High Court

DPP v Lynch 

1996 No 859 SS 

1 May 1997 

COSTELLO P: 

This is an appeal by way of Case Stated which arises in the following circumstances: 

On 24 April 1995 Garda Dooley and Garda Greene were in an official patrol car in the area of Tierquinn in the County of Cavan when a car was driven straight across the road without yielding the right-of-way. This car was followed by the patrol car and thereafter a high-speed chase occurred. The car was then driven into a yard known as Nulty's Yard (a machinery yard) and it was followed by the patrol car. In Nulty's Yard an arrest took place under section 49(8) of the Road Traffic Act 1961. The Respondent was charged under section 49 with driving with an excess of alcohol and with other offences. 

On 9 November 1995 the hearing of these charges took place in the District Court in Cavan and the charge relating to driving with an excess of alcohol was dismissed. As a result of a request, a Case Stated was prepared and filed under the rules of the High Court seeking the opinion of this Court on the following question: 

"Whether I was correct in law in dismissing the charge under Section 49 of the Road Traffic Act, 1961, as amended, on the grounds that at the time when the Gardai entered the private yard, where the arrest ultimately took place, that Garda Dooley had not formed a valid opinion which could lead to the arresting of the Respondent under Section 49(8) or 50(10) of the Road Traffic Act, 1961." 

The point raised on this appeal is a net one. It is common case that the arrest took place on private property. The legislature has made statutory provision for the arrest of persons on private property under section 39(2) of the Road Traffic Act 1994: 

"A member of the Garda Siochana may for the purpose of arresting a person under section 49(8) or 50(10) of the Principal Act, enter without warrant (if need be by use of reasonable force) any place (including the curtilage of a dwelling but not including a dwelling) where the person is or where the member, with reasonable cause, suspects him to be." 

If a garda enters on private property (as referred to in the section) for the purpose of arresting a person, the effect of section 39(2) of the Road Traffic Act 1994 is that the arrest is valid in so far as the entry on private property is concerned. 

What has been argued on the Respondent's behalf in the District Court and in this Court is that the entry in this case was not validated by the section because it was for the purpose of investigating the possibility that an arrestable offence had occurred. It is therefore claimed that the proceedings should have been dismissed because of the unlawful nature of the arrest and that, accordingly, the order made by the District Justice was the correct one. 

On behalf of the Director of Public Prosecutions it is agreed that the entry was not validated by the section. However, it is urged on behalf of the Director that the entry was not illegal because it complies with the principles of law established by the Supreme Court in DPP v Forbes [1994] 2 IR 542. At page 548 of the report the judgment of O'Flaherty J reads: 

"Section 49, sub-s 6 of the Act provides that a member of the Garda Siochana may arrest without warrant a person who in the member's opinion is committing or has committed an offence under the section. The offence, of course, must be committed in a public place but provided the garda does not breach any constitutional or legal right of another, he is entitled to go on other property to effect an arrest. Here there is no question that the gardai were trespassers. 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 prevent a breach thereof. It will be clear that this case is not concerned with any question of entering a dwellinghouse and, therefore, there is not in the instant case any question of any form of implied waiver of any constitutional right. Further, like any implied authority, it is an implication which the evidence may, on occasion, rebut. Clearly, in this case the gardai were acting in the execution of their duties." 

It is therefore urged on behalf of the Director that there was no trespass in this case by the gardai; that there was an implied consent by the owner of Nulty's Yard to the entry in the circumstances of this case; that on the principles established in DPP v Forbes, not under the statutory power granted by section 39(2) of the Road Traffic Act 1994, the entry was valid and the subsequent arrest lawful. 

It is submitted on behalf of the Respondent that the totality of the power of entry for the purpose of effecting an arrest (the phrase used by the Respondent's Counsel) is contained in section 39 and that the principles established in DPP v Forbes no longer apply as a result of the enactment of the 1994 Act. 

I cannot agree with this submission. It seems to me that the section made lawful what might otherwise not be lawful. However, the section does not make unlawful acts which are, according to Forbes, perfectly lawful. When gardai enter on private property, property which is owned by someone other than the arresting gardai, there is an implied consent to enter the property to allow the gardai to carry out their duties. In my view there is no illegality at all in what was done in this case. The gardai were not trespassers when they entered Nulty's Yard and there was no invalidity in the arrest. 

A second issue raised on behalf of the Respondent is that the decision of the learned District Justice was correct for the following reason: It is claimed that there was a failure of the necessary proof to support a conviction in this case. Counsel for the Respondent argued that the burden was on the State to show that the accused had no legal interest in the private property on which he was arrested and that this burden could have been discharged by calling the owner of the property to say that the accused had no legal interest in it. It is said that the lawfulness of the arrest had not been established in the absence of such proof. Again, I disagree. On the evidence in this case it seems to me that the State has established beyond a reasonable doubt that the arrest was not in breach of any of the accused's constitutionally protected rights, including the right to the inviolability of a dwelling, and that the onus which was on the prosecution had been properly discharged. 

I must conclude, therefore, that the question raised in the Case Stated should be answered in the negative.