Director of Public Prosecutions v Kelly & Ors

Factual and Procedural Background

This case arises from charges brought against three defendants in the District Court in Dun Laoghaire for offences under sections 8 and 9 of the Criminal Justice (Public Order) Act 1994, related to the wilful obstruction of a vehicle and failure to comply with Garda directions. The defendants were involved in a protest that blocked a truck on York Road, Dun Laoghaire, which was carrying out water meter installations. The charges under section 24(3) for failure to provide name and address were dismissed and not contested. The District Court dismissed the charges under sections 8 and 9, and the High Court subsequently reviewed the legal questions arising from these dismissals following a case stated by the District Court judge. Cross-appeals were brought before the Court of Appeal concerning these decisions.

Legal Issues Presented

1. Whether there was adequate evidence that the defendants were acting without lawful authority or reasonable excuse under section 9 of the Criminal Justice (Public Order) Act 1994.
2. If not, whether the dismissal of the section 9 charges was correct.
3. Whether a Garda must have a reasonable belief that the defendants were wilfully obstructing traffic without lawful authority or reasonable excuse in order to give a direction under section 8 of the Act.
4. If so, whether the dismissal of the section 8 charges was correct.
5. If not, whether the dismissal of the section 8 charges was correct.

Arguments of the Parties

Defendants' Arguments

• A valid direction under section 8 requires a Garda to have a reasonable suspicion encompassing that the obstruction was without lawful authority or reasonable excuse.
• Sergeant Gilmore did not address the absence of lawful authority or reasonable excuse when forming his opinion, thus failing to satisfy the requirement for reasonable suspicion.
• The prosecution bears the burden of proving every element of the offence under section 9, including the absence of lawful authority or reasonable excuse, which was not done.
• The High Court erred in upholding the section 8 charges because it relied on a bona fide belief principle that applies only to factual errors, not to a legal deficiency in the suspicion.

Prosecution's Arguments

• The protest involved unlawful obstruction that went beyond constitutionally protected protest rights.
• The evidence of the incident at York Road was sufficient to establish that the obstruction was without lawful authority or reasonable excuse.
• The High Court was wrong to dismiss the section 9 charges.
• Regarding section 8, a Garda's bona fide and valid opinion should rarely be interfered with, and Sergeant Gilmore’s suspicion was reasonable and valid.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court analysed the statutory requirements under sections 8 and 9 of the Criminal Justice (Public Order) Act 1994. It emphasised that a critical element of the offence under section 9 is that the obstruction must be without lawful authority or reasonable excuse, and this burden lies on the prosecution. Similarly, for a valid direction under section 8, the Garda must reasonably suspect that the obstruction is occurring without lawful authority or reasonable excuse.

The Court found that the evidence given by the witnesses, including the contractor in charge of the site and the Garda sergeant, established a clear case of deliberate and intentional obstruction without lawful authority or reasonable excuse. The conduct described could not be considered a legitimate protest that justified the obstruction.

Although Sergeant Gilmore did not explicitly mention the absence of lawful authority or reasonable excuse in his suspicion, the Court held that it was reasonable to infer that he did hold such suspicion given the circumstances. The Court disagreed with the District Court judge’s and the High Court’s conclusions that there was inadequate evidence on this point.

Accordingly, the Court concluded that the District Court judge was incorrect to dismiss the section 9 charges and that the High Court erred in upholding that dismissal. The Court also held that the High Court was correct in principle that a bona fide suspicion by a Garda under section 8 should not be lightly disturbed, but this issue is largely moot given the Court's findings on section 9.

Holding and Implications

The Court answered the questions posed in the case stated as follows:

• Q1: Was there inadequate evidence that the defendants acted without lawful authority or reasonable excuse? No.
• Q2: Was the dismissal of the section 9 charges correct? No.
• Q3: Is a Garda required to believe the obstruction was without lawful authority or reasonable excuse to give a direction under section 8? Yes, but failure to expressly refer to this does not preclude a valid suspicion.
• Q4: Was the dismissal of the section 8 charges correct? No.
• Q5: If not, was the dismissal of the section 8 charges correct? Does not arise.

The Court set aside the dismissals of the section 8 and section 9 charges and remitted the matter to the District Court for further proceedings consistent with its findings.

The decision directly affects the parties by reinstating the charges for trial but does not establish new precedent beyond clarifying the evidential and suspicion requirements under sections 8 and 9 of the Act.