DPP v Delaney

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 01 January 1998
• Neutral Citation: 1998 WJSC-SC 896
• Docket Number: (137/96)
• Court: Supreme Court
• Date: 01 January 1998

1998 WJSC-SC 896

THE SUPREME COURT

O'Flaherty J.,

Keane J.,

Murphy J.,

(137/96)

DPP v. DELANEY

AN CH ÚIRT UACHTARACH

BETWEEN:

IN THE MATTER OF SECTION 52 OF

THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

THE DIRECTOR OF PUBLIC PROSECUTIONS

Complainant/Respondent

.V.

MICHAEL DELANEY, WAYNE KELLY, ALAN LAWLESS, ANTHONY LAWLESS AND DAVID CROWLEY

Defendants/Appellants

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

DPP V DELANEY 1996 1 ILRM 536

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(2)

DUBLIN POLICE ACT 1842 S14(13)

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S11

PREVENTION OF CRIMES ACT 1861 S12

ROAD TRAFFIC ACT 1961 S49

DPP V FORBES 1993 ILRM 817

AG, PEOPLE V O'BRIEN 1965 IR 142

DPP, PEOPLE V SHAW 1982 IR 1

DPP V GAFFNEY 1988 ILRM 39

DPP, PEOPLE V KENNY 1990 2 IR 110

D V DPP 1994 2 IR 465

QUINNS SUPERMARKET V AG 1972 IR 1

MCMAHON V AG 1972 IR 69

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1961 S54

ROAD TRAFFIC ACT 1961 S106

ROAD TRAFFIC ACT 1961 S109

CONSTITUTION ART 40.5

Synopsis

Constitutional

Inviolability of the dwelling; arrest; legality; persons outside property threating to harm persons within; whether forcible entry by gardai without warrant justifiable; whether breach of constitutional rights whether consent of occupier necessary; whether extraordinary excusing circumstances; whether gardai have power to enter dwelling without warrant to prevent breach of peace; whether legality of subsequent arrests relevant; Art. 40.5 of the Constitution Held: Garda entitled to give priority to human life over the inviolability of the dwelling (Supreme Court: O'Flaherty J., Keane J., Murphy J.27/11/1997)

D.P.P. v. Delaney - [1997] 3 IR 453 - [ 1998] 1 ILRM 507

1 Judgment delivered on the 27th day of November, 1997, by O'Flaherty J. [NEM DISS]

2 This appeal arises on a consultative case stated by Judge Gillian Hussey, a judge of the District Court assigned to Kilmainham District Court, Dublin, pursuant to s.52 of the Courts (Supplemental Provisions) Act, 1961. The appeal is brought by the appellants from the judgment of the High Court (Morris J.) of the 8th February, 1996, [1996] 1 ILRM 536. Leave to appeal was granted by the High Court judge pursuant to s.52(2) of the Courts (Supplemental Provisions) Act, 1961.

3 In the course of the case stated, Judge Hussey recites that the five appellants appeared before her at a sitting of Kilmainham District Court on 18th January, 1994. Michael Delaney was charged with using words with intent to provoke a breach of the peace contrary to s.14(13) of the Dublin Police Act, 1842, as were Wayne Kelly, Alan Lawless and David Crowley. Wayne Kelly, Alan Lawless, Anthony Lawless and David Crowley were, in addition, charged with producing an article capable of inflicting serious injury during the course of a dispute, contrary to s.11 of the Firearms and Offensive Weapons Act, 1990. David Crowley was further charged with unlawfully assaulting Garda John Ferry in the due execution of his duty contrary to s.12 of the Prevention of Crimes Act, 1861, as well as failing to answer to his bail in accordance with a recognisance entered into by him in the District Court.

4 Sergeant Nicholas McGrath gave evidence that on June 6th, 1993, at about 3.00 am together with nine other gardai, he arrived at the premises 51 Chamber Court, Dublin 8 (which is in the Liberties area) where there was a disturbance in progress. There was a large crowd in the street which he felt constituted a riot, some of whom were armed with sticks which they had dropped. They moved away on the arrival of the gardai. This crowd was hostile to persons in flat number 51, with some persons threatening to petrol bomb and burn down the flat.

5 Sergeant McGrath felt that he had to take preventative action and so he went to the flat and peered in the window. The appellants had barricaded themselves in. They were armed with weapons. The Sergeant requested that the occupants leave the flat, under garda escort for their own safety, which they declined to do, and they demanded that he not enter the flat.

6 He said that he spoke to two unnamed women on the balcony of the complex who claimed that there were young children inside. He then entered the flat under a power that he believed he possessed at common law, together with five other members of the gardai. All five accused persons were arrested in the flat. There was a woman with four children on a bed upstairs in the flat. She was the mother of Wayne Kelly, the second-named defendant, and the children were his siblings. They were unharmed.

7 Sergeant McGrath said that he believed he had a right to enter the dwelling "on the basis of the safety of the children in the flat and in the interests of the persons inside the flat, having regard to the attitude of the mob outside."

8 Evidence to the same effect was given by other members of the gardai.

9 The solicitors for the defendants" applied for a "direction" on the basis that the entry into 51 Chamber Court was illegal and in breach of the defendants" constitutional rights and accordingly that the arrests were unlawful.

10 It was submitted that the gardai only have the power to arrest without warrant in a person's home where:-

11 (a) they have reasonable grounds for suspecting that the person has committed a felony, or

12 (b) they have been given permission by an appropriate person to enter the premises.

13 Further, that where the gardai arrest a person without a warrant in his home the power of arrest must be construed in accordance with Article 40 s.5 of the Constitution which provides that "the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law" so that, if the member of gardai is in the dwelling unlawfully at the time of the arrest, that arrest is unlawful.

14 It appears that the submissions made in the District Court and also in the High Court and, to a degree, in this Court proceeded on the basis that the matter of arrest had some relevance to the charges here.

15 Whether an arrest is illegal or not, can only be of relevance where proof of a valid arrest is an essential ingredient to ground a charge, such as under s.49 of the Road Traffic Act, 1961, as amended (driving with excess alcohol); see, for example, Director of Public Prosecutions .v. Forbes [1993] ILRM 817.It was not necessary in the case of any of the charges brought against these appellants to prove a lawful arrest.

16 It appears that there was much debate in the District Court as well as in the High Court, on recondite points arising on the decisions of this Court in The People .v. O'Brien [1965] IR 142; The People .v. Shaw [1982] IR 1 and Director of Public Prosecutions .v. Gaffney [1988] ILRM 39. While I am conscious of how worthless wide judicial pronouncements may be, when not necessary to decide a particular case, I think in the circumstances of this case since the matter occupied the District Court and the High Court to a good extent and we were also urged by counsel for the appellants to deal with the matter, I should say something about the ambit of these decisions. Both O'Brien and Shaw are cases concerned with the admissibility of evidence. There is no question of admissibility of any evidence in regard to these charges as far as the facts set out in the case stated go. O'Brien decided that evidence obtained illegally could be admissible at the...