Court of Criminal Appeal quashes conviction where Garda arrest in dwelling was unlawful due to trespass status post Damache ruling.

[2012] IECCA 68

THE COURT OF CRIMINAL APPEAL

No. 61/11 CCA

Hardiman J.

Moriarty J.

Hogan J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/ RESPONDENT

AND

BARRY O’BRIEN

APPELLANT

JUDGMENT of the Court delivered by Hardiman J. on the 2nd day of July, 2012

1. This is another appeal to this Court which traverses issues raised in the aftermath of the finding of the Supreme Court in Damache

v. Director of Public Prosecutions [2012] IESC 12. In that case the Supreme Court found that s. 29 of the Offences against the State

Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) (“the Act of 1939”) was unconstitutional. We have already addressed

some of these complex questions in our judgments in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 64 and

in The People (Director of Public Prosecutions) v. Kavanagh [2012] IECCA 65.

2. The present case, however, raises squarely the question of whether the Gardaí are entitled to effect a lawful arrest under s. 30 of

the Act of 1939 of the owner of a private dwelling in circumstances where – for reasons we shall presently relate - in the aftermath

of Damache they must be objectively adjudged to be trespassers who had no lawful entitlement to be present in that dwelling at the

relevant time.

3. The applicant was convicted by the Special Criminal Court on 7th December, 2010, of membership of an illegal organisation

(namely, an organisation styling itself the Irish Republican Army, otherwise Oglaigh na hEireann on 6th April, 2004), contrary to s. 21

of the Act of 1939, as amended by s.2 of the Criminal Law Act 1976. On 23rd February, 201, the court imposed a sentence of three

years and nine months, effective from 1st January, 2011.

4. The background to the trial so far as the issues pertinent to this appeal are concerned can be summarised thus: Detective

Superintendent O’Sullivan had issued a warrant under s. 29 of the Act of 1939 for the search of Mr. O’Brien’s dwelling at 6 Mountain

View Court, Dundalk. He gave evidence before the Special Criminal Court to the effect that he believed that the applicant “was

actively involved in IRA activity” and “in the movement and transposition of firearms as part of that activity”. He said that he issued a

warrant “for the purpose of searching his premises in an effort to discover those firearms”.

5. On 6th April, 2004, Detective Sergeant Corcoran, Detective Garda Stephen Martin and Detective Garda Brian Whelan went to the

accused’s dwelling. Arriving at approximately 8.30pm, the Gardai knocked on the door which was answered by Mr. O’Brien. They

produced the s. 29 warrant, explained its terms and began to search the dwelling. During the course of the search they found two

mobile phones, a driving licence application, passport photographs, bodhráns bearing the name Bobby Sands and raffle tickets in aid of

the families of paramilitary prisoners. This material was gathered by the Gardaí into evidence bags.

6. In addition, however, the officer deputed to search the upstairs bedrooms, Detective Garda Martin, found a sizeable sum of cash

(€5,850) in an upstairs bedroom which Mr. O’Brien claimed, this matter having been put to him by the investigating Gardaí,

represented a mortgage payment. At all events, Mr. O’Brien was arrested under s. 30 of the Act of 1939 at 8.45pm and the search of

the dwelling concluded at 10pm.

7. There seems to have been some confusion at the trial as to whether this arrest took place before or after the money was

discovered and whether the arrest was prompted by this discovery. Detective Garda Martin’s notes might be thought to suggest that

the arrest was prompted by the discovery of the cash, but in evidence he admitted that he was not sure of the precise sequence of

events. Detective Sergeant Corcoran nevertheless maintained that he had always intended to arrest Mr. O’Brien under s. 30 and that

the slight delay in effecting the arrest was occasioned by the fact that conditions were somewhat hostile when they first entered the

house. While he was accepted that “other evidence” - i.e., presumably evidence gathered during the course of the search – “may

have strengthened that belief”, he insisted that he had always intended to arrest Mr. O’Brien.

8. Following his arrest under s. 30, the appellant was taken to Balbriggan Garda Station where he was questioned about his alleged

membership of an illegal organisation. During the course of those interviews, Mr. O’Brien had access to legal advice. During the course

of those interviews, the Gardaí invoked s. 2 of the Offences against the State (Amendment) Act 1998 (“the Act of 1998”) which,

under certain circumstances, allows for inferences to be drawn from a failure to answer a question posed, although an accused

cannot be convicted based on such failure alone. Opinion evidence was also given by Chief Superintendent McGee pursuant to s. 3(2)

of the Offences against the State (Amendment) Act 1972 (“the Act of 1972”) to the effect that based on information available to him

from a confidential source that Mr. O’Brien was a member of an illegal organisation.

9. In the course of its ruling on the legality of the search and the subsequent arrest, the Special Criminal Court noted that the issue

raised concerning the constitutionality of s. 29 was “obviously arguable”, but it also observed that “as a matter of law this Court must

rule against the defence on that submission”, given that the Special Criminal Court has no jurisdiction to pronounce upon the

constitutionality of a statutory provision. The Court went on to reject the argument that the arrest was unlawful, saying that it was

alleged that the:-

“precipitating cause of the arrest was the finding of the money under the mattress. In fact, there were a number of items

found before that and we’re satisfied that that was not the sole cause of the arrest. And we find the arrest to be valid

under that heading.”

10. This ruling was, however, delivered over a year before the Supreme Court held in Damache that s. 29 of the Act of 1939 was

unconstitutional. Before considering the potential impact of that decision, it is necessary first to consider whether the applicant can

rely on Damache.

Can the applicant rely on the decision in Damache?

11. The issue of the extent to which a person in the positions of the appellant can rely on a subsequent finding of unconstitutionality

was fully examined by this Court in its recent decisions in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA

64 and The People (Director of Public Prosecutions) v. Kavanagh [2012] IECCA 65. One may summarise these decisions by saying

that, generally speaking, an appellant in this situation will be allowed to gain the benefit of such a finding of unconstitutionality

where:-

The matter has been raised at the court of trial and the appellant has taken no steps which suggests that he has

acquiesced in or otherwise waived the point by, for example, pleading guilty to the charge.

The criminal proceedings against the appellant have not been finalised and either a trial or an appeal from conviction is

still pending.

12. It is plain that the appellant satisfies both of these conditions. The applicant pleaded not guilty and his counsel, Ms. Murphy S.C.,

submitted before the Special Criminal Court that in appropriate proceedings, s. 29 might well be found to be unconstitutional. For good

measure the applicant had also endeavoured to raise issues concerning the validity of the s. 29 warrant (along with a challenge to

the constitutionality of s. 3(2) of the Act of 1939 Act) in separate judicial review proceedings, but these proceedings were dismissed

in part (at least) because they were premature: see O’Brien v. Special Criminal Court [2009] IEHC 555.

13. It is likewise clear that the criminal proceedings are still outstanding. Accordingly, judged by reference to the tests articulated by

us in both Cunningham and Kavanagh, the appellant can properly rely on the decision in Damache.

If the appellant can rely on Damache, what consequences follow from this?

14. If the appellant can rely on Damache, then it follows that so far as he is concerned, the search of his dwelling must be judged to

be objectively unlawful as a breach of the appellant’s constitutional right to the inviolability of the dwelling as guaranteed by Article

40.5. After all, the existence of the s. 29 warrant provided the only legal basis for the search. Yet it follows from the finding of

unconstitutionality in Damache that neither the section nor the warrant on which it was based had any proper legal basis, even if, of

course, the Gardai who searched Mr. O’Brien’s dwelling had no reason to believe that they were operating other than in a perfectly

proper and lawful manner. There can, of course, be no suggestion on the facts of the present case that the Gardai had any express

or implied licence to enter the dwelling, since the evidence was that the occupants of the dwelling were (at least initially) hostile to

the presence of the Gardai and the Gardai entered the dwelling solely on the authority of the s. 29 warrant.

15. It is true that in its ruling of 7th December, 2010, the Special Criminal Court rejected the argument that the findings of the

bodhráns, raffle tickets and cash in the appellant’s dwelling was sufficient to connect him with membership of an illegal organisation.

However, the Court also concluded that in respect of one particular interview Mr. O’Brien had failed within the meaning of s. 2 of the

Act of 1998 to answer “a number of questions put to him relating to the finding of his fingerprints” on a particular motor vehicle which

had been stopped by the Gardaí. The court then concluded that:-

“Having regard to all of the evidence in this case and, in particular, the failure of the accused to answer a number of

questions as referred to above, put to him pursuant to s. 2 aforesaid, the Court is satisfied that it may treat such failure

as capable of amounting to corroboration of the evidence of a Chief Superintendent in this case and we so find.”

16. The court then proceeded to find Mr. O’Brien guilty of membership of an illegal organisation. What is clear here is that the

inferences drawn from the appellant’s silence while he was in detention pursuant to the s.30 arrest formed an integral part of the

chain of reasoning of the Special Criminal Court’s ruling which led to his conviction. This accordingly obliges us now to consider the

antecedent question of whether Mr. O’Brien’s arrest was lawful and whether he was in lawful detention at the time of his questioning

pursuant to s. 2 of the Act of 1998.

17. Counsel for the Director of Public Prosecutions, Mr. Clarke S.C., could not point us to any case where an arrest under s. 30 was

held to be valid in circumstances such as these where the Gardaí, objectively speaking, were trespassers in a private dwelling. Of

course, as this Court noted in The People (Attorney General) v. Hogan (1972) 1 Frewen 360, 362, the guarantee in Article 40.5 is “not

against forcible entry only”. Rather, Article 40.5 by guaranteeing the “inviolability” of the dwelling reflects long standing constitutional

traditions in both common law and civil law jurisdictions, features of which were stressed in both Damache and Cunningham

respectively. This constitutional guarantee presupposes that in a free society the dwelling is set apart as a place of repose from the

cares of the world. In so doing, Article 40.5 complements and re-inforces other constitutional guarantees and values, such as

assuring the dignity of the individual (as per the Preamble to the Constitution), the protection of the person (Article 40.3.2), the

protection of family life (Article 41) and the education and protection of children (Article 42). Article 40.5 thereby assures the citizen

that his or her privacy, person and security will be protected against all comers, save in the exceptional circumstances presupposed

by the saver to this guarantee.

18. In these circumstances, clear, direct and express language would be necessary before this Court would be prepared to impute to

the Oireachtas an intention to override such a carefully protected constitutional rights: cf. by analogy the comments of Henchy J. in

Director of Public Prosecutions v. Gray [1987] I.R. 173, 281 and those of Griffin J. in Murphy v. Greene [1990] 2 I.R. 566, 577.

Certainly, we cannot find in the general language of s. 30 of the Act of 1939 any words which would allow us to presume that the

Oireachtas contemplated that an arrest under that section might lawfully made by members of An Garda Síochána of an occupant of

that dwelling in circumstances where the arrest took place in the dwelling and where the Gardai had, objectively speaking, no

authority to be present. As Henchy J. observed in Gray ([1987] I.R. 173, 182), a case where the Supreme Court held that the arrest

of the accused in his own dwelling under s. 107 of the Road Traffic Act 1961 was unlawful):-

“if the arresting member of the Garda Síochána is in the dwelling unlawfully (i.e., as a trespasser) at the time of the

arrest, the arrest is unlawful.”

19. In these circumstances, this Court must accordingly conclude that the arrest of Mr. O’Brien was unlawful. Shorn of the authority

of s. 29 of the Act of 1939 in the wake of Damache, the Gardai were - through no personal fault of their own – trespassers in Mr.

O’Brien’s dwelling. They therefore lacked any authority to arrest him under s.30 of the Act of 1939. We further consider that this

conclusion is also supported by the judgment of McCracken J. for this Court in The People (Director of Public Prosecutions) v. Laide

[2005] IECCA 24, [2005] 1 I.R. 209.

20. Since, however, the judgment of the Special Criminal Court implicitly proceeds on the basis that Mr. O’Brien was in lawful custody

at the time of the questioning under s.2 of the 1998 Act and further proceeds on the premise that the arrest at his dwelling was a

lawful one, it must follow therefore that the conviction cannot stand in the wake of this conclusion. In view of this conclusion, it is

unnecessary to consider any further submission.

Conclusions

21. In these circumstances, the Court will accordingly quash the conviction imposed by the Special Criminal Court and direct a re-trial

of Mr. O’Brien.