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High Court: District Court must charge Irish Water protestors under Criminal Justice (Public Order) Act 1994

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A group of Irish Water protestors who had their charges for public order offences dismissed in the Dublin Metropolitan District Court have had their case reverted to the District judge after it was found in the High Court that the protestors should have been charged with offences under s. 8 of the Criminal Justice (Public Order) Act 1994.

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The Director of Public Prosecutions appealed the District judge’s decision to dismiss all of the charges, arguing that the judge had erred on a point of law. Mr Justice Robert Eagar agreed with the DPP, finding the District court was incorrect in dismissing the s. 8 charge.

The Offences

In May 2015, a group of protestors attempting to prevent the installation of water meters in Dun Laoghaire were arrested under s. 24 of the Criminal Justice (Public Order) Act 1994 on suspicion of having committed an offence under s. 8 of the 1994 Act.

In Dublin Metropolitan District Court, Mr James Kelly, Ms Aisling Butler, and Ms Caroline Doyle appeared before the District Judge charged with three offences contrary to s. 24(3), s. 9, and s. 8 of the 1994 Act.

The offences were all in relation to an Irish Water protest in Dun Laoghaire in May 2015:

  • Firstly, following a demand made by a member of An Garda Síochána, each of the defendant’s failed to provide their names and addresses, contrary to s. 24(3) and (4) of the 1994 Act

  • Secondly, the defendant’s did without lawful authority or reasonable excuse, wilfully prevent or interrupt the free passage of a vehicle in a public place, contrary to s. 9 of the 1994 Act

  • Thirdly, “having been found in the public place by a member of An Garda Síochána who suspected with reasonable cause, that they were or had been acting in a manner contrary to the provisions of s. 9 of the 1994 Act and having been directed by the said member of An Garda Síochána to leave immediately the vicinity of the place concerned in a peaceable and orderly manner, did without lawful authority or reasonable excuse fail to comply with the direction given by the said member of An Garda Síochána, contrary to s. 8 of 1994 Act

    • The case proceeded to trial, and the prosecution called two witnesses, Mr Gerard Gilmartin a contractor for Irish Water and Sergeant David Gilmore.

    The District judge was not satisfied that Sergeant Gilmore could have had the reasonable suspicion required to make the direction pursuant to s. 8 of the Criminal Justice (Public Order) Act 1994, and held the following:

    • That in order for a valid direction pursuant to s. 8 to be made, Sergeant Gilmore had to have reasonable suspicion that an offence was being committed contrary to s. 9.

    • Reasonable suspicion involved two elements:

      1. That wilful obstruction had taken place

      2. There was no reasonable excuse or lawful authority for this wilful obstruction

      3. That Sergeant Gilmore gave evidence that his opinion was solely based on wilful obstruction - he made no reference to the lawful authority or reasonable excuse elements of the offence. Sergeant Gilmore confirmed on cross examination that his suspicions extended only to wilful obstruction.

      4. That there were no surrounding circumstances or other evidence which could allow the District judge to infer that he had formed any other suspicion, particularly where he had given evidence of his suspicion.

      5. That even if the evidence established that an offence pursuant to s. 9 had been committed at the time, the relevant issue was the suspicion formed at the time of the making of the direction.

        6. The District judge therefore dismissed all of the charges against each of the defendants.

        High Court

        Sitting in the High Court, Mr Justice Robert Eagar found that that Sergeant Gilmore’s opinion of his belief that the accused were committing an offence under s. 9 was a reasonable opinion, particularly when they were requested at least three times to comply with his order under s. 8.

        Justice Eager considered DPP v. Breheny (Unreported, Supreme Court, 2nd March, 1993): “If the opinion is genuinely and reasonably held at the time of the making of the request, it seems to me that the literal terms of the subs. s. 12(1) of the Road Traffic Amendment Act have been complied with and it makes no difference that the member’s opinion is not proved to be factually accurate.”

        It seems that the direction given by Sergeant Gilmore and his subsequent arrest of the three accused under s. 8 of the Criminal Justice (Public Order) Act 1994 was reasonable and lawful.

        In all the circumstances, the High Court found that the District judge was correct in law in holding that there was inadequate evidence that each of the accused was acting without lawful authority or reasonable excuse, and therefore was correct in dismissing the s. 9 charges.

        However, the High Court found that the District judge was incorrect in holding that Sergeant Gilmore was required to believe that the defendants were wilfully obstructing traffic without lawful authority by reasonable excuse contrary to s. 9 of the Criminal Justice (Public Order) Act 1994 in order to give a direction to each of the defendants under s. 8 of the Criminal Justice (Public Order) Act 1994 – and that the District judge was incorrect in dismissing the s. 8 charges.

        Justice Eagar therefore reverted the case to the District judge so as in order to deal with the charge remaining against each of the defendants under s. 8 of the Criminal Justice (Public Order) Act 1994.

        • by Seosamh Gráinséir for Irish Legal News

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