DPP v Michael Delaney

• Jurisdiction: Ireland
• Judgment Date: 27 November 1997
• Date: 27 November 1997
• Docket Number: [S.C. No. 137 of 1996]
• Court: Supreme Court

Director of Public Prosecutions v. Michael Delaney

In the matter of s. 52 of the Courts (Supplemental Provisions) Act

1961.

The Director of Public Prosecutions

Respondent

and

Michael Delaney, Wayne Kelly, Alan Lawless, Anthony Lawless and David Crowley

Appellants

[S.C. No. 137 of 1996]

Supreme Court

Criminal Law - Constitutional rights - Inviolability of dwelling of citizen - Whether entry without warrant or permission justified by "extraordinary excusing circumstances"- Whether "extraordinary excusing circumstances" relevant to lawfulness of arrest - Whether lawfulness of arrest relevant to charges - Constitution of Ireland 1937, Article 40, s. 5.

Constitution - Inviolability of dwelling of citizen - Right to life - Whether entry to dwelling without warrant could be based on implied permission based on protecting life - Constitution of Ireland, 1937, Article 40, ss. 3 and 5.

Article 40, s. 5 of the Constitution states "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law". Sergeant M. together with nine gardaí arrived at the scene of a disturbance where a crowd, some armed with sticks, were threatening to burn down a flat. The sergeant felt he had to take preventive action. He looked in through a window to the flat and saw that the appellants had barricaded themselves in and were armed with weapons. They told him not to enter the flat. Two women nearby claimed that there were children in the flat.

The sergeant said be 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". He entered with five gardaí. Four children were found unharmed in a bedroom upstairs in the flat.

The five appellants were arrested and charged with various offences including using words with intent to provoke a breach of the peace, producing an article capable of inflicting serious injury, unlawfully assaulting a garda in the execution of his duty, and in one case, failure to appear in court after entering into a recognisance.

At the conclusion of the prosecution case against the appellants in the District Court, an application was made on behalf of all the appellants for a direction, on the grounds that the gardaí had entered the flat illegally and in breach of the constitutional rights of one of the appellants who was the occupier of the flat.

The judge of the District Court stated a case for the opinion of the High Court pursuant to s. 52 of The Courts (Supplemental Provisions) Act, 1961.

The High Court (Morris J.) (as he then was) reported at [1996] 3 I.R. 556, answered that the circumstances do not justify an entry by gardaí against the will of the occupier but added that such entry may be justified if the circumstances are such that the gardaí may presume that a consent, express or implied, is given to such entry by the occupier of the building. Further, whether the gardaí would have a power to forcibly and against the will of the occupier enter a dwelling without a warrant would depend on whether (1) in the circumstances the gardaí were justified in concluding that there was an implied invitation extended to them by the mother of Wayne Kelly or by his siblings, to enter the premises so as to protect them, and (2) there was gravity in the situation as to cause the gardaí to believe that the lives of the people in the flat were in danger and that in the circumstances they were required to enter the premises in order to protect the constitutional right to life of the persons in the flat.

Held by the Supreme Court (O'Flaherty, Keane and Murphy JJ.) in dismissing the appeal, 1, that whether an arrest was illegal or not, could only be of relevance where proof of a valid arrest was an essential element to ground a charge.

2. That it was not necessary in the case of any of the charges brought against the appellants to prove a lawful arrest.

3. That, providing the District Judge was satisfied that the sergeant was actingbona fide in the belief that he should enter the dwelling to safeguard life and limb, there was no breach of the Constitution.

Cases mentioned in this report:—

D. v. Director of Public Prosecutions [1994] 2 I.R. 465.

D.P.P. v. Gaffney [1987] I.R. 173; [1986] I.L.R.M. 657.

Director of Public Prosecutions v. Forbes [1993] I.L.R.M. 817.

Director of Public Prosecutions v. McMahon [1987] I.L.R.M. 87.

McMahon v. Attorney General [1972] I.R. 69; (1971) 106 I.L.T.R. 89.

The People (Attorney General) v. O'Brien [1965] I.R. 142.

The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569.

The People v. Shaw [1982] I.R. 1.

Quinn's Supermarket v. Attorney General [1972] I.R. 1.

Case stated.

The facts have been summarised in the headnote and appear in the judgment of O'Flaherty J., infra.

The questions posed by the judge of the District Court were:—

• (1) Having regard to Article 40, s. 5 of the Constitution, is the fact that persons outside the property have threatened to harm persons within it, an "extraordinary excusing circumstance" justifying a forcible entry by the gardaí against the will of the occupier to a dwelling without warrant?

• (2) Do the gardaí enjoy the power to...