DPP v Kelly

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 04 December 2018
• Neutral Citation: [2018] IECA 378
• Docket Number: [2017/581],[C.A. No. 581 of 2017]
• Court: Court of Appeal (Ireland)
• Date: 04 December 2018

[2018] IECA 378

THE COURT OF APPEAL

Birmingham P.

The President

Edwards J.

McCarthy J.

[2017/581]

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

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA CAROL MULLANE, GARDA BRIAN WHITNEY)

AND

GARDA WILLIAM BROSNAHAN

PROSECUTOR/RESPONDENT

AND

JAMES KELLY, AISLING BUTLER

AND

CAROLINE DOYLE

DEFENDANTS/APPELLANTS

Case stated – Statutory prerequisite – Criminal Justice (Public Order) Act 1994 – Appellants seeking to appeal from a decision of the High Court – Whether a statutory prerequisite to making a direction pursuant to s. 8 of the Criminal Justice (Public Order) Act 1994 was not complied with

Facts: The defendants/appellants, Mr Kelly, Ms Butler and Ms Doyle, were charged in the District Court in Dun Laoghaire with offences contrary to s. 9 and s. 8 of the Criminal Justice (Public Order) Act 1994. The District judge dismissed all of the charges and sought the opinion of the High Court on the following questions: “1. Was I correct in law in holding that there was inadequate evidence that each of the defendants was acting without lawful authority or reasonable excuse? 2. If the answer to Question 1 is No, was I correct in dismissing the s. 9 charges against each of the defendants? 3. Was I correct in holding that Sergeant Gilmore was required to believe that the defendants were wilfully obstructing traffic without lawful authority or reasonable excuse contrary to s. 9 of the Criminal Justice (Public Order) Act 1994 in order to give a direction to each of the defendants under s. 8 of the Criminal Justice (Public Order) Act 1994? 4. If the answer to Question 3 is Yes, was I correct in dismissing the s. 8 charges against each of the defendants? 5. If the answer to Question 3 is No, was I correct in dismissing the s. 8 charges against each of the defendants?” On 6th March 2017, the High Court judge answered the questions posed in the case stated as follows: “1. Yes. 2. See answer to 1. 3. No. 4. See answer to Question 5. 5. No.” The defendants appealed to the Court of Appeal from the decision of the High Court. The main thrust of the defendants’ appeal had been to submit that a statutory prerequisite to making a direction pursuant to s. 8 was not complied with.

Held by the Court that the District judge was wrong to accede to the application made to her. To the extent that the High Court upheld her approach so far as the s. 9 charge was concerned, the Court held that it disagreed. The view that the Court formed in relation to the s. 9 charge meant that the s. 8 issue did not really arise. However, if the Court had taken a different position in relation to the s. 9 charge, it would have agreed with the approach of the High Court judge to the s. 8 charge.

The Court held that the questions posed in the case stated should be answered as follows: 1. No. 2. No. 3. Yes, but the fact that Sergeant Gilmore did not refer expressly to the question of lawful authority or reasonable excuse should not have led to the conclusion that he did not have the requisite opinion. 4. No. 5. Does not arise.

Appeal allowed.

JUDGMENT of the Court delivered on the 4 ^th day of December 2018 by Birmingham P.

1 Before the Court are cross-appeals from a decision of the High Court (Eager J.) of 6 ^th March 2017 answering questions posed in a case stated by Judge Anne Watkin of the District Court.

2 The background to the matter is to be found in the fact that each of the defendants was charged in the District Court in Dun Laoghaire with offences contrary to s. 24( 3), s. 9 and s. 8 of the Criminal Justice (Public Order) Act 1994 respectively.

3 All of the charges faced by each of the defendants were dismissed. The dismissal of the s. 24(3) charge, that of failing, following a demand made by a member of An Garda Síochána, to provide a name and address is not in controversy. The hearing before the High Court and now this appeal were therefore concerned with the charges contrary to s. 9 of the Criminal Justice (Public Order) Act 1994, and s. 8 of the Criminal Justice (Public Order) Act 1994.

4 The relevant charges faced by the defendant, James Kelly, were as follows:

“[o]n 18 ^th May 2015, at York Road, Dun Laoghaire, Dublin, a public place, in the said District Court area of the Dublin Metropolitan District, did, without lawful authority of reasonable excuse, wilfully prevent or interrupt the free passage of a vehicle in the said public place contrary to Section 9 of the Criminal Justice (Public Order) Act 1994 (as amended by Section 22 of the Intoxicating Liquor Act 2008).

On 18 ^th May 2015, at York Road, Dun Laoghaire, Dublin, a public place in the said District Court area of the Dublin Metropolitan District, having been found in the said public place by a member of An Garda Síochána, namely, Sergeant David Gilmore, who suspected with reasonable cause that you were or had been acting in a manner contrary to the provisions of Section 9 of the Criminal Justice (Public Order) Act 1994, and having been directed by the said member of An Garda Síochána to leave immediately the vicinity of the place concerned in a peaceable and orderly manner, did, without lawful authority or reasonable excuse, fail to comply with the direction given by the said member of An Garda Síochána contrary to Section 8 of the Criminal Justice (Public Order) Act 1994 (as amended by Section 22 of the Intoxicating Liquor Act 2008).”

5 Section 8 of the Criminal Justice (Public Order) Act 1994 provides:

“8.—(1) Where a member of the Garda Síochána finds a person in a public place and suspects, with reasonable cause, that such person—

(a) is or has been acting in a manner contrary to the provisions of section 4, 5, 6, 7 or 9, or

(b) without lawful authority or reasonable excuse, is acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace,

the member may direct the person so suspected to do either or both of the following, that is to say:

(i) desist from acting in such a manner, and

(ii) leave immediately the vicinity of the place concerned in a peaceable or orderly manner.

(2) It shall be an offence for any person, without lawful authority or reasonable excuse, to fail to comply with a direction given by a member of the Garda Síochána under this section.

(3) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 6 months or to both.”

6 Section 9 provides as follows:

(1) “9.—Any person who, without lawful authority or reasonable excuse, wilfully prevents or interrupts the free passage of any person or vehicle in any public place shall be liable on summary conviction to a fine not exceeding £200.”

7 At trial, the prosecution was represented by Mr. Michael Durkan, solicitor of the Chief Prosecution Solicitor's Office, and the defendants were each represented by Mr. John Berry, Barrister-at-Law, instructed by Cahir O'Higgins & Company. At trial, the prosecution called two witnesses, Gerard Gilmartin: a contractor for Irish Water, and Sergeant David Gilmore.

8 Mr. Gilmartin gave evidence that on 18 ^th May 2015, he was working for Irish Water installing water meters in Dun Laoghaire. On that day, he was in charge of Health and Safety and Traffic Management at York Road, Dun Laoghaire – a site-specific management plan was in operation with respect to the water meters being installed in the area. At 2.00pm, Mr. Gilmartin was driving down York Road when he saw a vehicle, a truck, which had been stopped by a group of protesters. He was driving in the opposite direction. Mr. Gilmartin did a three-point turn to get away from the protesters. The protesters saw his vehicle and began running after him. He drove his car away and parked it. He then went to see where the truck had been blocked by the protesters. The truck was being driven by a man called Declan McCormack. Mr. McCormack was unable to remove the truck because he was blocked by protesters. Mr. Gilmartin then went to the site of the installation of the water meters, 80 to 100 metres away. He made the site safe and removed a Stop/Go system at the location. He observed that traffic had to drive around the truck onto the opposite side of the road to get past.

9 Mr. Gilmartin recalls Gardaí arriving at about 2.20pm. He told them that he was in charge of the site and told them what had happened. Protesters remained at the road when the Gardaí were there. At approximately 3pm, Mr. Gilmartin spoke to Sergeant David Gilmore and told him what had happened. Afterwards Mr. Gilmartin took photographs of the street. After the protesters were arrested and the road was cleared, he saw the truck drive up the road and leave the area.

10 Sergeant Gilmore gave evidence that on 18 ^th May 2015, he was on duty at Dun Laoghaire Garda Station when he was informed of an ongoing incident at York Road, Dun Laoghaire. He went to the scene with a Garda Michael Quill, arriving at approximately 3.05pm. Gardaí Paul O'Donnell, Lee Graydon, and Joseph Byrne were present at the scene upon his arrival. Sergeant Gilmore observed the truck stopped on the outbound lane of York Road. It was a flatbed truck bearing Reg. No. 08D 45673 with a trailer that had a mini-digger on it. He observed a number of people standing on the road immediately in front of the truck and three females sitting in a circle on the road behind the truck. At the time, the road was fully open and traffic had to cross to the opposite side of the road to get around the truck. He directed Garda Graydon and Quill to direct traffic. He...