Judgment: 2021-10-28 · Court archive

Court rejects DPP appeal over Garda entry to Philip O’Brien’s home

Court of Appeal · [2021] IECA 290

Who, what, where, when and why

Who
  • Philip O’Brien (Respondent)
  • Garda Coffey
What

Court rejects DPP appeal over Garda entry to Philip O’Brien’s home

Where

Places mentioned in the report

  • District Court
  • High Court
When

Judgment:

Why

Reasons reported in the judgment

The distinction matters because Article 40.5 of the Constitution protects the dwelling from forcible entry except in accordance with law. The court said Gardaí may enter at common law in exceptional circumstances, such as an acute emergency involving risk to life or limb. Entry may also occur with consent, or under statutory powers where their requirements are met.

The Court of Appeal has dismissed a DPP appeal over whether Gardaí could enter Philip O’Brien’s apartment without a warrant to arrest him for breach of the peace.

The case arose after Gardaí entered O’Brien’s home and arrested him. The District Court later convicted him of obstructing a peace officer. He was also convicted of a separate assault offence arising from spitting in Garda Coffey’s face, but that conviction was not part of this appeal.

The legal issue was whether Gardaí had a common-law power to enter a dwelling to make an arrest for breach of the peace. The High Court had ruled that they did not and answered the District Court’s case-stated questions against the prosecution.

The Court of Appeal agreed. Ms Justice Isobel Kennedy said there is a common-law power to arrest for breach of the peace, but that does not create a general right to enter someone’s home to make that arrest.

The distinction matters because Article 40.5 of the Constitution protects the dwelling from forcible entry except in accordance with law. The court said Gardaí may enter at common law in exceptional circumstances, such as an acute emergency involving risk to life or limb. Entry may also occur with consent, or under statutory powers where their requirements are met.

The DPP also sought to rely on section 6 of the Criminal Law Act 1997, which can permit Garda entry to a dwelling to arrest for an arrestable offence in specified circumstances.

However, that argument had not been advanced before the District Court and had been expressly disavowed in the High Court. The Court of Appeal held that it was too late to introduce it as a new argument on appeal.

The court therefore upheld the High Court’s conclusion and dismissed the DPP appeal.

Read the original court judgment

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