The People at the suit of the Director of Public Prosecutions v Dowling

Factual and Procedural Background

Appellant and Co-accused were prosecuted following an incident at The Airport on 25 April 2017. The prosecution alleged a joint enterprise involving entry onto restricted property and damage to a military aircraft through markings made on it. They faced criminal damage under section 2 of the Criminal Damage Act, 1991 and criminal trespass under section 11 of the Criminal Justice (Public Order) Act, 1994. On 25 January 2023, a jury acquitted both of criminal damage but convicted them of criminal trespass. [1][2]

Both represented themselves at trial. Appellant did not testify; Co-accused gave evidence that their shared purpose was humanitarian protection against deaths overseas. Appellant’s closing address asserted an honest belief in a threat to life, limb or property and the reasonableness of their actions. The trial judge instructed the jury on lawful excuse for criminal damage, but not on lawful excuse or necessity for criminal trespass. [3][4][5]

The Court of Appeal dismissed Appellant’s conviction appeal. It accepted that necessity could, in principle, apply to criminal trespass, but found neither a real and pressing danger nor an inescapable necessity on these facts. The Supreme Court granted leave concerning necessity, the ingredients of criminal trespass, and the relationship with lawful excuse for criminal damage. An Amicus and a Notice Party subsequently joined the proceedings. [6][7][8][9][10][11][12]

Legal Issues Presented

1. Whether section 11 requires proof of actual criminal intention, and whether evidence raising reasonable doubt about that intention defeats an otherwise reasonable inference drawn from suspicious circumstances. [13][14][15][16]
2. Whether lawful excuse for intended criminal damage is relevant to criminal trespass where the prosecution links the trespass to an intention to commit that damage. [17][18]
3. Whether the intended offence or unlawful interference must be identified, and what distinguishes unlawful interference from mere trespass. [19][20][21]
4. Whether the deficient jury directions required the conviction to be overturned, notwithstanding the prosecution’s appellate argument that lawful excuse should never have been left to the jury. [22][23]
5. Whether broader questions concerning necessity, protest and proportionality should be decided, and what guidance should be given on the evidential threshold, reasonableness and causal connection required for statutory lawful excuse. [24][25][26][27][28][29]

Arguments of the Parties

Appellant’s Arguments

• Appellant initially argued that the criminal damage acquittal showed acceptance of lawful excuse and therefore excluded an intention unlawfully to interfere with property. Before the Court of Appeal, the argument became that necessity should have been left to the jury on criminal trespass. [6][30]
• In the Supreme Court, the principal oral argument was that lawful excuse available for criminal damage also had to be considered for the linked trespass charge. Appellant submitted that necessity was incorporated into lawful excuse. [31][32][33]
• The written submissions additionally asserted that protest and civil disobedience required consideration of constitutional and Convention rights, including a proportionality assessment. Those arguments were not abandoned but received little emphasis orally. [34][33][35]
• Appellant maintained that the reasonableness of the damage was essentially a jury question and relied on the sample jury directions in Crawford. [36]

Respondent’s Arguments

• Respondent argued that necessity had not been advanced at trial and was subsequently being recast as lawful excuse. Respondent denied that statutory lawful excuse applied to criminal trespass and argued that, in any event, the facts could not support it. [37][38]
• Respondent contended that suspicious circumstances could justify conviction even where contrary intention was established. Respondent also argued that a defence to criminal damage did not affect the reasonable inference required for trespass. [16][39][18]
• Departing from the position adopted at trial, Respondent argued that lawful excuse should never have reached the jury on criminal damage, so its omission from the trespass directions did not justify overturning the conviction. Respondent disputed the applicability of section 3 of the Criminal Procedure Act, 1993. [38][23]
• Respondent submitted that relevant evidence capable of supporting lawful excuse was necessary and relied on subsequent authorities distinguishing Ziegler. [40][41]

Notice Party’s Arguments

• Notice Party distinguished necessity from statutory lawful excuse, describing their conflation as a category error, and emphasized constitutional restrictions on expression and assembly. [42]
• Notice Party argued that the protest submissions sought a substantial redevelopment of necessity, or a new general proportionality defence, on arguments that had not featured at trial. [40]
• Notice Party accepted that absence of lawful excuse was an ingredient of criminal damage which the prosecution must disprove, while distinguishing statutory defences requiring an evidential foundation. [43]

Amicus’s Arguments

• Amicus submitted that criminal convictions interfering with freedom of expression required careful assessment of the particular conduct and competing interests, relying especially on Perinçek. [44][45]
• Amicus suggested that trial courts should assess proportionality, but did not develop in detail whether that assessment could be located within the statutory wording; prosecutorial charging discretion was accepted as potentially relevant. [46]

Table of Precedents Cited

Court's Reasoning and Analysis

1. Suspicion must remain reasonable in light of all the evidence

Section 11 permits conviction on circumstances giving rise to a reasonable inference of the specified intention; it does not require direct proof of actual intention. Nevertheless, evidence raising reasonable doubt that the accused intended an offence or unlawful interference prevents that inference from being reasonable. The Court rejected Respondent’s approach because it could criminalize suspicious-looking entry despite an established innocent purpose. [56][16][39][90][91]

The presumption of innocence means the accused need not testify or call evidence: material already introduced by the prosecution may rebut the inference. The factfinder remains entitled to reject an asserted innocent explanation after assessing all the circumstances and its credibility. [91]

2. The prosecution’s chosen allegation defined the relevance of lawful excuse

The prosecution had tied trespass to intended criminal damage, rather than alleging unlawful interference independently. The indictment and presentation of the case therefore mattered: an accused must know the intended offence or interference alleged. Although unlawful interference can encompass tortious conduct, it requires more than mere trespass or minimal interference and must affect the property’s use or enjoyment. Its precise boundaries were reserved. [92][93][94][20][59][21][95]

Absence of lawful excuse is an ingredient of criminal damage. Consequently, where a trespass allegation depends on intended criminal damage, lawful excuse for that damage can defeat the inference of an intention to commit the offence. This does not create a general statutory lawful-excuse defence to every form of criminal trespass. [96][18][97]

3. The directions contained a fundamental error

The jury was not instructed on lawful excuse’s relevance to the linked trespass allegation. Merely reading section 11 was insufficient: the judge needed to explain its meaning and how the evidence related to the inference of criminal intention. [98][99][62]

Under section 3 of the Criminal Procedure Act, 1993, a conviction may nevertheless be affirmed where no miscarriage of justice actually occurred. Here, the Court could not reach that conclusion. The charges were interlinked, the basis of the criminal damage acquittal was unknown, and accepting the prosecution’s changed appellate position risked casting doubt on that acquittal. The Court would not speculate about the jury’s reasoning or overlook the fundamental error. [22][100][62][101][102][103][104][105]

4. Broader protest questions were unsuitable for decision

The Court declined to determine whether the conduct was protected protest or whether conviction disproportionately interfered with expression or assembly. Those issues had not been intrinsic to the trial, Appellant’s position had repeatedly changed, and the oral hearing did not adequately develop them. Whether a trial-level proportionality assessment is required, including in cases involving private property, remained open. [106][27][107][54][53]

5. Lawful excuse requires a sufficient legal and evidential foundation

The Court nevertheless provided guidance on statutory lawful excuse because it had featured at trial and on appeal and was identified as a matter of general public importance. The prosecution must disprove lawful excuse, but need not exclude imaginary possibilities unsupported by the evidence. [28][108][71][77][109][110]

Lawful excuse is a mixed question of law and fact. The judge determines whether the evidence could legally support it; the jury decides disputed facts where that threshold is met. Screening an unsupported excuse does not authorize the judge to direct conviction. [78][111][81][112][113]

Applying Crawford, the Court held that section 6(2)(c) combines subjective and objective elements: the accused’s protective belief must be honest, while the damage must be objectively and subjectively reasonable in the circumstances believed to exist. Reasonable grounds may help test whether the belief genuinely existed, but an unjustified belief is not automatically excluded. [52][82][114][115][116]

There must also be a causal connection between the damage and its claimed protective purpose. Where the act could not possibly protect persons or property, even on the accused’s understanding, no reasonable jury could find lawful excuse. A remote outcome depending on speculative actions by others outside the accused’s control does not supply that connection. [117][85][118][119]

Defacing a military aircraft to prevent deaths in a distant jurisdiction lacked that connection. The Court therefore concluded, as guidance on the statutory issue, that this claimed protective purpose supplied no legal basis for leaving lawful excuse to the jury, notwithstanding its separate conclusion that the conviction could not stand given how this trial had proceeded. [120][86][121][105][122]

Holding and Implications

The appeal was allowed, the criminal trespass conviction was to be quashed, and no retrial was directed. The deficient directions concerned a vital ingredient of the offence as charged, and the Court could not be satisfied that no miscarriage of justice had occurred. [62][123][105][124]

A retrial would not serve the public interest: the offence was minor, the original trial lengthy, and the twelve-month probation bond had long expired, so the sentence was effectively served. [125][126]

The judgment clarified how contrary intention and lawful excuse interact with section 11 and provided guidance on judicial screening, objective reasonableness and causal connection under section 6(2)(c). It did not establish a general protest or proportionality defence. [127][97][128][129][112][113][116][118][119]