DPP v Michael Delaney

• Jurisdiction: Ireland
• Judgment Date: 08 February 1996
• Date: 08 February 1996
• Docket Number: [1994 No. 925SS]
• Court: High 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...