REVIEW

BETWEEN

RORY BRADY

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2010] IEHC 231

835 JR/2009

THE HIGH COURT

Abstract:

Criminal law - Judicial review - Breach of peace - Offence at common law - Stare decisis - Whether the charge of breach of peace contrary to common law was an offence known to law - Whether the court herein was bound by the doctrine of stare decisis.

Facts The applicant sought a declaration that the charge of breach of peace contrary to common law was not an offence known to law and also sought an order restraining the respondent from taking any further steps to prosecute the proceedings against the applicant in relation to such a charge. It was argued on behalf of the respondent that the court was bound by the doctrine of stare decisis to follow the decision of Murphy J. in Thorpe v. Director of Public Prosecutions [2007] 1 I.R. 502. It was submitted on behalf of the applicant that the Thorpe case was inadequately reasoned and wrongly decided and consequently this court should not feel bound to follow the decision of Murphy J therein.

Held by Kearns P. in refusing the application: That there were explicit statements from previous court judgments, some of long standing, to the effect that there was an offence in this jurisdiction of breach of the peace at common law. Moreover, in the case of Thorpe, such a finding was the express subject matter of the case stated. It was not suggested that the decision of Murphy J. was manifestly wrong and it could not be said that the Thorpe case was decided without the matter having been properly argued. Furthermore, the reasoning of Murphy J. was not in any way deficient or such as to persuade the court that he reached an incorrect conclusion.

Cases followed: Thorpe v. D.P.P. [2007] 1 I.R. 502.

Attorney General v. Cunningham [1932] I.R. 28

Kelly v. O'Sullivan (1991) 9 I.L.T.R. 126

Clifford v. D.P.P. [2008] I.E.H.C. 322 Obiter

Worldport Ireland Ltd. (In Liquidation) [2005] I.E.H.C. 189.

Reporter: L.O'S

THORPE v DPP 2007 1 IR 502 2006/56/11859 2006 IEHC 319

EVISTON v DPP 2002 3 IR 260

AG v CUNNINGHAM 1932 IR 28

KELLY v O'SULLIVAN & DPP 1991 9 ILT 126 1990/7/1996

CLIFFORD v DPP (GARDA MCLOUGHLIN) UNREP CHARLETON 29.10.2008 2008/8/1448 2008 IEHC 322

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

INDUSTRIAL SERVICES CO (DUBLIN) LTD, IN RE; COYLE v ULSTER BANK LTD 2001 2 IR 118 2001/12/3322

KING v AG & DPP 1981 IR 233

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

DOWRICK PRECEDENTS IN MODERN IRISH LAW 1953 69 LQR 25

1 JUDGMENT of Kearns P.delivered on the 23rd day of April, 2010

2 This is a case in which the applicant seeks a declaration that the charge of breach of the peace contrary to common law (with which the respondent seeks to prosecute the applicant) is not an offence known to law and for an order restraining the respondent from taking any further steps to prosecute the proceedings against the applicant on the charges set out in Cabinteely Charge Sheet 8844588.

3 That charge sheet alleges that on the 10 ^th May, 2009 at Arranmore, Church Road, Killiney, County Dublin the applicant did threaten to stab Bo Owens and then did engage in threatening and abusive behaviour thereby causing a breach of the peace, contrary to common law.

4 The applicant duly appeared before a sitting of Dun Laoghaire District Court on 5 ^th June, 2009 where evidence of arrest, charge and caution was given. The presiding District Court Judge then remanded the applicant on bail to a subsequent date to enable him to consider the evidence against him and to enter a plea of either guilty or not guilty to the charge.

5 However, on the advices of his solicitor, the applicant then brought the present judicial review application. By order of the High Court (Peart J.) dated 27 ^th July, 2009 the applicant was given leave to seek relief on the sole ground that the offence of breach of the peace contrary to common law is not know to Irish law and that the applicant could not lawfully be tried for it.

6 A statement of opposition was delivered on behalf of the respondent in January, 2010 putting that issue in contention.

7 On the hearing before this Court, the respondent further argued that the substantive point raised by the applicant has already been determinedby the High Court in Thorpe v. Director of Public Prosecutions [2007] 1 I.R. 502.

8 While the applicant also sought relief on the basis that the charge sheet contained two alleged offences and was thus bad for duplicity, counsel on behalf of the respondent has argued, correctly in my view, that as Peart J. had not granted leave to argue this latter point, the applicant was precluded from doing so. Mr. Paul Anthony McDermott, B.L., counsel for the respondent, cited the decision of the Supreme Court in Eviston v. Director of Public Prosecutions [2002] 3.I.R. 260 as the relevant authority in this regard. I believe I am bound to follow the decision of the Supreme Court to that effect. Even if I were not so bound, I am satisfied that the charge sheet does not contain two alleged offences, but that it contains only descriptive words which describe the matters constituting the offence of breach of the peace on the occasion in question.

9 More importantly, however, it is Mr. McDermott's argument that this Court is bound by the doctrine of stare decisis to follow the decision of Murphy J. in Thorpe v. Director of Public Prosecutions [2007] 1 I.R. 502.

DECISION IN THORPE AND OTHER CASES

10 The case of Thorpe v. Director of Public Prosecutions [2007] 1. I.R. 502 was a consultative case stated in which a judge of the District Court specifically sought the opinion of the High Court as to whether the offence of breach of the peace contrary to common law was "known to law".

11 The accused in that case appeared before the District Court on a charge of causing a breach of the peace contrary to common law, after he was alleged to have used threatening and abusive language and become aggressive when asked to leave a private dwelling house. Counsel for the accused applied to have the matter dismissed on the basis that the charge before the court 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. No specific penalty was known in respect of the charge of breach of the peace contrary to common law. The prosecutor submitted that it was clear that a person could be arrested and charged with breach of the peace contrary to common law, that the offence was known to law and could be prosecuted in a summary manner in the District Court withthe penalty resultant on conviction subject to the sentencing limits of the District Court.

12 It was specifically held by Murphy J., in answering the consultative case stated, that breach of the peace contrary to common law was an offence known to law. He further held that the common law offence of breach of the peace was not abolished by the Criminal Justice (Public Order) Act, 1994.

13 Mr Colman Fitzgerald, S.C., counsel for the applicant, submitted that this case was inadequately reasoned and wrongly decided and that this Court should not in consequence regard itself as being bound to follow the...