DPP v Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 06 March 2017
• Neutral Citation: [2017] IEHC 125
• Court: High Court
• Docket Number: [2016 No. 558 S.S.]
• Date: 06 March 2017

[2017] IEHC 125

THE HIGH COURT

Eagar J.

[2016 No. 558 S.S.]

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 / APPELLENT

AND

JAMES KELLY, AISLING BUTLER

AND

CAROLINE DOYLE

DEFENDANTS / OTHERWISE RESPONDENTS

Crime & Sentencing – S. 2 of the Summary Jurisdiction Act 1857 – S. 51 of the Courts (Supplemental Provisions) Act 1961 – Case stated – Criminal Justice (Public Order) Act 1994 – Lawful authority or reasonable excuse

Facts: The present case came by way of a case stated by the District Court judge for the opinion of the High Court on the following questions namely, whether the learned judge was correct in holding that there was inadequate evidence that each of the defendants was acting without lawful authority or reasonable excuse and if no, as to whether the dismissal of charges against each of the defendants under s. 9 of Criminal Justice (Public Order) Act 1994 was correct. The other questions were whether the learned judge was correct in holding that the named Sergeant was required to believe that there was wilful obstruction of traffic by the defendants and if yes, as to whether the dismissal of charges under s. 8 of the 1994 Act was correct. The issue pertained to the arrest of the defendants for obstructing the traffic.

Mr. Justice Eagar held that the learned judge was correct in dismissing the charges under s. 9 of the 1994Act as there was no evidence to suggest that the defendants were obstructing the traffic without lawful authority or reasonable excuse. The Court, however, held that the learned judge was wrong in holding that the named Sergeant was required to believe that there was wilful obstruction of traffic by the defendants without lawful authority. The Court held that the named Sergeant's opinion of belief was correct as he had warned the defendants thrice that that they were committing an offence under s. 8 of the 1994 Act, which was ignored by the defendants. The Court, therefore, held that the dismissal of charges under s. 8 of the 1994 Act was not appropriate. The Court reverted the case to the learned judge to deal with the charges remaining under s. 8 of the 1994 Act.

JUDGMENT of Mr. Justice Eagar delivered on the 6th day of March, 2017

1 This is a judgment on appeal by way of case stated by a judge of the District Court pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961 on the application of the prosecutor, being dissatisfied with the determination in the above entitled proceedings as being erroneous in point of law, for the opinion of the High Court.

2 At a sitting of Dublin Metropolitan District Court sitting at Dun Laoghaire Courthouse, Corrig Avenue, Dun Laoghaire, Co. Dublin on 13th January, 2016 each of the defendants/respondents (hereinafter the defendants) appeared before the District judge to each answer criminal complaints. The first named defendant was before the court charged with three offences prosecuted by the prosecutor (hereinafter the DPP) at the suit of Garda William Brosnan, the subject matter of the charges alleging offences contrary to s. 24( 3), s. 9 and s. 8 of the Criminal Justice (Public Order) Act 1994. Each of the defendants were charged with these offences.

3 This Court will set out the evidence and matters that were raised before the District court judge of relevance to these proceedings.

The Offences

4 The offences were:

‘1. On the 18th May, 2015 at York Road, Dun Laoghaire, Dublin in the said District Court area of Dublin Metropolitan District did, following a demand made by Sergeant David Gilmore, a member of An Garda Síochána exercising his powers under s. 24(2) of the Criminal Justice (Public Order) Act 1994 fail to provide the said member with his name and address, contrary to s. 24(3) and (4) of the Criminal Justice (Public Order) Act 1994 as amended by s. 22 of the Intoxicating Liquor Act 2008.

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

3. On the 18th May, 2015 at York Road, Dun Laoghaire, Dublin a public place, in the said District Court area of 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 s. 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 s. 8 of the Criminal Justice (Public Order) Act 1994 as amended by s. 22 of the Intoxicating Liquor Act 2008.’

5 The prosecutor was represented by Michael Durkin solicitor of the office of the Chief Prosecution Solicitor, Infirmary Road, Dublin 7. The defendants were each represented by John Berry B.L. instructed by Cahir O'Higgins and Company, Kings Bridge House 17-22 Parkgate Street, Dublin 8.

6 The case proceeded to trial, and the prosecution called two witnesses, Gerard Gilmartin a contractor for Irish Water and Sergeant David Gilmore. It had been intended to call Gardaí Brian Whitney, Carol Mullane and William Brosnan but counsel for the defendants indicated that it was accepted by the defendants that they had been validly arrested. The facts as proved or admitted are agreed:

(a) Mr. Gilmartin gave evidence that on the 18th May, 2015 he was doing work for Irish Water installing water meters in Dun Laoghaire, Co. Dublin. 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 the water meters being installed in the area.

(b) At 2p.m. Mr. Gilmartin was driven down York Road when he saw a vehicle, a truck, which had been stopped by a group of protestors. He was driving in the opposite direction. Mr. Gilmartin then did a three point turn to get away from the protestors. The protestors saw his vehicle and began running after him. He drove his car away and parked it.

(c) He then went to see where the truck had been blocked by the protestors. The truck was being driven by a man called Declan McCormack. Mr. McCormack was unable to remove the truck because he was being blocked by protestors. 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.

(d) Mr. Gilmartin recalled the gardaí arriving at about 2.20p.m. He told them he was in charge of the site and told them what had happened. The protestors remained at the road when the gardaí were there. At approximately 3p.m. Mr. Gilmartin spoke to Sergeant David Gilmore and told him what had happened. Mr Gilmartin took photographs of the street. After the protestors were arrested and the road was cleared, he saw the truck drive up the road and leave the area.

(e) Sergeant Gilmore gave evidence that on the 18th May, 2015 that 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 3.05p.m. Already present at the scene when he arrived were Gardaí Paul O'Donnell, Lee Graydon and Joseph Byrne.

(f) Sergeant Gilmore observed the truck stop on the outbound lane of York Road. It was a flatbed truck bearing Registration No. 08D45673 with a trailer with 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 the traffic. He observed Declan McCormack was sitting in the driver's seat of the truck. The engine was running. He had a conversation with Mr. McCormack as to what had occurred.

(g) At 3.40pm Sergeant Gilmore gave a direction to the people both in front of and behind the truck under section 8 of the Criminal Justice (Public Order) Act 1994 as he believed that each of them were committing an offence under s. 9 of the said act. He informed each of them of the consequences of failing to comply with the direction. All of them failed to comply with this direction.

(h) At 4.05pm Sergeant Gilmore left the scene and returned to Dun Laoghaire Garda Station to discuss the situation with Superintendent Martin Fitzgerald, Inspector Tom O'Sullivan and Inspective Martin Creighton. He returned to York Road at 4.45pm. On his return he observed that the truck was still in the same position with the engine running, and the same people were in the same positions preventing vehicles moving forward. They were the same people to whom he had earlier given the direction under s. 8 of the Criminal Justice (Public Order) Act 1994.

(i) At 4.45pm Sergeant Gilmore made a demand under s. 24 of the Criminal Justice (Public Order) Act 1994 for the name and address of people who were blocking the traffic on York Road. The people to whom the demand was made were the...