Inviolability Dwelling

Violability of the dwelling-house.

Article 40.5 provides that the dwelling of every citizen is inviolable and shall not be forcibly entered, save in accordance with the law. The dwelling need not be family home Gibbons v Addington [2017] IESCDET 137 “That protection is set out in Article 40.5 of the Constitution, which provides that the dwelling of every citizen is inviolable and shall not be forcibly entered ‘save in accordance with law’.”

Most statutory powers of search of dwelling-house require a prior warrant. A legal title is not required to the premises on the part of the citizen.

Taking video footage was held not to constitute a violation in Atherton v. DPP where the trespassing had occurred from adjoining private property.

It is not clear whether there is a common law power to enter a prperty where there is  a suspected breach of peace.

 

Searches of Dwelling

In Damache v. DPP, the Supreme Court found unconstitutional provisions in the Offences in the State Act that allowed a warrant for searching a dwelling-house to be issued by a senior Garda Officer. He  was insufficiently independent to allow him to assess the conflicting interests of the State and the individual.

The Criminal Law Act 1997 permits a member of an Garda Síochána to enter a building including a dwelling-house without a rrant in order to make an arrest using reasonable force, if need be. If the Garda does not have a warrant, he may not enter a  dwelling without the consent of the person in charge, unless he has seen the suspected person enter the dwelling or the Garda has reasonable cause for suspecting that he will abscond, obstruct justice or will commit an arrestable offence before a warrant can be obtained or that he does not ordinarily reside there.

Where he has an arrest or committal warrant, he may enter if he has reasonable cause to suspect that the person who is sought is in the dwelling-house concerned. He may use reasonable force, if need be.

Under the Road Traffic Act, a Garda may enter  the curtilage of a premises to effect an arrest. There is no power in this provision to enter the premises itself without a warrant. Where a warrant is utilised, the reason for entry, the basis must be stated.

Illegal Entry Issues

Criminal Assets Bureau v Murphy  [2018] IESC 12

“(i) Where a dwelling is entered other than in accordance with law, and that dwelling is not that of a person seeking to assert a constitutional right to the inviolability thereof, may evidence be excluded in proceedings concerning a person not dwelling therein?
(ii) Is there any rule of law requiring that evidence obtained in consequence of illegal entry into a dwelling should be excluded from civil proceedings, including proceedings in rem under the Proceeds of Crime Act 1996, as amended?
(iii) Is there any rule of law requiring the exclusion of evidence in civil proceedings obtained in consequence of a deliberate illegality, or a mistake amounting to an illegality, or in consequence of the deliberate and conscious violation of the rights of one of the parties?”

“The real question is whether the fact that the cash was seized on foot of an invalid warrant has any consequences in the litigation between these parties. Consideration of that question requires, firstly, an examination of the rationale underlying the exclusionary rule. It is also necessary to look at decisions of this Court concerning the impact upon litigation, other than criminal trials, of a breach of an individual’s rights by an agent of the State – this includes an examination of the classification of Proceeds of Crime Act cases as in rem. The purpose here is not to reconsider the formulation of the test for the exclusion of improperly obtained evidence, but to discern the principles underlying the existence of such a rule and the extent to which those principles have been found to be applicable in the administration of justice.”

“It survived those challenges in part because the characterisation of its procedures as criminal in nature was misconceived, but also because the Act provides for fair procedures and, as a safety net, confers on the court the power to refuse an order where there is a serious risk of injustice. In my view, it was not contemplated in the course of that challenge that the in rem classification of forfeiture meant that the violation of constitutional rights in proceedings under the Act could pass without response on the part of the Court.”

“It must be recalled that, as this Court stressed in [Gilligan v The Criminal Assets Bureau [1998] 3 IR 185 and Murphy v G.M. [2001] 4 IR 113 (jointly with Gilligan in the Supreme Court)], a person does not have a constitutional right to enjoy property that is or represents the proceeds of crime. Where an asset is proved to be such, in accordance with the Act, the obligation to vindicate personal rights does not apply to that asset. Refusal of an order freezing or confiscating such assets, in the face of evidence establishing provenance to the required extent, should not be seen as a means of protecting that which does not deserve protection.

It seems to me, therefore, that the constitutional values primarily under consideration will be the integrity of the administration of justice and the need to ensure compliance with the law by agents of the State.”

Exclusion

“Where an alleged breach of rights concerns the actual asset sought to be seized, the issue is not its ‘exclusion’. Rather, the question for the court will be whether a breach of rights has occurred such that an order should not be made under the Act. This, therefore, is a question to be answered at the end of the hearing, since it will not arise unless the court first determines that the asset is the proceeds of crime. However, to avoid late challenges raising the possibility that the court might have to embark upon a fresh hearing at that stage, the issue must have been expressly raised in the hearing, by reference to evidence in the affidavits before the court. The Bureau then has the opportunity of adducing evidence relevant to it.

Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.

A respondent should be entitled to rely only upon a breach of his or her own rights, unless the court is satisfied that the breach of another person’s rights is so egregious as to justify dismissing the proceedings. Other than in those circumstances, breach of the rights of a third party who is not a respondent should not give rise to a refusal of the order – there is no good reason, given the statutory scheme, why a breach of A’s rights should entitle B to retain the proceeds of crime unless the breach is such as to call into question the integrity of the administration of justice.

Similarly, where there is more than one respondent claiming legitimate ownership of the asset, and the constitutional breach affects only one, or at least not all, the court should not refuse an order unless the breach is such as to justify dismissal of the proceedings.

It may be that application of these principles will leave unredressed a breach of rights unrelated to the property in question. The affected party will be left with the option of instituting proceedings for such damages.

It may be necessary to point out that the result of an order dismissing the Bureau’s application would not in all cases be the return of the asset to the respondent from whom it had been taken, any more than contraband such as firearms, drugs or manifestly stolen property is returned to an acquitted person after trial. There is, as has been stated several times, no constitutional or legal right to possession of such items.”

Eviction

The ejection of a person from a residence without court process may be contrary to the inviolability of the dwelling-house. The procedures in respect of local authority evictions have been challenged in a number of cases as lacking sufficient due process in view of their effect on tenants of the dwelling houses.

In Donegan v. Dublin CC, the Supreme Court found that certain provisions of the Housing Act which required the District Court to issue an eviction order on presentation of certain proofs without discretion to enquire into the relevant facts breached the protection of Article 8 of the European Convention on Human Rights.

The judge was given no sufficient role to review the legality. The process lacked the opportunity for the defendant to contest the relevant facts forming the basis of the eviction.

 

Enforcement Agaisnt Dwelling

In County Council of Wicklow v Fortune [2012] IEHC 406, Hogan J. deatl with  an application for an injunction under the Planning and Development Act 2000 in respect of an unlawfully constructed dwelling.  Hogan J. did not accept the  argument that  “inviolable” in Art.40.5 conferred virtual immunity from enforcement on dwellings.

“[This] would effectively mean that residential planning control would be virtually meaningless. It would mean, for example, that a residence which was unlawfully erected in defiance of the planning authorities was immune (or, at least, virtually immune) from the s. 160 procedure, even though, for example, the dwelling might constitute a fire hazard or pose a danger to road users or that it might occupy a prominent position in a region of great natural beauty to the detriment of that beauty spot. If, moreover, this construction of Article 40.5 were to be admitted, what would there be to stop the deliberate and unlawful construction of a dwelling on another’s land? Is it to be said that in such circumstances the rightful landowner could not secure an injunction compelling the removal of the dwelling on the ground that it was ‘inviolable’? The Constitution was not intended to bring about a situation where someone could profit from their own deliberate and conscious wrongful actions by asserting an immunity from legal action and appropriate enforcement by invoking Article 40.5.”

“Insofar as Article 40.5 speaks of ‘inviolability’, the drafters must be taken to have intended to convey through the use of rhetorical and philosophically inspired language drawn (as Hardiman J. pointed out in Cunningham) from the European constitutional tradition so that the dwelling should enjoy the highest possible level of legal protection which might realistically be afforded in a modem society.”