THE HIGH COURT
				 				Appeal No.  1995/90 CA

BETWEEN

PADRAIC O'FAOLAIN
								APPLICANT
AND
THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN
AND BURGESSES OF DUBLIN
								RESPONDENTS

Judgment delivered the 10th day of December, 1996 by Mr. Justice Lavan.

	This was an appeal from an Order of the Circuit Court dated the 13th day of February, 1995 whereby the said Court dismissed an application by the Applicant under the provisions of the Malicious Injuries Act, 1981.  The cause of action was for compensation pursuant to the provisions of the Malicious Injuries Act, 1981, Section 5(1)(c) as amended by the Malicious Injuries (Amendment) Act, 1986, Section 2(1)(a)(i).
	Both the Applicant and the Respondents furnished written submissions and these are annexed to my Judgment as Appendix I, being the Applicant's submissions and Appendix II, being the Respondents' submissions.  
FACTS
	The Applicant seeks to recover under Section 5 as amended, for damages caused to his premises by four men removing goods as witnessed by Ms. Jeanie O'Haire standing at the door of her flat with her two children at 7 Alfie Byrne House, which is situated directly opposite the rear to the Applicant's premises, watching the men when one of them stared at her causing her to go back into her flat.  The relevant terms of the Act allow compensation where damage, the aggregate amount exceeding £100 is caused to property "unlawfully by one or more of a number (exceeding two) of persons riotously assembled together".

ISSUES
	"Riotously" has been given a restricted meaning, as from that assigned in ordinary parlance, by virtue of its conjunctive association with "tumultuously" in Section 6 of the 1981 Act.  This was accepted in Duggan -v- Dublin Corporation, (1991) which case affirmed the five elements which must co-exist in order to constitute a riot as first enunciated in Field -v- Receiver of Metropolitan Police, (1907), those elements being (i) presence of at least three persons; (ii) common purpose; (iii) execution or inception of the common purpose; (iv) intent by the persons present to help one another, by force if necessary, against any person who may oppose them in the execution of their common purpose; (v) force or violence, not merely used in demolishing property, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage.
	In the present case (i)-(iii) are established and Counsel for the Applicant relies on the evidence of Ms. O'Haire as fulfilling (iv) and (v).  In Sellers (Ribble Shipping Company Ltd.) -v- Donegal County Council, (1937) the Captain of a beached vessel withdrew due to the threatening manner of a crowd one of whom was thought to have verbally menaced him in a foreign (presumably Irish) language.  The crowd in question was held to constitute "persons riotously and tumultuously assembled together" within the meaning of Section 515, Merchant Shipping Act, 1894, and compensation was allowed.
	As regards (iv) Ms. O'Haire only gives evidence as to the reaction of one of the men who, given that he was being watched commit a crime, showed no sign of fear or attempt at desisting and instead stared at Ms. O'Haire in such a manner as to cause her to withdraw, it is reasonable to assume that had his stare not had the desired effect he might be supposed to have been willing to support it with verbal or physical action.  In the absence of Statements to the contrary it is presumed that Ms. O'Haire is a person of reasonable firmness and courage, thus with regard to (v) as there is no mention of Ms. O'Haire witnessing any actual violence and no words were exchanged as in Sellers, the effect of the stare must be enough to infer a measure of violence displayed in same.
	While the evidence is only in relation to one of the four men, since it is established that they were acting in concert, the witnessed behaviour can be considered as reflecting the common determination of the group.  Considering the overall circumstances of the case and the fact that one must attribute the aforementioned meaning to the word "riot" and not that which is normally associated with this word, there is enough evidence to satisfy (iv) and (v), thus the Applicant's claim would seem to fulfil the necessary criteria under Section 5.

APPENDIX I
SUBMISSION ON BEHALF OF THE APPLICANT
INTRODUCTION:
In order to succeed on the application, the Applicant must show that the damage was caused unlawfully by one or more of a number exceeding two of persons riotously assembled together:  Malicious Injuries Act, 1981, Section 5, as amended by the Malicious Injuries (Amendment) Act, 1986, Section 2.  The evidence of Jeanie O'Haire is that she lived at 7 Alfie Byrne house directly facing the rear of the Applicant's premises.  She saw four men removing goods.  She was standing at the door of the flat watching them.  She had two children.  One of the men stared at her.  The effect was to cause her to go back into her flat.

SUBMISSION:
Prior to the Malicious Injuries Acts, 1981 and 1986, the words "riot" and "tumult" were treated as almost synonymous: John S. Sellers (Ribble Shipping Co. Ltd.) -v- Donegal County Council, (1937) 71 I.L.T.R. 43 at 45.  See also Criminal Injuries Kennedy and McWilliam page 37 - "it is not clear whether or not there is any significant distinction between a riot and a tumult".

There is now however a distinction between the two words by reason of the distinction drawn between the 1981 Act, Section 5, as amended by Section 2 of the 1986 Act and Section 6 of the 1981 Act as amended by Section 4 of the 1986 Act.  Section 5 applies to where persons are riotously assembled and allows for compensation for damage caused to property.  Section 6 applies where persons are tumultuously and riotously assembled and allows compensation not just in respect of damage but in respect of property taken.
Five elements are necessary for a riot:  Field -v- Receiver of Metropolitan Police, (1907) 2 K.B. 852 approved in Edward Duggan -v- Dublin Corporation, 1991 I.L.R.M. 330.  The application here has shown compliance with the first three requirements namely:-

1.	There were at least three persons involved.
2.	They were apparently assembled for the common purpose of stealing from the Applicant's premises and damaging the same.
3.	The common purpose was executed - the theft and the damage took place.

The issue accordingly revolves around the two remaining requirements for riot and in considering these, regard should be had to the meaning ascribed by the Supreme Court to tumult in Edward Duggan -v- Dublin Corporation at page 334.  For an assembly to be tumultuous it must:-

(a)	be of considerable size.
(b)	there should be agitated movement of the persons involved.
(c)	it should be an excited and emotionally aroused assembly.
(d)	the excitement/emotion should be common to the members of the assembly.
(e)	the assembly should be accompanied by noise.

The foregoing elements would in popular parlance be associated with the word "riot".  However, if these are the distinguishing features of a tumultuous assembly then it follows that they are not necessary for a riot.

Bearing this in mind the last two requirements of Field -v- Receiver Metropolitan Police should be considered and these are as follows:-

4.	There must be an intent on the part of the number of persons to help one another by force if necessary against any person who might oppose them in the execution of the common purpose.

	Ms. O'Haire stood watching the conduct of the four persons.  It was clear to her that a crime was being committed.  If must equally have been clear to the four persons that she was watching them and was aware that they were committing a crime.  They did not desist.  One of them stared at her causing her sufficient alarm to go back into her flat with her children.  It is submitted that this displays a sufficient intent of the persons to execute their common purpose by force if necessary. 

5.	There must be force or violence used about the common purpose displayed in such a manner as to alarm one person of reasonable firmness and courage.  This requirement is readily met in John S. Sellers (Ribble Shipping Company Ltd.) -v- Donegal County Council, (1937) 71 I.L.T.R. 43.  In that case the captain of the vessel approached the crowd who seemed determined to board the vessel and told them that they would be held accountable if they interfered with it.  One man said something to him in a language which he did not understand, presumably Irish, and adopted a threatening attitude while the general demeanour of the crown was hospitable.  The captain then withdrew and the crowd boarded the vessel and committed the damage.  In these circumstances it is quite clear that the demeanour of the persons committing the damage, if it has an effect on an observer, is sufficient.  The demeanour of the persons committing the damage here had a sufficient effect upon Ms. O'Haire so as to cause her to go back into her flat with her children rather than to remain where she was at the door.  She did this on her account because of her concern at being stared at in what she regarded as a threatening manner by one of the persons involved in the theft.

It is submitted accordingly that the Applicant satisfies the test in Field -v- Receiver of Metropolitan Police.

Dated the 9th July, 1996.

JOSEPH FINNEGAN S.C.
RORY McCABE B.L.

SCHEDULE OF AUTHORITIES

1.	The law on Compensation for Criminal Injuries in the Republic of Ireland, Kennedy and McWilliam pp 35-37
2.	Edward Duggan -v- Dublin Corporation 1991 I.L.R.M. 330
3.	John S. Sellers (Ribble Shipping Co. Ltd.) -v- Donegal County Council 1937 71 I.L.T.R. 43.
4.	Malicious Injuries Act, 1981.
5.	Malicious Injuries Act, 1986.
APPENDIX II

SUBMISSION ON BEHALF OF THE RESPONDENTS

Section 5 of the Malicious Injuries Act, 1981, as amended by Section 2 of the Malicious Injuries (Amendment) Act 1986, provides inter alia, that a person who suffers damage caused unlawfully by one or more of a number (exceeding two) of persons riotously assembled together shall be entitled to obtain compensation from the Local Authority in accordance with those Acts.

Although the authorities, Field -v- The Metropolitan Receiver and Dwyer (J.W.) Limited -v- Metropolitan Police District Receiver, as approved in Duggan -v- Dublin Corporation [1991] I.L.R.M. 330, set out the five elements necessary to show a riot, the word "riot" in its ordinary and natural meaning cannot be ignored.  It is submitted that the list of requirements, as approved in the Duggan case, is not exhaustive in itself but merely lays down minimum requirements which must be satisfied in order to show that a riotous situation did prevail at the time.  The five concepts which appear additional to show a "tumult" were considered by the learned Judge in the Dwyer case, but they are not, it is submitted, requirements which relate solely to a tumult.  The learned Judge in the Dwyer case was merely attempting to consider what a tumult might involve.

In Duggan, at page 334, Finlay C.J. states:  

	"The learned Trial Judge then concluded that the words contained in the English Section, which was Section 2(1) of the Riot (Damages) Act 1886, 'riotously and tumultuously' must be construed as being conjunctive and that both factors must be satisfied before a right to claim damages arises.  He stated his view that the reason why the word 'tumultuously' was added to 'riotously' in the Section concerned was for the specific reason that it was intended to limit the liability of compensation to cases where the rioters were in such numbers and in such a state of agitated commotion and were generally so acting that the forces of law and order should have been well aware of the threat which existed, and if they had done their duty, should have taken steps to prevent the rioters from causing damage".  

The "extra" requirements relating to the tumult, it is submitted, do not reduce the definition of "riot" to a mere term of art.  The word "riot" must be given its ordinary meaning.  "There are certain appropriate canons of statutory construction: (1) Words should be given their ordinary meaning.  (2) Every word has a meaning, although some may be otiose.  (3) Ordinarily different words have different meanings", per McCarthy J. at p. 338.

Insofar as the first three requirements of the "test" for a riot are concerned, the evidence of the witness Ms. O'Haire, does not establish that the persons involved (two groups of two persons) had assembled for the common purpose of damaging the premises in question.  At its height, the evidence establishes that those persons were removing or stealing property from the premises.  No evidence was adduced to show that three or more persons had assembled together for the purposes of damaging the Applicant's property.  The Applicant did claim in respect of the theft of goods in addition to damage to property, but the claim relating to the theft of goods, which was made pursuant to Section 6 of the Malicious Injuries Act, 1981, as amended, was withdrawn by the Applicant at the hearing.  The Applicant's claim, as it stands, relates solely to damage to property.  The above-mentioned evidence does not support the Applicant's claim for damage to property.  It is therefore submitted that the Applicant has failed to satisfy Requirement Nos. 1 and 2 of the test.

No evidence was adduced by or on behalf of the Applicant to show compliance with Requirement No. 4.  Ms. O'Haire's evidence was both insufficient and unreliable in this regard.  There were inconsistencies in the accounts given by her in the Circuit Court and the High Court, on appeal.  In any event, there was no or no sufficient evidence of alarm or any other genuine fear adduced before either Court.

In attempting to satisfy Requirement No. 4 and 5, the Applicant relies on the decision in John S. Sellers (Ribble Shipping Company Limited) -v- Donegal County Council 1937, 71 I.L.T.R. 43.  The facts in the Ribble case show that the Captain was there to oppose the multitude which had assembled.  There was uncontradicted evidence in that case that there was an intent to use force - even if only the force of numbers - against him.  "Again, the Captain, who by his conduct and appearance is a man of 'reasonable firmness and courage', was so much alarmed by the attitude of the crowd that he had to relinquish his protection of the owners' property".  (at page 45).  There was no or no sufficient evidence adduced at the hearing in these proceedings to show that the witness was so much, or in any way, alarmed by the person who looked at her without any comment whatsoever.  It is further submitted that mere looks without the additional presence of a menacing number of persons who uttered words or gestures to show an obvious intent to use force or violence and to alarm persons of reasonable fairness and courage, is not sufficient to satisfy Requirements Nos. 4 and 5 of the Field test.
It is humbly submitted to this Honourable Court that the Applicant has failed to prove his claim pursuant to Section 5 of the Malicious Injuries Act, 1981, as amended.