Supreme Court allows appeal on public order charge but dismisses appeal on bail failure due to missing evidence.

THE SUPREME COURT

[Appeal No: 386/2008]

Denham C.J.

O’Donnell J.

Clarke J.

Between/

PAUL CLIFFORD

Appellant/Accused

and

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA SUSAN McLOUGHLIN)

Respondent/Prosecutor

Judgment of Mr. Justice Clarke delivered the 25th October, 2013.

1. Introduction

1.1 On the 1st October, 2006, an incident involving the appellant/accused (“Mr. Clifford”) occurred at Kilmainham Garda Station.

Partly as a direct consequence of that incident but also arising from investigations made thereafter, Mr. Clifford was charged before

the District Court with two offences. While it will be necessary to analyse the offences concerned in somewhat more detail, in

substance the charges related to, respectively, a public order offence of engaging in conduct, either recklessly or with intention to

provoke a breach of the peace, and an offence of failure to appear at a criminal hearing in respect of which the accused had been

admitted to bail.

1.2 At the close of the prosecution case submissions were made on behalf of Mr. Clifford which suggested that he should be acquitted

on both charges. The District Judge did not agree with those submissions. Mr. Clifford did not go into evidence and was subsequently

convicted but the District Judge did agree to state a case for the opinion of the High Court under the provisions of s. 2 of the

Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961. The substance of the issues

raised in the case stated suggested that it was not open to the District Judge to convict Mr. Clifford on the state of the evidence

presented by the prosecution in relation to both of the charges.

1.3 The case stated came before Charleton J. in the High Court who delivered judgment on the 29th October, 2008, (Clifford v The

Director of Public Prosecutions [2008] IEHC 322). In substance Charleton J. held that the District Judge was correct in law in

convicting Mr. Clifford of the charges on the evidence before the District Court. Mr. Clifford has appealed to this Court against that

finding.

1.4 In substance the issues raised in relation to the two charges which Mr. Clifford faced are entirely distinct and different and it

follows that it is appropriate to consider them separately. I will, therefore, turn, first, to the public order charge.

2. The Public Order Charge – The Facts

2.1 As noted in the case stated, the prosecution case in respect of the alleged public order offence consisted of two witnesses, both

of whom were members of An Garda Síochána. The evidence was that Mr. Clifford arrived at Kilmainhaim Garda Station in the company

of two other persons. Evidence was given that Mr. Clifford was drunk and abusive, kicked and banged on the door in the public office

and demanded the return of a mobile phone. There was evidence that Mr. Clifford said that he would “get” Garda McLoughlin and that

it would not be him who would “finish her off”. The evidence also suggested that there were other members of the public present in

the public office of the garda station on the occasion in question. The Gardaí concerned accepted in cross-examination that none of

those other persons attempted to become involved in the incident. Rather those persons shied away from the confrontation. The

Gardaí also accepted that none of the Gardaí present would have breached the peace in response to Mr. Clifford’s behaviour. In those

circumstances, at the close of the prosecution case, it was submitted on behalf of Mr. Clifford that there was no evidence on which a

court could find, either directly or by inference, that Mr. Clifford intended to provoke a breach of the peace or that he was reckless

as to whether a breach of the peace might have been occasioned.

2.2 As already noted, the District Judge declined the application for a direction made on behalf of Mr. Clifford and, in circumstances

where Mr. Clifford did not tender any evidence either by himself or on his behalf, the District Judge held that it had been proved

beyond reasonable doubt that Mr. Clifford had committed the offence as charged.

2.3 So far as that charge is concerned the issues referred to the High Court for its opinion under the case stated procedure were as

follows:-

“(a) Where a person is charged with an offence contrary to Section 6 of the Criminal Justice (Public Order) Act, 1994,

was the Prosecution obliged to prove by way of evidence that the Appellant, having used or engaged in threatening,

abusive or insulting words or behaviour:

(i) intended to provoke a breach of the peace as a consequence of that behaviour; or in the alternative;

(ii) was reckless as to whether a breach of the peace might have been occasioned as a consequence of that

behaviour.

(b) Where a person is charged with an offence contrary to Section 6 of the Criminal Justice (Public Order) Act, 1994, was

I entitled to infer an intention and/or recklessness to the occasioning of the breach of the peace in the circumstances of

the present case where the evidence was that no such breach was in fact likely to occur”.

2.4 Against that background it is necessary to turn first to the text of the section itself.

3. Section 6

3.1. The text of s. 6(1) of the Criminal Justice (Public Order) Act 1994 is as follows:-

“6(1) It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting

words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace

may be occasioned.”

3.2. It is clear, therefore, that the answer to the first question posed by the District Judge must be yes. The section requires that

words or behaviour as specified be established but also requires that it be proved that the relevant behaviour was carried out either

with intent to provoke a breach of the peace or in circumstances where the alleged perpetrator was reckless as to whether a breach

of the peace might be occasioned. Charleton J. in the High Court correctly concluded that the section was to be construed in that

fashion. There was no controversy before this Court but that Charleton J.’s conclusion in that regard was correct.

3.3. The real question which arises on this appeal is, as noted by the District Judge in the second question referred, as to whether

the District Judge was entitled to infer either intention or recklessness where the evidence was that no breach of the peace was in

fact likely to occur.

3.4. It is important to emphasise that the issue which was before Charleton J. in the High Court and which is before this Court on

appeal is not as to whether the District Judge was factually correct to make a finding either of intent or recklessness but, rather,

whether it was open, on the evidence, to the District Judge to reach such a conclusion. If it were open to the District Judge to find

either the necessary intent or recklessness, then the proper means for dealing with any concern which Mr. Clifford might have had as

to whether the District Judge’s conclusion on that question was in fact correct on the merits was by an appeal to the Circuit Court

rather than by case stated. That procedural distinction is no mere technicality. The purpose of the case stated procedure is to deal

with a point of law arising in, in a case such as this, the District Court, so that the point can be definitively determined by the High

Court, or, if necessary, on appeal from the High Court, by this Court. On the other hand, an appeal on the merits by way of complete

re-hearing is open to any accused convicted in the District Court. The distinction between an appeal and a case stated is, therefore,

one of substance rather than technicality. Those aggrieved by a decision of a District Judge on the merits of the facts have their

remedy in an appeal to the Circuit Court where all the witnesses are reheard. Those who feel that the District Judge is wrong in law

have the option, in addition to or instead of an appeal, of seeking, as Mr. Clifford has done, a case stated. But the case stated

procedure is confined to points of law. Where, therefore, the issue is as to whether a District Judge was correct in reaching a

conclusion on the evidence that a particular charge had been made out, the issue of law likely to arise (and which did arise in this

case) is solely as to whether, as a matter of law, it was open to the District Judge to reach such a conclusion. Provided it was so

open to the District Judge, it is no function of either the High Court or this Court to form a view as to whether the District Judge was

right on the merits.

3.5. The net question to be answered on this appeal, under this heading, is, therefore, as to whether Charleton J. was correct to hold

that it was open to the District Judge to conclude that the offence had been made out on the basis of the evidence before him. In

that context it is next appropriate to turn to the way in which this issue was dealt with by the trial judge.

4. The Public Order Offence - The High Court Judgment

4.1. Following an outline of the facts and a brief analysis of the development of the law on breach of the peace, Charlton J. turned to

an examination of the concepts of intention and recklessness in criminal law, being the necessary degrees of culpability for the s. 6

offence. The trial judge punctuated his succinct elucidation of the law on these points with helpful analogies to more fully explain

these concepts.

4.2. Charlton J. held that prior to a s. 6 conviction based on intent, “the court should be satisfied beyond reasonable doubt that in

doing what he did by way of abusive words or behaviour, or other conduct within the section, the accused’s purpose was to provoke

a breach of the peace.” On the other hand, Charlton J. noted that recklessness can be defined as “subjectively taking a serious risk,

involving high moral culpability, that his conduct will bring about the wrong defined by the charge. …For an accused to be reckless,

it must occur to the mind of accused that his conduct will bring about the consequence impugned but, nonetheless, he proceeds to

act.” On his view of the evidence available, Charleton J. was satisfied that there was “ample evidence upon which both the external

and mental elements of the offence could be found to have been proved by direct testimony or inference.”

5. The Public Order Offence – Discussion

5.1. The starting point of any analysis of the evidential requirement which must be met in order to permit a conviction for an offence

under s. 6 is to note that the focus of the section is on the intent or recklessness of the accused rather than the actual outcome of

the accused’s actions. While, therefore, the fact that no breach of the peace was actually occasioned or, indeed, might have been

likely to have been occasioned, is part of the overall circumstances which any decider of fact has to take into account it is far from

decisive.

5.2. Against that background it is necessary to address some of the English authorities relied on by counsel for Mr. Clifford. Particular

reliance was placed on the decisions in Marsh v. Arscott (1982) Cr.App.R. 211 and D.P.P. v. Orum [1989] 1 W.L.R. 88. In Marsh, the

question was whether the defendant’s abusive language and behaviour was likely to occasion a breach of the peace under s. 5 of the

United Kingdom Public Order Act 1936 in circumstances where the only witnesses to the behaviour concerned were police officers.

McCullough J. concluded at p. 216:

“In the circumstances here, assuming the defendant to have been acting unlawfully in using threatening words and

behaviour, no breach of the peace was likely to have been occasioned. No other person was likely to have broken the

peace, and all that the police were likely to do was arrest him, as they did.”.

5.3. The above passage was quoted with approval by Glidewell L.J. in D.P.P. v Orum, which concerned the similar, but separate,

question of whether a police constable was a person likely to be caused harassment, alarm or distress contrary to s. 5(1)(a) of the

Public Order Act 1986, which replaced the 1936 Act. Glidewell L.J. concluded at p. 93:

"I find nothing in the context of the Act of 1986 to persuade me that a police officer may not be a person who is caused

harassment, alarm or distress by the various kinds of words and conduct to which section 5(1) applies. I would

therefore answer the question in the affirmative, that a police officer can be a person who is likely to be caused

harassment and so on. However, that is not to say that the opposite is necessarily the case, namely, it is not to say

that every police officer in this situation is to be assumed to be a person who is caused harassment. Very frequently,

words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that

of boredom. It may well be that in appropriate circumstances, magistrates will decide (indeed, they might decide in the

present case) as a question of fact that the words and behaviour were not likely in all the circumstances to cause

harassment, alarm or distress to either of the police officers. That is a question of fact for the magistrates to be

decided in all the circumstances: the time, the place, the nature of the words used, who the police officers are, who

else was present and so on.”

5.4. McCullough J. in Orum noted that the amendment to the 1986 Act meant that it was “not the likely physical reaction to the

conduct complained of, but the likely mental reaction to it” which now mattered. He did, however, add that:

“It is improbable in the extreme that any police officer would ever be provoked by threatening, abusive or insulting

words or behaviour to cause a breach of the peace, but it is by no means impossible that such an officer may not feel

harassed, alarmed or distressed as a result of such words or behaviour. This distinguishes the present case from Marsh

v. Arscott.”

5.5. First, it must be noted that the precise statutory provisions applying in England and Wales are not identical to the Irish

provisions. Section 5 of the United Kingdom Public Order Act 1936, which was in issue in Marsh, provided:

“Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour

with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty

of an offence.”

However, as noted above, s. 5 of the Public Order Act 1986 was in issue in Orum. This section, titled “Harassment, alarm or distress”,

provides:

“(1) A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2) An offence under this section may be committed in a public or a private place, except that no offence is

committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed,

by a person inside a dwelling and the other person is also inside that or another dwelling.

(3) It is a defence for the accused to prove—

(a) that he had no reason to believe that there was any person within hearing or sight who was likely

to be caused harassment, alarm or distress, or

(b) …

(c) that his conduct was reasonable. …”

5.6. In any event, I am not satisfied that the somewhat absolutist view which is inherent in those English authorities represents the

law in this jurisdiction. It must, of course, be hoped that, by virtue of their training and character, members of An Garda Síochána

would only act in a legitimate and proportionate manner when provoked. It must, therefore, be hoped that the use of even

outrageous behaviour to An Garda Síochána would not, in fact, provoke a breach of the peace involving the Gardaí themselves.

However, as pointed out earlier, the real question is not as to whether it is likely that a breach of the peace would in fact be

provoked but rather whether such was the intention of the alleged offending party or whether the alleged offending party was

reckless as to the consequences of his behaviour in relation to provoking a breach of the peace. The fact that all responsible citizens

might hope that the Gardaí would not respond to such behaviour by becoming themselves involved in a breach of the peace does not

mean that there may not be circumstances where it is appropriate, having regard to all of the facts, to infer the appropriate intention

or recklessness on the part of the accused.

5.7. It is true in that context, as counsel for Mr. Clifford argued, that one of the matters to be properly taken into account is the fact

that the offending behaviour was directed to members of the Gardaí and the fact that it might be anticipated, at least by many, that

the Gardaí would respond to such behaviour in a responsible way. However that is but one of the factors to be taken into account. It

may be open to a decider of fact to conclude the necessary intent or recklessness notwithstanding that the only persons present and

to whom the relevant behaviour was directed were members of An Garda Síochána. It is by no means impossible to envisage

circumstances where a person might readily be concluded to have intended to provoke the Gardaí to act improperly while at the same

time concluding that it was, in fact, unlikely that those same Gardaí would have acted improperly.

5.8. A similar point applies with even greater force in respect of recklessness. Insofar, therefore, as it might be suggested that the

English authorities to which reference has been made go so far as to suggest that an offence involving the provocation of a breach of

the peace could not be committed where the only persons present were members of the police force, I would not find such authority

persuasive as to the proper interpretation of the law in this jurisdiction. It seems to me that a case where the only persons present

were members of An Garda Síochána is one where that fact needs to be taken into account by the decider of fact but is not one

where, necessarily, the evidence must lead to a conclusion that the offence could not, nonetheless, be made out.

5.9. Next, it is necessary to note that there were members of the general public present on the occasion in question. The evidence,

of course, established that those members shied away from any possible confrontation. However that fact, of itself, does not seem to

me to be particularly relevant. The question is as to the intent or recklessness of Mr. Clifford rather than what the reaction to his

behaviour actually was.

5.10. Against that background it seems to me that it is appropriate to start with a consideration of the recklessness aspect of the

offence. The legal definition of recklessness is well settled. The foremost authority on the concept is The People (D.P.P.) v Murray

[1977] I.R. 360 where recklessness is discussed in the context of capital murder. It is important to note that the members of this

Court in that case were discussing recklessness as to a “concomitant circumstance of an act”, that being the deceased being a

member of An Garda Síochána, and not, as here, recklessness as to the consequences of an act.

5.11. At p. 402, Henchy J. confirmed the subjective nature of the recklessness test by stating that:

“…the test of her guilt for capital murder as well as murder must be a subjective one. The court of trial was not entitled

to judge her by what a reasonable person would have done in the circumstances, but it was entitled to evaluate what

she did in the light of what she must have adverted to at the time.”

5.12. Like Charlton J. in the High Court in the instant case, Henchy J. also referred to the Model Penal Code when attempting to

define recklessness. He stated at p. 403:

“The test of recklessness in this context is well stated in the Model Penal Code - s. 2.02(2)(c) - drawn up by the

American Law Institute:-

“A person acts recklessly with respect to a material element of an offence when he consciously disregards a

substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be

of such a nature and degree that, considering the nature and purpose of the actor's conduct and the

circumstances known to him, its disregard involves culpability of high degree.””

5.13. A common thread running through the other judgments delivered in Murray is the importance of the concept of advertence. At

p. 387, Walsh J. contrasted intention with recklessness:

“…foresight of probable consequences must be distinguished from recklessness which imports a disregard of possible

consequences. The essential difference between intention and foresight on the one hand and recklessness on the other

is the difference between advertence and inadvertence as to the probable result.”

And at pp. 421 – 422, Kenny J. stated:

“To prove that a person was recklessly indifferent, it must be established that there were facts which indicated to the

person concerned the possibility that the forbidden consequences might occur.”

5.14. Griffin J. approved of the following passage from Glanville Williams’ book, Criminal Law (2nd ed.):

“We have seen that the term 'recklessness,' as it has come to be used in juristic thinking, means emphatically a mental

state. It has two distinct though related applications: recklessness as to consequence and recklessness as to

circumstance. ... The element common to the two kinds of recklessness is the conscious taking of a risk. The presence

or absence of the fact (the consequence or circumstance) is not part of the actor's purpose, but he chooses to ignore

the possibility of the fact in order to pursue his purpose.”

5.15. These views were recently reaffirmed by this Court in The People (D.P.P.) v Cagney; The People (D.P.P.) v McGrath [2008] 2 I.R.

111 when considering the offence of endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act 1997. At p.

137-138, Geoghegan J. stated:

“89 Where "recklessness" is a constituent of a criminal offence in Ireland, the leading authority on its meaning is The

People v. Murray [1977] I.R. 360. The judgments of Henchy, Walsh and Griffin JJ. make it clear that the required mens

rea for the purposes of recklessness as to consequences is subjective and not objective. In particular Henchy J.

endorsed the American Law Institute definition in the Model Penal Code. …

90 It seems clear therefore that for the purpose of a count under s. 13 based on recklessness as was the case here the

accused would have had to consciously disregard a risk not of just causing harm but of causing serious injury or death.”

5.16. It, therefore, follows that the question which a decider of fact, such as the District Judge in this case, had to address is as to

whether it was appropriate, on all the evidence, to infer that, from Mr. Clifford’s perspective, there was a substantial risk that a

breach of the peace would be occasioned by his behaviour and that he went ahead anyway reckless as to the consequence.

5.17. The fact remains that Mr. Clifford, on the evidence, attended in the public office of a police station and engaged in highly

abusive and significantly threatening behaviour directed, in particular, to a female member of An Garda Síochána. He did so in the

presence of a number of members of the public. The question which must be asked is as to whether it was open to the District Judge

to conclude that, by so doing, Mr. Clifford acted recklessly as to whether there might be a breach of the peace by undertaking

activity which, it might be inferred, from his perspective, gave rise to a substantial risk that such a breach of the peace might be

occasioned. In reaching a conclusion on that question the District Judge was, of course, required to have regard to the fact that the

persons against whom the abuse and threatening behaviour was directed were members of An Garda Síochána. The District Judge was

also obliged to take into account all of the circumstances surrounding the presence of members of the general public in the public

office of the police station at Kilmainham on the occasion in question. However, it seems to me that Charleton J. was correct in

concluding that it was open to the District Judge, in assessing all of the evidence, to come to the conclusion that Mr. Clifford was

reckless as to occasioning a breach of the peace on the basis of concluding that there was, in accordance with the authorities, from

his perspective, a substantial risk that his activities would occasion such a breach of the peace but that he went ahead nonetheless.

5.18. It does not seem to me that it is necessary to consider whether the District Judge could have come to any other conclusion. It

was for the District Judge to assess the evidence and reach such conclusions as were open to him on that evidence. The only issue

for the High Court and the only issue for this Court on appeal is as to whether an inference of recklessness in accordance with the

authorities was open to the District Judge on that evidence.

5.19. For the reasons which I have set out, I am satisfied that, while the District Judge was not necessarily constrained to find

against Mr. Clifford on that evidence, it was, nevertheless, open to him to reach such a conclusion. That being the only point of law

which arises on the case stated so far as the public order offence is concerned, I would propose answering the two questions raised

by the District Judge under this heading by answering question (a) yes; and by answering question (b) to the effect that a District

Judge is entitled to infer recklessness as to the occasioning of a breach of the peace even where the evidence was that no such

breach was in fact likely to occur in circumstances where the District Judge is satisfied that there was, from the perspective of the

accused, a substantial risk that the behaviour of the accused in question would occasion such a breach of the peace, and where the

District Judge was satisfied that the relevant accused carried on with that behaviour notwithstanding that substantial risk.

5.20. In those circumstances, it is next necessary to turn to the offence in relation to failure to attend court on a date to which the

accused had been remanded on bail.

6. The Failure to Appear Charge

6.1. As noted in the case stated, the prosecution case on this charge consisted solely of the evidence of Garda McLoughlin. Garda

McLoughlin gave evidence that, after the incident at the garda station, she had checked the PULSE database and discovered from

same that there was an outstanding bench warrant issued in respect of Mr. Clifford arising out of an apparent failure to appear in

Court 44 on the 31st July, 2006. Garda McLoughlin agreed under cross-examination that she was not actually in court on that

occasion. She also agreed that she was not present when it was said that Mr. Clifford had entered into the relevant recognisance

which was said to have required him to turn up in court on the 31st July, 2006.

6.2. At the close of the prosecution case, counsel for Mr. Clifford sought a direction on the basis that there was no evidence on

which it could be found that Mr. Clifford had either entered into recognisances which required him to attend court on the 31st July,

2006, or that Mr. Clifford had not attended court on that date. It is, of course, clear that both of those facts are essential to proving

an offence under s. 13 of the Criminal Justice Act 1984, as amended by s. 23 of the Criminal Justice Act 2007.

6.3. That section, as amended, provides as follows:

(1) If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with

his recognisance, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding

€5,000 or to imprisonment for a term not exceeding twelve months or to both.

6.4. It seems clear that the legislative intent in enacting the section was to ensure that there might, in an appropriate case, be an

additional penalty imposed on those who failed to answer bail. The position which pertained up to that time was that, on a failure to

answer bail, a bench warrant could be issued thus permitting the relevant person to be arrested and brought before the court.

Depending on the circumstances, the court might remand the accused further either on bail (most likely because some reasonable

explanation for failure to attend was tendered) or in custody (if the court was not satisfied that any reason tendered for failure to

attend was legitimate and became sufficiently concerned about the risk of the accused concerned not attending for his trial). Either

way no additional sanction was imposed on the accused. The purpose of s. 13 was to allow for an additional sanction above and

beyond the accused being arrested and brought before the court to allow the process in respect of which he was originally charged

and bailed to continue.

6.5. Be that as it may, the real question which arises here is as to the sort of evidence which must be tendered by the prosecution to

establish both the fact of the accused having been bailed to attend on a particular date and the fact that the accused failed to

attend on the date in question. Once those facts are established it becomes a matter for the accused to put forward any explanation

for failure to attend such as might satisfy the court not to convict.

6.6. As appears from the case stated, the relevant bench warrant, which was issued on the 31st July, 2006, was on the court file

and it was submitted on behalf of the prosecution that the District Judge was entitled to take account of that bench warrant. The

first point made on behalf of Mr. Clifford is that it was not open to the prosecution to place reliance on the bench warrant at all. It is

said that the bench warrant needed to be properly produced as part of the prosecution case. I am not satisfied that that submission

is well founded. The District Court is a court of record (see s. 13 of the Courts Act 1971). Its orders, therefore, amount to prima

facie proof of the fact that an order in the terms so recorded was in fact made. It does not seem to me that it was necessary, in

those circumstances, for the bench warrant to be proved in any particular way. It was an order made by the court and proves itself.

However that does beg the question as to what facts can be said to have been established by the bench warrant.

6.7. Clearly, in order for the District Judge to have issued the bench warrant concerned, the District Judge would have been required

to have been satisfied that the accused (in this case Mr. Clifford) had entered into recognisances to attend on the occasion in

question and was not present in court to answer his bail. Those are the same factual elements as underly an offence under s. 13.

6.8. However, in that context, counsel for Mr. Clifford places reliance on the decision of this Court in Corporation of Dublin v. Flynn

[1980] I.R. 357. On the facts of that case, the defendant had previously been found guilty of offences under the Planning Acts which

arose out of a failure to comply with an enforcement notice served under the provisions of those Acts. The service of an enforcement

notice was, of course, a necessary proof for it was a failure to comply with a properly served notice that constituted the offence.

Failure to comply with an enforcement notice is, of course, a so-called “continuing offence” so that a person may be convicted again

of a continuing or further failure notwithstanding an earlier conviction for non-compliance. The defendant had previously been

convicted of failure to comply but was again before the court for an alleged further continuing offence. On the occasion in question

the prosecution did not seek to prove again the service of the relevant enforcement notice and the question arose as to whether the

proof of the previous convictions of the defendant (which were predicated upon the service of a valid notice) was sufficient.

6.9. The unanimous judgment of this Court was given by Henchy J. In that context he said at pp. 365-366 the following:-

“In my judgment the prosecution, in this or in any other criminal charge, is not relieved of the onus of proof in regard to

necessary issues by showing that those issues were expressly or impliedly decided against the accused in earlier

proceedings. It is of the essence of a criminal trial that it be unitary and self-contained, to the extent that proof of the

ingredients of the offence may not be established as a result of a dispersal of the issues between the court of trial and

another tribunal. Evidence of a previous conviction, whether given as an ingredient of or an element in the charge, or

given pursuant to a special statutory permission, does no more than provide conclusive proof of that conviction. As to

the issues that were decided against the accused in the earlier trial, the conviction does not operate to foreclose those

issues in the subsequent trial.

The opposite of that was thought to be the law by Lawson J. in R. v. Hogan [1974] Q.B. 398 , but his opinion was

emphatically rejected by the House of Lords in Director of Public Prosecutions v. Humphrys 2 [1977] A.C. 1. In R. v.

Hogan. the charge was one of murder arising out of an incident in respect of which the accused had earlier been

convicted of assault causing grievous bodily harm with intent to do so. Lawson J. ruled that the accused was estopped

from reopening any of the issues necessarily decided against him by the jury's verdict in the earlier trial. In the

Humphrys Case the House of Lords overruled R. v. Hogan. The real objection to the ruling given by Lawson J. in R. v.

Hogan is summed up in a sentence in the speech of Lord Salmon at p. 48 of the report of the Humphrys Case:—

"On a charge of murder the onus lies on the prosecution to prove their case, not by technical doctrine but by

evidence, and the jury's duty is to decide the case on the evidence called before them, which might be quite

different from the evidence adduced in the previous trial."

In my judgment, that is a correct statement of the law, whatever be the charge and whether the trial be before a jury

or be a summary one.”

6.10. It seems clear, therefore, that it is necessary to prove again, in any second or subsequent criminal process, any facts

necessary to the establishment of the relevant offence, even though such facts were established in a previous case. Such facts

cannot, ordinarily, be established by proving a previous conviction from which it might be inferred that the judge or jury convicting

must have been satisfied of some particular fact. Those District Judges who had previously convicted Mr. Flynn of failure to comply

with an enforcement notice must have been satisfied that an enforcement notice had been served for if they were not he should not

have been convicted. In addition, the relevant previous orders of the District Court in that case recited the service of such notice.

Notwithstanding same Mr. Flynn was entitled to an acquittal on the occasion in question because there was no evidence of the

service of the relevant enforcement notice before the court on that occasion.

6.11. On that basis it is submitted on behalf of Mr. Clifford that, even if the bench warrant, by virtue of it being on the court file, can

be taken to amount to evidence of the fact that a bench warrant was issued, nonetheless, its existence does not prove the

ingredients or facts necessary to establish the offence with which Mr. Clifford was charged. In response, counsel for the prosecution

argued that the court order in this case recorded matters which occurred in the court itself rather than external matters of which the

court was satisfied on evidence. It seems to me that, at the level of principle, that point is well made. A court order which records

that which actually occurred in a court is, it seems to me, as a matter of evidence, in a very different category to a court order from

which it might be inferred that the court was satisfied, on the basis of evidence, that a certain state of facts existed or where the

order concerned specifies that the court was so satisfied. In the former case, the court is recording matters of its own knowledge

because they occurred in court. In the latter case, the court can only be taken to have been satisfied, on whatever evidence was

available on the occasion in question, of certain facts. On the authority of Flynn, no inference can be drawn from such an order for

the purposes of a future case so that the prosecution must present the same, or other equally appropriate, evidence to the court

dealing with the issue again.

6.12. In those circumstances, I am satisfied that the bench warrant is undoubtedly sufficient to establish that Mr. Clifford was not

present in court on the 31st July, 2006. The bench warrant involves the court recording something which actually happened before it,

that is that Mr. Clifford was not present when his case was called. It seems to me, therefore, that at least that element of the

offence under s.13 was established by virtue of the prosecution placing reliance on the bench warrant which was on file.

6.13. However greater difficulty arises in respect of the recognisance. The case stated does not disclose nor is this Court aware as to

how it is said that Mr. Clifford was admitted to bail. It is possible that he was admitted to bail by order of the District Court. It is also

possible, and quite frequently is the case, that persons are admitted to bail in a garda station and enter into recognisances requiring

them to attend a specified future sitting of the District Court.

6.14. I am satisfied that, if it should transpire that Mr. Clifford was admitted to bail on recognisance by the court, the same principle

would apply in relation to establishing that fact as I have already indicated should apply in relation to establishing that Mr. Clifford did

not attend before the District Court. An order of the District Court admitting Mr. Clifford to bail on recognisance to attend on a future

occasion proves itself. If such an order was on file or was otherwise available to the Court at the time of the prosecution then same

would be sufficient, of itself, to establish that Mr. Clifford was admitted to bail on recognisance.

6.15. For like reasons to those already addressed in respect of the question of the prosecution seeking to place reliance on an order

on file even though no mention of it was made during the prosecution case, as such, I am also satisfied that, provided the relevant

order admitting Mr. Clifford to bail on recognisance by the court itself was available on file or otherwise available to the District Judge

same can be considered as part of the prosecution case even though not specifically referred to during the presentation of that

prosecution case.

6.16. However, if Mr. Clifford was admitted to bail in a garda station then different considerations apply. Without overruling the

decision of this Court in Flynn, it is impossible to see how the fact of Mr. Clifford being admitted to bail on recognisance in a garda

station can be established in a criminal prosecution simply by placing reliance on the bench warrant issued for his arrest. The fact

that such a form of issue estoppel does not arise in criminal proceedings is a well established part of the jurisprudence. If it is

considered appropriate to alter that situation then legislation would seem to be the only means available.

6.17. It follows that I am of the view that this Court is unable to give a definitive answer to the question posed by the District Judge

in relation to the failure to answer bail charges. This is because the case stated does not make any reference to what seems to me

to be a highly relevant fact. The case stated does not set out whether there was available to the District Judge an order of the

District Court admitting Mr. Clifford to bail on recognisance. If that was the case then the District Judge was entitled to find that

there was evidence of Mr. Clifford having been so admitted to bail on recognisance. On the other hand, if an order of the District

Court itself admitting Mr. Clifford to bail on recognisance was not available either because there was no order on the court file or

otherwise available in court, or because Mr. Clifford was admitted to bail in a garda station, then the answer must be different. In

such an eventuality there just was no acceptable evidence before the court to establish an essential ingredient of the offence under

s. 13, being that Mr. Clifford had been so admitted to bail.

6.18. In those circumstances it is only possible to give a conditional answer to the question raised in the case stated under this

heading. For the reasons already analysed, I am satisfied that there was evidence, in any event, from which the District Judge could

have concluded that it had been established that Mr. Clifford did not turn up in court on the 31st July. That element of the offence

does not, in my view, gives rise to any difficulty. However, whether there was evidence of the second element of the offence, being

that Mr. Clifford was under a legal obligation to so turn up, by virtue of having been admitted to bail on recognisance, is dependent on

whether there was available to the District Judge, from the District Court file or otherwise, at the time of the prosecution, an order of

the District Court admitting Mr. Clifford to bail. If such an order was so available then there was sufficient evidence of that element of

the offence such as would have permitted the District Judge to reach the overall conclusion that the offence had been established. If

such an order was not so available then there was no acceptable evidence before the District Court as to what is, on any view, a

vital ingredient of the offence and in those circumstances the overall answer would have to be that there was not sufficient evidence

to enable the District Judge to find the offence proved.

7. Conclusions

7.1. For the reasons set out, I would propose that the answers to the questions posed by the District Judge in the case stated be as

follows.

7.2. In respect of the public order charge, I would propose that question (a) be answered yes and question (b) be answered to the

effect that a District Judge is entitled to infer recklessness as to the occasioning of a breach of the peace even where the evidence

was that no such breach was in fact likely to occur in circumstances where the District Judge is satisfied that there was, from the

perspective of the accused, a substantial risk that the behaviour of the accused in question would occasion such a breach of the

peace and where the District Judge was satisfied that the relevant accused carried on with that behaviour notwithstanding that

substantial risk.

7.3. So far as the failure to answer bail charge is concerned, I would propose answering the question posed in the case stated by

indicating that, in the event that there was available to the District Judge, whether from the court file or otherwise, at the time of

the prosecution, an order of the District Court admitting Mr. Clifford to bail on recognisance then there was evidence on which the

District Judge could find the relevant offence under s. 13 to have been established. On the other hand, if an order of the District

Court admitting Mr. Clifford to bail on recognisance was not so available either because he was, in fact, admitted to bail in a garda

station or because there was no available evidence as to how Mr. Clifford was admitted to bail, then I would propose answering the

question by indicating that there was not sufficient evidence to enable the District Judge to find the relevant offence proved.

Unfortunately, for the reasons already analysed, it is not possible to give a more definitive answer to this question.