Gardaí did not have 'common law' power to enter flat to arrest man, court rules

Gardaí did not have a general power to enter the flat of a man and arrest him for breach of the peace after they had been called to a disturbance at his home, the High Court ruled.

Mr Justice Charles Meenan said while gardai did have a power to do so under the criminal law, when they entered Philip O'Brien's flat in Marino Apartments, Tralee, Co Kerry, they did not invoke that power.

They did not, therefore, enjoy a common law power to enter the dwelling to arrest him for breach of the peace, contrary to common law, he found.

The judge reversed a conviction for obstruction imposed on Mr O'Brien arising out of the incident.

On May 26, 2017, when gardai were called to a disturbance at Mr O'Brien's home they found a living room window had been broken and a block of knives lay on the ground outside the window.

A garda, along with three colleagues, could see Mr O'Brien in an agitated state through the broken window and it appeared the apartment had been damaged with several items scattered around the room.

An officer tried to speak with him through the open window and then the gardai went to the front door where they found Mr O'Brien still agitated.

Garda John Coffey said while trying to speak with him at the doorway, Mr O'Brien spat in his face.

Garda Coffey and his colleagues then entered the apartment where Mr O'Brien retreated to the kitchen. Gardai could see a knife on the floor and Garda Coffey said the defendant violently resisted. He was restrained and arrested for breach of the peace.

He was later charged with obstructing a garda and common assault.

At his District Court hearing, his lawyer argued he had no case to answer as gardai had no right under common law to enter his home to arrest him for breach of the peace. This was, the lawyer said, a breach of his constitutional right to the inviolability of the home.

The District Judge rejected the submission and convicted him of obstruction.

Mr O'Brien then brought an appeal, by way of case stated to the High Court, asking the court to determine whether gardai had such a common law power. The DPP opposed the appeal.

Mr Justice Meenan said the Section 6 Criminal Law Act 1997 empowers gardaí to enter a home without a warrant for an arrestable offence in certain circumstances including where they have cause to believe a person will obstruct the course of justice.

In this case, that power was not relied upon and therefore did not apply.

Any restriction on the constitutional right that may be permitted by law must be minimal and, except where life is in imminent danger, the restrictions on that right are set out in the 1997 Act.

He found the District Judge was not correct in holding Mr O’Brien had a case to answer in relation to obstruction and he reversed the District Court decision.