Mulligan v DPP (Garda Ryan)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Charleton
• Judgment Date: 29 October 2008
• Neutral Citation: [2008] IEHC 334
• Date: 29 October 2008
• Docket Number: [2008 No. 645

[2008] IEHC 334

THE HIGH COURT

No. 645 S.S./2008

Mulligan v DPP

IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED

PURSUANT TO SECTION 2 OF THE SUMMARY JURISDICTION ACT

1857, AS EXTENDED BY THE PROVISIONS OF THE

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

JASON MULLIGAN

APPELLANT/ACCUSED

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA LINDA RYAN)

RESPONDENT/PROSECUTOR

SUMMARY JURISDICTION ACT 1857 S2 (UK)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S24

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S24(2)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S24(3)

JUDGES RULES R1

DPP v COWMAN 1993 1 IR 335

DPP v ROONEY 1992 2 IR 7

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S8(2)

DPP v GALLIGAN UNREP HIGH LAFFOY 2.11.1995 1999/7/1721

BATES v BRADY & DPP 2003 4 IR 111

CHRISTIE & ANOR v LEACHINSKY 1947 AC 573

PEOPLE, DPP v WALSH 1980 IR 294

DPP v MOONEY 1992 1 IR 548

CRIMINAL JUSTICE ACT 1964 S4

Abstract:

Criminal law - Appeal by way of case stated - Public order offences - S. 24 (2) and (3) of the Criminal Justice (Public Order) Act 1994 - Whether the Garda was obliged to advise the accused of the penalties of failing to provide his name and address.

Facts The appellant was convicted of an offence pursuant to s. 24 of the Criminal Justice (Public Order) Act, 1994 for failing to supply his name and address to the prosecuting Garda. During the course of the hearing no evidence was given that when making the demand the Garda invoked or referred to s. 24(2) of that Act or informed the appellant that it was an offence not to provide his name and address once such a demand had been made. This appeal by way of case stated asked whether the learned District Judge was correct in law in convicting the appellant of the aforementioned offence.

Held by Charleton J. in allowing the appeal: That the principles outlined by Laffoy J. in the case of DPP v Galligan (Unreported, High Court, 2 November 1995), namely that a person should be informed of his legal obligation to comply with a request by a member of An Garda Siochana and also informed of the penal sanction applicable in the event of non compliance, applied to the power of compulsion under s. 24(2) of the Act of 1994. However, the Garda was not required to quote the specific sections and wording of the Act.

DPP v. Rooney [1992] 2 I.R. 7 and Bates v Brady [2003] 4 I.R. 111 followed.

Reporter: L.O'S.

1 Mr. Justice Charletondelivered the 29th day of October, 2008

2 1. This is an appeal by way of case stated by District Judge Patrick McMahon pursuant to section 2 of the Summary Jurisdiction Act 1857 (as extended by section 51 of the Courts (Supplemental Provisions) Act 1961) on the application of the appellant who was dissatisfied with the determination of the learned District Judge as being erroneous in point of law.

3 2. The opinion of the High Court has been sought on the following questions:

4 (i) Where a person is charged with an offence contrary to section 24 of the Criminal Justice ( Public Order) Act 1994 in that following a demand by a member of An Garda Síochána, exercising powers under section 24(2) of the Criminal Justice ( Public Order) Act 1994, he did fail to provide the saidmember with his name and address is the prosecution obliged to prove by way of evidence:-

5 (a) That the demand for the name and address was made pursuant to section 24(2) of the Criminal Justice ( Public Order) Act 1994;

6 (b) That the Accused was informed that the demand was being made pursuant to the aforesaid section;

7 (c) That the accused was informed that failure to comply with such a demand was an offence.

8 (ii) In light of the Court's answers to the above, was the learned District Judge correct in law in convicting the appellant on the evidence before the Court.

Factual Background

9 3. The particulars of the offence alleged against the appellant were that he had, on the 24 ^th of March 2007, at Ballyfermot Road, Ballyfermot, Dublin 10, following a demand made by Linda Ryan, a member of An Garda Síochána, exercising her powers under section 24(2) of the Criminal Justice ( Public Order) Act 1994, failed to provide Garda Ryan with his name and address. He pleaded not guilty, and the charge proceeded to hearing. Garda Linda Ryan was the sole prosecution witness.

10 4. During the course of the hearing, the learned District Judge made the following findings of fact:

11 (i) Garda Ryan came across the appellant asleep and roused him;

12 (ii) Garda Ryan formed the opinion that the appellant was intoxicated;

13 (iii) Garda Ryan determined to arrest the appellant for his own safety;

14 (iv) Garda Ryan twice asked the appellant for his name and address, which he refused to provide;

15 (v) Garda Ryan, in making the said demand of the appellant, did not invoke or refer to section 24(2) of the Criminal Justice ( Public Order) Act 1994;

16 (vi) Garda Ryan, in making the said demand of the appellant, did not inform the appellant that it was an offence not to provide one's name and address once such a demand has been made.

17 5. At the close of the Prosecution case, counsel for the appellant sought a direction that there was no case to answer on the basis that no evidence had been adduced that Garda Ryan had made a demand for the appellant's name and address in the exercise of her powers under section 24(2) of the Criminal Justice ( Public Order) Act 1994.

18 6. It was further submitted on behalf of the appellant that, even were such a demand made, natural and constitutional justice, and in particular the doctrine of fair procedures, would dictate that for such a demand to be proved lawful, it would have to be proved that the appellant was informed that failure to comply with such a demand was an offence, as it was not an offence to fail to comply with a demand which was unlawful or unconstitutional.

19 7. The learned District Judge declined to hold with counsel's submissions and, having heard all the evidence, was satisfied that the offence had been proven beyond reasonable doubt.

The Relevant Power

20 8. Sections 24(2) and (3) of the Criminal Justice ( Public Order) Act 1994 provide as follows:

21 2 "(2) Where a member of An Garda Síochána is of the opinion that an offence has been committed under a relevant provision, the member may:

22 2 (a) demand the name and address of any person whom the member suspects, with reasonable cause, has committed, or whom the member finds committing, such an offence...

23 3 (3)Any person who fails or refuses to give his name and...