DPP v O Brien

JurisdictionIreland
JudgeMr. Justice Meenan
Judgment Date06 February 2020
Neutral Citation[2020] IEHC 110
Docket Number[2019 No. 80 SS]
CourtHigh Court
Date06 February 2020

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
DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF SERGEANT GRACE O'CONNELL)

PROSECUTOR
AND
PHILIP O'BRIEN
DEFENDANT

[2020] IEHC 110

Meenan J.

[2019 No. 80 SS]

THE HIGH COURT

Conviction – Resisting and obstructing a peace officer – Common law power – District Judge seeking the opinion of the High Court – Whether the gardaí enjoyed a common law power to enter the dwelling of the defendant to effect an arrest for the offence of breach of the peace, contrary to common law

Facts: The defendant, Mr O’Brien, was convicted by a judge of the District Court on an offence of resisting and obstructing a peace officer, contrary to s. 19 of the Criminal Justice (Public Order) Act 1994 (the obstruction charge). The defendant appealed, by way of case stated, in respect of the conviction for the obstruction charge. The opinion of the High Court was sought by the District Judge, pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961, on the following questions: (i) In light of the evidence heard before the District Court, did the gardaí enjoy a common law power to enter the dwelling of the defendant to effect an arrest for the offence of breach of the peace, contrary to common law? (ii) If the answer to question (i) is no, was the District Judge correct in holding that the defendant had a case to answer in relation to the obstruction charge?

Held by the Court that: (i) the English authorities on the issue before the Court were of limited assistance, given the provisions of Article 40.5 of the Constitution; (ii) as what was under consideration was the restriction of a constitutional right/guarantee, any restriction that may be permitted by law must be minimal; and (iii) save where life is in imminent danger, in which case other constitutional rights are engaged, the restrictions on the rights/guarantees enshrined in Article 40.5 are those set out in statute – in this case the relevant statutory provision is s. 6 of the Criminal Law Act 1997.

The Court held that as the gardaí did not rely on the provisions of s. 6(2), the gardaí did not enjoy a common law power to enter the dwelling of the defendant to effect an arrest for the offence of breach of the peace. Therefore, the Court held that the answers to the questions posed by the District Judge were: (i) no; and (ii) no.

Case stated.

JUDGMENT of Mr. Justice Meenan delivered on the 6th day of February, 2020
Introduction
1

This is a case stated by a judge of the District Court, pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, on the application in writing of the defendant, for the opinion of the High Court.

2

The defendant appeared before the District Court for summary trial to answer two complaints, the subject matter of summonses: -

(i) The first summons alleged an offence of resisting and obstructing a peace officer, contrary to s. 19 of the Criminal Justice (Public Order) Act, 1994 (“the obstruction charge”); and

(ii) The second summons alleged an offence of simple assault contrary to s. 2 of the Non-Fatal Offences Against The Person Act, 1997 (“the assault charge”).

3

In summary, the facts as proved or admitted, and as found by the District Judge, were as follows: -

(a) On 26 May 2017, gardaí received a call to a disturbance at the defendant's home, located at 35 Marino Apartments, Tralee, Co. Kerry. On arrival at the apartment, gardaí observed that the living room window had been broken. A block of knives lay on the ground outside the window;

(b) Garda John Coffey gave evidence that he, along with his three colleagues, could see through the broken window into the defendant's apartment. The defendant was not wearing a shirt and appeared to be in an agitated state. Garda Coffey gave evidence that it appeared that the apartment had been damaged and that several items were scattered around the room. Garda Coffey said that he tried to speak with the defendant through the window. He said that he and the other gardaí then approached the front door of the defendant's apartment. Garda Coffey stated that the defendant continued to be agitated. Whilst Garda Coffey tried to speak with the defendant at the doorway, the defendant spat in his face; and

(c) Garda Coffey stated that following the spitting incident, he entered the apartment with his three colleagues. In evidence he stated that his entry was to effect the arrest of the defendant for the offence of breach of the peace, contrary to common law. Garda Coffey stated that upon entering the apartment, it seemed that the defendant had retreated into the kitchen, where the gardaí could see a knife on the floor. Garda Coffey gave evidence that the defendant violently resisted the attempts of the gardaí to arrest him. The defendant was restrained in the kitchen by the gardaí and Garda Coffey stated that he arrested the defendant for the offence of breach of the peace. The arrest was effected in the kitchen.

4

At the close of the prosecution case the Solicitor for the defendant, Mr. Brendan Ahern of Brendan Ahern and Co. Solicitors, moved an application that the defendant had no case to answer in respect of both charges. In relation to the obstruction charge, Mr. Ahern submitted that the gardaí had no right under common law to enter the defendant's apartment home to effect an arrest for breach of the peace. He submitted that the entry onto and arrest within the defendant's private dwelling place was both unlawful and in breach of the defendant's constitutional right to the inviolability of his dwelling.

5

The District Judge held that An Garda Síochána had a common law power to enter the defendant's apartment to effect an arrest for the offence of breach of the peace contrary to common law. The Court considered the judgment of the High Court in Director of Public Prosecutions v. Delaney [1996] I.R. 556 where Morris J. noted, obiter, that it was doubtful that An Garda Síochána had a power to enter a private dwelling to effect an arrest for breach of the peace. In the view of the District Judge, this decision was not binding and held that other authorities indicated that the common law power of arrest for breach of the peace extends to a power of entry to effect such an arrest.

6

The District Judge convicted the defendant on the obstruction charge. The defendant now appeals, by way of case stated, in respect of the conviction for the obstruction charge. The opinion of the High Court is sought on the following questions: -

(i) In light of the evidence heard before the District Court, did the gardaí...

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3 cases
  • Kevin Braney v Ireland and the Attorney General
    • Ireland
    • Supreme Court
    • 12 Febrero 2021
    ...was and is possible pursuant to the common law duty of police officers to keep the peace; Thorpe v DPP [2007] 1 IR 502, DPP v O Brien [2020] IEHC 110. Arrest powers were rationalised in addition to general powers of detention by the 1984 Act by making serious crimes, ones carrying 5 years o......
  • Braney v Special Criminal Court
    • Ireland
    • Supreme Court
    • 12 Febrero 2021
    ...was and is possible pursuant to the common law duty of police officers to keep the peace; Thorpe v DPP [2007] 1 IR 502, DPP v O Brien [2020] IEHC 110. Arrest powers were rationalised in addition to general powers of detention by the 1984 Act by making serious crimes, ones carrying 5 years o......
  • DPP v Philip O'Brien
    • Ireland
    • Court of Appeal (Ireland)
    • 28 Octubre 2021
    ...(“the assault charge”). 4 A summary of the facts as found by the District Iudge can be found at paras 3–5 of the High Court judgment ( [2020] IEHC 110) and it is not necessary to repeat them here. The relevant facts can be simply stated. Members of An Garda Síochána entered the respondent's......

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