Thomas McDonagh & Others (applicants) v. Kilkenny County Council, the Commissioner of An Garda Siochana, the Director of Public Prosecutions, Ireland and the Attorney General (respondents)
Judicial Review - Local government - Housing - Members of Travelling community - Traveller Accommodation Programme - Whether decision to refuse accommodation lawful - Whether applicants entitled to injunction preventing criminal prosecution - Whether violation of applicants' rights - Powers of An Garda Síochána - Bunreacht Na hÉireann, Article 40.5 - European Convention on Human Rights, articles 6 & 8 - Criminal Justice (Public Order) Act 1994 (No. 2), s.19 as amended by the Housing (Miscellaneous Provisions) Act 2002 (No.9), s.24 - Housing (Traveller Accommodation) Act 1998 (No. 33) - Housing Acts 1966 to 2004.
The High Court (Mr Justice O'Neill); judgment delivered on October 23rd, 2007.
Entry upon and occupation of land, without consent of the owner, is a trespass and illegal. The rights of owners of land are infringed by illegal entry and occupation of land. The Constitution protects the inviolability of the dwelling, but that protection does not entitle a person to invade another's land and establish their dwelling upon it. The constitutional protection cannot be used simply to shield against an unlawful infringement of someone else's rights.
Section 19 of the Criminal Justice (Public Order) Act 1994 (as amended) does not make unlawful what was lawful before. It criminalises that which was previously merely tortious.
The High Court so held in refusing the reliefs sought.
Mel Christle, SC, Tim O'Leary, SC, and Siobhan Phelan, BL, (for the applicants); Patrick Butler, SC, and Louis McEntagart, BL, for the first named respondents; Michael MacGrath, SC, and Paul Anthony McDermott, BL, for the second to fifth named respondents
Mr Justice O'Neill commenced his judgment by stating that the ten named applicants were members of the Travelling community and consisted of one extended Traveller family. The applicants had always tended to travel together and as of the commencement of the proceedings there were 10 adults and 17 children travelling and living together. The events which gave rise to the proceedings took place at two locations in Co Kilkenny. The first of these was at Graiguenakill, a picnic area owned by the first named respondent. The applicants had moved onto the site. Notices pursuant to s.19 of the 1994 Act (as amended) were served on the applicants, notifying them that they had entered the lands without the due consent of the owner and directing them to leave the land. The first named applicant refused to comply with the direction and subsequently on February 3rd, 2006, the applicant was arrested under s19(b) of the Act and charged with an offence under s.19(d) due to his failure to move on pursuant to the direction given by a member of An Garda Síochána and to remove a caravan from the land. On February 9th, 2006, when the first named respondents were conducting works at the site to prevent unauthorised use, an incident occurred involving the first named applicant, arising out of which he was arrested and charged with an offence of obstruction of traffic. Subsequently on February 26th, 2006, the first named applicant left the site and removed his caravan.
Early in April, 2006, the applicants moved onto a piece of land at Kilmacow Co Kilkenny, another piece of land owned by the first named respondent. On April 12th, 2006, the gardaí served notices pursuant to s.19 of the Act on six of the applicants, directing them to leave the land and remove any objects placed by them on it. On April 13th, 2006, the applicants applied in these proceedings ex-parte to the High Court and obtained interim relief preventing the first and second named respondents from taking any steps against them for failure to comply with the notices. In May, 2006, the High Court granted leave to the applicants to pursue the reliefs sought by way of judicial review.
Mr Justice O'Neill said that the applicants sought against the first named respondent an order of certiorari quashing its decision to refuse consideration of the applicants' application for accommodation as set out in a letter dated February 22nd, 2006. In addition, the applicants sought orders of mandamus compelling the first named respondent to perform its statutory duties under the Housing Acts 1966 to 2004 and to assess the applicants for accommodation; directing the first named respondent to exercise its statutory functions in a reasonable manner and to provide suitable accommodation as a matter of urgent priority; directing the first named respondent to give the applicants priority within the meaning of s.9 of the Housing Act 1988. In addition, the applicants sought declarations to the effect that the applicants were entitled to priority within the meaning of the Housing Acts 1966 - 2004; that there was a presumption that the powers under s.24 of the Housing (Miscellaneous Provisions) Act 2002 would be exercised in a reasonable manner and that it was ultra vires their powers to withhold consent to the applicants remaining on lands belonging to the first named respondents.
The applicants claimed that they were indigenous to the south Kilkenny area as the place where they primarily lived, subject of course to their Traveller lifestyle which took them from time to time to Co Clare and Co Roscommon. As they were "indigenous" to Kilkenny they claimed that for the purposes of the Traveller Accommodation Programme the first named respondents were the local authority under the Housing Acts 1966 - 2004 to assess their accommodation needs and provide appropriate accommodation for them. They contended that the first named respondent had failed in that duty. Having nowhere else to go, they refused to comply with the direction from Garda Síochána notices served on them on April 12th, 2006, to leave the site.
The first named respondent disputed the claims made by the applicants. It claimed that it had a Traveller Accommodation Programme in place and that the 1998 Act required that those who were to benefit from the programme must be "indigenous" to Kilkenny. It claimed that the inclusion of an "indigenous" requirement in that programme was lawful and in that regard placed reliance upon the case of McDonagh v. Clare County Council 2 IR 634, a case in which the first named applicant in this case was also one of the two applicants. It was averred on behalf of the first named respondent that until the year 2005 the applicants were unknown to the first named respondents or any of its officials and no application was made to it until June, 2005, when the first named applicant made a "shared ownership" housing loan application to the first named respondent. Subsequently in a letter dated February 16th, 2006, the applicants through their solicitor applied for accommodation. Attention was drawn to the fact that the first named applicant herein, in the previous case above mentioned, swore on affidavit to being indigenous to Co Clare and made no reference to Co Kilkenny. The first named applicant was given accommodation by Clare County Council, but this was not taken up. It was further averred by the first named respondent that the first named applicant remained on the housing list with Clare County Council until February 12th, 2006, and that some of the applicants had outstanding housing applications with Clare County Council.
Mr Justice O'Neill was satisfied, having considered all of the evidence on affidavit, that prior to the summer of 2005, the applicants did not have a habitual presence in Co Kilkenny and that they were, in fact, indigenous to County Clare. Mr Justice O'Neill said that at the time of the making of the application for accommodation and the decision to refuse it made on February 22nd, 2006, it was clear the first named respondent did consider the application for accommodation and that the application was refused based on a wealth of information which inexorably pointed to a refusal of the application. Therefore there was no basis for certiorari quashing the decision to refuse the application for accommodation nor was there any basis for an order of mandamus directing the first named respondent to make provision for the accommodation needs of the applicants.
Mr Justice O'Neill said that the challenges made against the remainder of the respondents arose from the service on the applicants of notices pursuant to s.19 of the 1994 Act (as amended) whereby the applicants were directed by An Garda Síochána to leave both sites and remove their caravans. In addition, the criminal proceedings were also challenged, wherein the applicants sought orders preventing further prosecution. The basis of the challenge was that the offence created under s.19(d) of the Act was one of strict liability and that a variety of defences were excluded, specifically where there is a mistaken belief as to consent, or where there is no alternative but to enter the land. It was further submitted that the presumption in s.19(g)(2) to the effect that consent was not given, until the contrary as shown, reversed the presumption of innocence contrary to the Constitution and the European Convention on Human Rights. It was also submitted that content of the offence was excessively vague.
Mr Justice O'Neill stated that the judicial review jurisdiction cannot be used as an advisory or consultative jurisdiction in advance of criminal proceedings. Whether or not there was any merit in any of the applicant's submissions in regard to the offence was an issue which had to be tested first in the criminal trial. At this remove from the criminal trial, it could not be ascertained whether the applicants had any locus standi to raise the issues, as it was not yet apparent what defences were available to them, or whether the aforesaid presumption would be relied upon at all. Mr Justice O'Neill was satisfied that the applicants were not entitled to any prohibition or injunction preventing the further prosecution of the offences on the grounds put forward.
The applicants complained that the exercise of the powers given to the gardaí under s.19 of the 1994 Act (as amended) violated their rights. They relied on Article 40.5 of the Constitution which provides for the inviolability of the dwelling, article 6 of the European Convention on Human Rights which provides for the right to a fair trial, and also article 8 which protects the right to respect for private and family life. The applicants complained that under the s.19 provisions, their caravans which were their homes, could be confiscated by the gardaí. The consequences of the notices for them was that they were forced to leave the two sites in question by the respondents in circumstances where they had nowhere to go and where no inquiry was conducted by any of the respondents before exercising the powers conferred by s.19 so as to ascertain the effect the exercise of those powers would have on the applicants' rights and specifically rights under Article 40.5 of the Constitution. Their right to respect for their family life under Article 8 of the European Convention and all of this occurring in circumstances where the applicants contend that the first named respondent had a statutory obligation to assess and cater for their accommodation needs. It was submitted that the service of the notices was in effect a determination of the applicants' rights and it was submitted that the absence of any inquiry or any hearing in which the applicants could participate before a decision was taken to serve these notices breached the applicants' right to a fair hearing under Article 6(1) of the European Convention. In this regard the applicants placed reliance upon the jurisprudence of the European Court of Human Rights. Whilst the applicant in his amended statement of grounds did make a complaint in reliance upon article 6 of the Convention, that complaint was solely to the effect that the offences contained in s.19A to H are impermissibly vague with the prospect of arbitrary enforcement and that the presumption in s.19G(2) was contrary to the presumption of innocence.
Mr Justice O'Neill stated that in resolving the issues raised, it was important to identify the rights of all of the parties involved that were affected by the circumstances of the dispute. In the first place, the first named respondents were and are the legal owners of the two sites. Secondly, it was accepted that the applicants did not have the consent of the first named respondents to enter upon those sites. It necessarily followed, therefore, that their entry on, and occupation of, the sites was a trespass and was illegal. Thus, it was certain that the rights of the first named respondents, as the owners of the land, were infringed by the applicants on their illegal occupation of the land. Like all human beings the applicants were entitled to the protection of Article 40.5 of the Constitution which protected the inviolability of the dwelling. However, this protection did not entitle the applicants to invade somebody else's land and establish their dwelling upon it. In other words, the protection given by Article 40.5 cannot be used simply to shield against an unlawful infringement of someone else's rights. Similarly, the protection afforded by article 8 of the European Convention cannot be invoked simply to shield from scrutiny and redress an illegal invasion of another person's property rights. In all of the ECHR cases relied upon by the applicants, the applicants in each case either owned the land in respect of which the dispute rose or had enjoyed a lawful occupation of it and hence, in Mr Justice O'Neill's view, were clearly distinguishable from the circumstances in the instant case.
Mr Justice O'Neill said that s19 of the 1994 Act does not make unlawful what was lawful before. What the section does is to criminalise that which was previously merely tortious, i.e. entry upon land without the consent of the owner, where the specific requirements of s.19(e)(1)(b)(i) to (v) are met. Section 19 then contains a procedure whereby a garda can serve a notice upon the illegal entrant directing him to leave and to remove any objects placed on the land. Failure to comply with such a direction is in itself an additional criminal offence. When the first named respondents made a complaint to the gardaí and requested that they invoke the powers given to them under s.19, all they were doing was merely exercising their rights as landowners to recover that to which they were entitled, i.e. unfettered possession of their land. In essence, that exercise, so far as the assertion by the first named respondents of the rights as landowners is concerned, was in principle no different from applying to the court for injunctive relief to compel the applicants to leave and remove their caravans or simply requesting the applicants to leave without any further step. All they were doing was asserting their rights of ownership by requiring the trespasser to leave, failing which there could be invoked the common law procedure of applying to the court for equitable relief or the statutory procedure of requesting An Garda Siochana to use the powers conferred on them under s.19. The assertion of their rights of ownership by any of these three methods could not amount to an interference or infringement of the applicants' rights under Article 40.5 of the Constitution or article 8 of the European Convention on Human Rights.
Mr Justice O'Neill said that the fact that the illegal entry exposed the applicants to a criminal liability was immaterial. The addition of criminal culpability or liability by this statutory provision could not enhance the position of the applicants so as to cloak the undoubted illegality of their conduct with the protection of either constitutional or convention rights. The fact that the two sites in question were owned by the first named respondent as a local authority, coupled with the fact that the first named respondents were the housing authority who had the relevant statutory authority to provide for the accommodation of Travellers was also immaterial. Persons who sought accommodation from a housing authority and were disgruntled with the outcome of their application could not take the law into their own hands and occupy other land simply because it was owned by the housing authority. That simple proposition of law held good regardless of whether the piece of property invaded was the town hall or the two sites involved in this dispute. Nor could the applicants avail of a defence of necessity as justification for illegal entry and occupation of the lands. Mr Justice O'Neill was satisfied that, taking the applicants' case at its highest, would not enable them of such a defence. Mr Justice O'Neill was satisfied that the applicants resort to Co Kilkenny was a matter of choice rather than necessity. Against that background, it could not be said that there had been an infringement of article 6(1) of the Convention on the basis contended for in the applicants' submission.
The applicants sought to illustrate the procedural deficiency of which they complained by comparing the absence of the procedure they contended for, namely of some kind of hearing before the invoking of the s.19 powers, to the situation which appertained prior to the enactment of s.19, namely where aggrieved landowners sought injunctive relief from the courts to restrain trespass. In that situation it was submitted that the trespasser had a hearing which was required by article 6(1). What was entirely overlooked in the applicants' submission in that regard was that the circumstances now relied upon by the applicants as justifying their illegal entry would have been no defence and would have gained them no relief or concession from the court, where there was no dispute but that the entry on the land was unlawful. Implicit in the submission by the applicants that there should have been a hearing prior to the invocation of the s.19 powers in order to vindicate their rights under article 6(1), was the notion that the tribunal as envisaged by article 6(1) could uphold or vindicate the applicants' claims to be entitled to remain on the lands. Having regard to the plain and obvious illegality of what was done by the applicants and the absence of any form of justification which would entitle the applicants to remain on the lands, any tribunal charged with upholding the law could not vindicate the applicants' position. Hence, in Mr Justice O'Neill's view, the applicants' claim that their article 6(1) rights were breached by the absence of such a hearing was hollow and devoid of any reality. There was no breach of the applicants' rights under article 6(1) of the Convention.
Mr Justice O'Neill said that the first respondent as a housing authority discharges its obligations as a housing authority by the correct and fair adherence to, and application of, the relevant provisions of the Housing Acts 1966 - 2004. The court was satisfied that in the instant case the first named respondents did so. Where an applicant was disappointed with the outcome of an application for accommodation, the decision of the housing authority was amenable to judicial review, as occurred in this case. In itself, such an avenue of redress was a vindication of the applicants' rights under article 6(1) of the ECHR. Disappointment and distress associated with an unsuccessful housing / accommodation application could not be permitted by the courts to turn into illegal acts, such as occurred here.
In conclusion, Mr Justice O'Neill was satisfied that there was no basis for orders of certiorari or mandamus against the first named respondent and that the exercise by the second named respondent of the powers conferred by s.19 of the 1994 Act did not infringe any of the applicants' constitutional rights or rights under the European Convention on Human Rights or any other legal rights.
Accordingly, the court refused the reliefs sought.
Solicitors: Brophy Solicitors (Dublin) for the applicants; James Harte & Son (Kilkenny) for the first named respondents; Chief State Solicitors Office for the second to fifth named respondents
Kieran O'Callaghan, barrister.