Clifford -v- D. P. P., [2008] IEHC 322 (2008)

Docket Number:2008 643 SS
Party Name:Clifford, D. P. P.
Judge:Charleton J.
 
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THE HIGH COURT2008 No. 643 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

PAUL CLIFFORDAPPELLANT/ACCUSEDAND

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA SUSAN McLOUGHLIN)RESPONDENT/PROSECUTOR

JUDGMENT of Mr. Justice Charleton delivered on the 29th day of October, 2008

  1. This is the opinion of the High Court in answer to a case stated by Judge Patrick McMahon under s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961, whereby a judge of the District Court may seek advice as to whether he was correct in law in convicting the appellant/accused Paul Clifford in respect of the charges that were before him. There were two such charges before the learned judge of the District Court on the 1st May, 2007. These, in essence, were:-

  2. That Paul Clifford committed an offence contrary to s. 6 of the Criminal Justice (Public Order) Act 1994, on the 1st October, 2006, at Kilmainham Garda Station, a public place, by using or engaging in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace, or being reckless as to whether a breach of the peace may be occasioned;

  3. That Paul Clifford committed an offence contrary to s. 13 of the Criminal Justice Act 1984, on the 1st October, 2006, in Kilmainham while being a person released on bail, and having entered into a recognisance on the 29th July, 2006, to appear at Dublin District Court No. 44 in the Dublin Metropolitan District on the 31st July, 2006, he failed to appear before that court in accordance with his recognisance.

  4. The issues in this case relate to the proper construction of the two offences that are the subject of these charges.

    Public Order Charge: Facts

  5. There seems to have been some background to this case which was not adduced in evidence before the District Court. I infer that at some time prior to his visiting Kilmainham Garda Station, the accused believed that a mobile phone had been seized from him by the gardaí, for whatever reason. On the 1st October, 2006, the accused entered that Station and made a fuss at the public office. He was accompanied by two friends - one male, one female. He appeared to be drunk and he started abusing the gardaí present. He was shouting about a mobile phone that he said had been seized from him earlier on by the gardaí. He continually demanded that it should be returned to him. In support of this, he kicked and banged the door in the public office. The accused was handed the computer chip from this mobile phone, the SIM card, which would identify him as the caller if inserted into another mobile phone, and would store certain information in relation to messages and contact details. This was not good enough for him. The accused said he would "get Garda Susan McLoughlin" and he further said that "it would not be him who would finish her off". Other members of the public, apart from the people who were accompanying him, were present during this incident. The accused was arrested, the gardaí being of the opinion that he was committing an offence contrary to s. 6 of the Public Order Act 1994. Under cross-examination, the two garda witnesses told the District Court that none of the people present attempted to become involved in the fracas and that they shied away from any confrontation. They accepted that it was not at all likely that a breach of the peace would occur in consequence of the behaviour of the accused. They specifically said that neither of them, as members of An Garda Síochána, would have breached the peace in response to his behaviour. A direction was therefore sought to acquit the accused on the close of the prosecution case on the basis that there was no case to answer. It was submitted that there was no evidence upon which a court could find, either directly or by inference, that the accused intended to provoke a breach of the peace or that he was reckless as to whether a breach of the peace might have been occasioned.

  6. The learned District Judge rejected these submissions. The accused did not give evidence. He was convicted, the court being satisfied that he had committed the offence.

    Illegal Behaviour

  7. The Criminal Justice (Public Order) Act 1994, creates an offence in s. 6 which carries a penalty on summary conviction of a fine not exceeding the equivalent of £500.00 or imprisonment for a term not exceeding three months, or both. This is a mild penalty. A traditional model of criminal offence is created by s. 6(1) incorporating, as it does, an external element coupled with a requirement that the prosecution prove intent or recklessness, the mental element. The section provides:-

    6(1) It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.

  8. The elements of this offence require the prosecution to prove that the relevant conduct occurred in a place which the public use as of right or to which they habitually have resort; that the accused used insulting words or behaviour either generally or towards some particular person or that he engaged in threatening or abusive behaviour; and that, in doing so, he intended to provoke a breach of the peace or he was reckless as to whether a breach of the peace may be occasioned in consequence of his conduct.

  9. The common law offence of breaching the peace was not abolished by this section. Instead, the ease of proof of the mischief of abusive behaviour in public was reformed by relieving the prosecution, where they charge under the section, of proving that a breach of the peace actually occurred. In the charge before the District Court it was only necessary to prove a particular form of conduct accompanied by the mental element of intent or recklessness, as set out in the section. A breach of the peace implies conduct which goes beyond boisterousness. Instead, the offence involves a situation which imminently threatens a person, through the conduct of those involved in the breach of the peace, but not necessarily directly, of being harmed through an assault, an affray, a riot, an unlawful assembly or any other serious disturbance; R. v. Eroll Howell (1981) 71 Cr. App. r 31 per Watkins L.J.. In England, a threat of destruction of property in the presence of its owner is regarded as being sufficient to prove a breach of the peace as, it was reasoned in Howell, wrecking somebody's property in his presence is likely to provoke a serious response. This is correct. In Thorpe v. Director of Public Prosecutions [2007] 1 I.R. 502 at 512, Murphy J. offered the following...

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