Clifford v DPP (Garda McLoughlin)

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 25 October 2013
• Neutral Citation: [2013] IESC 43
• Court: Supreme Court
• Docket Number: [S.C. No. 386 of 2008]
• Date: 25 October 2013

Clifford v DPP (Garda McLoughlin)

Between/

PAUL CLIFFORD

Appellant/Accused

and

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

Respondent/Prosecutor

[2013] IESC 43

Denham C.J.

O'Donnell J.

Clarke J.

[Appeal No: 386/2008]

THE SUPREME COURT

CRIMINAL LAW

Public order

Breach of peace - Intention to provoke breach of peace - Recklessness - Whether appellant reckless as to occasioning breach of peace - Failure to appear - Facts not requiring formal proof - Orders of court of record - Whether bench warrant evidence of failure to appear - Effect of whether appellant admitted to bail on recognisance by court or in a garda station - Clifford v Director of Public Prosecutions [2008] IEHC 322, (Unrep, Charleton J, 29/10/2008); Corporation of Dublin v Flynn [1980] IR 357; DPP v Orum [1989] 1 WLR 88; Marsh v Arscott (1982) 75 Cr App R 211; The People v Murray [1977] IR 360; The People (Director of Public Prosecutions) v Cagney [2007] IESC 46, [2008] 2 IR 111; [2008] 1 ILRM 293; Reg v Hogan [1974] QB 398; Reg v Humphries [1977] AC 1; Criminal Justice Act 1984 (No 22), s 13 - Criminal Justice (Public Order) Act 1994 (No 2), s 6 - Questions answered and conviction upheld (368/2008 - SC - 25/10/2013) [2013] IESC 43

Clifford v Director of Public Prosecutions

Facts: The appellant was convicted of two counts before the District Court: one was a public order offence of engaging in conduct, either recklessly or with intention, to provoke a breach of the peace, and the other was an offence of failing to appear at a criminal hearing in respect of which the accused had been admitted to bail. At the close of the prosecution case, the appellant had submitted that there was no case to answer and he should be acquitted on both counts. This was rejected by the District Court, and when the appellant refused to submit any evidence on his behalf, he was duly convicted of both charges. The appellant appealed the convictions to the High Court by way of case stated on the basis that it was not open to the District Judge to convict him on the state of the prosecution evidence. This submission was rejected by the High Court and his appeal was dismissed. He subsequently appealed to the Supreme Court.

The public order offence allegedly occurred at Kilmainham Garda Station on the 1 ^st October 2006, and it was said by the two Gardaí witnesses that the appellant was noticeably intoxicated when he entered the premises. They also said that he made abusive and threatening comments to Gardaí. However, they admitted that the members of the public that were present at the time did not challenge the appellant"s behaviour, and that they themselves had no intention of doing so either. On that basis, the appellant argued that because the Gardaí witnesses had effectively agreed that it was unlikely that a breach of the peace would have occurred, there was no evidence that showed either directly of by inference that he 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.

After the incident at Kilmainham Garda Station on the 1 ^st October 2006, Garda McLoughlin checked their system for entries concerning the appellant and discovered that there was an outstanding bench warrant for him because he had failed to appear at court on 31 ^st July 2006 whilst on bail. Garda McLoughlin admitted in cross-examination that she had not been in court on the 31 ^st July 2006, nor had she been in court when the appellant was granted bail on recognisance and informed he had to return to court on the 31st July 2006. The appellant argued that there was no evidence to convict him because these two facts needed to be proved pursuant to s. 13 of the Criminal Justice Act 1984.

Held by Clarke J (with Denham C. J. and O"Donnell J. concurring) that in terms of the public order offence, the District Judge had been required to decide whether it could be inferred from the evidence that the appellant knew that there was a substantial risk that a breach of the peace would be occasioned by his planned behaviour and that he carried out such behaviour anyway. It was also said that the fact that no such breach was in fact likely to occur in the circumstances was not relevant. On a consideration of the appellant"s behaviour at Kilmainham Garda Station, it was held that it had been open to the District Judge to infer that the appellant"s behaviour, which had clearly been abusive and threatening, gave rise to a substantial risk of a breach of the peace as far as the appellant"s perspective was concerned. On that basis, it was determined that the District Judge was free to convict the appellant on the evidence.

In terms in the failure to appear charge, it was held that because at the time of the appellant"s prosecution the District Judge was aware from the court file that the appellant had been granted bail on recognisance, this was sufficient to show that the relevant offence under s. 13 had been established. Had there been no evidence that the appellant had been admitted to bail on recognisance, it would have been held that there was not sufficient evidence to enable the District Judge to find the relevant offence proved.

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

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

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6(1)

MARSH v ARSCOTT 1982 75 CR APP R 211 1982 CRIM LR 827

DPP v ORUM 1989 1 WLR 88 1988 3 AER 449 1989 88 CR APP R 261

PUBLIC ORDER ACT 1936 S5 (UK)

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

PUBLIC ORDER ACT 1986 S5 (UK)

DPP, PEOPLE v MURRAY 1977 IR 360

WILLIAMS TEXTBOOK OF CRIMINAL LAW 2ED 1983

CAGNEY & MCGRATH v DPP 2008 2 IR 111 2008 2 ILRM 293 2007/8/1515 2007 IESC 46

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13

CRIMINAL JUSTICE ACT 1984 S13

CRIMINAL JUSTICE ACT 2007 S23

COURTS ACT 1971 S13

DUBLIN CORP v FLYNN 1980 IR 357

1 Judgment of Mr. Justice Clarke delivered the 25th October, 2013.

2 Judgment delivered by Clarke J.

1. Introduction

3 2 1.1 On the 1 ^st October, 2006, an incident involving the appellant/accused ("Mr. Clifford") occurred at Kilmainham Garda Station. Partly as a direct consequence of that incident but also arising from investigations made thereafter, Mr. Clifford was charged before the District Court with two offences. While it will be necessary to analyse the offences concerned in somewhat more detail, in substance the charges related to, respectively, a public order offence of engaging in conduct, either recklessly or with intention to provoke a breach of the peace, and an offence of failure to appear at a criminal hearing in respect of which the accused had been admitted to bail.

4 3 1.2 At the close of the prosecution case submissions were made on behalf of Mr. Clifford which suggested that he should be acquitted on both charges. The District Judge did not agree with those submissions. Mr. Clifford did not go into evidence and was subsequently convicted but the District Judge did agree to state a case for the opinion of the High Court under the provisions of s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961. The substance of the issues raised in the case stated suggested that it was not open to the District Judge to convict Mr. Clifford on the state of the evidence presented by the prosecution in relation to both of the charges.

5 4 1.3 The case stated came before Charleton J. in the High Court who delivered judgment on the 29 ^th October, 2008, (Clifford v The Director of Public Prosecutions [2008] IEHC 322). In substance Charleton J. held that the District Judge was correct in law in convicting Mr. Clifford of the charges on the evidence before the District Court. Mr. Clifford has appealed to this Court against that finding.

6 5 1.4 In substance the issues raised in relation to the two charges which Mr. Clifford faced are entirely distinct and different and it follows that it is appropriate to consider them separately. I will, therefore, turn, first, to the public order charge.

2. The Public Order Charge - The Facts

7 2 2.1 As noted in the case stated, the prosecution case in respect of the alleged public order offence consisted of two witnesses, both of whom were members of An Garda Síochána. The evidence was that Mr. Clifford arrived at Kilmainhaim Garda Station in the company of two other persons. Evidence was given that Mr. Clifford was drunk and abusive, kicked and banged on the door in the public office and demanded the return of a mobile phone. There was evidence that Mr. Clifford said that he would "get" Garda McLoughlin and that it would not be him who would "finish her off". The evidence also suggested that there were other members of the public present in the public office of the garda station on the occasion in question. The Gardaí concerned accepted in cross-examination that none of those other persons attempted to become involved in the incident. Rather those persons shied away from the confrontation. The Gardaí also accepted that none of the Gardaí present would have breached the peace in response to Mr. Clifford's behaviour. In those circumstances, at the close of the prosecution case, it was submitted on behalf of Mr. Clifford that there was no evidence on which a court could find, either directly or by inference, that Mr. Clifford 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.

8 3 2.2 As already noted, the District Judge declined the application for a direction made on behalf of Mr. Clifford and, in circumstances...