DPP v Philip O'Brien
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 28 October 2021 |
| Neutral Citation | [2021] IECA 290 |
| Docket Number | Record Number: 2020 102 |
In the Matter of Section 2 of the Summary Jurisdiction Act 1857, as Extended by Section 51 of the Courts (Supplemental Provisions) Act 1961
[2021] IECA 290
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 2020 102
THE COURT OF APPEAL
Conviction – Obstruction – Case stated – Appellant appealing against the judgment and order of the High Court – Whether the trial judge erred in law by finding that the Gardaí do not have a common law power of entry to effect an arrest for a breach of the peace contrary to common law
Facts: The respondent, Mr O’Brien, was convicted of an offence of resisting and obstructing a peace officer, contrary to s. 19 of the Criminal Justice (Public Order) Act 1994, and sought to appeal by way of case stated to the High Court pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961. The opinion of the High Court was sought on the following questions: (i) In light of the evidence heard before the District Court, did the Gardaí enjoy a common law power to enter the dwelling of the respondent to effect an arrest for the offence of breach of the peace, contrary to common law? (ii) If the answer to question (i) is no, was the District Judge correct in holding that the respondent had a case to answer in relation to the obstruction charge? On the 6th February 2020, the High Court Judge answered both questions in the negative. The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal on the following grounds: (1) the judge erred in law by failing to consider whether the Gardaí had a right to enter the premises pursuant to s. 6 of the Criminal Law Act 1997 and considering himself restricted to answering the specific questions posed in the case stated; (2) the judge erred in law by determining that, as s. 6 had not been specifically relied on by the Gardaí, it did not apply; and (3) the trial judge erred in law by finding that the Gardaí do not have a common law power of entry to effect an arrest for a breach of the peace contrary to common law.
Held by the Court that there is a common law power vested in Gardaí and citizens for a breach of the peace at common law. The Court held that this power does not extend to entering a dwelling at common law to effect an arrest for a breach of the peace. The Court held that Gardaí may enter a dwelling at common law where the exigencies of the situation demand it, such as where there is a risk to life and limb. The Court held that Gardaí may also enter with express or implied consent of the occupier. As s. 6 of the Criminal Law Act 1997 was expressly disavowed in the High Court, the Court held that this point may not be argued on appeal.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT delivered on the 28th day of October 2021 by Ms. Justice Isobel Kennedy.
This is an appeal against the judgment and order of the High Court (Meenan J.) delivered on the 6th February 2020.
The matter came before the High Court by way of case stated by Judge Waters of the District Court pursuant to section 2 of the Summary Jurisdiction Act 1857 as extended by section 51 of the Courts (Supplemental Provisions) Act 1961.
On the 30th May 2018 the respondent appeared before the District Court for summary trial to answer two complaints, the subject matter of the following summonses:-
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(i) The first summons alleged an offence of resisting and obstructing a peace officer, contrary to section 19 of the Criminal Justice (Public Order) Act 1994 (“the obstruction charge”); and
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(ii) The second summons alleged an offence of simple assault contrary to section 2 of the Non-Fatal Offences Against The Person Act 1997 (“the assault charge”).
A summary of the facts as found by the District Iudge can be found at paras 3–5 of the High Court judgment ( [2020] IEHC 110) and it is not necessary to repeat them here. The relevant facts can be simply stated. Members of An Garda Síochána entered the respondent's apartment in order to effect his arrest for the offence of breach of the peace, contrary to common law. The respondent resisted the attempts of the Gardaí to arrest him and the arrest was eventually effected in the kitchen of the apartment.
At the close of the prosecution case, an application of no case to answer was made where it was contended that the Gardaí had no right under common law to enter the respondent's apartment to effect an arrest for breach of the peace.
This application was refused, the judge finding that An Garda Síochána had a common law power to enter the respondent's apartment to effect an arrest for the offence of breach of the peace contrary to common law. The respondent was convicted of the obstruction charge and sought to appeal by way of Case Stated to the High Court. The opinion of the High Court was sought on the following questions:-
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(i) In light of the evidence heard before the District Court, did the Gardaí enjoy a common law power to enter the dwelling of the defendant to effect an arrest for the offence of breach of the peace, contrary to common law?
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(ii) If the answer to question (i) is no, was the District Judge correct in holding that the defendant had a case to answer in relation to the obstruction charge?
The High Court Judge came to a number of conclusions which led him to answer both questions in the negative. Firstly, he found that the English authorities on the issue before the Court were of limited assistance, given the provisions of Article 40.5 of the Constitution. These authorities include Robson v. Hallett [1967] 3 WLR 28 and Rice v. Connolly [1966] 2 QB 414. Secondly, he found that any permitted restriction of the constitutional right in question must be minimal and, save where life is in imminent danger, in which case other constitutional rights are engaged, the restrictions on the rights/guarantees enshrined in Article 40.5 are those set out in statute. In the instant case, the relevant statutory provision is section 6 of the Criminal Law Act 1997. Thirdly, the Gardaí did not rely on the provisions of section 6(2), therefore, the Gardaí did not enjoy a common law power to enter the dwelling of the defendant to effect an arrest for the offence of breach of the peace.
The appellant puts forward the following three grounds of appeal:-
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(1) The learned judge erred in law by failing to consider whether the Gardaí had a right to enter the premises pursuant to section 6 of the Criminal Law Act 1997 and considering himself restricted to answering the specific questions posed in the case stated;
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(2) The learned judge erred in law by determining that, as section 6 had not been specifically relied on by the Gardaí, it did not apply;
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(3) The learned trial judge erred in law by finding that the Gardaí do not have a common law power of entry to effect an arrest for a breach of the peace contrary to common law.
The appellant submits that the judge erred in concluding that the Gardaí did not enjoy a common law power to enter the dwelling of the respondent to effect an arrest for the offence of breach of the peace. The appellant contends that in doing so, the judge conflated the fact that section 6(2) of the 1997 Act was not specifically relied upon to conclude that a common law power of entry did not exist. A common law power of entry can co-exist with a statutory power of entry, unless specifically excluded. It is further submitted that a finding that a common law power of entry to effect an arrest for breach of the peace exists does not dilute the inviolability of the dwelling as enshrined in the Constitution.
The appellant accepts that section 3 of the Criminal Law Act 1997 abolished the distinction between a felony and a misdemeanour and replaced the common law power of arrest with a statutory power. However, the appellant contends that it does not follow that section 6(2) is the only basis upon which entry could have been effected in the circumstances of the instant case.
The appellant submits that the English authorities make clear that the common law power of entry for breach of the peace goes no further than the statutory powers and as such, the trial judge was incorrect in his assessment that the English authorities were of limited assistance due to the provisions of Article 40.5 of the Constitution.
The appellant submits that the trial judge erred in determining that section 6 did not apply and that the decision in The People (DPP) v. Laide [2005] 1 IR 209 prevented reliance on section 6 in the instant case.
Thorpe v. DPP [2007] 1 IR 502 clarifies that breach of the peace, contrary to common law, is an arrestable offence, and therefore amenable to the provisions of section 6 of the 1997 Act. Accordingly, the Gardaí had a right of entry in order to effect the arrest. Whilst the arresting garda may not have specifically stated the relevant power at the time, it is submitted that the existence of the power is sufficient to allow him entry, even if he mistakenly entered on the basis of another power he believed he had.
Although the District Judge was not asked to rule on this issue, the authorities make clear that the High Court Judge was entitled to consider this issue. The appellant refers to the following passage from Attorney General (Fahy) v. Bruen (No. 2) [1937] IR 125:-
“An appeal by way of Case Stated under this statute is left entirely at large so far as concerns questions of law, and not alone may questions be raised on appeal to which the statement of the Case was not directed, but also questions which were not raised at all before the District Justice, provided that they are questions of law.”
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