DPP v Michael Delaney

JurisdictionIreland
Judgment Date08 February 1996
Date08 February 1996
Docket Number[1994 No. 925SS]
CourtHigh Court

High Court

[1994 No. 925SS]
The 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
Prosecutor
and
Michael Delaney, Wayne Kelly, Alan Lawless, Anthony Lawless and David Crowley
Accused

Cases mentioned in this report:—

Director of Public Prosecutions v. Closkey (Unreported, High Court, O'Hanlon J., 6th February, 1984).

D.P.P. v. Forbes [1993] I.L.R.M. 817.

McLeod v. Metropolitan Police Commissioner [1994] 4 All E.R. 553.

The People v. Lynch [1982] I.R. 64; [1981] I.L.R.M. 389.

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

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

Thomas v. Sawkins [1935] 2 K.B. 249; [1935] All E.R. 655; (1935) 104 L.J.K.B. 572; 153 L.T. 419; 99 J.P. 295; 51 T.L.R. 514; 79 Sol. Jo. 478; 33 L.G.R. 330; 30 Cox C.C. 265.

Constitution - Inviolability of dwelling - Whether "extraordinary excusing circumstances"justifying entry to dwelling without warrant or permission - Whether concept of extraordinary excusing circumstances confined to admissibility of evidence - Constitution of Ireland, 1937, Article 40, s. 5.

Constitution - Inviolability of dwelling - Permission to gardaí to enter - Whether giving or withholding of consent confined to one occupier - Whether permission to enter dwelling to enforce law or prevent a breach of law could be implied - Constitution of Ireland, 1937, Article 40, s. 5.

Constitution - Inviolability of dwelling - Right to life - Whether garda entitled to give priority to right to life in appropriate circumstances - Whether garda entitled to enter dwelling to prevent a breach of the peace - Constitution of Ireland, 1937, Article 40, ss. 3 and 5.

Consultative case stated.

The facts have been summarised in the headnote and are more fully set out in the judgment of Morris J., infra.

On the 25th July, 1994, Judge Gillian Hussey, a judge of the District Court, signed the case stated. The questions of law for the opinion of the High Court are set out in the headnote, supra, and in the judgment infra.

The case stated was heard by the High Court (Morris J.) on the 12th January, 1996.

Article 40, s. 5 of the Constitution of Ireland, 1937, provides as follows:—

"The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law."

Sergeant M. and other members of the Garda Síochána arrived at the scene of a disturbance. A crowd, some of whom were armed with sticks, had gathered on a street and were showing hostility to the persons in a flat. Sergeant M. looked through a window of the flat and saw that the five accused had barricaded themselves inside and were armed with weapons. The accused demanded that Sergeant M. should not enter the flat and refused his request that they leave under garda escort for their own safety. The second accused was the occupier of the flat.

Two women who were at the scene of the disturbance informed Sergeant M. that there were young children inside the flat. He then entered the flat believing that he had the power under common law "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." The mother of the second accused and four children, his siblings, were found in a bedroom unharmed. The accused were arrested and subsequently charged with various offences, including using words with intent to provoke a breach of the peace; producing an article capable of inflicting serious injury; assaulting gardai in the execution of their duty; and in one case, failure to appear in court after entering into a recognizance.

At the trial of the accused before the District Court, on conclusion of the prosecution case, an application was made on behalf of all the accused to the judge for a direction on the basis that the entry by the gardaí into the flat was illegal and in breach of the second accused's constitutional rights and, accordingly, the arrests were unlawful.

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 questions of law were as follows:—

  • 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 forcibly and against the will of the occupier enter a dwelling without a warrant for the purpose of preventing a breach of the peace caused by persons outside the dwelling in relation to the persons within it?

  • 3. Do the gardaí enjoy a power to enter a dwelling forcibly, against the will of the occupier and without a warrant, for the purpose of protecting the safety of persons in that dwelling from threats originating outside the dwelling as opposed to from within it?

  • 4. Do the gardaí have the power to enter a dwelling forcibly and against the will of the occupier without a warrant on the basis that they have formed the view that there may be children in the dwelling, the other occupants of which (including their mother) have sought to protect themselves against the person seeking to unlawfully gain access thereto?

Held by Morris J., in answering the case stated, 1, that the concept...

To continue reading

Request your trial
10 cases
  • Whelton v District Judge O'Leary & DPP
    • Ireland
    • Supreme Court
    • December 21, 2010
    ... ... THE STATE ACT 1939 S21 CRIMINAL LAW ACT 1997 S4 OFFENCES AGAINST THE STATE ACT 1939 S43 CONSTITUTION ART 38 DPP v DELANEY & ORS 1997 3 IR 453 1998 1 ILRM 507 1998/4/896 ROAD TRAFFIC ACT 1961 S49 DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 ... - O'Brien v Special Criminal Court [2007] IESC 45, [2008] 4 IR 514 distinguished; State (AG) v Judge Fawsitt [1955] IR 39 , DPP v Michael Delaney [1997] 3 IR 453 , Killeen v DPP [1997] 3 IR 218 , State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 and DPP(McTiernan) v ... ...
  • Freeman v DPP
    • Ireland
    • High Court
    • November 28, 1996
    ...I.R. 142, People (Director of Public Prosecutions) v. Kenny[1990] 2 I.R. 110 and Director of Public Prosecutions v. Michael Delaney[1996] 3 I.R. 556 considered. 6. That there was ample evidence available to the gardaí for the sworn information grounding the search warrant, independent from ......
  • Director of Public Prosecutions v Carter
    • Ireland
    • Supreme Court
    • March 5, 2015
    ... ... Justices of County Cork [1898] 2 I.R. 694 , The State (Lynch) v. Ballagh [1986] I.R. 203 , The Director of Public Prosecutions v. Delaney [1997] 3 I.R. 453 and The Director of Public Prosecutions (McTiernan) v. Bradley [2000] 1 I.R. 420 ... The law is comprehensively and usefully ... ...
  • Devoy v Governor of Portlaoise Prison and Others
    • Ireland
    • High Court
    • June 22, 2009
    ... ... GOVERNOR OF PORTLAOISE PRISON 2004 2 IR 573 MURRAY v IRELAND 1985 IR 532 1985 ILRM 542 DPP v SHAW 1982 IR 1 DPP v DELANEY 1997 3 IR 453 D v DPP 1994 2 IR 465 GALLAGHER, STATE v GOV OF PORTLAOISE PRISON UNREP FINLAY 18.5.1977 1977/4/656 DELANY ... that we have moved on from the days of routine solitary confinement and the types of regimes described so vividly by the leading penologist Michael Ignatieff in his book entitled " A Just Measure of Pain - The Penitentiary in the Industrial Revolution 1750 - 1850 ". Because man is a social ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT