Trespass to Land

Question 1

Royal Dublin Society v. Yates Defintition of trespass to land

Answer 1

Trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another. The intrusion may be intentional or it may be negligent: in either case it is actionable in the absence of lawful justification.

Question 2

What are the three ways trespass to land can be carried out?

Answer 2

when a person unlawfully and either intentionally or negligently

(a) enters property in the possession of another or
(b) remains on property in the possession of another or
(c) directly causes anything to come into contact with property in the possession of another.

Question 3

Is tresspass actionable per se or must you prove damages

Answer 3

per se

Question 4

DPP v. McMahon [1987] ILRM 87

Answer 4

Gardaí entered a licensed premises without a search warrant. It was held that they had acted illegally and were trespassers. It was suggested that the Gardaí would also have had a right to enter the premises as there was an implied invitation to enter a licensed premises for the purpose of purchasing food and drink. However, the DPP conceded that the Gardaí had no intention of purchasing food or drink at the time they entered the premises and therefore could not avail of that independent right to enter.

Question 5

What is Trespass ab initio

Answer 5

The common law doctrine of trespass ab initio means that if a person enters property under the authority of the law and subsequently exceeds his lawful authority, he is deemed to be a trespasser ab initio, from the moment of entry.

A person only becomes a trespasser ab initio if he commits an act of misfeasance, rather than simply nonfeasance.

if a Garda entered the property at a minute to midnight on the day a search warrant was due to expire the Garda would have become a trespasser after midnight when the warrant expired, but would not, in those circumstances, become a trespasser ab initio, since the Garda committed no positive act of misfeasance, rather he simply was on the property when a warrant had expired.

On the other hand, if a Garda entered property lawfully, but while on the property attempted to seize evidence without a warrant or lawful authority he would, in those circumstances, have exceeded his authority and have become a trespasser ab initio.

Question 6

Webb v. Ireland

Answer 6

Trespass ab initio:

Father and son with permission of occupier, went to a church on their property. But then they began to dig for treasure. It was held they were exceeding the scope of their invitation and were trespassers ab initio.

Question 7

Causing something to trespass

Answer 7

If someone directly causes something to come into contact with the property of another, he commits a trespass.

“[t]he courts have regarded the spread of tree branches and roots as consequential rather than direct”.

If the defendant throws stones onto the plaintiff’s property he commits a trespass.

On the other hand, if the defendant leaves his gate open so his horse wanders onto his neighbour’s property, the contact is indirect and there is no trespass.

Question 8

League Against Cruel Sports Limited v. Scott [

Answer 8

It was said that in the context of a hunt the master of the hunt would be liable for trespass if he knew there was a real risk that the hounds would enter private property and either intended the hounds to enter the property or failed to exercise proper control over them.

Question 9

Clarke v. MGW Railway Company [1895]

Answer 9

Continuing Trespass:
said that if someone builds a wall on another’s land he is guilty of a continuing trespass but if someone digs a hole or cuts down a tree there is a single act of trespass. Holmes J explained the reason for this distinction as follows:

The element of continuity must, I think, be looked for not in the right interrupted but in the acts that cause the interruption. Where a man commits a trespass by placing something on another’s land, it is reasonable to regard him as responsible for its continuance until he takes away what is in its nature removable, or until the owner of the lands by refusing him permission to remove it adopts what has been done. But a tree cut down is gone forever. Compensation can be made for it, but it cannot be brought back.

Question 10

Defences against Trespass?

Answer 10

consent, necessity and lawful authority.

Question 11

Necessity in Trespass

Answer 11

Section 6(2) of the Criminal Damage Act 1991 (as amended by s 21 of the Non- Fatal Offences Against the Person Act 1997) recognises a defence of necessity to certain criminal-damage offences:

Therefore, if someone sees his neighbour’s house on fire he may break the door down in order to rescue those trapped inside.

Question 12

Southwark London Borough Council v. Williams

Answer 12

he defendants were homeless and entered an empty house owned by the local authority to seek shelter. Lord Denning MR considered the defence of necessity and took a restrictive approach to the defence in the circumstances of that case.

if homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry. Each man would say his need was greater than the next man’s. The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and the good.

Question 13

Lawful Authority

Answer 13

A member of an Garda Síochána may enter private property in order to inspect the property, prevent a crime or a breach of the peace, effect an arrest, search for and seize evidence, or for some other lawful purpose, either

(a) with the consent of the occupier of the property,
(b) pursuant to statute,
(c) on foot of a validly issued warrant or
(d) under other lawful authority.

Question 14

Constitutionality of the Dwelling place as invoilability

Answer 14

DPP v. Dunne

Question 15

People (Attorney General) v. Hogan

Answer 15

The guarantee [in Article 40.5] is not against forcible entry only. The meaning of the article is that the dwelling of every citizen is inviolable except to the extent that entry is permitted by law which may permit forcible entry … The court is of opinion that a guard has authority to enter a dwelling if he does so to make an arrest which the law permits.

Question 16

Simple Imports Ltd v. Revenue Commissioners

Answer 16

explained the importance of constitutional rights and the strict approach the courts will adopt in determining if those rights have been infringed.

Search warrants, such as those issued in the present case, entitle police and other officers to enter the dwellinghouse or other property of a citizen, carry out searches and (in the present case) remove material which they find on the premises and, in the course of so doing, use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant.

Question 17

DPP v. Molloy

Answer 17

Consent to let police onto property can be revoked.

Question 18

Section 6 of the Criminal Law Act 1997 provides for a general right of a garda to enter and search a property and provides as follows:

Answer 18

1) For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be, and such warrant or order may be executed in accordance with section 5.
(2) For the purpose of arresting a person without a warrant for an arrestable offence a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the member to be in charge of the dwelling, enter that dwelling unless—
(a) he or she or another such member has observed the person within or entering the dwelling, or
(b) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice, or
(c) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would commit an arrestable offence, or
(d) the person ordinarily resides at that dwelling.

Question 19

People (DPP) v. Laide and Anor.

Answer 19

In the court’s view a proportionate use of the power contained in s. 6 mandates that before the somewhat draconian power of forced entry is invoked there would have to have been either no response from a knock on the door or ring of the doorbell, or in the case where such an inquiry is met by the door being opened by an occupant a request for entry would have to be first uttered and subsequently rejected, before the gardaí would be entitled to make a forcible entry. It follows that in the particular circumstances of the present case that the least that would have been required to have been done for the members of the Garda Síochána is to have informed the parents that they wished to gain entry for the purpose of search and arrest … .

Question 20

Section 10 Criminal Justice Act

Answer 20

Permits search warrant in connection with evidence of the commission of an arrestable offence:

Allows for search and seizure of anthing found in that place relating to an arrestable offence on foot of a warrant

Question 21

Section 5 of Criminal Justice Act

Answer 21

Designation of a crime scene:

5. 3- permits superintendent to designate a place a crime scene.
6. 4 permits power of entry and search where it reasonable considered necessary to preserve search for an collect evidence at the crime scene.

Question 22

he People (Attorney General) v. O’Brien & Anor. [1965]

Answer 22

a search warrant had been issued in respect of “118 Cashel Road, Crumlin”. This was an oversight, and the warrant should have been issued in respect of the premises actually searched, viz. “118 Captain’s Road, Crumlin”. This error rendered the warrant invalid. Accordingly, the O’ Briens’ dwelling had not been entered “in accordance with law”. That meant that their constitutional right to the inviolability of their dwelling had been violated.

However, the Supreme Court held that only evidence obtained as a result of a “deliberate and conscious violation” of the accused’s constitutional rights must be excluded at a criminal trial (absent extraordinary excusing circumstances). Here, there was no such violation. As the guards were unaware of the error, they did not know that the warrant was invalid and, therefore, that its execution violated the O’ Briens’ constitutional right to the inviolability of their dwelling.

For evidence to be inadmissible under the O’ Brien exclusionary rule, the guards must have known they were violating the accused’s constitutional rights.

Question 23

What is a warrant?

Answer 23

A validly issued warrant provides the necessary lawful authority to enter premises.

Section 50 of the Constabulary (Ireland) Act, 1836 (6 &7 Will. 4, c. 13) provides immunity for a Garda from actions taken while executing a warrant, even if the warrant is later found to have been invalid.

If a Garda enters a dwelling on foot of a warrant the warrant must be legally and validly issued.

Question 24

The People (DPP) v. Kenny

Answer 24

In that case a warrant was issued by a Peace Commissioner under s 26 of the Misuse of Drugs Act 1977. There was no evidence that any enquiry was made by the Peace Commissioner as to the basis of the Gardaí’s suspicion in that case. It was held by the Court of Criminal Appeal that the warrant was therefore invalid (the Peace Commissioner had no jurisdiction to issue the warrant without being satisfied of the Garda’s suspicion) and the entry onto the premises violated Kenny’s constitutional right to the inviolability of his dwelling. Once again, the Gardaí were unaware of the error. Accordingly, just like the Gardaí in O’ Brien, they did not know that the warrant was invalid and, therefore, that its execution violated Kenny’s constitutional right to the inviolability of his dwelling.

The Supreme Court was asked to clarify the meaning of the term “deliberate and conscious violation of constitutional rights”. The majority of the Supreme Court held that the evidence would be inadmissible if the act constituting the violation was deliberate and conscious. Whether or not the Gardaí knew about the violation was irrelevant. Here the act constituting the violation, viz. entering Kenny’s dwelling, was deliberate and conscious.

That is to say, the Gardaí deliberately entered Kenny’s dwelling and were conscious that they were doing so. Accordingly, the evidence was inadmissible, even though the Gardaí did not know that they were violating Kenny’s constitutional right to the inviolablity of his dwelling.

THIS WAS OVER-RULED IN DPP V JC

Question 25

JC v. DPP

Answer 25

In O’Brien, the Court took the view that the accused should nonetheless be convicted even though the evidence was obtained in breach of rights where that breach was not deliberate or conscious in the sense that those who were guilty of the relevant actions did not know that they were committing such a breach. In Kenny, it was held that the accused must nonetheless be acquitted because the act of obtaining the evidence [viz. entering Kenny’s dwelling] itself was deliberate, even though those involved were not conscious of the fact that they were breaching constitutional rights. In my view, neither position properly balances the legitimate competing interests involved.

To say that evidence should be admitted in all cases except those where the enforcement and investigation authority concerned actually knew that they were acting in breach of constitutional rights is to place insufficient weight on the need to ensure or at least encourage such agencies to operate within the legal boundaries of their investigative powers. But it seems to me to be equally the case that to require, in substance, that an accused against whom there is sufficient evidence to establish guilt must, in all but the most exceptional circumstances, be acquitted where there has been an inadvertent breach of constitutional rights in the gathering of evidence crucial to the establishment of guilt is to place far too little weight on society’s entitlement to secure the proper and legitimate conviction of those guilty of crime and, indeed, the rights of victims to ensure that those who commit crimes against them are brought to justice where there is sufficient probative evidence to establish the guilt of the person concerned to the criminal standard.

held the term “deliberate and conscious” referred to the “knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned”. On the other hand, the Court acknowledged there are circumstances in which evidence cannot be taken in a constitutional manner, regardless of the state of knowledge of the person taking the evidence.

Question 26

The People (Attorney General) v. White

Answer 26

An arrest is only lawful if made on the charge for which the warrant has been issued

Question 27

Who can issue a search warrant?

Answer 27

A search warrant can be lawfully issued by a judge of the District Court or a Peace Commissioner under common law or statute. There is an emergency power for a Garda not below the rank of Superintendent to issue a search warrant under s 26 of the Misuse of Drugs Act 1977

Question 28

Damache v. DPP

Answer 28

The Supreme Court struck down s 29 of the Offences Against the State Act 1939 as unconstitutional