Judgment Title: Brady -v- D. P. P.
Composition of Court:
Judgment by: Kearns P.
Status of Judgment: Approved
Neutral Citation No:  IEHC 231
THE HIGH COURT
2009 835 JR
DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Kearns P. delivered on the 23rd day of April, 2010
This is a case in which the applicant seeks a declaration that the charge of breach of the peace contrary to common law (with which the respondent seeks to prosecute the applicant) is not an offence known to law and for an order restraining the respondent from taking any further steps to prosecute the proceedings against the applicant on the charges set out in Cabinteely Charge Sheet 8844588.
That charge sheet alleges that on the 10th May, 2009 at Arranmore, Church Road, Killiney, County Dublin the applicant did threaten to stab Bo Owens and then did engage in threatening and abusive behaviour thereby causing a breach of the peace, contrary to common law.
The applicant duly appeared before a sitting of Dun Laoghaire District Court on 5th June, 2009 where evidence of arrest, charge and caution was given. The presiding District Court Judge then remanded the applicant on bail to a subsequent date to enable him to consider the evidence against him and to enter a plea of either guilty or not guilty to the charge.
However, on the advices of his solicitor, the applicant then brought the present judicial review application. By order of the High Court (Peart J.) dated 27th July, 2009 the applicant was given leave to seek relief on the sole ground that the offence of breach of the peace contrary to common law is not know to Irish law and that the applicant could not lawfully be tried for it.
A statement of opposition was delivered on behalf of the respondent in January, 2010 putting that issue in contention.
On the hearing before this Court, the respondent further argued that the substantive point raised by the applicant has already been determined by the High Court in Thorpe v. Director of Public Prosecutions  1 IR 502.
While the applicant also sought relief on the basis that the charge sheet contained two alleged offences and was thus bad for duplicity, counsel on behalf of the respondent has argued, correctly in my view, that as Peart J. had not granted leave to argue this latter point, the applicant was precluded from doing so. Mr. Paul Anthony McDermott, B.L., counsel for the respondent, cited the decision of the Supreme Court in Eviston v. Director of Public Prosecutions  3.I.R. 260 as the relevant authority in this regard. I believe I am bound to follow the decision of the Supreme Court to that effect. Even if I were not so bound, I am satisfied that the charge sheet does not contain two alleged offences, but that it contains only descriptive words which describe the matters constituting the offence of breach of the peace on the occasion in question.
More importantly, however, it is Mr. McDermott's argument that this Court is bound by the doctrine of stare decisis to follow the decision of Murphy J. in Thorpe v. Director of Public Prosecutions  1 IR 502.
DECISION IN THORPE AND OTHER CASES
The case of Thorpe v. Director of Public Prosecutions  1. I.R. 502 was a consultative case stated in which a judge of the District Court specifically sought the opinion of the High Court as to whether the offence of breach of the peace contrary to common law was "known to law".
The accused in that case appeared before the District Court on a charge of causing a breach of the peace contrary to common law, after he was alleged to have used threatening and abusive language and become aggressive when asked to leave a private dwelling house. Counsel for the accused applied to have the matter dismissed on the basis that the charge before the court showed no offence known to law or alternatively that the District Court had no specific jurisdiction to impose a penalty in respect of such a charge. It was submitted that a breach of the peace contrary to common law was a power of entry and arrest but was not, of itself, an offence. No specific penalty was known in respect of the charge of breach of the peace contrary to common law. The prosecutor submitted that it was clear that a person could be arrested and charged with breach of the peace contrary to common law, that the offence was known to law and could be prosecuted in a summary manner in the District Court with the penalty resultant on conviction subject to the sentencing limits of the District Court.
It was specifically held by Murphy J., in answering the consultative case stated, that breach of the peace contrary to common law was an offence known to law. He further held that the common law offence of breach of the peace was not abolished by the Criminal Justice (Public Order) Act, 1994.
Mr Colman Fitzgerald, S.C., counsel for the applicant, submitted that this case was inadequately reasoned and wrongly decided and that this Court should not in consequence regard itself as being bound to follow the decision of Murphy J.
A reading of the judgment of Murphy J. makes it clear that the learned trial only reached his conclusion after hearing and considering wide-ranging submissions from both sides. These submissions are set out in considerable detail in the judgment.
Significantly, Murphy J. derives support for his conclusion on the basis of two other important decisions, Attorney General v. Cunningham  I.R. 28 and Kelly v. O'Sullivan (1991) 9 I.L.T.R. 126.
Attorney General v. Cunningham is a decision of the Court of Criminal Appeal and one that has stood the test of time. While the court was primarily concerned with the issue of the sufficiency or otherwise of the indictment, the judgment of O'Byrne J. makes it clear that the court was satisfied that the offence of breach of the peace existed at common law, stating as follows at p. 33-34:-
Though we have arrived at this conclusion we must not be taken as deciding that the accused could not have been properly convicted on an indictment aptly framed. On the contrary, having regard to the finding of the jury that the accused did fire a shot into the house, and to the clear and uncontradicted evidence that there were persons in the house at the time, we consider that a jury not only might but must, unless it acted perversely, find the accused guilty of having committed a breach of the peace."
Of more recent origin, the decision of Charleton J. in Clifford v. D.P.P.  IEHC 322, which related to the statutory offence of causing a breach of the peace contary to s.6 of the Criminal Justice (Public Order) Act, 1994, contains useful observations from Charleton J. by way of obiter in relation to the common law offence of breach of the peace. He states:-
8. It is apparent to me, from these helpful discussions of the crime of breach of the peace, that it occurs where a person finds himself, or herself, in a situation where they reasonably fear that if they do not withdraw from it quite promptly, they may either be assaulted or that the disturbance in respect of which the accused stands charged may create the risk of a response which is disorderly and in consequence potentially violent whereby, through direct or indirect means, bystanders may be caught up in violence…”
There are thus explicit statements, some of long standing, that there is an offence in this jurisdiction of breach of the peace at common law. Moreover, in the case of Thorpe, such a finding was the express subject matter of the case stated.
The issue of the extent to which a judge of the High Court should extend deference to a decision and judgment of a colleague was dealt with in the recent decision of Worldport Ireland Ltd. (In liquidation)  IEHC 189.
In that case, somewhat ironically, Clarke J. was asked to demur and depart from a previous decision of my own in Re Industrial Services Co. Limited  2 IR 118.
It is not necessary for present purposes to detail the facts of either case, but rather to move immediately to consider the role of a judge in the High Court when such an issue arises. In rejecting the submission that he should revisit an issue which I had recently determined, Clarke J. stated:-
As Parke J. stated in Irish Trust Bank v. The Central Bank of Ireland [1976-7] I.L.R.M. 50 at p.53:-
I would therefore decline to grant the relief sought in this case.