Inviolability Dwelling

Cases

 

 

The People (Attorney General) v. O’Brien.

[1965] IR 144
Maguire C.J. 144
Court of Criminal Appeal.

MAGUIRE C.J. :
In this case Gardai, having arrested the applicants and having ascertained where they resided, sought a warrant to search No. 118 Captain’s Road. By mistake a warrant was granted in respect of No. 118 Cashel Road. In purported exercise of their authority under this warrant the Gardai searched No. 118 Captain’s Road. They found a number of articles which were subsequently offered in evidence at the trial. Objection was taken to the admission of this evidence on the grounds that the search warrant did not authorise the Gardai to search 118 Captain’s Road. Being obtained without a warrant, it was submitted, the evidence having been illegally obtained was inadmissible. This objection was overruled. The evidence was admitted. The applicants having been convicted, an application was made for a certificate that the case was fit for appeal on a single ground, namely, that evidence which was inadmissible had been admitted. A certificate was refused. There are a number of grounds in the application for leave to appeal in addition to this ground.
Mr. O’Siochan asked permission to add a further ground, that charges of breaking with intent should not have gone to jury, on the ground that the evidence could only support a charge of intent to obtain money by false pretences. This Court refused to add this ground. Another ground which was
argued by Mr. O’Siochan was that the number of charges brought against the applicant were an embarrassment and that there was an unreasonable multiplicity of charges. This point was not taken at the trial, but this Court has allowed it to be argued and given full consideration to it and has decided that it is unsustainable. There was nothing unreasonable in the number of charges brought. They were all interconnected and sprang from the same set of incidents. Furthermore when it went to the jury the number was reduced by direction to five. The point should, moreover, have been raised at the opening of the trial when the Judge in exercise of his discretion could have directed that the trial on some of the charges should be postponed.
The main and serious ground argued is that the admission of evidence obtained by the Gardai when they searched the house was improper. We have formed an opinion and do not consider it necessary to call upon the Attorney General. The question was fully discussed in a recent High Court case. In that case, The People (Attorney General) and O’Brien v.McGrath (1), the submissions now made by Mr. O’Siochan were considered. In that case the Court took the same view as that taken in Kuruma v. The Queen (2). It was there stated (at p. 203) that “the test to be applied,” both in civil and in criminal cases, “in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained.” The Court was in no doubt as to this and did not call upon counsel for the Crown to answer the argument on behalf of the appellant. The decision may not carry the same weight as if it were a House of Lords decision. A different view is taken in America and Scotland. Mr. O’Siochan points out that the view for which he is contending has found approval in the Supreme Court of the United States. For this it has come in for much criticism. Wigmore in his book on evidence disapproves of the decision.
We have been referred to a number of cases in the Scottish Courts where it was held that evidence illegally obtained is inadmissible. These authorities are referred to in Kuruma v.The Queen (2). They are referred to in the judgment of Goddard L.J. I quote from p. 204 of that judgment:”If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out. It was this discretion that lay at the root of the ruling of Lord Guthrie in H.M. Advocate v. Turnbull (3). Mr. O’Siochan says that the view of Goddard L.J. of these judgments is fundamentally wrong and that in fact they support the prima facie principle that evidence illegally obtained is inadmissible unless the method of obtaining the evidence can be excused or condoned.
This Court takes the view that the principle which emerges from these cases is that the approach should be the other way round-you begin with admissibility and consider whether there should be exclusion upon some particular ground. This Court failed to get from Mr. O’Siochan a clear statement of the principle upon which he based his contention.
He did, however, suggest that evidence may be excluded if it has been unfairly obtained or is unduly prejudicial to the accused. It may be that where evidence is obtained by a trick the Court has a discretion to exclude it. Possibly a trial judge might apply the principle applied in Christie’s Case (1) and exclude evidence where its evidential value was low and prejudicial value high. This, however, is not the caes here. The view of Davitt P., McLoughlin and Murnaghan JJ., with which this Court agrees, is that the sole test is that stated in Kuruma’s Case (2). If relevant, no matter how obtained, the evidence is admissible. We can see no difference between this case and the case where, as a result of information contained in a statement made by an accused under such circumstances as to render it inadmissible, evidence is discovered. Such evidence is clearly admissible. There is no difference between that case and this in principle. Here it was mere error or misdescription of the address of the premises to be searched which led to the illegality. This Court is of the view that the principles laid down in McGrath’s Case (3) apply.
The application for leave to appeal must be refused.

From the above judgment the applicants appealed to the Supreme Court (4) pursuant to a certificate granted under s. 29 of the Courts of Justice Act, 1924.

O’Dalaigh C.J. :

I have read and I agree with the judgment about to be delivered by Mr. Justice Walsh.

LAVERY J. :
I have had an opportunity of reading and considering the judgment which Mr. Justice Kingsmill Moore is about to deliver. I agree with it.
I feel it necessary to say that in my opinion this is not a suitable case in which to consider the serious question of the admissibility of evidence obtained by illegal means.
If a judge were to hold inadmissible the evidence in question in this case, or in any comparable case, his ruling would, in my opinion, be wrong to the point of absurdity and would bring the administration of the law into well-deserved contempt.

KINGSMILL MOORE J. :
The accused, Gerald O’Brien, has been found guilty of stealing, and the accused, Patrick O’Brien, of receiving, certain articles of clothing the property of Brian Heron: Patrick has also been found guilty of receiving other articles of clothing the property of Hugh George Livingstone.
All the articles were found in the course of a search by the Guards of the house, 118 Captain’s Road, where the two accused lived, and were subsequently identified in Court by their respective owners. The Guards, as it turned out, had no valid search warrant authorising them to search these premises. Detective Sergeant Healy had sworn an information that he had reason to suspect that certain articles stolen or unlawfully obtained were lodged at 118 Captain’s Road, and on such an information a search warrant could lawfully be issued in respect of these premises under the Dublin Police Act, 1842, sect. 54. A warrant was accordingly prepared in the form prescribed by that Act and was signed by District Justice Farrell, but by some mistake the premises in respect of which the warrant was issued were described not as “118 Captain’s Road, Crumlin,” but as “118 Cashel Road, Crumlin.”There is a “Cashel Road” as well as a “Captain’s Road” in Crumlin and the error seems to have been a pure oversight arising from the similarity in sound of the names of the two roads. There is no question of chicanery or deliberate alteration, and it is not clear whether Sergeant Healy noticed the mistake before he searched the premises. Nevertheless the search of the premises must be treated as a search unauthorised by any warrant and involving, on the most favourable view, a tortious, if unintentional, trespass for which the trespassers would be liable to be sued. It was suggested that the action of the Guards might amount to forcible entry, the presence of two Guards amounting to the necessary show of force, but this was not pressed nor does there seem to have been any evidence given to justify a charge of this nature.
The accused applied to the Court of Criminal Appeal for leave to appeal against their convictions on various grounds, of which it is only necessary to note two, namely, that the bulk of the evidence supporting the convictions consisted in the production of property found in 118 Captain’s Road possession of which had been taken by the Guards without a search warrant authorising them to do so; and that such evidence was obtained in violation of 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).
The Court of Criminal Appeal dismissed the applications of the accused but certified, under s. 29 of the Courts of Justice Act, 1924, that their decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The point of law was certified as that set out in grounds 5 and 6 of the original notice for leave to appeal, the grounds which I have summarised above. The legal issue may be still further condensed. Is evidence procured by the Guards in the course of, and as a result of, a domiciliary search, unauthorised by a search warrant, admissible in subsequent criminal proceedings? The argument covered a wider field and embraced the whole question as to how far evidence was admissible which had been obtained by irregular or illegal means, whether by State functionaries or private persons. Somewhat extreme positions were canvassed. On the one hand, it was submitted that facts discovered as a result of the adoption of any means, however illegal, could be given in evidence. If this were to be the law, facts discovered as a result of the torture of the prisoner, or the torture of his wife before his eyes, could be given in evidence at his trial. A confession so elicited, not being voluntary, could not be proved; but the information contained in the confession could be used by the police authorities to discover and produce incriminating evidence. There seems to be as yet no authority in English or Irish law to refute such a contention, however revolting and perilous it may seem, but Mr. McCarthy acting on the instructions of the Attorney General, said that he did not wish to argue that evidence obtained as a result of gross personal violence or methods which offended against the essential dignity of the human person could be received. To countenance the use of evidence extracted or discovered by gross personal violence would, in my opinion, involve the State in moral defilement. On the other hand, it was at first contended by Mr. O’Siochan that if the evidential facts were discovered in the course of, or as a result of, any illegality, however slight, or even in the course of, or as a result of, any irregularity, they could not be proved in Court proceedings. Such a rule would exclude evidence of a murder discovered by a man engaged in poaching; even, if confined to illegalities or irregularities committed by the police or State authorities, it might exclude vital evidence where but a slight and immaterial illegality was involved. So stated the principle is clearly too wide and would place unreasonable obstacles in the way of discovering and punishing criminal activities.
There would appear to be no Irish decision on the question binding on this Court, though there are decisions of lower Courts to which we were referred. We were also referred to English, Scottish and United States decisions, which exhibit a great diversity of views between the Courts of these countries. As the question has been referred to us as a matter of exceptional public importance, and is of first instance in this Court, consideration may properly be given to the opinions expressed in Courts of other jurisdictions administering a similar common law, though ultimately our decision must rest on our own view of the principles involved.

English law, at all events until recently, was uncompromising and admitted all relevant evidence not excluded by any of the recognised rules of evidence, even if the facts sought to be proved had been ascertained illegally. Thus, though confessions which were extorted by fear or induced by promises by a person in authority could not be proved, yet evidence procured as a result of what was said in such a confession was admissible: R. v. Warickshall (1); R. v.Barker (2). In Jones v. Owens (3) an illegal search of the person of the accused revealed in his pockets a number of salmon smolts and this evidence was admitted on a charge of illegal fishing, Mellor J. stating broadly that “it would be a dangerous obstacle to the administration of justice if we were to hold, because evidence was obtained by illegal means, it could not be used against a party charged with an offence.” In R. v. Leatham (4) Crompton J., admitting secondary evidence of a document the production of the original of which was withheld on grounds of privilege, said:”It matters not how you get it; if you steal it even, it would be admissible.”Other English cases exemplify the same rule. I forbear to cite them as the matter has recently received full consideration in the Privy Council in the case of Kuruma v. The Queen (5).Kuruma had been searched illegally and two cartridges were found on him. He was convicted of being in unlawful possession of ammunition, an offence which, at the time and place of the search, involved the penalty of death, and he was sentenced to death. He appealed to the Privy Council on the ground that evidence obtained by an illegal search was inadmissible. The Privy Council held it to be admissible. Lord Goddard, giving the judgment of the Privy Council, said, at p. 203:”In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters at issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle.” (Lord Goddard’s words, though cast in a general form, must of course, be read secundum materiam subjectam and as meaning that if the evidence is relevant it is not made inadmissible solely on the ground that it was obtained by illegal means. Evidence is relevant if it is logically probative: it is admissible if it is legally receivable. The rules of evidence exclude from admission many facts which are logically relevant to the issues, and I do not interpret Lord Goddard’s words as in any way intended to cut down such established rules). Lord Goddard continues at p. 204:”No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused. This was emphasised in the case before this Board of Noor Mohamed v. The King (1) and in the recent case in the House of Lords, Harris v. Director of Public Prosecutions (2). If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out.” He then refers to a number of Scottish cases in which the judges considered the question whether the illegal action of the police could be excused, and concludes:”In their Lordships’ opinion, when it is a question of the admission of evidence strictly it is not whether the method by which it was obtained is tortious but excusable but whether what has been obtained is relevant to the issue being tried.”
The Scottish Courts have examined the question in a number of cases and have arrived at a different conclusion from the Courts in England. In the older Scottish cases and works of authority the rule seems to have been that evidence was admissible even if obtained by an illegality. In Crook v. Duncan (3) the Lord Justice-Clerk said:”I do not enter into the question of whether the actions of the deputy chief constable were legal or illegal. It is sufficient for this case to say that the evidence so obtained was perfectly competent as against the accused.” In Adair v.M’Garry (4) a full bench, with one dissentient, decided that at common law the police were entitled to take the fingerprints of a person apprehended on a criminal charge but not yet committed to prison; and the question whether, if the prints had been obtained illegally, they could be given in evidence, did not arise. Lord Morison, however, said (at p. 90):”I am also unable to hold that, if finger-prints have been obtained without a warrant where a warrant should have been obtained, they are thereby inadmissible as evidence.”
In H.M. Advocate v. M’Guigan (5) a man was arrested and charged with murder, rape and theft. Within a couple of hours of his arrest the police searched without warrant a tent where the accused lived with his mother and stepfather, and seized various articles. The Lord Justice-Clerk held that the action of the police was legal, but added:”Even if I thought otherwise, and that the police had acted irregularly, it would not in the least follow that the evidence proposed to be led would be inadmissible. An irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible . . . Rules as to search and warrant must, no doubt, be strictly observed and never lightly departed from; but, on the other hand, they must always be reasonably interpreted in the light of the circumstances of the particular case.”
Lawrie v. Muir (1) carried the matter further. The keeper of a dairy had been convicted of the offence of using, for the sale of her milk, bottles belonging to another person, in contravention of a statutory order. The bottles had been discovered by two inspectors who had been allowed by the accused to inspect her premises on the production of warrant cards issued by the Scottish Milk Marketing Board. The inspectors believed that their warrant cards authorised them to make a search of the premises and acted in good faith, but in fact the warrant cards conferred no such right and the consent to the search was obtained by misrepresentation. It was held by a full Court of seven judges that the evidence of the inspectors should have been excluded and the conviction was quashed. The judgment of the Court was delivered by the Lord Justice-General, and contains the fullest exposition of what I may call the present approach of the Scottish Courts. He says, at p. 26:”From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b)the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be witheld from Courts of Law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods. It is obvious that excessively rigid rules as to the exclusion of evidence bearing upon the commission of a crime might conceivably operate to the detriment and not the advantage of the accused, and might even lead to the conviction of the innocent; and extreme cases can easily be figured in which the exclusion of a vital piece of evidence from the knowledge of a jury because of some technical flaw in the conduct of the police would be an outrage upon common sense and a defiance of elementary justice. For these reasons, and in view of the expressions of judicial opinion to which I have referred, I find it quite impossible to affirm the appellant’s extreme proposition. On the contrary, I adopt as a first approximation to the true rule the statement of Lord Justice-Clerk Aitchison that ‘an irregularity in the obtaining of evidence does notnecessarily make that evidence inadmissible.’
“It remains to consider the implications of the word ‘necessarily’ which I have italicised. By using this word and by proceeding to the sentence which follows, Lord Aitchison seems to me to have indicated that there was, in his view, no absolute rule and that the question was one of circumstances. I respectfully agree. It would greatly facilitate the task of Judges were it possible to imprison the principle within the framework of a simple and unqualified maxim, but I do not think that it is feasible to do so. I attach weight to the fact that the word used by Lord Chancellor Chelmsford and by Horridge J., when referring to the disregarding of an irregularity in the obtaining of evidence, was ‘excuse.’ Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime. That principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick.”
In the same year was decided M’Govern v. H.M. Advocate (1). A man suspected of safe-breaking, but not yet charged, while in a police station had scrapings taken by the police from under his nails without his consent being obtained. The scrapings proved to contain traces of an explosive such as could have been used to blow open the safe. Admittedly the police acted illegally in taking the scrapings. At the trial evidence was given of the taking of the scrapings and their contents, and the accused was convicted. The conviction was quashed on the ground that the evidence was illegally obtained. The Lord Justice-General, with whose judgment Lord Carmont and Lord Russell agreed, said, at p. 37:”. . . irregularities of this kind always require to be ‘excused’ or condoned, if they can be excused or condoned, whether by the existence of urgency, the relative triviality of the irregularity, or other circumstances. This is not a case where I feel disposed to ‘excuse’ the conduct of the police . . . I feel that there is no option but to quash this conviction because, unless the principles under which police investigations are carried out are adhered to with reasonable strictness, the anchor of the entire system for the protection of the public will very soon begin to drag.”
The subsequent Scottish cases add little to the principles laid down in Lawrie v. Muir (1) but give examples of how those principles have been applied. In Fairley v. Fishmongers of London (2) a search by two inspectors had discovered in a cold store a number of salmon, some of them unclean and others presumably taken during the close season. Possession of such salmon was an offence against ss. 20 and 21 of the Salmon Fisheries (Scotland) Act, 1868. The first inspector was employed by the Fishmongers Company. He could have obtained a search warrant under s. 26 of the Act but neglected to do so, relying on the supposed authority of the second inspector, who was an enforcement officer of the Ministry of Food and as such was entitled to search in the investigation of suspected offences against the food regulations but not in respect of offences against the Fisheries Act. The trial judges admitted the evidence of the two inspectors and found specially that they acted “in good faith in a mistaken belief in their powers,” but stated a case for the High Court. The Lord Justice-General, with whose judgment Lord Carmont and Lord Keith concurred, held that the evidence had been rightly admitted. “I can find nothing,” he said, “to suggest that any departure from the strict procedure was deliberately adopted with a view to securing the admission of evidence obtained by an unfair trick.” He considered that in the circumstances the irregularity ought to be “excused.”
In H.M. Advocate v. Turnbull (3) the police raided the offices of Turnbull, an accountant, acting under a warrant which authorised them to seize papers in connection with a charge of making a fraudulent income tax return on behalf of a named client. The police seized not only the file dealing with the affairs of the particular client, but also a number of other files dealing with other clients in respect of whom no charges had been preferred. All these seized papers were handed over to the Revenue authorities and, after prolonged investigations, charges based on the contents of the files were preferred in respect of four other clients. Lord Guthrie, the trial judge, held that the documents in respect of those four clients had been seized illegally, that this action was deliberate and could not be excused on any ground of urgency, and that the evidence of the documents must be excluded: “. . . to hold that evidence so obtained was admissible would . . . tend to nullify the protection afforded to a citizen by the requirement of a magistrate’s warrant, and would offer a positive inducement to the authorities to proceed by irregular methods” (p. 103).
With this ruling may be contrasted another ruling of the same Judge in H.M. Advocate v. Hepper (1). Hepper was charged with theft of an attache case. It appeared that the police had visited his house in connection with another and unrelated matter and Hepper had allowed them to search his house in connection with that matter. In the course of the search the police came across the attache case and there were features about it which not unreasonably aroused a suspicion that it had been stolen. The police took it away and after further investigations Hepper was prosecuted for its theft. Lord Guthrie held that in the circumstances the action of the police was not irregular, but even if it was irregular the evidence was admissible “in view of the interest of society in the detection of crime” and because there was no breach of the principle of “fairness to the accused.”
Decisions in the United States depend chiefly on the provisions of the Fourth Amendment (the right to be secure in person, house, papers and effects against unreasonable search and seizures): the Fifth Amendment (no person to be compelled in any criminal case to be a witness against himself nor be deprived of life liberty or property without due process of law): and the Fourteenth Amendment (no State to deprive any person of life liberty or property without due process of law). In Weeks v. United States (2) in the year 1914 the Supreme Court adopted for Federal Courts and officials the strict exclusionary principle and barred the use of evidence secured through an illegal search. In 1949 in Wolf v. Colorado (3) the Supreme Court refused to hold that the exclusionary rule was, under the Fourteenth Amendment, binding on State courts and officials. The practice of State courts varied. But in Mapp v. Ohio (4) the Supreme Court in 1961 reversed the ruling in Wolf’s Case (3) and held that by virtue of the Fourteenth Amendment this exclusionary rule was binding on State courts. The rule excluding evidence obtained by unreasonable and illegal searches and seizures is now universally applicable. The Fifth Amendment has been applied strictly to exclude evidence obtained as a result of a confession induced by pressure.
An interesting decision, in the same years as Mapp’s Case (1) was Silverman v. U.S. (2) where the Supreme Court excluded evidence of conversations overheard by means of a microphone attached to a spike driven into a party wall, so as to make contact with a heating duct in the house where the conversations were going on. This was considered to be an impermissible invasion of privacy and a violation of the Fourth Amendment. Another remarkable case is Fahy v.Connecticut (3) where the evidence against the prisoners was made conclusive by the production of a tin of paint and a paint brush discovered in the course of a search for which a search warrant had not been obtained. The conviction was set aside, despite complete confession by the accused.
The question has also been approached on more general lines, and apart from the Constitution. Thus in Olmstead v.United States (4) where the evidence had been obtained by tapping telephone wires, Holmes J., one of the dissentient minority who considered the evidence inadmissible, said:”I think that, apart from the Constitution, the Government ought not to use evidence obtained, and only obtainable, by a criminal act. There is no body of precedents by which we are bound and which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected and to that end that all available evidence should be used. It is also desirable that the Government should not itself foster and pay for other crimes, where they are the means by which the evidence is to be obtained . . . We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part. For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.”
Similar views were expressed by Carroll C.J. in Youmanv. Commonwealth (5). There an officer had deliberately carried out a search without a search warrant and in violation of the law and had carried off liquor found in the course of the search. The question was raised as to whether evidence could be given of the search and finding. Carroll C.J. said, in the course of his judgment:”It seems to us that a practice like this would do infinitely more harm than good in the administration of justice; that it would surely create in the minds of the people the belief that Courts had no respect for the Constitution or laws, when respect interfered with the ends desired to be accomplished. We cannot give our approval to a practice like this. It is much better that a guilty individual should escape punishment than that a Court of justice should put aside a vital fundamental principle of the law in order to secure his conviction. In the exercise of their great powers, Courts have no higher duty to perform than those involving the protection of the citizen in the civil rights guaranteed to him by the Constitution, and if at any time the protection of these rights should delay, or even defeat, the ends of justice in the particular case, it is better for the public good that this should happen than that a great constitutional mandate should be nullified. It is trifling with the importance of the question to say, as some Courts have said, that the injured party has his cause of action against the officer, and this should be sufficient satisfaction. Perhaps, so far as the rights of the individual are concerned, this might answer, but it does not meet the demands of the law-abiding public, who are more interested in the preservation of fundamental principles than they are in the punishment of some petty offender.”
Of Irish authority there was, until recently, very little. In Attorney General v. O’Shea (1) a policeman was allowed to give evidence of conversations overheard by him when he was hiding in the prisoner’s house in circumstances which probably amounted to a trespass, but there seems to have been no objection taken to this evidence on the ground that it was procured by, and as a result of, an illegal act. In The State v.Dermot Smith (unreported) evidence was given of the prisoner’s finger-prints which had been taken without his express consent while he was in prison awaiting trial. The Court of Criminal Appeal held that the evidence was rightly received. In Attorney General v. lawlor (2) Judge Fawsitt, in a considered judgment, relied on the Scottish cases and refused to admit finger-prints taken from the accused while in custody and without any warning that he was not obliged to submit to having them taken. Finally, the Court have had the advantage of reading the very full judgments delivered by the High Court in an unreported case which is now under appeal to this Court and in which the High Court preferred the English view as set forth in Kuruma’s Case (1) to the view of the Scottish Courts and held that the finger-prints of an accused taken without his express consent while he was in custody were admissible in evidence at his trial, even if taken illegally.
None of the cases to which I have referred are binding on this Court and the problem must be approached on a basis of principle rather than authority. Three answers are possible. First, that if evidence is relevant it cannot be excluded on the ground that it was obtained as a result of illegal action: second, that if it was obtained as a result of illegal action it is never admissible: third, that where it was obtained by illegal action it is a matter for the trial judge to decide, in his discretion, whether to admit it or not, subject, in cases where the evidence has been admitted, to review by an appellate Court.
It seems to me that neither the first nor the second answer is sustainable. The first answer represents the earlier portion of Lord Goddard’s judgment in Kuruma’s Case (1) but even Lord Goddard found it necessary to allow exceptions to the rule, namely, where the strict rules of admissibility would operate unfairly against the accused, instancing the obtaining of a document by a trick. Courts both in England and Ireland have frequently refused to admit evidence which was undoubtedly relevant where the probative value of the evidence would be slight and its prejudicial effect would be great: Noor Mohamed v. The King (2). I can testify to the existence of a similar practice in Ireland from my own experience of the criminal courts both as advocate and judge. This Court in McCarrick v. Leavy (3) has recently affirmed that a judge has discretion to exclude evidence of a confession which, though relevant and strictly admissible, had been taken in a manner which contravened the principles laid down in the “Judge’s Rules.” Moreover, the Attorney General has refused to argue for this rule in its unqualified form, conceding that evidence obtained by methods of gross personal violence or other methods offending against the essential dignity of the human person should not be received. Such a concession would appear to be entirely consistent with the spirit of our Constitution as shown in Article 40, 3, 1 and 2. I conclude that the first answer is not maintainable.
The second answer would open up equal difficulties. The exclusionary rule laid down in Weeks v. United States (4) was not accepted in many of the State courts. An absolute exclusionary rule prevents the admission of relevant and vital facts where unintentional or trivial illegalities have been committed in the course of ascertaining them. Fairness does not require such a rule and common sense rejects it.
Some intermediate solution must be found. As pointed out by the Lord Justice-General in Lawrie v. Muir (1) and by Holmes J. in Olmstead’s Case (2) a choice has to be made between desirable ends which may be incompatible. It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a consideration of all the circumstances. On the one hand, the nature and extent of the illegality have to be taken into account. Was the illegal action intentional or unintentional, and, if intentional, was it the result of an ad hoc decision or does it represent a settled or deliberate policy? Was the illegality one of a trivial and technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms? Were there circumstances of urgency or emergency which provide some excuse for the action? Lord Goddard in Kuruma’s Case (3) mentions as a ground for excluding relevant evidence that it had been obtained by a “trick” and the Lord Justice-General in Lawrie’s Case (1)refers to an “unfair trick.” These seem to me to be more dubious grounds for exclusion. The police in the investigation of crime are not bound to show their hand too openly, provided they act legally. I am disposed to lay emphasis not so much on alleged fairness to the accused as on the public interest that the law should be observed even in the investigation of crime. The nature of the crime which is being investigated may also have to be taken into account. Mr. McCarthy has called our attention to a decision of the Appeal Court of California, People v. Cahan, (4), a prosecution for a gambling offence where microphones had been illegally concealed on private property and it was sought to give in evidence conversations overheard by this means. The Court, by a narrow majority applying the strict rule of exclusion, refused to admit the evidence. The case of Silverman, v.U.S. (5), already mentioned, where this same rule was applied, was also a gambling prosecution. I can, however, conceive that if a discretionary rule were applicable a judge might take a different view if the conversation revealed a conspiracy to murder or the activities of a narcotic organisation.
It would not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the presiding judge has a discretion to exclude evidence of facts ascertained by illegal means where it appears to him that public policy, based on a balancing of public interests, requires such exclusion. If he decides to admit the evidence an appeal against his decision should lie to a superior Court which will decide the question according to its own views and will not be bound to affirm the decision of the trial judge if it disagrees with the manner in which the discretion has been exercised, even if it does not appear that such discretion was exercised on wrong principles. The result of such decisions, based on the facts of individual cases, may in time give rise to more precise rules.
I turn to the facts of the case now before us. It appears that the circumstances were such that on the information sworn by Sergeant Healy a warrant to search 118 Captain’s Road would have been signed almost as a matter of course. The issue of a warrant to search for goods suspected to have been stolen was authorised even by the common law. No reason has been suggested why a warrant should not have as readily been issued for a search of 118 Captain’s Road as for 118 Cashel Road. The mistake was a pure oversight and it has not been shown that the oversight was noticed by anyone before the premises were searched. I can find no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished. Assuming that the Judge had a discretion to exclude or receive evidence of what was discovered in the course of the search because the search was illegal, I am of opinion that such discretion was rightly exercised in receiving the evidence.
I should perhaps refer to the reasons stressed by Professor Wigmore when arguing that evidence should not be excluded because obtained by an illegality, namely, that to allow exclusion on such grounds involves a collateral inquiry as to whether illegality has occurred. A similar type of collateral investigation is involved when the admissibility of a confession is involved but Courts do not shirk it. That the illegality has taken place must of course be made manifest to the Court but the establishing of this would seem to me to be in most cases less difficult than establishing that a confession is or is not voluntary. There are many kinds of evidence which require a collateral inquiry before their admissibility can be decided. I instance but onethe question whether a statement, which would otherwise transgress the hearsay rule, was made by a deceased man in the course of his duty. I do not think that the necessity of a collateral inquiry is an adequate reason for establishing a general rule that all relevant evidence is admissible notwithstanding the illegality of the means used to prove it.
Mr. Justice Walsh, in the judgment which he is about to deliver, is of opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of an accused person it should be excluded save where there are “extraordinary excusing circumstances,”and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a person in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which the arrest is made have been entered without a search warrant. I agree that where there has been such a deliberate and conscious violation of constitutional rights by the State or its agents evidence obtained by such violation should in general be excluded, and I agree that there may be certain “extraordinary excusing circumstances”which may warrant its admission. I would prefer, however, not to attempt to enumerate such circumstances by anticipation. The facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge. The views expressed in this judgment may seem to be a departure from what has hitherto been considered the law or the initiating of a principle in a field where up to now our law has been undefined. The further development of that principle should await clarification in the light of actual cases. I have already given my reasons for considering that in this particular case the evidence should not be excluded. This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution. In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded.

WALSH J. :
On the 17th January, 1961, the Court of Criminal Appeal refused the applications of Gerald O’Brien and Patrick O’Brien for leave to appeal to the Court of Criminal Appeal against convictions imposed upon them at the Dublin Circuit Court on the 28th October, 1960. Gerald O’Brien had been convicted of housebreaking with intent contrary to s. 27, sub-s. 2, of the Larceny Act, 1916, and of larceny contrary to s. 2 of the Larceny Act, 1916, upon which he had been sentenced to nine calendar months’ imprisonment and six calendar months’ imprisonment, respectively, to run concurrently. Patrick O’Brien had been convicted of housebreaking with intent contrary to s. 27, sub-s. 2, of the Larceny Act, 1916, and upon two counts of receiving stolen property contrary to s. 33, sub-s. 1, of the Larceny Act, 1916, and sentences of nine calendar months’ imprisonment and two terms of six calendar months’ imprisonment, all to run concurrently, were passed upon him. Upon the dismissal of the applications by the Court of Criminal Appeal counsel for the applicants applied to that Court for a certificate under s. 29 of the Courts of Justice Act, 1924, that the decision of the Court in dismissing the applications involved a point of law of exceptional public importance, namely, that the applications for leave to appeal should have been granted upon the grounds which appeared in paras. 5 and 6 of the notices of application and which I now paraphrase as follows:
1. That the main bulk of the evidence upon which the applicants were convicted rested for support upon the production in Court of property found in No. 118 Captain’s Road, Dublin, which was the residence of the applicants, and which had been taken into possession there by members of the Garda Siochana while those members of the Garda Siochana were not in possession of a valid warrant, required by law, authorising the search of the said premises and the taking possession of the said property by them;
2. That the main body of the evidence put forward against the applicants was obtained in direct violation of Article 40, section 5, of the Constitution in that the residence of applicants, namely, 118 Captain’s Road, Crumlin, Dublin, was forcibly entered otherwise than in accordance with law and that property taken from there was put in evidence to support the convictions.
The Court of Criminal Appeal certified that it was in the public interest that the appeal should be taken to this Court upon the matters raised.
The facts of the case are so adequately set out in the judgment which has been delivered by Mr. Justice Kingsmill Moore that it is unnecessary for me to repeat them. The appellants are brothers and they both resided with their father in the father’s house, No. 118 Captain’s Road. Most of the stolen property which was found in the house, 118 Captain’s Road, was found in the bedroom occupied by the applicant, Patrick O’Brien. The bedroom occupied by Gerald O’Brien was also searched. Some of the stolen property was also found in Gerald O’Brien’s bedroom.
The points raised, therefore, in the order in which they are stated in the notice of appeal, deal with (1) the admissibility of evidence which has been obtained as a result of an illegal seizure, and (2) the admissibility of evidence obtained as a result of an illegal seizure and which illegality amounts to a breach of a constitutional right of the accused persons. In my opinion, different considerations apply to each of these grounds and as not all illegal seizures will necessarily involve a breach of a constitutional right, I propose to deal with them separately. I will first deal with the admissibility of evidence obtained by an illegal seizure not amounting to a violation of a constitutional right.
The submission made on behalf of the appellants was that an illegality in obtaining evidence, although not necessarily fatal to its admission, must be one that can be excused or condoned by reason of urgency or some other good reason and that where there is no such excuse the evidence ought not to be admitted. The submission on behalf of the prosecution was that if the evidence be relevant it should not be excluded merely because it is obtained by illegal means. It is right to point out, however, that the rule with regard to the admission of statements by an accused person is not in issue in this case and the prosecution has not sought in any way to qualify that rule. The submission made by the prosecution is in effect in support of the principle which was reiterated in Kuruma v. The Queen (1). In the course of the argument in the present case it was stated on behalf of the Attorney General that he did not wish to submit that evidence obtained as a result of gross personal violence or methods which offended against the essential dignity of the human person could be received in evidence. That submission is indicative of the wide range of the discussion in this case but, in the view which I take in this matter, it is unnecessary to consider the implications of this submission. In my opinion it is not relevant to the point to be decided in this case. It is, however, important to note that the particular point of this case is that of evidence obtained as the result of an illegal seizure in a dwelling-house which had been illegally entered. There is a distinction between evidence which has been obtained or discovered by reason of a confession or statement by the accused improperly induced and evidence which has been discovered by reason of illegal searches or seizures. While pointing to the distinction between these types of cases I am not to be taken as expressing the view that at the moment there are in this country different rules applicable in each of these cases as the Court is now concerned only with the latter case and it may well be that at some future time in another matter it may be necessary to deal specifically with the former case. It is, however, of relevance to note that in this country and in England, there has over the years grown up a discretion in trial judges in relation to statements or confessions on the part of an accused person and the rule, which is now a rule of law, that a confession can only be received in evidence if it is voluntary is in fact a judge-made rule of evidence. Involuntary or improperly induced confessions were rejected, initially at least, solely upon the grounds that they were not entitled to credit, but a distinction was early drawn between these and the admission of other evidence derived from confessions which were in themselves inadmissible. The earliest reported case is R. v. Warickshall (1)where it was laid down that the principle relating to confessions had no application whatever to the admission or rejection of facts on the grounds that “a fact, if it exists at all, must exist invariably in the same manner whether the confession from which it is derived be in other respects true or false.” Very many subsequent cases, which it is unnecessary here to detail, follow the same principle. However, so far as the principle with regard to the admissibility of the statements themselves is concerned, namely, the doubt as to their truth, subsequent development of the matter did not indicate a logical development of that initial ground. It was at a later stage sought to have the confession admitted, notwithstanding the fact that it may have been involuntary or wrongly induced if the other facts derived from it, such as the finding of stolen property, indicated that the confession although involuntary was in fact true; because, to quote the words of Lord Denman in R. v. Garbett (2), at p. 490, “it leads to the inference that the party was not accusing himself falsely.” The developments which followed the decision of R. v. Warickshall (1) produced several propositions of law each of which had its own quota of decisions to support it, viz., (a) that the facts derived from the inadmissible confession were themselves admissible but could not in any way be indicated as being derived from a confession; (b)that when these facts were given in evidence it could be stated that they were discovered as a result of a statement made by the accused; (c) that when these facts were put in evidence so might also so much of the otherwise inadmissible confession as strictly related to the facts so discovered; (d) that when the facts were put in evidence the whole of the confession which led to the discovery would also be admissible.
It is correct, however, to state that in this country the practice in modern times has been to exclude every part of a confession which had been improperly obtained or induced irrespective of whether part of it at least could be shown by subsequent facts to have been true. It is also true to say that the practice has always been to admit in evidence facts, if they were relevant, which had been derived from the inadmissible statement or confession. While the rule of law relating to the non-admissibility of such confession was a Judge-made rule and based, originally at least, upon the question of the credit to be attached to such a statement, the rule has also come to be based partly upon the idea that in fairness to an accused person he should not by way of a trick or otherwise improperly be compelled to incriminate himself. But as the full extent of this particular type of discretion has not yet been the subject of any case and as it is not necessary to decide it in this matter I do not propose to deal any further with it. In passing, however, it is to be also noted that a trial Judge has a discretion to exclude a statement or confession which was obtained in breach of the “Judges Rules” even though no question arises as to whether that statement or confession was voluntary or not: see the decision of this Court in McCarrick v. Leavy (1). All these matters indicate the continuous evolution and growth of the discretion of the trial Judge but they also indicate that, hitherto, that evolution and growth has been confined to statements or confessions made by an accused person and so far as I am aware there has been no case in this country, and only one case in England, which held that the facts discovered by reason of or derived from the improper statement were themselves inadmissible. The English case is R. v. Barker (2) which has never been followed and, so far as the particular facts of the case itself are concerned, namely, facilities for the investigation of alleged income tax offences, was in effect reversed by s. 504 of the (English) Income Tax Act, 1952. It is, however, correct to recognise the fact that the evolution I have referred to does show a consistent trend towards the concept that an accused person should not be unfairly or improperly induced to incriminate himself by way of confession which in itself directly incriminates him or which reveals the existence or the physical whereabouts of evidence which, when produced, would incriminate him. Having thus briefly reviewed this aspect of the matter I wish to repeat that no question under this heading falls for decision in this case. Hitherto there has never been any judicial support in this country for the suggestion that evidence obtained as the result of an illegal seizure or search is by reason only of such illegality rendered inadmissible even though relevant to the matters at issue. This Court has now been asked by the appellants to make a rule which, while not rendering the evidence absolutely inadmissible, would be to the effect that the trial judge in each such case would have a discretion as to whether or not to admit the evidence so obtained. This is to ask this Court to enunciate a rule similar to the one which now prevails in Scotland as a result of the decisions which have been referred to by Mr. Justice Kingsmill Moore in his judgment. Having regard to the careful examination of these cases which has been made in his judgment I do not think it is necessary for me to deal with them again. The Scottish rule would appear to be based upon the idea that the Courts must always strive to reconcile two important interests, namely, the interests of the citizen to be protected against illegal (as distinct from unconstitutional in our context) invasions of his home or liberty and the interests of the State to secure the bringing of criminals to justice. It is regrettable that these may sometimes be competing interests but the primary purpose of the rules of evidence is to ensure a fair trial of the person accused and, subject to what I have already said with regard to the more recently developed concepts relating to self-incrimination wrongly induced, the rules of evidence have never in this country been deflected to being used as weapons by the Courts to deter police illegalities. Every Judge in our Courts is bound to uphold the laws and while he cannot condone or even ignore illegalities which come to his notice, his first duty is to determine the issue before him in accordance with law and not to be diverted from it or permit it to be wrongly decided for the sake of frustrating a police illegality, or drawing public attention to it. While I am not in a position to express any views on control of the police in Scotland or in any country where rules of evidence have been evolved for that purpose by the Courts of such countries, I have no doubt that there are adequate legal, historical and sociological reasons present in each such country to justify the views
which have been taken by their respective Courts. It is of interest to note that in his judgment in Lawrie v. Muir (1)which has been referred to by Mr. Justice Kingsmill Moore, Lord Cooper, the Lord Justice-General, says, at p. 27:”In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with a crime.” Accepting as I do that this is the principle upon which, in Scotland, involuntary or improperly induced statements or confessions are inadmissible, then the Scottish decisions upon evidence obtained as the result of illegal searches and seizures can be understood as being an extension of this principle of “fairness” because the deliberate adoption of an illegal procedure by the police would, to use the words of the Lord Justice-General in the same case, be “with a view to securing the admission of evidence obtained by an unfair trick.” In the United States of America the exclusionary rule, as it is called, does not appear to have been based on a principle of “fairness” to the prisoner but for the express purpose of enforcing compliance on the part of the police with the constitutional rights of the accused person. This is clear from the many decisions of the Supreme Court of the United States and the latest expression of it is in the judgment of that Court in Stone v. State of California (delivered the 23rd March, 1964). It would also appear that at least in cases of illegal search and seizure upon premises, the rule seems to be confined to cases where the violation has been that of the constitutional rights of the defendant.”It must be the defendant’s own privacy which is invaded by the officers. Evidence obtained in violation of the rights of only third persons is not excludable by the defendant”(Wigmore on Evidence, (revised) 1961, vol. 8, at s. 2184a (viii) and the cases noted thereunder).
In my judgment the law in this country has been that the evidence in this particular case is not rendered inadmissible and that there is no discretion to rule it out by reason only of the fact that it was obtained by means of an illegal as distinct from an unconstitutional seizure. Members of the police make illegal searches and seizures at their peril and render themselves liable to the law of tort and in many instances also to the criminal law. In my view it would properly be within the province of a Court which learns in the course of a trial that evidence proferred has been obtained as a result of an illegal search and seizure, whether on the property of the accused or any other person, knowingly and deliberately carried out by the police, to publicly draw attention to that fact and in that, though perhaps remote, way effectually to control the actions of the police. But to render the evidence inadmissible on that account only and for the purpose of controlling the police would be to prefer the latter purpose to the competing but primary one of conducting a fair trial. If a stage should be reached where this Court was compelled to come to the conclusion that the ordinary law and police disciplinary measures have failed to secure compliance by the police with the law, then it would be preferable that a rule of absolute exclusion should be formulated rather than that every trial judge, when the occasion arises, should also be asked to adjudicate upon the question of whether the public good requires the accused should go free without full trial rather than that the police should be permitted the fruits of the success of their lawless ventures. Apart from the anomalies which might be produced by the many varying ways in which that discretion could be exercised by individual judges, the lamentable state of affairs which would call for such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than to principle.
I come now to deal with the ground which was based upon the Constitutional issue. Article 40, para. 5, of the Constitution provides as follows:”The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” That does not mean that the guarantee is against forcible entry only. In my view, the reference to forcible entry is an intimation that forcible entry may be permitted by law but that in any event the dwelling of every citizen is inviolable save where entry is permitted by law and that, if necessary, such law may permit forcible entry. In a case where members of a family live together in the family house, the house as a whole is for the purpose of the Constitution the dwelling of each member of the family. If a member of a family occupies a clearly defined portion of the house apart from the other members of the family, then it may well be that the part not so occupied is no longer his dwelling and that the part he separately occupies is his dwelling as would be the case where a person not a member of the family occupied or was in possession of a clearly defined portion of the house. In this case the appellants are members of a family living in the family dwelling-house and also appear to have their own respective separate bedrooms. Each of the appellants would therefore have a constitutional right to the inviolability of No. 118 Captain’s Road. I have already referred, in the earlier part of this judgment, to what are sometimes, regrettably, the competing interests of the trial and conviction of criminals and the frustration of police illegalities. When the illegality amounts to infringement of a constitutional right the matter assumes a far greater importance than is the case where the illegality does not amount to such infringement. The vindication and the protection of constitutional rights is a fundamental matter for all Courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, 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. I would also place in the excusable category evidence obtained by a search incidental to and contemporaneous with a lawful arrest although made without a valid search warrant.
In my view evidence obtained in deliberate conscious breach of the constitutional rights of an accused person should, save in the excusable circumstances outlined above, be absolutely inadmissible. It follows therefore that evidence obtained without a deliberate and conscious violation of the accused’s constitutional rights is not excludable by reason only of the violation of his constitutional right.
In the present case it is abundantly clear from the evidence that it was through an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error. There was no deliberate or conscious violation of the right of the appellants against arbitrary intrusion by the Garda officers. The evidence obtained by reason of this search is not inadmissible upon the constitutional ground.
For the reasons I have given as to both grounds, the appeal should be dismissed.

D.D.P. v. McMahon

[1986] IR 384
Finlay C.J. 394

Case Stated.
In separate trials the defendants were convicted in the District Court of the District Court area of Monaghan of offences contrary to s. 9 of the Gaming and Lotteries Act, 1956. These matters came before the Circuit Court for the Northern Circuit, on appeal, on the 2nd October, 1984. The three appeals were heard together. At the conclusion of the evidence for the prosecution the defence objected to the admissibility of the prosecution evidence and sought a dismissal of the charges against the defendants. At the request of the prosecution the judge postponed his judgment and agreed to state a case to the Supreme Court pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947. A case was accordingly stated on the 27th August, 1985. The questions of law referred are set out in the judgment of Finlay C.J., infra.
The case stated was heard by the Supreme Court on the 9th April, 1986.
John McMenamin for the complainant referred to Director of Public Prosecutions v. Closkey ; People (Attorney General) v. O’Brien ; Director of Public Prosecutions v. McCutcheon ; Director of Public Prosecutions (Hurlihy)v. Hannon and Director of Public Prosecutions v. Joyce .
Hugh Geoghegan S.C. (with him Sean Moylan ) for the defendants referred to People (Attorney General) v. O’Brien and Reg. v. Sang .
Cur. adv. vult.

This is a case stated by Judge David Sheehy, Circuit Court judge for the Northern Circuit, pursuant to s. 16 of the Courts of Justice Act, 1947.
Each of the three above-named defendants was the owner of a licensed premises situate in the County of Monaghan, and each was charged before the District Court in Monaghan with offences contrary to the provisions of the Gaming and Lotteries Act, 1956, as amended. Each was convicted and fined in respect of the said offences and appealed by way of rehearing against both those convictions and fines to the learned Circuit Court judge. Upon the hearing before the Circuit Court, evidence was given by a Ban Gharda Berry that she and another member of the Garda Siochana, dressed in plain clothes, entered successively each of the licensed premises the property of the defendants, for the specific purpose of ascertaining whether offences against the Gaming and Lotteries Act, 1956, were being committed within them, and made certain observations while present in the premises, leading to evidence which prima facie established the commission of offences.
The witness further gave evidence that neither she nor her companion identified themselves as members of the Garda Siochana, or stated what their purpose was, nor did they obtain any search warrant for the premises, pursuant to the provisions of s. 39 of the Gaming and Lotteries Act, 1956 (the Act of 1956).
At the conclusion of the evidence for the prosecution objection was made by counsel on behalf of each of the defendants (the cases being tried together) that the evidence with regard to the commission of the offences was inadmissible, as it had been obtained by illegal means in the absence of a search warrant, and that accordingly the defendants were entitled to a dismissal of the charges against them. Having heard arguments with regard to this issue, the learned Circuit Court judge at the request of the Director of Public Prosecutions postponed his judgment and stated this case, raising the following questions for the opinion of the Supreme Court:
“1. Must a member of the Garda Siochana before entering licensed premises for the purpose of detecting possible offences under the Gaming and Lotteries Act, 1956, have in his possession a Search Warrant issued under s. 39 of the Gaming and Lotteries Act, 1956?
2. Is evidence obtained by a member of the Garda Siochana whilst on the premises for the purposes of detecting possible offences under the Gaming and Lotteries Act, 1956, without having a Search Warrant issued under s. 39 of the said Act, admissible in evidence?”
Section 38 of the Act of 1956 provides as follows:
“A member of the Garda Siochana may at all reasonable times enter and have free access to any amusement hall, funfair, circus, travelling show, carnival, bazaar, sports meeting, local festival, exhibition or other like event in which gaming or a lottery is or is believed to be carried on.”
Section 39 of the Act of 1956 provides as follows:
“(1). Where a Justice of the District Court is satisfied on the information on oath of a member of the Garda Siochana not below the rank of Inspector that there is reasonable ground for supposing that, at any place or premises, an offence against this Act has
been, is being, or is about to be committed, the Justice may issue a search warrant under this Section.
(2). The search warrant shall authorise a named member of the Garda Siochana not below the rank of Inspector, accompanied by such other members of the Garda Siochana as that member thinks proper, to enter the place or premises at any time within forty-eight hours after the issue of the warrant, if need be by force, to inspect the place or premises and any books and documents found there and to take the name and address of any person, and seize any gaming instrument and any books and documents appearing to relate to gaming or lotteries found there.”
Quite clearly a licensed premises does not come within the provisions of section 38. A consideration of the terms of both these sections furthermore leads, in my view, to the inescapable conclusion that, in respect of any place or premises which does not come within the provisions of s. 38, a member of the Garda Siochana cannot, except with the agreement or by the invitation of, the owner thereof, enter such premises for the purpose of ascertaining whether an offence against the Act of 1956 is being committed or not, unless he be not below the rank of inspector and have already within forty-eight hours obtained a search warrant pursuant to section 39.
It was correctly conceded on behalf of the Director of Public Prosecutions that on the findings of fact made by the learned Circuit Court judge in this case, namely, to the effect that the purpose of the gardai in entering each of the premises was solely to investigate the possibility of the commission of offences against the Act of 1956, the general invitation implied by law in the case of a person running a licensed premises was not applicable to the gardai in this instance and in this case. It is clear that the owner of a licensed premises issues by implication an invitation to members of the public to have resort to his premises for the purpose of buying drink or consuming drink or food therein and for ancillary and consequential purposes. In the instant case, however, it is clear that the members of the Garda Siochana did not have that purpose and it is proper and commendable that they did not seek to colour their activity by pretending by the consumption of some food or drink that they had such a purpose. In those circumstances, reliance was placed on behalf of the Director of Public Prosecutions on the powers of the Garda Siochana to enter a licensed premises arising under the intoxicating liquor code.
On the summary of the arguments contained in the case stated, it would appear that in the Circuit Court reliance was placed on behalf of the Director of Public Prosecutions on s. 12 of the Spirits (Ireland) Act, 1854, and on s. 11 of the Beer Houses (Ireland) Act, 1864. I am satisfied that neither of these sections, even as adapted, authorises any member of the Garda Siochana to enter a licensed premises for purposes other than the detection of offences against the intoxicating liquor code or the enforcement of the provisions of that code. Properly, in my view, counsel on behalf of the Director of Public Prosecutions in this Court did not pursue a reliance upon these two sections. He did, however, rely upon the provisions of s. 23 of the Licensing Act (Ireland) 1874, as amended by s. 22 of the Intoxicating Liquor Act, 1927.
Section 23 of the Act of 1874 provides:
“Any constable may, for the purpose of preventing or detecting the violation of any of the provisions of the principal Act or this Act which it is his duty to enforce, at all times enter on any licensed premises and on any premises kept by a spirit grocer, and on any premises in respect of which an occasional licence is in force.”
The “principal Act” is the Licensing Act, 1872. Section 22 of the Act of 1927, at sub-ss. 3 and 4, provides as follows:
“3. In the Licensing Act, 1872, and in the Licensing Act (Ireland), 1874, the word ‘constable’ shall include any member of the Gárda Siochana and the said Acts shall be construed and have effect accordingly.
4. In Section 23 of the Licensing Act (Ireland) 1874, the expression ‘provisions of the principal Act or this Act’ shall include the provisions of this present Act, and the said section shall be construed and have effect accordingly.”
It is submitted that as a result of these provisions the power of entry of licensed premises contained in s. 23 of the Act of 1874, is exercisable for the purpose of preventing or detecting the violation of any of the provisions of the Act of 1927. That submission clearly is correct. It is further submitted, however, that by reason of the fact that each of these defendants was charged with an offence against s. 9 of the Act of 1956, which is the offence of permitting any form of gaming, whether lawful or unlawful, to be had on licensed premises, and by reason of the fact that sub-s. 4 of s. 9 of the Act of 1956 permits, at the discretion of the Court, a conviction of an offence against that section to be recorded on the licence of the licensee of the licensed premises concerned, that investigation as to whether an offence against s. 9 had been committed or not, was a prevention or detection of the violation of a provision of the Act of 1927. This submission I cannot accept. The Act of 1927 at Part III thereof provides for the recording of convictions on licences but specifically refers to offences to which that Part of the Act applied which, by s. 24, means any offence against any of the enactments mentioned in the First Schedule of the Act of 1927. Of course, the Act of 1956 is not mentioned in the First Schedule to the Act of 1927, nor is any Act of which it is a substitution or replacement. There does not appear to be any statutory provision further extending the provisions of s. 23 of the Act of 1874.
I am satisfied, therefore, that the Garda Siochana on entering each of the licensed premises involved in this case did not have any statutory authority so to do and were outside, by reason of their intention in so doing, the implied invitation of the owner of the licensed premises.
They were, therefore, in my view, in law trespassers, and the evidence which they obtained by inspecting the use of gaming machines within these premises was evidence obtained by unlawful means, though not, of course, by the commission of any offence against the criminal law.
The act of entering, as a trespasser, the public portion of a licensed premises which is open for trade does not, of course, constitute any invasion or infringement of any constitutional right of the owner of those premises.
The question of law which it is therefore necessary to decide in order to answer the second question submitted by the learned Circuit Court judge is the question of the admissibility in a criminal prosecution of evidence obtained by an unlawful or illegal method, but without any infringement of a constitutional right.
This topic was dealt with by this Court in People (The Attorney General) v. O’Brien [1965] I.R. 142. That case dealt with an inadvertent infringement of a constitutional right. A search was conducted of the accused’s dwellinghouse in purported reliance upon a search warrant which by inadvertence contained the wrong name of the street in which the dwellinghouse was situated. There was no suggestion that any police officer conducting that search or involved with the search warrant was aware of the error that had occurred. Arguments were submitted to the Court, both on the basis that the invalidity of the warrant made the search an invasion of the constitutional rights of the accused appellant and also on the alternative basis that the invalidity of the warrant constituted an illegality in the obtaining of the evidence arising from the search. Two judgments were delivered dealing with these topics, one by Kingsmill Moore J. and the other by Walsh J. With the judgment of Kingsmill Moore J., Budd J. unreservedly agreed. With the judgment of Walsh J., Ó Dalaigh C.J. unreservedly agreed. Both these judgments were in agreement in holding that where there has been a deliberate and conscious violation of constitutional rights by the State or by its agents, evidence obtained by such violation should in general be excluded but that there may be certain extraordinary excusing circumstances which may warrant its admission. Each of the judgments held that on the facts of the instant case there was no deliberate and conscious violation of a constitutional right. With regard to the issue as to what the consequences were of the illegality involved in the search, as distinct from any invasion of constitutional rights, a difference occurs between the judgment of Kingsmill Moore J. and of Walsh J. Kingsmill Moore J., in short, held that where evidence was obtained by illegal means not involving a conscious and deliberate invasion of a constitutional right the Court had a discretion as to whether to admit it or not. Walsh J. held that in those circumstances the Court had no discretion and the evidence, if relevant, was admissible. Lavery J., who was the fifth member of the Court, expressed concurrence with the judgment of Kingsmill Moore J. but in the following terms:
“I have had an opportunity of reading and considering the judgment which Mr. Justice Kingsmill Moore is about to deliver. I agree with it.
I feel it necessary to say that in my opinion this is not a suitable case in which to consider the serious question of the admissibility of evidence obtained by illegal means. If a judge were to hold inadmissible the evidence in question in this case, or in any comparable case, his ruling would, in my opinion, be wrong to the point of absurdity and would bring the administration of the law into well-deserved contempt.”
During the course of the submissions in the instant case, a question was raised as to whether, with regard to the issue of obtaining of evidence by illegal means, as distinct from the issue of the obtaining of evidence by the invasion of constitutional rights, it could truly be said that the judgment of Kingsmill Moore J. in The People (Attorney General) v. O’Brien [1965] I.R. 142 was a majority judgment, having regard to the form of the concurrence of Lavery J. I am satisfied that it should be considered a majority judgment on this issue and would in any event be prepared to follow it and to hold that evidence obtained by illegal means, not involving conscious and deliberate violation of constitutional rights, shall be admissible unless the Court in its discretion excludes it. The essential and central decision contained in that judgment on that topic is to be found at p. 161 where it was stated as follows:
“It would not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the presiding judge has a discretion to exclude evidence of facts ascertained by illegal means where it appears to him that public policy, based on a balancing of public interests, requires such exclusion.”
Earlier in the judgment, at p. 160, the learned judge indicated the factors which might be material in any case with regard to the balancing of public interests in the following passage:
“It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruit of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a consideration of all the circumstances. On the one hand, the nature and extent of the illegality have to be taken into account. Was the illegal action intentional or unintentional, and, if intentional, was it the result of an ad hoc decision or does it represent a settled or deliberate policy? Was the illegality one of a trivial and technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms? Were there circumstances of urgency or emergency which provide some excuse for the action? . . . The nature of the crime which is being investigated may also have to be taken into account.”
I am satisfied that these considerations which I have quoted are appropriate, though of course they should not be considered as being exclusive or complete. Certain other statements of principle contained in that portion of the judgment of Kingsmill Moore J., would appear to me to be more appropriate and relevant to questions of the exceptional circumstances justifying a deliberate and conscious invasion of constitutional rights, than to the question of evidence obtained by illegal means.
It is clear from a summary of the submissions made at the hearing in the Circuit Court that neither the prosecution nor the defence suggested to the learned Circuit Court judge that he had a discretion as to whether to admit this evidence or not, the contention of the defendants being that it was wholly inadmissible and the contention of the prosecution being that it was not illegally obtained and was therefore patently admissible.
The prosecution case has now closed as far as evidence is concerned, and it seems to me that the learned Circuit Court judge should now consider the objection made in the light of the evidence for the prosecution which has been already given and in the light of any evidence relevant to this issue which may be adduced on behalf of the defendants and, of course, in the light of submissions on behalf of both prosecution and defence directed to the exercise of his discretion and then reach a decision balancing the public interest involved as to whether the evidence should be admitted.
On the findings of fact contained in the case stated, unless altered by further evidence, it would appear that, in balancing the public interest that crime should be detected against the undesirability of using improper methods, particular importance may attach to the fact that the Gardai in entering the public houses to view the machines were trespassers only, not involved in any criminal or opprobious conduct and that the offence of permitting gaming on licensed premises may be considered as one with grave social consequences.
I would accordingly answer the questions raised in the case stated by answering Question No. 1 by a simple affirmative Yes and by answering Question No. 2 by stating that the evidence is admissible in evidence unless the presiding judge in the exercise of his discretion refuses to admit it.

Walsh J.
I agree.

Henchy J.
I agree.

Hederman J.
I agree.

McCarthy J.
I agree with the order proposed by the Chief Justice.
Whether or not the judgment of Kingsmill Moore J. on the illegality point in O’Brien’s Case [1965] I.R. 142 at p. 148, represents the view of the majority and consequently of the Court, I would wish to add my endorsement to that part of his judgment where he says at p. 161:
“It would not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the presiding judge has a discretion to exclude evidence of facts ascertained by illegal means where it appears to him that public policy, based on a balancing of public interests, requires such exclusion . . . The mistake was a pure oversight and it has not been shown that the oversight was noticed by anyone before the premises were searched. I can find no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished.”
See also the judgment of the Court of Criminal Appeal in The People (D.P.P.) v. Lawless 28th November, 1985, and contained in appendix III of Charleton Controlled Drugs and the Criminal Law (1986).
Although no finding has been made in that respect, the learned trial judge in the instant case may conclude, having regard to the multiplicity of
searches and the rank of the searching officers, that there was a policy to conduct searches without a warrant. Whilst there is a hypothetical element here I consider it right to express my view that, if the finding be as I have outlined, the discretion could only properly be exercised so as to exclude the evidence.

DPP -v- David Lynch

 

[2009] IECCA 31

 

 

COURT OF CRIMINAL APPEAL
Fennelly J.
Murphy J.
De Valera J.

Appeal No. 147/07
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
DAVID LYNCH

APPLICANT

JUDGMENT of the Court delivered on the 2nd day of April, 2009 by FENNELLY J.

1. This application for leave to appeal concerns whether a flat in which the applicant was a mere squatter or trespasser was, nonetheless, his constitutionally protected dwelling, when an invalid warrant was used to search it.

2. The applicant was tried in the Dublin Circuit Criminal Court before His Honour Judge Matthews and a jury on two counts of being in possession of stolen property and one of having possession of articles with the intention that they be used in connection with theft or burglary. The jury convicted him on all three counts. He was sentenced to two years imprisonment on each count, the entire term being suspended on conditions. The present application for leave to appeal relates to the first count only.

3. All counts were laid as being contrary to relevant sections of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (“the Act of 2001). The gardaí suspected that there was stolen property to be found at a flat at 34 Pembroke Lane, Ballsbridge, Dublin 4. This led them to apply for a warrant to search that place. The application was made to a judge of the District Court pursuant to section 48 of the Act of 2001. Sub-section 3 of that section requires that the warrant “under this section shall be expressed and shall operate to authorise a named member of the Garda Síochána, alone or accompanied by such other persons as may be necessary…” to enter the place and to search and take away things found there.

4. The gardaí, on searching the flat, found items of stolen property which grounded the conviction on the first count.

5. Crucially, however, the warrant issued by the District Court did not name any particular member of the Garda Síochána. Thus, it did not comply with the section. On that ground, the learned trial judge held the warrant to be invalid. That decision is not in issue on this appeal. However, at trial, counsel for the prosecution submitted that, notwithstanding the invalidity of the warrant, the evidence of what was found should be admissible. The reason advanced was that the applicant was a mere squatter or trespasser in the flat. Hence, it was not his dwelling within the meaning of Article 40, section 5 of the Constitution. The evidence had, therefore, been obtained unlawfully, but not unconstitutionally and the learned trial judge had discretion to admit it in accordance with the judgment of Kingsmill Moore J in People (Attorney General) v O’Brien [1965] I.R. 142.

6. The learned trial judge heard evidence in the voir dire concerning the circumstances of the applicant’s residence of the flat. On one side, an agent of the owner gave evidence that he managed the property for that owner. The property was vacant, as the owner intended to demolish it as part of a new development. Thus, there was no tenant or other lawful occupier. The gardaí went to this agent to inquire about the status of the property. When he went to inspect it, he found that the locks had been changed.

7. The applicant gave evidence that he had been given the keys of the flat by a third party, who did not give evidence.

8. The learned trial judge found that the applicant was in the flat with no legal basis or title. He was a trespasser. He thought it could not be right or just that the same protection would be afforded to a person irrespective of how he came into occupation of premises. He was of the view that a person who moves in without any authorization whatsoever and as a trespasser to a property which he has absolutely no right to occupy can assert, as a result of his wrongdoing, should not have the rights and protections afforded to all and every citizen in more usual circumstances. Thus, he held that there had been no deliberate breach, conscious or otherwise, of the constitutional rights of the applicant. The evidence had been obtained illegally, but since it had not been obtained unconstitutionally, he ruled that it should be admitted.

9. It was agreed by counsel on both sides at the hearing that, if the evidence was obtained in conscious and deliberate breach of the constitutional rights of the applicant, the strict exclusionary rule applies. This Court is bound by the Supreme Court decision in People(Director of Public Prosecutions) v Kenny [1990] 2 I.R. Finlay C.J., delivering the majority judgment, discussed the options of the deterrent and absolute protection principles regarding the exclusion of evidence and opted firmly for the latter. At page 134 of his judgment he concluded:

“I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court’s) discretion.”

10. It is agreed that the absolute exclusionary principle applies in the present case, if the constitutional rights of the applicant to the inviolability of his dwelling were infringed by the search being conducted, even though unintentionally, on the basis of an invalid warrant. It suffices that the search was deliberate and conscious, even if the breach of constitutional rights was not. Thus, the question is whether the flat was the dwelling of the applicant within the meaning of Ar 40, section 5 of the Constitution, which provides:
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

11. In the Irish language version, the expression corresponding to “dwelling” is “ionad cónaithe.” The Court is satisfied that the question of whether a place is the “dwelling” of a person for the purpose of this provision, at least in the context of the criminal law, is one of fact, a view reinforced by the Irish language version. It is at least quite obvious that the constitutional protection would extend to a wide variety of people with dubious legal titles, such as an overholding tenant, the widow of a deceased legal owner, or a person in bona fide possession on foot of an invalid title.

12. It is significant, on the facts of this case, that An Garda Síochana, had the address of the flat on their own records as one of a number of addresses for the applicant. Indeed, the application for the warrant to search the flat was made precisely because the gardaí believed that the applicant lived there and that they would find stolen property there for that reason.

13. The Court concludes, therefore, that the flat was indeed the “dwelling” of the applicant. Hence, it followed from the invalidity of the search warrant that the search was not carried out “in accordance with law” and that there was an infringement of the inviolability of the dwelling within the meaning of Article 40, section 5 of the Constitution. Such an infringement, in view of the absolute exclusionary rule laid down in Kenny’s case, required that the evidence obtained be excluded. The learned trial judge had no discretion to admit it, regardless of the fact that any breach of constitutional rights was unintentional. It is accepted that, in that event, the conviction of the applicant on the first count cannot be justified. The Court treats the application for leave to appeal as the hearing of the appeal. It allows the appeal in respect of the first count and quashes the conviction.

D.P.P. v. Corrigan

[1986] IR 291
Blayney J. 291

Blayney J.
18th July 1986

This is a case stated by District Justice Sean Delap in which the opinion of the High Court is sought as to whether he was right in law in dismissing a charge under s. 13 of the Road Traffic (Amendment) Act, 1978, in the circumstances set out in the case. The relevant facts set out in the case stated are as follows. At about midnight on Monday the 18th March, 1985, two members of An Garda Siochana stationed at Skerries, Garda John Clince and Garda P.G. McHugh, were travelling in a Skerries patrol car in Rush, going in the direction of Skerries, when they saw a Hillman Hunter Estate car parked with its lights on at the side of the road. The patrol car stopped beside the car and Garda Clince got out of the patrol car to speak to the driver. The other car immediately drove off at speed in the direction of Skerries and the patrol car followed in pursuit. In the course of the pursuit the car, on three or four occasions, went two to three feet over the white line. Finally it turned left without giving any indication, crossed on to the incorrect side of the roadway and then turned right into St. Catherine’s Way. It then turned left into No. 31, St. Catherine’s Way, Rush, which Garda McHugh knew to be the home of the defendant, John Patrick Corrigan. The defendant got out of the car and both gardai approched him. Garda McHugh asked him if he could account for the manner of his driving. Garda Clince detected a strong smell of intoxicating liquor from the defendant’s breath and the defendant appeared to be somewhat unsteady. Garda Clince also formed the opinion that the defendant had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle. Garda Clince thereupon arrested the defendant under s. 49, sub-s. 6 of the Road Traffic Act, 1961, for an alleged offence under s. 49, sub-ss. 2 or 3 of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic (Amendment) Act, 1978.
The defendant, when arrested, was unco-operative and replied to Garda Clince by stating “you are not arresting me”. He resisted mildly during the five yard walk to the patrol car and was driven to Balbriggan garda station. At the garda station the defendant refused on three occasions to permit a doctor to take a specimen of blood and he also refused to supply a specimen of his urine. In cross-examination both Garda McHugh and Garda Clince agreed that they knew that 31, St. Catherine’s Way, was Mr. Corrigan’s house and they said that they did not seek or receive any permission before entering his driveway.
On these facts the learned District Justice found as a fact that Garda Clince arrested Mr. Corrigan in his own driveway, and that this was not a public place. The charge against the defendant under s. 13 of the Road Traffic (Amendment) Act, 1978, was dismissed as the learned District Justice was of the opinion that the arrest of the defendant on the 19th March, 1985, was bad because it had not been effected in a public place. In the case stated the opinion of the High Court is sought as to whether the learned District Justice was right in law in dismissing the charge under s. 13 of the Road Traffic (Amendment) Act, 1978, in the circumstances outlined.

Section 13 of the Road Traffic (Amendment) Act, 1978, provides as follows:
“(1). Where a person arrested under section 49 (6) of the Principal Act or section 12 (3) has been brought to a Garda station, a member of the Garda Siochana may at his discretion do either or both of the following
(a) require the person to provide, by exhaling into an apparatus for indicating the concentration of alcohol in breath or blood, a specimen of his breath,
(b) require the person either to permit a designated registered medical practitioner to take from the person a specimen of his blood or, at the option of the person, to provide for the designated registered medical practitioner a specimen of the person’s urine.”
The section gives a member of the Garda Siochana a discretion, in the circumstances outlined at the opening of the section, to require a person to provide a specimen of his breath, of his blood or of his urine. The circumstances are that the person should have been arrested under s. 49, sub-s. 6 of the Road Traffic Act, 1961, and should have been brought to a garda station. It is contended in the present case that these circumstances did not exist in that the defendant was not lawfully arrested under s. 49, sub-s. 6 of the Act of 1961. It is submitted on his behalf that at the time of his arrest the gardaí who arrested him were trespassing and accordingly his arrest was unlawful.
In my opinion there can be no doubt that the reference in the section to”a person arrested” must be to a person who has been lawfully arrested. Accordingly, if in the present case the position is that the defendant had not been lawfully arrested, it would follow that the gardaí would not have had the right to require of the defendant the matters set out in the section and accordingly his refusal would not have constituted an offence. The answer to the question raised by the case stated depends accordingly on whether the defendant’s arrest was unlawful.
The learned District Justice decided that the arrest was unlawful on the ground that the defendant had not been arrested in a public place. The underlying assumption here is that where a person is arrested without a warrant, the arrest is unlawful unless it occurs in a public place. In my opinion such a proposition is too wide. If the arrest was unlawful, it was not because it did not occur in a public place but rather that the gardaí who made the arrest were trespassing on the defendant’s property at the time they made it. Two questions arise; firstly, were the gardai trespassing at the time they made the arrest and, secondly, if they were, was the arrest lawful notwithstanding the trespass?

On the first point I have little doubt. I consider that the gardaí were in law trespassers. “The tort of trespass to land . . . consists in the act of (1) entering upon land in the possession of the plaintiff . . . without lawful justification”see Salmond and Heuston on the Law of Torts, 18th ed. (1981) at page 36. The gardaí did enter upon the property of the defendant, and they entered without lawful justification in that they did so without the consent of the defendant and without any other lawful authority entitling them to enter.
It seems to me that their right to arrest the defendant had not arisen at the time they entered. It did not arise until Garda Clince detected a strong smell of drink from the defendant’s breath and noticed that he appeared to be unsteady, because it was only then that he could have formed an opinion that the defendant had committed an offence under s. 49 and it was only after he had formed such an opinion that he had a power of arrest under s. 49, sub-section 6.
As was stated by Henchy J. in his judgment in McNamara v. E.S.B. [1975] I.R. 1 at p. 22:
“. . . in law the word ‘trespasser’ covers every person who enters on another’s property in circumstances in which he is neither a licensee nor an invitee . . .”
The gardaí in my opinion were clearly not invitees and neither were they licensees as they did not have the express or implied consent of the defendant. Insofar as express consent is concerned, there is a finding in the case stated that the gardaí did not seek or receive any permission from the defendant before entering his driveway, and as to implied consent, there was nothing done or said by the defendant from which his consent to the gardaí entering his driveway could be implied.
I find, accordingly, that Garda Clince was a trespasser at the time he arrested the defendant. Does it follow that the arrest was not lawful?
This question has given me very great difficulty. A number of cases were cited by Mr. O’Donnell, acting on behalf of the defendant, but it seems to me that none of them goes as far as deciding that a garda in execution of his statutory right to arrest may not enter on the property of a defendant, without his consent, for the purpose of effecting the arrest.
In Director of Public Prosecutions v. Closkey (Unreported, High Court, O’Hanlon J., 6th February, 1984) the issue did not come up for consideration as O’Hanlon J. held on the facts that the gardai were not trespassers at the time they effected the arrest. The same position obtained in Director of Public Prosecutions v. Gaffney (Unreported, High Court, MacKenzie J., 10th April, 1986). It was held on the facts that there was no definite refusal by the defendant to Inspector Killeen’s entering his house nor any request to him to leave. MacKenzie J. held on the facts that the case, like Closkey’s Case was distinguishable from Morris v. Beardmore [1981] A.C. 446 a case on which Mr. O’Donnell also relied. But Beardmore’s Case is not really an authority on the question of whether an arrest made by a garda while trespassing is not lawful. The case was concerned with s. 8, sub-s. 2 of the English Road Traffic Act, 1972, which provides as follows:
“If an accident occurs owing to the presence of a motor vehicle on a road or other public place, a constable in uniform may require any person who he has reasonable cause to believe was driving or attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test . . .”
After an accident had occurred involving a car driven by the accused, the police went to his house to interview him. They were let into the house by his son. The accused was upstairs in his bedroom and refused five requests to come down. He then sent a message to the police that they were trespassers and he wanted them to leave. Notwithstanding this the police went upstairs and requested a specimen of breath for a breath test. The defendant refused and thereupon was arrested. It was held by the Court of Appeal that the request to the defendant for a specimen of his breath was invalid as the police at the time were trespassers and so could not be acting in the execution of their duty. And since the initial request was invalid, no offence had been committed by refusing to comply with it, and as no offence had been committed the arrest was necessarily not lawful. But it was because no offence had been committed that the arrest was not lawful, and not because the police were trespassers at the time they made the arrest.
Mr. O’Donnell also referred to the case of Fox v. Chief Constable of Gwent [1985] 1 W.L.R. 33 but that case also was concerned with the validity of a request for a specimen of breath made at a time when the police were trespassing. But the court there went on to hold that even though the defendant’s arrest had been unlawful, and that it was pursuant to that arrest that he had been brought to the police station, evidence of a specimen of breath given at the station was admissible and a conviction on the basis of such evidence was upheld.
Reference was also made in the course of the argument to Director of Public Prosecutions v. Joyce [1985] I.L.R.M. 206, but that case is distinguishable because it was decided on the wording of s. 12 of the Road Traffic (Amendment) Act, 1978, and no offence under that section was charged against the defendant in the present case. Mr. O’Donnell also referred me to Article 40, s. 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. This section of Article 40 was considered by Walsh J. in People (Attorney General) v. O’Brien [1965] I.R. 142 at p. 169 where he said:
“Article 40, s. 5, of the Constitution provides as follows: ‘The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.’ That does not mean that the guarantee is against forcible entry only. In my view, the reference to forcible entry is an intimation that forcible entry may be permitted by law but that in any event the dwelling of every citizen is inviolable save where entry is permitted by law and that, if necessary, such law may permit forcible entry. In a case where members of a family live together in the family house, the house as a whole is for the purpose of the Constitution the dwelling of each member of the family. If a member of a family occupies a clearly defined portion of the house apart from the other members of the family, then it may well be that the part not so occupied is no longer his dwelling and that the part he separately occupies is his dwelling as would be the case where a person not a member of the family occupied or was in possession of a clearly defined portion of the house.”
It seems to me that what Walsh J. is saying here is that “dwelling” in the section means a house, or part of a house, and that this is what is made inviolable by the Constitution. The protection would not extend accordingly to a garden surrounding the dwelling, or leading to it, and so would not in my opinion extend to the driveway of the defendant’s house where he was arrested.
No case was cited which decided that an arrest is not lawful if the garda who effects it was at the time a trespasser on private property. And I have been unable to find any such case. But it seems to me that the law is correctly stated in Ryan and McGee on the Irish Criminal Process at p. 101:
“A garda who is endeavouring to effect an arrest either with or without a warrant, may use reasonable force to break down doors of a house to gain admittance, but only if he has unsuccessfully sought prior admission.”
The authorities given for this are Semayne’s Case (1604) 5 Co. Rep. 91a and Launock v. Brown (1819) 2 B. & Ald. 592. The latter was an action for trespass for breaking and entering the plaintiff’s dwelling house and seizing a gun. The defendants were two police constables and a gamekeeper and their defence was that the trespass was justified as having been authorised by a warrant issued by a Justice of the Peace entitling them in the day time to search the houses of unqualified persons suspected of having in their custody guns for the purpose of destroying game. The outer door of the plaintiff’s house had been broken open without his having been previously requested to open it, and by reason of this the trial judge held that the defence had not been made out. On appeal, it was held by the Court of Appeal that the verdict was right. Abbott C.J. said in the course of his judgment (at p. 593):
“It is not at present necessary for us to decide how far, in the case of a person charged with felony, it would be necessary to make a previous demand of admittance before you could justify breaking open the outer door of his house; because, I am clearly of opinion that, in the case of a misdemeanour, such previous demand is requisite; and that is sufficient for the determination of the present case. It is reasonable that the law should be so; for if no previous demand is made, how is it possible for a party to know what the object of the person breaking open the door may be? He has a right to consider it as an aggression on his private property, which he will be justified in resisting to the utmost.”
And Bayley J. said (at p. 594):
“The present verdict is quite right; because, even in the execution of criminal process, you must demand admittance before you can justify breaking open the outer door. That point was mentioned in the judgment of the Court, in the case of Burdett v. Abbott (14 East 163).”
The law is stated in somewhat similar terms in Halsbury (4th ed.) volume 11 at paragraph 104:
“A constable having a warrant of arrest, after demanding and being refused admittance, may break open doors to effect an arrest.”
The authority given for this statement of the law is the case of Burdettv. Abbott (1811) 14 East 1, to which Bayley J. referred in his judgment. In that case, which concerned the execution of a warrant for arrest issued by the speaker of the House of Commons for the arrest of a member of the House, Bayley J. said in his judgment at p. 162:
“Then as to the breaking of the outer door to execute the warrant, I think that whoever reads Semaine’s Case will see that Lord Coke was making the distinction between those cases in which the King, standing forward as prosecutor on behalf of the subject on public grounds, was party, and other cases in which the subjects were parties only in respect of their private rights: but he was not meddling with cases of contempt. Process of contempt, however, has been held in other cases to warrant the breaking of the outer door for the purpose of executing it: it was so in Semaine’s Case , and in Briggs’s Case; and there is another case in Willes 459, in which an attachment for a contempt was treated not as civil, but as criminal process; and therefore it was held that it might be executed on a Sunday: and the reason assigned is, that a contempt of the Court is a breach of the peace. Now in every breach of the peace the public are considered as interested, and the execution of process against the offender is the assertion of a public right: and in all such cases, I apprehend that the officer has a right to break open the outer door, provided there is a request of admission first made for the purpose, and a denial of the parties who are within.”
It is clear from the authorities cited that at common law force may be used to enter a house in order to execute a warrant of arrest provided a request is first made for permission to enter and such request is refused. It follows from this in my opinion that a peaceable entry for the purpose of effecting an arrest is lawful irrespective of whether any consent to enter is sought or given. If force may be used to enter where consent is refused, so that an arrest will be lawful though accomplished through a trespass by violence, it is impossible that an arrest effected through a non-violent trespass could be unlawful. I cannot see any distinction in principle between an arrest effected under the authority of a warrant and an arrest effected under the authority of a provision in a statute. In each case there is a lawful power to arrest, the only difference being in the origin of the power, and it seems to me that this does not create any difference in the power itself. I consider, accordingly, that a garda arresting a person under the power given by s. 49, sub-s. 6 of the Act of 1978 has the same power of arrest as he would have if executing a warrant of arrest issued by a peace commissioner.
For these reasons I consider that the arrest effected by Garda Clince was lawful and accordingly that the answer to the question in the case stated must be that the learned District Justice was not right in law in dismissing the charge under s. 13 of the Road Traffic (Amendment) Act, 1978.

Damache v DPP

[2012] IESC 11 (23 February 2012) McKechnie J

Constitutionality of s. 29(1)
13. Thus, the issue in the appeal is the constitutionality of s. 29(1) of the Act of 1939.

14. The unamended provision in s. 29(1) of the Offences Against the State Act, 1939 provided:-

“(1) Where an officer of the Garda Síochána not below the rank of chief superintendent is satisfied that there is reasonable ground for believing that documentary evidence of or relating to the commission or intended commission of an offence under any section or sub-section of this Act or any document relating directly or indirectly, to the commission or intended commission of treason is, to be found in any particular building or other place, the said officer may issue to a member of the Garda Síochána not below the rank of inspector a search warrant in accordance with this section.”
15. By s. 5 of the Criminal Law Act, 1976 the following section was substituted for s. 29(1) of the Act of 1939:-
“Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence under this Act or the Criminal Law Act, 1976, or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act, or evidence relating to the commission or intended commission of treason, is to be found in any building or part of a building or in any vehicle, vessel, aircraft or hovercraft or in any other place whatsoever, he may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.”
16. The amendment, inter alia, permits a member of the Garda Síochána, not below the rank of superintendent, instead of a chief superintendent as under the Act of 1939, to issue a warrant to a member of the Garda Síochána not below the rank of sergeant, instead of an inspector as under the Act of 1939.
17. The issuing of a search warrant is an administrative act, but it must be exercised judicially. It was accepted that the full panoply of rights do not apply to the issuing of search warrants. Obviously, the law does not require that suspects be put on notice of applications to apply for a search warrant. But, it was submitted on behalf of the appellant, there should be independent and impartial supervision of the issuing of a warrant.

18. In most cases that impartial supervision is exercised by a District Judge, when issuing a search warrant, or by a Peace Commissioner. Thus, third party scrutiny and supervision is built in.

19. It was accepted, on behalf of the appellant, that under a limited number of statutes, relating to serious investigations, members of An Garda Síochána have been granted statutory power to issue search warrants, but, it was submitted, these examples arise in urgent situations, or if immediate action is needed, and as a last resort. Also, such a warrant is required to be executed within a short time, usually 24 hours, while under s. 29(2) the warrant remains valid for a week.

20. The examples opened to the Court of statutes by which the Garda Síochána have power to issue search warrants were as follows:-

(i) Section 16 Official Secrets Act 1963 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Chief Superintendent or higher);
(ii) Section 14 Criminal Assets Bureau Act, 1996 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher);

(iii) Section 8 Criminal Justice (Drug Trafficking) Act 1996 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher);

(iv) Section 5 Prevention of Corruption (Amendment) Act 2001 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher).

(v) Section 7 of the Criminal Justice (Surveillance) Act 2009 provides that in cases of urgency a surveillance warrant can be issued by a Garda Superintendent, a Colonel in the Defence Forces, or a Revenue Principal Officer.

21. It was submitted, on behalf of the appellant, that the person making the decision at to whether to issue a search warrant, or not, must be independent, impartial and have no material interest in the decision to be made. It was submitted that the issuing of the warrant should be by somebody who is unconnected with the controversy and who can make a decision in an independent and detached manner of whether it is necessary to issue the search warrant.
22. There are echoes in the submissions before this Court and the submissions and decision in The People [Director of Public Prosecutions] v. Birney [2007 1 IR 337. In that case, at p. 370, it was stated that it had been contended on behalf of the first named applicant that the warrant was invalid because it was not issued by a superintendent independent of the investigation, that the issue of the warrant was in breach of the principle nemo iudex in causa sua. It was submitted that the issuance of the warrant by the superintendent offended against two principles, namely: (a) the guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution, and, (b) the guarantee of fair trial enshrined in Article 38 of the Constitution, in that in issuing the warrant the superintendent was acting as a judge in his own cause, namely as head of the investigation.

23. In The People (D.P.P.) v. Birney the Court considered s. 29(1) of the Act of 1939, as amended, under which authority the search warrant had been issued.

The Court held:-

“The Court was not persuaded that s. 29 of the Offences Against the State Act, 1939 precludes the Superintendent, who is in charge of the investigation from issuing such a warrant in the course of the investigation in which he is involved. The Court went on to conclude that on a literal interpretation of the section there was no such prohibition.”
24. This Court agrees with that analysis of the words of s. 29(1) of the Act of 1939. The literal interpretation of the words do not preclude the superintendent in charge of an investigation issuing the warrant.
25. Reference was made to two previous cases where the issue had been raised that if s. 29 of the Act of 2003 did not require that such a warrant be issued by an independent authority, then the section was unconstitutional. In The People (D.P.P.) v. Birney the Court of Criminal Appeal concluded:-

“This Court is likewise satisfied that the wording of s. 29(1) of the Offences Against the State Act is clear and unambiguous. For the applicant’s contention to be correct it would be necessary to read into the words of the statute a proviso that the Superintendent concerned should not be one involved in the particular investigation. This Court can see no basis for so doing. Accordingly this Court does not accept the submissions on behalf of the first named applicant in this regard.”
26. The issue of constitutional validity, which could not be addressed in the Court of Criminal Appeal or the Special Criminal Court, is before this Court. The Court concurs with the analysis that the literal meaning of the words of s. 29(1) of the Act of 1939 do not contain a requirement that the Superintendent should not be involved in the investigation, nor could such a proviso be inferred.
Independent person
27. The principle that the person issuing a search warrant should be an independent person is well established.

28. In Ryan v. O’Callaghan (Unreported, High Court (Barr J.), 22nd July 1987), Barr J. considered the constitutionality of s. 42(1) of the Larceny Act, 1916, which empowered a Peace Commissioner to issue a search warrant in certain circumstances. He held:-

“In light of Mr. Justice Henchy’s definition of ‘save in accordance with law’ in the context of Article 40, Section 4 sub-section (1), does it follow that the procedure for obtaining a search warrant from a Peace Commissioner which is laid down in Section 42 of the 1916 Act is a method which ignores the fundamental norms of the legal order postulated by the Constitution? In my view it does no such thing. I am satisfied that it is in the interest of the common good that there should be a simple procedure readily available to the police whereby in appropriate cases they may obtain search warrants relating to premises, including the dwellings of citizens, so as to facilitate them in the investigation of larceny and other allied offences. The procedure laid down in Section 42(1) of the 1916 Act contains important elements for the protection of the public, including all those who might be found on the premises to be searched. The investigating police-officer must swear an information that he has reasonable cause for suspecting that stolen property is to be found at the premises to be searched and he must satisfy a Peace Commissioner, who is an independent person unconnected with criminal investigation per se, that it is right and proper to issue the warrant. I am satisfied that such warrants bona fide sought and obtained from a Peace Commissioner pursuant to the procedure laid down in Section 42 of the 1916 Act are not tainted with any constitutional illegality and provide lawful authority for the search of the premises to which they relate.”
29. The above dictum was followed and applied by Hamilton P. in Byrne v. Grey [1988] 1 I.R. 31, who stated, at p. 43, that he agreed with Barr J.
30. It was submitted on behalf of the appellant that s. 29(1) of the Act of 1939 is invalid under the Constitution because it fails to reflect, and provide for, the essential balance between the requirements of the common good and the protection of the appellant’s individual rights.

31. On behalf of the respondents it was submitted that s. 29(1) of the Act of 1939 is not repugnant to the Constitution, but rather is a legitimate part of the State’s armoury to protect itself from offences against the State and against the justice system. In so far as s. 29(1) may provide a person with less protection than a search warrant that is issued by an independent person such as a Judge or a Peace Commissioner, it was submitted that any such diminution in rights is proportionate and lawful.
Presumption of Constitutionality
32. Section 29(1) of the Act of 1939 is entitled to the presumption of constitutionality. As Hanna J. stated in Pigs Marketing Board v. Donnelly [1939] I.R. 413 at 417:-

“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.”

Double Construction Rule
33. The double construction rule also applies when construing s. 29(1) of the Act of 1939. Thus, if in respect of s. 29(1) two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it would be presumed that the Oireachtas intended only the constitutional construction
Administrative Act
34. The issuing of a search warrant is an administrative act, it is not the administration of justice. Thus a search warrant is not required to be issued by a judge. However, it is an action which must be exercised judicially. As Keane J. (as he then was) stated in Simple Imports v. The Revenue Commissioners 2 I.R. 243 at 251:-

“The District Judge is no doubt performing a purely ministerial act in issuing the warrant. He or she does not purport to adjudicate on any lis in issuing the warrant. He or she would clearly be entitled to rely on material, such as hearsay, which would not be admissible in legal proceedings.”

Strictly construed
35. The legislation permitting the issuance of a search warrant should be constructed strictly. As Keane J. stated in Simple Imports v. The Revenue Commissioners [2000] 2 I.R. 243 at 250:-
“These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society; but since they authorise the forcible invasion of a person’s property, the court must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.”

Two aspects
36. There are two aspects of the issuance of a search warrant which are important. First, that a search warrant be issued by an independent person. Secondly, that such a person must be satisfied on receiving sworn information, that there are reasonable grounds for a search warrant.
37. In exceptional circumstances, such as urgent situations, provision has been made in statutes for a member of An Garda Síochána to issue a warrant, which usually has a short duration. The requirement of urgency is an important factor in determining the proportionality of legislation which may infringe a constitutionally protected right.
Wide area of search
38. Section 29(1) of the Act of 1939 provides that where a member of An Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence under the Act of 1939, or the Criminal Law Act, 1976, or a scheduled offence, or evidence relating to the commission or intended commission of treason, is to be found

“in any building or part of a building or in any vehicle, vessel, aircraft or hovercraft or is any place whatsoever,”
he may issue to a member of An Garda Síochána not below the rank of sergeant a search warrant pursuant to this section in relation to such place. Thus, a search warrant issued under this section may be in relation to a number of places, including “any place whatsoever”.
Home
39. The place for which the search warrant was issued in this case, and the place searched, was the home of the appellant. The dwelling is regarded as a place of importance which is protected under the Constitution. Thus, at the core of this case is to be found the principle of the constitutional protection of the home.
The dwelling
40. Article 40.5 of the Constitution of Ireland states:-

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”
Thus, the Constitution protects the inviolability of the dwelling.
41. There has been a long history of protection of the home under common law. In 1604, Sir Edward Coke in Semayne’s Case 77 ER 194, stated:

“That the house of every one is to him as his (a) castle and fortress, as well for his defence against injury and violence, as for his repose”.
The principle was referred to by Sir William Blackstone, in his Commentaries on the Laws of England (1768), where he stated:-
“For every man’s house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence”.
42. In Ireland the dwelling house is protected under the Constitution. The Constitution vindicates and protects fundamental rights. In The People (Attorney General) v. O’Brien [1965] I.R. 142 Walsh J. pointed out that:-
“The vindication and the protection of constitutional rights is a fundamental matter for all courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen.”
43. In The People (Attorney General) v. Michael Hogan, (1972) 1 Frewen 360 at 362 Kenny J. stated:-
“Article 40.5 of the Constitution which is in that part of it which has the heading ‘Fundamental Rights’ and the sub-heading ‘Personal Rights’ reads: The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. The guarantee is not against forcible entry only. The meaning of the Article is that the dwelling of every citizen is inviolable except to the extent that entry is permitted by law which may permit forcible entry.”
44. In The Director of Public Prosecutions v. Dunne [1994] 2 I.R. 537 at p. 540 Carney J. stated:
“The constitutional protection given in Article 40, s. 5 of the Constitution in relation to the inviolability of the dwelling house is one of the most important, clear and unqualified protections given by the Constitution to the citizen”.
The Court would apply these statements, recognising the importance of the inviolability of the dwelling.
“Save in accordance with law”
45. In Ryan v. O’Callaghan (Unreported, High Court, Barr J., 22nd July, 1987)

a search warrant had been issued by a Peace Commissioner and the issue raised was whether the Peace Commissioner in exercising the power granted to him by s. 42 of the Larceny Act, 1916, authorising a search warrant of the dwelling house of a citizen was exercising a judicial power. Barr J. considered the phrase “save in accordance with law” in Article 40.5. He stated that the contemporary view of the Supreme Court was stated by Henchy J. in King v. Attorney General 1981 I.R. 233 at p. 257, when striking down as unconstitutional an offence created by s. 4 of the Vagrancy Act, 1824, for reasons, including:-

“that it violates the guarantee in Article 40.4.1˚ that no citizen shall be deprived of personal liberty save in accordance with law – which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution …”
46. To pose the question in this case, as posed by Barr J. in the above case, in light of Henchy J.’s definition of ‘save in accordance with law’, does it follow that the procedure for obtaining a search warrant in this case, under s. 29(1) of the Act of 1939, is a method which ignores the fundamental norms of the legal order postulated by the Constitution?
47. The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual’s rights. To these fundamental principles as to the process there may be exceptions, for example when there is an urgent matter.

48. Analysis and application of such fundamental principles may be illustrated from cases in other jurisdictions.

49. In Camenzind v. Switzerland [1999] 28 EHRR 458 at 476 paragraph 46 it was stated:-

“In the present case the purpose of the search was to seize an unauthorised cordless telephone that Camenzind was suspected of having used contrary to section 42 of the Federal Act of 1922 regulating telegraph and telephone communications. Admittedly, the authorities already had some evidence of the offence as the radio communications surveillance unit of the Head Office of the PTT had recorded the applicant’s conversation and Camenzind had admitted using the telephone. Nevertheless, the Court accepts that the competent authorities were justified in thinking that the seizure of the corpus delicti – and, consequently, the search – were necessary to provide evidence of the relevant offence.
With regard to the safeguards provided by Swiss law, the Court notes that under the Federal Administrative Criminal Law Act of 22 March 1974, as amended, a search may, subject to exceptions, only be effected under a written warrant issued by a limited number of designated senior public servants and carried out by officials specially trained for the purpose; they each have an obligation to stand down if circumstances exist which could affect their impartiality. Searches can only be carried out in ‘dwellings and other premises … if it is likely that a suspect is in hiding there or if objects or valuables liable to seizure or evidence of the commission of an offence are to be found there’; they cannot be conducted on Sundays, public holidays or at night ‘except in important cases or where there is imminent danger’. At the beginning of a search the investigating official must produce evidence of identity and inform the occupier of the premises of the purpose of the search. That person or, if he is absent, a relative or a member of the household must be asked to attend. In principle, there will also be a public officer present to ensure that ‘[the search] does not deviate from its purpose’. A record of the search is drawn up immediately in the presence of the persons who attended; if they so request, they must be provided with a copy of the search warrant and of the record. Furthermore, searches for documents are subject to special restrictions. In addition, suspects are entitled, whatever the circumstances, to representation; anyone affected by an ‘investigative measure’ who has ‘an interest worthy of protection in having the measure … quashed or varied’ may complain to the Indictment Division of the Federal Court. Lastly, a “suspect” who is found to have no case to answer may seek compensation for the losses he has sustained.

As regards the manner in which the search was conducted, the Court notes that it was at Camenzind’s request that it was carried out by a single official. It took place in the applicant’s presence after he had been allowed to consult the file on his case and telephone a lawyer. Admittedly, it lasted almost two hours and covered the entire house, but the investigating official did no more than check the telephones and television sets; he did not search in any furniture, examine any documents or seize anything.”

The European Court of Human Rights held at paragraph 47:-
“Having regard to the safeguards provided by Swiss legislation and especially to the limited scope of the search, the Court accepts that the interference with the applicant’s right to respect for his home can be considered to have been proportionate to the aim pursued and thus ”necessary in a democratic society” within the meaning of Article 8. Consequently, there has not been a violation of that provision.”
50. In Hunter v. Southam Inc. [1984] 2 S.C.R. 145 at 146 to 147 Dickson J. of the Supreme Court of Canada held:-
“First, for the authorization procedure to be meaningful, it is necessary for the person authorizing the search to be able to assess the conflicting interests of the state and the individual in an entirely neutral and impartial manner. This means that while the person considering the prior authorization need not be a judge, he must nevertheless, at a minimum, be capable of acting judicially. Inter alia, he must not be someone charged with investigative or prosecutorial functions under the relevant statutory scheme. The significant investigatory functions bestowed upon the Restrictive Trade Practices Commission and its members by the Act vitiated a member’s ability to act in a judicial capacity in authorizing a s. 10(3) search and seizure and do not accord with the neutrality and detachment necessary to balance the interests involved.
Second, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing searches and seizures. Subsections 10(1) and 10(3) of the Act do not embody such a requirement. They do not, therefore, measure up to the standard the Charter. The Court will not attempt to save the Act by reading into it the appropriate standards for issuing a warrant. It should not fall to the courts to fill in the details necessary to render legislative lacunae constitutional. In the result, subss. 10(1) and 10(3) of the Combines Investigation Act are inconsistent with the Charter and of no force or effect because they fail to specify an appropriate standard for the issuance of warrants and designate an improper arbiter to issue them.”

This sets an appropriately high standard for a search warrant process.
51. The Court applies the following principles. For the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. Thus, the person should be independent of the issue and act judicially. Also, there should be reasonable grounds established that an offence has been committed and that there may be evidence to be found at the place of the search.
Proportionality
52. The Oireachtas may interfere with the constitutional rights of a person. However, in so doing its actions must be proportionate. The proportionality test, adopted from Canada, was first declared clearly in Ireland by Costello J. in Heaney v. Ireland [1994] 3 I.R. 593 at p. 607:

“The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:
(i) Be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(ii) Impair the right as little as possible;

(iii) Be such that their effects on rights are proportionate to the objective …”

53. The Morris Tribunal [Report of the Tribunal of Inquiry set up pursuant to the Tribunal of Inquiry (Evidence) Acts 1921 – 2002 into certain Gardaí in the Donegal Division] (Government Publications 2006) considered the proportionality of s. 29(1). The conclusions and recommendations of chapter 6 ‘The Burnfoot Module’ at paragraphs 623 – 624 stated:-
“The Tribunal is satisfied that it is preferable that the power to issue a warrant should be vested in a judge. With modern technology and rapid communications, there is no reason why a judge cannot be easily contacted by telephone, facsimile or e-mail or personally, for the purpose of making an application to him/her for a search warrant. A record can thereby be created, whether by tape or by the recording of the message received by facsimile or e-mail, or indeed by the prompt furnishing of a grounding information to the judge within a limited period after the application of, say, 24 hours, verifying the basis upon which the application was made, which record can then be filed for future reference. The judge can then make an independent decision.
Such a decision as to whether to grant the warrant would involve a balancing of the interests of An Garda Síochána and the investigation of the criminal offence and the constitutional or legal rights of the person whose premises is to be the subject of the warrant. There are very limited occasions upon which time would be so pressing as to make it impossible to follow such a procedure. In any event, a residual power for such eventuality could, perhaps, still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances.

The Tribunal, therefore, recommends that urgent consideration be given to vesting the power to issue warrants under section 29 in judges of the District or Circuit court. This, the Tribunal believes to be in keeping with best modern practice in this regard as exemplified in judgments of the European Court of Human Rights and judicial trends in Canada and New Zealand.”

Decision
54. This case is decided on its own circumstances. These circumstances include the fact that the warrant was issued by a member of a Garda Síochána investigating team which was investigating the matters. A member of An Garda Síochána who is part of an investigating team is not independent on matters related to the investigation. In the process of obtaining a search warrant, the person authorising the search is required to be able to assess the conflicting interests of the State and the individual person, such as the appellant. In this case the person authorising the warrant was not independent. In the circumstances of this case a person issuing the search warrant should be independent of the Garda Síochána, to provide effective independence.
55. The circumstances of the appellant’s case also includes the fact that the place for which the search warrant was issued, and which was searched, was the appellant’s dwelling house. The Constitution in Article 40.5 expressly provides that the dwelling is inviolable and shall not be forcibly entered, save in accordance with law, which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution. Entry into a home is at the core of potential State interference with the inviolability of the dwelling.

56. These two circumstances are at the kernel of the Court’s decision.

57. No issue of urgency arose in this case, and the Court has not considered or addressed situations of urgency.

58. The Court points out that it is best practice to keep a record of the basis upon which a search warrant is granted.

59. This Court would grant a declaration that s. 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976) and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.

 

The County Council of Meath -v- Murray & anor

[2017] IESC 25

The Legislative Regime:
65. Even though some measure of legislative interest over the development of land and its use is evident from statutes as far back as the Town and Regional Planning Acts 1934 and 1939, and indeed even from certain provisions of the Public Health (Ireland) Act 1878, the same by and large were ineffectual either in their terms or their application; probably in both. There were of course multiple strands of influence in this regard: some very understandable, some quite evident, others less so, and some more amenable to softening than others. 1963 may seem like the distant past in light of the highly regulated regime we have today, but the first serious attempt to impose some guidance, parameters and directional focus in this area took courage and fortitude, and should be acknowledged.

66. The influences of which I speak include Articles 40.3.1°, 40.3.2° and 43 of the Constitution, then much less explored or explained than now; the parochial mindset of vested interests; and the dominance of local level in the political landscape. In fairness, it must also be pointed out that the 1950s did not give rise to a hive of industrial, commercial or residential activity, or the creation or expansion of major infrastructural facilities, and thus the necessity for an overview, at national level, was not imminently pressing. Moreover, a period of observation to monitor how a new code might grow its legs was obviously sensible. It is therefore no surprise to note that injunctive remedies were not included in the Local Government (Planning and Development) Act 1963, which only contained somewhat cumbersome and rather circuitous models on the enforcement side (sections 31, 32, 33, 35, 36 and 37). Such remedies first appeared in the 1976 Act. Since then the section has been amended by substitution on one occasion, and then replaced by section 160 of the 2000 Act; it is of interest to note the changes which have been made to the original provision.

67. Section 27 of the Local Government (Planning & Development) Act 1976 made a distinction between, on the one hand, the making of an ‘unauthorised use’ of land or ‘a development’ which ‘is being’ carried out without permission, and, on the other, situations where a permission exists but its terms have or are not being complied with. Subsection (1), dealing with the former, authorised the making of prohibitory orders only, whereas subs (2), dealing with the latter, was broader in scope and included the making by the High Court of any order “to do or not to do, or to cease to do” anything considered necessary so as to ensure that the development, when finalised, conformed with the permission (emphasis added). That wording was considered sufficient by the Supreme Court to ground a demolition order in Morris v. Garvey.

68. The first substitution of the original provision was effected by s. 19(4)(g) of the Local Government (Planning and Development) Act 1992 (“the 1992 Act”). There were only two changes of note. The first was to the effect that the emphasised wording above quoted was also applied to a situation where no permission existed and to an unauthorised use situation. The second change of interest was the express power to make a restoration order, where practicable, in respect of the affected lands.

69. In Mahon v. Butler [1997] 3 I.R. 369, this Court held that the then provision could not be invoked so as to prohibit a future development: rather, its terms were confined to what was current at the time of the application or what was historical. It had no anticipatory effect. Moreover, as the wording shows, the section, though broader than the 1976 version, was still less explicit, by enumeration, as to how the court could deal with miscreant developers. Both of these matters were subsequently addressed in section 160 of the 2000 Act.

70. That section (as of November, 2016), reads as follows:-

“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

…

(2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.”
71. Accordingly, where successfully invoked, that provision now empowers inter alia the High Court, and obviously this Court, to make any order which it deems is necessary so that what “has been, is being or is likely” to be done is not only planning compliant, but also that the affected land is restored to the condition it was in prior to the unauthorised development being commenced, insofar as that can feasibly be done. Furthermore, for the avoidance of doubt, the section makes it clear that “restoration, reconstruction, removal, demolition, or alteration of any structure or other feature” is within the competence of the Court to so order. It is thus evident that even as between the 1992 substitution of the original section 27 and the current section 160 provision, the latter is much more extensive, far-reaching and wide-ranging as to the powers vested in the High Court to ensure planning compliance in a full sense, which include the re-establishment of the status quo ante where practicable.

72. Although the section does not, as such, adumbrate the factors which fall to be considered by the court when called upon to make an order thereunder, that does not mean that the provision is empty of either guidance or direction, in particular relative to the discretionary aspect of its application. Apart altogether from the case law, it is instructive to consider the objectives behind the enforcement regime put in place by the Act, the importance of which is underpinned by the criminalisation of carrying out an unauthorised development and by the extensive range of powers conferred on the High Court to protect, enforce and influence the attainment of these objectives.

73. From the Act as a whole, which includes the enforcement provisions from sections 151 to 163, inclusive, it seems clear that the policy aspiration is one of legislative compliance so that orderly development takes place in a regulated and coherent manner, consistent with an adopted Development Plan, either at area or local level, or both, and having regard to any coordinated policies with neighbours, all under the general direction of national policies. In effect, the armoury as given is to ensure that the environmental and ecological rights/amenities of the public are preserved and enhanced and that the integrity and efficacy of planning control is maintained. In addition, at the individual level, as Morris v. Garvey shows, no person should have to suffer a diminution of his rights, including the enjoyment of his property rights, unless such interference can lawfully be justified.

Section 160 of the 2000 Act:

Statutory Based/Equitably Controlled:
74. At the outset there is one specific matter which should be addressed, namely, how and in what way, if any, equitable principles influence the operation of the discretion contained within section 160. In the first case of note, Stafford v. Roadstone [1980] I.L.R.M. 1, Barrington J. was faced with a submission that once a breach occurred, the High Court had no option but to issue an enforcement order. In other words, subject to that pre-condition the section was mandatory. Quite correctly, in my view, the learned judge rejected that submission, as indeed all other judges have done virtually from the start (White v. McInerney Construction [1995] 1 I.L.R.M. 374 at pp. 380-381). The learned judge pointed out that such an application could be moved by any individual, even by a person who had no interest in and who otherwise was unaffected in any personal sense by the activity in question. Therefore, as neither interest nor impact was required for locus standi, it was essential for the court to establish and develop a discretion, particularly as a breach might be highly technical, notoriously trivial, or obviously inconsequential. Therefore, by reference to the use of the word “may” in the section, and also by regarding the orders as in effect being the equivalent of injunctions, the basis for such a discretionary jurisdiction was founded.

75. Shortly after Stafford, the same learned judge in Avenue Properties Limited v. Farrell Homes Limited [1982] I.L.R.M. 21, went on to say that:-

“It seems to me therefore that the High Court in exercising its discretion under s. 27 should be influenced, in some measure, by the factors which would influence a Court of Equity in deciding to grant or withhold an injunction.”
That proposition, if correctly understood, is unobjectionable and, in large measure, is true. That statement, however, so often quoted in isolation, does not support the proposition that equitable principles control, dominate, or have supremacy within or over the statutory provision. Factors such as delay, acquiescence, conduct, motive etc. are common features in the exercise of equitable jurisdiction. They also feed into section 160, and rightly so.
76. However, in several cases that base view, as expressed in Stafford and subsequently much built upon, became regarded in some judgments as in effect equating section 160 with the exercise of an equitable jurisdiction. I do not believe that such is a correct description of how the current section, or for that matter its precursors, is intended to operate. In fact, if one reads further the judgment in Avenue Properties, one will see that even though the building was standing at five stories in height at the time of application, the judge refused an injunction but only pro temp, warning very definitively that if the intended retention application was unsuccessful the situation would be quite different. Such representational concern would not have been expressed if the essential focus had not been on planning compliance. In addition, it should be pointed out that as early as Stafford, Barrington J. emphasised the importance of the public interest in this regard, which evidently distinguishes the operational nature of the section from general equitable principles. I therefore believe that whilst some of these principles have a role to play, the separate and distinctive nature of the section must be maintained. Costello J., in Patterson v. Murphy [1978] I.L.R.M. 85, said of the then new section 27 of the 1976 Act that its provisions conferred a completely new jurisdiction on the High Court, a statement endorsed in Stafford and repeated on multiple occasions since.

77. This very point, namely that the statutory injunction had a basis distinct from the general equitable jurisdiction of the High Court, was made and accepted in Mahon v. Butler [1997] 3 I.R. 369. Denham J., in giving judgment for this Court, held that the learned trial judge fell into error in construing the section so as to empower the court “to exercise its equitable jurisdiction to prohibit the anticipated commission of those wrongful acts”. She went on to acknowledge the existence of a discretion, but pointed out that such could only be found within the parameters of the section itself. In other words, external considerations, based on a general equitable jurisdiction, could not be used to extend, alter or modify what the section, correctly construed, gave rise to. I respectfully agree with that decision.

78. It is not difficult to understand why this is so, nor is it difficult to identify the features inherent in equitable injunctive relief which are notably absent on the statutory side. To name but a few: neither interest nor harm is a requirement; the sequential approach governing interlocutory injunctions on the equity side, namely, whether there is a fair question to be tried, whether damages will be an adequate remedy, and where the convenience lies, does not feature; no undertaking as to damages is required; the ultimate relief is always an injunction in permanent form; there is a limitation period expressly provided; and, of course, the section serves a public law function. The court therefore cannot approach an application in the same manner as it would were equitable principles in a private law context at issue. Consequently, at the level of principle, whilst the court has power to make both interim and interlocutory orders, that power is not intended to absorb within the section general equitable principles.

79. There are two decisions, both given in Sweetman v. Shell, which might be thought to be inconsistent with this. In fact, neither is, as any reference to equitable principles was based on Avenue Properties and was made in the context of delay which had serious consequences for the respondent, a factor always recognised by the traditional jurisprudence on section 160.

80. In the High Court ([2007] 3 IR 13), Smyth J., at paras. 53-61 of his judgment, dealt with the case law as relevant to the issue under discussion. Having highlighted the availability of section 27 to an indeterminate class and having looked at a number of authorities, including Leen v. Aer Rianta c.p.t. [2003] 4 IR 394, the learned judge at para. 55 identified the factors (para. 90, infra) which persuaded him that no order should be made in that case. Of those, one directly pertinent and of recurring concern was the repeated delay on the part of the applicant at several key junctures of the process, which significantly added to the developer’s cost base. The resulting dismissal of the application was in the first instance on the basis that there had been no breach, as such, of the 2004 permission, but the learned judge went on to note that even if there had been, the same result would also have followed on discretionary grounds.

81. On appeal, Dunne J., who gave this Court’s judgment ([2016] IESC 2), said that:-

“It must be remembered that injunctive relief is discretionary. The granting of an injunction does not inevitably follow the finding by a court that there has been a legal wrong. Injunctive relief is dependent on an analysis of where equity lies in the case.”
This, however, was said in the overall context of delay, which as noted featured prominently in the case. The observations so made should therefore be seen in this context.
82. In conclusion on this point, the jurisdiction to grant injunctive relief, or to withhold it either conditionally or unconditionally, is to be found within the section, whose construction is to be informed by the Act as a whole. Whilst undoubtedly a discretion exists, the parameters within which that must be exercised must likewise be statutorily based. Accordingly, equitable principles cannot be used to expand the discretionary aspect of the section unless such are found within it. This view is primarily intended to identify the jurisdictional basis of the courts’ power to issue a section 160 order. It is not stated for the purpose of disapplying any of the established jurisprudence which is statutorily based, nor is it intended to trim back the exercise of the courts’ discretion, provided that the basis for same is properly understood.

The Conventional Approach: (In General):
83. It is to state the obvious that the formal requirements of section 160 must be satisfied in the first instance: unless the moving party has discharged the onus of proof in this regard, the application must fail (Dublin Corporation v. Sullivan (Unreported, High Court, Finlay P, 21st December, 1984). Those requirements can of course give rise to difficult issues, such as the quia timet point in Mahon v. Butler, and others might touch on whether the activity in question is unauthorised or is exempt or the like. However, it is only once a case is made out that the issue of what order should be made arises, which of course in turn immediately brings into play the discretionary element of the section. It is how that discretion should be exercised which is the focus of this judgment.

84. In addition to what one can deduce from section 160 of the 2000 Act itself, there has been a considerable body of jurisprudence built up over several decades, both in relation to that provision and its statutory predecessors, regarding what type of factors may influence the ultimate court order once a breach has been established. Whilst several cases have attempted to further add to or to more particularise the ‘exceptional circumstances’ set out in Morris v. Garvey [1983] I.R. 319, it is still instructive to quote the relevant passage from that case, as the same remains highly influential in this area.

85. Although that case concerned circumstances where planning permission had been granted but the conditions thereof had been exceeded, the following observations of Henchy J. apply with equal force in respect of developments or uses which are entirely unauthorised; the learned judge stated at pp. 323-324:-

“This Court has judicial notice, from what it knows to have happened in other cases, that (for motives which may be put down to expediency, avarice, thoughtlessness or disregard of the rights or amenities of neighbours or of the public generally) developers who have contravened the conditions of a development permission have knowingly proceeded with unauthorised development at such a speed and to such an extent as would (they hoped) enable them to submit successfully that the court’s discretion should not be exercised against them under sub-s. 2 of s. 27 because the undoing of the work already done would cause them undue expense or trouble. For my part, I would wish to make it clear that such conduct is not a good reason for not making an order requiring work carried out in such circumstances to be pulled down.
When sub-s. 2 of s. 27 is invoked, the High Court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations. In carrying out that function, the court must balance the duty and benefit of the developer under the permission, as granted, against the environmental and ecological rights and amenities of the public, present and future, particularly those closely or immediately affected by the contravention of the permission. It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is ‘necessary to ensure that the development is carried out in conformity with the permission.’” (emphasis added)

86. A more recent judicial expression of the public interest point, which I am about to address in a moment, can be found in Wicklow County Council v. Forest Fencing Ltd [2007] IEHC 242 (“Forest Fencing”), where Charleton J., having referred to the discretionary aspect of the section stated:-

“49. … A similar principle [that a declaration should be made if a default permission arises] … should apply in the opposite circumstances, such as here, where the Court has found that there is no default permission: where the developer has, on the contrary, developed the site entirely in accordance with his own wishes and with little or no reference even to the plans in respect of which he once sought permission. The discretion of the Court, in this context, is very limited. The balancing of that discretion must start with the duty of the court to uphold the principle of proper planning for developments under clear statutory rules. Then, the Court should ask what might allow the consideration of the exercise of its discretion in favour of not granting injunctive relief.
50. To fail to grant injunctive relief in these circumstances, on these facts, would be to cause a situation to occur where the Court is effectively taking the place of the planning authority. The Court should not do that. This is a major development, for which there is no planning permission. It is in material contravention of the County Wicklow Development Plan. It is built entirely to suit the developer and with almost no reference to legal constraint. I am obliged to decide in favour of the injunctive relief sought.” (Emphasis added)

87. The point adverted to is this: where does the public interest fit in this analysis? In this respect the public interest may have different strands to it, as, for example, where an order would impact on employment beyond the individual transgressors, or on important services, infrastructure or facilities which the public avail of. These and many other like matters, if present, will be accounted for in the decision as taken. It is, however, a different aspect of public concern which I speak of, namely, the interest in planning enforcement and where that should be positioned in the exercise facing the court.

88. In the first instance, the principal starting point on planning control is that no development can lawfully be commenced without the cover of an appropriate permission; this subject to certain specific exemptions which are not to the fore of this discussion. Failure to apply, even where an application might be favourably looked upon, is in itself a serious breach where works are carried out or uses made of the subject lands. The legislative view is to criminalise such unauthorised conduct, with both terms of imprisonment and fines on indictment up to over €12m. This is a significant expression of the high level of public concern there is in regulating orderly and sustainable development. The fact that one can apply for retention permission impacts very little, if at all, on this point: such an application would not of itself prevent the bringing of a criminal prosecution, nor should any enforcement proceedings, including a section 160 order, normally be stayed simply because of such a step (section 162(3)). Consequently, this demonstration of intent must always be given its justifiable position in the court’s evaluation of the section 160 exercise.

89. In addition, it must be borne in mind that a breach of planning law will previously have been established and that the defaulter is seeking the indulgence of the court as to what resulting consequences he should face. As such, it must be that the interests of the public will be ever present on the enforcing side. Whilst the importance of that interest and the weight which it must be given, having regard to what is previously stated, will vary on a vertical scale by reference to a number of influencing factors, nonetheless it will always exist and most likely will stand first in the queue for consideration. Such was expressly acknowledged in the passage above quoted from Morris v. Garvey, as is evidenced by the lead-in requirement that any excusing factors must be found within “exceptional circumstances”. Equally so with Forest Fencing Ltd. Such is and has been recognised as an important factor.

Factors to be Considered:
90. What, then, are the factors which play into the exercise of the Court’s discretion? From a consideration of the case law, one can readily identify, inter alia, the following considerations:

(i) The nature of the breach: ranging from minor, technical, and inconsequential up to material, significant and gross;
(ii) The conduct of the infringer: his attitude to planning control and his engagement or lack thereof with that process:

• Acting in good faith, whilst important, will not necessarily excuse him from a s. 160 order,
• Acting mala fides may presumptively subject him to such an order;

(iii) The reason for the infringement: this may range from general mistake, through to indifference, and up to culpable disregard;
(iv) The attitude of planning authority: whilst important, this factor will not necessarily be decisive;

(v) The public interest in upholding the integrity of the planning and development system;

(vi) The public interest, such as:

• Employment for those beyond the individual transgressors, or
• The importance of the underlying structure/activity, for example, infrastructural facilities or services.

(vii) The conduct and, if appropriate, personal circumstances of the applicant;
(viii) The issue of delay, even within the statutory period, and of acquiescence;

(ix) The personal circumstances of the respondent; and

(x) The consequences of any such order, including the hardship and financial impact on the respondent and third parties,

91. The weight to be attributed to each factor will be determined by the circumstances of a given case. Some, because of their importance, may influence whether an order is or is not in fact made: others, the scope, nature or effect of that order. This list is not in any way intended to be exhaustive, and it may well be that other matters might require consideration in an appropriate case. For example, in Pierson v. Keegan Quarries Ltd. [2010] IEHC 404, Irvine J took account of the hardship which demolition might cause to third parties, and referred also to the possible effect of the developer having relied in good faith on professional advisers. The jobs of non-related members of the public, mentioned at para. 90(iv), above, featured in Stafford v. Roadstone Ltd and Dublin County Council v. Sellwood Quarries Ltd [1981] I.L.R.M. 23. There are many other examples. However, the above list is generally representative of the type of factors which the judge will normally be called upon to consider. It is thus an appropriate framework within which to analyse the High Court’s exercise of discretion in this case, conducted, as it only could be, by reference to the traditional or customary approach (see paras. 134-139, infra).

The Constitutional Argument:
92. Particular attention must now be paid to two High Court cases, one of which comprises a number of judgments, which have been decided since the decision of the High Court in the instant case. In the former, the string of judgments delivered in Wicklow County Council v. Fortune, the High Court, per Hogan J, appeared to reformulate the test to be applied in section 160 applications where the unauthorised development in question is a dwelling. However, in Wicklow County Council v. Kinsella [2015] IEHC 229, Kearns P was critical of this new departure, finding instead that such cases, like all others, should be decided on the basis of the existing jurisprudence. Both viewpoints therefore require careful consideration and, as such, must be addressed at some level of detail.

The Fortune Series of Cases:
93. A point of curiosity to start with: while the Fortune cases have been cited by the appellants, they feature peripherally, appearing only in the footnotes of the written submission, and are not as central to their case as one might expect. However, the essence of those judgments, namely, the protection afforded to dwelling places under Article 40.5 of the Constitution and the weight to be ascribed to that consideration when assessing whether to make a demolition order in respect of a family home, is a central theme running through the major feature of their appeal.

94. There were four judgments in all in Fortune, though only the first two need detain us here. Briefly stated, the facts in those cases were as follows. In December, 2006, it came to the attention of Wicklow County Council that Ms. Fortune had constructed a small timber framed chalet in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. She resided there with her two children. This chalet was built without planning permission. The Council sent a formal warning letter, but deferred proceedings pending an application for retention. In fact, two such applications were made, with the ultimate rejection being that of An Bord Pleanála in November, 2008. As a result the Council applied to the Circuit Court seeking, inter alia, the demolition and removal of the chalet. By decision dated the 8th February, 2011, Her Honour Judge Flanagan found for the applicant. Ms. Fortune appealed to the High Court.

95. In Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 (“Fortune (No. 1)”), Hogan J first considered a submission that the County Council’s application was statute barred; the learned judge was satisfied that section 160(6)(a)(i) of the 2000 Act is not a jurisdictional provision, but rather is a matter of defence, and on the evidence held that the respondent had failed to meet the onus of establishing when the development commenced. As a result, one could not know from what date the seven year period as specified in the section began to run. Next he addressed the exercise of discretion under section 160. He referred to much the same case law as is cited above, and also to the finding of the High Court in the instant case, noting at paragraph 32 of his judgment that:

“It may be observed in passing that no argument based on Article 40.5 of the Constitution was advanced in that case. By contrast, this question is central to the present case and this appears to be the first time in which such an argument has been advanced by way of defence in a s. 160 application.”
96. Hogan J went on to state that “[w]ere it not for the constitutional argument, I would have been inclined to adopt the same approach as did Edwards J. in Murray, i.e., grant the injunction, albeit subject to a two year stay” (para. 34). In his view, however, the “constitutional argument” was a potential outcome changer. Drawing on the then very recently delivered decisions in Damache v. DPP [2012] 2 I.R. 266 (“Damache”) and The People (DPP) v Cunningham [2013] 2 I.R. 631, Hogan J stated that Article 40.5 of the Constitution should not be confined to the sphere of criminal law and criminal procedure. Rather he characterised the guarantee of inviolability of the dwelling as “a free standing, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike” (para. 35).

97. The learned judge noted that the protection of the dwelling under the Constitution goes further than the near equivalent provisions of Article 8 of the ECHR. Whilst acknowledging that the Constitution was not intended to allow someone to profit from their own deliberate and conscious wrongful actions by invoking Article 40.5 to assert immunity from legal action and enforcement, nevertheless he went on to state that:

“41. At the same time, Article 40.5 affords a real protection which the courts must safeguard by word and deed. Insofar as the 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. In the planning context, this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is ‘inviolable’. It rather means that the courts should not exercise the s. 160 jurisdiction in such a manner so as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and, adapting the language of the European Court of Human Rights (in an admittedly different context) in Goodwin v. United Kingdom (1996) 22 EHRR 123, the case for such a drastic step is convincingly established.” (Emphasis added)
98. The judgment continued by concluding as follows on the s. 160 and Article 40.5 issues:-

“42. In this regard, it is not simply enough for the applicant Council to show – as, indeed, it already has – that the structure is unauthorised or that the householder has drawn these difficulties upon herself by proceeding to construct the dwelling without planning permission. It would be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detracted from an area of high natural beauty or presented a real and immediate traffic or fire hazard or the structure in question so manifestly violated the appropriate development plan that the homeowner had no realistic prospect of ever securing permission in respect of the dwelling.” (Emphasis added)
In light of these matters, Hogan J adjourned the decision and invited both sides to adduce further evidence “on the question of whether the necessity for a demolition order pursuant to s. 160(1) has, in fact, been convincingly established.”

99. The determination of this point is to be found in Fortune (No. 2) [2013] I.E.H.C. 255. There Hogan J., having said that the test in Morris v. Garvey required to be recalibrated in light of Damache, described at para. 5, his understanding of the proportionality test which henceforth should be applied by the Court prior to making a demolition order in respect of one’s dwelling:

“Of course, the proportionality at issue here is not simply proportionality in the narrow sense understood by Henchy J. in Morris v. Garvey of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.”
100. In applying this test, Hogan J. addressed in turn each of the three arguments made by the County Council as to why it would be inappropriate not to grant the order sought. These arguments related to the undermining of the effective protection of the environment, the precedential status of the unauthorised dwelling (in respect of which see paras. 131-132, infra), and the special conservation status of the area in which the chalet was built. He was not convinced that any of these matters warranted the demolition of the chalet, and summarised his responses thereto at para. 31 of his judgment:

“31. As, moreover, I have already indicated, the Council’s argument based on moral hazard and rewarding those who take the law into their own hands is diluted by the fact that I have already declared the structure to be unauthorised. This, in itself, should act as a deterrent to those who might otherwise take the law into their own hands. Nor is the argument based on precedent compelling, since as I have pointed out, the planning authorities could not be obliged to take account of unauthorised structures in assessing whether to grant planning permission to third parties seeking to develop in the locality. Nor has any compelling evidence been advanced that the site would compromise the protection of the Natura 2000 site.”
As a result, the development in question did not satisfy the test posed at paras. 41 and 42 of Fortune (No. 1).
101. In summary, therefore, the test proposed by Hogan J was that the moving party, in light of the inviolability of the dwelling, must by evidence convincingly establish that a demolition order is objectively justified on the basis of policy objectives, such as planning control/compliance and environmental welfare, and is the only proportionate response to the violation complained of. Unless the onus can be discharged to this threshold, the order should not be made.

102. The learned judge concluded as follows:

“32. None of this is to suggest that the arguments advanced by the Council are not important and weighty. In other cases, arguments of this kind might well prevail. But in the end I cannot ignore the solemn words of Article 40.5 which this Court is committed to uphold. The making of a s. 160 order on the particular facts of the present case would represent a drastic interference with the inviolability of the dwelling and with Ms. Fortune’s property rights. If I may re-echo that which I already said in Fortune (No.1), such an order could only be justified if compelling evidence requiring such a step had been advanced by the Council. As, for the reasons I have ventured to set out, I am not satisfied that such compelling evidence has been advanced, I will refuse to make the order requiring the demolition of the chalet.”

Wicklow County Council v. Kinsella [2015] IEHC 229 (“Kinsella”):
103. The test to be applied in applications under section 160 of the 2000 Act was again central in Kinsella. The applicants sought, inter alia, an order under section 160(2) directing the respondents to remove a timber chalet and associated works which had been erected for residential purposes without planning permission. An application for retention was refused at both first instance and on appeal. The respondents argued that, in light of the decisions in Fortune (No.1) and (No.2), their dwelling should be afforded sufficient constitutional protection such that the order sought should not be granted. In light of the arguments as advanced, the Court (Kearns P.) was required to revisit the test set down in these cases.

104. It is fair to say that the learned President took issue with much of what Hogan J. espoused in those cases. Although observing that the High Court will not lightly contradict or depart from its previous case law (Irish Trust Bank Ltd v. Central Bank of Ireland [1976-7] I.L.R.M. 50), Kearns P was satisfied that the circumstances were such that a dissonant view should be expressed. He set out at length the relevant sections of the Fortune judgments, and addressed also much of the other case law referred to earlier in this judgment. Noting that the respondents in both Fortune and Kinsella had not acted bona fide, he went on to state that:

“[H]ow – in such circumstances – some free standing application of Article 40.5, in the case of an unlawful development, could be applied to vindicate or reward the respondents in this or the Fortune case is beyond this Court’s comprehension, particularly having regard to the huge public and community interest in protecting the environment and the integrity and efficacy of planning law enforcement.”
105. Kearns P was unconvinced by the reliance which Fortune placed on Damache, observing that the case “had absolutely nothing to do with planning laws or the enforcement of same.” As to the new test suggested by Hogan J, the learned President held that:

“I see no basis at all for adapting or transposing observations made in the context of Damache into the completely different legal and factual matrix of unauthorised planning developments. Still less do I see any basis for introducing a new test, based on some ‘free-standing’ obligation under Article 40.5, to effectively set aside the considerable body of jurisprudence which already exists in relation to the discretionary application by the courts of enforcement procedures under Part VIII of the Act.”
106. The President was further critical of other elements of the Fortune decisions:

“To the extent that the judgment of Hogan J. in Fortune (No. 1) may be seen as holding or implying that the conduct of the respondent is a matter of little importance in determining the exercise of discretion, this Court would demur from any such view because it flies in the face of all the historic jurisprudence which holds that the conduct of a respondent is one of the most compelling factors in the list of discretionary factors. …
Further, the requirement that there be ‘objective justification’ for the planning authority’s decision to bring enforcement procedures, which demands that a case be ‘convincingly established’ to the extent that it meets a ‘necessity test’, effectively rewrites and amends Part VIII of the Act in a manner impermissible under our Constitutional framework of separation of powers. Nor can the Court take over the role of the planning authority in this arena. The portions of Fortune (No. 2) cited above demonstrate that portions of the decision of Hogan J may be seen as performing the function of the planning authority, something out ruled by Finlay P. in Dublin Corporation v. Garland [1982] I.L.R.M. 104 …”

107. Finally, the judge made three further observations: that the making of a Declaration may not be available under the section and certainly is not within the competence of the Circuit Court and, as would follow, the High Court on any appeal therefrom; that a circuit appeal is not an appropriate forum in which to set down “novel legal principles”; and that section 160 is a special statutory original jurisdiction and is not a subsidiary aspect of some equitable jurisdiction to enforce public law (see paras. 74-82, supra)

108. The Court accordingly held that full enforcement under section 160 was appropriate and proportionate. Kearns P was satisfied that the Court ought to give practical effect to the enforcement of decisions based on conclusions which are within the exclusive remit of the relevant planning authorities.

The Correct Approach:
109. Although I do not share the views of Hogan J. in the Fortune cases above discussed, I wish to acknowledge at the outset the legal and constitutional ingenuity that led him to the conclusion which he reached. Whilst I do not accept that in a case such as this Article 40.5 can have the preeminent influence, if not dominance, which the learned judge accorded to its provisions, nonetheless those judgments may well refocus attention on and reinvigorate the journey which Article 40.5 has still to undertake. I would therefore very much resile from the rather strident language used in some parts of the Kinsella judgment.

110. Article 40.5 of the Constitution reads:-

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” (Emphasis added)
Article 8 of the Convention states:-

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The building as constructed by the Murrays can undoubtedly be regarded as both a dwelling and a home within the provisions as outlined. The question is what effect such provisions should have on the legal and factual situation as presented in this case. As Hogan J pointed out, it is probable that the Convention does not add to what Article 40.5 of the Constitution ordains and therefore, apart from a limited reference to it, an in-depth analysis of the Convention is not required.
111. It is, I think, correct to say that the key driver behind the Fortune test was Hogan J.’s view of this Court’s decision in Damache, which he described as having:-

“… potentially far-reaching consequences in areas of civil law far removed from the criminal sphere, such as planning law. Yet perhaps it required a decision of this magnitude to illustrate that which in itself ought to have been obvious over the last 75 years or so, namely, that Article 40.5 of the Constitution ensures that the dwelling must be safeguarded in an extensive manner as befits a free and democratic society.” (para. 1 of Fortune (No.2))
The subsequent references to The People (DPP) v. Cunningham [2013] 2 I.R. 631, and The People v. O’Brien [2012] IECCA 68 were more in the nature of supporting decisions rather than as having an added significance independent of Damache. With the utmost respect, I do not believe that Damache can or should be read in this way.

112. Whilst undoubtedly a dwelling house was involved in the Damache case, and whilst important in its own right, that fact however was not at the heart of the pivotal issue which faced the Court. Indeed, the Court’s reference to the home and to the protection afforded to a dwelling under both the common law and the Constitution was, if I may say, unremarkable, in that it recited and relied only upon well-established and well understood case law such as The People (Attorney General) v. O’Brien [1965] I.R. 142, The People (Attorney General) v. Michael Hogan [1972] 1 Frewen 360, and The DPP v. Dunne [1994] 2 I.R. 537. This was all totally understandable, as it was quite unnecessary for the Court to go any further than simply establish and identify the location of the search as being of the applicant’s dwelling.

113. The key argument made in Damache was that the issuing of a search warrant must be undertaken by an independent and impartial person who has no material interest in the decision to be made. Whilst normally that supervisory role is exercised by a District Judge, or by a Peace Commissioner, the real concern was how that requirement could be said to be satisfied when warrants under section 29(1) of the Offences Against the State Act 1939 were issued by a member of An Garda Síochána who headed the investigation in question, or who otherwise was central to the garda inquiries.

114. The rationale of the Court’s decision can be seen from para. 47 of the judgment, where Denham C.J. said:-

“The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual’s rights. To these fundamental principles as to the process there may be exceptions, for example where there is an urgent matter.”
As the circumstances of that case failed to demonstrate any factor which might justify by-passing this process, the section in question was incompatible with the fundamental norms guaranteed by the Constitution, and thus violated its provisions.
115. Mr. Cunningham, at the time of the Damache decision, was incarcerated as a convicted person whose appeal was awaiting determination by the Court of Criminal Appeal. He sought to amend his grounds of appeal so as to rely on Damache and submitted that evidence procured as a result of the use of a section 29 warrant should have been excluded at his trial. Inherent to his argument was the fact that the premises searched was his dwelling house. The same issue, albeit in different circumstances, was raised in The People (DPP) v. O’Brien. Once more, the crucial link to Damache was that the search of the dwelling was carried out pursuant to a section 29 warrant.

116. The judgments of the Court, which were delivered in both cases by Hardiman J., could not be said to have added in any material, significant or novel way to the long established jurisprudence regarding Article 40.5 of the Constitution. Again, for much the same reasons as in Damache, it was unnecessary to do so. Whilst it is undoubtedly the case that in O’Brien the learned judge made the observations as are quoted by Hogan J. in para. 2 of Fortune (No.2), it is very difficult to see how such observations and those in Damache could have formed the springboard for the type of expansive utility assigned to the constitutional provision in question by Hogan J. in the Fortune cases. Quite apart altogether from the section 29 cases being in the criminal sphere, I do not read the judgments as forming a legitimate basis for absorbing the constitutional provision into planning law in the manner in which the learned judge saw fit to do.

117. I am not aware of the extent to which the entire terms of Article 40.5 fed into the Fortune decisions, as there seems little reference to what follows after the word “inviolable” in the provision. It is of course well-established that this section of the Article is not confined to preventing forcible entry only; any entry other than such as is in accordance with law is prohibited (Walsh J. in O’Brien [1965] I.R. 142 at 169; The People (Attorney General) v. Hogan [1972] 1 Frewen 360). However, the reference to forcible entry must have some significance, indicating perhaps that the focus of the guarantee is primarily on the “entry and search” power of investigating authorities. In saying this, I am not suggesting that the ambit of the Article is so confined. Rather, I mention the point as explaining why I am reluctant to specifically endorse the generalised description of it by Hogan J. as being “a freestanding, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike”. Such a statement, in non-qualified and unconditional language, is of immense reach, with potential capacity to travel to destinations quite unknown. I would be concerned as to the consequences of such a step. It is not the fear of far reach that concerns me; rather it is, first, the creation of that potential from a base which I do not think justifies it, and, secondly, from the factual context of the instant appeal, where the provision cannot possibly prevail over the countervailing factors which are present. As a result, I think the preferable course would be that any widespread expansion from the Article’s traditional sphere of influence should be case driven and individually worked out.

118. Despite this caveat, I am readily prepared to accept that Article 40.5 of the Constitution is not confined to criminal law or its procedural surrounds. It must, at the level of principle, have an application in civil law. Accordingly, my following observations on both Fortune (No.1) and (No.2) are based on an acceptance that the Article undoubtedly confers protection at a constitutional level on one’s dwelling house, whether that be where Ms. Fortune resides with her family or Mr. and Ms. Murray with theirs.

119. On my reading of the judgments in Fortune (No. 1) and Fortune (No. 2), Hogan J elevated the constitutional protections afforded by Article 40.5 to too high a position of prominence in the context of section 160 applications. The learned judge required that demolition should not be ordered unless the necessity for such step is objectively justified and convincingly established. Thus he held that before ordering demolition, it was not sufficient that the house be unauthorised, no matter how egregious that step might be, but rather that the authority would have to “go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response.” Hogan J also understood ‘proportionality’ in this context in a broad sense, meaning whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection could be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.

120. In so doing, not only did the learned judge stand down what I have described as the traditional approach, but in addition he seems to have:-

(i) discounted the possibility that the integrity of the planning system could of itself be justification for a demolition order;

(ii) refocused the emphasis on the moving party having to establish reasons, specific to the particular development, as to why such a demolition order would be justified; and

(iii) assumed the responsibility to interrogate those reasons, as it happens to a conclusion which disagreed with and in effect set aside the reasons advanced by both the Planning Authority and An Bord Pleanála for refusing the retention application made by Ms. Fortune.

For the reasons following, I do not believe that this approach was the appropriate one.

121. Earlier in this judgment, I have examined the public interest imperative in upholding and maintaining planning control, planning regulation, orderly and sustainable development and the rule of law. As adapted to suit that branch of public concern, the courts have frequently accepted that the integrity of the asylum system, of itself, may be a sufficient justification for refusing entry, the making of a deportation order, or the Minister’s refusal to allow individuals to remain on humanitarian grounds. I cannot see why, at the level of principle, if the circumstances are so compelling, a similar approach should not be available for consideration in a planning context.

122. With the utmost respect to the learned trial judge, in shaping the decision in the manner in which he did, he placed undue influence on why a demolition order should be made. Given the public interest elements which I have previously identified, I very much doubt that this approach is correct. In addition, in the particular circumstances of the case, having regard to the development plan, the decision of the planning authority and ultimately that of An Bord Pleanála, and the reasons given therefor, the focus of the inquiry should have been on what basis and why such an order should not follow from the established evidence. That error inevitably led to many of the significant factors in favour of such an order not being given the due weight which they should have.

123. It will be recalled that in Fortune the retention application was rejected by the Board, inter alia, because:-

(i) the site in question was part of an “area of outstanding natural beauty” as designated in the County Development Plan; whilst some residential development was permitted, the applicant did not meet the necessary criteria. Accordingly, to grant retention would have contravened the stated policy of the plan and would have been contrary to the proper planning and sustainable development of the area; and
(ii) the access road was substandard in both horizontal and vertical alignment and in poor condition. Its use in the context of the development would therefore endanger public safety by reason of “traffic hazard and obstruction of road users.”

The question arises as to how far a judge, on a section 160 application, can review the merits of a retention refusal given by either the Planning Authority or An Bord Pleanála.
124. It is not an easy task to try and articulate a visible boundary line beyond which a judge should not go when applying the proportionality test. Some engagement with the facts is obviously required. However, he is not permitted to reach his own independent view on the planning merits of a case. That is the function of the planning process. The courts must not act as a surrogate for the nominated bodies. They have no role in performing such function through some process of reviewing the merits of a decision reached by either of them within their remit. Still less, do they have the expertise to carry out such a function.

125. In Dublin Corporation v. Garland [1982] I.L.R.M. 104 at 106, Finlay P. made this very point:

“There can, in my view, be no function in the court on the making of an application under [section 27] in any way to review, alter or set aside a decision of the Planning Authority with regard to the granting or withholding of permission. The entire scheme of the Planning Acts is that, subject to the limited exceptions for the determination by the High Court of questions of law specifically referred to it, decisions as to the proper planning and development of any area are peculiarly the function of the Planning Authority in the first instance and of An Bord Pleanála on appeal from them.”
Very much the same was said by Kearns P. in Kinsella.
126. I am not suggesting that this passage from Garland is necessarily the last word on the point, as the concept of proportionality has evolved very considerably in the past 30 years. However, even considering that development, I am satisfied that the Court should not embark on what might in effect be a further review of matters the determination of which is committed by legislative policy and statutory provision to stipulated bodies. Although in a somewhat different context, Denham J., as she then was, in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701, emphasised that the courts should be reluctant to interfere with the decisions of expert bodies, such as An Bord Pleanála. See also South Buckinghamshire DC v. Porter [2003] 2 AC 558.

127. As part of his examination of the reasons which prompted the Board to refuse Ms. Fortune’s retention application, the learned judge concluded that the unauthorised development did not as such “jeopardise or threaten the rights or amenities of other parties”, and came to a like conclusion regarding the substandard condition of the access laneway: in his view it did not present a “real and imminent traffic hazard”. Such an examination and conclusion seems perilously close to conducting a further review of the merits of that rejection.

128. With the greatest of respect to Hogan J., in holding as he did, he effectively discounted the wilful and deliberate decision by Ms. Fortune to erect her chalet and the nature and extent of the planning violation at issue. These important considerations have virtually always been given great weight in the case law: I see little reason to change that. Such authorities also show that where the planning breach in question is a gross and intentional one, a removal or demolition order is certainly within the range of available remedies; the exercise of discretion in this manner in Kinsella, on the traditional approach, could not be seriously challenged.

129. While Fortune was justifiably entitled to highlight the constitutional importance of the dwelling in the context of section 160 applications, I do not believe that it was appropriate to go further and effectively reformulate the test in a way some distance removed from all the previous jurisprudence in this area. That the structure is a home remains but one of the factors which a Court will consider in exercising its discretion under that section but it should not be given undue weight vis-à-vis the other considerations above described. Perhaps most pertinently, the fact of the unauthorised development being a family home will not of itself, in my view, be sufficient to persuade a Court to exercise its discretion against demolition: important to that decision will be where the building has been constructed in such a deliberate and flagrant breach of the planning laws, as in both Fortune and here. This is the situation even in the absence of such factors as those mentioned at para. 42 of Fortune (No. 1). I believe that Article 40.5 of the Constitution does not compel me to reach any different result, and that the conclusion so reached is consistent with the ECHR and with the jurisprudence of the European Court of Human Rights (para. 139, infra). I accordingly find that the test under section 160 of the 2000 Act does not require to be recalibrated and that it was correctly applied by the trial judge in this case.

130. It may well be that Damache has led to a renewed appreciation of the potency of Article 40.5 of the Constitution. That decision did not, however, add layers of constitutional protection to the dwelling that were not already there, albeit arguably under-utilised. Moreover it is difficult to believe that like considerations were not taken into account by Courts when addressing section 27 or section 160 applications in any event, as the hardship argument would almost inevitably be seriously undermined if the property at issue was not a dwelling house. At the front of many submissions where a demolition order is sought will be that argument, however so framed. Such will self-evidently carry greater weight where the development in question is a dwelling and where the consequences of its demolition might be to render the inhabitant homeless. Such an argument, however forceful it might be, does not preclude a demolition order, nor can some ‘free-standing’ application of Article 40.5 tip the balance so wholly against that relief. It is not necessary to dwell on that argument, as it is simply to point out the obvious to state that Article 40.5 does not entitle a person to erect a dwelling on someone else’s property, then rely on that provision as a shield to prevent its demolition. Hogan J. did not intend that nor is it a logical corollary of his Fortune judgments. He did, however, attempt to recalibrate the test in such a way as to give undue weight to the fact of the development being a dwelling. For the reasons above stated, I do not think that this was the correct approach.

131. There are two further matters arising out of Fortune (No.2) which require comment. Hogan J held, at para. 13, that the Declaration of the chalet as an unauthorised structure was sufficient to deter others from flouting planning laws and erecting unauthorised structures. The basis for this was that such a property is “effectively unsaleable” and cannot be used as security for lending purposes. Such reasoning overlooks, however, the fact that many people may have no desire to sell their property or to use it as security. As the facts of the instant case show, the developer will often want no more than a place to call their home, particularly if they have ties to the area. The inability to sell-on or mortgage such a property will be of no deterrent value in such circumstances, and little in others.

132. Secondly, Hogan J. held that permitting Ms. Fortune to remain in the chalet would not have any value from a precedential perspective because only lawful developments can be considered in subsequent planning applications. However, in so doing he overlooked the real essence of the argument based on precedent. The point rather is that if the fact of the unauthorised development being a dwelling is so powerful a consideration that it threatens to overbear all countervailing factors, the taking of the law into one’s own hands becomes an altogether more attractive proposition. Whilst one would not wish to overstate the position, it could indeed quickly become a grave state of affairs if there was a reasonable chance of using Article 40.5 to successfully defeat an application for a demolition order of an unauthorised development; such would be entirely contrary to our planning laws and all of the important policy objectives that they aim to achieve.

133. Finally, as to the appropriateness of deciding a novel point of law in a Circuit Appeal, I would say only this: it is both the legal and constitutional duty of each judge to determine all relevant issues raised before him, in whatever form they appear, once he has jurisdiction to do so. Hogan J. was therefore not only entitled but was obliged to deal with the points articulated on behalf of Ms. Fortune, however novel, complex or difficult they may have been.

The Conventional Approach: (This Case):
134. I do not accept the appellants’ submission that the learned judge failed to consider, or did not accord proper weight to, the personal consequences and individual hardship to the appellants of the demolition order so made. In recounting the evidence offered, Edwards J. set out the basis for the appellants’ desire to live in the parish in question, and the reasons why they proceeded to build the home notwithstanding the refusal of planning permission. The learned judge then set out at considerable length almost the entirety of the affidavit of Rose Murray of the 25th November, 2009, describing it as an “articulate and impassioned plea ad miseriacordiam.” I would not demur from that description. Edwards J. stated that “the Court has had regard to all of the matters urged upon it by Counsel for the [appellants], as well as the matters deposed to by both [appellants] in their respective affidavits” and noted that he had “particularly considered the contention that it would be disproportionate and unduly harsh on the [appellants]” to make the orders sought. In reaching his decision, the learned judge stated that it was “[w]ith very great regret [that] this Court finds itself in agreement with the [planning authority]”. Once again, he recognised that the order made would “undoubtedly constitute an enormous hardship to the [appellants].” Therefore, on several occasions the learned judge expressly acknowledged the hardship which will be caused by demolition of the family home. Accordingly, the submission that he failed to appreciate the consequences of his preferred order cannot be entertained. I accordingly reject any submission that he did not consider the consequences of the order as made.

135. Neither do I accept that the learned judge erred in the weight which he attributed to each and all of the factors, including the personal hardship and family inconvenience that were advanced on behalf of the Murrays. These were very much at the forefront of his mind and evidently weighed heavily on the exercise by him of the court’s discretion under section 160. His conclusion speaks for itself:-

“With very great regret this Court finds itself in agreement with the applicants in this case. This is not a case of minor infraction, or of accidental non-compliance, or of non-compliance with some technicality. The unauthorised development carried out by the [appellants] was indeed a flagrant breach of the planning laws and completely unjustified. They have sought to drive a coach and four through the planning laws and that cannot be permitted no matter how frustrated they may have felt on account of earlier refusals. While it will undoubtedly constitute enormous hardship to the [appellants] to have to demolish their dwelling house, particularly in circumstances where the first named [appellant] is now a victim of the general down turn in the construction industry and there is little work, nevertheless the law must be upheld. Though it gives me absolutely no pleasure to say it, and it is stating the obvious, they have brought this on themselves.”

Disposal of the Appeal:
136. Save perhaps for the allegation that the course of engagement with Meath County Council was a source of frustration for the Murrays, there is otherwise virtually no dispute about the entirety of the background circumstances and factual situation pertaining. That the development had no planning permission is admitted; that the appellants were fully aware of the necessity to obtain planning permission is self-evident, but if verification is required it is obviously provided by the applications/appeals made by professional advisers on their behalf to both the Planning Authority and An Bord Pleanála, in respect of whose decisions no challenge has been mounted, and indeed by the suggestion that they could avail of the agricultural exemption under the Regulations, correctly described by Edwards J. as “frankly preposterous”. Their actions in building nonetheless were cited by the learned judge as being “particularly flagrant and completely unjustified on any basis”, a description one could hardly quarrel with. To have constructed the size and scale of the structure which they did is, in such circumstances, difficult to comprehend. A more reckless disregard for the rule of law is difficult to discern.

137. That both the prohibitory and mandatory orders made by the High Court will cause considerable hardship for the appellants, including financial loss, has been acknowledged, but the same was eminently foreseeable and directly proximate to their culpable behaviour. Their background connection with the area, their own individual family circumstances and those of their wider families, their integration into the local community, and of course the fact that they have three school going children, have all been recognised. Each and any other factor of relevance and materiality was fed into the equation. Having considered all of those personal factors as against the nature of the breach, Edwards J. felt that a restraining order on its own would be an inadequate response and that the same should be supported by a ‘removal and restoral’ order. To permit them to make the necessary arrangements in this regard, a stay of two years was placed on the execution of the order.

138. By the application of conventional principles, which is the correct approach, the decision of the learned judge could not be set aside on any of the grounds argued before this Court.

139. This conclusion is entirely compatible with the Strasbourg jurisprudence, as Chapman v. United Kingdom (Application no. 27238/95, judgment of the 18th January, 2001; (2001) 33 EHRR 18) shows. In that case the Court addressed a situation in which a Gypsy who lived in a caravan on her own land was refused planning permission, after which an enforcement notice was issued. She alleged that the refusal of planning permission and the enforcement measures amounted to breaches of Articles 6, 8 and 14 of the ECHR. In holding that the Convention had not been violated, the Court stated as follows at paragraph 102 of the judgment:

“Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection … When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of the home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.”

Conclusion
140. For all of the reasons above mentioned, the order of the High Court will be upheld. The Court is mindful of the hardship this will cause for the appellants and the difficulties they may have in complying with the order. However, it cannot lose sight of the fact that the appellants have been living in the unauthorised development, which was deliberately constructed in flagrant breach of the planning laws, for over a decade. In all the circumstances, a stay on the order for a further period of 12 months from the date of this judgment is appropriate. However, it must be understood that the intention of this stay is so that the order of the High Court order can be complied with in full on or before that date.

 

Dooley v. Attorney General

Griffin J.

[1977] IR 207
S.C.

On the 14th July, 1975, the Chief Justice stated that the Supreme Court would not express at that stage any opinion on the constitutionality of s. 4, sub-s. 3, of the Act of 1971. He stated that the decision of the Supreme Court (O’Higgins C.J., Walsh, Budd, Henchy and Griffin JJ.) on the other issues would be delivered by one member of the Court pursuant to the provisions of Article 34, s. 4, sub-s. 5, of the Constitution.
14th July, 1975

Griffin J. , delivering the judgment of the Court:
On the 30th September, 1971, the plaintiff and seven other persons entered and occupied a room in the Department of Foreign Affairs, Iveagh House, Dublin, and remained in occupation thereof for approximately one and a half hours until removed by Gardaí. Activities of the kind alleged are nowadays referred to as a “sit-in” and in respect of this sit-in she was prosecuted under s. 3 of the Prohibition of Forcible Entry and Occupation Act, 1971. When the matter came before the District Court, she obtained an adjournment for the purpose of challenging in the High Court the constitutional validity of the Act. She instituted these proceedings in the High Court claiming a declaration that certain sections of the Act of 1971 are invalid having regard to the provisions of the Constitution. Her action was heard by the then President of the High Court who dismissed it, and against that dismissal she has appealed to this Court. On the hearing of this appeal, counsel for the plaintiff confined their attack on the Act to the provisions of ss. 2, 3 and s. 4, sub-s. 3, of the Act.
By sub-s. 1 of s. 1 of the Act of 1971 it is provided that in the Act”owner” in relation to land “includes the lawful occupier, every person lawfully entitled to the immediate use and enjoyment of unoccupied land, any person having an estate or interest in land (including a person who remains in occupation of land after the determination of his tenancy therein), the owner of the servient tenement (in relation to an easement or profit à prendre), the owner of an easement or profit à prendre (in relation to the servient tenement) and, in relation to land or a vehicle, any person acting on behalf of the owner, and ‘ownership’ shall be construed accordingly.”In the opinion of the Court the words “any person having an estate or interest in land” in this definition of “owner” should be construed as”any person having an estate or interest in the land.” By virtue of sub-s. 3 of s. 1 of the Act nothing in the Act shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority or with the permission of the “owner.” Sub-section 5 of s. 1 provides that nothing in the Act shall be regarded as conferring on any person any right to entry or occupation of land which did not exist immediately before the Act. The effect of this latter sub-section is that all those liable to prosecution under the pre-existing statutes in relation to forcible entry and detainer continued to be liable to prosecution under those statutes notwithstanding the provisions of the Act of 1971.
Section 2 of the Act provides:
“A person who forcibly enters land or a vehicle shall be guilty of an offence unless
(a) he is the owner of the land or vehicle, or
(b) if he is not the owner, he does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave the land or vehicle by the owner or by a member of the Garda Síochána in uniform, he does so with all reasonable speed and in a peaceable manner, or
(c) he enters in pursuance of a bona fide claim of right.”
By sub-s. 1 of s. 3 a person who remains in forcible occupation of land or a vehicle shall be guilty of an offence “unless he is the owner of the land or vehicle or so remains thereon in pursuance of a bona fide claim of right.”
It is submitted on behalf of the plaintiff that a landlord, mortgagee, or remainderman, although not entitled to the immediate occupation of the land, would not be guilty of the offence of forcible entry by virtue of the definition of “owner” in section 1. It is contended that ss. 2 and 3, read in the light of the definition of “owner,” distinguish between landless persons and persons owning land, and that what would be a crime under the Act if done by a person with no estate or interest in the land forcibly entered or occupied would not be a crime under the Act if done by a person not in occupation but who had an estate or interest in the land even though he had no bona fide claim of right, and that this constituted discrimination contrary to the provisions of Article 40, s. 1, of the Constitution of Ireland, 1937.
In the opinion of the Court, these submissions are not well founded. An offence cannot be committed under s. 2 unless the person enters forcibly, nor under s. 3 unless he or she remains in forcible occupation. In s. 1″forcibly” is defined as meaning “using or threatening to use force in relation to person or property, and for this purpose participation in action or conduct with others in numbers or circumstances calculated to prevent by intimidation the exercise by any person of his rights in relation to any property shall constitute a threat to use force, and ‘forcible’ shall be construed accordingly.” Note the use of the words “of his rights.”Accordingly, the person affected by the forcible entry must have rights in relation to the property which are capable of exercise by him, and it is difficult to see how a mortgagee or a reversioner can be contemplated by this definition in cases where he has no right of entry as such mortgagee or reversioner. Apart from a person who forcibly enters or remains in forcible occupation in pursuance of a bona fide claim of right, the only person exempted by ss. 2 and 3 of the Act from prosecution is the owner of the land or vehicle.
It is to be observed that in s. 1 “owner” is defined as including the categories specified in the definition. In the opinion of the Court this definition is to be read disjunctively. Where a forcible entry or occupation is effected, the owner of the land or vehicle for the purposes of ss. 2 and 3 of the Act is the person whose immediate right to occupy the land, or to enter upon it by virtue of some estate or interest in it, has been interfered with and not simply each of the persons included in the definition of”owner.” This person will usually be the lawful occupier. However, there can be circumstances in which a person who is included in the statutory definition may have the right, by virtue of his title or interest in the land, to enter upon the land at the time of the forcible entry or occupation which interferes with the exercise of that right. Any entry by a person in pursuance of the right already mentioned would be exempt from prosecution under the Act both as an entry by an owner and as an entry by a person in pursuance of a bona fide claim of right.
This restricted interpretation of “owner” is further exemplified in ss. 6 and 9 of the Act, in which the definite article is again used before the word “owner.” Section 6 deals with the case of damage caused to property by the owner in the course of lawfully entering or attempting to enter me land, or lawfully taking or attempting to take possession of the land, or lawfully ejecting or attempting to eject from the land a person who has committed an offence under s. 2 or section 3. During the currency of a lease the reversioner would normally have no lawful right to enter or take possession of the land or to eject a person who has committed an offence under s. 2 or section 3. The owner, as envisaged by this section, is clearly the person entitled to possession. Again, under s. 9 of the Act a member of the Garda Síochána is given power to arrest without warrant in certain circumstances, but a necessary prerequisite is that the owner of the land shall have represented to a member of the Garda Síochána that serious damage to the land or serious interference with the lawful rights of the owner in relation thereto is being or will be caused. Accordingly, the owner must be the person or persons with lawful rights in relation to the land, which rights are likely to be seriously interfered with by the commission of an offence under section 3.
In the opinion of the Court, there is not in s. 2 or in s. 3 of the Act of 1971 any discrimination, unfair or otherwise, against what has been called in argument “the landless classes.” The mischief against which the Act seeks to provide is the forcible entry upon, and remaining in forcible occupation of, land and vehicles whether owned by private individuals, corporations, local authorities, or the State, by persons who have no right to enter upon the land or vehicle. The owner who is exempted from prosecution under ss. 2 and 3 of the Act is the person whose right to the use and enjoyment of the land or vehicle (in respect of which the forcible entry or detention took place) has been interfered with; all others, whether they have an estate or interest in the land or not, are liable to prosecution if they offend the sections. The Court does not accept the submission that a landlord, who has no right to the immediate possession of the land in question, or his agents, can forcibly enter the premises let to his tenant without fear of prosecution under the Act. In the opinion of this Court, such persons and their agents are not exempt from prosecution under ss. 2 and 3 of the Act.
Therefore, the Court rejects the submissions made in support of the contention that ss. 2 and 3 are invalid having regard to the provisions of the Constitution.

Lattimore v Dublin City Council

[2014] IEHC 233The People v Kenny (M.)[1990] ILRM 569
Finlay CJ
This is an appeal by the accused against a decision of the Court of Criminal Appeal rejecting his appeal against a conviction for offences contrary to the Misuse of Drugs Act 1977 as amended.

It is brought pursuant to a certificate issued by that court under s. 29 of the Courts of Justice Act 1924.

The point of law concerned in the appeal as identified by that certificate is as follows:

Whether the forcible entry of the applicant’s home by members of An Garda Síochána on foot of an invalid search warrant constituted a deliberate and conscious violation of the applicant’s constitutional rights, such as to render any evidence obtained by the said members in the course of the ensuing search inadmissible at the applicant’s trial.

No other ground of appeal, other than this point of law was submitted to this Court, and a consideration of the transcript of the trial confirms that no other ground of appeal exists.

The facts
On 2 October 1984 two members of An Garda Síochána were in hiding, carrying out a surveillance of a premises at 1, Belgrave Place, Rathmines, in the City of Dublin, in which the accused was then residing.

They observed activity outside the house and in and around Flat No. 1 in it, on the ground floor, which included activity by the accused and which appeared to them as constituting some form of trafficking in drugs.

By wireless telephone, one of the gardaí requested a colleague to bring to him a search warrant which had been obtained from a peace commissioner pursuant to s. 26(1) of the Act of 1977, in respect of the premises Flat No. 1 on the ground floor of 1, Belgrave Place. The search warrant was brought to the garda concerned and he, having sought entry by demand, made forcible entry through a window, found the accused on the premises, and found a quantity of controlled drugs on the premises for which, on his evidence, the accused took *572 responsibility. That was the only evidence associating the accused with the controlled drugs. No issue arose in this case by reason of the fact that the search warrant was issued by a peace commissioner.

Statutory provisions and contents of documents
S. 26(1) of the Act as amended provides:

If a justice of the District Court or a peace commissioner is satisfied by information on oath of a member of the Garda Síochána that there is reasonable ground for suspecting that —

(a) a person is in possession in contravention of this Act on any premises or other land of a controlled drug, a forged prescription or a duly issued prescription which has been wrongfully altered and that such drug or prescription is on a particular premises or other land ….

such justice or commissioner may issue a search warrant mentioned in subsection (2) of this section.

The information sworn by Garda Conway, the garda who sought the warrant, was in the following terms:

I am a member of An Garda Síochána and I suspect on the basis of information within my possession, that

(a) a person is in possession on the premises or other land of Flat 1, ground floor, 1 Belgrave Place, in contravention of the Misuse of Drugs Acts 1977 and 1984 of a controlled drug, namely, diamorphine, or cannabis resin, and that

(b) such drug is on a particular premises or other land, Flat 1, ground floor, 1 Belgrave Place, Rathmines.

I hereby apply for a warrant to search for and seize the articles named above.

The warrant was issued by the peace commissioner (who died before the trial of the accused) in the following form:

Whereas I, the undersigned peace commissioner, being satisfied on the information on oath of Garda Matthew Conway of An Garda Síochána, that there is reasonable grounds (sic) for suspecting that a controlled drug to which the Misuse of Drugs Acts 1977 and 1984 apply, namely, diamorphine and cannabis resin etc. is in contravention of the said Act or regulation cited hereunder in the possession of or under the control of any person etc.

No evidence was tendered of any information supplied to the peace commissioner prior to his issue of the warrant, other than the contents of the sworn, written information.

The Court of Criminal Appeal in its judgment of 15 June 1989, delivered by McCarthy J, found that the warrant issued in this case was invalid by reason of *573 the fact that there was no evidence that the peace commissioner was himself satisfied that there were reasonable grounds for suspecting the existence of controlled drugs on the premises, but rather that the only evidence was to the effect that he relied in its entirety on the information in writing submitted to him by the Garda Síochána, in other words, that he relied on the fact, that the garda had grounds for so suspecting.

Counsel for the respondent accepts that this portion of the judgment of the Court of Criminal Appeal was correct. Quite independently of that concession, I am satisfied that it was.

It is, however, necessary for the purpose of determining the issues which do arise on this appeal shortly to consider the principles underlying that decision.

The Court of Criminal Appeal followed the decision of Hamilton P in Byrne v Grey [1988] IR 31, which dealt with a warrant which purported to have been issued pursuant to s. 26 of the 1977 Act upon an information which was in similar form, though not identical in factual content to the information in this case.

In the course of his judgment in that case, Hamilton P having set out the provisions of s. 26 of the 1977 Act as amended, at p. 38 of the report, stated as follows:

These powers encroach on the liberty of the citizen and the inviolability of his dwelling as guaranteed by the Constitution and the courts should construe a statute which authorises such encroachment so that it encroaches on such rights no more than the statute allows, expressly or by necessary implication.

The statute authorising such encroachment provides at s. 26 thereof that a justice of the District Court or a peace commissioner must be satisfied by information on oath of a member of the Garda Síochána that there is reasonable ground for the suspicion before he is entitled to issue the search warrant mentioned in the Act as amended.

In construing this section, a court ought, in the words of Lord Diplock in the course of his judgment in R v Inland Revenue Commrs., ex parte Rossminster Ltd [1980] AC 952 at 1008:

… to remind itself, if reminder should be necessary, that entering a man’s house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So if the statutory words relied on as authorising the acts are ambiguous or obscure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law. But judges in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect.

In this country the individual rights referred to as enjoying the protection of the common law also enjoy the protection of the Constitution.

 

The invalidity of the warrant in this case accordingly arises, as was found by the Court of Criminal Appeal, in effect from a failure, upon the evidence adduced, adequately to protect the right vested in the accused by Article 40.5 of the Constitution of the inviolability of his dwelling by the intervention of an independent decision that a search warrant was justified made by the peace commissioner over and above the decision made by the garda that he suspected the existence of controlled drugs.

It is against the background of that reason for the invalidity of the warrant that the issues that arise on this appeal must be considered.

The issues on this appeal
The appellant contends that once the garda who forced entry into the premises did so knowing what he was doing and the garda who obtained the search warrant did so knowing the limitations of the information he put forward to the peace commissioner in order to obtain it, that, irrespective of whether either of these two officers was aware that he was invading the constitutional rights of the accused and irrespective of whether either of them could be described as being culpable or blameworthy, having regard to previous practice of members of the Garda Síochána in connection with search warrants, that the obligation of the court is to protect the constitutional right involved, namely, the inviolability of the dwelling and that in order to do so it must declare inadmissible the evidence obtained by the unconstitutional forcible entry. It is, of course, a corollary of this submission that the phrase ‘conscious and deliberate violation of constitutional rights’ used in the decision of this Court in People (Attorney General) v O’Brien [1965] IR 142 and recurring in other decisions, relates to the knowledge and intention associated with the actual act or acts complained of and does not rest on the knowledge, actual or imputed, of the person committing those acts with regard to the nature of the constitutional rights of the person involved, nor as to the consequences of those acts upon any such constitutional rights.

On behalf of the respondents, on the other hand, it was contended that the underlying principle relating to the exclusion of evidence obtained by a conscious and deliberate violation of a person’s constitutional rights was not the protection of the right itself but rather the deterrent effect of such a consequence upon the conduct of the persons who had breached the constitutional rights concerned. Such a person must not, it is said, if the Constitution is to be respected, be allowed to reap the fruits of unconstitutional behaviour. On that principle, it was contended that a necessary ingredient of a conscious and deliberate invasion of constitutional rights which has the consequence of the exclusion of evidence which would be otherwise admissible, is that it is established or, at least, not disproved that the person committing such acts was aware of and intended to invade the constitutional rights concerned or that, on *575 the knowledge which would reasonably be imputed to him he so intended.

The decision of the Court of Criminal Appeal
The Court of Criminal Appeal in its judgment of 30 November 1989 delivered by O’Hanlon J having concluded that the warrant was invalid, held that reliance upon it was not in deliberate or conscious violation of the constitutional rights of the accused. That conclusion was expressed in the following paragraph:

In the opinion of the court the evidence in the present case, which shows that Garda Conway took all steps believed to be necessary and appropriate for obtaining a valid search warrant, and armed himself with a warrant issued by a peace commissioner in purported exercise of his functions under the relevant Act, is a clear indication that there was no deliberate or conscious violation of the constitutional rights of the appellant.

In reaching that conclusion the Court of Criminal Appeal relied upon the decision of the Supreme Court of the United States in United States v Leon (1983) 468 US 897, and expressed the view that it was an echo of the views expressed by Kingsmill Moore J in People (Attorney General) v O’Brien [1965] IR 142.

The decision in this appeal
The decision in United States v Leon is clearly and expressly based upon the principle of deterrence rather than the principle of absolute protection of the constitutional right concerned, in applying the exclusion of evidence rule to the obtaining of evidence by unconstitutional means.

In the course of the judgment of White J delivering the opinion of the court, it is stated as follows at 906:

The rule thus operates as a ‘judicially created remedy’ designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.

I do not find this to constitute an echo of the judgment of Kingsmill Moore J in People (Attorney General) v O’Brien [1965] IR 142.

The greater part of that judgment deals with evidence obtained by illegal, as distinct from unconstitutional, means and constitutes a review of the English and Scottish authorities in which, of course, no question of any differentiation between illegality and unconstitutionality arises.

Reference to evidence obtained by unconstitutional means which was, of course, what occurred in this case, occurs only at the conclusion of the judgment at p. 162, in the following paragraph:

Walsh J, in the judgment which he is about to deliver, is of opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and *576 conscious violation of the constitutional (as opposed to the common law) rights of an accused person it should be excluded save where there are ‘extraordinary excusing circumstances’ and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a person in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest, even though the premises on which the arrest is made have been entered without a search warrant. I agree that where there has been such a deliberate and conscious violation of constitutional rights by the State or its agents evidence obtained by such violation should in general be excluded, and I agree that there may be certain ‘extraordinary excusing circumstances’ which may warrant its admission. I would prefer, however, not to attempt to enumerate such circumstances by anticipation. The facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge.

This expression of opinion which formed the majority view of the court in O’Brien’s case, clearly leaves unresolved in relation to the admissibility of unconstitutionally obtained evidence the choice raised by the arguments in this case between the deterrent and absolute protection principles.

In People v Walsh [1980] IR 294, Walsh J in the course of his judgment, at 317, stated as follows:

If a man is consciously and deliberately kept in custody in a garda station or anywhere else without a charge being preferred against him and without being brought before a court as soon as reasonably possible, he is in unlawful custody and there has been a deliberate and conscious violation of his constitutional right to be at liberty. That this was the position in the present case is abundantly clear from the evidence given by the police officer at the trial. The fact that the officer or officers concerned may not have been conscious that what they were doing was illegal or that even if they did know it was illegal, they did not think it was a breach of the Constitution does not affect the matter. They were conscious of the actual circumstances which existed . [emphasis added]

This judgment of Walsh J in that case was a dissenting judgment, but not by reason of the principles of law enunciated in it, but rather by reason of the view taken as to whether on the facts of the case the detention of the applicant was or was not unlawful.

Delivering the majority judgment of the court in Walsh’s case, with which Kenny J agreed, O’Higgins CJ, at p. 299, having recited the submission made on behalf of the appellant that evidence of fingerprints taken whilst the accused was in unlawful custody was inadmissible, stated as follows:

I wish to say at once that this submission should succeed if the imprisonment or detention in Store Street cannot be justified in law. I have had the benefit of reading the judgment of Walsh J in which he reviews the authorities on this important aspect of constitutional law. I am in complete agreement with the manner in which he states the law. However, in my view this is not the crucial question. In my view the crucial question — indeed, the only question — is whether the arrest of the appellant and his detention immediately thereafter on the night of 23 January was or was not lawful.

This issue again came before the court in People v Shaw [1982] IR 1.

In that case Walsh J at p. 31 summarised his views on this issue in a most clear and comprehensive manner in a series of numbered paragraphs, the most important of which are as follows:

8. Subject to paragraphs 9 and 10, evidence obtained as a result of deliberate and conscious violation of the constitutional rights of an accused person may not be admitted at the trial of that person: People (Attorney General) v O’Brien; People v Walsh; People v Madden.

9. There can be extraordinary circumstances (such as the imminent destruction of vital evidence or the need to rescue a victim in peril, or other extraordinary excusing circumstances) surrounding the conscious and deliberate violation of the constitutional rights of an accused which, in the opinion of the trial judge, may justify the admission of the evidence so obtained: People (Attorney General) v O’Brien; People v Walsh.

10. If the act which amounts to a breach of the constitutional rights of the accused person was committed unintentionally or accidentally, the evidence may be admitted at the discretion of the trial judge if it is otherwise admissible: People (Attorney General) v O’Brien; People v Walsh ….

12. Where it appears that there has been a breach of the constitutional rights of the accused, the onus of establishing the existence of ‘extraordinary excusing circumstances’ or of mistake, or lack of intention or accident, is upon the party seeking to adduce the evidence: People v Madden; People v Walsh.

13. When the act complained of was undertaken or carried out consciously and deliberately, it is immaterial whether the person carrying out the act may or may not have been conscious that what he was doing was illegal, or even if he knew it was illegal, that it amounted to a breach of the constitutional rights of the accused. It is the doing of the act which is the essential matter, not the actor’s appreciation of the legal consequences or incidents of it: People v Madden.

Griffin J delivered the majority judgment of the court in

that case, with which Henchy, Kenny and Parke JJ agreed. It contained a very clear disagreement with the views expressed by Walsh J. At pp. 55–56 of the report, Griffin J states as follows:

Nor do I find myself able to support the opinion that a person’s statement is to be ruled out as evidence obtained in deliberate and conscious violation of his constitutional rights, even though the taker of the statement may not have known that what he was doing was either illegal or unconstitutional. I consider the authorities to be to the contrary effect. For example, in People (Attorney General) v O’Brien, *578 Kingsmill Moore J (who gave the majority judgment) having held that evidence obtained in deliberate and conscious violation of constitutional rights should be excluded, except in ‘extraordinary excusing circumstances’ (which he preferred to leave unspecified) excused as a ‘purely accidental and unintentional infringement of the Constitution’ the violation complained of in that case: see p. 162 of the report. See also People v Madden at p. 346, where a ‘factor such as inadvertence’ was recognised as capable of being one of the ‘extraordinary excusing circumstances’ envisaged in O’Brien’s case. In my opinion, it is the violation of the person’s constitutional rights, and not the particular act complained of, that has to be deliberate and conscious for the purpose of ruling out a statement.

The opinion expressed in that judgment was that the principles laid down in O’Brien’s case did not apply to the making of an incriminating statement where the real test was whether the statement was obtained in compliance with basic or fundamental fairness.

O’Higgins CJ in People v Lynch [1982] IR 64 has expressly dissented from this view.

In DPP v Healy [1990] ILRM 313, I in my judgment and McCarthy J in his adopted what I have described as the absolute protection test for evidence obtained by reason of a breach of a detained person’s constitutional right of access to a lawyer.

The constitutional rights with which all these cases are concerned are personal rights, being either the right to liberty: Walsh’s case; Madden’s case; Shaw’s case, or the inviolability of the dwelling: O’Brien’s case and the instant case.

The duty of the court pursuant to Article 40.3.1° of the Constitution is as far as practicable to defend and vindicate such rights.

As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of a citizen, the court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.

To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.

To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well 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 citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.

It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only.

The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.

I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.

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’.

After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J in Shaw’s case. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court’s) discretion.

In the instant case there cannot be any question but that the acts of the gardai which obtained the warrant by the submission to the peace commissioner of the sworn written information in the form in which I have recited it, and which then forcibly entered the dwellinghouse were neither unintentional nor accidental, and counsel for the respondent agrees that there are no extraordinary excusing circumstances in this case. Even though, then, I would accept that neither of the two gardaí concerned had any knowledge that they were invading the consititutional rights of the accused and would also accept that they were carrying out the process of obtaining and executing a search warrant in a manner which has been customary over a long period with the gardaí, I am satisfied that the evidence obtained as a result of the forcible entry into the house should not have been admitted at the trial of the accused and that, accordingly, the conviction of the accused should not have occurred.

I would, therefore, allow this appeal and I would quash the conviction entered against the accused.

GRIFFIN J:

The facts and the applicable statutory provisions are set out in the judgment of the Chief Justice and it is not necessary to repeat them.

It appears to me that although the certified question is a single question, it essentially breaks down into two parts:

1. In the circumstances of this case did the forcible entry of the home of Mark Kenny (‘the applicant’) constitute a deliberate and conscious violation of his constitutional rights, and,

2. If so, was the evidence obtained by the gardaí in the course of the search of his home inadmissible at his trial.

Counsel for the applicant submitted that the forcible entry by Garda Conway on foot of an invalid search warrant, although he had every reason to believe it was a valid warrant, did constitute such a violation of the applicant’s constitutional rights; that his knowledge or belief was irrelevant; and that evidence of what was discovered in the flat in the course of the subsequent search should have been excluded under the exclusionary rule. In support of this submission, they relied on People (Attorney General) v O’Brien [1965] IR 142; People (DPP) v Madden [1977] IR 336; People v O’Loughlin [1979] IR 85, People (DPP) v Shaw [1982] IR 1 and Director of Public Prosecutions v Healy [1990] ILRM 313.

Counsel for the Director of Public Prosecutions submitted that, although the act of breaking the window of the applicant’s flat and of gaining access to the flat was a deliberate and conscious act, there was no evidence to support the submission of the applicant’s counsel that it was a deliberate and conscious violation of the applicant’s constitutional rights. It was not, it was submitted, a deliberate and conscious violation of those rights unless the garda knew or ought reasonably to have known that he was infringing a constitutional right of the applicant. He further submitted that, in all the cases on which the applicant’s counsel relied, the circumstances were such that the gardaí knew what they were doing and that they were infringing the rights of the persons detained. He also relied on O’Brien’s case, and Shaw’s case at pp. 55–56. I did not understand him to argue that the underlying principle applicable to this case was the deterrent effect upon the conduct of those who had breached constitutional rights.

Article 40. 5 of the Constitution provides that:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

That article was considered by this Court in People (Attorney General) v O’Brien [1965] IR 142 in pursuance of a certificate granted by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act 1924 and is the leading authority on the topic. In that case, Detective Sergeant Healy swore an information that he had reason to suspect that certain articles which had been stolen were to be found at 118 Captain’s Road, Crumlin, and on such an information a search warrant was issued and duly signed by District Justice Farrell. In error, the premises were described as 118 Cashel Road. The warrant was executed at 118 Captain’s Road and certain stolen articles were found there. *581 The two accused brothers were charged with house-breaking and with receiving the stolen articles. At their trial objection was taken to the admissibility of the evidence of the finding of the articles because of the defective warrant. That objection was disallowed, both accused were convicted, and they applied unsuccessfully to the Court of Criminal Appeal for leave to appeal, the same objection having been taken there. The Court of Criminal Appeal granted a certificate for leave to appeal to this Court. In condensed form Kingsmill Moore J (at p. 150) framed the certified questions as follows:

Is evidence procured by the Guards in the course of, and as a result of, a domiciliary search, unauthorised by a search warrant, admissible in subsequent criminal proceedings?

The court unanimously held that such evidence was admissible. In their judgments, Kingsmill Moore J (with whom Lavery J and Budd J agreed) and Walsh J (with whom Ó Dálaigh CJ agreed) reviewed the law applicable to the certified question. As the Chief Justice has pointed out in his judgment, almost the entire of the majority judgment of Kingsmill Moore J consists of a consideration of the admissibility in evidence of facts ascertained by illegal means. At the end of that part of his judgment, in discussing the facts in the case before the court, he said at p. 161:

The mistake was a pure oversight and it has not been shown that the oversight was noticed by anyone before the premises were searched. I can find no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having a crime detected and punished.

It was only in the last passage of the judgment (at p. 162) that he dealt with the question of evidence obtained by the State or its agents as a result of ‘… a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of an accused person …’. As the Chief Justice has, in the judgment just delivered by him, set out that passage in full, it is not necessary for me to do so.

In People v Shaw the principles laid down in O’Brien’s case occupied a very large part of the argument in the court of trial, in the Court of Criminal Appeal, and in this Court. In his judgment Walsh J discussed that case at pp. 31–34, and I did likewise at pp. 56–60. In the course of his judgment, Walsh J said at p. 32:

When the act complained of was undertaken or carried out consciously and deliberately, it is immaterial whether the person carrying out the act may or may not have been conscious that what he was doing was illegal or, even if he knew it was illegal, that it amounted to a breach of the constitutional rights of the accused. It is *582 the doing of the act which is the essential matter, not the actor’s appreciation of the legal consequences or incidents of it: People v Madden.

In my judgment, I stated at pp. 55–56:

Nor do I find myself able to support the opinion that a person’s statement is to be ruled out as evidence obtained in deliberate and conscious violation of his constitutional rights, even though the taker of the statement may not have known that what he was doing was either illegal or unconstitutional. I consider the authorities to be to the contrary effect. For example, in People (Attorney General) v O’Brien Kingsmill Moore J (who gave the majority judgment) having held that evidence obtained in deliberate and conscious violation of constituional rights should be excluded except in ‘extraordinary excusing circumstances’ (which he preferred to leave unspecified), excused as ‘a purely accidental and unintentional infringement of the Constitution’ the violation complained of in that case: see p. 162 of the report. See also People v Madden at p. 346 where a ‘factor such as inadvertence’ was recognized as being capable of being one of the ‘extraordinary excusing circumstances’ envisaged in O’Brien’s case. In my opinion, it is the violation of the person’s constitutional rights, and not the particular act complained of, that has to be deliberate and conscious for the purpose of ruling out a statement.

In People (DPP) v Quilligan [1987] ILRM 606, in which the admissibility of inculpatory statements alleged to have been made by the accused was in issue, in the course of his judgment Henchy J said at p. 628:

The only other ground on which the statements could be rejected is if it could be held that they were the fruit of an arrest which was a conscious and deliberate violation of the prisoners’ constitutional right to personal liberty. However, that conclusion was not open, for even if it could be said that the arrest was an unconstitutional act, it was not consciously or deliberately so. In arresting the accused under s. 30 of the Offences Against the State Act, 1939, for a scheduled offence, the arresting gardaí were acting in good faith, because they were merely following a system of arrest which had been followed — and given at least tacit approval in the courts — ever since prosecutions were first brought in respect of scheduled offences under that Act. It would follow, therefore, that, regardless of any unconstitutionality in the arrest, the statements were admissible in evidence.

My judgment in Shaw’s case had the support of Henchy, Kenny and Parke JJ. Having carefully considered all the arguments advanced in this case I can see no reason why I should resile from what I said in that case. It is therefore on the basis of the opinion stated in the passage I have quoted from Shaw’s case that, in my view, the certified question in this case should be considered.

I agree with the submission of counsel for the Director of Public Prosecutions that, in the cases on which the applicant’s counsel relied, other than O’Brien’s case and Shaw’s case, there was in each of those cases a deliberate and conscious decision to detain the persons in custody in breach of their rights. In Madden’s *583 case, the superintendent knew full well that he had no power to detain a suspect for longer than 48 hours, and that s. 30 of the Offences Against the State Act 1939, required that, unless the person detained was charged before the District Court or a Special Criminal Court within the period of 48 hours, he must be released at the expiration of that time. He was neither charged nor released within that time and any statement thereafter made or completed by him was therefore inadmissible.

In O’Loughlin’s case, the Court of Criminal Appeal held that the detention of the accused was not due to either inadvertence or oversight. ‘It was done by experienced garda officers who must have had a special knowledge of citizens’ rights in such circumstances. It could only have been the result of a deliberate decision of these officers who were aware of the applicant’s rights. These rights were disregarded and swept aside …’ per O’Higgins CJ at p. 91.

In DPP v Healy, the superintendent in charge of the investigation deliberately delayed, in circumstances which amounted to denying, the detained person’s right of access to his solicitor, because the former was in the process of being interviewed and it ‘would be bad manners’ to interrupt it.

In the instant case, Garda Conway, for the purpose of obtaining a search warrant, adopted a procedure which had been in almost universal use throughout the country for very many years, and from my own experience I would suspect at least thirty to forty years, i.e. by means of a standard form, suitably adapted for the particular case. This practice was not confined to cases in which the misuse of drugs was involved, but is in use in respect of obtaining search warrants for many other purposes, such as, for example, s. 42 of the Larceny Act 1916. Even if only one such warrant was issued each day in the greater Dublin area (a highly unlikely circumstance) that would amount to a total in excess of 10,000 warrants in 30 years. It is likely that there must have been upwards of 100,000 or more such warrants issued in the same way in that period. In recent years, a large number of similar warrants must have been obtained pursuant to s. 26 of the Misuse of Drugs Act 1977, having regard to the enormous increase in the use of drugs, by reason of the huge profits to be made by dealers in drugs, and to the numbers of those who are now what is known as ‘hooked’ on drugs. The Oireachtas, in enacting s. 26 of the Act of 1977, has provided that warrants should be issued only after the detached intervention of a neutral district justice or peace commissioner, who for that purpose is interposed between the gardaí and the person in respect of whose dwelling the search warraat is sought. In my view the error which invalidated this search warrant was that of the peace commissioner.

Garda Conway, having obtained what was an ostensibly valid warrant, went to the applicant’s flat. He knocked on the door, and shouted ‘Gardaí, open up’. There was a lot of movement inside the flat but the door was not opened. Although he did not say so in evidence, as an experienced member of the drugs *584 squad, he must have been aware that by reason of their nature, the drugs he was hoping to find could be destroyed in a matter of seconds by flushing down the toilet, or by throwing them in the fire, or by consuming them. He went to the window of the room in which he had heard the movement, stood on the window-sill and again shouted ‘Gardaí, open up’. There were two people in that room and he put his ID card against the window, and, as no effort was made to open the door, he broke the window and gained entrance to the flat. The drugs the subject of the charge in this case were subsequently found in the course of a search of the premises.

In my opinion, the act of Garda Conway in breaking into the flat in the circumstances in which he did so, did not constitute a deliberate and conscious violation of the constitutional rights of the applicant. Like my colleague Lynch J, a copy of whose judgment I have had the advantage of reading in advance, I can see no distinction between this case and O’Brien’s case. The evidence of the finding of the drugs in the applicant’s flat was, in my opinion, correctly admitted at his trial. The decision of the Court of Criminal Appeal in dismissing the applicant’s application for leave to appeal was in my view correct, and I would accordingly dismiss this appeal.

In dismissing the application of the applicant, the Court of Criminal Appeal exercised the jurisdiction conferred on it by the provisions of the Courts of Justice Act 1928, s. 5(1)(a). As that court had ruled that the learned trial judge was correct in admitting the evidence in dispute it was in my view unnecessary for the court to rely on the proviso contained in s. 5 of the 1928 Act.

LYNCH J:

This is an appeal to the Supreme Court from the Court of Criminal Appeal pursuant to a certificate of that court that its decision involves a point of law of exceptional public importance namely:

Whether the forcible entry of the applicant’s home by members of An Garda Síochána on foot of an invalid search warrant constituted a deliberate and conscious violation of the applicant’s constitutional rights such as to render any evidence obtained by the said members in the course of the ensuing search inadmissible at the applicant’s trial.

The Facts
The relevant facts are as follows. The gardaí obtained a search warrant pursuant to s. 26 of the Misuse of Drugs Act 1977 as amended. The warrant purported to entitle them to enter the premises known as Flat 1, Ground Floor, 1 Belgrave Place, Rathmines. The warrant was issued by a peace commissioner on foot of an information sworn by a garda which merely stated the belief or suspicion of the garda that a controlled drug namely heroin was in the unlawful possession of a person and was on those premises.

The peace commissioner issued the warrant purporting to authorise the gardaí *585 to enter those premises. The warrant was invalid because the information merely stated the suspicion of the garda but did not state any facts from which the peace commissioner himself could be satisfied that there were reasonable grounds for such suspicion as to which he would have to be satisfied before issuing the warrant. Furthermore the terms of the warrant itself made it clear that the peace commissioner made no enquiries beyond what was contained in the information to enable him to satisfy himself that there were reasonable grounds for such suspicion.

In purported pursuance of the warrant the gardaí forcibly entered the said premises and thereby obtained evidence which led to the conviction of the applicant for unlawful possession of heroin with intent to supply other persons and to a sentence of five years’ imprisonment.

The form of information used on the application for the issue of the warrant was a standard form in use since the enactment of the Misuse of Drugs Act 1977. Moreover it was analogous to other forms of information used for many years past when seeking warrants for example under the Offences Against the State Act 1939 or the Larceny Act 1916. The information itself did not disclose any facts which could satisfy a district justice or a peace commissioner as required by the section but there is nothing to prevent the district justice or the peace commissioner from enquiring there and then on oath as to such facts so as to satisfy himself and thus enable him validly to issue a warrant. The invalidity of the warrant was therefore really due more to the error of the peace commissioner than to the error of the applying garda.

Submissions
Article 40.5 of the Constitution provides:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

Counsel for the applicant submitted that the forcible entry was a deliberate and conscious violation of the applicant’s rights under Article 40.5. Counsel distinguished O’Brien’s case on the basis that there there was a mere slip in the name of the street whereas in the present case the gardaí had a long-standing shortcut procedure which they deliberately and consciously adopted and which led to the deliberate and conscious, forcible and unconstitutional entry into the applicant’s dwelling.

Counsel for the Director of Public Prosecutions submitted that it was not sufficient that the physical act which constitutes the breach of the constitutional right (in this case the forcible entry) was deliberate and conscious. He submitted that there must be some element of blame or culpability over and above the physical act constituting the breach from which a deliberate and conscious *586 intention to commit a breach of the citizen’s constitutional rights might either be apparent or inferred before the evidence thereby obtained might be rejected and he referred to Madden’s case, O’Loughlin’s case, Walsh’s case, Farrell’s case and Healy’s case and submitted that in all those cases where the evidence obtained in breach of a citizen’s constitutional rights was rejected such an element of blame or culpability or unfairness was present.

Conclusions
The courts must be zealous to vindicate and uphold the citizens’ constitutional rights. Any hint of a deliberate disregard by the gardaí for such constitutional rights must result in evidence obtained thereby being rejected unless there are adequate excusing circumstances. I prefer the term ‘adequate’ to ‘extraordinary’ in view of decisions which suggest that inadvertence may be a sufficient excuse.

In the present case the forcible entry of the applicant’s dwelling was of course deliberate but the violation of the applicant’s constitutional rights in relation to his dwelling under Article 40.5 was neither conscious nor deliberate. On the contrary the gardaí showed respect for the constitutional inviolability of the applicant’s dwelling by applying for the issue of the warrant to the appropriate civil (as distinct from garda) authority on an information believed for many years to be the correct form of information to lead to the issue of such warrants under the Misuse of Drugs Act 1977. The gardaí further showed respect for the applicant’s constitutional rights in relation to his dwelling by bringing the warrant with them and showing it to the applicant and I can see nothing in the conduct of the gardaí to support an inference of a conscious and deliberate intention to violate the applicant’s constitutional rights in relation to his dwelling.

Insofar as there was any fault leading to the invalidity of the warrant that fault must rest rather with the peace commissioner who is interposed between the garda authorities and the citizen to see that the citizen’s dwelling is not entered without due cause and on whom s. 26 of the 1977 Act imposes the duty of satisfying himself by proper evidence that there is due cause for such entry on the citizen’s dwelling. The peace commissioner is independent of the gardaí and if not satisfied by proper evidence he must refuse the warrant unless and until he becomes so satisfied by additional evidence.

Of course the gardaí contributed to the error by adopting a form of information which was in fact inadequate but which had for many years been accepted by both district justices and peace commissioners as adequate. To suggest that the gardaí deliberately withheld evidence of facts in their possession from the peace commissioner is to suggest that they deliberately imperilled the strength of their own case against the applicant without any reason whatever especially as the evidence in the trial demonstrates that if the peace commissioner had asked for evidence of facts there would have been no difficulty in furnishing *587 him with such evidence so as to lead to the valid issue of the warrant which was in fact invalidly issued.

The adoption of such an inadequate form of information by the gardaí is a far cry from a deliberate intention to violate the applicant’s constitutional rights in relation to his dwelling and neither did it lead to any form of unfairness in the investigation or the trial.

The inviolability of the citizen’s dwelling must be upheld but this does not mean that evidence obtained in breach of it must always be rejected however relevant it may be to the case at hearing. It must be rejected if there is any element of blame or culpability or unfairness (including any such element to be inferred by the reasonable application of the doctrine ignorantia juris haud excusat ) in relation to the breach of the right on the part of those who obtained the evidence unless there are adequate excusing circumstances. In all cases heretofore, where evidence has been rejected, including the recent case of Healy, there was manifest a deliberate disregard of the accused’s rights. Not only did the gardaí deliberately do the acts complained of, but they did them knowing that they contravened the accused’s legal, if not his constitutional, rights. I take the view that if the gardaí deliberately do acts which they know or ought to know contravene the accused’s legal rights, but not his constitutional rights, and if the rights are thereafter held to be constitutional rights, the exclusionary rule should apply, but there must be some such element of blame or culpability or unfairness to bring the exclusionary rule into operation. If there is no such element of blame or culpability or unfairness in relation to the breach of the constitutional right on the part of those who obtained the evidence then the evidence should be admitted and no question of excusing circumstances arises.

In my opinion, O’Brien’s case is on all fours with this case and I follow it. I also follow the majority judgment in Shaw’s case which emphasises the importance of fairness or unfairness in the admissibility or inadmissibility of the evidence.

I would dismiss this appeal and in doing so I would add that it is unnecessary to rely on the provisions of s. 5(1)(a) of the Courts of Justice Act 1928 as did the Court of Criminal Appeal because no evidence was admitted which ought not to have been admitted.

McDonagh v Kilkenny County Council

[2007] I.E.H.C. 350

JUDGMENT of Mr. Justice O’Neill delivered the 23rd day of October, 2007
The applicants are members of the travelling community and consist of one extended traveller family. The first named applicant was born on the 20th July, 1954 and is married to the second named applicant and they have ten children. Four of whom are still living with these applicants and are aged between 13 and 18 years of age. The third and fourth named applicants are married to each other but have no children. The third applicant is 26 years of age. The fifth and sixth named applicants are married to each other and have seven children between the ages of 13 and 2. The seventh and eighth applicants are married to each other and have no children. The ninth and tenth applicants are married to each other and have six children aged from 11 down to an infant. The applicants have always tended to travel together and as of the commencement of these proceedings there were ten adults and seventeen children travelling and living together.
The events which gave rise to these proceedings took place at two locations or sites in County Kilkenny. The first of these was at Graiguenakill, Glenmore, Co. Kilkenny which appears to have been a picnic area owned by the first named respondent. The applicants had moved onto this site and were parked there for some time. In due course some of them moved away but the first named applicant remained. Notices pursuant to s. 19 of the Criminal Justice (Public Order) Act, 1994 as amended by s. 24 of the Housing (Miscellaneous) Provisions Act, 2002 were served on the applicants, notifying them that they had entered these lands without the due consent of the owner and directing them to leave these lands and to remove from it any object belonging to the applicants or was under their control. The first named applicant refused to comply with the direction in this notice and subsequently on the 3rd February, 2006 the applicant was arrested under s. 19(b) of the Criminal Justice (Public Order) Act, 1994, brought to Waterford Garda Station where he was charged with an offence under s. 19(d) of this Act due to his failure to move on, on the 21st January, 2006, pursuant to the direction given by a member of An Garda Síochána and to remove from the land an object, a caravan belonging to the applicant. This charge was contained in charge sheet number 462991.
On the 9th February, 2006 when the first named respondents were conducting works at this site to prevent unauthorised use an incident occurred involving the first named applicant, arising out of which he was arrested and brought to Waterford Garda Station and charged with an offence of obstruction of traffic. This offence is contained in charge sheet number 465849. Subsequently on the 26th February, 2006 the first named applicant left the site and removed his caravan.
Early in April, 2006 the applicants moved onto a piece of land at the Old Road, Dunkitt, Kilmacow, Co. Kilkenny, another piece of land owned by the first named respondent, and used as a place for the storage of road chippings. On the 7th April, 2006 a member of An Garda Síochána spoke to the applicants and they promised to move on the 11th April, 2006. On the 11th April, the first applicant informed the Gardaí that they were not going to move as they had no place to go. On the 12th April, 2006 the Gardaí served notices pursuant to s. 19 of the Criminal Justice (Public Order) Act, 1994 on six of the applicants, directing them to leave this land and remove any objects placed by them on it. On the 13th April, 2006 the applicants applied in these proceedings ex-parte to this court (Clarke J.) and obtained interim relief pursuant to O. 84, r. 20(7) preventing the first and second named respondents from taking any steps against the applicants for failure to comply with the undated notices served on them on the 12th April, 2006 pursuant to s. 19 of the Criminal Justice (Public Order) 1994. On the 8th May, 2006 this court (Peart J.) gave leave to the applicants to pursue the reliefs now sought by way of judicial review in these proceedings and continued the injunctive relief granted on the 13th April, 2006 until the termination of the application for judicial review.

THE CASE AGAINST THE FIRST NAMED RESPONDENT
The applicant seeks against the first named respondents an order of certiorari quashing the decision of the first named respondent to refuse consideration of the applicants application for accommodation as set out in a letter of the 22nd February, 2006. In addition the applicant seeks against this respondent orders of mandamus compelling the first named respondent to perform its statutory duties under the Housing Acts 1966 to 2004 and to assess the applicants for accommodation; directing the first named respondent to exercise its statutory functions in a reasonable manner and to provide suitable accommodation for the applicants as a matter of urgent priority; directing the first named respondent to give the applicants priority within the meaning of s. 9 of the Housing Act, 1988 having regard to the fact that the applicants are travellers and living in unsuitable and overcrowded conditions, some of whom are suffering from ill health. In addition the applicants seek declarations against the first named respondents to the effect that the applicants are entitled to priority within the meaning of the Housing Acts 1966 – 2002; that there is a presumption that the powers under s. 24 of the Housing (Miscellaneous Provisions) Act, 2002 will be exercised in a reasonable manner and in accordance with constitutional justice and that it is ultra vires their powers to withhold consent to the applicants remaining on lands belonging to the first named respondents at Dunkitt, Kilmacow, Co. Kilkenny; and that it is unreasonable of the first named respondents to withhold consent to the applicants remaining on the site at Dunkitt, Kilmacow, Co. Kilkenny in all the circumstances of their case and having regard to their statutory functions under the Housing Acts, 1966 to 2004 to provide accommodation.
In the affidavits sworn by the first named applicant it is averred that the applicants are indigenous to the South Kilkenny area as the place where they primarily live subject of course to their traveller lifestyle which took them to County Clare where the first named applicant’s father lives and where he spent a good deal of his childhood and where the applicants would spend a considerable amount of time.
Also the applicants travel to Roscommon where the first named applicant’s wife is from and where her family are primarily located. It is the applicants case that notwithstanding their travelling lifestyle as members of the travelling community, that their base is and has been in the South Kilkenny area. As a consequence they contend that they are “indigenous” to Kilkenny for the purposes of the Traveller Accommodation Programme of the first named respondents and hence the first named respondents were the local authority who had the duty under the Housing Acts 1966 to 2004 to assess their accommodation needs and to provide appropriate accommodation for them. In this regard the applicants contend that the first named respondents have failed in this duty as a consequence of which the applicants found themselves forced to camp or park on various sites in the South Kilkenny area and were living in unsanitary and unhealthy conditions due to the absence of the provision of appropriate accommodation by the first named respondents.
Finally having no where else to go they refused to comply with the direction from An Garda Síochána in the notices served on them on the 12th April, 2006 to leave the site at Dunkitt, Kilmacow, Co. Kilkenny and sought the protection of the court to remain there pending the determination of these proceedings.
They remained on the site at Dunkitt until July 2006 when they left this site temporarily to travel to Donegal for a two week vacation. When they returned from this vacation they discovered that the site had been blocked off and they were unable to gain access. The first named respondents insist in correspondence that they had nothing whatever to do with the blocking off of this site, that this had been done by third parties, apparently local farmers. A mobile home which had been on the site was moved from the site and left at the side of the road and according to the first named respondents was removed there from by third parties.
There is no evidence as to where the applicants have resided since that time.
The affidavits filed on behalf of the first respondent dispute in all material respects the claims made by the applicants.
Firstly it is averred that the first named respondents have in place a Traveller Accommodation Programme in accordance with the requirements of s. 7 of the Housing (Travelling Accommodation) Act, 1998. As part of that programme there is a requirement that those members of the travelling community who are to benefit from the programme must be “indigenous” to Kilkenny. The particular term in the first named respondents Traveller Accommodation Programme in this regard is as follows;
“Traveller families permanently resident in Kilkenny for at least one year will be regarded as indigenous. Traveller families who have resided in Kilkenny for at least six months each year for the three years prior to commencement of the programme will be deemed indigenous if:
(i) If the functional area is their predominant place of residence, and
(ii) They are not included in the Traveller Accommodation Programme of another local authority.”
The first named respondents submit that the inclusion of an “indigenous” requirement in its Traveller Accommodation Programme is lawful and in this regard they place reliance upon the judgment of O’Sullivan J. in the case of McDonagh v. Clare County Council [2002] 2 I.R. 634, a case in which the first named applicant in this case was also one of the two applicants.
It is averred on behalf of the first named respondents that until the year 2005 the applicants were unknown to the first named respondents or any of its officials who had responsibility for the travelling community and no application was made to the first named respondents until June, 2005 when the first named applicant made a “shared ownership” housing loan application to the first named respondent. Subsequently in a letter dated 16th February, 2006, the applicants through their solicitor applied for accommodation.
Attention is drawn to the fact that the first named applicant herein, in the previous case above mentioned, deposed on affidavit to being indigenous to County Clare and made no reference whatever in those proceedings to a connection with County Kilkenny. In addition it is averred that the first named applicant made four applications to Clare County Council for accommodation, in February, 1992, December, 2001, September, 2003 and November, 2004. It is averred that the first named applicant was given accommodation by Clare County Council in the form of a family tenancy at 5 Cul na Greine, Shannon in the County of Clare, but he refused to take up this tenancy in May of 2005 on the basis of fear or apprehension of attack from another traveller family. It is averred, however, on behalf of the first named respondent, that by that time, the dispute between the first named applicant and this other traveller family had been resolved and the other traveller family had moved away from County Clare.
It is further averred that the first named applicant remained on the housing list with Clare County Council until 12th February, 2006 when he asked to be removed from that list and from further consideration for allocation of accommodation by Clare County Council. It is further averred that the third and fourth named applicants have as of the commencement in these proceedings, an outstanding housing application with Clare County Council and that the second, third, fourth, fifth, sixth, ninth and tenth applicants are included in the current (2005-2008) Clare County Council Traveller Accommodation Programme.
In para. 7 of her affidavit sworn on 18th October, 2006 Anne Marie Walsh says the following:
“… I say however that the letter of 16th February, 2006 from Messrs. Brophy was treated by me as an application on behalf of the applicants. I say that I duly considered the said application having considered the facts at my disposal in relation to the family and in particular to the facts that have been conveyed to me as to the applicants’ place of residence in the months and years preceding the correspondence, the fact that they have been offered accommodation in June, 2005 (and were thus included in the Clare Traveller Accommodation Programme) and the fact that any purported threat to their safety in Shannon had in fact abated, I deemed it appropriate to refuse the said application in the manner outlined in my letter of 22nd February, 2006.”
In the aforesaid letter of 22nd February, 2006 the first named respondents refused the applicants’ application for accommodation in the following terms:
“… As previously stated in our correspondence to English, Leahy, Donovan, Solicitors, this family is not included in our Traveller Accommodation Programme for 2005 – 2008. They have refused accommodation offered by Clare County Council in Shannon in June, 2005. The Gardaí in Ennis and Shannon, County Clare have advised Kilkenny County Council that there is no threat against the McDonaghs and that the ‘dispute’ has been resolved. Therefore, Kilkenny County Council does not accept any responsibility for their accommodation needs.”
Having considered all of the evidence on affidavit, I am satisfied that prior to the summer of 2005 the applicants did not have an habitual presence or residence in County Kilkenny. Prior to then the evidence points overwhelmingly to the applicants being indigenous to County Clare. Their children attended school in County Clare whereas prior to the summer of 2005 they did not attend school in County Kilkenny. The affidavits sworn by the first applicant in the previous case against Clare County Council convey the unequivocal impression that the applicants were indigenous to County Clare.
Thus, as of time of the making of the application for accommodation and the decision to refuse it made on 22nd February, 2006, it is quite clear from the material deposed to on affidavit that the first named respondent did consider the applicants’ application for accommodation, and having considered the application, the first named respondent refused the application on the basis of a wealth of material before it which inexorably pointed to a refusal of the application.
I am satisfied that on the basis of the evidence on affidavit, there is no basis for an order of certiorari quashing the decision of the first named respondent to refuse the application made by the applicants for accommodation in February of 2006. Nor indeed is there any basis for an order of mandamus directing them to consider any such application or to make any provision for the accommodation needs of the applicants at this time.
It may very well be the case, as indeed is averred to in the affidavit of Anne Marie Walsh, that continued residence in County Kilkenny together with discontinuance of their inclusion in the Traveller Accommodation Programme in County Clare, may entitle the applicants in the future to have their accommodation needs assessed and catered for in County Kilkenny. However, that is a separate matter and will have to be the subject of a new application for accommodation and is not subject to these proceedings.

THE CASE AGAINST OTHER RESPONDENTS
The challenges made against these respondents arise from the service on the applicants of notices pursuant to s. 19 of the Criminal Justice (Public Order) Act, 1994 as amended by s. 24 of the Housing (Miscellaneous) Provisions Act, 2002, whereby the applicants were directed by An Garda Síochána to, in the first place leave the site at Graiguenkill, County Kilkenny, and later to leave the site at Old Road, Dunkitt, Kilmacow, County Kilkenny and to remove objects, i.e. caravans or mobile homes from these sites. In addition, the criminal proceedings arising out of the charges laid on charge sheet No. 462991 relating to 21st January, 2006 and charge sheet No. 465849 which contains the charge of obstruction of traffic on 9th February, 2006, are the subject of challenge by the applicants.
So far as these criminal proceedings are concerned the applicants seek orders preventing further prosecution on the two charges as set out in the aforesaid charge sheets. The basis of the challenges made in this regard are that the offence created under s. 19(d) of the Criminal Justice (Public Order) Act, 1994 is one of strict liability and that a variety of defences are excluded, specifically where there is a mistaken belief as to consent, or where there is no alternative but to enter the land, or where the party charged does not think their conduct is likely to have the deleterious consequences which are a necessary ingredient of the offence. It is submitted further that the presumption in s. 19(g)(2) to the effect that consent was not given, until the contrary as shown, reverses the presumption of innocence contrary to Article 38.1 of the Constitution and article 6(2) of the European Convention on Human Rights. Thirdly, it is submitted that the content of the offence is excessively vague, such that a citizen would not be able to ascertain whether or not their conduct was likely to attract criminal liability.
It is well settled that the judicial review jurisdiction cannot be used as an advisory or consultative jurisdiction in advance of criminal proceedings. Whether or not there is merit in any of the applicants’ submissions in regard to this offence is an issue which has to be tested first in the criminal trial. In advance of the trial there is no factual basis set up in evidence, upon which to test these legal issues. Thus, at this remove from the criminal trial, it cannot be ascertained whether these applicants have any locus standi to raise these issues, as it is not yet apparent what defences are available to them, or whether the aforesaid presumption would be relied upon at all. Therefore it is not yet clear whether or not any of the contentions sought to be raised in these proceedings would actually affect them in the criminal proceedings. (See C.C. v. Ireland Supreme Court, 12th July, 2005, Blanchfield v. Harnett [2001] 1 ILRM 193, and Kennedy v. D.P.P. Unreported, High Court, 11th January, 2007.)
I am satisfied that the applicants are not entitled to any prohibition or injunction preventing the further prosecution of these offences on the grounds put forward. It should, of course, be noted that insofar as the charge contained in charge sheet 465849, i.e. the obstruction of traffic is concerned, no grounds whatever were advanced as a basis for a prohibition of a further prosecution of this offence.
The applicants complain that the exercise of the powers given to the Gardaí under s. 19 of the Criminal Justice (Public Order) Act, 1994, in a variety of ways, violate rights of the applicants. They rely upon Article 40.5 of the Constitution which says:
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”
and also article 6 of the European Convention on Human Rights which is as follows:
“Right to a Fair Trial
1. In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice …”
In addition, the applicants sought to rely upon article 8 of the European Convention on Human Rights which protects the right to respect for private and family life. The respondents objected to this on the basis that article 8 is not amongst the grounds in respect of which leave had been granted. I upheld that objection.
The relevant part of s. 19 reads as follows:
“19(b). – (1) This part does not apply to any public road within the meaning of the Roads Act, 1993.
(2) This part is without prejudice to any other enactment (including any other provision of this Act) or any rule of law.

19(c) – (1) A person without the duly given consent of the owner, shall not –
(a) enter and occupy any land, or
(b) bring onto or place on any land any object, where such entry or occupation or the bringing onto or placing on the land of such object is likely to –
(i) substantially damage the land,
(ii) substantially and prejudicially affect any amenity in respect of the land,
(iii) prevent persons entering to use the land or any amenity in respect of the land from making reasonable use of the land or amenity,
(iv) otherwise render the land or any amenity in respect of the land or of the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe,
(v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land.
(2) A person who contravenes subsection (1) shall be guilty of an offence.
(3) Where a member of the Garda Síochána has reason to believe that a person is committing or has committed an offence under subsection (1) the member –
(a) may demand of the person his or her name and address,
(b) may direct the person to leave the land concerned and to remove from the land any object that belongs to the person or that is under his or her control, and
(c) shall inform the person of the nature of the offence in respect of which it suspects that person has been involved the statutory consequences failing to comply with the demand or direction under this section.

19(d) – Where a person –
(a) refuses or fails to give his or her name and address to a member of the Garda Síochána when demanded under section 19c, or gives to the member a name or address that is false or misleading, or
(b) fails to comply with the direction under that section, he or she shall be guilty of an offence.

19(e). – A member of the Garda Síochána man arrest without warrant a person –
(a) who fails or refuses to give his or her name or address when demanded under section 19c(3)(a) or gives a name and address which the member has reasonable grounds for believing it is false or misleading,
(b) who fails to comply with a direction given under section 19c(3)(b), or
(c) whom the member finds committing an offence under section 19c(1).
19(f) – (1) Where a person fails to comply with a direction under section 19c(3)(b) a member of the Garda Síochána may remove or cause to be removed any object which the member has reason to believe was brought onto or placed on the land in contravention of section 19c(1) and may store or cause to be stored such objects so removed.
(2) Any person who obstructs or impedes or assists a person to obstruct or impede a member the Garda Síochána in the execution of his or her duty under this section shall be guilty of an offence.
(3) Where an object has been removed under this section without the presence or knowledge of any person claiming to own, occupy, control or otherwise retain it, the Commissioner shall serve or cause to be served upon each such person whose name and address can be ascertained by reasonable inquiry, a notice informing the person where the object may be claimed and recovered, requiring the person to claim and recover it within one month of the date of service of the notice and informing him or her of the statutory consequences of his or her failure to do so.
(4) An object removed and stored under this section shall be given to a person claiming possession of the object if, but only if, he or she makes a declaration in writing that he or she is the owner of the object or is authorised by its owner to claim it or if, for a specified reason, otherwise entitled to possession of it and, at the discretion of the Commissioner, the person pays the amount of any expenditure reasonably incurred in removing and storing the object.
(5) The Commissioner may dispose of, or cause to be disposed of, an object removed and stored under this section if –
(a) the owner of the object fails to claim it and remove it from the place where it is stored within one month of the date on which a notice under subsection (3) was served on him or her, or
(b) the name and address of the owner of the object cannot be ascertained by reasonable inquiry.
(6) Where the Commissioner becomes entitled to dispose of
cause to be disposed of an object under subsection (5) and the object is, in his or her opinion, capable of being sold, the Commissioner shall be entitled to sell or cause to be sold the object for the best price reasonably obtainable and upon doing so shall pay or cause to be paid to the person who was the owner of the object at the time of its removal, where the name and address of the owner can be ascertained by reasonable inquiry, a sum equal to the proceeds of such a sale after deducting therefrom any expenditure reasonably incurred in its removal, storage and sale.

19(g) – (1) A person guilty of an offence under this part shall be liable on summary conviction to a fine not exceeding €3,000 or to a term of imprisonment not exceeding one month or to both.”
The applicants complain that under these provisions their caravans, which are their homes, could be confiscated by the Gardaí, and that the consequence of these notices for them was that they were forced to leave the two sites in question by the respondents in circumstances where they had nowhere to go and where no inquiry was conducted by any of the respondents before exercising the powers conferred by
s. 19 so as to ascertain the effect the exercise of those powers would have on the applicants’ rights and specifically rights under Article 40.5 of the Constitution, their right to respect for their family life under article 8 of the European Convention on Human Rights, all of this occurring in circumstances where the applicants contend that the first name respondent had a statutory obligation to assess and cater for their accommodation needs.
It was submitted that the service of these notices was in effect a determination of the applicants’ rights and it was submitted that the absence of any inquiry or any hearing in which the applicants could participate before a decision was taken to serve these notices breached the applicants’ right to a fair hearing under Article 6(1) of the European Convention on Human Rights.
In this regard the applicants place reliance upon the jurisprudence of the European Court of Human Rights and in particular the cases of Buckley v. The U.K. 23 EHRR 101, Chapman v. U.K. 33 EHRR 399, Connors v. The U.K. [2004] 40 EHRR 189 and also a decision of the United Kingdom Court of Appeal in Samaroo v. the Secretary of State for the Home Department [2001] UK HRR 1150.
Whilst the applicant in his amended statement of grounds does make a complaint in reliance upon article 6 of the Convention that complaint is solely to the effect that the offences contained in s. 19A to H are impermissibly vague with the prospect of arbitrary enforcement and that the presumption in s. 19G(2) is contrary to the presumption of innocence.
In resolving the issues raised it is important to identify the rights of all of the parties involved that were affected by the circumstances of this dispute.
In the first place, the first named respondents were and are the legal owners of these two sites. There is no dispute about that. Secondly, it is accepted that the applicants did not have the consent of the first named respondents to enter upon or bring any objects on to those sites. It necessarily follow, therefore, that their entry on and occupation of and the bringing on to these sites of their caravans was a trespass and was illegal. Thus, it is certain that the rights of the first named respondents as the owners of this land were infringed by the applicants on their illegal entry and occupation of the land.
Like all human beings the applicants are entitled to the protection of Article 40.5 of the Constitution which protects the inviolability of the dwelling. However, this protection does not entitle the applicants individually or as a family group to invade somebody else’s land and establish their dwelling upon it. In other words, the protection given by Article 40.5 cannot be used simply to shield against an unlawful infringement of someone else’s rights.
Similarly, the protection afforded by article 8 of the European Convention on Human Rights cannot be invoked simply to shield from scrutiny and redress an illegal invasion of another person’s property rights. In all of the E.C.H.R. cases above mentioned relied upon by the applicants, the applicants in each case either owned the land in respect of which the dispute arose or had enjoyed a lawful occupation of it and hence, in my view, are clearly distinguishable from the circumstances in this case.
Section 19 of the Criminal Justice (Public Order) Act, 1994 does not make unlawful what was lawful before. What this section does is to criminalise that which was previously merely tortious, i.e. entry upon land without the consent of the owner, where the specific requirements of s. 19(e)(1)(b)(i) to (v) are met. Section 19 then contains a procedure whereby a member of An Garda Síochána can serve a notice upon the illegal entrant directing him or her to leave and to remove any objects placed on the land. Failure to comply with such a direction is in itself an additional criminal offence.
When the first named respondents made a complaint to the Garda Síochána and requested that they invoke the powers given to them under s. 19 all they were doing was merely exercising their rights as landowners to recover that to which they were entitled, i.e. unfettered possession of their land. In essence, that exercise, so far as the assertion by the first named respondents of the rights as landowners is concerned, is in principle no different from applying to the court for injunctive relief to compel the applicants to leave and remove their caravans or simply requesting the applicants to leave without any further step. All they were doing was asserting their rights of ownership by requiring the trespasser to leave, failing which there could be invoked the common law procedure of applying to the court for equitable relief or the statutory procedure of requesting An Garda Síochána to use the powers conferred on them under s. 19. The assertion of their rights of ownership by any of these three methods, in my opinion, could not amount to an interference or infringement of the applicants’ rights under Article 40.5 of the Constitution or article 8 of the European Convention on Human Rights.
The fact that this illegal entry exposes applicants to a criminal liability under s. 19 is immaterial. The addition of criminal culpability or liability by this statutory provision could not enhance the position of the applicants so as to cloak the undoubted illegality of their conduct with the protection of either constitutional or Convention rights.
The fact that the two sites in question are owned by the first named respondents as local authority, coupled with the fact that the first named respondents are the housing authority who have the relevant statutory duty to provide for the accommodation of travellers is also immaterial. Persons who seek accommodation from a housing authority and are disgruntled with the outcome of their application cannot take the law into their own hands and occupy other land simply because it is owned by the housing authority. This simple proposition of law holds good regardless of whether the piece of property invaded is the town hall or the two sites which are involved in this dispute.
Nor can the applicants avail of a defence of necessity, as discussed in the case of Southwark LBC v. Williams [1971] 2 All E.R. 175, as a justification for illegal entry and occupation of these lands. I am satisfied, that, taking the applicants’ case at its highest, would not enable them avail of this defence. In point of fact, however, I am satisfied on the evidence, that the applicants resort to County Kilkenny and these two sites in particular was a matter of choice rather than necessity.
Against this background then it cannot be said that there has been an infringement of article 6(1) of the Convention on the basis contended for in the applicants’ submission.
The applicants seek to illustrate the procedural deficiency of which they complain by comparing the absence of the procedure they contend for, namely of some kind of hearing before the invoking of the s. 19 powers, to the situation which appertained prior to the enactment of s. 19, namely where aggrieved landowners sought injunctive relief from the courts to restrain trespass. In this situation it was submitted that the trespasser had a hearing which was required by article 6(1). What was entirely overlooked in the applicants’ submission in this regard is that the circumstances now relied upon by the applicants as justifying their illegal entry would have been no defence and would have gained them no relief or concession from the court, where there was no dispute but that the entry on land was unlawful.
Implicit in the submission by the applicants that there should have been a hearing prior to the invocation of the s. 19 powers in order to vindicate their rights under article 6(1), is the notion that the tribunal as envisaged by article 6(1) could uphold or vindicate the applicants’ claims to be entitled to remain on these lands.
Having regard to the plain and obvious illegality of what was done by the applicants and the absence of any form of justification which would entitle the applicants to remain on these lands, in my view any tribunal charged with upholding the law, could not vindicate the applicants’ position. Hence, in my view, the applicants’ claim that their article 6(1) rights were breached by the absence of such a hearing is hollow and devoid of any reality.
I am satisfied that there has been no breach of the applicants’ rights under article 6(1) of the Convention.
In the course of submissions the applicants placed a very heavy emphasis on the principle of proportionality. Needless to say, in circumstances where I have found that there has been no interference with the applicants’ rights, the question of proportionality does not arise.
A large part of the applicants’ complaint was based on the potential confiscation of or destruction of their caravans or mobile homes, which are their dwellings. As is clear from the evidence, neither of these happened in this case. Hence the applicants lack a locus standi to make a case on that basis.
The first respondent as a housing authority discharges its obligations as a Housing Authority by the correct and fair adherence to, and application of the relevant provisions of the Housing Acts, 1966 – 2004. I am satisfied, that in this case, the first respondents did this.
Where an applicant is disappointed with the outcome of an application for accommodation, the decision of the Housing Authority is amenable to review by this court, as occurred in this case. In itself, such an avenue of redress is a vindication of the applicants’ rights under Article 6(1) of the E.C.H.R. Disappointment and distress associated with an unsuccessful housing/accommodation application cannot be permitted by the courts to turn into illegal acts, such as occurred here.
In conclusion, I am satisfied that there is no basis for orders of certiorari or mandamus against the first named respondent and that the exercise by the second named respondent of the powers conferred by s. 19 of the Criminal Justice (Public Order) Act, 1994 did not infringe any of the applicants’ constitutional rights or rights under the European Convention on Human Rights or any other legal rights. Accordingly, I must refuse the reliefs sought.

Sfar v Louth County Council [2007] I.E.H.C. 344
Judgment of Mr. Justice Roderick Murphy dated the 22nd day of October, 2007.

1. Judicial review applications
These overlapping judicial review applications have Louth County Council as the common respondent and seek similar reliefs against the Minister for Justice, the Minister for Agriculture and Food, the Garda Commissioner, Attorney General and Ireland.
The applicant, who represented herself, seeks declarations, injunctions and mandamus in relation to the seizure of the applicant’s dogs and other animals.
In the first matter, [2007] 246 J.R., the applicant obtained leave from O’Neill J. on 8th March, 2007 for judicial review as against Louth County Council, the first named respondent only, for
(i) a declaration that seizure of the applicant’s dogs by the first named respondent was unlawful
(ii) an injunction restraining the first named respondent from disposing of the animals seized by the dog warden on the grounds set forth in the statement
The order provided that the first named respondent be restrained until the determination of the application for judicial review or until further order or until the injunction shall have lapsed by reason of the applicant’s failure to serve an originating notice of motion herein within the proper time for disposing of all of the animals seized by the dog warden.
In the second matter, [2007] 370 J.R., the applicant on11th April, 2007, obtained an injunction from de Valera J. that the respondents be restrained until after the 3rd May, 2007 or until further order in the meantime from destroying the two dogs seized from the applicant’s premises at Balrigan, Kilcurry, on 9th March, 2007 and the ten dogs seized from the applicant’s residence at Balrigan, Kilcurry on 4th April, 2007. No application was made for leave for judicial review.
In the third matter, [2007] 485 J.R., 14th May, 2007, Peart J. gave leave to apply by way of application for judicial review for the reliefs for:
An injunction preventing the disposal of the pigs and goats seized on 18th April, 2007 until they return to the applicant and the return of the property to the applicant, and

A declaration that the above particular animals are excluded from the provisions of the European Communities (Protection of Animals kept for farming purposes) Regulations, 2006 and that the Department of Agriculture exceeded [its] legal authority by seizing the above animals under the above Regulations.

In the fourth matter, [2007] 486 J.R. on the same date, 14th May, 2007, Peart J. also gave leave to apply by way of application for judicial review for the following reliefs:
An injunction preventing the disposal of the three dogs seized on 19th April, 2007 until they return to the applicant and the return of the property to the applicant, and
a declaration that the curtilage area of a dwelling is not a public place for the purpose of the Animals Act, 1985.

The statements of opposition deny that the seizure of the applicant’s dogs was unlawful; that they were seized pursuant to the powers conferred by s. 16(1)(b) of the Control of Dogs Act, 1986 which seizure was entered on the register of dogs maintained under s. 14 of the Act.
In relation to the second matter, notwithstanding that the only relief obtained was injunctive relief and not leave for judicial review, Louth County Council (the Council) filed a statement of opposition that the seizure was pursuant to powers conferred by s. 11(1) of the Control of Dogs Act, 1986. The court invited the applicant to make an application for leave for judicial review. Such application was made and leave was ordered in terms of the leave granted in the fourth matter, [2007] 486 J.R., and, when made, to grant such a leave in order that all matters be before the court.
In the third matter, 2007 485 J.R., the statement of opposition of the Council pleaded that the application was misconceived and that the respondent did not seize three or any of the applicant’s rare breed pigs nor five or any of the applicant’s miniature pet goats on 18th April, 2007 or at any time.
The statement of opposition of the State parties is that the applicant was not entitled to the order directing the return of any of her animals seized by the State parties on the grounds alleged or at all, nor of disposing of the animals and that the applicant was not entitled to the declaratory relief, damages, certiorari or mandamus. It was further denied that seizure of the goats and pigs was unlawful or that the animals seized were excluded from the provisions of Statutory Instrument No. 705 of 2006 EC (Protection of Animals kept for farming purposes) Regulations, 2006. A number of pigs and goats were removed from the premises under the Regulations, to be brought to safe places of custody to reside with third parties.

2. Affidavits
The court considered the three extensive verifying affidavits which largely consisted of legal submissions, the replying affidavits of the officers of the respondents and further many affidavits of the applicant and the respondents. Three issues arose for determination of the court, the definition of “dwelling”; of “animals kept for farming purposes”; findings of fact relating to the seizure of animals and the allegations of mala fides.

3. Dwelling
3.1 The first issue was whether the respondent in the first, second and fourth matter were entitled to enter the applicant’s premises at Balrigan, Kilcurry and at 129 Oaklawns, Dundalk and to seize the applicant’s dogs.
The applicant’s evidence was that the dog warden employed by the Council entered her premises yard and outhouses (including a boiler house) at Kilcurry which formed part of her dwelling.
The warden also entered her premises but did not enter any outhouses at 129 Oaklands where the applicant resides, which premises were part of her dwelling.
The applicant’s evidence was that she occasionally resides at Kilcurry which she uses as a retreat. An ESB bill was produced which showed one unit used for the billing period. Her address for the purpose of the proceedings was given as 8 Kilbroney Vally, Rostrevor, County Down in relation to the first two matters and 129 Oaklands, Dundalk in relation to the third and fourth matters.
Garda Barbara Bracken gave evidence that there was no sign of human habitation at the house at Kilcurry which appeared to have been inhabited by dogs and to be run down. Garda Bracken did not believe that the applicant resided there. She exhibited a sketch of the premises at Balrigan, Kilcurry.

3.2 The Control of Dogs Act, 1986 (No. 32 of 1986) does not include the term “dwelling” in the interpretation section (section 1). It does define “occupier” as a person who owns and occupies, as well as a person who occupies only, any premises …
Section 16, which empowers a dog warden where he has reasonable grounds for believing that a person is committing, or has committed, an offence under the Act or under any regulation or bye-law made thereunder, may seize any dog and detain it in order to ascertain whether an offence under the Act is being committed or has been committed and may enter any premises (other than a dwelling) for the purpose of such seizure and detention.
Premises includes any house or land (section 1 of the Act). Any premises (other than a dwelling), accordingly, includes any house that is not used as a dwelling.

3.3 The words “dwell” and “dwelling” are defined in several statutory provisions and, as such, are included in legal dictionaries.
The applicant referred to the definition of “dwelling” in Mozley and Whiteley’s Law Dictionary (12th edition) (2001) which states:
“Dwelling. A building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses, and the pertinences belonging to or usually enjoyed with that building or part of it. It implies a building used or capable or being used as a residence by one or more families and provided with all the necessary parts and appliances, e.g., floors, staircases, windows, etc.”
Murdoch’s Dictionary of Irish Law (4th edition) (2004) refers to the following:
“Dwelling. In relation to the Residential Tenancies Act, 2004, a ‘dwelling’ means a property let for rent or valuable consideration as a self-contained residential unit and includes any building or part of any building used as a dwelling and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it and, where the context so admits, includes a property available for letting but excludes a structure that is not permanently attached to the ground and a vessel, whether mobile or not (RTA 2004, F4(1)). The 2004 Act applies to dwellings which are subject to a tenancy, including tenancies created before the passing of the Act …”
It would appear that the dictionary definitions refer to common residential tenancies legislation and in the interests of tenants, applies a wide definition to the word “dwelling” – a separate dwelling together with any yard etc. as in Mozely and Whitely, relied on by the applicant.
Butterworth’s: Words and Phrases Legally Defined (3rd edition, 1989) deals with English statutory definitions of dwelling house and dwelling and, indeed, as a wide definition under the Housing Acts corresponding to the definitions referred to in the above dictionaries.
The dictionary definition of “dwelling” (from the verb “dwellan” to “lead astray” and later “to be delayed”,) is not particularly helpful in relation to the general inviolability of a person’s dwelling or the specific limitations of the dog warden powers in s. 16 in particular.
We must accordingly look at judicial considerations of the term.

3.4 However, apart from statutory definitions the courts have held that to “dwell” and “dwelling” are expressions nearly but not quite, equivalent to reside, residence. To “dwell” connotes, more definitely than “reside”, where a person lives and sleeps (see Pollock CB, AG v. McLean 1H&C 761. See also Campbell v. O’Sullivan [1947] SASR 195 at 201, 206 cited in Stroud “Judicial Dictionary of Words and Phrases (6th edition), 2000).
Butterworth’s cites Bovill C.J. in Thompson v. Ward, Ellis v. Burch [1871] LR 6 CP 327 at 358, 359, citing Lord Cooke in relation to burglary:
“A chamber or room, be it upper or lower, wherein any person doth inhabit or dwell, is domus mansionalis in law.”
Lord Atkinson in Lewin v. End [1906] A.C. 299 at 304 states:
“By a ‘dwelling house’ I understand a house in which people live or which is physically capable of being used for human habitation.”
It is established that a person may “dwell” in two or more places (Butler v. Ablewhite, 28 LJCP, 292). A person can, however, scarcely be said to “dwell” in his place of business (Kerr v. Haynes, 29 LJQB 70 and Shields v. Rait, 18 LJCP 120).
The word “dwelling” was held in Rukwira v. D.P.P. [1993] Crim. LR 882 to connote those areas which lay behind closed doors, and did not include common landings which were merely means of access to the dwelling.
There is further authority that a house does not become a dwelling house until some person dwells in it; that a structure in which people live or which is physically capable of being used for human habitation is a dwelling house.

3.5 The constitutional protection of dwellings was considered in The People (Attorney General) v. O’Brien in the context of forceable entry where Walsh J. states:
“I now come to deal with the ground which was based upon the constitutional issue. Article 40, paragraph 5 of the Constitution provides as follows:
‘The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.’
That does not mean that the guarantee is against forcible entry only. In my view, the reference to forcible entry is an intimation that forcible entry may be permitted by law but that in any event the dwelling of every citizen is inviolable save where entry is permitted by law and that, if necessary, such law may permit forcible entry. In a case where members of a family live together in a family house, the house is for the purpose of the Constitution a dwelling of each member of the family. If a member of a family occupies a clearly defined portion of the house apart from the other members of the family, then it may well be that the part not so occupied is no longer his dwelling as that part he separately occupies is his dwelling as would be in the case where a person not a member of the family occupied or was in possession of a clearly defined portion of the house. In this case the appellants are members of a family living in the family dwelling house and also appear to have their own respective separate bedrooms. Each of the appellants would therefore have a constitutional right to the inviolability of [the particular house in question].”

3.6 The judicial definitions are narrower than conveyancing, tenancy and, indeed Revenue definitions. They are, of course, not affected by the statute in which they are defined.
It is clear that the words “dwelling” and “dwelling house” may be used in different senses. The People (Attorney General) v. O’Brien assumes but does not define what a dwelling is.
Lord Justice Black in Belfast Corporation v. Kelso [1953] N.I. 160 at 163 states that it is not difficult to see that the word “dwelling house” may be used in different senses and different connections. Thus, we may speak of a garden attached to or surrounding a dwelling house. In this sense by “dwelling house” we mean only the dwelling house itself, the actual bricks and mortar. On the other hand, a conveyance or a devise of a dwelling house will normally be construed as including all the land within the curtilage of the house.
It would appear to this Court that the word “dwelling” in s. 16 of the Control of Dogs Act, 1986 must be construed in the narrow sense as protecting a house where people live and cannot be deemed to extend to outhouses or boiler houses, particularly where they are not capable of being accessed through the house, nor to the curtilage. It is a contradiction in terms to say that a place where animals, farm or domestic, are housed can be a dwelling where people live, whether permanently or temporarily.

3.7 The court was asked by the respondents to view a video tape taken by officers of the respondents in relation to the seizure of the dogs. I understand that a second video was available in relation to the seizure of other animals.
The applicant objected to the admissibility of such evidence, notwithstanding that it was referred to in the respondent’s affidavits. Two issues were raised by the applicant: the video showed the premises in a bad light and were of the dwelling and its curtilage and, accordingly, a vitiation of her rights.
Having heard the submissions of both parties in relation to the admissibility of the video which seemed relevant to the issue of the extent of the dwelling itself, it was agreed that it should be viewed without prejudice as to its ultimate admissibility to determine the extent of the premises and the position of the dwelling house thereon.
The court took into account the statement of the applicant in relation to the extent of rain and mud immediately prior to taking of the video.
The video was played uninterrupted and appeared to last some 40 to 50 minutes. The first part (perhaps some 10 minutes) had no audible soundtrack and showed goats and sheep, a paddock and a pond. It appeared to be rough, poor land. There was a former plastic tunnel-type shelter, enclosed areas, some out-houses and an open trailer on the land.
Several dogs were shown in a muddy enclosed yard. There was no food or waster visible and the animals when watered drank enthusiastically.
At that stage the soundtrack could be heard in relation to the remarks of the several officers who described the condition of the dogs and in particular the wound on the left hank of a Dalmation dog.
A grey-white cairn terrier appeared frightened. A white dog stood in the shed behind the green tank. The court was able to ascertain a white out-house, part stone, part block work, with a galvanised roof and a door closed where two or three dogs appeared to be housed. The floor was covered with what appeared to be rubbish. It was not possible to ascertain whether there was any food or water. The dogs, when watered, also drank enthusiastically.
When opened, it appeared that this was a boiler house and from subsequent parts of the video it appeared to correspond to the sketch exhibited in the affidavit of Garda Bracken as a separate building from the main house.
Two-third ways through the video the camera focused on the windows of that house for a short period of seconds rather than minutes. It appears to this Court that, on the assumption that this was the dwelling house, that this part of the video should be excluded from the evidence.
The video then showed three pigs with a dog standing nearby. The paved or concreted ground was muddy. There were no visible drains.
A number of kennels were identified and letters ascribed to them. Some of the dogs were caught and identified.
Towards the end of the video the house could be seen and somebody said “This is the dwelling” and that it was not secure. The video did not show anyone entering the house.
The house appeared with a galvanised roof and an extension. The last view of the video, taken some 30m. away from a rough, muddy laneway, showed its named as “Slí an tSionaigh”.

3.8 I accept the evidence from the affidavits that the respondents did not enter the dwelling but did enter the boiler house and, indeed, other enclosed areas and the yard and paddock in which animals were kept.
The applicant has asserted that this was her dwelling in addition to her Dundalk home in relation to which other dogs were seized on a different date.
The uncontroverted evidence of the ESB bill exhibited by the applicant showed that only one unit of electricity had been used over what appeared to be a two-month billing period. As the court excludes the evidence in relation to the house it is not possible to conclude that it was used as a dwelling. However, the applicant asserts that the house was used occasionally. Garda Bracken gave evidence that there were signs of human habitation. The court cannot determine whether or not it was a dwelling.
The court accepts that a person may dwell in two or more places (Butler v. Ablewhile, 28 LJCP, 292).
Even if the house were to be considered as an occasional dwelling, as averred in the applicant’s affidavit, the court finds that no entry made upon it, nor were there any animals removed from the applicant’s dwelling.

3.9 In the absence of a statutory definition it seems clear to me that the word “dwelling” in s. 16 of the Act does not include the curtilage or out offices.

3.10 The court is also satisfied that, on the admission of the applicant herself, that there was an issue in relation to dog licences which I understand is the subject of separate proceedings. Indeed, it would appear from the applicant’s extensive affidavits that there have been and are several other judicial review application in relation to the seizure of the applicant’s animals.

3.11 The court, having regard to the evidence, concludes that the powers of the dog wardens were exercised within jurisdiction; that the dog warden did not enter the dwelling at Kilcurry; that no evidence was given in relation to Oaklands to that effect; that he was entitled to bring with him into the premises such other persons as he believed to be necessary for the purpose of assisting him in the exercise of his powers and functions.

4. Animals kept for farming purposes
The second issue arising in relation to the definition of animals kept for farming purposes.
The applicant claims that the pigs and goats were excluded from the provisions of the European Communities Protection of Animals kept for Farming Purposes Regulations, 2006 (the 2006 Regulations).
The Regulations impose an obligation on persons to ensure the welfare of animals. Regulation 6 provides that, if an authorised officer has reasonable cause to suspect that an offence is being or has been committed under the Regulations, he may search the premises, photograph or otherwise record an animal as he sees fit.
As in the Control of Dogs Act, 1986, Regulation 6(2) provides that an authorised officer should not enter a dwelling. To do so he needs to obtain a search warrant under Regulation 7. I am satisfied that the officer did not enter the dwelling at Kilcurry.
The applicant claims that her pigs and goats are excluded from the provisions of the 2006 Regulations. She says in her affidavit that either her animals are pets or that they are “intended for showing”.
“Animals” under the provisions of Regulation 2 is to mean “any animal … bred or kept for the production of food, wool, skin or fur or for other farming purposes” as is the definition in the Directive 98/58/EC of 20th July, 1998.
It is clear from the very title of the Regulations that its purpose is to protect animals kept for farming purposes. The court accepts that the animals were in and around farm outbuildings and grazing (albeit on poor, rough ground).
The applicant describes herself as a farmer and as a hobby farmer in her several affidavits.
The applicant’s affidavit refers to the breeding of the pigs and selling the offspring to open farms or zoos. The goats were used to train her sheep dogs when the sheep were in lamb. Significantly, in her letter to the Department of Agriculture, she requests that they send her “flock registers for my sheep, goats and pigs”. She refers, in that letter, to “farm dogs” which she said she uses to “manage my farm animals”.
In her affidavit sworn on 29th August, 2007 she describes her plan to “redevelop a strain of Oxford Forest as my pigs had all the suitable genes”. An exhibit to that affidavit refers to the Tamworth pigs which describes then “primarily as bacon pigs, because of their long sides and relatively lean meat, but they make excellent pork too”.
In Lowe (Inspector of Taxes) v. Ashmore (J.W.) Ltd. [1971] 1 All E.R. 1057 at 1065, Megarry J., in the context of the Income and Corporation Tax Acts assumed that the word “farming” means farming in the sense of the carrying on of activities appropriate to land recognisable as farm land. It must at least include “the raising of beef, the cultivation of lands and the growing of crops …”. Several other pronouncements refer to participation in the cultivation of land or the raising of stock for profit.
It seems to this Court that to the limited extent that the applicant is involved in the keeping and raising of pigs and goats and sheep with a view to breeding and selling, that this involves farming. It does not appear to me that, even if there were evidence of showing these animals, that this factor would exclude the animals from farming purposes. What appears to be clear from the veterinary reports, the affidavits and, indeed, the video, that these animals are not kept as pets, domestic or otherwise and were unlikely in a condition, at that time, to be exhibited.
The court finds that animals seized, other than the dogs, were animals kept for farming purposes.
It seems, accordingly, that the provisions of the Regulations apply.

5. The seizure of the animals
The affidavit evidence of Mr. Brendan Smith, Superintendent Veterinary Officer of the Department of Agriculture referred to a telephone call from a neighbour of the applicant in May, 2006 regarding the welfare of the applicant’s animals. Two officers of the Department visited in June, 2006 and found goats tied up with no access to water and noted the decomposing carcasses of four sheep. The applicant was informed of her responsibility. In February, 2007 a further complaint in writing was received in relation to the escape of the applicant’s animals, damage caused and neglect of the animals.
Mr. Smith says he visited the premises on 7th February with another officer and saw several carcasses, no available grass and no available waster in one of the paddocks. Animals were hungry but not starving. Dogs had no available water. He issued a notice requesting the applicant to dispose of the carcasses. On 5th March, 2007, following a request from the Louth Society of Cruelty to Animals, he and others inspected and seized a number of dogs from Kilcurry.
On 6th March the applicant phoned to say that Mr. Kyran Kane, Veterinary Inspector of the Department, visited the premises a week later on 14th March, 2007 and found the condition of the pigs, goats and remaining dogs to be of concern and served notices by registered post on the applicant.
While on 23rd March the condition of the animals had improved, on 12th April he found that the pigs had broken out and the goats had inadequate food and water. On 18th April the pigs and goats were seized.
Mr. McGuinness, MVB, MRCVS, an independent vet. referred to the removal of ten dogs in the possession of the applicant, whose condition was extremely unacceptable. One was emaciated with sores on its tail. All dogs removed were severely substandard, bordering on malnutrition.
The applicant exhibited two reports from Brian Jones MVB, MRCVS, of ANCU Veterinary Hospital, Newry, County Down, of 28th March, 2007 before the dogs were seized and on 12th September, 2007 in respect of an inspection on 23rd May, 2007, over a month after seizure.
In his first short typewritten report he said that he had examined five specified dogs and found that “these animals were found to be fit and healthy and free from external parasites”. In his second two-page manuscript letter signed by him he said that on 23rd May, 2007 he examined the dogs that were present on his initial visit (but were then some five weeks with a third party) and “found them to be fit and healthy. They appeared to have put on condition, especially the Dalmation cross dog”. He said that he examined a further ten dogs that were not present on his first visit. Some appeared healthy and “some of the dogs were subdued, especially a cross-bred female who was underweight”. The second page stated that “overall the dogs were in good condition in my opinion”.
Mr. Jones had examined five dogs some two weeks before dogs were seized. The same dogs had “put on condition” especially the Dalmation, almost two months later. He had no examined the other dogs.
I accept Mr. Jones’s evidence.
A letter from Mr. Jones, the applicant’s veterinary surgeon, dated 15th October, 2007 which was received by the Registrar yesterday, 18th October, 2007 over a week after the hearing, was not put in evidence either on affidavit or otherwise. Mr. Jones merely states that he examined the dogs on 28th March and 18th May, 2007 in the presence of Ms. Fiona Squibbs of the Society of the Prevention of Cruelty to Animals, and Garda Bracken.
The court accepts the evidence of the respondents’ veterinary surgeons regarding the physical state, health, well-being and nourishment of the animals seized at the time of seizure. The video evidence does not persuade the court to the contrary.

6. Allegations of mala fides
The applicant makes many allegations that the officers of the respondents acted in bad faith towards her or held a grudge against her. In relation to the second application (2007 370 J.R.) these occur in the affidavit of 10th April, 2007 and, more extensively, in the applicant’s affidavit of 29th August last.
In relation to the third set of proceedings, the applicant accuses Garda Bracken of harbouring a grudge against her as evidenced by Garda Bracken accusing her at her work place. Garda Bracken avers that she did not mention the criminal case brought against the applicant in the presence of her work colleagues as alleged.
The applicant alleges that the Department veterinary surgeon and the independent veterinary surgeon used by the Gardaí were mistaken in their evidence. Her veterinary surgeon, who saw the animals some weeks later, described them as in good condition.
The court accepts that the dogs’ condition was likely to have improved from the position shown in the video in the weeks following their seizure, having been treated for parasites and fed to increase their weight at the time they were examined by the applicant’s veterinary surgeon.
Mr. Keane, former veterinary inspector, said that he had contacted the applicant by telephone at work on three occasions and that this contact was made to alert the applicant to the serious breaches of animal welfare legislation on her holding at Balrigan. He said that he acted at all times in a professional and courteous manner in his dealing with her and rejected any suggestions that he acted mala fides.
Mr. Brendan Smith, Superintendent Veterinary Officer at the Department of Agriculture, said that the applicant had listed her work number as a point of contact on an application for a sheep flock number and on letters she had sent to Mr. Smith’s department. Both he and Mr. Keane had acted at all times in a professional and courteous manner in his dealings with her.
The court is concerned regarding the allegations of the applicant in relation to mala fides and bias as against the respondents’ officials and veterinary surgeons. These allegations are denied. They lack the degree of specificity that are required to make such serious allegations.
There seems to this Court to be no evidential basis for the allegations.
The court is also concerned with the number of appeals and judicial review applications initiated from 1999 to 2007 by the applicant in relation to her animals and to which she refers in her affidavits. The court has had difficulty in disentangling the four cases before it without having to understand the other proceedings to which the applicant refers.
Moreover, it would seem to be an abuse of process to seek four judicial reviews against the Council where one would suffice and to involve other parties in respect of whom no relief is sought. While a litigant is entitled to have access to the courts such entitlement should not be abused.

7. Conclusion
For the reasons given above, it seems to me that the applicant has not made a sufficiently cogent case to justify the court making the orders requested.

County Council of Wicklow v Fortune

[2012] IEHC 406, Hogan J.

JUDGMENT of Mr. Justice Hogan delivered the 4th day of October, 2012
1. This appeal from a decision of the Circuit Court raises difficult and, in some respects, novel issues concerning the application of the Planning and Development Act 2000 (“the Act of 2000”). The first issue concerns the nature of the seven year limitation period provided for in s. 160(6)(a)(i) of the Act of 2000. Does this section represent a jurisdictional bar to proceedings commenced after the seven year period or is it in the nature of a defence available to a respondent? Moreover, on whom does the burden of proof lie? The second issue relates to the nature of the “inviolability” of the dwelling as provided for in Article 40.5 of the Constitution (and for that matter the “respect” for the family home provided for in Article 8(1) ECHR). To what extent, if at all, can this constitutional provision be invoked by the home owner by way of defence to an application for an injunction which would seek to compel him or her to remove the dwelling for want of planning permission?

2. These important issues arise in the following circumstances. The defendant, Ms. Fortune, has at some stage within the last thirteen years or so constructed a small timber framed chalet approximately 70 sq. m. in size in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. Wooden decking in the form of a patio has been laid around two sides of the chalet. While it seems clear from the photographs supplied to the Court that the chalet has been sensitively constructed and is not immediately visible from the adjoining road, the stark fact remains that this chalet was built without planning permission.

3. This matter appears to have first come to the attention of the planning section of Wicklow County Council sometime in December, 2006. Officials from the Council visited the site on a number of occasions, noting that other parts of the site and immediately adjacent sites were used by other family members for such purposes as the storage of mobile homes and motor vehicles. A warning letter was duly sent pursuant to s. 152 of the Act of 2000 on 18th April, 2007.

4. The Council decided to postpone making an application to the Circuit Court for a statutory injunction under s. 160 pending an application by Ms. Fortune for retention planning permission. Two separate applications for retention were made on Ms. Fortune’s behalf. The process culminated in the decision of An Bord Pleanála to refuse to grant permission by decision of 18th November, 2008. The reasons which were given by the Board for this refusal for this refusal are of some importance:

“1. The site of the proposed development is at an elevated location designated in the Wicklow County Development Plan 2004-2010 as an “area of outstanding beauty”. According to Policy SS9 of the Settlement Strategy is the policy of the planning authority not to allow development of dwellings within areas so designated, unless it can be satisfactorily demonstrated that the applicant has a permanent note of residence of the immediate vicinity or has resided at the location for a minimum often years. This policy is considered reasonable. It is considered on the basis of the submissions made in accordance with the application of the appeal that it has not been demonstrated that the applicant comes under the scope of the criteria set out under this policy. The proposed development would, therefore, contravene this policy and would be contrary to the proper planning and sustainable development of the area.
2. The site of the proposed development is located off a lane that is substandard in horizontal and vertical alignment and in poor condition. The Board is not satisfied on the basis of the information provided in connection with the application of the appeal that the lane can be upgraded and maintained to a satisfactory standard to serve the development. The proposed development would, therefore, endanger public safety by reason of traffic hazard and obstruction of road users.”

Ms. Fortune herself has explained the circumstances in which the chalet was constructed. She has explained that in 1999 she found herself separated with two young children, then aged seven and nine. She had nowhere to live because she had previously lived with her husband in accommodation which was associated with his work. In those circumstances she was effectively destitute and her mother (who is sadly deceased since the date of the Circuit Court hearing) allowed her to place a mobile home on this site. She goes on to explain that with the assistance of her family:-
“I was able to fund the erection of a wooden chalet on the lands to provide a home for my children and I. The alternative was for me to seek social housing and I felt that I would be able to provide a better home for my children amongst their extended family than relying on the assistance of the State and living far removed from them. The chalet is small and has been designed in a manner as sensitive to its surrounding as possible. It is located in a discrete and isolated situation and is not visible from its surrounds.”
5. Other members of her extended family live in or use similar sites in the immediate vicinity.
6. By decision dated 8th February, 2011, Her Honour Judge Flanagan found for the applicant Council. In effect, the Circuit Court ordered that the site should be cleared and in particular that the occupation of the chalet should cease as a prelude to its demolition and removal. Ms. Fortune now appeals to this Court against the making of these orders.
Section 160(6)(a)(i) of the Act of 2000 and the seven year limitation period
7. It is against this general background that we can turn to consider the first issue, namely, that of the onus of proof in relation to the seven year limitation period. Ms. Fortune contends that the application in statute-barred because the Council have not shown that these proceedings were commenced within the seven year time limit. Section 160(6)(a) provides in relevant part that:-

“An application to the High Court or Circuit Court for an order under this section shall not be made:

(i) in respect of a development where no permission has been granted after the expiration of seven years from the date of the commencement of the development.” (italics supplied)
8. The first thing to note is that s. 160(6)(a)(i) does not impose a jurisdictional bar on the granting of a statutory injunction in the event that the proceedings have been commenced after seven years, the italicised words notwithstanding. The words “shall not be made” have been hallowed by statutory usage in the field of limitations law as creating simply a defence and not a jurisdictional bar. Given that the Supreme Court has stressed that the similar wording of s. 11 of the Statute of Limitations 1957 creates a full defence available (if applicable) to the defendant who elects to plead it (cf the comments of Henchy J. in O Domhnaill v. Merrick [1984] I.R. 151, 158), the same must be taken to be true by analogy in the case of an application for a statutory injunction given that the same formula has also been used ins. 160(6). The seven year time limit is, therefore, a matter of defence and is not one which goes to not jurisdiction.
9. Second, it is true that as Mr. Bradley S.C. pointed out, s. 156(6) of the Act of2000 expressly provides that:-

“In a prosecution for an offence under sections 151 and 154 it shall not be necessary for the prosecution to show, and it shall be assumed unless the contrary is shown by the defendant, that the subject matter of the prosecution was development and was not exempted development.”
10. Likewise, s. 162(1) provides that in any proceedings for an offence under this Act, the onus of proving “the existence of any permission granted under Part III shall be on the defendant”. But I cannot for several reasons regard these provisions as requiring the application of the expression unius maxim of statutory interpretation in the context of s. 160(6). The fact that the Oireachtas elected to lay down a special rule governing criminal prosecutions in respect ofunauthorised development offences (s.151) or offences relating to warning notices (s. 154) or more generally (s. 162(1)) cannot determine the onus of proof in relation to an aspect of the limitation period applicable to civil enforcement. No wider inference can therefore be drawn in relation to the lex specialis provided for in s. 156(6) or, for that matter, s. 162(1). Indeed, McKechnie J. already said as much on this very point in his seminal judgment in South Dublin City Council v. Fallowvale Ltd. [2005] IEHC 408 and I respectfully agree with his analysis.
11. Third, it is true in all the s. 160 cases to date (including the cases dealing with its statutory predecessor, s. 27 of the Local Government (Planning and Development) Act 1976) this Court has stressed that the general onus of proof in such cases rests with the applicant: see, e.g., Westport UDC v. Golden Ltd. [2002] 1 I.L.R.M. 439 per Morris P., Fingal County Council v. Dowling [2007] IEHC 258 per de Valera J. and Wicklow County Council v. Jessup [2011] IEHC 81 per Edwards J. This case-law can be traced back to the statement of Finlay P. in Dublin Corporation v. Sullivan, High Court 21st December, 1984, where he stated that:-

“I am satisfied since the applicants come seeking relief which would affect the ordinary property rights of the defendant and which potentially could cause him loss that in the absence of some express provision to the contrary which does not exist either ins. 27 of the 1976 Act or otherwise in the planning code that the general proposition must be that it is upon the applicants that the general proposition must be that it is upon the applicants there rests the onus of proof of proving the case which they are making….”
12. While fully accepting these comments so far as the general onus of proof in such cases is concerned, it may be recalled that prior to 1992 the old s. 27 procedure did not provide for a time limit along the lines of s. 160(6)(a) so that in Sullivan Finlay P. was obviously not addressing the question of on whom the burden of proof with regard to the time period actually rested. Nor do I read the comments of de Valera J. in Dowling as establishing any general proposition regarding the location of the burden of proof with regard to the time limits to s. 160(6)(a), as those comments were rather made following a consideration of the evidence of both the applicant and the respondent and it was in that context that the judge found against the applicant.
13. It is also true that in Fallowvale McKechnie J. rejected the argument that s. 160 created any reverse-onus types provisions:-

“To overcome this difficulty it has been suggested by the planning authority that this court shall read into s. 160 a provision which would have the effect of placing the onus of proof on a respondent in circumstances, inter alia, where that party wished to claim an exemption under the planning code either through its statutory provisions or by virtue of the exempted provisions of the Regulations or indeed if the defence should rely upon a pre-1964 user. In my opinion, there is no known rule of interpretation which would permit this court to so construe the provisions of s. 160 of the Act. On the contrary, it seems to me that given the express omission of any such provision or of any similar or comparable presumption to that contained in other sections of the Act, it would be entirely inappropriate for this court to construe the section in the manner suggested. Accordingly, I do not believe that by any acceptable method of construction can a like provision or rule with similar effect be read into the section in question.”
14. Yet at the same time McKechnie J.’s exceptionally thorough review of the applicable case-law- a review upon which I could not hope to improve- reveals that in some instances and in some circumstances the legal burden may be taken to have rested with the respondents with regard to at least some aspects of the s. 160 application procedure:-
“The onus of proof issue, which was keenly contested in this case, arises by virtue of the respondents’ reliance on s. 4(1)(h) of the Act of 2000 and on Class 32 and Class 39 of the Regulations. It is no part of their argument on the facts of this case that any of the development in question has the benefit of a pre-1964 user. Therefore, the views which I express on this point are confined to the statutory provisions as identified and do not purport to cover circumstances, which by virtue of their existence prior to the 1st October, 1964, are in effect excluded in their entirety from the provisions of the Act of 2000

In Lambert v. Lewis (Unreported, High Court, Gannon J., 24th November, 1984) the issue before the court required in the judge’s opinion “no more than an interpretation of the exemption regulations in S.I. No. 65 of 1977 ….”These regulations can be considered as predecessors to the 2001 Regulations and on the point at issue are indistinguishable from them. In that case, it was submitted to the court that the activities complained of fell within the class of “light industrial use” and that the premises in question had a history of such use prior to 1st October, 1964, or alternatively prior to 15th March, 1977, the date upon which these regulations came into force. Having found that the defendant’s premises did not have the benefit of any such use on either of the dates mentioned and having concluded that the use complained of constituted a material change of use, the learned judge, at pp. 10-11 of the judgment continued:-

‘Because there is no existing permission granted under the Planning Acts to use the subject premises other than as an amenity contiguous or adjacent to the curtilage of a private residence in an area zoned for primarily residential use and because the occupier Mr. Lewis has made applications for permission for retention of use the onus lies on him to establish the facts from which the court could reasonably infer that there has been no such material change of use. This he has failed to do.
From a further consideration of the judgment as to the manner in which the hearing proceeded, it is clear that the defendant assumed the responsibility of bringing the use of his premises within the exempted Regulations. Furthermore, in addition to the passage above quoted the learned trial judge at p. 14 of the judgment reaffirmed his opinion by saying “In my view any change of use from use for such purposes is an unauthorised use unless coming within the provisions for exempted development in either the 1963 Act or the Regulations of Statutory Instrument 65 of 1977. The onus of establishing exemption falls on the Respondents.'”

15. McKechnie J. then continued thus:-
“The decision of Finlay P., as he then was, in Dublin Corporation v. Sullivan, supports in my view, the limited proposition which can be deduced from Lambert v. Lewis. In Sullivan’s case it was admitted that a change of use from a single dwelling unit to a multiple dwelling unit had occurred after the material date. Both parties contended that the other party had the responsibility of establishing that this change of use had occurred after 1st October, 1964. Having expressly agreed with the views of Gannon J. in Lambert v. Lewis, the then President distinguished Sullivan from that case by saying at p. 3 that “… the unauthorised development relied upon by the applicants is an unauthorised change of use and the issue which arises is as to whether it is a prohibited unauthorised change of use not as to whether being a prohibited unauthorised change of use it is the subject matter of the statutory exemption”. In those particular circumstances he was satisfied that the onus rested upon the applicants to prove that the suggested material change of use had occurred after 1st October, 1964. It is therefore clear that Dublin Corporation v. Sullivan was not dealing with an exemption claimed on foot of a statutory provision or on the basis of exempted developments under the Regulations, but rather was concerned solely with the date upon which the admitted change of use had occurred. I therefore do not feel that this decision is on the point at issue in this case, but in any event by the express wording of his judgment, Finlay P., as he then was, agreed with Lambert v. Lewis. See also the decision of O’Caoimh J. in Fingal County Council v. Crean, (Unreported, High Court, 19 October, 2001) in which the learned judge concluded that the onus of proof rested upon the respondents to satisfy the court that the exemption relied upon, being that contained ins. 4(1)(g) of the Act of 1963 applied to the circumstances of that case.

Further support for this position is to be found in the decision of the Supreme Court in Philip Dillon v. Irish Cement Limited, (Unreported, Supreme Court, 26 November, 1986: see para. 2.654 in O’Sullivan and Shepherd, Irish Planning Law and Practice) In that case the net issue was whether the activities of the respondent were exempted under the 1977 Regulations and in particular under Class 34 thereof. Finlay C.J. speaking for the court said:-

‘I am not satisfied that this case comes within Class 34 as an exemption. I am satisfied that in construing the provisions of the Exemption regulations the appropriate approach for a Court is to look upon them as being Regulations which put certain users or proposed development of land into a special and in a sense privileged category. They permit the person who has that in mind to do so without being in the same position as everyone else who seeks to develop land, namely, subject to the opposition or views or interests of adjoining owners or persons concerned with the amenity and general development of the countryside. To that extent I am satisfied that these Regulations should by a court be strictly construed in the sense that for a developer to put himself within them he must be clearly and unambiguously within them in regard to what he proposes to do.’
Whilst it might be suggested that this passage deals more with the method of interpretation rather than with on whom the onus rests, nevertheless I feel, that read as a whole and also by reason of the particular reference to the developer putting himself within the Regulations, the judgment is endorsing the principle stated in Lambert v. Lewis. In addition the court also explains at least in part, the justification for placing this obligation on a respondent when the Regulations are being invoked.
Westport UDC v. Golden [2002] 1 I.L.R.M. 439 is the case most heavily relied upon by the respondents and in their submission is the preferred line of authority on the point at issue. [The relevant passage from the judgment of Morris P. reads] as follows:-

‘I approached this case on the basis that the onus is upon the applicant to establish to the courts satisfaction that one of the matters referred to in s. 27(1) of the 1976 Act has been or is occurring, that is to say that the onus is on the applicants to show that development of land, being development for which a permission is required under Part IV of the Principal Act, has been carried out or is being carried out without such permission or that an unauthorised use is being made of the land.
I do not accept that Dillon v. Irish Cement Ltd. is authority for the proposition that where the respondent seeks to establish an immunity on the grounds that a development is an exempted development under s. 4 of the 1963 Act that he must bring himself within the exemption. Dillon v. Irish Cement was a case in which Finlay C.J. considered that in the particular circumstances of that case and by reason of the unique exemption claimed there was such an onus on the respondent. However in the present case none of these considerations apply.’

The same judge also gave judgment in the earlier case Lennon v. Kingdom Plant Hire Ltd. (Unreported, High Court, Morris P., 13th December, 1991) where one of the issues was whether or not the works in question could be correctly categorised as land reclamation and thus exempt under the then exempting regulations. It would appear that the case proceeded on the basis that the onus of establishing the applicability of the exemption rested upon the respondents and accordingly on that ground can be clearly distinguished from Westport UDC. v. Golden. As a result of this concession there was, of course, no contrary submissions or debate on this point. It can, I think therefore, be accepted that the more concluded view of Morris P. is that as he outlined in the Westport UDC v. Golden decision.”
16. McKechnie J. then summed up thus:-

“In my opinion the stage presently reached is that there is clear preponderance of authority in favour of the proposition that when the development complained of is sought to be excused under cover of either s. 4 of the Act of 2000 or under the exempted developments provisions in the Regulations then the onus of establishing this point is upon he who asserts. In this context I cannot see any difference between the section and the Regulations. I also cannot accept that Lambert v. Lewis can be explained away as being a decision on its own facts and neither can the decision of the Supreme Court in Dillon v. Irish Cement. In reaching this conclusion, however, I am not in anyway suggesting that the onus of proof is not otherwise on the moving party. Such party must therefore satisfy the court by probable evidence of all the other proofs which may be essential to a successful application under s. 160 of the Act of 2000.”
17. It may also be observed that in Pierson v. Keegan Quarries Ltd. [2010] IEHC 404 Irvine J. noted the parties had agreed that “the onus of proof lies upon the party who seeks to rely on a statutory time limit to defeat a claim to prove that assertion”.
18. In the present case the respondent contends that the application is time-barred. It is specifically contended that the Council cannot show that the application was commenced within seven years of the commencement of the development. The present proceedings were commenced on 22nd September, 2009, and the Council can simply show that on diverse dates from 2006 onwards the chalet had been constructed and that mobile homes were on the site. The Council freely admits that it is simply not in a position to prove affirmatively the date on which the development commenced.

19. Here it may be recalled that the seven year time limit is, as we have already seen, simply a matter of defence, not jurisdiction. This means that the application will be regarded as statute-barred only if the respondent elects to raise this defence. In my view, in the light of Fallowvale the onus in this regard rests with her who asserts that this is so, namely, Ms. Fortune. This, however, she has signally failed to do. In particular, she has failed to tell the Court even the approximate dates on which the development commenced, even though this is a matter which of necessity is peculiarly within her own knowledge.

20. Indeed, it could be said that a more general principle of the law of evidence bearing on peculiar knowledge really underlies and explains decisions such as Lambert v. Lewis, Dillon v. Irish Cement and Fallowvale. This is perhaps especially true of matters such as the date of commencement of a particular development as distinct, for example, from the question of whether the development was unauthorised. The latter question lends itself to objective determination by reference to a public register to which the public have access. It is, therefore, not considered unfair or unreasonable that the onus of proof in this regard should – at least in general – rest with the applicant.

21. It is otherwise in the case of the date of commencement of a development. Take, for example, the present case where the chalet was constructed in a wooded area which was not readily visible from a public road or path. How could a planning authority (or, for that matter, a member of the public who sought s. 160 relief) be expected to prove the date on which the development was commenced so that the seven year period might be nicely calculated for the purposes of a limitation period? The chalet might well have been constructed for months or even years before its planning status came into question or matters came to the attention of a body such as the Council. An applicant seeking a s. 160 order would, for example, have no right in advance of the proceedings to demand details of matters such as architects’ drawings or invoices from builders so that the date of completion of the works might perhaps be objectively ascertained, even though, of course, such material might be obtained on discovery.

22. The fact remains, however, that it would be unreal and unduly burdensome on an applicant for relief under s. 160 if he or she were to be expected to carry this burden. This, after all, is the rationale for the peculiar knowledge rule. It represents a practical recognition of life’s realities that certain matters lie almost beyond the beyond the effective capacity of an outsider to prove where they relate to events which are largely personal and private to the other party. An old example is supplied here by the decision of the House of Lords in General Accident Fire and Life Assurance v. Robertson [1909] AC 404. Here the question was when a particular application form for life insurance had been received and registered by an insurance company. This date assumed importance because the insurance company had repudiated liability on the ground that the insured had not died within the twelve months of the registration of the policy and the policy had provided for such a limitation clause. Lord Lorebum L.C. held ([1909] AC 404, 413) that as the specific date on which the company had received and registered “was peculiarly and solely within their knowledge”, the burden of proof lay with them.

23. The precise date on which the development “commenced” is of necessity one such example. “Development” is defined by s. 3 of the Act of 2000 as the “carrying out of any works” on or over land or the “making of any material change in the use of the any structures or other land.” Who but the landowner could be expected to know or prove these facts? A landowner may endeavour to conceal the fact that unauthorised development has taken place or that there has been a change of use on the lands. Is it be said that an applicant for s. 160 relief is effectively to be denied the right to come to court because he or she cannot establish ex ante the precise date on which such a development commenced?
Conclusions on the seven year limitation period issue
24. Put in this fashion these questions effectively answer themselves. I would therefore conclude that because (i) the seven year limitation period is a matter of defence, the onus of proof lies with the party asserting it (in this case, Ms. Fortune) and (ii) by reason of the peculiar knowledge doctrine, the onus in this regard rests in any event with the landowner.

25. It follows, accordingly, that as Ms. Fortune has not informed the Court of the date­ even in approximate terms – on which the building was commenced, she has not established that this application is time-barred by reason of s. 160(6)(a)(i) of the Act of 2000.
The grant of a s. 160 injunction, discretionary factors and Article 40.5
26. There is no real dispute but that the construction of the chalet was unauthorised and that the necessary planning permission for this structure is not in existence. The real question, however, is whether I should exercise my discretion to grant an injunction under s.160. The existence of such a discretion is not really in dispute. It is true that as Barrington J. noted in Stafford v. Roadstone Ltd. [1980] I.L.R.M. 1 the nature of the discretion available to the Court under s. 27(1) of the Local Government (Planning and Development) Act 1976 (the statutory precursor to s. 160) was analogous to that available to a court of equity in an injunction application. There are, of course, some potential differences, since the statutory injunction is really a form of public law enforcement and to that extent the public interest may loom larger here than in the case of its private law cousin.

27. This was recognised by Henchy J. in Morris v. Garvey [1983] I.R. 319,324 where stressing the community’s interests in preserving communal environmental and ecological rights, he went on to observe that:-

“It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality of mere technicality of the infraction, gross or disproportionate hardship or suchlike extenuating or excusing factors) before the Court should refrain from making whatever order….as is ‘necessary to ensure that the development is carried out in conformity with the permission.”‘
28. In recent times this Court has stressed that the discretion is limited in those cases where the infraction is gross and the developer has not acted bona fide. Thus, for example, in Wicklow County Council v. Forest Fencing Ltd. [2007] IEHC 242 Charleton J. observed that the unauthorised development in question was large and substantial:-
“This is a major development for which there is no planning permission. It is a material contravention of the County Wicklow Development Plan. It is built entirely to suit the developer and with almost no reference to legal constraints. I am obliged to decide in favour of the injunctive relief sought.”
30. In Lanigan v. Barry [2008] IEHC 29 Charleton J. also noted that in that case he was required to act:-
“to restrain major breaches of the planning code which have flaunted the legal rights of the community in favour of an unrestrained action that has seriously impacted on the character of a quiet area and the reasonable use by neighbours of their farms and dwelling.”
31. Likewise, in Meath County Council v. Murray [2010] IEHC 254 Edwards J. granted an injunction pursuant to s. 160 requiring the respondents to demolish an enormous dwelling house which was approximately “double the size of the dwelling for which planning permission had [already] been refused … and no planning permission was sought for same prior to its construction.” Having reviewed the case-law, Edwards J. concluded:-
“This is not a case of a minor infraction, or of accidental non-compliance, or of non­ compliance with some technicality. The unauthorised development carried by the respondents was indeed a flagrant breach of the planning laws and completely unjustified. They have sought to drive a coach and four through the planning laws and that cannot be permitted no matter how frustrated they may have felt on account of earlier refusals. While it will undoubtedly constitute an enormous hardship to the respondents to have to demolish their dwelling house, particularly in circumstances where the first named respondent is now a victim of the general downturn in the construction industry and has little work, nevertheless the law must be upheld. Though it gives me absolutely no pleasure to say it, and it is stating the obvious, they have brought this on themselves.
In all the circumstances of the case the Court must accede to the application and grant the relief sought by the applicants. However, the Court is prepared on a humanitarian basis to put a stay on its order of24 months from today’s date in the light of the particularly difficult economic times in which we are living which the Court recognises may make compliance with the Court’s order all the more difficult for the respondents. However, the order must be complied with in full on or before the expiry of the stay.”

32. It may be observed in passing that no argument based on Article 40.5 of the Constitution was advanced in that case. By contrast, this question is central to the present case and this appears to be the first time in which such an argument has been advanced by way of defence in a s. 160 application. I will address the Article 40.5 argument separately.
33. Other factors which might affect the exercise of discretion was whether the developer had relied in good faith on professional advisers (see, e.g., Pierson v. Keegan Quarries Ltd., Altara Developments Ltd. v. Ventola Ltd. [2005] IEHC 312); whether demolition might involve hardship to third parties (Pierson v. Keegan Quarries) or, indeed, hardship to the developer himself or herself. Normally, however, as the decisions of Henchy J. in Morris, Irvine J. in Pierson and that of Edwards J. in Murray all illustrate, courts are generally unsympathetic to the hardship which was eminently foreseeable and which results from the culpable behaviour of the developer and landowner in question.

34. If one applied the existing case-law to the present case, however, it may be observed that unlike the circumstances disclosed in cases such as Forest Fencing, Lanigan and Murray, Ms. Fortune has not engaged in a large scale construction project which manifestly violated proper planning and development considerations. Nor does the dwelling impact on the rights and amenities of her neighbours, unlike the situation disclosed in cases such as Lanigan and Pierson. At the same time, while it is true that there were extenuating circumstances- after all Ms. Fortune found herself with young children (and few resources) who she considered might best be raised in an extended family environment in a rural setting – it must be concluded that, objectively speaking, the development was not bona fide. After all, Ms. Fortune elected to build a dwelling in an area of high amenity in circumstances where she must have known that planning permission was required. Were it not for the constitutional argument, I would have been inclined to adopt the same approach as did Edwards J. in Murray, i.e., grant the injunction, albeit subject to a two year stay.

35. We may now turn to examine the constitutional argument. A key feature of Mr. Bradley’s argument was that no injunction could or should be granted as this would infringe the guarantee of inviolability attaching to the dwelling as provided for in Article 40.5 of the Constitution. While this argument may well have been prompted by the fresh emphasis given to Article 40.5 by recent decisions such as Damache v. Director of Public Prosecution [2011] IESC 11 and The People (Director of Public Prosecutions) v. Cunningham [2011] IECCA 64, there is nevertheless no basis at all for the suggestion that Article 40.5 should be confined in its application to the sphere of criminal law and criminal procedure. As is highlighted by the judgment which I am also giving today in the quite separate and different case of Sullivan v. Boylan, the guarantee of “inviolability” of the dwelling in Article 40.5 is a free standing, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike.

36. It is also true that, as counsel for the planning authority, Mr. Sheridan readily acknowledged, in this respect Article 40.5 goes further than the parallel guarantee in Article 8(1) ECHR (which provides that everyone has the right “to respect for. …his home and correspondence…”). It follows that some weight must be accorded to the more emphatic language used by the constitutional provision. As I observed in EA v. Minister for Justice and Equality [2012] IEHC371 when contrasting the language of Article 41 on the one hand with Article 8 ECHR on the other:-

“Moreover, it must be recalled that while Article 8 ECHR simply guarantees the right “to respect” for family life, some weight must be given to the even more emphatic description of family rights contained in Article 41 -“inalienable and imprescriptible”- even if those rights are not, of course, to be regarded as absolute.”
37. It seems to me that the passage also applies by analogy to the issue in the present case. It may be recalled in passing, however, that the European Court of Human Rights has stressed that the demolition of or removal of a dwelling by a public authority engages the respect for the private house provided for in Article 8(1)ECHR. The decision making process here must be fair “and afford due respect to the interests safeguarded to the individual by Article 8”: see, e.g., Chapman v. United Kingdom [2011] ECHR 43, Horie v. United Kingdom [2011] ECHR 289.
38. It is also true that there are some legal contexts in which the word “inviolable” might bear the interpretation which Mr. Bradley S.C. has urged upon me. Thus, for example, Article 22(1) of the Vienna Convention on Diplomatic Relations (which is given the force of law by s. 5(1) of the Diplomatic Relations and Immunities Act 1967) provides that:-

“The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.”
39. The use of the word “inviolable” in that special and particular context might suggest something close to an absolute level of protection, although it might be a nice legal question as to whether a planning authority would be entitled to obtain a s. 160 injunction in circumstances where, for example, it transpired that a diplomatic mission had built an embassy premises without the requisite planning permission.
40. Yet the Constitution cannot be interpreted in such a desiccated fashion, divorced entirely from the context and object of the constitutional provision in question. If Mr. Bradley S.C.’s argument were correct, it 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.

41. At the same time, Article 40.5 affords a real protection which the courts must safeguard by word and deed. Insofar as the 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. In the planning context, this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is “inviolable”. It rather means that the courts should not exercise the s. 160 jurisdiction in such a manner so as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and, adapting the language of the European Court of Human Rights (in an admittedly different context) in Goodwin v. United Kingdom (1996) 22 EHRR 123, the case for such a drastic step is convincingly established.
Conclusions on the s. 160 and Article 40.5 issues
42. In this regard, it is not simply enough for the applicant Council to show – as, indeed, it already has – that the structure is unauthorised or that the householder has drawn these difficulties upon herself by proceeding to construct the dwelling without planning permission. It would be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detracted from an area of high natural beauty or presented a real and immediate traffic or fire hazard or the structure in question so manifestly violated the appropriate development plan that the homeowner had no realistic prospect of ever securing permission in respect of the dwelling.

43. Given the novelty of the point and, in particular, the fact that the critical Article 40.5 issue was highlighted only in the wake of the Supreme Court’s decision in Damache (which decision long post-dated the commencement of these proceedings), I propose to adjourn the question of whether this particular unauthorised dwelling should be demolished for further argument in the light of this judgment. I will, if necessary, allow both sides to adduce further evidence on the question of whether the necessity for a demolition order pursuant to s. 160(1) has, in fact, been convincingly established.

 

Wicklow County Council v Fortune (No. 2)

[2013] IEHC 255

JUDGMENT of Mr. Justice Hogan delivered on 6th June, 2013

1. To those unversed to the sometimes haphazard manner by which legal doctrine and jurisprudence can evolve, it may seem remarkable that a Supreme Court decision concerning the power of Gardaí to issue search warrants in respect of a private dwelling (Damache v. Director of Public Prosecutions [2012] IESC 12, [2012] 2 I.L.R.M. 153) should have potentially far-reaching consequences in areas of civil law far removed from the criminal sphere, such as planning law. Yet perhaps it required a decision of this magnitude to illustrate that which in itself ought to have been obvious over the last 75 years or so, namely, that Article 40.5 of the Constitution ensures that the dwelling must be safeguarded in an extensive manner as befits a free and democratic society.

2. As Hardiman J. observed in one of the first post-Damache decisions, namely, The People v. O’Brien [2012] IECCA 68:

“….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.”
3. As I pointed out in my first judgment in this matter, Wicklow County Council v. Fortune (No.1) [2012] IEHC 406, these developments from Damache onwards compel us to conduct a complete re-appraisal of even familiar features of the legal system – including the operation of the planning laws – insofar as they impact on the private dwelling. This is the first case in which Article 40.5 has been relied on in a case of this kind, as remarkable as it may seem, the issue has never previously been raised – much less decided – in any application brought under s.160 of the 2000 Act in order to seek the demolition of a dwelling for non-compliance with the planning laws.
4. In that respect, the test previously articulated in cases such as Morris v. Garvey [1983] I.R. 319 (which, of course, concerned the precursor to the present s. 160, namely, s. 27 of the Local Government (Planning and Development) Act 1976) has accordingly to be recalibrated in the light of Damache and, indeed, the modern case-law regarding proportionality and the protection of constitutional rights..

5. It must also be recalled that the making of a s.160 order would have far-reaching implications for the property rights of the owner of the property, as she would in effect be required by judicial order to demolish her own house (albeit one which was illegally constructed) without compensation. It is manifest from a series of decisions ranging from Heaney v. Ireland [1994] 3 I.R. 590 to Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 that the exercise of any such judicial power would also have to satisfy a proportionality test, not least given that the making of such an order would, at least, in the context of a case such as the present one significantly affect constitutional rights, not least the inviolability of the dwelling (Article 40.5) and the protection of property (Article 40.3.2). Of course, the proportionality at issue here is not simply proportionality in the narrow sense understood by Henchy J. in Morris v. Garvey of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, the whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.

6. This brings us then to the principal issue which arises at this stage of this appeal from the Circuit Court, namely, under what circumstances should a court order the demolition of an unauthorised dwelling pursuant to s. 160 of the Planning and Development Act 2000 (“the 2000 Act”)?

7. The basic facts of this case are set out in my first judgment in Fortune (No.1). In that case I found that the defendant had at some stage in the last 13 to 14 years constructed a small timber frame chalet of approximately 70sqm in size in a wooded area of high natural beauty near Lough Dan, County Wicklow. While this is her only home, it is nonetheless important to stress that this structure is entirely unlawful since in my first judgment I found that it had been constructed without the necessary planning permission. In the course of that judgment I also ruled that this application by Wicklow County Council pursuant to s. 160 of the 2000 Act was not time barred by reason of the operation of s. 160(6)(a)(i) of the 2000 Act.

8. In the course of preparing this judgment I had the occasion to visit the site. This was done with the consent of the parties. The site itself is close to a country road which is often used by hill-walkers on their way to Lough Dan and a major scout centre lies about 1km. distant. The site is completely hidden and obscured from the road and it is accessed only by traveling up a unpaved country lane for perhaps some 200 metres and then turning off that lane. A deep forest lies on the other side of the lane. While this to some degree is a matter of subjective observation, I found that the chalet was tastefully constructed. The chalet certainly does not impinge on the amenities or aspect of any other landowner or local inhabitant.

9. The central part of the defendant’s case was that the demolition of the applicant’s dwelling would compromise her constitutional guarantee under Article 40.5 of the Constitution safeguarding the inviolability of the dwelling. In that earlier judgment I rejected the argument that Article 40.5 conferred a complete immunity from legal action of this nature in the manner which had been contended by the defendant. In that regard I observed:-

“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 appropriate enforcement by invoking Article 40.5.”
10. I then proceeded on to posit the following test:-
“At the same time, Article 40.5 affords real protection which the courts must safeguard by word and deed. 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…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 modern society. In a planning context, this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is ‘inviolable’. It rather means that the courts should not exercise the s. 160 jurisdiction in such a manner as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and…the case for such a drastic step is convincingly established.”
11. I then concluding by observing:-
“In this regard, it is not simply enough for the applicant council to show that – as, indeed, it really has – that the structure is unauthorised or that the householder has drawn these difficulties upon herself by proceeding to construct the dwelling without planning permission. It will be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detract from an area of high natural beauty or present a real and immediate traffic or fire hazard or the structure in question so manifestly violated the appropriate development plan that the home owner had no realistic prospect of ever securing permission in respect of the dwelling.”
Given the novelty of the argument based on Article 40.5 in this particular context, I then decided to adjourn the proceedings to enable the parties to make further submissions and to introduce such further evidence as they saw fit. The parties have accordingly availed of this opportunity and this judgment then addresses the distinct question of whether the court should now grant an order compelling the defendant to remove the unauthorised dwelling in the light of the principles which had been set out in that first judgment.
12. Wicklow County Council have advanced essentially three arguments as to why it would be inappropriate for this Court not to grant the order sought. First, it is said that failure to make such an order would undermine the effective protection of the environment provided for under the 2000 Act and, in essence, simultaneously reward Ms. Fortune for having unlawfully constructed this dwelling house. Second, it is said that the very fact that Ms. Fortune could continue to live in this unauthorised dwelling would itself serve as a precedent in terms of future applications for planning permission in the general vicinity, thus undermining the strict planning regime which obtains in this area of great scenic beauty. Third, it is contended that a failure to grant such a relief would compromise the status of the Wicklow Mountains candidate special area of conservation which is immediately adjoining to Ms. Fortune’s site. We can now proceed to examine these individual arguments in order to examine whether, individually or collectively, they satisfy the standard which I ventured to articulate in Fortune (No.1).
Undermining the effective protection of the environment
13. The Council contends that in the event that no injunction were to be granted that Ms. Fortune would effectively be rewarded for her disregard of the planning laws and that the effective protection of the environment would be compromised as a result. While this is an important and weighty consideration, it is important to bear in mind that I have already declared Ms. Fortune’s chalet to be an unauthorised structure. For as long as it remains unauthorised, the property is effectively unsaleable and cannot be used as security for any lending purposes. This in itself should operate as a deterrent to those who would otherwise wish to break the law.
The precedential status of the unauthorised dwelling
14. So far as this ground is concerned, counsel for the Council, Mr. Connolly S.C., points to the fact that previous decisions of a planning authority or that of An Bord Pleanála may be relevant to subsequent planning applications. There is no doubt but that in practice the fact that planning permission has been granted in respect of a particular development is a potentially relevant consideration so far as future planning decisions are concerned. This is reinforced by s. 37(2)(b)(iv) of the 2000 Act which permits An Bord Pleanála to overturn a decision of the planning authority to refuse an application for planning permission on the grounds that a proposed development materially contravenes the development plan where the Board considers permission for the proposed development should be granted having regard “to the pattern of development, and permissions granted, in the area since the making of the development plan.”

15. But the reference here is to “pattern of development”, so that the context refers to the manner in which the local area has evolved since the making of the development plan. This is re-inforced by the use of the words “permissions granted”, so the entire context presupposes that the Board must have regard only to developments that have lawfully taken place since the making of the development plan which would then justify the Board departing from the terms of that plan. Ms. Fortune’s chalet does not fit into this category, since it was unlawfully erected and it is plain that when considering any future application for planning permission by reference to s. 37(2)(b)(iv) of the 2000 Act the Board could not properly pay any regard to the existence of this chalet, at least so far as the operation of this specific sub-section is concerned.

16. In this context, Mr. Connolly S.C. also laid some emphasis on the decision of His Honour Judge Gilbart Q.C. in McCarthy v. Secretary of State for Communities and Local Government [2006] EWHC 3287:-

“Mr Richards and Mr Willers said that a distinction should be drawn between other lawful development and other unlawful development, on the basis that steps can be taken to remove the latter, and that it would be wrong to regard the prospect of unlawful development as a material consideration in deciding whether to grant a permission.
I do not accept that argument. The reason why the setting of a precedent is a potentially material consideration is because it may lead to events occurring which have effects which are of significance in planning terms, such as an effect on the appearance of the area, on its amenities, on the use of facilities, on highway safety or on other planning considerations. If such effects would be harmful, the decision maker is entitled to take them into account as material considerations, which could, in appropriate cases, justify refusal. Why must it be any different if such development were unauthorised? Unauthorised development can itself affect the appearance of an area, or the use of the local road network, or in the case of unauthorised residential development, the provision or take up of services in an area. It would be illogical if such potential consequences were prevented from being material even if the decision maker had concluded that such events and effects were likely. Of course there may be arguments to be made to the decision maker on whether the same weight should be attached to the potential for unauthorised development, because steps can be taken to seek its removal, but that is not to deprive it of potential relevance as a material consideration, and matters of weight are for the decision maker and not for this Court.

The principle is a potentially important one. Mr Richards and Mr Willers argue that the unlawful acts of others cannot be regarded as a consequence of a grant of permission, so that their being made more likely would be an immaterial consideration. If they are right, an Inspector or planning authority would be prevented (for example) from rejecting a retail service access arrangement whose defect was that it would encourage illegal parking, or from imposing a condition on a quarrying consent to take steps to erect fences or barriers to prevent others from fly-tipping. I regard that as not only unrealistic, but also quite out of step with the everyday experience of development control.

In my judgement the Secretary of State and Inspector were both quite entitled to consider whether the grant of a permission would lead to the attraction of more caravans to unauthorised plots within Smithy Fen, and if so whether the consequences would cause harm, and what weight they should give that factor. I am satisfied also that the Inspector and Secretary of State had material before them to permit a finding that the grant of permission for one or more of the plots applied for would have such effects.”

17. If I may respectfully say so, I think that Mr. Connolly S.C. has read too much into that decision. It merely decides that a planning authority is entitled to have regard to the fact that the grant of permission would be likely to attract a higher degree of unauthorised use from third parties. That is not the same as saying that the fact that one dwelling has been constructed in an unauthorised fashion (and, moreover, has been judicially declared to be unauthorised) is a relevant factor in determining whether another should lawfully obtain planning permission.
18. The evidence before me suggests that there may well be some five or six other unauthorised developments situate in close proximity to the defendant. It must be stressed, however, that the persons who are living in what are said to be unauthorised developments are not before the court. They would have to be heard on the question as to whether their own inidvidual house was unauthorised. It might also be the case that even if that had been the case at some stage they could plead the seven year limitation period in order to resist any enforcement action.

19. The Council’s acting senior planner, Ms. Walsh, makes the point in her affidavit that different considerations might well apply to the presence of a small cluster of unauthorised developments, the existence of which might present a greater environmental danger as distinct from the case of one single unauthorised dwelling. That is undoubtedly so. But I am concerned solely with the case of Ms. Fortune alone and I must consider this case on its own individual merits. Different considerations may well apply to other developments, depending, of course, on their individual circumstances of which we have presently but imperfect knowledge.
Special area of conservation
20. There is no doubt but that Ms. Fortune’s dwelling is situate in an area of outstanding natural beauty beloved of hill-walkers in the Wicklow uplands. The chalet is, as I have indicated, only a few minutes walk from a mountain road. If one continues on this road for perhaps another 2km, it leads to a hiking path from which one can first gaze down upon Lough Dan and across then to Luggala with Djouce Mountain further in the distance. It is not surprising that this area enjoys the highest level of protection under the Wicklow County Development Plan.

21. It would appear from the affidavit of Ms. Walsh that the chalet lies about 240m distant from the boundaries of a Natura 2000 protected site which has been designated as such under the Habitats Directive. It would seem equally clear that were Ms. Fortune to apply afresh for planning permission, the planning authority would have to carry out a screening for an appropriate assessment of the proposal to assess if the proposed development “individually or in combination with another plan or project” is likely to have a significant effect on the relevant European site: see s. 177U(1) of the 2000 Act (as amended). It is accordingly likely that in the event that such an application was made that a screening report would have to be carried out, so that a detailed assessment of whether the project or structure upon the Natura 2000 site.

22. All of this is doubtless true, yet much of this argument remains purely theoretical. Ms. Fortune has been in occupation on the site itself since 1999 and the chalet has been constructed at some point thereafter, even if as I pointed out in the first judgment, Ms. Fortune has not actually told the court forward the precise dates on which this happened. At all events, it is clear that the chalet has been in existence for perhaps the best part of a decade. Yet no concrete evidence has been advanced by the Council to show that her occupation of the dwelling has had or is likely to have any appreciable effect on the Natura 2000 site.
Effluent treatment system
23. It would appear that Ms. Fortune installed an effluent system in 2006 with a reed bed and a septic tank. According to an affidavit sworn by Mr. Paul Brophy, a senior planning official within the Council, this system was installed without the benefit of planning permission and it is seriously defective, albeit that it was certified by the company which installed it. In passing it should be observed that planning permission for this effluent treatment system was refused by the Council in August 2007 on the ground that there was no evidence that the site was “suitable for septic tank effluent percolation”. This refusal was part of a series of applications for retention permission brought by Ms. Fortune (which included an application in respect of the chalet). It is of some interest that on the second occasion that she was refused in March 2008 this ground was not mentioned.

24. At all events, the objections raised by Mr. Brophy can scarcely be seriously disputed. Indeed, a report prepared for Ms. Fortune by O’Sullivan Scientific Ltd. in January 2008 acknowledged that this system as installed did not meet with the (then existing) Environmental Protection Agency guidelines. This was in part because the reed bed should be at least 40 sqm in dimension rather than the existing 25m², the use of a meshed material beneath the gravel rather than a liner to contain the effluent and the absence of soil polishing filter. O’Sullivan Scientific concluded that provided that the system was “constructed properly, it will work well regardless of house occupancy”.

25. Mr. Brophy expressed concern that due to these deficiencies:

“…the likelihood is that groundwater will flood any percolation area or filter system…or cause the septic tank and distribution box which feeds effluent to the percolation area to float. This will result in untreated effluent entering the groundwater directly causing contamination.”
26. The operation of this effluent treatment system is external to the dwelling itself and is not, as such, comprised within the scope of the constitutional guarantee itself. In these circumstances, the Council are entitled to an order (which would have to be made subject to a suitable stay) requiring Ms. Fortune to operate the effluent system in a manner compatible with existing EPA guidelines. I would invite counsel to address the form of order best appropriate to achieving this objective.
Conclusions
27. It is at this juncture that we can return to the fundamental question, namely, has the case for an order requiring the demolition of the chalet been convincingly established? To my mind, it has not. If I might venture to re-state the test I posed at the conclusion of my judgment in Fortune (No. 1):-

“It would be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detracted from an area of high natural beauty or presented a real and immediate traffic or fire hazard or the structure in question so manifestly violated the appropriate development plan that the homeowner had no realistic prospect of ever securing permission in respect of the dwelling.”
28. It is plain from what I have already narrated that Ms. Fortune’s chalet does not jeopardise or threaten the rights or amenities of other parties. While it is located close to an area of outstanding natural beauty, it cannot be said that the chalet, entirely hidden away from view as it is, detracts from any of the great vistas which are one of the glories of the Wicklow uplands. It is true that the Council refused retention permission on the ground of the “narrow width and the poor alignment and unsurfaced nature of the road network” and this ground of objection was upheld by the Board on appeal, it cannot nonetheless be said that the entrance presents “a real and immediate traffic…hazard” in the sense envisaged in my first judgment. I must stress here that I am not here for one instant questioning the conclusions of the Board in this regard. That is not my function and I could not, in any event, claim to have the necessary expertise to make such an assessment.
29. Yet in evaluating whether the case for demolition has been convincingly established, some measure of realism must also enter the equation. Even though the lane leading to the site (which I found to be just over 4m. wide) was unsurfaced, it was otherwise in good condition. The volume of traffic using the lane is obviously small. The actual entrance to Ms. Fortune’s site was nevertheless some 12m. wide and the view of the driver of any vehicle entering or exiting the site was not obscured in any significant way in either direction.

30. While the planning specialist could doubtless discern the existence of a potential traffic hazard, the same could be said of virtually every country road and botharín in the entire county of Wicklow. If this were the test, the same objection could be levelled in respect of virtually every rural dweller in the county, nearly all of whose dwellings lead onto small country roads and lanes, many of them with even less room for manoeuvre and more restricted sight lines than I could discern in the present case. In these circumstances, one does not need to be a planning or traffic specialist to see that the site does not present a real and immediate traffic hazard in the sense which I had envisaged in the first judgment.

31. As, moreover, I have already indicated, the Council’s argument based on moral hazard and rewarding those who take the law into their own hands is diluted by the fact that I have already declared the structure to be unauthorised. This, in itself, should act as a deterrent to those who might otherwise take the law into their own hands. Nor is the argument based on precedent compelling, since as I have pointed out, the planning authorities could not be obliged to take account of unauthorised structures in assessing whether to grant planning permission to third parties seeking to develop in the locality. Nor has any compelling evidence been advanced that the site would compromise the protection of the Natura 2000 site.

32. None of this is to suggest that the arguments advanced by the Council are not important and weighty. In other cases, arguments of this kind might well prevail. But in the end I cannot ignore the solemn words of Article 40.5 which this Court is committed to uphold. The making of a s. 160 order on the particular facts of the present case would represent a drastic interference with the inviolability of the dwelling and with Ms. Fortune’s property rights. If I may re-echo that which I already said in Fortune (No.1), such an order could only be justified if compelling evidence requiring such a step had been advanced by the Council. As, for the reasons I have ventured to set out, I am not satisfied that such compelling evidence has been advanced, I will refuse to make the order requiring the demolition of the chalet. I will, however, make an order requiring Ms. Fortune to operate the effluent system which is external to the dwelling in a manner compatible with existing EPA guidelines.

A.O -v- Minister for Justice, Equality and Law Reform, Ireland and the Attorney General (No. 3)

[2012] IEHC 104 (
JUDGMENT of Mr. Justice Hogan delivered on 3rd April, 2012
1. This is now the third judgment which I am required to give in these judicial review proceedings involving the applicant, Mr. O. In the first judgment (AO v. Minister for Justice and Law Reform [2012] IEHC 1) I set aside the original grant of leave to apply for judicial review by reason of material non-disclosure. In the second judgment (AO v. Minister for Justice and Law Reform (No.2) [2012] IEHC) I grant a limited interlocutory injunction such as would enable the applicant to apply to the District Court for access in respect of his infant daughter. The applicant now seeks to leave to apply for judicial review and, furthermore, seeks an interlocutory injunction restraining the respondent Minister from deporting him during the minority of his daughter.

2. The facts, so far as relevant, must now be briefly re-stated. The applicant is a Nigerian national who arrived in the State on a flight from Bratislava in March 2009. He was found by the immigration authorities at Dublin airport to be in possession of a stolen Nigerian passport and an Austrian identity card. The applicant subsequently pleaded guilty before the Cloverhill District Court to being in possession of stolen property whereupon he received a six month sentence.

3. The applicant had claimed asylum upon his arrival in the State. The claim was rejected by the Refugee Appeal Tribunal on 25th November 2009 on the ground that his account of likely persecution was not credible. A claim for subsidiary protection was also rejected on 9th August 2011 and the applicant was then informed that the Minister had made a decision to deport him (advance warning of this possibility having previously been communicated to him in January 2010).

4. The applicant then sought to have the deportation order revoked pursuant to s.3(11) of the Immigration Act 1999 (“the Act of 1999”) on the ground that he had two Irish citizen children. One those children lives with her mother, Ms. B., in the United Kingdom, from which the applicant has been excluded by reason of an earlier conviction for dishonesty. The applicant has limited contact with that child and the position of that child can be disregarded so far as the present application for leave to apply for judicial review and injunction application is concerned.

5. The other child, Baby C., was born in December 2010. She was born to Ms. K., an Irish citizen. Ms. K. is professionally qualified and she spends approximately two weeks each month in the United Kingdom. She formed a romantic relationship with the applicant and she found herself pregnant in April 2010. There is a factual dispute as to whether the pregnancy was (or was not) planned, but it seems that the relationship foundered at this point when Ms. K. found what she claimed were compromising messages from another female on his mobile telephone.

6. While Mr. O. sought guardianship and access to the child in March 2011 , Ms. K. regards these applications as entirely opportunistic and as merely a tactic so that his paternity of the child can be used to his advantage for immigration purposes. She further maintains that the first endeavours by him to seek such access came after the publicity surrounding the decision of the Court of Justice on 8th June 2000 in Case C- 34/08 [2011] E.C.R. 1-000, a point which, if correct, tends to re-inforce her contention that Mr.O.’s endeavours in this regard are purely self-serving and tactical.

7. As things stand, therefore, there seems very little prospect that Ms. K. and Mr. O. can be reconciled, not least given that the distressing circumstances of the break-up of the relationship. Nor is there any prospect that Ms. K. would follow Mr. O. to Nigeria or that she would have any inclination to visit him there. The stark reality, therefore, is that in the event that Mr. O. were deported, Baby C. would have no contact whatever with him and there is every likelihood that she would never again see her father during her childhood.

8. It is against this general background that the applicant advances a variety of different ground s in his application for leave and an injunction. Some of these grounds relate to his own personal circumstances (such as, for example, the challenge to the subsidiary protection decision), while the majority of the arguments are directed at the question of his access to Baby C. We may now consider these arguments in turn. Having evaluated these arguments, I will then exam ine the question of whether it would be appropriate to grant an injunction.
The subsidiary protection argument
9. The applicant maintains that the Minister breached the requirements of Article 4(1 ) of the Qualification Directive, Directive 2004/83/EC in that he contends that the Minister was obliged to submit a draft ad verse decision to him for his comments prior to the final decision being taken. The applicant had contended that he had been engaged to a Muslim woman, but that he had fled Nigeria as a result of threats from third parties who objected to the fact that she was marrying a Christi an and that his fiancée had been murdered in the process. The Minister had rejected the claim on the basis that Nigeria had a functioning police force, but that applicant says that he did endeavour to seek police protection and that it was unavailing.

10. As the parties themselves acknowledge, this issue is likely to be determined by the outcome of the decision of the Court of Justice in Case C-277/11 MM. The oral hearing in that case took place on 28th March 2012 and a judgment is anticipated later this calendar year. In these circumstances, I propose to adjourn this application for leave pending the outcome of that judgment.
Article 39 of the Procedures Directive and judicial review as an adequate remedy
11. The applicant further contends that the fact that there is no right of appeal against the refusal of subsidiary protection amounts to a denial or his right to an effective remedy as guaranteed by Article 39 or the Procedures Directive. While Article 39 applies to applicants for asylum, the clear intent of the Union legislator is that these procedures should also apply to applications for international protection such as subsidiary protection: see Article 3(3). It would appear that Ireland is the only country to maintain a dual system of protection (i.e., so that the applications for asylum and subsidiary protection are examined separately) so that in this particular situation Article 39 does not apply.

12. This issue was comprehensively addressed by Cooke J. in A. v. Minister for Justice and Equality [2011) IEHC 381 where he observed:-

“13. …the Procedures Directive applies only to the procedures employed by the Member States in processing claims for refugee status (asylum claims) except where, as provided for in Article 3(3), a Member State employs a form of unified procedure for the processing of joint applications for both forms of international protection. The scope of the Procedures Directive is defined in Article 3(1): “This Directive shall apply to all applications for asylum made in the territory, including at the border or in the transit zones of the Member States, and to the withdrawal of refugee status”. Article 3(3) then provides:

“Where Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 of [the Qualifications Directive] they shall apply this Directive throughout their procedure.”

14. Accordingly, except where a Member State employs a single or unified procedure covering both forms of protection, the Procedures Directive imposes no minimum procedural standards in respect of the processing of applications for subsidiary protection.
15. In a report to the European Parliament and the Council on the application of the Procedures Directive in 201 0 (Brussels 8/9/1 0 COM(201 0) 465 final) the European Commission pointed out that all Member States other than Ireland had put in place such a single procedure for the processing and determining of both applications for refugee status and subsidiary protection usually with a single determining authority for both. As the Court also pointed out in the above judgment, such a unified procedure is optional and Ireland has not been under any legal obligation to employ it. It follows that the “right to an effective remedy” conferred by Article 39 of the Procedures Directive applies only to appeals against decisions listed therein, all of which are decisions taken in the course of the asylum process. It is only where a single procedure for both forms of international protection is employed that Article 39 has the effect of extending the right to an appeal to the subsidiary protection procedure by virtue of Article 3.3. fn effect, what is provided for and what appears to occur in all Member States other than this one, is that the examination and assessment of the asylum claim simultaneously forms the basis of analysis and assessment of the application for subsidiary protection. Where an asylum claim is rejected because of, for example, the lack of nexus to a Convention persecution reason, the same determining authority considers whether the claim as made nevertheless qualifies for subsidiary protection. The criteria for qualification for subsidiary protection are applied to the same facts, personal history and conditions that have been found established in assessment of the asylum claim.”

13. It is thus clear that Article 39 does not apply to applications for subsidiary protect ion. Even if it did, I consider that judicial review remains a perfectly adequate remedy in this context for all the reasons I set out in my judgment in Efe v. Minister for Justice, Equality and Law Reform [2011] I EHC 214. On a n application for judicial review, the Court can control for vires, reasonableness, rationality and material error of fact on the part of a decision maker adjudicating subsidiary protection applications.
14. Contrary to the argument advanced by Mr. O’Shea for the applicant, that conclusion is not, I think, fundamentally affected by the recent judgment of the Supreme Court in Donegan v. Dublin City Council [2012] IESC a case where the Court granted the applicant a declaration of incompatibility under s. 5(2) of the European Court of Human Rights Act 2003 in respect of s. 62 of the Housing Act 1966. As it clear from the terms of the section, the District Court was obliged to make the order granting a local authority possession of a dwelling “once [the District Court judge] is satisfied that the demand mention in the said subsection (1) has been duly made, issue the warrant.” In The State (0’Rourke) v. Kelly [1983] IR 58 the Supreme Court confirmed that this imposed a mandatory obligation on the District Court to make the order sought once the statutory proofs were established to the Court’s satisfaction. The Court, in an unreserved judgment, rejected a challenge to the constitutionality of the section on the ground that it constituted an impermissible invasion of the judicial function.

15. To modern eyes the case which was made by the applicant in 0’Rourke would seems a remarkably narrow basis on which to mount a constitutional challenge. The section seems distinctly vulnerable to challenge on a variety of other quite different constitutional grounds. How could, for example, such a rudimentary procedure allowing for the termination of a tenancy in a dwelling seem compatible with protection of the inviolability of dwelling, save in accordance with law as provided for by Article 40.5? This is especially so where the law interfering with that right must respect fundamental constitutional values and the principle of proportionality as the Supreme Court so recently confirmed in (an admittedly different) context in Damache v. Director of Public Prosecutions [2012] IESC 11 .One might likewise contend that this summary procedure violated the guarantee of fair procedures in that the Court was effectively precluded from taking account of a range of factors which ought objectively to have been relevant to the question of whether the tenancy ought to be summarily terminated. This might include factors such as the length of the tenancy, any improvements made by the tenant and the tenant’s compliance with his or her obligations under the lease.

16. Be that as it may, the key point is that section 62 was found by the Supreme Court in Donegan to be inherently flawed and incapable of giving either substantive or procedural protections vis-a-vis the tenant’s Article 8 ECHR rights. As McKechnie J. observed (at para. 1 28):-

“When considering the adequacy of judicial review as a sufficient safeguard in the context it must be done by reference to the s. 62 application; the question is whether judicial review will provide a sufficient safeguard against a n interference by virtue of the provisions of that section. In this regard, it is patently clear that it could not. ..Certainly the court, on judicial review could not enter into an assessment of the facts of personal circumstances behind the application- such matters are not even within the consideration of the District Court Judge. Judicial review of s. 62 application could in no way be capable of resolving a conflict of fact between the Council and a person subject to the application.”
17. By contrast, the position with regard to subsidiary protect ion is quite different. Unlike s. 62 of Housing Act, the European Communities (Eligibility for Protection) Regulations 2006 impose no such artificial limitations upon the decision maker who is required to arrive at the decision untrammelled by any such a priori constraints. The applicant presents the case for subsidiary protection and the decision maker must take all relevant considerations into account.
18. As McKechnie J. made clear in Donegan, the question of the adequacy of judicial review cannot be evaluated in the abstract, but rather depends on the general statutory context against which the remedy of judicial review i s required to operate. If – as was the case with s. 62 of the 1966 Act- the statute contains in-built substantive limitations on the scope of review, then judicial review cannot (o r, at l east, is unlikely to be) a mount to an adequate remedy, since judicial review cannot, so to speak, vault over those legislative limitations. But where such limitations exist, the normal remedy is to challenge the constitutionality of the provision, see, e.g., White v. Dublin City Council [2004] IESC 35, [2004] 1 IR 545, Blehein v. Minister for Health and Children [2008] IESC 40, [2009] 1 IR 275.

19. I mention these considerations simply to show the exceptional nature of statutory provision at issue in Donegan and why the observations of McKechnie J. must be understood against that background.

20. Given that the 2006 Regulations contain no such in-built limitations, then I would respectfully adhere to the views I expressed in Efe and would venture to suggest that the conclusions which I reached in that case have not been altered so far as asylum and immigration matters are concerned by the observations of McKechnie J. in Donegan. It follows accordingly that I would refuse to grant the applicant leave to challenge on both the Article 39 ground and the adequacy of judicial review ground.
Whether the applicant is entitled rely on Ruiz-Zambrano and also to invoke the EU Charter of Fundamental Rights
21. The applicant now seeks to invoke two divergent streams of European Un ion law in order to stay the enforcement of the deportation order. The first line of argument is based on Baby C.’s citizenship of the Union as recognised by Article 20TFEU, whereas the second argument concerns Article 24 of the EU Charter of Fundamental Rights.

22. While it has to be acknowledged that this argument was not pressed strongly on this occasion at least, it seems appropriate to deal with it nonetheless. So far as Article 20TFEU is concerned, this was interpreted by the Court of Justice in Case C- 34/08 Ruiz-Zambrano [2011] E.C.R. I-000 as meaning that a Member State could not take action against a third party national with dependent minor children in that Member State where those children are also EU citizens and reside if this had the effect of obliging such children to leave the territory of the Un ion. As I explained at greater length in my judgment in AO (No.2), the applicant cannot realistically invoke Ruiz-Zambrano in the present case. Baby C. is not dependent on Mr. O. (who, in any event, has not contributed to the child ‘s upkeep) and, as an Irish citizen, her right (and that of her mother, Ms. Y.) to reside in Ireland derives from Article 9 of the Constitution and not at all from European Union law. Nor is there any prospect that Baby C. will be obliged to leave the territory of the Union even if Mr. O. were to be deported.

23. I n these circumstances, I do not think that Mr. O. can establish substantial grounds by which the execution of the deportation order can be stayed on Ruiz­ Zambrano grounds and I would accordingly refuse to grant leave to apply for judicial review on this ground.

24. The applicant further relies on Article 24(3) of the EU Chatter of Fundamental Rights which provides that:-

“Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her interests, unless that is contrary to his or her interests.” (emphasis supplied)
25. It is difficult to disagree with Mr. O’Shea’s submission to the effect that if Mr.0. is deported it would be difficult to see how Baby C could maintain any personal relationship with her father or have any direct contact with him were he to be deported to Nigeria. Indeed, given the nature of the estrangement between her parents, the (relative) inaccessibility of that country from Ireland and the potentially indefinite nature of any deportation order, the stark probability is that, as we have already noted, Baby C. will never see him again.
26. Nor can it presently be said that permitting supervised access to Baby C. on the part of Mr. O. would be contrary to her interests. It is true that Mr. O. has a criminal conviction and that in the course of his ruling on the issue of access, Judge Lindsay observed that Mr. O’s appreciation of honesty and truthful ness was “casual at best”. Furthermore, Judge Lindsay also found that Mr. O. had made a threat to abduct Baby C. to Ms. K., even though he considered that Mr. O. did not have the wherewithal to remove her from the jurisdiction. It was for this reason- among others- that Judge Lindsay directed that any access should be supervised.

27. The fact remains, however, that Judge Lindsay did direct that Mr. O. have limited supervised access. The very fact that he did so means that this court must proceed on the basis that such contact is positively in Baby C.’s interests and, furthermore, that refusal access would not be contrary to her interests.

28. Yet it is here unnecessary to pronounce upon the exact meaning and scope of Article 24(3) of the Charter at this juncture, save to observe in passing that the words of this provision, certainly if taken at face value, might yet have considerable implications for immigration law and practice. It is unnecessary to give any concluded view on this question, because it is equally plain from the so-called horizontal provisions of the Charter determining its scope and application that Article 24(3) (like the remainder of the substantive provisions of the Charter) is triggered only where a Member State is “implementing Union law”: see Article 51 (1).

29. When, therefore, is a Member State implementing Union J aw? It is impossible at this juncture to essay a complete and exhaustive definition of this term, certainly in the absence of further guidance from the Court of Justice. There i s certainly a spectrum of possibilities here, ranging from those cases where, on the one hand, a Member State exercises a discretionary power conferred upon it by Union legislation to those other cases at the other end of the spectrum where the events in dispute concerning are wholly internal to that Member State and simply concern domestic law.

30. A good example of the former category of case is supplied by the judgment of the Court of Justice in Cases C-411/10 and C-493110 N.S. [2011] E.C.R. I-000. Here the question was whether a Member State was “implementing” Union Jaw in the sense of Article 51 (1) in considering whether to exercise a discretionary power conferred directly on Member States by the Dublin Regulation. Perhaps not surprisingly, the Court answered this question in the affirmative:-

“64 Article 51 (1) of the Charter states that the provisions thereof are addressed to the Member States only when they are implementing European Union law.
65 Scrutiny of Article 3(2) of Regulation No 343/2003 shows that it grants Member States a discretionary power which forms an integral part of the Common European Asylum System provided for by the FEU Treaty and developed by the European Union legislature.

66 As stated by the Commission, that discretionary power must be exercised in accordance with the other provisions of that regulation.

67 In addition, Article 3(2) of Regulation No 343/2003 states that the derogation from the principle laid down in Article 3(1) of that regulation gives rise to the specific consequences provided for by that regulation. Thus, a Member State which decides to examine an asylum application itself becomes the Member State responsible within the meaning of Regulation No 343/2003 and must, where appropriate, inform the other Member State or Member States concerned by the asylum application.

68 Those factors reinforce the interpretation according to which the discretionary power conferred on the Member States by Article 3(2) of Regulation No 343/2003 forms part of the mechanisms for determining the Member State responsible for an asylum application provided for under that regulation and, therefore, merely an element of the Common European Asylum System. Thus, a Member State which exercises that discretionary power must be considered as implementing European Union law within the meaning of Article 51 (1) of the Charter.”

31. Less straightforward cases present more difficulty. It may well be that where, for example, the State exercises a discretionary power pursuant to the European Arrest Warrant Act 2003 that the Charter will apply, although this matter is not at all free from difficulty, as Edwards J. acknowledged in Minister for Justice and Equality v. D.L. [2011] IEHC 248. Other difficult questions may possibly arise regarding the scope of application of the Charter where this is said to be triggered by the presence of possibly accidental factors of nationality and free movement in circumstances which might otherwise suggest the happening of events purely internal to this Member State. Might the Charter apply to the issues in the present case if, for example, Ms. K. happened to be a Belgian national who was exercising free movement rights in this State?
32. It is not necessary for me to examine these wider questions because, as I have already noted, the right of Ms. K. and Baby C to reside in this State derives entirely from Article 9 of the Constitution by virtue of their status as Irish citizens. Neither can the deportation power of the State be said to derive from European Union law, since­ as reflected in the Immigration Act 1999 – it is rather a legislative expression of the inherent right of all states under international law to regulate and control their own borders: see, e.g., the comments of Keane J. and Denham J. in Laurentiu v. Minister for Justice [1999] 4 IR 26.

33. It i s, of course, true that both the Qualification Directive (2004/83/EC) and the Procedures Directive (2005/85/EC) approximate the minimum substantive and procedural rules applicable to asylum application in respect of the law of each Member State. The Immigration Act 1999 nonetheless remains an item of autochthonous legislation and, in this respect, it is, for example, quite different from the European Arrest Warrant Act 2003. While the Act of2003 gives effect to an EU Framework Decision which fundamentally re-placed all pre-existing intra-European extradition law, this cannot be said of the Act of 1999 which pre-dates both the Qualification Directive and Procedures Directive. Of course, the situation might well be otherwise if asylum and immigration matters were fully harmonised at EU level, so that national laws dealing with these matters were replaced by new legislation which operated exclusively within the confines of EU legislation and which was designed to transpose same.

34. For the moment, however, the Act of 1999 remains an item of purely domestic legislation and in exercising a discretionary power thereunder (such as the power to deport), the State is not “implementing” Union legislation in the sense envisaged by Article 51 of the Charter. If, however, the State is not implementing Union law (as I have so found), then the substantive provisions (including Article 24(3)) of the Charter can not apply. For these reasons, I have concluded that the applicant cannot establish substantial grounds in respect of this issue and I would accordingly refuse the applicant leave to app l y for judicial review on this ground.
Whether this Court has a jurisdiction to join Baby C to the proceedings and to override the views on her mother regarding her welfare?
35. Perhaps the most important question which is presented by this application is the extent to which this Court can take account of the interests of Baby C over and above the wishes of her mother and sole guardian, Ms. K. Through her solicitor, Mr. Stewart, Ms. K. has made plain her objections to Mr. O. As far as she is concerned, she was cruelly deceived by him. She maintains that she had been unaware of his illegal immigration status or the fact that he served a prison sentence for possession of a stolen passport, but that now that these facts have come to light since the break-up of her relationship she would wish to sunder all contact with him.

36. So far as these proceedings are concerned, Ms. K. insists that Mr. O.’s interests in the welfare of his daughter is entirely opportunistic and that Baby C is merely a cat’s paw in a wider strategic battle on his part to avoid deportation. It is for these reasons that she has refused to give her consent to have Baby C named as a party to the proceedings. It is important to stress here that Ms. K. is the sole guardian of the child and that Mr. O. currently merely has limited (and supervised) access to the child by virtue of a District Court order.

37. The question of whether consent should be given to have a young child added to civil proceedings would normally be a matter exclusively for the parents of that child. Counsel for the applicant, Mr. O’Shea, has mentioned instances of where a child under the age of majority has been added as party to civil proceedings in circumstances where the title of the proceedings describes the child as suing through a next friend such as a relative. While this has doubtless happened on instances too numerous to mention, this is presumably with the tacit consent of the parents or guardians. In ordinary circumstances it would not be permissible for a litigant to add a child to the proceedings without such consent, since this would otherwise cut across the authority of the parents with respect to their child.

38. In the present case, therefore, Ms. K. is entitled to refuse to give such consent and this Court- as part of the judicial arm of the State – cannot interfere unless the conditions specified in Article 42.5 of the Constitution are satisfied.

39. This general question of the Court’s jurisdiction to notify a child of litigation affecting his or her interests was examined at a length by Laffoy J. in an important judgment, Z v. Y, High Court, 23rd May, 2008. In that case a child was born to the first defendant during her marriage to the second defendant. The plaintiff claimed, however, that he was the biological father of the chi ld (called by the fictitious name of Jane in the judgment) who was now aged about 15 years, even though she had lived all her life with the defendants and considered her mother’s husband to be her father.

40. The plaintiff, however, sought to have the birth certificate altered to reflect the fact of his paternity. While An tArd Chlaratheoir refused to re-register the child in the name of the plaintiff on the ground that as the child was the off-spring of a married couple, their consent to such change was accordingly necessary. The couple in question steadfastly refused to give such consent.

41. The plaintiff then proceeded to challenge the constitutionality of the relevant statutory provision (s. 22(3) of the Civil Registration Act 2004) which effectively precluded him from seeking to have the registration altered. At that point the issue arose as to whether Jane was entitled to be notified as to the existence of the proceedings which concerned her welfare and general interests. Laffoy J. held that Jane had an entitlement to such notice by virtue of her constitutional right to fair procedures.

42. Laffoy J. continued:-

“… it is settled law that the courts have a constitutional jurisdiction to intervene to protect the constitutional rights of a child whether legislation exists or not. As a general proposition, it seems to me that a harmonious interpretation of the relevant Articles of the Constitution, Articles 40,41 and 42, would indicate that the preconditions for the exercise of the State, including the courts, of its duty under Article 40.3 to intervene against the wishes of the parents to protect the constitutional rights of a child should be no less stringent than the preconditions to the State supplying the place of the parents in Article 42.5, so that, in addition to the duty arising only in exceptional cases, there must also have been a failure on the part of the parents in their duty towards their children.”
43. At an earlier stage of the proceedings a child psychologist gave evidence in 2007 to the effect that it was in Jane’s best interests that she be told that there was an issue as to her paternity, but by 2008 the defendants still could not bring themselves to inform her of these issues. On this point Laffoy J. observed that:-
“it is the defendants who have the primary right and duty to ensure that steps arc taken to enable Jane’s constitutional right to information about the 2004 proceedings, so that she is given an opportunity to have her views in relation to the issues thereby raised taken into account, to be given effect to. The State, through the medium of the court, can only step in if the defendants have failed in their duty.”
44. Laffoy J. went on to hold that the couple had failed in that duty by not informing Jane of proceedings manifestly affecting her welfare in circumstances where they had been advised by expert child psychologists that it was in her interests that she be so informed.
45. How, then, should the principles in Z v. Y be applied to the present case? Leaving aside the obvious age differential, the underlying principle nevertheless is that this Court is empowered to take steps to protect the child’s best interests in respect of proceedings affecting its welfare in circumstances where the parents or parents have failed in their duty for the purposes of Article 42.5?

46. In Z v. Y it was (relatively) easy to hold that the parents had so failed in circumstances where the proceedings concerned something as fundamental as Jane’s paternity and where they had (for whatever reason) spurned the opportunity to tell her themselves, despite having been afforded ample time by the court within which to do so and even though they had been advised that it was in her best interests that she be so informed.

47. The present case is nothing as clear-cut and, ideally, the court would have had the benefit of the views of an expert child psychologist, as happened in Z. v. Y Ms. K. evidently now regards Mr. O. as a disreputable scoundrel whose endeavours to assert guardianship rights and to seek access in respect of Baby C she views as purely opportunistic and tactical. One can accordingly understand why she does not wish to give these endeavours any assistance and, indeed, from her perspective, the choice is a perfectly rational one.

48. Nonetheless, viewed objectively, this choice- for all its inherent rationality­ cannot be regarded as being in the best interests of the child. The difficult and painful circumstances of the break-up of her parents’ break-up notwithstanding, the child is entitled to know and have access to both parents, save where this would not be in her best interests. Critically, however, the District Court has taken the view that some supervised access is to be permitted.

49. For all the reasons set out by me in my judgment in AO v. Minister for Justice and Equality (No.2), the inter-action of Article 40.1, Article 41, Article 42.1 and Article 42.5 is such as that all children- irrespective of their marital status – have the presumptive right to the care and company of both their parents. In these circumstances, I must regrettably conclude that, viewed objectively, Ms. K. has failed in her duty to protect one of the “natural and inalienable rights of the child” (to use the language of Article 42.5) insofar as she has objected to the child having some access to her father. I should stress that this is not intended in any way as a personal criticism of Ms. K. – who, I am quite satisfied, as at all times acted with perfect propriety and great dignity in an extremely difficult personal situation- but this conclusion is simply a result of a judicial endeavour to protect the what the Constitution deems to be a fundamental feature of the rights of the child.

50. In this sort of case, nevertheless, it falls to the judicial branch of government in the first instance to ensure that these rights are appropriately protected. How the right might be protected is a matter to which I will presently return.
The lack of candour and poor conduct of the applicant
51. For the Minister, Mr. Conlan Smyth emphasised the fact that the applicant should be denied relief on discretionary grounds having regard to his general lack of candour and bona fides. There is no doubt but that Mr. O.’s conduct in this State since he arrived has left a great deal to be desired. Here one can point to his possession of stolen goods and the fact that I have already set aside the grant of l eave to apply for judicial review on grounds of lack of candour. To this might be added the fact that District Judge Lindsay has already animadverted to the applicant’s casual attitude to truth telling.

52. One could not disagree with any of this. If one viewed the position of Mr. O. in isolation, it would have to be said that he has few, if any, personal merits and he would through his own (often deplorable) conduct have long since forfeited any entitlement to interlocutory relief. But I am not looking at the position of Mr. O. in isolation, as I am rather assessing the issues in this case rather entirely from the perspective o f his daughter, Baby C. I am not seeking to protect Mr. O’s rights vis -a­ vis Baby C., but rather to protect her “natural and imprescriptible” right to have his care and company for the purposes of Article 42.5.
Whether the applicant ought to have applied to the Minister to revoke the order under s. 3(11) of the Act of 1999?
53. Mr. Conlan Smyth has argued forcefully that the applicant ought not to be able to seek the kind of extraordinary relief which he seeks without first having applied to the Minister under s. 3(11) of the Act of 1999 to revoke the deportation order in the light of the new circumstances. In principle, this is correct, albeit that i t is subject to important qualifications.

54. The relief which this Court can give is essentially precautionary and short- term. It would not be appropriate, for example, that this Court should be asked to give some sort of open ended injunction during the minority of Baby C, although this seems to be the logical consequence of the argument now advanced. Here it must be recalled that all branches of the government are bound by the Constitution and the laws. It would be preferable, certainly in the first instance, if a solution to the problem at hand was first devised by the Minister. He is, after all, the person who has been vested by the Oireachtas with responsibility for immigration matters and he is plainly best placed to weigh all the competing considerations The Oireachtas has, moreover, stipulated that no non-national should be in the State save with the permission of the Minister.

55. In these circumstances, the court should refrain from devising a prescriptive remedy of long term duration, but should rather look to the executive branch for a solution of this kind. As I ventured to suggest in my judgment in Kinsella v. Governor of Mountjoy Prison [2011] I EHC 235, this sort of constructive engagement between the judicial and executive branches is one which is often best in harmony with the separation of powers, not least where (as here) the Minister has to balance many considerations (including the integrity of the asylum system) in devising a solution.
Conclusions
56. In conclusion, therefore, I propose to adjourn the applicant’s challenge to the subsidiary protection decision insofar as it relates to Article 4 of the Qualification Directive. I will grant the applicant leave to amend his pleadings to assert the relief discussed in this judgment insofar as it concerns the rights of Baby C under Article 41 and Article 42 of the Constitution and, if needs, be, Article 8 ECHR. I will correspondingly grant the applicant leave to apply for judicial review staying the enforcement of the deportation order on this ground. It is not, however, necessary for Baby C to be made a party to the proceedings, as the Court can have regard to her best interests even without a formal joinder.

57. So far as injunctive relief is concerned, it would not be appropriate to grant the applicant the kind of open-ended relief which he seeks for all the reasons set out in this judgment. Acting, as I believe I am bound to do in order to vindicate the constitutional rights of the child under Article 42.5, I will, however, grant the applicant an interlocutory injunction restraining his deportation until June 30th 2012, but this is expressly subject to the condition that the applicant apply in the meantime to the Minister to revoke the deportation order pursuant to s. 3(11) of the Act of 1999.

58. It will be for the Minister, then, to fashion the appropriate solution to the dilemma presented. Merely for the avoidance of any possible doubt in the matter, I should stress that nothing in this judgment should be taken as indicating how the Minister should deal with any such application. Even though I am formally giving leave, if the application for leave is duly made, then at that juncture these proceedings so far as they concern the welfare of and access to Baby C should be treated as being at an effective end. Should the applicant be dissatisfied with the decision of the Minister, then his remedy is to commence fresh proceedings to challenge that decision.

Omar v Governor of Cloverhill Prison

[2013] IEHC 579

JUDGMENT of Mr. Justice Hogan delivered on the 17th December, 2013

1. Where members of An Garda Síochána arrive late at night at the private dwelling of failed asylum seekers and require the three family members (including a seven and half year old boy) to accompany them while they make the trip from Limerick to Dublin Airport under Garda escort can it be said that the three family members are thereby under a form of arrest? This is in essence the principal question which arises in this application for an inquiry under Article 40.4.2 of the Constitution into the legality of the detention of one of those family members, Tareek Omar, the husband of Sheilah Omar and the father of Tevin Omar.

2. The Omars arrived in Ireland in April, 2005 and their son, Tevin, was born here in May, 2006. He, in fact, has lived here all his life and has never left the State. Up to the events of 7th November, 2013, and 8th November, 2013 (which I am about to describe), he was in second class in a primary school in Limerick. On the 17th September, 2013, however, the Minister for Justice and Equality made deportation orders in respect of all three family members. It followed, therefore, that none of three members of the family had any entitlement to be in the State after 12th October, 2013, which was the date specified in the deportation order as the date on which they were required to leave the State.

3. The family had then been required to present at Garda National Immigration Bureau in Dublin on 15th October, 2013, with which requirement they duly complied. At the request of their solicitor, Ms. Ryan, it was agreed that they could thereafter present themselves at Henry Street Garda Station in Limerick. On 24th October, 2013, all three family members were informed by letter that they were next to present at Henry Street on 14th November, 2013, “in order to facilitate your deportation from the State.”

4. That letter also stated that:

“If you fail to comply with any provision of the Deportation Order or with any requirement in this notice, an Immigration Officer or a member of the Garda Síochána may arrest and detain you without warrant in accordance with s. 5(1) of the Immigration Act 1999, as amended by the Illegal Immigrants (Trafficking) Act 2000.”
5. Before considering in any detail the facts giving rise to the present application, it is necessary first to set out the powers of arrest and entry in relation to immigration matters which have been granted to the Gardaí by the Oireachtas.
The power to arrest
6. It is, however, critical to an understanding of the factual and legal issues which arise in this case to appreciate the power to arrest a person against whom a deportation order is in force is confined to the categories of cases set out in s. 5(1) of the Immigration Act 1999 (as amended)(“the 1999 Act”).This sub-section (as so amended) provides as follows:-

“Where an immigration officer or a member of the Garda Síochána, with reasonable cause suspects that a person against whom a deportation order is in force-
(a) has failed to comply with any provision of the order or with the requirement in a notice under section 3(3)(b)(ii),
(b) intends to leave the State and enter another state without lawful authority,

(c) has destroyed his or her identity documents or is in possession of forged identity documents, or

(d) intends to avoid removal from the State,

he or she may arrest him or her without warrant and detain him or her in a prescribed place.”
7. There is, accordingly, a power to arrest a non-national who has not complied with the terms of a deportation order. As the Omar family had been required by the Minister to leave the State by 12th October, 2013, they were therefore liable for arrest under s. 5(1)(a) of the 1999 Act for failure to comply with the terms of the deportation order. I cannot accept the argument advanced by Mr. Fitzgerald S.C. that the presentation letter of 24th October, 2013, had the effect of staying the deportation order until the new date on which they were required to present, namely 12th November, 2013. It is perfectly clear from the terms of the letter that the addressee was nonetheless liable to arrest once he or she had failed to leave the State after the date specified in the deportation order. In these circumstances it follows that the Omars might well have been arrested under s. 5(1)(a) for failing to comply with the terms of a deportation order once the 12th October, 2013, had come and gone.
8. Critically, however, for reasons which I will detail later in this judgment, it is also clear that the Gardaí have no power to enter a dwelling for the purposes of effecting an arrest under s. 5(1)(a).

9. As it happens, however, this particular power of arrest was never formally exercised in the present case. The applicant, Mr. Omar, was, however, arrested in Dublin Airport in the early hours of the morning of 8th November, 2013, under the provisions of s. 5(1)(d) of the 1999 Act (on the ground that he had manifested an intention to avoid removal from the State) in circumstances I will presently describe. It is the legality of this arrest which grounds this present application for an inquiry into the legality of his current detention at Cloverhill Prison. As we shall presently see, that question cannot be determined in isolation from a consideration of the events which proceeded it.
Power to enter premises
10. Article 40.5 of the Constitution provides that::

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”
11. It is important to stress at the outset that this provision applies to every home in the State, irrespective of the nationality or status of the occupants of the dwelling. The Supreme Court has made it clear that the fundamental rights provisions of the Constitution apply without distinction to all persons within the State: see Re Article 26 and Electoral (Amendment) Bill [1984] I.R. 268.
12. At common law members of An Garda Síochána could enter a dwelling without a warrant for the purposes of effect an arrest where they had a reasonable suspicion that the arrested person had committed a felony: see The People (Attorney General) v. Hogan (1972) 1 Frewen 360. The distinction between felonies and misdemeanours was, however, abolished by s. 3 of the Criminal Law Act 1997 (“the 1997 Act”). This common law power of arrest was then replaced by a statutory power of arrest contained in s. 6 of the 1997 Act. Section 6(2) empowers a Garda, subject to certain conditions, to enter a dwelling without a warrant for the purpose of effecting an arrest in respect of an arrestable offence (which itself is defined by s. 2 of the 1997 Act as embracing any offence carrying a punishment of imprisonment of at least five years or more) and to search the premises.

13. So far as immigration matters are concerned, s. 15 of the Immigration Act 2004 (“the 2004 Act”) provides:

“(1) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that—
(a) it is reasonably necessary for the purpose of the enforcement of this Act that a place specified in the information should be searched by members of the Garda Síochána, or
(b) there are reasonable grounds for suspecting that evidence of or relating to an offence under this Act is to be found at a place specified in the information, the judge may issue a warrant for the search of that place and any persons found at that place.

(2) A warrant issued under this section shall authorise a named member of the Garda Síochána, alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary—
(a) to enter, within 7 days from the date of the warrant and if necessary by the use of reasonable force, the place named in the warrant,
(b) to search that place and any persons found there, and

(c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under this Act.

(3) A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the member his or her name and address.
(4) Any person who—

(a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (1),
(b) fails or refuses to comply with a requirement under this section, or

(c) gives a name or address to such a member which is false or misleading,

shall be guilty of an offence.

(5) In this section, “place” includes any dwelling, any building or part of a building and any vehicle, vessel, structure or container used or intended to be used for the carriage of goods by road.”
14. A similar power is contained in s. 7 of the Aliens Act 1935 (“the 1935 Act”) (as substituted by s. 4 of the Immigration Act 2003 (“the 2003 Act”). This provides:
“(1) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that—
(a) it is reasonably necessary for the purpose of the enforcement of—

(i) an aliens order, or
(ii) an order under section 3 or 4 of the Immigration Act 1999 (‘the Act of 1999’),

that a place specified in the information should be searched by members of the Garda Síochána, or
(b) there are reasonable grounds for suspecting that evidence of or relating to an offence under section 6 or section 3, 4 or 8 of the Act of 1999 is to be found at a place specified in the information,
the judge may issue a warrant for the search of that place and any persons found at that place.

(2) A warrant issued under this section shall authorise a named member of the Garda Síochána, alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary—
(a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,
(b) to search it and any persons found there, and

(c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under section 6 or section 3, 4 or 8 of the Act of 1999.

(3) A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the member his or her name and address.
(4) Any person who—

(a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (1),
(b) fails or refuses to comply with a requirement under this section, or

(c) gives a name or address which is false or misleading,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or both.
(5) A member of the Garda Síochána may arrest without warrant any person whom the member reasonably suspects of having committed an offence under subsection (4).

(6) In this section, ‘place’ includes any dwelling, any building or part of a building and any vehicle, vessel, structure or container used or intended to be used for the carriage of goods by road.”

15. What is striking about these provisions is that while s. 7 of the 1935 Act and s. 15 of the 2004 Act both allow the District Court to issue a search warrant for the purposes of searching a premises for the purposes of enforcing the Immigration Acts, neither section permits the Gardaí to enter premises for the purposes of effecting an arrest in respect of a person against whom a deportation order has been made. The only power of arrest given in such circumstances is where any person present on the premises which is being searched pursuant to a warrant attempts to obstruct the Gardaí or fails to comply with a requirement under the relevant section or gives a false name or address: see s. 7(5) of the 1935 Act and s. 15(4) of the 2004 Act respectively.
16. In this respect these provision may also be contrasted with s. 6(2) of the 1997 Act which sub-section does gives the Gardaí the power both to search a dwelling and to effect an arrest therein. It is clear, therefore, that the Oireachtas has not given the Gardaí the power to enter a dwelling – even pursuant to a search warrant – for the purposes of an arrest in order to give effect to a deportation order. This is a very important consideration which must be borne in mind in considering whether the Gardaí acted lawfully in the present case.
Did the Gardaí have an implied licence to enter the premises and did they exceed that licence?
17. It is clear from the case-law that the Gardaí have an implied licence to go on to the pathway or driveway leading up to a dwelling. As O’Flaherty J. said in Director of Public Prosecutions v. Forbes [1994] 2 I.R. 542, 548:

“It must be regarded as axiomatic that any householder gives an implied authority to a member of the Garda to come onto the forecourt of his premises to see to the enforcement of the law or to prevent a breach thereof.”
18. The courts have accordingly generally upheld the right of the Gardaí to come unto the curtilage of a dwelling for law enforcement purposes pursuant to this implied licence (see, e.g., Director of Public Prosecutions (Dooley) v. Lynch [1998] 4 IR 437, per Costello P. and Director of Public Prosecutions v. Sullivan [2007] IEHC 248, per Herbert J.), although there may also be cases where the implied licence is held to have been revoked by the householder (see, e.g., Director of Public Prosecutions v. Gaffney [1987] I.R. 193, per Walsh J., Director of Public Prosecutions (Riordan) v. Molloy [2003] IESC 17, [2004] 3 I.R. 321, 324-325 per McCracken J.). In those latter category of cases the Gardaí have been held to be trespassers once the permission – whether express or implied – has been revoked by the householder.
19. The entry into a dwelling itself is quite a different matter. It is clear from the Supreme Court’s decision in Director of Public Prosecutions v. Gaffney [1987] I.R. 193 that, in such cases, “the burden lies upon the entrant to prove that the inviolability of that dwelling has not been breached”: see [1987] I.R. 193, 184, per McCarthy J. The decision of Carney J. in Freeman v. Director of Public Prosecutions [1996] 3 IR 565 is in much the same vein. In that case Carney J. stressed that the guarantee of inviolability of the dwelling in Article 40.5 was “no empty formula” and that express statutory authority was required for any entry into a dwelling.

20. Professor Casey has summarised the law thus (Constitutional Law in Ireland, Dublin, 2000 at 513):

“….absent a warrant, or specific statutory authority, Garda officers or other state agents may enter a dwelling only by invitation or permission. Such invitation or permission may be express, or it may be inferred from the circumstances: thus a failure to refuse entry might be construed as an implied permission to enter. But everything depends on the circumstances of the particular case.”
21. This is clear from the facts of Gaffney itself. Here the Gardaí pursued the driver of a motor vehicle who had appeared to drive the vehicle in a dangerous and erratic fashion. They then eventually pursued the driver to a particular dwelling. The accused’s brother initially refused them entry to the house on two occasions. On a third occasion a Garda inspector approached an open front door and knocked on it. Having asked whether anyone was inside, a male voice answered “yes, in here.” The Gardaí then entered the dwelling an arrested the accused under the Road Traffic Acts.
22. The Supreme Court held that the arrest was unlawful and in that the Gardaí were trespassers. As Walsh J. observed ([1987] I.R. 173, 179) the “absence of an express refusal or of an express order to leave cannot be construed as an implied invitation or permission to enter, particularly in the circumstances of this case.”
The events of November 7th/8th November
23. It is clear from the evidence that the Gardaí called to the house of the applicant just after 11 pm on the evening of 7th November, 2013. Mr. and Ms. Omar were in bed at the time and their son was asleep. Ms. Omar went to the bedroom window to see who was there and she was surprised to learn that the Gardaí were present. Mr. and Ms. Omar went downstairs in their nightclothes and invited the four GNIB officers into the front room where the couple then conversed with the officers. The Gardaí stated that the couple and their son were to be deported to Tanzania. Ms. Omar produced a letter from their solicitors which showed that they had applied for a revocation of the deportation orders, but the Gardaí explained that this would not have the effect of preventing the execution of the deportation order.

24. The Gardaí then permitted the Omars to speak to their solicitor, Ms. Ryan, by telephone. Ms. Omar was the first to speak with Ms. Ryan and when Ms. Ryan explained that there was nothing which she could do at that time of night, Ms. Omar simply handed the telephone to her husband who continued with the telephone conversation. It appears that Ms. Ryan advised them to co-operate with the Gardaí and to contact her upon their arrival in Tanzania.

25. At that point the Omars were required to get dressed, to gather their belongings and given time to compose themselves. Thus, for example, Mr. Omar was given a cigarette by one of the Garda escort team and allowed to smoke the cigarette in peace.

26. A female officer accompanied Ms. Omar as she went upstairs to pack. I think that it clear that the officer entered the bedroom where the child was sleeping. It is not really disputed that the officer generally gave instructions to Ms. Omar regarding the packing of bags and when the child was to be roused. Ms. Omar pointed out to the officer that she had only one bag and arrangements were made for her brother-in-law to bring over some plastic bags to enable them carry the rest of their belongings. At this point two uniformed Gardaí arrived outside the house, but they did not enter the dwelling. At the last minute the female officer instructed Ms. Omar to rouse the child. He was then woken, brought downstairs and the family were then escorted to the waiting Garda cars. The four GNIB officers remained in the dwelling for the best part of one hour and a half.

27. I am quite satisfied that the individual officers who attended at the house behaved with individual personal propriety and showed courtesy to the Omars. I further accept that the Gardaí were well intentioned in their actions in that they intended to execute the deportation orders with a minimum of fuss and an informal fashion. Although I am about to find that their actions were unlawful – and, in some respects, gravely unlawful – it is important to state that there was no question of mala fides, malice or dishonesty on the part of the individual Gardaí. They sincerely believed that they had the necessary powers in law to act as they did.

28. There are, nevertheless, features of the entire episode which are unsettling and, candidly, disquieting. Who could not but be deeply troubled by the late night knock on the door, the absence of a search warrant, an exchange with surprised parents in their pyjamas, the rousing of a young boy from his sleep, the bundling of that boy into a Garda car and the driving of the boy with his family in that car over two hundred kilometres through the night and the holding of the family (including the boy) in a place of the detention at an airport?

29. Here the circumstances of the young boy must be considered, even though, of course, he is not an applicant in these Article 40 proceedings. Although he is not an Irish citizen, he was born here and, according to Ms. Omar’s evidence (which I fully accept) he has never previously left the State. He is now aged seven years and six months and he is in second class at a primary school in Limerick. It is not altogether clear to me what (if any) steps were taken to safeguard his welfare. It is, however, impossible to believe that this entirely innocent young boy did not find the entire episode bewildering, traumatic and frightening. It is simply distressing beyond words to think that a State committed to safeguarding the best interests of children would ever contemplate subjecting a young boy of seven years and six months to such an ordeal, even if he was not an Irish citizen and even if he had no right to be in the State.

30. I must break off this narrative at this juncture to say something about the testimony of Ms. Omar. She was a remarkably impressive witness who gave evidence with a quiet nobility and resolution. No one who heard her could possibly doubt the accuracy of her account, most of which was not, in any event, seriously disputed. For my part I accept every word of her evidence so far as the events of 7th November and 8th November were concerned. Insofar as there is any conflict between her evidence and that tendered on behalf of the respondents, I found her evidence to be more satisfactory.

31. I accordingly find that the Omars were, in fact, instructed to pack their bags and were certainly given to understand that they had no option but to accompany the Gardaí to Dublin Airport. I fully accept the evidence of Ms. Omar that a female officer rejected her request to delay travelling until the morning given that her son was asleep. I further find that this officer told Ms. Omar to back her bags. When Ms. Omar asked for a few more minutes to gather her belongings, the officer told her to hurry up and said that there was little time. I also find that the officer told Ms. Omar to wait until the last minute before rousing her son from his sleep.

32. I cannot avoid observing that I found this latter evidence to be deeply disturbing. By what possible authority could this Garda officer take it upon herself to invade the sanctity of the bedroom of a sleeping child in the middle of the night and give directions to its mother as to when it was to be woken? Absent a search warrant or express statutory authority or an acute emergency which immediately threatened life and limb (such as was at issue in Director of Public Prosecutions v. Delaney [1997] 3 I.R. 453), such conduct entirely compromised the substance of the Article 40.5 guarantee in respect of the inviolability of the dwelling. The object of this provision was summarised thus by Hardiman J. in The People v. O’Brien [2012] IECCA 68:

“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.”
33. The protections afforded to the dwelling by Article 40.5 are, therefore, at the heart of what make us a free society. A society whose basic law did not provide for protections either of the kind afforded by Article 40.5 or by something like it (such as Article 8 of the European Convention of Human Rights) could not call itself truly free. The importance of compliance with the requirements of Article 40.5 is, therefore, of paramount importance in a free society: see, e.g., the comments of Carney J. in Director of Public Prosecution v. Dunne [1994] 2 I.R. 537 and those of Hardiman J. in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 64.
34. Here it must be recalled that the Gardaí had no search warrant to enter the dwelling of the Omars for the purposes of a search, still less for an arrest under the Immigration Acts. Absent an acute emergency, therefore, the only possible basis, therefore, by which the child’s bedroom could have been entered, would have been if one of the parents had freely given consent for this purpose. But what parent would ever freely give consent so as to permit a complete stranger to enter a child’s bedroom in the middle of the night as that child slept or give that stranger authority to wander around the bedroom giving instructions as to when and how the child was to be woken?

35. In any event, I am perfectly satisfied from the evidence of Ms. Omar that no true consent was ever given by either herself or her husband or that any such consent would ever have been so given. It was rather a case of where the female officer purported by her conduct and demeanour to insinuate to Ms. Omar that she had, in fact, such an authority to enter the bedroom where the child was sleeping. Viewed objectively and in the absence of either a search warrant which authorised this course of conduct or a true and genuine consent on the part of the parents, this was in itself an extremely serious breach of Article 40.5. It represented a gravely illegal act which this Court views with dismay.

36. The whole pattern of the events are, in any event, wholly inconsistent with the suggestion that the Omars freely consented to what had occurred. It is quite unrealistic and, indeed, disingenuous to suggest otherwise. Who, having been awoken from their beds at night by a knock on the door from strangers, would spontaneously agree to make a long trip of this nature, not least without any advance planning and preparation? What parent would agree to the rousing of their seven year old from his bed in the middle of the night to be driven through the night from Limerick to Dublin Airport, not least in the middle of the school week?

37. A few further examples must suffice to illustrate this point. The Omars were “permitted” to telephone their solicitor at about 11.30pm to seek advice as to what they should do. But if the Omars were not otherwise under some form of de facto restraint, the question of their being “permitted” to telephone anybody would simply not arise. When Ms. Omar produced the letter showing that they had applied for the revocation of the deportation order, the Gardaí responded that this would not be enough to stay the operation of the deportation order. While this was legally correct, at no stage were the Omars told that they were under no legal obligation to accompany the Gardaí. Even if (contrary to my own view) words such as “instruction” or “direction” or “require” were not used, the entire impression given to the Omars – which the Gardaí did nothing to dispel – was that they had no alternative other than to go along with that which the Gardaí required and that they were to that extent under a de facto compulsion to follow those directions.

38. The Omars were then put into the back of one of the Garda cars at about 12.30am and their luggage was placed in the other Garda car. They were then driven by the Garda escort team to Dublin Airport where they arrived at about 2.30am. Ms. Omar gave evidence that when her husband sought to open the backdoor of the Garda car in order to adjust a seat belt he could not open it from the inside. This might be because it was a simple issue of the inadvertent application of a child lock – as was suggested to Ms. Omar in cross-examination – but I consider that it is altogether more likely in the circumstances that these locks were deliberately applied.

39. The Garda vehicles did stop once the course of the journey to Dublin Airport to enable Mr. Omar to visit the bathroom at a service station. This, however, was done only with the consent of the Gardai and under their supervision. The evidence suggested that the Gardaí would have formally arrested Mr. Omar under s. 5(1)(d) of the 1999 Act had, for example, he refused to get into the Garda car.

40. I further accept Ms. Omar’s evidence that upon arrival at Dublin Airport that the Omar family were escorted to a detention room and that the door was then locked. Ms. Omar had by this stage become quite unwell and required sedation by a general practitioner for extremely low blood pressure. The young boy was also distressed by these events and the parents sought to comfort him. All these examples re-inforce the conclusion that the Omars had been in effect placed in a form of detention, a point under further underscored by a consideration of the case-law on this topic which I will shortly consider.

41. The family were then to be put on a flight to Amsterdam at 6.10 am and from there they were to be flown onwards to Dar-es-Salaam in Tanzania. Some time after 5am Mr. Omar declared that while he would accept being deported to Kenya, he did not want to return to Tanzania. Following this exchange Mr. Omar was formally arrested by a member of An Garda Síochána pursuant to s. 5(1)(d) of the 1999 Act on the basis that he intended to avoid removal from the State. Mr. Omar was then removed to Cloverhill Prison. As we have noted, it is this detention which has given rise to the present application for an inquiry under Article 40.4.2 of the Constitution. Ms. Omar and her son were then taken by the Gardaí to Balseskin Accommodation Centre.

42. Returning again to the question of whether the entry of the Garda team into the Omars dwelling was a lawful one and whether they freely and voluntarily consented to their conveyance from Limerick to Dublin Airport. I am prepared to allow that the initial entry into the dwelling was lawful in the sense that the Gardaí were genuinely invited into the dwelling. But it is clear that the Gardaí quickly exceeded the boundaries of that implied consent to come into the premises and because no sooner had they entered the dwelling that they subjected Mr. and Ms. Omar to a form of de facto restraint and arrest. What really happened is that the Gardaí entered the dwelling for the purposes of de facto arresting the Omars in order to give effect to the deportation order. The Oireachtas has, however, never given such a power to enter a dwelling for this purpose.

43. All of this may be illustrated by the judgment of Hamilton J. in The People (Director of Public Prosecutions) v. Coffey [1987] I.L.R.M. 727. In that case an accused person voluntarily went to a Garda station to assist with the investigation into a murder. Indeed, it appears that he drove to the station and parked his car close by. Commencing at 3p.m. he was subjected to repeated questioning and members of the Gardaí remained with him at all times. At about 6.50 p.m. one of the Gardaí asked for and received from him the keys of his car which keys were never returned to him in the course of questioning which continued until to close on 2am on the following morning.

44. Hamilton J. held ([1987] I.L.R.M. 727, 731) that in these circumstances the accused had been detained in a form of unlawful custody:

“At no stage were the keys returned to him and this fact, in conjunction with the constant care and attention by members of the Garda Síochána and the constant interviewing and questioning of him, would indicate to him that he was not free to leave…At no stage had any indication been given to him that he was free to leave the Garda station. It is irrelevant that he did not ask to leave; it is irrelevant that the members of the Garda Síochána concerned who gave evidence said if he had asked he would have been allowed to leave; the point is that he did not ask and at no stage was he informed that he was free to leave.”
45. The present situation is very similar. It is true that the Omars voluntarily admitted the Gardaí to their dwelling once they requested admission, but thereafter the actions of the Gardaí conveyed, in the words of Hanna J. in Dunne v. Clinton [1930] I.R. 366, 372, “the intimation in some form of words or gesture that [they were] under restraint and will not be allowed to leave.” The Omars certainly never contemplated or envisaged when co-operating with the Gardaí by admitting them to their dwelling that they would then be placed under a form of de facto arrest in their own home.
46. Much reliance was placed by counsel for the respondents, Mr. Moore, on a decision of the European Court of Human Rights in Austin v. United Kingdom (2012). That case concerned the legality of a police cordon which enclosed perhaps 400 persons in a controlled area in central London in order to keep control of a major riot. The Court noted that there was no crushing and there was space to walk about within the cordon, albeit that conditions were uncomfortable “with no shelter, food or water facilities.” The applicants were detained in this area for periods ranging from between five hours to seven hours. A majority of the Court held that there was no breach of Article 5 ECHR given that the entire object of the restraint was to protect human safety in the face of an acutely challenging and violent public demonstrations.

47. Austin is clearly a decision based on special facts relating to crowd control and the protection of public safety in the course of (sometimes violent) street demonstrations. It may be observed that the European Court was at pains to stress (at para. 68 of the judgment) that its conclusion that there had been no deprivation of liberty was based “on the specific and exceptional facts of the case.” The Court further hinted that had it not been established that it was necessary “for the police to impose and maintain the cordon in order to prevent serious injury or damage”, then the “coercive and restrictive nature” of the cordon “might have been sufficient to bring it within Article 5.”

48. In these circumstances, I do not think that the Austin principles have any application to the quite different issues arising from the presence of the police within the family home. In any event, the law in relation to the meaning of liberty in Article 40.4.1 of the Constitution is crystal clear. There is no “half way house” between liberty “unfettered by restraint and an arrest”: see Dunne v. Clinton [1930] I.R. 366, 372, per Hanna J.

49. More in point perhaps is The People (Director of Public Prosecutions) v. O’Loughlin [1979] I.R. 85. In that case the Court of Criminal Appeal held that the accused had been de facto arrested when he had been conveyed in a Garda car from Carrick-on-Suir Garda station to Clonmel Garda station without ever having been formally arrested. This was held to be a form of unlawful detention, for as O’Higgins C.J. explained ([1979] I.R. 85,91):

“’Holding for questioning’ and ‘taking into custody’ and ‘detaining’ are merely different ways of describing the act of depriving a man of his liberty. To do so without lawful authority is an open defiance of Article 40.4.1 of the Constitution.”
50. It is likewise of interest that in The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 the accused had been stopped on the side of the road by Gardaí and admitted under caution that he had used a false name in respect of the vehicle registration book. Although he never asked to leave, one of the Gardaí who spoke to him at the roadside hinted that he might well have been arrested had he attempted to do so. Another Garda described the accused as having been “in detention” during this period. Carney J. held that the accused was in unlawful detention during this period, a finding which was subsequently upheld by the Court of Criminal Appeal.
51. In the light of these authorities, it is simply stating the obvious to say that Mr. Omar was plainly already in unlawful custody at the point he was arrested at Dublin Airport at 5.15am on the morning of 8th November under s. 5(1)(d) of the 1999 Act. The plain truth of the matter was that, viewed objectively, the Omar family had been subjected to multiple and repeated violations of their constitutional rights. The Gardaí had entered their dwelling without a search warrant for the purposes of effecting a de facto arrest in order to give effect to the deportation order – even though, as we have seen, this is a power which they do not enjoy even when a search warrant has been judicially granted under either the 1935 Act or the 2004 Act – and then transported the family over 200km. in a locked Garda car. No true consent to this was ever given by the Omars and their actions were voluntary only in the sense that they offered no physical resistance to what the Gardaí required.

52. The actions, moreover, of the Garda officer in entering the bedroom of a sleeping child after midnight and giving directions to his mother as to when he should be woken up, while then arranging for his transport by Garda car through the night entirely compromised the fundamental protections afforded by Article 40.4.1 (personal liberty) and Article 40.5 (inviolability of the dwelling) of the Constitution. So far as the child is concerned, viewed objectively, these breaches of his constitutional rights must be regarded as being exceptionally serious.
Does the fact that Mr. Omar was in unlawful custody at the time of his arrest render that arrest unlawful?
53. It is clear from the authorities that an arrest which is carried out following a breach of Article 40.5 is entirely unlawful: see, e.g., the comments of Walsh J. and Henchy J. respectively in Gaffney and those of Hardiman J. to similar effect in O’Brien. For the reasons I have already set out, it is clear that Mr. Omar was subjected to an unlawful arrest within his dwelling by Gardaí and then unlawfully conveyed with the rest of his family to Dublin Airport.

54. It is true that, as the Court of Criminal Appeal noted in Bolger, there may be cases where a lawful arrest can be effected in circumstances where the person arrested was in unlawful custody. As in that case, however, this is where the new arrest is entirely independent of the earlier unlawful custody. Here the present case is completely different, since the arrest under s. 5(1)(d) of the 1999 Act was simply the final act in a process which had commenced with the unlawful restraint and de facto arrest of Mr. Omar some five to six hours previously. Just as in Oladapo v. Governor of Cloverhill Prison [2009] IESC 42, it can be said in the present case that, in the words of Murray C.J., “that unlawful arrest and consequential unlawful detention are the dominant circumstances in this case”.

55. In Oladapo the applicant had been ostensibly arrested under s. 13 of the Immigration Act 2004 for failing to have appropriate travel documents as he endeavoured to re-enter the State from Northern Ireland. He was then subsequently arrested and detained under s. 5(2) of the Immigration Act 2003. Murray C.J. held that the subsequent arrest was unlawful, precisely because the original arrest was unlawful and simply a device to bring the applicant into custody:

“Even though the later arrest and detention pursuant to s. 5(2) of the Act of 2003 might otherwise have been lawful, that arrest and subsequent detention is dominated by the fact that it was deliberately facilitated and achieved by bringing the appellant into unlawful custody for that specific and ulterior purpose. This is not simply a question of an otherwise lawful arrest being potentially tainted by an unlawful period of detention because in this case the dominating factor which brought about the arrest under s. 5(2) was the deliberate unlawful arrest and detention under s. 13. What occurred in this case was a fundamental breach of the due process of law. This is not to suggest that there was malice or dishonesty on the part of Garda McGovern. Although his actions were conscious and deliberate he appears to have considered that he was properly endeavouring to apply the provisions of the Immigration Acts to a person who was unlawfully present in the State by virtue of s. 5(2) of the Act of 2004. That however does not alter the position in law, namely that he deliberately effected an unlawful arrest and detention.”
56. In my view, therefore, for the reasons just stated, the present case cannot properly be distinguished from Oladapo.
Conclusions
57. In summary, therefore, I have concluded that what really occurred in the present case is that the Gardaí entered a dwelling without a search warrant for the purposes of arresting the occupants in order to give effect to deportation orders. Yet the only power given to the Gardaí to enter a dwelling for this purpose under the Immigration Acts is to do so for the purposes of search only (and not for the purposes of arrest) and then only once a search warrant has been issued by the District Court on the application of an officer not below the rank of Sergeant, it follows that the entry of the Gardaí into the dwelling of the Omars became unlawful once that true purpose became clear, as was their subsequent de facto arrest of the applicant, his wife and 7 year and half year old son. Thus, even if the Gardaí had in fact been granted a search warrant by the District Court (which was not the case), they would even then have had no power to act in the manner which they did.

58. Since the legality of the applicant’s current detention is entirely contingent on the validity of that arrest under s. 5(1)(d) of the 1999 Act, it follows, therefore, in view of my earlier findings, that detention has been accordingly rendered unlawful. I will accordingly direct Mr. Omar’s release pursuant to Article 40.4.2 of the Constitution.

Irish Life and Permanent Plc v Duff

[2013] IEHC 43

JUDGMENT of Mr. Justice Hogan delivered on the 31st day of January, 2013
1. In these proceedings the plaintiff, Irish Life and Permanent plc (“ILP”), sue to recover possession of the defendants’ family home at a premises based in Co. Louth. In the Circuit Court Her Honour Judge McDonnell made an order for possession in favour of ILP, but placed a stay on the order for possession for twelve months, which period expires on the 28th February, 2013. The defendants now appeal against this decision to this Court.

2. There is very little doubt but that Mr. Duff and Ms. Duff have fallen into significant arrears with regard to their mortgage repayments. But while these type of proceedings may seem all too routine in the modern economic climate, we shall quickly see that this otherwise routine application for possession raises important questions relating to the right of a mortgagor to recover possession of both unregistered and registered land; compliance by a lender with various codes promulgated by the Financial Regulator and, if not, whether, this affords the defendants any effective defence to this action for repossession.

3. Since the judgment I am about to deliver may have implications for the mortgagor/mortgagee relationships generally and specifically by reference to those who are customers of ILP, it is perhaps apposite that I should disclose that I am a mortgage account holder with ILP. I mentioned this to the parties at the commencement of the hearing and both waived any possible objection to my hearing of this appeal on that account.

4. I should also say that in my view this case raises several important points of law which, on reflection, might usefully have been finally determined by the Supreme Court on a case stated from this Court. But since neither party requested a case stated, I consider that I have no such jurisdiction to state a case for the purposes of s. 38 of the Courts of Justice Act 1936, as the power so to state a case is expressly made contingent on a request in that behalf by one of the parties to the appeal.
The background facts
5. The defendants, Mr. and Ms. Duff, obtained a 25 year mortgage from the plaintiff in October, 2003 for the sum of €258,000. Rather unusually, the encumbered lands comprise both registered and unregistered lands. It would seem, however, that the actual dwelling is wholly situate on unregistered land, while the curtilage and garden constitute registered land.

6. The monthly payments were approximately €1,300. The premises in question is the family home of Mr. and Ms. Duff and they reside there with their teenage children. Mr. Duff is by occupation a self-employed building contractor. Quite naturally his business has been severely hit since about 2007 by the deepest downturn in the building trade in living memory.

7. Under the terms of the mortgage deed, ILP agreed not to exercise their right of possession until the Duffs had defaulted for two months or more in respect of these mortgage repayments. ILP first wrote to the Duffs reminding them of their repayment obligations in December, 2008, but proceedings were first commenced in April, 2009. At that stage the arrears were in the order of €9,800.It appears that the proceedings were withdrawn at that point to enable discussions to take place concerning those arrears.

8. At the request of the bank, Mr. and Ms. Duff gave details concerning their financial affairs. Ms. Duff returned to part-time work in order to assist to alleviate the financial burden. Mr. Duff had made a cash lodgement of €5,000 in March, 2009 and had explained to a representative of the bank in correspondence that his income had fallen by about one fifth since 2007. During this period, ILP frequently corresponded with Mr. and Ms. Duff. Thus, on 5th February, 2010, the Bank wrote to say:-

“We wish to advise you that due to the continuing serious level of arrears on your account, we are about to instruct our solicitors to seek a Court order for possession of your property. Even at this late stage, in order to avoid action we recommend you contact the undersigned as soon as possible. Unless we hear from you immediately, our solicitors will be instructed to proceed for possession as outlined above.”
9. At this point the arrears had reached almost €27,000, but similar letters had been sent on 28th July, 2009, 24th September, 2009 and 29th October, 2009. During this period a significant amount of correspondence was generated by the respective parties’ solicitors. On 20th May, 2009, ILP’s solicitors indicated to the defendants’ solicitors that it was in order for their clients to contact Ms. Gillian Byrne of the Bank’s collection department to discuss their account. It appears that Mr. Duff spoke to Ms. Byrne on 15th June, 2009, and he explained his reduced circumstances. However, no statement of means or proposal for restructuring was actually submitted.
10. On 14th October, 2009, Mr. Duff contacted ILP and indicated that he had written on three occasions with proposals, but he was informed that the bank had not received this correspondence. The bank called Mr. Duff the following day following the receipt of correspondence. While the parties discussed various short term proposals, Mr. Duff offered a payment of €5,000, but the bank indicated that this would not be enough to stop the arrears increasing between then and the end of the calendar year.

11. By letter dated the 14th May, 2010, the Bank’s solicitors set out the current position. By this stage the present proceedings had been re-entered before the Circuit Court and the arrears had escalated to the point where in February, 2010 they had reached almost €28,600. The last payment made to the mortgage account was €1,134 in July, 2010 and by February, 2012 the arrears had grown to over €63,000. Since the proceedings were commenced, only three payments have been made to the mortgage account by the defendants. On 29th February, 2012, Her Honour Judge McDonnell made an order granting ILP possession, but stayed the execution of that order for one year. Mr. and Ms. Duff appeal to this Court against the making of that order.

12. We may now examine in turn the various points of objections raised by Mr. and Ms. Duff against the making of an order for possession. I propose to consider the points raised in the following general order: First, were the proceedings properly commenced by Ejectment Civil Bill? Second, does this Court have a jurisdiction to grant ILP possession in respect of (i) the registered land and (ii) the unregistered land? Third, assuming the Court has such a jurisdiction, ought it to exercise such a jurisdiction if it were to transpire that the Bank was not complying with the Code of Conduct issued by the Central Bank?
Were the proceedings properly commenced by Ejectment Civil Bill?
13. The present proceedings were commenced by Ejectment Civil Bill on 7th April, 2009. The proceedings thus pre-date the coming into force of the Circuit Court Rules (Actions for Possession and Well-Charging Relief) Rules 2009 (SI No. 264 of 2009) which came into force on 8th July, 2009. The 2009 Rules provided for a new streamlined Civil Bill for Possession procedure in the case of actions for possession by the holder of a legal charge or mortgage.

14. The defendants, however, maintain that the plaintiff bank used the wrong form of procedure in that an Equity Civil Bill was then the most appropriate course of action. But not only has the Ejectment Civil Bill represented a time-honoured method of seeking an order for possession, there were sound reasons why that was regarded as the most appropriate form of action, not least because a mortgage suit of this kind affected the title of the mortgagee. As Andrews L.J. explained in Northern Bank Ltd. v. Devlin [1924] 1 IR 90, 92-93:

“The mortgagee of a legal estate is, in the absence of an express provision to the contrary, entitled to enter on the mortgaged premises at any time after the execution of the mortgage…In the case of actions by either the first or second mortgagees it will be observed that there is a plaintiff who has an estate in the lands; and, in our opinion, the possession of such estate, legal or equitable, is necessary, in the absence of statutory provision to the contrary, to enable an incumbrancer to maintain his suit. A mere chargeant who has no estate in the lands cannot, without statutory authority, maintain an action of ejectment…”
15. That case turned on the fact that the mortgagee of registered land was, as the law then stood, a mere chargeant. But all of this was changed by s. 13 of the Registration of Title Act 1942 (“the 1942 Act”) and it is clear that since that date at least, the mortgagee who holds a registered charge in respect of registered land is not a mere chargeant, but has an estate in the lands. Insofar as there was any doubt on the point, s. 62(6) of the Registration of Title Act 1964 (“the 1964 Act”) stated this expressly.
16. It is sufficient, therefore, for present purposes to say that the legal mortgagee of registered land has an estate in land and that if the mortgagor defaults, this affects the title of the mortgagee and that he or she is accordingly entitled to maintain an ejectment action on the title.

17. So far as the unregistered land is concerned, it will be seen (for reasons set out later in this judgment) that in the case of pre-2009 Act mortgages of unregistered land, the mortgagee was the legal owner of the lands, subject only to the mortgagor’s equity of redemption. Plainly, therefore, if the mortgagor defaulted in payment, the equity of redemption no longer held sway and the mortgagee was entitled to resume the possession to which he had been formally entitled under the indenture of mortgage. Here again, the title of the mortgagee has been affected by the default and for that reason he or she is entitled to proceed to eject the mortgagor. As this is therefore a matter of title, it is clear that the mortgagee is entitled to proceed by way of Ejectment Civil Bill, irrespective of whether the land was unregistered or, since 1942, registered.

18. It is quite clear, therefore, that this particular objection to the use of the Ejectment Civil Bill must accordingly fail on its merits. This consideration notwithstanding, it is hard to see what – if any – conceivable prejudice could have been visited on the defendants through the use of that procedure, even if (contrary to my view) this procedure was incorrect, it is an objection for want of form only. It could not in these circumstances at least have affected the right of plaintiff to such relief as it might otherwise have been entitled.
Is the plaintiff entitled to possession in respect of (i) the registered portion of the lands and (ii) the unregistered portion of the lands?
19. The present proceedings were commenced by way of an Ejectment Civil Bill on the Title in respect of both the registered and unregistered lands which were comprised in the mortgage deed of October 2003. The plaintiff mortgagee did not, as such, invoke s. 62(7) of the 1964 Act in its pleadings. We may, however, consider separately the position with regard to both unregistered and registered land.

20. Section 62(7) of the 1964 Act provided that:-

“When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge … may apply to the court in a summary manner for possession of the land …, and on the application the court may, if it so thinks proper, order possession of the land … to be delivered to the applicant, and the applicant, upon obtaining possession of the land …, shall be deemed to be a mortgagee in possession.”
21. This sub-section must be read in context with its companion sub-section, s. 62(6) of the 1964 Act:-
“On registration of the owner of a charge on land for the repayment of any principal sum of money with or without interest, the instrument of charge shall operate as a mortgage by deed within the meaning of the Conveyancing Acts, and the registered owner of the charge shall, for the purpose of enforcing his charge, have all the rights and powers of a mortgagee under a mortgage by deed, including the power to sell the estate or interest which is subject to the charge.”
22. Section 62(7) was, however, repealed with effect from 1st December, 2009, by s. 8(3) and Schedule 2, Part 5 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”). But as Laffoy J. herself pointed out in EBS Ltd. v. Gillespie [2012] IEHC 243 (as had indeed Dunne J. in her judgment in Start Mortgages Ltd. v. Gunn [2011] IEHC 275), s. 27(1) of the Interpretation Act 2005 (“the 2005 Act”) provides that the repeal of any enactment does not “…affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment.” Section 27(2) of the 2005 Act provides that where an enactment is repealed, any legal proceedings (including civil proceedings) may be “instituted, continued or enforced…as if the enactment had not been repealed” in respect of the right or obligation in question.
23. Laffoy J. then continued thus in Gillespie:-

“In order to determine whether, notwithstanding the repeal of s. 62(7), the jurisdiction of the Court to make an order for possession under that provision is alive as regards the plaintiff’s claim against the defendant in these proceedings, the crucial question is whether it has been established that the plaintiff had acquired as against the defendant a right to seek the statutory remedy in the form of an order for possession of the property secured by the charge prior to 1st December, 2009. The answer to that question turns on the application of the requirements of s. 62(7) in the context of the agreement between the plaintiff and the defendant embodied in the charge to the facts. In performing that exercise, because it is the easiest course to adopt, I propose looking at the matter from the historic perspective and considering whether the plaintiff has established that it had a right to seek an order for possession prior to 1st December, 2009. However, it is not to be inferred that I consider that such approach is the only approach to answering the crucial question.
In order to establish that its claim for possession came within s. 62(7) prior to 1st December, 2009, the plaintiff has to establish compliance with the two requirements expressly set out in the sub-section, namely:-

(a) that repayment of the principal monies secured by the charge had become due by that date; and
(b) that the plaintiff was the registered owner of the charge.

Requirement (b) was clearly complied with. As regards requirement (a), it is necessary to consider what was agreed between the plaintiff and the defendant in relation to repayment of the principal money secured by the charge. Apart from those two requirements, the Court must be satisfied that it would have been proper to afford the plaintiff the statutory remedy of an order for possession against the defendant to enforce the right acquired. Having regard to the observations of Geoghegan J. in Bank of Ireland v. Smyth [1993] 2 IR 102…., I consider the Court would have to be satisfied not only that the application was made bona fide with a view to realising the plaintiffs security, but also that the power of sale had arisen and was exercisable by virtue of the terms of the agreement between the plaintiff and the defendant contained in the Charge.”
24. It is plain here that ILP are the registered owner of the charge. The real question is whether the monies in question had become due prior to 1st December, 2009. In the letter of demand dated 11th December, 2008, ILP referred to the arrears of almost €7,500 and then said:-
“As a result of the arrears stated above and the terms of your mortgage, the Bank is now entitled to recover possession of the mortgaged premises.
Accordingly, unless the above mentioned arrears are discharged within 21 days of today’s date, or, alternatively, vacant possession is given to the Bank within 21 days; we will issue proceedings without further notice against you for a Court Order for the recovery of possession of the premises so that the property may be sold….”

25. It is clear, however, that the letter refers simply to the arrears and not to the principal sum. Put another way, had the arrears been discharged as of that date, then it is plain that ILP would not have proceeded further. While counsel for ILP, Mr. Seligman, accepted that no formal demand for repayment of the entirety of the mortgage monies was made by letter, he insisted that this was not necessary having regard to the relevant terms and conditions of the mortgage itself, namely, condition 6(2)(a), condition 6(4)(a) and condition 7(1) which may now be conveniently considered.
26. So far as condition 6(2)(a) is concerned, it merely says that formal notice requiring payment of the mortgage debt shall not be required. But this in itself does not tell determine whether the debt had become payable. Condition 6(4) is likewise not dispositive, since it simply purports to give ILP the right to enter into possession of the property without notice to the mortgagor “at any time after the total debt has become immediately payable”. This condition does not, however, determine whether the total debt has become payable.

27. Clause 7.1 provides, however, that:-

“The total debt shall become immediately payable to permanent tsb:-

1. If the mortgagor defaults in the making of two monthly repayment or for two months in the payment of any other moneys payable under the mortgage…”
28. It is, of course, true that there had been such default on the part of the mortgagor such as rendered the debt payable immediately given that more than two monthly payments had been missed. But this contractual clause in the mortgage deed had itself been almost instantly overtaken by the letter of 11th December, 2008, which, in effect, promised the mortgagor that the mortgage debt would not become due if the arrears were discharged. Could it be suggested that if the Duffs had, in fact, paid the arrears at that time that ILP could validly have called in the mortgage, the provisions of Condition 7.1 notwithstanding?
29. To my mind, it is clear that ILP could not so have demanded the repayment or otherwise contended that the entirety of the mortgage monies had become due, since by writing the letter in question, the bank were effectively waiving or superseding the strict entitlements of the mortgage deed. In essence, the letter amounted to a representation that the entire sum was not due. All of this is further underscored by the fact that in response to the letter of December 2008, Mr. and Ms. Duff offered to make two payments of €1,500 on 6th February, 2009, and 13th February, 2009. The Bank wrote in response on 28th January, 2009 agreeing to this, although stressing the importance of making these payments on or before that date. While, of course, the Duffs found it impossible to keep up with the repayments schedule, this sequence correspondence further illustrates that the Bank had not actually called upon the Duffs to repay the entire mortgage at this point or that it had ever in reality required them to do so.

30. In these circumstances, I am driven to the conclusion that as ILP had not unequivocally demanded repayment of the entirety of the mortgage debt prior to 1st December, 2009, the bank had not, in the words of Dunne J. in Start Mortgages, “acquired the right to apply for an order pursuant to s. 62(7) [as] the principal monies secured by the mortgage have not become due”. It follows, therefore, that this Court has no jurisdiction to grant the plaintiff bank possession pursuant to s. 62(7), as the latter’s right to apply for possession under that sub-section had not by 1st December, 2009, sufficiently crystallised for the purposes of s. 27(5) of the 2005 Act.
Does the Court have jurisdiction to grant the Bank possession of registered land pursuant to a contractual agreement?
31. Counsel for the Bank, Mr. Seligman, argued forcefully that even if it could not avail of the right to possession under s. 62(7) of the 1964 Act, it was nonetheless entitled to possession as a matter of contractual entitlement. I think that the short answer to that is that the Oireachtas had originally designated s. 62(7) as the sole mechanism whereby this Court could grant possession in this fashion to the holder of a mortgage over registered land (i.e., the well-charging procedure coupled with an order for sale described in the next paragraph excepted). Section 62(7) – following its earlier predecessor, s. 13 of the 1942 Act – thus rectified the yawning gap in the powers of such a mortgagee which Andrews L.J. had identified in Devlin by expressly granting such a power, such as already had been done for the first time in 1942. Given that the Oireachtas has removed that power – save in those cases of demand having been made or the entirety of the mortgaged sum fell due prior to 1st December, 2009 – in the case of pre-2009 Act mortgages of registered land, this Court cannot supply a power to recover possession where none existed in the first place independently of statute.

32. Of course, this does not at all mean, for example, that the Bank cannot sue independently to obtain a well-charging order and to ask the Court to exercise its “inherent” power of sale in that fashion: see Bank of Ireland v. Waldron [1944] IR 303 and Wylie, Irish Land Law (4th Ed., 2010) at 801. Rather, all that has been decided by me is that as the Bank neither demanded repayment of the entire sum nor that the entire sum had properly become due prior to 1st December 2009 (the terms of the mortgage deed notwithstanding), the statutory power to allow a mortgagee possession by means of court order in respect of registered land is no longer exercisable. Absent the applicability of that (now repealed) statutory power and given that the successor to s. 62(7) provided for in s. 97(2) of the 2009 Act only applies to mortgages created after 1st December, 2009, this Court cannot, as it were, create or invent a new power to grant the mortgagee possession.

33. I cannot, however, pass from this point without observing that ILP did not raise – and, of course, could not validly raise in the Circuit Court – the constitutionality of s. 8(3) of the 2009 Act insofar as it repealed a mortgagee’s right to seek an order for possession under s. 62(7) of the 1964 Act. Naturally, in view of the express language of Article 34.3.2 of the Constitution, the constitutionality of any enactment can only be challenged in original proceedings commenced in the High Court.

34. From the standpoint of ILP, however, the constitutionality of such a measure might well be questioned. After all, the mortgagee might well ask why, as a result of what it might fairly consider a piece of legislative legerdemain, an essential ingredient of its security interest (namely, the right through court order to recover possession of the mortgaged property) was now made contingent on the essentially fortuitous issue as to whether a full demand for repayment had been made or the mortgage sum had otherwise become due prior to 1st December, 2009, even though the significance of this date was only to become apparent some time later in July, 2011 following the decision of Dunne J. in Start Mortgages.

35. In these circumstances, a lender might well question whether the legislation was based on rational considerations, i.e., the very first limb of the Heaney proportionality test (Heaney v. Ireland [1994] 3 I.R. 593). This concern might well be re-inforced when one considers that more or less the same power was simultaneously re-introduced for mortgages created after 1st December, 2009, by s. 97(2) of the 2009 Act. One might also query whether by significantly curtailing (or, at least, circumscribing) a lender’s right to possession in this fashion, the Oireachtas unfairly struck at the substance of the lender’s property rights in a disproportionate fashion, which in this instance is the right to recover the security given in exchange for the loan where the borrower has defaulted.

36. These, however, are issues which will be doubtless ventilated in other proceedings and it would be inappropriate at this juncture to do any more other than to raise these issues and to draw attention to them.
Does the Court have jurisdiction to grant possession in respect of the unregistered land?
37. Prior to the enactment of the 2009 Act, the legal status of mortgages over unregistered land was underwritten by a great deal of legal fiction which, although hallowed by unquestioned usage over the centuries, had long ceased to have any real or practical reality. In theory, the mortgagee generally took a conveyance of the lands by fee simple, subject to the mortgagor’s equity of redemption. For so long, therefore, as the mortgagor honoured the terms of the mortgage, he or she was entitled to possession. This is all faithfully reflected in the indenture of mortgage created in the present case so far as the unregistered portion of the land is concerned.

38. One of the great achievements of the 2009 Act has been to liberate the law from these unnecessary and cumbersome fictions. Accordingly, therefore, the creation of mortgages over unregistered land after 1st December, 2009, has been largely assimilated to that regarding registered land, so that the mortgage now operates as a charge on the title of the mortgagor: see s. 89 of the 2009 Act.

39. The present case concerns a pre-2009 Act mortgage, so that the mortgagee is entitled under the mortgage to possession by virtue of the fact that – reflecting the then prevailing legal fiction of which we have just spoken – Mr. and Ms. Duff had conveyed unto ILP their entire beneficial estate subject to the equity of redemption. That in turn meant that they were entitled to possession of the property by virtue of that equity of redemption, subject only to compliance with their repayment of obligations under the mortgage.

40. There is fundamentally no dispute but that the present mortgage is significantly in arrears. Nor could it be realistically argued that ILP are not otherwise entitled in principle to possession in respect of the unregistered portion of the lands (subject to the question of a stay). But here again it is necessary to re-visit the legal fiction underpinning a mortgage of this kind in respect of unregistered land

41. In theory, the mortgagee is entitled to take possession peaceably without even the need for a court order. As Mr. Seligman fairly stressed, this in practice never arises. What happens, however, is that even in the case of unregistered land, the practice had de facto assimilated itself to that of registered land, so that the lender here too would first ask the Court for order for possession and forebore to exercise the right to possession which the mortgage deed clearly gave him, even where the mortgagor had forfeited his equity of redemption by defaulting on the mortgage repayments

42. It is, of course, true that there is modern authority for the proposition that a mortgagee is entitled to take peaceable possession of the dwelling of a defaulting mortgagor without the need for a court order: see First National Building Society v. Gale [1985] IR 609, 612, per Costello J. Yet the decision in Gale must now be re-examined in the light of Article 40.5 of the Constitution and the contemporary jurisprudence concerning the interpretation of this constitutional provision insofar as the pre-2009 Act law permits the peaceable recovery of dwellings situate on unregistered land by the mortgagor without the necessity for court order.

43. It is true that Gale rests on the idea of a contractual licence (i.e., the right of the mortgagee to take possession pursuant to the deed once the defaulting mortgagor has lost the equity of redemption) and one might, of course, say that any homeowner is free to come an agreement that he or she will allow a third party to take possession in defined circumstances. But this would be to allow the triumph of ancient legal fictions over the requirements of justice in a modern society.

44. The key points, however, in this context are surely the requirements of notice, foreseeability and independent determination of the objective necessity for yielding up of possession which is inherent in the judicial process. All of these are key values comprised in the very essence of the protection of the “inviolability” of the dwelling guaranteed by Article 40.5. This was issue which did not feature at all in Gale, but which now requires to be evaluated in this context in the light of the contemporary case-law.

45. In the aftermath of the Supreme Court’s decision in Damache v. Director of Public Prosecutions [2012] IESC 11, [2012] 2 ILRM 153 (where legislation permitting the grant of non-judicial warrants in respect of a family home was found unconstitutional), the Court of Criminal Appeal has taken the opportunity in a series of cases to emphasise what Hardiman J. described in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 64, [2012] 2 ILRM 406 as the “intrinsic importance” of Article 40.5 to a free and democratic society.

46. In another post-Damache decision, The People (Director of Public Prosecutions) v. O’Brien [2012] IECCA 68, Hardiman J. also observed that:-

“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.”
47. If I might also venture to repeat what I said in Sullivan v. Boylan [2012] IEHC 385 in this context:-
“The Irish language text of Article 40.5 (“Is slán do gach saoránach a ionad cónaithe….”) captures and expresses the essence of the English language word (“inviolability”) by stressing the concepts of safety and security of the dwelling.”
48. This assurance of security and protection inherent in the guarantee of “inviolability” would be fundamentally compromised if peaceable possession of a dwelling could be taken by a lender at almost any time other than by means of a court order without express notice to the borrower in the manner envisaged by Costello J. in Gale merely because the borrower was in default, even if this were to be contractually agreed by reason of the pre-2009 Act fictions in respect of unregistered land we have just examined. Nor could this be assured if the determination as to whether the borrower was in actually in default was to be left to the say-so of the lender or whether there was an objective justification for the mortgagee taking possession of the dwelling without any independent determination of these questions by the judicial branch.
49. This conclusion, in any event, merely reflects the new statutory prohibition which (subject to minor exceptions) precludes a mortgagee taking possession of mortgaged property without a court order and which is now provided for in the 2009 Act: see s. 97(1) of the 2009 Act.

50. None of this is to suggest that a defaulting borrower can invoke Article 40.5 to avoid having to yield up possession where a court so orders, no more than Article 40.5 can be invoked to justify the unlawful construction of a dwelling on another’s land or the construction of a dwelling without planning permission: see, e.g., Wicklow County Council v. Fortune [2012] IEHC 406. It is, however, to say that those elements of formal notice, foreseeability and an independent determination of the objective necessity for possession of the dwelling are presupposed by the guarantee of inviolability and these protections cannot be assured outside the judicial process or, at least, something akin to the judicial process.

51. All of this means that even in the case of unregistered land, the homeowner cannot be required to give up possession save by court order. But unlike the position with regard to registered land (which was governed by statute), in the case of unregistered land the courts have always assumed a jurisdiction to grant possession and, in fairness, mortgagees have always (or, at least, almost always) submitted to the necessity for court adjudication and an actual order before taking possession ever before the enactment of s. 97(1) of the 2009 Act.

52. All of this is to say that the court retains a jurisdiction to determine whether to make an order for possession in the case of unregistered land and this general jurisdiction to grant possession is not affected by the operation of the 2009 Act in the same manner as has occurred in the case of registered land. The real question, therefore, is whether this Court should exercise that jurisdiction in this particular case. It is contended, however, that by failing to engage with Mr. and Ms. Duff with regard to the issue of mortgage arrears and their capacity to repay, ILP have not complied with the Financial Regulators’ Code of Conduct and that, as a result, no order for possession should now be made.

53. It is, therefore, to this final issue to which we can now turn.
The Code of Conduct
54. As we just seen, the claim that ILP have not complied with the Financial Regulator’s Code of Conduct on Mortgage Arrears is central to the defendants’ defence of these proceedings. It is thus necessary to consider the somewhat troublesome issue of the precise legal status of the Code of Conduct. At the outset, it is, however, necessary to state how the defendants maintain that ILP have not complied with the Code.

55. First, according to the latest affidavit sworn by Mr. Duff on the 13th November, 2012, he was never offered “any alternative repayment arrangement” or a “mortgage holiday, deferred payments, interest only or recapitalisation”. He also says without contradiction that he made an oral offer of interest only repayments, but that this was rejected and that he was not informed of his right to appeal.

56. Second, Mr. Duff also objects to the way in which he and his wife were classified as “non co-operating borrowers” by the Bank. He acknowledges that his wife sold a small portion of land which, after expenses, came to €6,200. These funds were used to discharge basic household essentials (such as food and to pay arrears due in respect of electricity bills). He says that the Bank were fully aware of this proposal – something which the Bank denies – and that they was never an agreement that the proceeds of the sale would be paid to the Bank.

57. The Code itself is promulgated under s. 117 of the Central Bank Act 1989 (“the 1989 Act”). Section 117(1) provides that:-

“(1) The Bank may, after consultation with the Minister [for Finance], from time to time draw up, amend or revoke, in relation to any class or classes of licence holders or other persons supervised by the Bank under this or any other enactment, one or more than one code of practice concerning dealings with any class or classes of persons and every such code shall be observed by the licence holders, or other persons so supervised, to whom they relate.”
58. There is no doubt but that the Central Bank, as regulatory authority, has power to invoke the administrative sanctions procedure contained in Part IIIC of the Central Bank Act 1942 (as amended by s. 10(1) of the Central Bank and Financial Services Authority of Ireland Act 2004)(“the 2004 Act”). Breach of the code is designated as a criminal offence: see s. 117(4) of the 1989 Act (as substituted by Schedule 3 of the Act of 2004).
59. It is, of course, important to recall that the Oireachtas could not by means of enacting s. 117 effectively give the Central Bank the power to change the substantive law by making codes made pursuant to this provision. As this Court recently pointed out in the (admittedly different) context of guidelines governing prosecutorial discretion, an administrative officer cannot effectively change or alter the law through this mechanism, since the power to enact legislation is constitutionally reserved to the Oireachtas by Article 15.2.1 of the Constitution: see Fleming v. Ireland [2013] IEHC 1. Likewise, in Crawford v. Centime Ltd. [2005] IEHC 325, [2006] 1 ILRM 543, Clarke J. held that the Revenue Commissioners enjoyed no general discretion to waive, alter or otherwise dispense with the law by means of published guidelines, even if those guidelines had the merit of enabling taxpayers better to understand their legal rights and obligations. By the same token the Supreme Court held in Curley v. Governor of Arbour Hill Prison [2005] IESC 49, [2005] 3 IR 308 that secondary legislation could not be read as having been superseded by an industrial relations agreement, even if the secondary legislation in question had itself been the product of industrial relations negotiations.

60. The question of the status of the Code has been examined in a number of recent cases. In Zurich Bank v. McConnon [2011] IEHC 75 Birmingham J. rejected the suggestion that the Code created any justiciable rights at the hands of a consumer:-

“Entirely lacking is any suggestion that a breach of the Code renders the contract null and void or otherwise exempts a borrower from the liability to repay. The questions of sanctions is referred to in s. 33AQ of the Central Bank Act 1942, as amended by s. 10(1) of the Central Bank and Financial Services Authority of Ireland Act 2004. This contains provisions for matters such as caution or reprimand, the payment of a monetary penalty to the financial regulatory authority, disqualification provisions and the like, but again there is no suggestion that a lender is prohibited from seeking repayment from its borrower. The contrast between the approach taken in the Code and the approach of the Consumer Credit Act 1995, is striking. Section 30 of the Act contains mandatory provisions concerning a credit agreement or contract of guarantee entered into by a consumer. Matters such as a requirement for the agreement to be in writing and for a cooling off period are dealt with. Section 38 of the Act deals with the consequences of failing to comply with the requirements of the section and provides that a creditor will not be entitled to enforce a credit agreement or contract of guarantee and that any security given shall not be enforceable. There are no comparable provisions whatever in the Code.”
61. One might add that s. 117 of the 1989 Act contains no mandatory sanction of voidness such as has been adopted in other cases where the consumers have either pledged the credit of or were otherwise engaged in selling their family home, of which s. 3(1) of the Family Home Protection Act 1976 is perhaps only the most notable example. Birmingham J. then went on to reject the implied terms argument:-
“The defendant has argued that the Code forms an implied term of the contract. There are a number of fundamental difficulties with this argument. First of all the question arises by what method is it suggested that a term has been implied. It is not the case that any terms have been implied by statute. There is also the question of what term would be implied if a mechanism for doing so was found. The only implied term that would assist the defendant would be a term that the Bank was obliged to comply in all respects with the Code and that the consequence of non compliance was that the borrower was exempted from the liability to repay the loan. If one introduces the traditional officious bystander into the equation then it would be seen that such a suggestion has little reality. The notion that a bystander asking whether such a term formed part of the agreement would be hushed by the parties jointly and impatiently snapping “of course” seems more than improbable. In summary I can see no basis for suggesting that any alleged breach of the Code exempts the borrower from repaying his loan.”
62. Of course, it must be acknowledged that while Birmingham J. found against the defendant on this ground, this was against a background where the judge had also found that he was not a “consumer” within the meaning of the Code and, furthermore, that the loan in question had been executed some two weeks before the first such Code had been promulgated. These comments were, accordingly, in all strictness merely obiter dicta.
63. A somewhat different approach is, perhaps, evident in the judgment of Laffoy J. in Stepstone Mortgage Funding Ltd. v. Fitzell [2012] IEHC 142. This was an undefended mortgage suit wherein the plaintiffs sought possession. While she acknowledged that it was necessary “to exercise caution in expressing a view on the application of the Current Code, particularly in the current economic climate”, Laffoy J. also acknowledged that “some development of the jurisprudence in this area in the future may be anticipated”.

64. In that case Laffoy J. held that the Code was applicable to the facts of that case and concluded that because the defendants in question had not been given any adequate opportunity of appealing a particular decision of the lender to an Appeals Board in the manner required by the Code, the plaintiff lender was thus in default.

65. Laffoy J. then proceeded to hold that:-

“Notwithstanding what is stated in the preceding paragraphs, I find it impossible to agree with the proposition that, in proceedings for possession of a primary residence by way of enforcement of a mortgage or charge to which the Current Code applies, which comes before the court for hearing after the Current Code came into force, the plaintiff does not have to demonstrate to the Court compliance with the Current Code. To take what is perhaps the best known provision of the Current Code, the imposition of a moratorium on the initiation of proceedings, which is now contained in provision 47 of the Current Code (and which was also to be found in the earlier codes, although the moratorium period in the case of the earliest code was six months, rather than twelve months), surely a court which is being asked to make an order which will, in all probability, result in a person being evicted from his or her home, is entitled to know that the requirement in provision 47, which has been imposed pursuant to statutory authority, is complied with. Moreover, it is likely that it would render the enforcement of provision 47 nugatory, if a lender did not have to adduce evidence to demonstrate that the moratorium period had expired.”
66. Laffoy J. then concluded that the plaintiff lender was not entitled to possession because it could not show it had complied with the provisions of the Code. This was because she concluded that the borrowers had not been advised of their right to appeal in the manner required by the Code.
67. The present case is governed by the 2009 Code of Conduct which was the one applicable at the time of the commencement of the proceedings. Clause 6 of the Code provides that:-

“the lenders must not seek repossession of the property until every reasonable effort has been made to agree an alternative repayment schedule with the borrower or his/her nominated representative. However where it is clear that the borrower is deliberately not engaging with the lender or where other circumstances reasonably justify [it] the lender may seek repossession in the absence of any engagement with the borrower.”
68. The question, for example, of what constitutes a “reasonable effort” on the part of the lender does not easily lend itself to judicial analysis by readily cognisable legal criteria. How, for example, are “reasonable efforts” to be measured and ascertained? If, moreover, non-compliance with the Code resulted in the courts declining to make orders for possession to which (as here) the lenders were otherwise apparently justified in seeking and obtaining, there would be a risk that by promulgating the Code and giving it a status that it did not otherwise legally merit, the courts would, in effect, be permitting the Central Bank unconstitutionally to change the law in this fashion. Likewise, the argument advanced by Birmingham J .in McConnon regarding the absence of any statutory indication that failure to comply with the Code would affect the ability of the lender to secure relief may be thought to be a forceful one.
69. While I am acutely conscious of these concerns, given these cross-currents of judicial opinion, I feel that I must nonetheless follow the most recent pronouncement of this Court in Fitzell, given that this is the most recent and authoritative analysis of this question where the judicial comments formed part of the ratio of the decision: cf. by analogy my own judgment in AG v. Residential Institutions Redress Board [2012] IEHC 492 and the comments of Clarke J. for the Supreme Court in Kadri v. Governor of Cloverhill Prison [2012] IESC 27 regarding the importance (where possible) of maintaining stare decisis at High Court level in respect of earlier High Court decisions. This is especially so where the decision is recent and all issues have been fully considered. It is essentially for that reason that I feel that I must follow Fitzell while departing from the earlier decision in Gale, the latter decision having been overtaken in any event by constitutional and statutory developments.

70. Proceeding from that standpoint, therefore, in the present case I feel I cannot ignore the averment made by Mr. Duff that he offered the Bank interest only repayments in 2009, but that this was rebuffed. In these circumstances, I find myself coerced to the conclusion that the Bank did not comply (or, at least, comply fully) with the requirements of Clause 6 of the 2009 Code prior to the effective commencement of the proceedings in that it cannot be said that “every reasonable effort” had been made to agree an alternative repayment schedule in the discussions which ensued in 2009, even if some of these discussions formally post-dated the commencement of the present proceedings by some weeks or even months.

71. Nor can it be said that at that stage – whatever possibly may have been the case subsequently – that the Duffs were non-cooperating borrowers. On the contrary, they seem to have been as frank and forthcoming with the Bank – whether personally or through their solicitors in correspondence – to the effect that they were facing acute financial difficulties and sought some way out of the dreadful circumstances into which they – like so many others – had been plunged.
Conclusion
72. In these circumstances, I must therefore conclude:-

A. The Court no longer has jurisdiction to make an order for possession of the registered land in view of the repeal of s. 62(7) of the 1964 Act. Nor had the rights of the Bank accrued prior to 1st December 2009, since the entirety of the mortgage monies had neither been demanded nor were they actually due prior to that date.
B. The Court has a jurisdiction to grant possession in respect of the unregistered land. While the level of arrears is such that an application for possession would normally be justified, in the present case, following the decision of Laffoy J. in Fitzell, I must ask whether the Bank have complied with the Code of Conduct.

C. As I have concluded that the Bank did not so comply with the requirements of Clause 6 of the Code in the manner that I have indicated, in line with the reasoning in Fitzell, it would not be appropriate for me to exercise a judicial discretion in favour of granting an order for possession.

D. It is in these special circumstances that I propose to allow the appeal and I would therefore decline to grant the Bank an order for possession. None of this should be taken as precluding the Bank taking such further steps to realise the security as it may now consider appropriate in the light of this judgment.

Wicklow County Council v Kinsella

[2015] IEHC 229

JUDGMENT of Kearns P. delivered on the 17th day of April, 2015
In these proceedings the applicants seek an order under s.160(1) of the Planning and Development Act 2000 as amended, restraining the respondents and each of them from continuing with an unauthorised development of lands on folio 8726 in the County of Wicklow where a timber chalet has been erected for residential purposes without planning permission. The applicants also seek an order pursuant to s.160 (2) of the Planning and Development Act 2000 as amended, directing the respondents to remove the said chalet, its concrete base and associated site works.
THE PLANNING AND DEVELOPMENT ACT 2000
The Planning and Development Act 2000 represents a consolidation of the law relating to planning and development which repeals and re-enacts with amendments various provisions of the Local Government (Planning and Development) Acts 1963-1999. The stated purpose of the Act is:-

“To provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing …”
Part VIII of the Act deals with enforcement, the aspect of planning laws with which the Court is concerned in the present case.
Section 151 of the Act provides that a person who carries out unauthorised development is guilty of an offence – a provision which, having regard to the severity of the sentences which may be imposed by virtue of s.156, may be taken as reflecting the importance attached by the Oireachtas to the serious implications of unauthorised development and the need for effective enforcement measures.

Section 152 provides for the issue of a warning letter by a planning authority to a person carrying out an unauthorised development. It permits a planning authority to ignore a development which is of a trivial or minor nature, so that the fact that such a letter does issue is of itself a serious step and may be seen as such.

Section 152 (4) sets out the details of what must be contained in a warning letter in such a way as to fully advise the recipient of the matter which has come to the attention of the planning authority and in respect of which the recipient may make submissions or observations in writing to the planning authority.

Section 153 permits the planning authority to make an appropriate investigation to determine whether or not to issue an enforcement notice. Before issuing an enforcement notice the planning authority must consider any representations made to it under s.152 and any other material considerations.

The service of an enforcement notice is provided for by s.154 and the detailed requirements of such a notice are elaborated at section 154(5).

Section 156 of the Act provides that a person who is guilty of an offence under, inter alia, ss. 151 or 154 shall be liable on conviction on indictment to a fine not exceeding £10,000,000 or to imprisonment for a term not exceeding two years or to both and on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding six months or both.

Section 160 provides for the making of an application to court and in relevant part provides as follows:-

“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do as the case may be, anything that the court considers necessary and specifies in the order to ensure, as appropriate, the following:-
(a) that the unauthorised development is not carried out or continue;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject;

(2) In making an order under subs. (1), where appropriate the court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.”

The respondents are brother and sister and are the registered owners of folios 8725 and 8726 County Wicklow. While the second named respondent is joint owner of the property the subject matter of this application she has had no part in the development the subject matter of these proceedings. There is on the property an existing uninhabited cottage which, at some time in the future, the second named respondent intends to refurbish and occupy. The first named respondent now resides in the newly erected wooden chalet with his partner and young son and occupies same as their family home.
In resisting the application the respondents argue that they are entitled to remain in situ pursuant to two decisions of the High Court delivered by Hogan J. in the same matter, namely, Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 and Fortune v. Wicklow County Council (No. 2) [2013] IEHC 255. Both were cases concerning the unauthorised construction of a dwelling in a scenic location near Lough Dan in Co. Wicklow and both formed different constituent elements of an appeal from the Circuit Court. There were two further Fortune rulings which were consequential upon orders and directions made in the earlier cases but do not require consideration in the present case.

That particular matter having been decided in the context of an appeal to the High Court – from which no further appeal was possible – the applicants in the present proceedings invite this Court to hold that the Fortune case was erroneously decided insofar as it purported to restrict to the extent it did the powers of a planning authority when dealing with an unauthorised development. There is, of course, a right of appeal from any decision of this Court to the Court of Appeal.

In the course of this judgment the Court will review the jurisprudence which outlines the circumstances and jurisprudence which underpin the deference one judge of the High Court should give to another when deciding a similar or identical point and the circumstances which would justify or even require the making of a different decision.
BACKGROUND FACTS
The respondents bought the holding comprised in folios 8725 and 8726 County Wicklow in 2003 with the assistance of a loan from EBS Building Society, the same being registered as a charge or burden on both folios. The date of registration of ownership of the properties and the charge is the 18th March, 2003. The property fronts on to the N81 national road which, as will appear later herein, is an extremely busy stretch of roadway with an average daily put through of 8,500 vehicles.

At the time of the purchase there was an old cottage on folio 8725 which remains in situ and is uninhabited. It is serviced with electricity and has its own water supply.

By planning application 07/285, the respondents, with the assistance of a firm of architects, sought planning permission for a dormer bungalow and other structures additional to the existing house on the land. On making this application, the Council requested further information which was not forthcoming from the respondents and the application was ultimately treated as having been withdrawn. The importance of this early application is to make clear that the respondents were well aware of the requirement to seek and obtain planning permission.

In late 2008, the applicant was advised that the respondents were creating an unauthorised entrance into the site from the N81 national road and issued a warning letter. On further investigation, it emerged that the “unauthorised entrance” was in fact damage caused to the boundary by a car accident. Nothing further turns on that particular incident in these proceedings.

On the 30th August, 2012 a planning official found that a timber chalet had been erected on a concrete plinth on the site some little distance from the existing cottage and was in the course of being fitted out. A warning letter under s.152 of the 2000 Act was sent to the respondents on the 14th September, 2012. By letter dated the 8th October, 2012 the first named respondent asserted that he had acted in the belief that he did not require planning permission as the development in question was the replacement of a previous structure on site. It appears that at some stage in the 1990s there was a mobile home or prefabricated structure on folio 8726, but this was gone at the time when the respondents bought the lands. The first named respondent indicated that he would, however, take the necessary steps to apply for retention.

On the 12th October, 2012 the first named respondent was told that he should lodge a valid application for retention within a period of six to eight weeks. He failed to do so.

A further inspection of the site on the 5th December, 2012 revealed that works had continued on the property which was by now nearing a state when it could be occupied. On the 19th December, 2012 an enforcement notice under s.154 of the Act of 2000 was served. This notice required that the respondent cease the use of the chalet and remove it. By the time of the next inspection which occurred on the 25th April, 2013, the chalet was occupied in the manner already indicated.

Accordingly, the applicants took a decision on the 17th May, 2013 to institute proceedings under s.160 of the 2000 Act seeking a court order for the removal of the unauthorised development. A letter dated the 4th June, 2013 communicated this decision to the respondents who took no steps or any other action by way of compliance and the present proceedings were accordingly commenced in October 2013.

The proceedings were made returnable to the High Court on the 11th November, 2013. An application for retention permission was made on the 8th November, 2013, but this application was refused for the reasons set out in a notification dated the 28th April, 2014. The first named respondent brought an appeal from this decision to An Bord Pleanála which confirmed the decision of the applicant for the reasons set out in a written direction dated the 18th September, 2014. The essential grounds of the decision are danger to public safety by reason of traffic hazard.
REVIEW OF THE AFFIDAVIT EVIDENCE
In this case there has been a substantial amount of affidavit evidence, much of it filed on behalf of the applicants, not least because of their stated apprehension of the damaging implications for the enforcement of planning laws arising from the Fortune decision.

The grounding affidavit of Paul Brophy, a technician in the Planning Enforcement Section of Wicklow County Council, sworn on the 16th October, 2013 states that he is familiar with the lands in question and inspected them initially in November 2008 and again in 2009 following a complaint about the opening of a new entrance therefrom onto the N81. However, this alteration to the property was the result of a car crash and is of no particular significance from a planning point of view. However, his inspections of the location in 2008 and 2009 enabled him to depose that there was at that time no structure or building in place where the chalet, the subject matter of these proceedings, is presently located. A local resident made a complaint about the erection of the wooden chalet in July 2012 and he made a further attendance on the 30th August 2012 in this regard. He found that a timber chalet had been constructed on a concrete floor slab on the lands encompassed within folio 8726, together with an open trench running between the side of the chalet and the site boundary to the north east which contained a waste water pipe which was connected to the chalet. The end of the pipe furthest away from the chalet was not connected to anything and lay open on the trench. On the ground to the south of the chalet was a new AJ box which had been covered with a section of plywood, although he saw no evidence that a new septic tank had been installed. Internal works were ongoing when he arrived, although there were no people or work vehicles on site.

Following this inspection, he recommended that a warning letter under s.152 be sent to the respondents and this was duly done on the 14th September, 2012. The first named respondent replied to this letter on the 8th October, 2012 stating that the cabin he had erected as his family home replaced a similar previously existing structure on the same site, a contention which Mr. Brophy firmly rejects. The first respondent indicated he would apply for a retention permission.

A further inspection on the 5th December, 2012 found that works had continued apace since service of the warning letter in September 2012. Furthermore, no application for retention had been lodged by the first named respondent contrary to what he had indicated in his letter of the 8th October, 2012. Following a further inspection on the 25th April, 2013, Mr. Brophy was satisfied that works had been carried out since service of the enforcement notice in December 2012 so that the enforcement notice had not been complied with in any respect. Following this inspection he recommended that s.160 proceedings be commenced. A further inspection on the 27th August, 2013 confirmed that the concrete base and the chalet remained in place and that the chalet was now furnished. It appeared that the chalet was being used for residential occupation and user. A hall light was observed to be on within the old stone cottage on the site also.

Rosemarie Dennison is an Administrative Officer employed in the Planning Enforcement Section of Wicklow County Council. In her lengthy affidavit sworn on the 15th October, 2013 she confirms that the respondents sought planning permission on the lands comprised within folio 8726 in 2007 (ref 07/285) for a 334 sq. metres dormer bungalow, a septic tank and waste water treatment system. She confirms that the County Council sought further information in relation to the application by letter dated the 10th April, 2007 but, even though the respondents had architects acting on their behalf at the time, there was no response to their requests for further information and accordingly the planning application was deemed to be withdrawn.

She says that, apart from the incident involving car damage to the external fence, there were no further developments regarding this site until July 2012. At that time a representation was made by a Blessington resident to the County Council to the effect that they had recently noticed the erection of a residential dwelling in the form of a timber structure. Having referred to the warning letter sent on the recommendation of Mr. Brophy the deponent confirms that in his letter of the 8th October, 2012 the first named respondent had indicated that he would take all necessary steps to apply for retention, but no such steps were implemented. Thereafter the enforcement notice was served. She confirms that the s.160 proceedings were authorised by the duly designated officer of Wicklow County Council on the 17th May, 2013, following which a further letter was sent to the respondents by the solicitors retained for the purpose of these proceedings by the County Council on the 4th June, 2013 advising that s.160 proceedings would be drafted and issued.

She deposes that while affidavits were being finalised with a view to issuing Circuit Court proceedings, the High Court issued its decision in the case of Wicklow County Council v. Fortune (No. 2) on the 6th June, 2013. Ms. Dennison states:-

“That particular decision appears to have far reaching consequences for the enforcement of the planning laws in this country by way of reference to the constitutional protection afforded a dwelling under Article 40.5 of the Constitution. In that case, Mr. Justice Hogan declined to order the demolition of a house which he had already found to be ‘entirely unlawful’.”
She describes the fear and apprehension arising as a result of this decision that a judge of the Circuit Court may now feel precluded from making an order for the demolition of the chalet structure on these lands, given that the first named respondent has already confirmed that the structure is his “family home” and is relying on the aforesaid decision of the High Court in the Fortune case. She says the present proceedings were brought in the High Court in the first instance for that reason.
She confirms that planning permission is required for the works which have taken place on the lands comprised within folio 8726. No planning permission has been obtained and accordingly a situation of unauthorised development prevails which the applicants fear will continue unless an order is made by the Court.

Insofar as the first named respondent has maintained that the timber chalet replaced a similar previously existing structure which had been present for a period of approximately ten years, she deposes that planning permission would have been required for such a previous structure and the demolition of same and no such planning permission was applied for or exists. No such structure was evident on the site when it was inspected in the years 2007-2009.

A further affidavit was sworn by Ms. Sorcha Walsh, Acting Senior Planner with the applicant on the 15th October, 2013 in which she states that she carried out an inspection of the site on the 5th April, 2007 for the purpose of the planning permission lodged in that year (ref 07/285). On that occasion the only structure she found on the lands within folio 8726 or the adjoining lands comprised within folio 8725 (which effectively all formed part of the one site), was an old (uninhabited) stone cottage. She did not see any timber chalet or other structure on the site. Had there been such a structure she would have made reference to same and in the County Council’s requests for further information on the planning application as it would have been a highly pertinent and relevant matter.

She further confirms the fears and apprehensions felt by the applicants in respect of the High Court decision in the Fortune case, that the same has “far reaching consequences and implications for the proper enforcement of the planning laws in this country and in these circumstances, it is appropriate that this Honourable Court hear this particular case as a court of first instance”.

She enumerates as relevant to the Court’s consideration a number of points as follows:-

(a) The respondent knew that planning permission was required for the construction of the new dwelling;
(b) No residential user of the timber chalet had commenced at the time the warning letter was sent in September 2012, nor at the time the enforcement notice was sent in December 2012. Instead, work continued in the full knowledge of the County Council’s warnings contained in correspondence and the enforcement notice.

(c) In reply to the warning letter of the 14th September, 2012, the first named respondent stated he would like to take all necessary steps to apply for retention. At that stage, the dwelling was not occupied, but no application for retention (as of the time of swearing the affidavit) had been made

(d) In respect of any retention application, it would be necessary to show compliance with the rural policies of the Council, to provide an effluent disposal system and site entrance that meet current standards.

(e) The site is located on the N81, a national secondary road, with limited sight lines at the centre-line of any entrance to the property.

(f) Two dwellings on the site would effectively double the number of traffic movements in and out of the existing entrance.

In the same affidavit Ms. Walsh went on to refer to other difficulties arising by virtue of the fact that the site is located within the Liffey basin river catchment area and overlies the Blessington aquifer. She deposed that the nature of the effluent disposal arrangement serving the new dwelling was not clear. Nor was it clear why there was any need for a new dwelling on the site having regard to the fact there was already a habitable dwelling present.
In concluding her affidavit, Ms. Walsh stated that, if no order for demolition is made, others may take the view that if they perceived planning difficulties of their own, they would simply go ahead and build in the hope that either no proceedings would be taken or if so, no order for demolition would be made. In other words, without legal clarification following the Fortune case, the applicants believe there is carte blanche for individuals to build family homes where and how they want with perceived immunity arising from the constitutional protection of the family home. The deponent expresses her serious concern that this would undermine the whole planning, legal and democratic process.

In his first replying affidavit, Gregory Kinsella confirms that he and his sister purchased the site in or around 2003 and that there was a stone cottage present on the site at the time of purchase. He believes there had been in years past a cabin which had been erected by the previous owner Danny Nolan. He states that in May 2012 he commenced the construction of a dwelling on folio 8726 in the same location as the previous cabin. He deposes he had no alternative at that time for housing his family. The mortgage on the property was in arrears and, after a failed attempt to sell the property in 2011, he was left with “no option” but to live on the land with his partner and child. He says he constructed the dwelling in May 2012 and spent subsequent week-ends and evenings after work between May and December installing drainage, electric cables and connecting to the existing septic tank to service same. He moved in to the cabin in December 2012 with his partner Laura and son Christian. He continues to reside there. He deposes that he has a strong family connection to the area and that his parent’s property, where he was brought up, is close by.

In relation to the other dwelling, the old stone cottage, he says it is unoccupied and that his understanding with his sister when they purchased the property was that she would reside in it at some future point and that understanding remains in place.

He does not believe that any traffic hazard exists at this location and offered in support a letter from Mr. Jong Kim, a Senior Town Planner. He confirms however that he had submitted an application for retention planning permission in December 2013.

He deposes further that he believes his case is on all fours with that of Wicklow County Council v. Fortune insofar as the property sought to be demolished is a dwelling house constructed by an individual who has a real need for housing which is not causing harm or difficulty, and the court should “in line with the precedent in Fortune and having regard to Article 40.5 of the Constitution of Ireland refuse to exercise its discretion to grant such an order”.

The affidavit of Tom O’Leary, Senior Executive Engineer from the Transportation and Roads Infrastructure Directorate of Wicklow County Council was sworn on the 23rd January, 2014. He disputes any assertion by the respondent that there are good sight lines at the entrance to the property. He states that the N81 at this point is heavily trafficked with free fast flowing traffic unimpeded by traffic flowing in the opposite direction. Speeds of 100km/h are easily achievable. This is a single carriageway rural section of the N81 that has either no hard shoulders, has narrow hard strips or has occasional hard shoulders. The capacity of this road is 8,600 vehicles per day annual average daily traffic as per Table 6/1 of the National Roads Authority’s Road Link Design document NRA TD 9/12 of February 2012. He says that the road is running at “pretty close to capacity”. The sight lines for vehicles emerging from the entrance create significant safety concern on this high-speed, busy free flowing road. The site entrance is located within a 1.5km section of N81 which is designated as being extremely hazardous by way of gateway signage that has been erected at both ends. The signage provides advanced warning signs of a series of sharp bends and regulation signs for no overtaking. The centre line road markings are generally marked with double white continuous lines with occasional breaks provided for site entrances. He believes any intensification of use of this existing access would create an increased risk to road users in that there is insufficient forward visibility for right turning traffic of vehicles approaching the site entrance from the south and similarly there is insufficient forward visibility for road users travelling north of right turning traffic into the site.

The second affidavit of Paul Brophy was sworn on the 23rd January, 2014. He takes issue with Mr. Kinsella’s assertion that there had previously been a cabin on the site in question. He points out that when the respondents applied for planning permission back in 2007, no mention of this previous structure was made in that application. Having made further enquiries, he believes that some form of mobile dwelling existed previously on the site, though more to the front of the site, but historic aerial photographs confirm that no structure was located on the footprint of the current cabin. It appears that this mobile home had been set up above the ground on blocks and had clearly been removed in the 1990s. No other structure had been in place prior to when the first named respondent commenced construction of the current cabin in May 2012, a period of at least twelve years.

In relation to Mr. Kinsella’s suggestion that, for all intents and purposes, the property was effectively complete by the time he received the warning letter in September 2012, Mr. Brophy states that this was certainly not the case. There were significant outstanding works as of September 2012 and, by his own admission, the first named respondent did not move into the premises until the 9th December, 2012, over three months after Mr. Brophy’s initial inspection and just under three months after receiving the initial warning letter.

He deposes that the site is too small to accommodate two dwellings and deals in some detail with the Council’s and the EPA’s requirements which are of a minimum nature, and which were known to the respondents since 2007. From his inspections, it has not been possible to ascertain what type of effluent treatment system is on the site and is servicing the dwelling.

He reiterates that the retention permission (ref 13/8842) lodged by Mr. Kinsella resulted in a request for further information sent to him on the 19th December, 2013. The respondent had six months from the date of such request to furnish such information.

In her second affidavit sworn on the 23rd January, 2014, Sorcha Walsh takes issue with the assertion by the respondent that he had “no other alternative for housing for his family” by reason of his financial circumstances. She deposes that many people throughout the country are in financial hardship but do not engage in illegal development. She deposes that the respondent is simply unable to comply with the various requirements of the County Council outlined in previous affidavits. The respondents had been aware of the position with regard to planning since 2007 and had only recently made an application for retention following the enforcement measures initiated by the County Council. She reiterates that the entrance poses a traffic hazard on a number of levels. To the extent that the respondent seeks to rely on the decision of the High Court in Wicklow County Council v. Fortune, she submits that this particular case is far from being “on all fours” with that decision, particularly by reference to the traffic hazard that the entrance to the site poses, together with the public health hazards that presently exist on the site. The detailed analysis conducted by Mr. Brophy had shown that the site is inadequate for two dwellings. These difficulties did not arise in the case of Wicklow County Council v. Fortune.

The affidavit continues to repeat the various considerations and reasons why, in the view of the deponent, the relief sought in the notice of motion should be granted. She makes the significant point that, by building this dwelling without applying for planning permission, third parties who might have had a wish to object, have been totally excluded from the process and their rights, both statutory and constitutional, have been rendered null and void.

The second replying affidavit of Gregory Kinsella, sworn on the 4th March, 2014, is somewhat argumentative in nature. He complains of being “avalanched” by the volume of technical material relied upon by the applicants. He repeats that it was his belief that, because there had previously been a chalet on the site for a period of ten years without any objection from the applicant council, that he would not need permission for the development he has carried out.

However, implicitly recognising that planning permission was and remains necessary, the respondent confirms that he did set in train the paper process to apply for retention permission when he was in receipt of the warning letter from the County Council. He does not see any objective consideration of any convincing public reason why the dwelling should be demolished, other than the Council’s belief that he should not be permitted to retain the dwelling without having applied for planning permission.

In her third affidavit sworn on the 16th May, 2014, Sorcha Walsh rejects any suggestion that the Council intended to consider the respondent’s application for retention other than in an objective way. She stresses that in this instance the authority is wearing its planning enforcement hat. Planning enforcement is a totally separate and distinct department from the remainder of the Council and, in particular, the planning department.

She points out that the first indication of any intention to apply for retention permission was outlined in the respondent’s letter of the 8th October, 2012. Thereafter, further correspondence issued to the respondents including enforcement notices and warning letters. The proceedings were issued in October 2013 with a return date of 11th November, 2013. The retention application was lodged three days before the return date on the 8th November, 2013. The deponent states her belief that it took the institution of these proceedings before the retention application was made. She repeats that Mr. Kinsella himself decided to move into the newly constructed dwelling in the full knowledge that the dwelling was unauthorised. She also states that the main reason for the refusal of retention by the Council is the serious traffic hazard posed by the development. She says that given that Mr. Kinsella accepts that the dwelling has been erected without planning permission, the only issue is whether the Court should order the demolition and removal of the dwelling. In the context of refusal of retention by the Council in April 2014, the deponent referred to reports from the planner Edel Bermingham dated the 17th December, 2013 and 25th April, 2014 in which she (Edel Bermingham) concluded that while certain difficulties could be overcome with regard to effluent treatment, the serious traffic hazard issue could not. Her affidavit goes on to again refer to the High Court decision in the Fortune case and to reiterate the concerns of the County Council with regard to the implications of same.

The second affidavit of Tom O’Leary was sworn on the 16th May, 2014. In it he confirms he recommended a refusal of the application for retention (ref 13/8842) brought by the respondent. He clarifies that when the application was made, a request for further information was issued by the Council with respect to the application. Arising therefrom, a report was submitted on behalf of the first named respondent by Trafficwise Traffic and Transport Solutions which he was asked to review. He prepared such a report on the 24th March, 2014 which, having had due regard to all points advanced, nonetheless concluded there was a serious traffic hazard at the entrance to the development such that he again recommended a refusal of the application for retention for the reasons set out at p.7 of that report. In this affidavit he points out that the National Roads Authority also opposed the development for policy reasons in their letter dated the 28th November, 2013 addressed to Wicklow County Council Planning Department. Gráinne Leamy of the National Roads Authority wrote as follows in relation to Mr. Kinsella’s application for retention:-

“The authority has examined the above application and considers that it is at variance with official policy in relation to control of development on/affecting national roads, as outlined in the DoECLG Spatial Planning and National Roads Guidelines for Planning Authorities (2012), as the proposed development by itself, or by the precedent which a grant of permission for it would set, would adversely affect the operation and safety of the national road network for the following reasons:-

‘Official policy in relation to development involving access to national roads and development along such roads is set out in the DoECLG Spatial Planning and National Roads Guidelines for Planning Authorities (January, 2012). Section 2.5 of the Guidelines states that the policy of the planning authority will be to avoid the creation of any additional access point from new development or the generation of increased traffic from existing accesses to national roads to which speed limits greater than 60 kph apply. The proposal, if approved, would result in the intensification of an existing direct access to a national road contrary to official policy in relation to control of frontage development on national roads.’

Please acknowledge receipt of this submission in accordance with the provisions of the Planning and Development Regulations, 2001-2012.”
A second affidavit of Rosemarie Dennison sworn on the 30th September, 2014 confirms that the refusal of retention permission was appealed by the first named respondent to An Bord Pleanála. She deposes that on the 19th September, 2014 An Bord Pleanála upheld the refusal of planning permission. The reasons stated by the Bord for its decision are elaborated as follows:-
“The development proposed for retention is served by an existing access onto the N81, a national secondary route, which is substandard in terms of site lines and forward visibility and where segregated pedestrian facilities are unavailable. The traffic turning movements associated with the retention of this development would conflict with and interfere with the safety and free flow of traffic on the national road network at a point where vehicles travel up to the maximum speed limit. The development proposed for retention would, therefore, endanger public safety by reason of traffic hazard and would be contrary to the proper planning and sustainable development of the area.”
In the context of the appeal to An Bord Pleanála there was a detailed report prepared by Ms. Jane Dennihy, Senior Planning Inspector, dated the 15th August, 2014. In that report she elaborated the traffic hazard in the following terms:-
“I wish to draw attention to the following with regard to the conditions on the N81 in the vicinity of the site: The section of N81 at the site location has heavy volumes of traffic which can achieve speeds well towards the maximum speed of 100 kph. It is part of a 1.5km section of hazardous route at each end of which there are warning signs. The centre line of the carriageway is marked with a continuous white line. A bus stop is opposite the site and it is one of a series of signs that was in the roadside edge along the section of the road. The presence of a bus stop would contribute to pedestrian movement on the road edge where public footpaths and lighting are unavailable and there is a notable amount of vehicular stopping/starting and turning movements associated with the bus service, entrances and intersections with local roads and lanes.
I conducted a walkover along the road in both directions up to 300 metres from the site entrance and have driven along the carriageway in both directions a number of times and turned into and exited the existing entrance during the course of my inspections. The route is extremely hazardous for pedestrians who have no designated route or space. The existing access is seriously deficient and any increase in use of an access onto and off the route. The associated waiting and turning movements would contribute to increased potential for interference with the free and safe flow of traffic and risk of endangerment of pedestrian and vehicular safety.

I have reviewed the Transportation Engineer’s detailed reports on the planning application and further information submissions. Notwithstanding the applicant’s willingness to carry out some works to the entrance serving the cottage he has confirmed that it is intended that the entrance serve two dwellings.

The Transportation Engineer and Planning Officer’s view that permission should be refused is supported in that the proposal should be refused, on grounds of intensification of use of the existing entrance.”

A short affidavit was sworn thereafter by Mr. Jong Kim, Town Planning Consultant retained by the respondent, on the 3rd November, 2014. He confirms he was retained by the respondent in relation to the application for retention permission. He states that, despite the very many objections given by the applicant in its affidavits, the sole reason upon which An Bord Pleanála ultimately refused the permission for retention was the generation of additional traffic. He deposes to his belief that the refusal is based on the fact of two dwelling units occupying the site. The effect of the decision is that traffic generated by a single house is acceptable but not that generated by two.
He says that at the date of these proceedings, the existing cottage is in no fit state for occupation and while the second respondent has reserved her position to carry out renovations and occupy that house, to date she has not done so. From that perspective, he believes that from a planning point of view there is no valid objection to the present development for so long as the other house on the site is not occupied.

In his third affidavit sworn on the 24th February, 2015 Mr. O’Leary strongly disagrees with this view. He deposes that it is clear there is an objection to the unauthorised chalet from a planning perspective. Both Wicklow County Council and An Bord Pleanála on appeal have concluded that the unauthorised development in the form of the chalet and associated works endangers public safety by reason of a traffic hazard and is contrary to proper planning and development. It is incorrect to say that traffic generated by one house on the site is acceptable but not two. He deposes that the entrance creates and presents a serious traffic hazard for both road users and pedestrians. This view is also held by An Bord Pleanála. This is so no matter how many vehicles might use the entrance.

He accepts that if the second named respondent does occupy the existing cottage at some stage in the future, she will be entitled to use the entrance to access the cottage, notwithstanding that it will comprise a serious traffic hazard. Entrances onto national roads that were in existence prior to the 1st October, 1964 are still being used and lawfully so. However, prior to that date, traffic flow was far less, vehicles were of a different construction, they travelled less frequently and at a lower speed. While the use of such entrances may be legitimate to access structures and developments that were in place prior to that time, that certainly does not mean they do not comprise a serious traffic hazard, as in this instance.

Finally, Mr. Kim in an affidavit sworn on the 18th March, 2015, states that he merely wished to point out that the refusal of the retention application by the Board was on the grounds that there was an existing vehicular entrance to the property serving an existing house. No reason had been advanced as to why the respondent’s use of the entrance would be any more hazardous than the use permissible for the existing house such that he should be required to demolish his home.
SUBMISSIONS OF THE PARTIES
On behalf of the applicant it is submitted that the buildings and other works referred to in para. (1) of the notice of motion are an unauthorised development within s.160 (1) of the Planning and Development Act 2000 and the use as a domestic dwelling is unauthorised. The Act imposes necessary restrictions on rights and freedoms claimed by property holders “in the interest of the common good, for proper planning and sustainable development”. The enforcement discretion of the court under s.160 must be exercised with due regard to the objective of the Oireachtas as set out in the 2000 Act within the context of an overall statutory objective of securing planning compliance. Thus the subject of an order “may” be required to take such steps “as the court considers necessary and specifies in the order to ensure, as appropriate the following:-

(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.”

The role of the court is to assist effective enforcement and to ensure that only permitted developments are carried out in accordance with permissions granted. The effect and consequences of unauthorised use or illegal development are relevant considerations, as per Morris v. Garvey [1983] I.R. 319. The decision of the High Court in Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 held that a test of proportionality should be applied when determining whether relief under s.160 should be granted where the unauthorised structure is being used as a dwelling. Thus an order of the type sought here must identify a necessity “objectively justified…and convincingly established”. It was submitted that the court in the Fortune case disregarded the role of the respondent in the planning breach and substituted its own view of proper planning and sustainable development with regard to the reasons for the refusal of retention permission, including the contravention of the development plan. However, the Act of 2000 envisages that there must be good reasons why s.160 relief should not be granted in any case where there is substantial non-compliance with planning obligations. The conduct of the respondent is always a relevant factor, but it was submitted that it was treated as irrelevant in determining the exercise of discretion in the Fortune judgments.
In this case full enforcement under s.160 is appropriate and proportionate. The development was unauthorised and deliberate. Traffic hazard is identified as the reason for refusal of permission. There is no realistic prospect that this hazard will abate in the short term. The applicant therefore submits that the Court should not second guess the conclusions of the statutory bodies who concluded that permission of the development should be refused on the grounds of traffic hazard. While a court is entitled to look at the impact of the development in considering whether the remedy sought is proportionate, it ought to act to give practical effect to the enforcement of decisions based on conclusions which are within the exclusive remit of statutory planning bodies.

The applicants asked: Is it a “drastic interference with the inviolability of the dwelling” to prevent a person from using a dwelling which he had no right to establish in the first place? In the present case the dwelling was only established because the respondent “stole a march” on the enforcement process. He built and completed the dwelling and occupied it without any planning permission and in full knowledge that the applicant’s viewed the development as unauthorised and illegal. The manner in which the Constitution protects and vindicates rights depends on context. For instance, the Constitution does not give a right to retain possession of a house against the owner where a dwelling has been established in it as a result of trespass. Thus any protection given by Article 40.5 may be modified by law in a proportionate way and may sometimes yield to competing rights and also to duties owed by the citizen. The Act of 2000 modifies property rights and rights which might otherwise be enjoyed to establish dwellings, in the interests of proper planning control by removing the right to establish or alter dwellings except in accordance with planning permission. This planning control is an essential environmental necessity in a properly ordered society. Those who propose to engage in development have access to guidance in the form of Government policy directives and development plans, local authority guidance and guidance from the National Roads Authority. They can engage architects and planners who will advise them. Those who ride rough shod over and ignore these requirements take the risk that they will be unable to regularise their position and that they will have to undo what they have done. Indeed the legislature also deems their actions to be criminal offences under ss.151, 154 and 156 of the Act of 2000.

The courts are not given power to override development plans nor should the Constitution be seen to provide immunities to wrongdoers. Article 40.5 does not confer on any citizen a right to establish a dwelling of his choosing at the place of his choosing. In essence, this is the right which the respondents claim. The provisions of the Act of 2000, an Act which enjoys a presumption of constitutionality, have made the exercise of rights subject to a statutory requirement to obtain and comply with planning permission. The Oireachtas has enacted that decisions on the issue of permissions are made by statutory specialist bodies and that planning policy is not made by the courts.

It is significant that rules 4 and 12 of the rules applicable to assessment of compensation and compulsory purchase exclude value of land increased by unlawful use or buildings, or attributable to unauthorised structures or use. Also excluded is compensation arising from the refusal of a planning permission in many circumstances. This illustrates the point that proportionality is not a principle of universal application which gives a remedy wherever a person is not permitted to do as he pleases with his property. It is not therefore correct to treat the principle of proportionality as being solely concerned with the effect of a given decision on a person or his property.

The application of any proportionality approach should also give due weight to the reasons for the refusal of planning permission. Courts, in the exercise of their functions under s.160, should defer to decisions made by the specialist planning bodies within their sphere of competence.

The approach to the exercise of discretion had been properly outlined in the judgment of Finlay P. in Dublin Corporation v. Garland [1982] I.L.R.M. 104 where he stated as follows at p.106:-

“The court cannot … entertain, in my view, in regard to applications under s.27 any question challenging the validity or correctness of a decision of a planning authority in regard to the granting or refusing of permission, though it may be concerned within the broader limits of its discretion with the consequences of unauthorised use or illegal development.”
In other words, it is not for the courts to come to a different planning conclusion than that arrived at by the appropriate planning authority.
Finally, in exercising the discretion given under s.160, the Court must bear in mind the consideration that a decision to refuse to make an order under that section in favour of the planning authority may, in effect, reverse a decision to refuse planning permission. Effective planning control depends on public compliance and acceptance of the rules. It also depends on the system of requiring demonstration of planning compliance in land transfer and mortgage transactions and the willingness of the public to respect and comply with their obligations under the 2000 Act. It also depends on the presence of effective measures to secure planning compliance. Jurisdiction conferred by s.160 of the 2000 Act and its statutory predecessors is a special statutory original jurisdiction and not a subsidiary aspect of some equitable jurisdiction to enforce public law. The Court is not precluded in exercising its functions from taking into account a wide range of considerations. These may include hardship, the personal circumstances of the respondents, the impact of the development on others, the prospect of a retention permission being forthcoming, the length of time during which the unauthorised structure has been occupied, the unauthorised structure itself and the other matters listed in the analysis of the authorities set out in pp. 419-424 of Dodd’s The Planning Acts 2000-2007 Annotated and Consolidated (2008, Roundhall). The bottom line however under the 2000 Act is that s.160 is intended by the Oireachtas to provide an effective tool in planning enforcement. The result and effect of the Fortune decision has been to render it ineffective.

On behalf of the first respondent, who places full reliance on the standing and judgment of the High Court in the Fortune case, it was submitted that it is not sufficient for a planning authority to show that the development is unauthorised, it must go further and show that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. No such necessity for demolition had been demonstrated in the present case. Accordingly, the Court should not exercise its discretion to order the demolition sought.

While the applicants had invoked many considerations in seeking to demonstrate that there were important public policy objectives requiring the demolition of the respondent’s house, these grounds had to a large extent fallen away in the light of the decision of An Bord Pleanála which refused permission for retention on the single ground of traffic hazard.

Furthermore, the Court should be slow to depart from the decision of another judge of the High Court unless there are strong reasons for doing so. There are no such strong reasons in the instant case.

It was submitted that the enforcement of planning legislation is not for the purpose of discipline but for the achievement of the common good. Thus while certain criteria might be appropriate for consideration on the granting or withholding of permission, separate considerations should apply to the enforcement. It was submitted that the issue of traffic generation when considered objectively is not, at least for the time being, a matter of such concern as to warrant the destruction of the respondent’s home.

The decision handed down by the High Court in the Fortune case represented a further evolution of the law as formulated by the Supreme Court in the Damache case (Damache v. DPP [2012] 2 I.R. 266) which in turn was a ground-breaking decision in relation to the constitutionality of a section of the Offences Against the State Act, 1939 that had existed for many years. The fact that court decisions can, from time to time, have such effect should not deter the courts from allowing the law to evolve and therefore this Court, it was submitted, should not depart from the views expressed in the Fortune case.

STARE DECISIS
While this Court is not strictly bound to follow decisions of other High Court Judges, it is well established that there must be strong reasons to warrant contradiction or departure.

The jurisprudence of the High Court regarding the proper approach of a judge of that court when faced with the previous decision of another judge of that court is consistent. It was well expressed by Parke J. in Irish Trust Bank Ltd. v. Central Bank of Ireland [1976] I.L.R.M. 50 when he stated:-

“ … a court should not depart from a decision of another court of equal jurisdiction unless it is established that the decision was based on insufficient authority or incorrect submissions, or that the judgment had departed in some way from the proper standard to be adopted in judicial determination.”
Similar views were expressed in judgments delivered by the High Court in Re Worldport Ireland Ltd. [2005] 2 JIC 1604 and in Brady v. DPP [2010] IEHC 231 and in B.N.J.L. v. Minister for Justice Equality and Law Reform [2012] IEHC 74.
In Worldport Ireland, Clarke J. elaborated on the circumstances where it might be appropriate for a court to come to a different view in the following manner:-

“Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is clear error in the judgment, or where the judgment sought to be revisited was delivered [at a] sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all the relevant authorities and which was, as was noted by Kearns J. (in Re Industrial Services Co. (Section 218 application) [2001] 2 IR 118), based on forming a judgment between evenly balanced argument. If each time such a point were to arise again, a judge were free to form his or her own view, without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered. In the absence of a definitive ruling from the Supreme Court on this matter I do not, therefore, consider that it is appropriate for me to consider again the issue so recently decided by Kearns J. and I intend, therefore, that I should follow the ratio in Industrial Services and decline to take the view as urged by counsel for the Bank that the case was wrongly decided.”
This view of the doctrine of stare decisis was confirmed in the Supreme Court decision in Kadri v. Governor of Wheatfield Prison [2012] IESC 27.
That said, there have been a number of instances where circumstances have arisen in which a court may come to a different conclusion, as occurred in Tanat v. The Medical Council [2013] IEHC 223, a case in which O’Neill J. found it necessary not to follow the reasoning of a colleague in that particular case. He stated as follows at para. 77:-

“I was persuaded to do so by the fact that it appeared to me that the facts in that case, relating to what was the unintended, indeed accidental, eventuality which ensued in the calling in of the guarantee in that case, differed so markedly from the elaborate, carefully arranged series of contractual transactions leading ultimately to a common agreed objective, which was the factual matrix that I had to deal with in this case.”
O’Neill J. also referred to a further consideration of relevance in that case, namely, the fact that two significant highly persuasive authorities had not been opened to his colleague who had come to a different conclusion.
On this aspect of the case, the respondents argue that the decision of Hogan J. in Fortune was, and was intended to be, a dramatic reformulation of principles previously thought applicable. That he considered the matter to be that radical may be ascertained from his opening remarks:-

“To those unversed to the sometimes haphazard manner by which legal doctrine and jurisprudence can evolve, it may seem remarkable that a Supreme Court decision concerning the power of gardaí to issue search warrants in respect of a private dwelling (Damache v. Director of Public Prosecutions [2012] 2 I.L.R.M. 153) should have potentially far-reaching consequences in areas of civil law far removed from the criminal sphere, such as planning law. Yet perhaps it required a decision of this magnitude to illustrate that which in itself ought to have been obvious over the last 75 years or so, namely that Article 40.5 of the Constitution ensures that the dwelling must be safeguarded in an extensive manner as befits a free and democratic society.”
The Court pauses at this point to note that Hogan J. is perhaps the outstanding constitutional legal expert of this generation and is thus well qualified to express a view of how Article 40.5 might be invoked in the planning process, dramatic and far reaching though the consequences of his decision have been, or are feared to have been, for the efficacy of planning enforcement in this jurisdiction.
This Court must therefore, before embarking upon an analysis of the Fortune case, express in the clearest terms its respect both for the scholarship of the learned trial judge in Fortune and the Court’s acknowledgment that there are limited circumstances in which a contradictory or dissonant view should be expressed.
THE FORTUNE CASE
The first point to note in relation to the case of Wicklow County Council v. Fortune is that it was a case initiated in the Circuit Court and determined by Hogan J. in the context of an appeal from the Circuit Court to the High Court. No appeal from that decision was possible. The Court will have some observations to make at the end of this judgment as to whether novel legal principles which have the effect of ushering in severe restrictions on the enforcement of Irish planning law should be determined in the context of a Circuit Court appeal where the High Court is effectively acting as the final stop in the process.

But I turn firstly to the facts of the Fortune case and gratefully accept for the purposes of this judgment the outline of facts recited by Hogan J. in The County Council of the County of Wicklow v. Katie Fortune [2012] IEHC 406.

The defendant, Ms. Fortune, had at some stage within the previous thirteen years or so (the actual date is not specified) constructed a small timber frame chalet of approximately 70 sq. metres in size in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. Wooden decking in the form of a patio was laid around two sides of the chalet. While the Court found that the chalet had been sensitively constructed and was not immediately visible from the adjoining road, the stark fact remained that this chalet was built without planning permission.

This matter first came to the attention of the planning section of Wicklow County Council sometime in December, 2006. Officials from the Council visited the site on a number of occasions, noting that other parts of the site and immediately adjacent sites were used by other family members for such purposes as the storage of mobile homes and motor vehicles. A warning letter was duly sent pursuant to s.152 of the Act of 2000 on the 18th April, 2007.

The Council decided to postpone making an application to the Circuit Court for a statutory injunction under s.160 pending an application by Ms. Fortune for a retention planning permission. Two separate applications for retention were made on Ms. Fortune’s behalf. The process culminated in the decision of An Bord Pleanála to refuse to grant permission by decision of the 18th November, 2008. The reasons given by the Board for the refusal were as follows:-

“(1) The site of the proposed development is at an elevated location designated in the Wicklow County Development Plan 2004-2010 as an ‘area of outstanding beauty’. According to policy ss.9 of the Settlement Strategy it is the policy of the planning authority not to allow development of dwellings within areas so designated, unless it can be satisfactorily demonstrated that the applicant has a permanent note of residence of the immediate vicinity or has resided at the location for a minimum of 10 years. This policy is considered reasonable. It is considered on the basis of the submissions made in accordance with the application of the appeal that it has not been demonstrated that the applicant comes under the scope of the criteria set out under this policy. The proposed development would, therefore, contravene this policy and would be contrary to the proper planning and sustainable development of the area.
(2) The site of the proposed development is located off a lane that is substandard in horizontal and vertical alignment and in poor condition. The Board is not satisfied on the basis of the information provided in connection with the application of the appeal that the lane can be upgraded and maintained to a satisfactory standard to serve the development. The proposed development would, therefore, endanger public safety by reason of traffic hazard and obstruction of road users.”

Ms. Fortune’s account of events was to the effect that in 1999 she was separated from her husband and had two small children. Not having anywhere else to live, her mother (who apparently owned the site) allowed her to place a mobile home thereon. With the assistance of her family, she was then able to fund the erection of the chalet on the lands. However, as noted by Hogan J. the stark reality of the case was that the chalet was built without planning permission and various applications for retention were refused.
By decision dated the 8th February, 2011, her Honour Judge Flanagan found for the applicant Council and directed that the site be cleared. In particular, the learned Circuit Court Judge directed that the occupation of the chalet should cease as a prelude to its demolition and removal. Thereafter Ms. Fortune brought the appeal the subject matter of the hearing before Hogan J.

In that case, unlike the present case, the respondent contended that the application was time-barred. Having rejected that contention, the learned trial judge proceeded to consider the scope of his discretionary function in the matter of granting an injunction under section 160.

Having reviewed the authorities in relation to the exercise of discretion, Hogan J. concluded as follows (at para. 34):-

“ … it must be concluded that, objectively speaking, the development was not bona fide. After all, Ms. Fortune elected to build a dwelling in an area of high amenity in circumstances where she must have known that planning permission was required. Were it not for the constitutional argument, I would have been inclined to adopt the same approach as did Edwards J. in Meath County Council v. Murray [2010] IEHC 254, i.e., grant the injunction, albeit subject to a two year stay.”
The learned trial judge then turned to examine the constitutional argument, having noted (at para. 32) that it appeared to be “the first time in which such an argument has been advanced by way of defence in a s.160 application.” Noting that the constitutional argument may have been prompted by the fresh emphasis given to Article 40.5 by recent decisions such as Damache v. Director of Public Prosecutions [2011] IESC 11 and The People (Director of Public Prosecutions) v. Cunningham [2011] IECCA 64, the learned trial judge (at para. 35) indicated his view that there was “no basis at all” for the suggestion that Article 40.5 should be confined in its application to the sphere of criminal law and criminal procedure, noting that the guarantee of “inviolability” of the dwelling in Article 40.5 is a free standing self executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike.
It is important to stress that the learned trial judge acknowledged that 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. At para. 41 he stated:-

“In the planning context, this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is ‘inviolable’. It rather means that the courts should not exercise the s.160 jurisdiction in such a manner so as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and, adapting the language of the European Court of Human Rights (in an admittedly different context) in Goodwin v. United Kingdom [1996] 22 EHRR 123, the case for such a drastic step is convincingly established.”
Hogan J. thus felt able to conclude (at para. 42):-
“In this regard, it is not simply enough for the applicant Council to show – as, indeed, it already has – that the structure if unauthorised or that the householder has drawn these difficulties upon herself by proceeding to construct the dwelling without planning permission. It would be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detracted from an area of high natural beauty or presented a real and immediate traffic or fire hazard or the structure in question so manifestly violated the appropriate development plan that the homeowner had no realistic prospect of ever securing permission in respect of the dwelling.”
Acknowledging the “novelty” of the point and in particular the fact that the Article 40.5 issue was highlighted only in the wake of the Supreme Court’s decision in Damache, he adjourned for further consideration the question of whether the particular dwelling should be demolished, stating, however, that the test to be met on such an application would be “whether the necessity for a demolition order pursuant to s.160 (1) has, in fact, been convincingly established.”
Hogan J.’s judgment in Fortune (No. 2) was delivered on the 6th June, 2013.

In the course of this judgment, the learned trial judge recited the three arguments advanced by Wicklow County Council for the demolition order sought as follows:-

“First, it is said that failure to make such an order would undermine the effective protection of the environment provided for under the 2000 Act and, in essence, simultaneously reward Ms. Fortune for having unlawfully constructed this dwelling house. Second, it is said that the very fact that Ms. Fortune could continue to live in this unauthorised dwelling would itself serve as a precedent in terms of future applications for planning permission in the general vicinity, thus undermining the strict planning regime which obtains in this area of great scenic beauty. Third, it is contended that a failure to grant such a relief would compromise the status of the Wicklow Mountains candidate special area of conservation which is immediately adjoining to Ms. Fortune’s site. We can now proceed to examine these individual arguments in order whether to examine whether, individually or collectively, they satisfy the standard which I venture to articulate in Fortune (No. 1).”
In dealing with the first of these arguments, Hogan J., in a short eight line passage, rejected this contention on the basis that, for as long as it remained unauthorised, the property in question was unsaleable and could not be used as security for any lending purposes. “This in itself”, he concluded, “should operate as a deterrent to those who would otherwise wish to break the law”.
In relation to the second ground the learned trial judge felt he was concerned solely with the case of Ms. Fortune alone and that he had to consider this case on its own individual merits. He accepted that different considerations might well apply to other developments, depending on their individual circumstances. This portion of the judgment appears to relate to the consideration that the fact that planning permission has been granted in a particular development is a potentially relevant consideration in so far as future planning decisions are concerned. It is however difficult to find anything in this portion of the judgment which addresses the wider concerns of the applicant Council that the decision proposed by Hogan J. would have extremely damaging consequences on a wider basis for the enforcement of planning laws. That is the precedential consideration which is of particular concern to the applicants in the context of the present case.

Having devoted some consideration to the effluent treatment system which was external to the dwelling itself, the learned trial judge held that the Council were entitled to an order requiring Ms. Fortune to operate the effluent system in a manner compatible with existing EPA Guidelines.

The learned trial judge then concluded his judgment by once again posing the question:- “has the case for an order requiring the demolition of the chalet been convincingly established?” He concluded that the “test” he had posed at the conclusion of his judgment in Fortune (No. 1) had not been met by the applicants, stating as follows at paras 31 – 32:-

“31.…the Council’s argument based on moral hazard and rewarding those who take the law into their own hands is diluted by the fact that that I have already declared the structure to be unauthorised. This, in itself, should act as a deterrent to those who might otherwise take the law into their own hands. Nor is the argument based on precedent compelling, since as I have pointed out, the planning authorities could not be obliged to take account of unauthorised structures in assessing whether or not to grant planning permission to third parties seeking to develop in the locality. Nor has any compelling evidence been advanced that the site would compromise the protection of the Natura 2000 site.
32. None of this is to suggest that the arguments advanced by the Council are not important and weighty. In other cases, arguments of this kind might well prevail. But in the end I cannot ignore the solemn words of Article 40.5 which this Court is committed to uphold. The making of a s. 160 order on the particular facts of the present case would represent a drastic interference with the inviolability of the dwelling and with Ms. Fortune’s property rights. If I may re-echo that which I have already said in Fortune (No.1), such an order could only be justified if compelling evidence requiring such a step had been advanced by the Council. As, for the reasons I have ventured to set out, I am not satisfied that such compelling evidence has been advanced, I will refuse to make an order requiring the demolition of the chalet. I will, however, make an order requiring Ms. Fortune to operate the effluent system which is external to the dwelling in a manner compatible with existing EPA guidelines”

DISCUSSION
I believe in this case one must commence by considering why we have planning laws and why they must be enforced. In one sense the reason is obvious: without effective planning laws and adequate enforcement procedures to ensure compliance with them, anarchy would rule the roost with regard to all sorts of developments. Dangerous, unsuitable and haphazard developments would be likely, some of which might be constructed or established in locations where a single citizen could inconvenience neighbours, destroy areas of natural beauty, disrupt traffic and even undermine the capacity of the community to engage in normal social function and activities. In short, there would be nothing to stop a ‘free for all’ development culture from running riot. Take an extreme example: might an individual create a structure overnight outside the GPO, bring in sleeping and cooking facilities, and claim thereafter that he is immune from removal as his “dwelling” is “inviolable” under Article 40.5 of the Constitution? I offer this example merely to highlight the levels of absurdity that may arise when the property rights of the individual, even when acting unlawfully, are seen in every instance to trump those of a democratic society which can only function when its constituent members are equally bound by rules which regulate matters such as planning and development.
The Planning Acts 1963-2000 provide the law which bind all citizens in this regard. It might be more accurate to say the legislation binds developments, as planning conditions enure for the benefit of the land and society generally, rather than the individual. It is the responsibility of the individual developer to conform, to obtain planning permission when required to do so and to comply with conditions attaching to any permission. In Kenny v. Dublin City Council [2009] IESC 19 the essential character of a planning permission was adverted to by Fennelly J. when at para 24 of his judgment he stated:-

“The planning permission is a formal and public document. The applicant, the planning authority and the public have participated in a formal statutory procedure, leading to its grant. The permission enures to the benefit of the land on which the permitted development is to be carried out.”
At para 25 of his judgment, Fennelly J. adopted with approval a passage to that effect from Simons on Planning and Development Law (2nd Ed., 2007, paragraphs 5.06 – 5.07).
The Act of 2000 enjoys a presumption of constitutionality and no constitutional challenge to any part of Part VIII of the Act has been made in these, or the Fortune, proceedings. That legislation specifically provides enforcement measures for developments which require planning permission and creates serious offences in respect of developments which ignore those requirements. That legislation specifically envisages that, in an appropriate case, a planning authority may apply to court to seek a demolition order under s. 160 as has occurred in this (and the Fortune) case.

This Court has no difficulty in acknowledging that any statutory discretionary power bestowed on the courts under s. 160 must be exercised constitutionally (See East Donegal Co-Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317), which in turn means that the court must act proportionately with regard to the particular transgression in respect of which sanction is being sought. (See Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R.70). Thus a building constructed with a minor departure from a condition contained in a planning permission would not normally attract a demolition order, particularly when the breach is one capable of being easily remedied. In Dodd’s Planning Acts 2000 – 2007 (Annotated and Consolidated) (at pp. 419 – 424), under the heading “Discretionary Refusal of Relief”, a long list of matters and cases relevant to the exercise of discretion are set out. Significantly the author commences his treatment of the topic by referring to the judgment delivered by Henchy J. in Morris v. Garvey [1983] I.R. 319 (to which reference was made in submissions) where, in stressing the community’s interest in preserving communal environmental rights he stated:-

“It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is ‘necessary to ensure that the development is carried out in conformity with the permission.’”
Summarising the key relevant factors elaborated by Dodd (which are comprehensively referenced to decided cases), they include:-
(a) The reasonableness of the conduct of both parties;
(b) The bona fides of the respondent in dealing with the planning authority;

(c) Public convenience or interest – i.e., the extent to which the public may be adversely affected;

(d) Delay (if any) in bringing the application;

(e) Error merely technical or minor;

(f) Undue hardship on the respondent (though in Westport UDC v. Golden [2002] 1 I.L.R.M. 439 Morris P. took into account the extent to which the respondent contributed to the situation);

(g) Opinion of the planning authority.

However, and having due regard to all of the foregoing, where the breach is a gross one – as in this case – the discretion of the Court is necessarily limited, particularly where a developer has not acted bona fide. Thus in Wicklow County Council v. Forest Fencing [2007] IEHC 242, Charleton J. stated:-
“This is a major developmnent for which there is no planning permission. It is a material contravention of the County Wicklow Development Plan. It is built entirely to suit the developer and with almost no reference to legal constraints. I am obliged to decide in favour of the injunctive relief sought.”
In Meath Co. Co. v. Murray [2010] IEHC 254 Edwards J. directed the demolition of a house which was double the size of the dwelling for which planning permission had been refused, stating:-
“This is not a case of a minor infraction, or of accidental non-compliance with some technicality. The unauthorised development carried out by the respondent was indeed a flagrant breach of the planning laws and completely unjustified. They have sought to drive a coach and four through the planning laws and they cannot be permitted no matter how frustrated they may have felt on account of earlier refusals. While it will undoubtedly constitute an enormous hardship to the respondents to have to demolish their dwelling house…nevertheless the law must be upheld.”
These cases – and others – were referred to by Hogan J. in the course of his judgment in Fortune (No. 1), and in fairness to the learned trial judge, he did observe , quite correctly in the view of this Court, that:-
“… courts are generally unsympathetic to the hardship which was eminently forseeeable and which results from the culpable behaviour of the developer and landowner in question.”
In Fortune, the learned trial judge also found – as does this Court in respect of the case before it – that, objectively speaking, the development was not bona fide. Likewise, the planning history in the case of Mr. Kinsella, with regard to this development, is not open, on the full recitation and analysis of the affidavit evidence, to any other interpretation. But how – in such circumstances – some free standing application of Article 40.5, in the case of an unlawful development, could be applied to vindicate or reward the respondents in this or the Fortune case is beyond this Court’s comprehension, particularly having regard to the huge public and community interest in protecting the environment and the integrity and efficacy of planning law enforcement.
Even the European Court of Human Rights has pulled up short of any such extreme preference for personal rights over those of the community in this context. The Court was referred to the decision of the ECHR in Chapman v. United Kingdom (2001) 33 EHRR 18, 399, a case in which a gypsy who lived in a caravan on her own land was refused planning permission following which an enforcement notice was issued. Relying on Articles 6, 8 and 14 of the Convention, she complained, inter alia, that the refusal of planning permission and the enforcement measures violated her right to respect for private life, family life and home. The Court held that none of the Convention articles invoked had been breached, stating as follows in an important passage at para 102:-

“Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibition of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community”
The adverse consequences for a person who develops land without planning permission knowing full well that planning permission is required could hardly be more clearly stated than in Chapman, and this by a court liberally disposed to upholding individual rights at every turn.
Likewise in Beard v. United Kingdom (2001) 33 EHRR 19, 412 at 466, the Court noted (at para 93) that a decision to refuse a retention permission for a caravan used as a dwelling took into account traffic hazard and expressed the view that this was a legitimate aim of “… protecting the rights of others through preservation of the environment and protection of public health through highway safety”.

Nonetheless, in refusing relief in the Fortune case, Hogan J. relied on Article 40.5 to formulate a new “necessity” test, imposing on an applicant council the obligation to demonstrate that “the necessity for this step (i.e., demolition) is objectively justified” and “convincingly established”. It should be noted that in requiring a “necessity test” as a precondition for a demolition order, Hogan J. did not have in mind as the relevant “necessity” the requirement of ensuring compliance with planning laws (in the sense intended by Henchy J. when he utilised the word in Morris v. Garvey), but rather the “far-reaching implications for the property rights of the owner of the property” assessed by reference to the policy objectives of legislative compliance and environmental protection (see Fortune (No. 2) para 5). The particular provisions of s.160 are, by obvious implication, to be subsumed into this novel legal matrix.

In reaching this view, Hogan J. attached great weight and significance to the decision of the Supreme Court in Damache v. Director of Public Prosecutions [2011] IESC and a brief consideration of that case is thus appropriate at this point
THE DAMACHE CASE
It must be said at the outset that the Damache case had absolutely nothing to do with planning laws or the enforcement of same.

It was a case in which the applicant sought a declaration that section 29(1) of the Offences Against the State Act, 1939 (as inserted by section 5 of the Criminal Law Act, 1976) was repugnant to the Constitution.

That section provided that where a member of the Garda Síochána, not below the rank of superintendent, was satisfied that there was reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence under the Act of 1939 or the Criminal Law Act, 1976, or an offence which is for the time being a scheduled offence for the purposes of Part V of the Act, or evidence relating to the commission or intended commission of treason, is to be found in any building or part of a building, or in any vehicle, vessel, aircraft or hovercraft or in any other place whatsoever, he (i.e. the member of the Garda Síochána) may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.

The kernel of that case was the finding of the Supreme Court that there should be independent and impartial supervision of the issuing of a warrant.

The place for which the search warrant was issued in the Damache case was the home of the appellant. No planning issues of any sort arose, nor was there any question but that Mr Damache was entitled to the occupation and enjoyment of his dwelling under his lawful tenure of same. To the extent that the case is at all relevant to the present case, the following passages from the Chief Justice contain some general references to the status of the dwelling under our Constitution:-

“39. … The dwelling is regarded as a place of importance which is protected under the Constitution. Thus, at the core of this case is to be found the principle of the constitutional protection of the home.
40. Article 40.5 of the Constitution of Ireland states:-

‘The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.’

Thus, the Constitution protects the inviolability of the dwelling.

41. There has been a long history of protection of the home under common law. In 1604, Sir Edward Coke in Semayne’s Case 77 ER 194, stated:-

‘That the house of everyone is to him as his (a castle and fortress, as well for his defence against injury and violence, as for his repose.’

The principle was referred to by Sir William Blackstone in his Commentaries on the Laws of England (1768), where he stated:-

‘For every man’s house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence.’

42. In Ireland the dwelling house is protected under the Constitution. The Constitution vindicates and protects fundamental rights. In The People (Attorney General) v. O’Brien [1965] I.R. 142, Walsh J. pointed out that:-

‘The vindication and the protection of constitutional rights is a fundamental matter for all courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen.’

43. In The People (Attorney General) v. Michael Hogan (1972) 1 Frewen 360 at 362, Kenny J. stated:-

‘Article 40.5 of the Constitution which is in that part of it which has the heading ‘Fundamental Rights’ and the sub-heading ‘Personal Rights’ reads: The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. The guarantee is not against forcible entry only. The meaning of the Article is that the dwelling of every citizen is inviolable except to the extent that entry is permitted by law which may permit forcible entry.’

44. In The Director of Public Prosecutions v. Dunne [1994] 2 I.R. 537 at p. 540 Carney J. stated:

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

The Court would apply these statements, recognising the importance of the inviolability of the dwelling.”
The remainder of the judgment goes on to emphasise that, for the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. The Court thus concluded that such person should be independent of the issue and act judicially.
The Court did, of course, recognise that the status of inviolability conferred by Article 40.5 on a dwelling is qualified in the sense that a dwelling may not be forcibly entered save in accordance with law which (as was stated at para. 55) means “without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution. Entry into a home is at the core of potential State interference with the inviolability of the dwelling”.

The processes elaborated in Part VIII of the Act are as far removed from any notion of “forcible entry” as could be imagined. Part VIII specifically provides the law under which and in accordance with which planning authorities must act. Nor is a planning authority “stooping to methods which ignore the fundamental norms of the legal order” when seeking proper enforcement of planning laws. On the contrary, it is its duty and responsibility to ensure that those laws are complied with. Numerous opportunities are provided by the mechanisms contained in Part VIII whereby a person who lacks planning permission can regularise his situation. Even in circumstances where a development has taken place without permission, it is open to an applicant to apply for a retention permission, and if that is refused to bring an appeal from such decision to An Bord Pleanála.

The Damache decision did not purport to address enforcement issues arising under provisions of Part VIII of the Act of 2000. Nor did it purport to address the extent of property rights a developer may have in a house or dwelling built without planning permission or, as in this case, in flagrant breach of the planning laws. I see no basis at all for adapting or transposing observations made in the context of Damache into the completely different legal and factual matrix of unauthorised planning developments. Still less do I see any basis for introducing a new test, based on some ‘free-standing’ obligation under Article 40.5, to effectively set aside the considerable body of jurisprudence which already exists in relation to the discretionary application by the courts of enforcement procedures under Part VIII of the Act.

The manner in which the Constitution protects and vindicates rights depends on context. For instance, the Constitution does not give a right to retain possession of a house against the owner where a dwelling has been established in it as a result of trespass. Nor can the Constitution be construed as providing immunities to wrongdoers, a category to which the respondent in this case most certainly belongs.

Nor does Article 40.5 confer on any citizen a right to establish a dwelling of his choosing at the place of his choosing. In essence, this is the right which the respondents claim. To the extent that the respondents enjoy rights to private property under Articles 40 and 43 of the Constitution, the provisions of the Act of 2000 have made the exercise of such rights subject to a statutory requirement to obtain and comply with planning permission. The Oireachtas has enacted that decisions on the issue of permissions are made by statutory specialist bodies and that planning policy is not made by the courts.

There is thus, in the view of this Court, absolutely no justification for the kind of crossover approach into a planning context of principles enunciated in the quite different context of the issuance and execution of a search warrant into a dwelling lawfully held and lawfully occupied.

To the extent that the judgment of Hogan J. in Fortune (No. 1) may be seen as holding or implying that the conduct of the respondent is a matter of little importance in determining the exercise of discretion, this Court would demur from any such view because it flies in the face of all the historic jurisprudence which holds that the conduct of a respondent is one of the most compelling factors in the list of discretionary factors. The judge’s own statement that the lack of planning permission might, down the road, cause a difficulty for the developer in terms of a resale can only be seen as relegating unlawful conduct to the outer periphery of relevant considerations.

Further, the requirement that there be ‘objective justification’ for the planning authority’s decision to bring enforcement procedures, which demands that a case be ‘convincingly established’ to the extent that it meets a ‘necessity test’ effectively rewrites and amends Part VIII of the Act in a manner impermissible under our Constitutional framework of separation of powers. Nor can the Court take over the role of the planning authority in this arena. The portions of Fortune (No. 2) cited above demonstrate that portion of the decision of Hogan J may be seen as performing the function of the planning authority, something out ruled by Finlay P. in Dublin Corporation v. Garland [1982] I.L.R.M. 104 where (at p 106) in a passage already cited he stated:-

“There can, in my view, be no function in the court on the making of an application under this section in any way to review, alter or set aside a decision of the Planning Authority with regard to the granting or withholding of permission. The entire scheme of the Planning Acts is that, subject to the limited exceptions for the determination by the High Court of questions of law specifically referred to it, decisions as to the proper planning and development of any area are peculiarly the function of the Planning Authority in the first instance and of An Bord Pleanala on appeal from them.”

DECISION
In this case the Court is satisfied that full enforcement under s.160 is both appropriate and proportionate. The development consisting of the construction of this chalet was unauthorised and undertaken with full knowledge that planning permission was required. Even after the service of warning letters and enforcement notices, development continued in what can only be described as flagrant disregard for planning laws. That a serious traffic hazard has thereby been created has been identified as the ultimate reason for refusal of retention permission. There is no realistic prospect that this hazard will abate in the foreseeable future.

The Court is satisfied that it should not second-guess the conclusions of statutory bodies who have concluded that permission of the development should be refused on the grounds of traffic hazard. While the Court is entitled to look at the impact of the development in considering whether the remedy sought is proportionate, the Court is satisfied that it ought to act to give practical effect to enforcement of decisions based on conclusions which are within the exclusive remit of the relevant planning authorities in this case.

The respondents in this case elected not to utilise an existing established residence on the premises. They moved with speed to build another house. The prospect of refusal of permission on the grounds of traffic hazard ought to have been anticipated by them. Ensuring that development does not impinge on road safety is a very important planning objective.

This Court has a further difficulty with the decision arrived in the Fortune case, because it appears to adopt an approach which is at odds with previous authority in that it involves a review of the planning assessment forming the reasoning for the decision of the statutory planning authority acting within its sphere of competence which, as was stated by Finlay P. in Dublin Corporation v. Garland cited above, is not within the court’s remit.

Thus while the assessment of the degree of environmental damage caused by a planning infringement is relevant to the exercise of discretion under s.160 in general, this assessment should be confined to issues not related to planning policy or judgment. The Court must have due regard and pay due deference to the expertise of a planning authority which has qualifications which the courts, of necessity, lack in this regard. Thus the Court must give due weight to any planning reasons embodied in the reasons for a decision to refuse planning permission. It is not the function of the Court to reverse the decisions of a planning authority nor does the legislation envisage a role for the courts in setting planning policy.

The jurisdiction conferred by s.160 of the Act of 2000 (and its statutory predecessors) is a special statutory original jurisdiction and not a subsidiary aspect of some equitable jurisdiction to enforce public law. The jurisdiction is thus firmly based on what the Court is required by statute to address in the event that it makes an order. The jurisdiction under s.160 is conferred on both the High Court and the Circuit Court. It says nothing about declarations. The Circuit Court does not enjoy any free-standing jurisdiction to grant declaratory relief in public law matters and the jurisdiction of the High Court on appeal from the Circuit Court is confined to jurisdiction which the Circuit Court may itself exercise.

This does not, of course, mean that the Court is precluded from taking into account a wide range of considerations, including hardship, the personal circumstances of the respondents, the impact of the development on others, the prospect of a retention permission being forthcoming, the length of time during which the unauthorised structure has been occupied, the unauthorised structure itself and the other matters to which reference has already been made in the summary of considerations elaborated in Dodds Planning Acts.

This Court is satisfied that the relatively small significance accorded by Hogan J. to the damaging precedential effects of his suggested approach is misplaced. The fact that, in the absence of permission, difficulties in making good title in the event of a sale of property many years later may not have anything like the deterrent effect which he postulated. On the contrary, the “message” which may emanate from the Fortune decision, perhaps unfairly from the Court’s point of view, was that a whole new level of uncertainty has been introduced into the efficacy of enforcement measures under Part VIII of the Act of 2000. This Court apprehends that many developers, including those who have no short term need to sell property on which the unlawful development is located, may, as a result of the Fortune decision, regard flouting the planning laws as a risk worth taking. That would be incredibly destructive of planning law and planning law enforcement in this jurisdiction were it to occur.

CONCLUSION
For all the reasons elaborated above, I am satisfied the applicants are entitled to the relief sought in this case, including an order for the demolition of the chalet, built on the site without either planning permission or retention permission and in full knowledge that neither permission existed. I appreciate that the removal of this chalet, modest enough as it is, will cause a degree of hardship to the respondent and the Court will thus hear some brief further submissions with regard to a timescale for the necessary works of demolition.

Finally, I would hope, without in any way wishing to cause offence to the learned Hogan J., to assert my own belief that a Circuit Court appeal, because it admits of no further appeal, is not an appropriate forum in which to introduce or lay down novel legal principles which may have far reaching effects and consequences such as occurred in the Fortune case.