The High Court ruled that a person charged under section 5 of the Criminal Justice (Public Order) Act 1994 does not always have to be told that ignoring a Garda request to desist is a criminal offence. Whether such a warning is required depends on the circumstances, President of the High Court Kearns said in a judgment delivered on 26 July 2015.
The ruling answered a case stated by the District Court. The question arose after Calvin Fitzsimons was convicted over an incident on Sean O’Casey Avenue in Dublin on 18 April 2013. The charge was that he exposed himself in public after being asked to stop. Two gardaí accepted in evidence that they had not specifically warned him that failing to desist would itself be an offence.
At the close of the prosecution case, the defence sought a direction to acquit. The District Court judge refused, later convicted Fitzsimons and remanded him for a probation report. On 15 July 2014, the judge took the matter into account when placing him on a six-month probation bond. Fitzsimons then asked the District Court to refer the warning question to the High Court.
The defence argued that a person facing a sanction for failing to comply with a Garda request should be told about the power and the consequences of refusing. It relied on earlier cases concerning statutory police powers. The DPP argued that section 5 addresses the offensive behaviour itself, whereas other provisions create offences for failing to obey a direction. The DPP also challenged the High Court’s jurisdiction on procedural grounds.
The High Court rejected the procedural objection, noting that the case had been listed since November 2014, the hearing proceeded without further reliance on the objection, and sending the matter back for a fresh referral would waste court time and resources.
On the warning issue, the court said the section did not expressly require one. It held that the conduct described—exposing himself in public—was, in this case, so self-evidently and notoriously criminal that no specific warning was needed. The court also said Fitzsimons ran from the scene, which would have prevented a further warning if one had been necessary.
The court’s answer was limited to the context of this case: whether a specific warning is required depends on context, and here the answer was no. The judgment did not establish that warnings are never required in prosecutions under section 5.