Unlicensed Entry: How Far Is Too Far?
The Garda Siochana, as their name literally translates, are a service dedicated to upholding the public order. However, this duty can only interfere so much, hence why the law has provided limits to their powers. The best example of this is when the Garda attempt to enter someone else’s domicile. The case of DPP v McMahon, for instance, involved two Gardai entering a supposed gambling hall whilst in disguise, in order to gather evidence. Later they attempted to justify this entry by arguing that they had an ‘implied license’ to be there. The Supreme Court rejected this, stating that the owners were inviting people in to take part in ordinary commerce, not for policemen to investigate their premises. This case should be a clear definition of when a Garda may enter a property and when he may not. However, the law is rarely pure and never simple.
This dilemma is best seen in drunk driving legislation. Ordinarily, if a man is driving erratically and a Garda suspects he is intoxicated, then they may order him to pull over and take a breathalyser test. It becomes complicated when the allegedly drunk driver pulls into his driveway. Is a Garda allowed to enter? Under the Road Traffic Act 2010 he is. Section 7 states that a Garda may enter any premises if he suspects a person has committed a drunk driving offence or if he wishes to arrest them for already committing. The same section also says that “any premises” may include the curtilage of any dwelling, though not the dwelling itself. What this means is that a Garda may follow you up your driveway, but they cannot transgress into someone’s house. Effectively, the window of opportunity for your arrest is the distance between your gate and your front door.
This is further complicated when you factor in some laws on implied licenses and private land. What if I tell the police officer to leave? It is my dwelling and without a clear invitation to enter or a warrant for arrest, a Garda is a trespasser and any evidence taken will be inadmissible. There have been some cases on this, most of them English but still good law. In Morris v Beadmore, the homeowner expressly forbid the police officer from entering their dwelling. The police were subsequently held to be trespassers. It has also been held that police may enter if they believe an accident has occurred. Snook v Mannion involved a police officer pursuing a motorist into his driveway. The motorist told the police to “f**k off”. A similar set of facts occurred in Gilham v Breidenbach. In both cases, the court held that the remark had to be assessed in context. Therefore, in some circumstances, profanity could be construed as a genuine request to leave. In others, it could just be abusive language.
In short, the line is quite blurred. This confusion is even more compounded by the fact that those who commit drunk driving offences are usually intoxicated. It would be hard to politely request a police officer leave after you’ve drunk quite a bit. Other complications could arise. What if I leave the door of my house open? In some circumstances that could be seen as an invitation to enter the house. Also, what if the intoxicated person does not realise that their pursuer is a policeman. Under the Criminal Law (Defence and the Dwelling) Act 2011, a person may use reasonable force within their own dwelling if they believe they are in danger and they have not been given a chance to retreat. A drunk person may strike a Garda.
The law under the Road Traffic Act 2010 is unclear in this regard. Though the recent Road Traffic (Amendment) Act 2018 did reform the 2010 Act, it has not clarified the position under law of when and how a policeman may pursue a drunk driver. In this author’s opinion, this should be done soon. As already stated, the law is innately complicated, but that is all the more reason we shouldn’t be asleep at the wheel.
By Daniel Forde – Law Editor