High Court of Ireland Decisions

Freeman v. D.P.P. [1996] IEHC 61; [1996] 3 IR 565 (18 November 1996)

The High Court

Between

Edward Freeman

Appellant

And

The Director of Public Prosecutions

(at the suit of Garda Brian Brunton),

Respondent

1995 No. 15 SS

[18^th November, 1996]

Status: Reported at [1996] 3 IR 565

Carney J.:

1. This is a case stated by District Judge Thomas Fitzpatrick. The point of law concerned involves the admissibility of evidence which the appellant herein claims was obtained in breach of his right not to have his dwelling house violated save in accordance with law. The case stated also relates to the legality of the appellant's subsequent detention and, in particular, the operation of s.16 of the Criminal Justice Act, 1984.

Facts stated

2. On the 11th May, 1993, at 6.30 a.m., Garda Brian Brunton (with Michael Jordan) received a call from Cabra Garda Station to go to Dunard Avenue where, he was informed, the appellant's (who was known to the two gardaí) and two other men had been seen unloading goods from a white van into the appellant's house. Upon arrival, Garda Brunton and Garda Jordan saw a white transit van parked outside the appellant's residence. They also saw three men at the porch of No. 133 (the front door of which was open). As the gardaí approached the house they could see that they had been seen by the three men who turned around and ran into the house slamming the door behind them. The two gardaí gave chase immediately, running up the driveway to the door of the house where, as accepted by each garda in cross-examination, the door had been slammed against them. They then banged on the door and shouted to those inside, identifying themselves as gardaí. The key was in the lock and the gardaí opened the door and went inside. In the sitting room Garda Brunton saw a quantity of cigarettes and a number of bottles of spirits on a table, as well as two ornamental muskets lying on a box containing a large quantity of cigarettes. The gardaí pursued the men out of the house and the appellant was arrested outside the house, that is in a public place, pursuant to s. 41 of the Larceny Act, 1916, for the offence of handling stolen goods, contrary to s.33 of that Act (as amended). The van to Cabra Garda Station. The appellant was also transported to Cabra Garda Station and was detained there pursuant to s. 4 of the Justice Act, 1984, for the purpose of investigating the offence of handling stolen goods. It was during the course of this detention that the offence under s.16 of the Criminal Justice Act, 1984, is alleged to have occurred. The circumstances of this incident will be considered separately in the latter part of this judgment.
3. A search warrant was obtained, subsequent to the arrest, in respect of the appellant's dwelling: the only items recovered from this search were a number of pairs of shoes which forensic analysis later indicated had been in contact with a surface in the shop from whence the goods found in the white transit van had been stolen. A search of the van had revealed crates of beer, a small quantity of cigarettes and of cigars and ornamental horses' heads, together with certain other items of no relevance to the prosecution.
4. There was a bench warrant in existence with respect to the appellant at this time but Garda Brunton accepted in evidence that the arrest of the appellant was not made on foot of the warrant nor did he seek to execute the warrant at any point on the 11th May, 1993.

Legal Issues

5. The appellant challenges the legality of his initial arrest, arguing that the entry of the gardaí into his home was unauthorised by law and in breach of his constitutional rights under Article 40, section 5. Accordingly, it is submitted, his arrest, although in a public place, was unlawful as his presence outside was induced by the gardaí illegally entering his dwelling. The appellant further argues that all evidence obtained as a result of this entry was inadmissible at trial as being a conscious and deliberate violation of his constitutional rights, as was his subsequent detention under s. 4 of the Criminal Justice Act, 1984. The District Court rejected these submissions on behalf of the appellant, ruling as follows: -

(i) The entry by the gardaí into the premises at 133 Dullard Avenue was a lawful entry, notwithstanding the absence of a warrant. In my opinion an abundance of authority permits entry in circumstances such as were established in the case before me, including the main authority, The People (Attorney General) v. O'Brien [1965] IR 142 and more recent authorities such as The People (Attorney General) v. Hogan (1972) 1 Frewen 360 and The People (Director of Public Prosecutions) v. O'Loughlin [1979] IR 85 If the gardaí had not entered the premises when they did, evidence would have been concealed or destroyed. I am satisfied that if the gardaí had not entered, the evidence i.e. the property being taken into the house would have been concealed or destroyed. There were therefore extraordinary excusing circumstances justifying the entry in accordance with the principles laid down in The People (Attorney General) v. O'Brien supra

(ii) The arrest of the appellant was carried out in a public place and, as such, it was a valid arrest.

(iii) Finally, I felt unable to hold with the submissions made by counsel for the appellant in respect of the charge concerning s. 16 of the Criminal Justice Act, 1984."

6. The District Court Judge then proceeded to convict the appellant of handling stolen property and for failure to give an account of how he came to be in possession of stolen property under s. 16 of the Criminal Justice Act, 1984. The appellant herein then sought to appeal by way of a case stated.

Case stated

"1. (a) Was the entry by the gardaí into the appellant's dwelling at No.133 Dullard Avenue without a warrant authorising same a lawful entry?

(b) If the entry was not a lawful entry, was the evidence obtained by the gardaí as a result of their unlawful entry into the appellant's dwelling nonetheless properly admitted by me against the appellant?

2. If the answer to question 1 (a) is in the negative, was the arrest of the appellant pursuant to s. 41 of the Larceny Act, 1916, a valid arrest?

3. If the answers to both 1 (a) and 1 (b) are in the negative:

(a) Was the search warrant issued to Garda Brunton by Doreen Clarke P.C. a valid search warrant?

and

(b) Was the detention of the appellant pursuant to s.4 of Criminal Justice Act, 1984, a valid detention?

4. Was I correct in law in convicting the appellant of the charge: handling stolen goods?"

7. Questions 5 and 6 relate to the conviction under s.16 of the Criminal Justice Act, 1984, which I will consider separately. The appellant's essential argument as to the validity of the initial arrest is that the statutory power of arrest under s. 41, sub-s. 1 of the Larceny Act, 1916 does not expressly authorise an arrest in a private place by a garda who is trespasser. Counsel cites the Supreme Court decision in Director Prosecutions v. McCreesh [1992] 2 IR 239 as authority for the proposition that such express provision is required. That case concerned provisions of the Road Traffic Acts, 1961 and 1978, in connection driving under the influence of alcohol. Hederman J., delivering majority judgment, eschewed any reliance on Article 40, s. 5 of Constitution preferring to resolve the matter on non-constitutional grounds. Hederman J. further held that if the Oireachtas had intended to make inroads on the property rights of citizens which are recognised protected by the common law, and to enter on private property against the will of the owner and there arrest the owner, express provision should have been made for such power. However, it is to be noted that of Public Prosecutions v. McCreesh was decided in the particular context of s. 13, sub-s. 3 of the Road Traffic Act, 1978, which creates an offence upon arrest, of failing to comply with the requirement under that section to permit the taking of a blood specimen, or to provide a specimen urine. This provision, as reiterated most recently by the Supreme Court in Brennan v. Director of Public Prosecutions [1996] 1 ILRM 267, is unusual in that it represents an exception to the general privilege self-incrimination enjoyed by an accused person. This element of compulsion to provide evidence against oneself underlies the House of Lords decision in Morris v. Beardmore [1981] A.C. 446 which was cited with approval in Director of Public Prosecutions v. McCreesh [1992] 2 IR 239 at p. 252:-

"Had Parliament intended to empower a policeman to enter, or remain on the private premises of a suspect against his will and there to require him to provide evidence, which in all probability would, if it should verify the policeman's suspicion, lead to his arrest, prosecution, and conviction, Parliament could, and in my opinion would, have included in the relevant legislation an express power or right of entry…"

8. The power of arrest in the context of the Irish legislation is part only of a composite procedure whereby an accused may be forced to provide evidence, in the form of a blood specimen or a urine specimen, against himself. Obviously such a disruption of the normal onus of proof requires clear statutory statement for each of its components. A further peculiarity of the road traffic legislation was identified by McCarthy J. in Director of Public Prosecutions v. McCreesh [1992] 2 IR 239 at p. 255: -

"The relevant sections of the Act of 1978, including that substituting a new s. 49 in the Act of 1961, clearly anticipate an offence committed in a public place and, possibly, also an arrest in such place." [Emphasis added]

9. The Larceny Acts, 1916-1990, are, of course, not so confined to the commission of crimes in a public place. However, the significance of this distinction may be eclipsed by the next sentence of McCarthy J.'s judgment: -

"Whatever that case may be, if there is to be an arrest carried out in a private place by a garda who is a trespasser, such a mode of arrest requires express statutory provision in order to justify it at law."

10. The Supreme Court chose in Director of Public Prosecutions v. McCreesh [1992] 2 IR 239 to determine the validity of the arrest, in the first instance, as a matter of statutory interpretation, without recourse to Article 40, section 5. I apply the same means here. Section 41, sub-s. 1 provides as follows: -

"Any person found committing any offence punishable under this Act except an offence under section thirty-one may be immediately apprehended without a warrant by any person and forthwith taken, together with the property, if any, before a justice of the peace to be dealt with according to law."

11. I hold that s. 41, sub-s. I of the Larceny Act, 1916, is wide enough to permit a valid, legal arrest on private property even in circumstances where the gardaí involved may be trespassers. It seems to me that a provision which provides for the arrest without warrant of any person committing an offence under the Act of 1916 must implicitly authorise the entry onto private property where this is necessary to effect such arrest. The provision is restricted to a person found committing an offence, that is the power of arrest is only available where the commission of the is presently happening. Upon arrest, the arrested person is to be taken forthwith, together with the property, if any, before a justice of the peace. The section would therefore appear narrower than the power of arrest under the road traffic legislation considered in Director of Public Prosecutions v. McCreesh [1992] 2 IR 239, which may be grounded on the garda's opinion that the offence is or has been committed and sets in train a process whereby such suspicion may be confirmed by the accused person himself. A provision impinging on the liberty of the person simpliciter in the limited circumstances set out in s. 41 may be taken to carry with it an authorisation of interference with any lesser rights in respect to the inviolability of a dwelling house. Director of Prosecutions v. McCreesh [1992] 2 IR 239 is distinguishable in that powers there involved an encroachment on an additional, (constitutional) right: the privilege against self-incrimination.
12. Having given s. 41 its ordinary meaning without reference to the Constitution, I must now consider whether the terms of Article 40, s.5 impact on the section by altering its interpretation. The dwelling house of every citizen is inviolable save in accordance with law. This is no empty formula. As stated by me in Director of Public Prosecutions v. Dunne [1994] 2 IR 537 at page 540:-

"The constitutional protection given in Article 40, s. 5 of the Constitution in relation to the inviolability of the dwellinghouse is one of the most important, clear and unqualified protections given by Constitution to the citizen."

13. Barr J. in Ryan v. O'Callaghan (Unreported, High Court, Barr J., 22nd July, 1987) equates the use of the phrase "in accordance with under Article 40, s. 5, with its use under Article 40, s. 4, sub-s. 1 (personal liberty), holding that any intrusion must not ignore the fundamental norms of the legal order postulated by the Constitution. Can it be said that Constitution requires s. 41 to be interpreted narrowly so as not to entrench on Article 40, s. 5 rights without express statutory authority? It seems to me that it does so require. Given that the Constitution has elevated the common law right to the constitutional plane, in clear and unqualified terms, any interference with that constitutional right must be given express statutory effect. Accordingly, the initial arrest of the appellant was not authorised by s. 41 (as strictly interpreted) and consequently was unconstitutional in that it breached Article 40, section 5. In reaching this conclusion, I do not lose sight of the fact that in the circumstances of this case, the appellant was arrested in a public place, having gone out of his dwelling. I accept, however, the appellant's contention that in so far as his fleeing was induced by the wrongful presence of the gardaí, it is coloured by their unlawful entry. The answers to questions 1 (a) and 2 are, respectively, that the entry was unlawful and that the arrest under 41 was not a valid arrest. It is necessary to consider whether any evidence obtained as a result of this illegal entry and arrest was properly admissible against the appellant. The exclusionary rule, whereby evidence obtained by the State its agents as a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of the accused should be excluded save where there are extraordinary excusing circumstances, was first formulated in The People (Attorney General) v. O'Brien [1965] IR 142 This judgment, as explained by subsequent Supreme Court decisions, allows for the admission of such unconstitutionally obtained evidence only in extraordinary excusing circumstances. It may be noted, given the converse findings of the District Court Judge in this regard, that the principle is concerned only with the admissibility of evidence; it does not flow as a corollary that the State or its agents are entitled to breach constitutional rights in extraordinary excusing circumstances. This limitation of the principle was recognised by Morris J. in Director of Public Prosecutions v. Michael Delaney [1996] 3 IR 556 at page 561: -

"Accordingly, it does not follow that The People (Attorney General) v. O'Brien [1965] IR 142 may be taken as authority for the general proposition that a member of the Garda Síochána may violate a constitutional right providing that there are 'extraordinary excusing circumstances'. It is authority for no more than the proposition that where such a violation occurs and evidence is harvested as a result, it is for the court of trial to decide all issues as to the admissibility of this evidence including a consideration of any extraordinary excusing circumstances alleged, upon the criteria stated in The People (Attorney General) v. O'Brien [1965] IR 142 and The People (D.P.P.) v. Shaw [1982] IR 1"

14. The rationale behind the exclusionary rule has been stated by the Supreme Court in The People (Director of Public Prosecutions) v. Kenny 2 IR 110 The rule is intended to protect and defend the personal constitutional rights of the citizen, including the inviolability of the dwelling. The majority favoured an expansive rule providing both a negative deterrent and a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizen and the effect of the powers of arrest, detention, search and questioning in relation to those rights.
15. The facts of the case at bar raise two issues to be resolved: were there extraordinary excusing circumstances justifying the admission of the evidence, and to what extent were the search warrant and the subsequent detention under the Criminal Justice Act, 1984, tainted by the previous unconstitutionality (Question 3)?
16. The determination of the existence of extraordinary excusing circumstances requires consideration of dicta of Walsh J. in The (Attorney General) v. O'Brien [1965] IR 142 at p.170 as to examples of extraordinary excusing circumstances:-

"...such as the imminent destruction of vital evidence or the need to rescue a victim in peril. A suspect has no constitutional right to destroy or dispose of evidence or to imperil the victim."

17. To attribute too wide a scope to the exception in the case of the imminent destruction of evidence may undermine the rationale of a rule which by its nature is invoked in circumstances where well meaning haste on part of the gardaí may lead to unconstitutional acts. The Supreme Court in The People (Director of Public Prosecutions) v. Kenny [1990] 2 IR 110 held that knowledge or understanding on the part of the gardaí that they were invading constitutional rights is unnecessary. Thus, to excuse unconstitutional behaviour merely because it was designed to garner vital evidence is to adopt a lesser standard than that established in The People (Director of Public Prosecutions) v. Kenny [1990] 2 IR 110 Yet, it is hard to think of circumstances more apt to come within Walsh J.'s exception than the facts of this case: the gardaí came upon the appellant and his associates in flagrante delicto; there simply was not enough time for the gardaí to obtain the necessary search warrant. The dwellinghouse itself was being employed in the course of committing an offence. I hold that in the peculiar circumstances of this case there was material on which the District Court Judge could exercise his discretion to admit this evidence and answer Question 1 (b) in the affirmative. Some support for this approach is also to be found in the Court of Criminal Appeal decision in The People (D.P.P.) v. Lawless (1985) 3 Frewen 30.
18. In any event, the appellant overstates the effect of the initial unconstitutionality. There was ample evidence for the sworn information grounding the search warrant (and indeed ultimately to found the conviction) available to the gardaí independently from that which they perceived from their unconstitutional entry into the dwellinghouse: they had observed the appellant handling property believed to have been stolen and had recovered property from the van itself. I answer questions 3 (a) and 4 affirmative.
19. As to the legality of the detention under the Criminal Justice Act 1984, a conflict arises between the terms of s. 41, sub-s.1 of the Larceny Act, 1916, which require that an arrested person brought before a justice of the peace "forthwith" (cf. "'as soon as reasonably possible" in s. 41, sub-s.3) and the provision for detention subsequent to arrest under s. 4 of the Criminal Justice Act, 1984. A requirement to bring "forthwith" before a District Court Judge enjoins any detour to a garda station for the purposes of questioning. It does not seem to me that the emphatic terms of Larceny Act, 1916, can be taken to have been derogated from by the general terms of the Act of 1984. In any event, the provisions of s. 4 are predicted on there having been an earlier (valid) arrest -the section merely authorises continuing detention. On the facts of the current case, the initial arrest was invalid. Whereas a person who has been unlawfully arrested does not become immune from being re-arrested nor is a subsequent arrest necessarily invalid, there was no further arrest in this case. Accordingly, I would answer question 3 (b) in the negative: the purported detention pursuant to s. 4 of the Act of 1984 was void in the context of an illegal arrest under s. 41 of the Act of 1916.

"5. Did the prosecution and conviction of the appellant under s.16 of the Criminal Justice Act, 1984, involve or result in a fundamental unfairness to the appellant, in that he was twice cautioned by Garda Brunton that he was not obliged to say anything unless he wished to do so, prior to s.16 being invoked by Garda Brunton?

6. Was I correct in law in convicting the appellant of an offence under s. 16 of the Criminal Justice Act, 1984?"

20. In the course of an interview with the appellant, Garda Brunton expressly invoked the provisions of s.16 of the Criminal Justice Act, 1984. This section requires a person found in possession of any property to give an account of how he came by the property to a garda where that garda reasonable grounds for believing that property is stolen. It is an offence to fail or refuse to give such an account. Information given under the section is generally not admissible against that person. The appellant responded to Garda Brunton's requirement under the section by stating that he had nothing to say.
21. The holding as to invalidity of the initial arrest concludes the issue of the conviction under s.16 of the Criminal Justice Act, 1984: in the absence of a valid detention under s.4 of that Act, the appellant was being detained in breach of his constitutional right to liberty. Just as the courts will deny the State the benefit of its unconstitutional acts by excluding evidence obtained in breach of constitutional rights, so too must they refuse to support a conviction founded on the refusal of an illegally detained person to answer questions. The Supreme Court in The People (Director of Public Prosecutions) v. Kenny [1990] 2 IR 110 espoused an expansive exclusionary rule providing positive encouragement to the State to consider the personal rights of the citizen in connection with its powers of detention and questioning. Section 16 represents a limited interference with the constitutionally protected right self-incrimination, and to allow it to be enforced against a person unconstitutionally detained is unconscionable. As stated by Finlay C.J. The People (Director of Public Prosecutions) v. Kenny [1990] 2 IR 110 at page 134: -

"The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation 'as far as practicable to defend and vindicate the personal rights of the citizen'."

22. Accordingly, it is unnecessary to consider the questions as to the operation of s.16 posed in the case stated. The section was inapplicable in the circumstances of this case.