McDONAGH v KILKENNY COUNTY COUNCIL

• Jurisdiction: Ireland
• Judgment Date: 23 October 2007
• Docket Number: [2006 No. 443 JR]
• Date: 23 October 2007
• Court: High Court

[2007] IEHC 350,

High Court

[2006 No. 443 JR]

McDonagh v. Kilkenny County Council

Thomas McDonagh, Mary McDonagh, John Paul McDonagh, Bridget McDonagh, Martin McDonagh, Winnie McDonagh, Michael McDonagh, Mary McDonagh, Patrick McDonagh and Anne McDonagh

Applicants

and

Kilkenny County Council, The Commissioner of An Garda Síochána, The Director of Public Prosecutions, Ireland and The Attorney General

Respondents

Cases mentioned in this report:-

Blanchfield v. Harnett [2002] 3 I.R. 207; [2001] 1 I.L.R.M. 193.

Buckley v. United Kingdom (App. No. 20348/92) (1997) 23 E.H.R.R. 101.

C.C. v. Ireland [2005] IESC 48, [2006] 4 I.R. 1; [2006] 2 I.L.R.M. 161.

Chapman v. United Kingdom (App. No. 27238/95) (2001) 33 E.H.R.R. 399.

Connors v. United Kingdom (App. No. 66746/01) (2005) 40 E.H.R.R. 9.

Kennedy v. Director of Public Prosecutions [2007] IEHC 3, (Unreported, High Court, MacMenamin J., 11th January, 2007).

McDonagh v. Clare County Council [2002] 2 I.R 634.

Samaroo v. Secretary of State for the Home Department [2001] EWCA Civ. 1139, [2001] U.K.H.R.R. 1150.

Southwark London Borough Council v. Williams [1971] Ch. 734; [1971] 2 All E.R. 175.

Criminal law - Public order - Notice to remove caravans from site - Exercise by gardaí of powers conferred under public order legislation - Whether interference with dwelling rights or right to respect for family life - Criminal Justice (Public Order) Act 1994 (No. 2), s. 19 - Constitution of Ireland 1937, Article 40.5 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, articles 6 and 8.

Judicial review

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

The applicants were granted leave to apply for reliefs against the respondents by way of judicial review by the High Court (Peart J.) on the 8th May, 2006. An interim order had been granted by the High Court (Clarke J.) on the 13th April, 2006, on an ex parteapplication on behalf of the applicants, preventing the first and second respondents from taking any steps against the applicants for failure to comply with the notice served on them on the 12th April, 2006, pursuant to s. 19 of the Criminal Justice (Public Order) Act 1994, as amended by s. 24 of the Housing (Miscellaneous Provisions) Act 2002, and from taking any steps to remove them from the location on which they were situate.

The substantive matter came on for hearing before the High Court (O Néill J.) on the 1st, 2nd and 3rd May, 2007.

The applicants were members of one extended traveller family. The applicants moved on to a piece of land owned by the first respondent. Notices pursuant to s. 19 of the Criminal Justice (Public Order) Act 1994, as amended by s. 24 of the Housing (Miscellaneous Provisions) Act 2002, were served on the applicants notifying them that they had entered the lands without the due consent of the owner and directing them to leave the lands and to remove from the lands any object belonging to them or under their control. The first applicant refused to comply with this direction and was arrested and charged with an offence under s. 19(D) of the Act of 1994.

The applicants moved from that site on to another piece of land owned by the first respondent. They were asked to move on by gardaí but refused to do so claiming that they had nowhere else to go. Again notices pursuant to s. 19 of the Act of 1994, as amended, were served on the applicants.

The applicants applied to the High Court (Clarke J.) ex parte and were granted interim relief pursuant to O. 84, r. 20(7) of the Rules of the Superior Courts 1986, preventing the respondents from taking steps against them for their failure to comply with the s. 19 notices. The High Court (Peart J.) granted the applicants leave to apply by way of judicial review for, inter alia, an order ofcertiorari quashing the first respondent's refusal to consider an accommodation application to it by the applicants, an order of mandamus compelling the first respondent to perform its statutory duties under the Housing Acts 1966 to 2004 in respect of them and a declaration that there was a presumption that powers under s. 24 of the Act of 2002 would be exercised in a reasonable manner. In addition, leave was granted to seek orders preventing the further prosecution of the first applicant on the charges pursuant to s. 19 of the Act of 1994 by way of judicial review, challenging that section and relying on Article 40.5 of the Constitution of Ireland 1937 and articles 6 and 8 of the European Convention on Human Rights.

In respect of their claim to be accommodated by the first respondent, the applicants claimed to be indigenous to the county of Kilkenny, but it was argued by the first respondent that the applicants had previously claimed to be indigenous to the county of Clare, were a part of the Clare traveller accommodation programme and had been on a housing list in that county up until February, 2006. The application to the first respondent for accommodation was made in February, 2006.

Held by the High Court (O Néill J.), in refusing all the reliefs sought, 1, that the judicial review jurisdiction could not be used as an advisory or consultative jurisdiction in advance of criminal proceedings. Whether or not there was merit in any of the applicants' submissions in regard to the offence was an issue which had to be tested first in the criminal trial. At this remove from the criminal trial, it could not be ascertained whether the applicants had any locus standi to raise the issues as it was not yet apparent what defences were available to them. It was not yet clear whether or not any of the contentions sought to be raised in the judicial review proceedings would actually affect them in the criminal proceedings.

• C.C. v. Ireland [2005] IESC 48, [2006] 4 I.R. 1,Blanchfield v. Harnett[2002] 3 I.R. 207 applied.Kennedy v. Director of Public Prosecutions [2007] IEHC 3, (Unreported, High Court, MacMenamin J., 11th January, 2007) followed.

2. That the rights of the first respondent as the owner of the land in question were infringed by the applicant on their illegal entry and occupation of the land. The protection of the inviolability of the dwelling afforded by Article 40.5 of the Constitution did not entitle the applicants individually or as a family group to invade somebody else's land and establish their dwelling upon it: the protection given by Article 40.5 could not be used as a shield against an unlawful infringement of someone else's rights.

3. That, similarly, the protection afforded by article 8 of the European Convention on Human Rights could not be invoked simply to shield from scrutiny and redress and illegal invasion of another person's property rights.

4. That s. 19 of the Criminal Justice (Public Order) Act 1994, as amended, did not make unlawful what was lawful before. What the section did was to criminalise that which was previously merely tortious, i.e., entry upon land without the consent of the owner, where the specific requirements of s. 19C(1)(b)(i) to (v) were met.

5. That persons who sought accommodation from a housing authority and were disgruntled with the outcome of their application could not take the law into their own hands and occupy other land simply because it was owned by the housing authority. Nor could they avail of a defence of necessity, as a justification for illegal entry and occupation of lands.

Southwark London Borough Council v. Williams [1971] Ch. 734 followed.

Obiter dictum: That continued residence in County Kilkenny together with discontinuance of their inclusion in the traveller accommodation programme in County Clare, might entitle the applicants to have their accommodation needs assessed and catered for in County Kilkenny in the future but that was a separate matter which would have to be the subject of a new application.

Cur. adv. vult.

O Néill J. 23rd October, 2007

[1] The applicants are members of the traveller community and consist of one extended traveller family. The first applicant was born on the 20th July, 1954 and is married to the second applicant and they have ten children, four of whom are still living with these applicants and are aged between thirteen and eighteen years of age. The third and fourth applicants are married to each other but have no children. The third applicant is 26 years of age. The fifth and sixth applicants are married to each other and have seven children between the ages of thirteen and two. The seventh and eighth applicants are married to each other and have no children. The ninth and tenth applicants are married to each other and have six children aged from eleven down to an infant. The applicants have always tended to travel together and as of the commencement of these proceedings there were ten adults and seventeen children travelling and living together.

[2] The events which gave rise to these proceedings took place at two locations or sites in County Kilkenny. The first of these was at Graiguenakill, Glenmore, Co. Kilkenny which appears to have been a picnic area owned by the first respondent. The applicants had moved onto this site and were parked there for some time. In due course some of them moved away but the first applicant remained. Notices pursuant to s. 19 of the Criminal Justice (Public Order) Act 1994, as amended by s. 24 of the Housing (Miscellaneous Provisions) Act 2002, were served on the applicants, notifying them that they had entered these lands without the due consent of the owner and directing them to leave these lands and to remove from it any object belonging to the applicants or under their control. The first applicant refused to comply with the direction in this notice and subsequently on the 3rd February, 2006, the first applicant was arrested under s. 19B of the Criminal Justice (Public Order) Act 1994, brought to Waterford garda station where he was charged with...