People v Kehoe

 
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1983 WJSC-CCA 244

MR JUSTICE MR CARNIY

MR JUSTICE O'HANLON

NR JUSTICE MURPHY

119/1981
DPP v. KEHOE
THE DIRECTOR OF PUBLIC PROSECUTIONS
.v.
PATRICK J. KEHOE
1

7th day of February 1983 By MR CARTHY J.

MR CARTHY J.
2

This is an application for leave to appeal against a conviction of the offence of obstruction of government contrary to section 7 of the Offences Against the State Act 1939as amended by section 2 of the Criminal Law Act 1976. The Court has already dismissed the application but having regard to the fact that the informed that this is the first prosecution under section 7 aforesaid the Court feels that it give reasons in some detail for that decision.

3

It seems to the Court that the effect and import of sub-section (1) of section 7 of the Offences Against the State Act 1939may be seen more clearly by setting out that sub-section in the following manner:-

"Every person or obstructs, or attempts or is concerned in an attempt to prevent or obstruct, by force of arms or other violent means or by any other form "of intimidation:-"

(a) the carrying on of the government of the State or any branch (whether legislative, judicial or executive) of the government of the State, or,

(b) the exercise or performance by any member of the legislature, the judiciary, or the executive or by any officer or employee (whether civil (including police) or military) of the State of any of his functions, powers or duties

4

shall be guilty of a felony."

5

In the sub-section thus recast it is clear that the word "government" is not used in the sense in which the word is used in Article 28 of the Constitution or what is otherwise frequently described as the "Cabinet". The recognition, within the section, of the legislature, the judiciary and the executive as being branches of the government of the State, an echo of Article 6 of the constitution, clearly indicates a distinction between the meaning to be attached to the word "government" as used in this section and its use in Article 28 of the Constitution where it is limited to the executive power of the state. It follows that the section prohibits actions which prevent or obstruct the wide range of activities legislative, judicial or executive which are involved in the government or governing of the State.

6

It is clear, therefore, that actions affecting any of a wide range of activities may fall within that part of the sub-section which is described at sub-paragraph (a) above. Even then the net cast by the second part of sub-section (1) of section 7, that is to say, the part described at sub-paragraph (b) above, is even more far-reaching. In its terms it applies to the prevention or obstruction (by some violent means) of the exercise or performance of any individual legislator, judge, member of the executive or officer or employee of the State - including the Gardai and the military - of his functions, powers or duties. It is not expressly required that the individual who is prevented or obstructed from performing his duties should have been so prevented or obstructed in the course of those duties or indeed that the wrong-doing should have taken place with that or any other particular intent.

7

Perhaps the most significant factor in interpreting section 7 is the contrast between that section and section 9 of the same Act. The latter section - so far as material - provides as follows:-

"Every person who shall with intent to undermine public order or the authority of the State commit any act of violence against or of interference with a member of a lawfully established military or police force (whether...

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