Removing a customer / resident from hotel, shop etc

Azizur Rahman

Hello all.

I was just wondering what hotels and shops and the like can do to remove customers? If they have security can they remove people who refuse to leave? By customer I Eman a customer who refuses to leave after closing time or a hotel or hostel guest who has done something against management wishes.

Or can the businesses call the Gardai to remove the people? Does it become trespass under the Public Order act?

nuac

Mod
Leaving open for general discussion, subject to rule against legal advicce

Mr. Incognito

You can use reasonable force.

However I would always leave it to the guards because the last thing you want is a PI claim.

GM228

Mr. Incognito wrote: »

You can use reasonable force.

However I would always leave it to the guards because the last thing you want is a PI claim.

You can only use reasonable force for defence of property (the Castle Doctrine) or person, not for a simple eviction.

Use of force in dealing with a trespasser is limited to situations of trespass which involves a criminal element and the degree of force used would have to be proportonate to any threat posed.

Azizur Rahman

I asked a Garda friend and she thought it would be a civil matter but wasn't sure.

Fred Swanson

This post has been deleted.

GM228

Azizur Rahman wrote: »

I asked a Garda friend and she thought it would be a civil matter but wasn't sure.

In such a case it is a civil matter.

Azizur Rahman

GM228 wrote: »

In such a case it is a civil matter.

So in theory a hotel or hostel resident could become a squatter? Same with a restaurant customer?

Seems like a bit of loop hole that there's no criminal offence.

Kevin3

GM228 wrote: »

You can only use reasonable force for defence of property (the Castle Doctrine) or person, not for a simple eviction.

Use of force in dealing with a trespasser is limited to situations of trespass which involves a criminal element and the degree of force used would have to be proportonate to any threat posed.

I disagree with you on this one. The power to use as much force as is reasonably necessary to remove a trespasser comes from section 18 of the Non Fatal Offences Against the Person Act 1997. Nowhere in this section is there a proviso that the trespass has to be of the criminal element.

How else would the situation where door staff remove patrons from their premises' on a daily basis across the country be otherwise accepted?

Peregrinus

Publicans, etc, using force to eject a customer usually do so because the customer has become truculent or incapable, and presents a risk of injury to other patrons or to the property (or, at least, they will always say this). Thus they are - or claim to be - using force for the defence of property or persons, and not to remove someone simply because they would rather he was no longer there.

Note that, when asked to leave, most people will either leave or become truculent, so the scenario of bouncers ejecting someone who is simply peaceably enjoying his coffee is not a common one in the real world.

Kevin3

It still stands that the legislation allows the use of force to remove a simple trespasser, no provisos. A person who has simply outstayed their welcome and has been asked to leave and who doesn't becomes a trespasser. Force can be used to remove them.

To be honest it would be a ridiculous situation where this wasn't possible.

Peregrinus

Kevin3 wrote: »

It still stands that the legislation allows the use of force to remove a simple trespasser, no provisos. A person who has simply outstayed their welcome and has been asked to leave and who doesn't becomes a trespasser. Force can be used to remove them.

To be honest it would be a ridiculous situation where this wasn't possible.

Actually, there are provisos. Non-Fatal Offences Against the Person Act 1997 s.18 says that it's not an offence fo a person to use force "to protect his or her property . . . from trespass", but only if the force used is "such as is reasonable in the circumstances". The degree of force that is "reasonable" to use to protect property from trespass depends on the nature and extent of the trespass, and the amount of damage or injury that might result from it. So the degree of force that's reasonable to remove a violent drunk from a crowded bar might be quite different to the degree of force that is reasonable to remove, say, a hiker who is crossing a field, who is likely to leave the field when he has crossed it, even if no force at all is used..

GM228

Kevin3 wrote: »

I disagree with you on this one. The power to use as much force as is reasonably necessary to remove a trespasser comes from section 18 of the Non Fatal Offences Against the Person Act 1997. Nowhere in this section is there a proviso that the trespass has to be of the criminal element.

Reference to the protection of property and the reference to preventing crime are similarly construed for the purposes of the 1997 Act. If you are to use force for the purposes of protecting your property it must arise out of the similar use of force for prevention of a crime.

You can disagree with me all you like, but it's not my opinion, it's the position held by Mr. Justice Hardiman of the Court of Criminal Appeal in 2006 in the DPP vs Anthony Barnes [2006] IE CCA 165 case. He specifically dealth with the 1997 Act and confirmed it only applied to a criminal act.

Kevin3 wrote: »

It still stands that the legislation allows the use of force to remove a simple trespasser, no provisos. A person who has simply outstayed their welcome and has been asked to leave and who doesn't becomes a trespasser. Force can be used to remove them.

To be honest it would be a ridiculous situation where this wasn't possible.

There were a few other cases on the issue and legislation/common law was codified further by the Criminal Law (Defence and the Dwelling) Act 2011 which adopted the the Barnes case in relation to a dwelling:-

2.— (1) Notwithstanding the generality of any other enactment or rule of law and subject to subsections (2) and (3), it shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where—

(a) he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act, and

(b) the force used is only such as is reasonable in the circumstances as he or she believes them to be—

(i) to protect himself or herself or another person present in the dwelling from injury, assault, detention or death caused by a criminal act,

(ii) to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or

(iii) to prevent the commission of a crime or to effect, or assist in effecting, a lawful arrest

Kevin3

GM228 wrote: »

Reference to the protection of property and the reference to preventing crime are similarly construed for the purposes of the 1997 Act. If you are to use force for the purposes of protecting your property it must arise out of the similar use of force for prevention of a crime.

I'm not sure what you are saying here because it doesn't reference trespass.

GM228 wrote: »

You can disagree with me all you like, but it's not my opinion, it's the position held by Mr. Justice Hardiman of the Court of Criminal Appeal in 2006 in the DPP vs Anthony Barnes [2006] IE CCA 165 case. He specifically dealth with the 1997 Act and confirmed it applied to a criminal act.

The Barnes case doesn't say anywhere in it that section 18 only applies to criminal acts.

If it were to apply to criminal trespass only then the section would state as much.

GM228 wrote: »

There were a few other cases on the issue and legislation/common law was codified further by the Criminal Law (Defence and the Dwelling) Act 2011 which adopted the the Barnes case in relation to a dwelling:-

You are referring to other legislation which clarified that a person does not have to consider fleeing their dwelling from a trespasser in order to avoid use of force. This legislation doesn't amend section 18 (1) (c) or (d) in any way.

Fred Swanson

This post has been deleted.

Peregrinus

Even if they do have the right to throw them out, Starbucks is not going to instruct its staff to get physical with a bunch of customers, even customers who decline to leave at closing time. S.O.P. in this situation is to call the guards, and let them do any getting physical that is to be done.

GM228

Kevin3 wrote: »

I'm not sure what you are saying here because it doesn't reference trespass.

S18 applies to the protection from appropriation, destruction or damage of property from (amongst other things) trespass, S18 allows you to use reasonable force to remove a trespasser for the purposes of protecting your property, not just for the purposes of removing a simple trespasser. Trespass is not defined to mean civil or so called criminal trespass but the Barnes case Mr. Justice Hardiman seems to have confirmed it required an act of aggression analogous to a criminal act to apply.

Kevin3 wrote: »

The Barnes case doesn't say anywhere in it that section 18 only applies to criminal acts.

If it were to apply to criminal trespass only then the section would state as much.

You are referring to other legislation which clarified that a person does not have to consider fleeing their dwelling from a trespasser in order to avoid use of force. This legislation doesn't amend section 18 (1) (c) or (d) in any way.

You also are not afforded the defence of S18 if you have the ability to retreat as per S20 (1) and something noted by the Law Reform Commission 2009 report "Defences in Criminal Law" - in other words you are cornered and can't leave and have no choice but to defend your property. This is why the 2011 act in conjunction with the Barnes case allowed the defence without the need to retreat, but, only where the trespass involved a criminal element. Basically S18 provides a last resort defence of self-defence, not a means of eviction.

Also related to the OPs query, it does not apply to a situation of self generated necessity, so for example if you ask someone to leave and they refuse you can't use force to bring about the conclusion of a situation you created.

GM228

Peregrinus wrote: »

in this situation is to call the guards, and let them do any getting physical that is to be done.

The Gardaí are also powerless legally to remove a simple trespasser, though in most cases I'll stress they do get the job done, but, if a simple trespasser refuses to leave even for Gardaí it can get messy, court orders and Sheriff/Couny Registrar (and then the Gardaí to assist the Sheriff/Registrar) are required to remove a simple trespasser legally - look at Apollo House fot example.

Oh and before someone points to the Prohibition of Forcible Entry and Occupation Act 1971, it does not apply to a simple trespasser for example.

Kevin3

GM228 wrote: »

S18 applies to the protection from appropriation, destruction or damage of property from (amongst other things) trespass, S18 allows you to use reasonable force to remove a trespasser for the purposes of protecting your property, not just for the purposes of removing a simple trespasser.

You are misreading the section.
(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—

(c) to protect his or her property
from appropriation, destruction or damage caused by a criminal act
or
from trespass or infringement;

where the word 'from' is used shows where the sentence is split up.

GM228 wrote: »

Trespass is not defined to mean civil or so called criminal trespass but the Barnes case Mr. Justice Hardiman seems to have confirmed it required an act of aggression analogous to a criminal act to apply.

Of course it refers to a criminal act in the case as a criminal offence is being judged in the case. The case doesn't restrict the section to just criminal acts in any way.

GM228 wrote: »

You also are not afforded the defence of S18 if you have the ability to retreat as per S20 (1) and something noted by the Law Reform Commission 2009 report "Defences in Criminal Law" - in other words you are cornered and can't leave and have no choice but to defend your property. This is why the 2011 act in conjunction with the Barnes case allowed the defence without the need to retreat, but, only where the trespass involved a criminal element. Basically S18 provides a last resort defence of self-defence, not a means of eviction.

Where does it say 'only where the trespass involved a criminal element?

GM228 wrote: »

Also related to the OPs query, it does not apply to a situation of self generated necessity, so for example if you ask someone to leave and they refuse you can't use force to bring about the conclusion of a situation you created.

That's absolutely not what the principle of "self generated necessity" says.
The section imparts the principle in subsection 7: “The defence provided by this Section does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it”.

Going by the Barnes case it would more accurate to say where a trespasser refuses to leave they can't use the section to use force to defend themselves against the property owner removing them.

Kevin3

GM228 wrote: »

The Gardaí are also powerless legally to remove a simple trespasser, though in most cases I'll stress they do get the job done, but, if a simple trespasser refuses to leave even for Gardaí it can get messy, court orders and Sheriff/Couny Registrar (and then the Gardaí to assist the Sheriff/Registrar) are required to remove a simple trespasser legally - look at Apollo House fot example.

Oh and before someone points to the Prohibition of Forcible Entry and Occupation Act 1971, it does not apply to a simple trespasser for example.

Ah yes, I believe it also was me that was sparring with you in relation to that. I don't think that was ever really resolved so just to put it beyond any doubt that the Act can deal with simple trespass and actually was created to deal with exactly what Apollo House was take a look at this Dail debate at the introduction of the Act to show it's actual intention: http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail1971012700030?opendocument

Where a person commits an offence of forcible entry or forcible occupation, it will, in the overwhelming majority of cases, be in circumstances where he has no colour of right to the property [79] entered or occupied. Consequently, it would in the ordinary way be unreasonable to the point of absurdity to require the prosecution to go through the tedious and possibly costly process of proving ownership that is not being challenged. Members of the House who have had personal experience of the purchase or sale of a house will appreciate that proof of title can be a tedious process. Accordingly section 5 of the Bill provides that, unless the defendant shows to the satisfaction of the court that he has a bona fide claim to ownership of the property, it will not be necessary for the prosecution to prove ownership.

It may happen that, when squatters or protest groups occupy buildings and refuse to leave, it will become necessary for the owner to use some force to eject them and, in the process, he may cause damage to his property. A practical example of this is where an owner had to break down a door of his house that was barred against him. Since damage reasonably caused in such circumstances is directly attributable to the refusal of the illegal occupiers to get out when asked to do so, the Bill proposes, in section 6, that the court, in coming to a decision as to a penalty appropriate to the offence, should be able to take account of the damage as if it were damage caused by the defendant and also to take into consideration whether the defendant had compensated the owner for the damage. Section 6 also provides that the owner may recover the amount of the damage as a simple contract debt in civil proceedings.

GM228

Kevin3 wrote: »

You are misreading the section.
(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—

(c) to protect his or her property
from appropriation, destruction or damage caused by a criminal act
 or
from trespass or infringement;

where the word 'from' is used shows where the sentence is split up.

To be afforded the provisions of S18 you must not be able to retreat which severly limits it's application as in most cases you would be able to retreat, the exception to the requirement to retreat applies to your dwelling in which case as per the 2011 Act it only applies where there is a criminal element.

I think one important point to be made of S18 which so far has been missed is that S18 affords a defence to any proceedings rather than any "right" to do something. Saying X is a defence to an offence is not the same as saying you can lawfully do X for the purposes of Y.

Kevin3 wrote: »

Where does it say 'only where the trespass involved a criminal element?

In the quote from the 2011 Act I already provided. S2 (1)(a):-

2.— (1) Notwithstanding the generality of any other enactment or rule of law and subject to subsections (2) and (3), it shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where—

(a) he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act,

Under the 1997 Act you can only invoke the defence if you can't retreat, under the 2011 Act if you don't retreat (as opposed to can't) you can only invoke the defence if the trespass is for the purpose of committing a criminal act.

Kevin3 wrote: »

That's absolutely not what the principle of "self generated necessity" says.
The section imparts the principle in subsection 7: “The defence provided by this Section does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it”.

Going by the Barnes case it would more accurate to say where a trespasser refuses to leave they can't use the section to use force to defend themselves against the property owner removing them.

I know what the principle of self generated necessity is, you have missed my point in relation to it. The principle applies to the person using the defence of S18.

Under the principle a person is not allowed to claim the benefit of S18 when the conflict was initiated by that person. It was in relation to the OPs query in relation to for example asking someone to leave who was lawfully present in the first place. By asking them to leave (considering they were lawfully present) you are now creating the conflict which you want to use force to resolve, in such a case you can't claim the defence of S18.

GM228

Kevin3 wrote: »

Ah yes, I believe it also was me that was sparring with you in relation to that. I don't think that was ever really resolved so just to put it beyond any doubt that the Act can deal with simple trespass and actually was created to deal with exactly what Apollo House was take a look at this Dail debate at the introduction of the Act to show it's actual intention: http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail1971012700030?opendocument

Eh sorry, but that does not put it beyond any doubt, an Oireachtas debate has no bearing on statutory interpretation.

It applies to simple trespass, no it does not, mayby re-ead the legislation and your Oireachtas link, even from your quote.

Where a person commits an offence of forcible entry or forcible occupation..........

Once again you can't seem to fadom it relates to forcible occupation, not occupation/trespass in and of itself, a simple trespasser is not engaged in forcible occupation unless he/she uses force to gain entrance. That puts it beyond any doubt - the qualifying criteria of the Act.

nuac

Fred Swanson wrote: »

This post has been deleted.

1. Close the toilets

2. Turn off heat and WIFI

3. Play, loudly, continuous loop of most annoying canned "music"

4. Refuse re-admission to anyone who leaves.

5. Allow in some eager political and religious canvassers

Kevin3

GM228 wrote: »

To be afforded the provisions of S18 you must not be able to retreat which severly limits it's application as in most cases you would be able to retreat, the exception to the requirement to retreat applies to your dwelling in which case as per the 2011 Act it only applies where there is a criminal element.

The section you are referring to is section 20 (4): "The fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable."

It's completely wrong to say a person must retreat before the defence can be used, it's merely that it should be taken into account in conjunction with other relevant evidence.

GM228 wrote: »

I think one important point to be made of S18 which so far has been missed is that S18 affords a defence to any proceedings rather than any "right" to do something. Saying X is a defence to an offence is not the same as saying you can lawfully do X for the purposes of Y.

The section is not one that provides a 'good defence'. It states "The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—"

GM228 wrote: »

In the quote from the 2011 Act I already provided. S2 (1)(a):-

I was asking the question in relation to Section 18 not the 2011 Act.

GM228 wrote: »

Under the 1997 Act you can only invoke the defence if you can't retreat, under the 2011 Act if you don't retreat (as opposed to can't) you can only invoke the defence if the trespass is for the purpose of committing a criminal act.

Addressed above. It is only to be taken into account.

GM228 wrote: »

I know what the principle of self generated necessity is, you have missed my point in relation to it. The principle applies to the person using the defence of S18.

Under the principle a person is not allowed to claim the benefit of S18 when the conflict was initiated by that person. It was in relation to the OPs query in relation to for example asking someone to leave who was lawfully present in the first place. By asking them to leave (considering they were lawfully present) you are now creating the conflict which you want to use force to resolve, in such a case you can't claim the defence of S18.

The conflict is created by the person trespassing and who is refusing to leave (they are then unlawfully present). A property/land owner has a legal right to ask a person to leave, they're not the person who 'caused the state of affairs', the trespasser is by refusing to leave.

GM228 wrote: »

Eh sorry, but that does not put it beyond any doubt, an Oireachtas debate has no bearing on statutory interpretation.

The link is of the Minister of Justice of the day; Desmond O Malley, laying the legislation before the house with a clear explanation of it's purpose. Do you think your own interpretation is more accurate than his or the legal professionals who no doubt had a part in compiling his summary?

GM228 wrote: »

It applies to simple trespass, no it does not, mayby re-ead the legislation and your Oireachtas link, even from your quote.

Perhaps it would be more accurate to say that the legislation can be applied to simple trespass where the trespasser refuses to leave. Using the ministers own example: "Since the Bill is not designed to deal with such forms of occupation as, for example, where a “wandering minstrel” sleeps in a disused outhouse, or an itinerant or other homeless family seeks temporary shelter in an abandoned farmhouse, an exception is made in section 2 for a person who, having forcibly entered land or a vehicle, does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave by the owner or by a uniformed garda, does so with all reasonable speed and in a peaceful manner."

GM228 wrote: »

Once again you can't seem to fadom it relates to forcible occupation, not occupation/trespass in and of itself, a simple trespasser is not engaged in forcible occupation unless he/she uses force to gain entrance. That puts it beyond any doubt - the qualifying criteria of the Act.

And you can't seem to fathom that forcible occupation is defined in section 3 (2) as: "In this section “forcible occupation of land or a vehicle” includes— ... (c) the act of physically resisting a lawful attempt at ejection from land or a vehicle."
A situation which could be applied to any simple trespass incident where the trespasser refuses to leave.

Going back to section 18 have a look at 'Criminal Law in Ireland by Sean E. Quinn' at page 649 at section 26.68 https://books.google.ie/books?id=eTrDgPmgh7MC&pg=PA649&lpg#v=onepage&q&f=false when referring to section 18.

Thanks for engaging in the discussion by the way, this is the first thing that I think you have been wrong in on this forum so in that context you might understand my eagerness to press my point with you.

GM228

Kevin3 wrote: »

The section you are referring to is section 20 (4): "The fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable."

It's completely wrong to say a person must retreat before the defence can be used, it's merely that it should be taken into account in conjunction with other relevant evidence.

Ok, perhaps it's more accurate to say using the defence is not absolute if you don't retreat, therefore there is no guarantee of it being of any use to you if you don't retreat when you had an opportunity to do so.

Kevin3 wrote: »

The section is not one that provides a 'good defence'. It states "The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—"

I didn't say it is a "good defence", merely a defence to any possible charge. But the reality is they are defences, because if not properly exercised you leave yourself open to committing an offence, i.e excessive force etc, you couls then try raise S18 as your defence. Even S18 (7) refers to the "defence provided by this section".

But again saying something does not constitute an offence is not the same as saying you can lawfully evict someone. The law does not say "a person may use force" or something similar, rather it simply says a person who uses reasonable force won't be prosecuted.

Kevin3 wrote: »

Going back to section 18 have a look at 'Criminal Law in Ireland by Sean E. Quinn' at page 649 at section 26.68 https://books.google.ie/books?id=eTrDgPmgh7MC&pg=PA649&lpg#v=onepage&q&f=false when referring to section 18.

The reality is S18 confers no more than a restriction on a prosecution (subject to using reasonable force and potentially the ability to retreat and other considerations).

Kevin3 wrote: »

I was asking the question in relation to Section 18 not the 2011 Act.

In light of the question over the requirement to retreat in the 1997 Act I referred to the 2011 Act which states that use of force on a trespasser in your own dwelling home where there is a criminal element involved is not an offence, due to the question of retreat it is only absolute that it is not an offence to use force in your own home when you can't retreat if the trespasser is committing a crime.

Kevin3 wrote: »

The conflict is created by the person trespassing and who is refusing to leave (they are then unlawfully present). A property/land owner has a legal right to ask a person to leave, they're not the person who 'caused the state of affairs', the trespasser is by refusing to leave.

I think that would be open to debate as to who created the conflict depending on the circumstances.

Kevin3 wrote: »

The link is of the Minister of Justice of the day; Desmond O Malley, laying the legislation before the house with a clear explanation of it's purpose. Do you think your own interpretation is more accurate than his or the legal professionals who no doubt had a part in compiling his summary?

It does not matter what the link says, Oireachtas debates have no bearing on statutory interpretation. There were probably also further debates and amendments to the Bill since that debate I would guess as the Bill went through the various stages. All that matters is what is actually written into the Act itself and the Act itself clearly applies to forcible occupation, not simple occupation.

Kevin3 wrote: »

Perhaps it would be more accurate to say that the legislation can be applied to simple trespass where the trespasser refuses to leave. Using the ministers own example: "Since the Bill is not designed to deal with such forms of occupation as, for example, where a “wandering minstrel” sleeps in a disused outhouse, or an itinerant or other homeless family seeks temporary shelter in an abandoned farmhouse, an exception is made in section 2 for a person who, having forcibly entered land or a vehicle, does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave by the owner or by a uniformed garda, does so with all reasonable speed and in a peaceful manner."

Again that's not more accurate to say, re-read the ministers quote, where a trespasser refuses to leave is still based on forcible entry in the first place:-

an exception is made in section 2 for a person who, having forcibly entered land or a vehicle, does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave by the owner or by a uniformed garda, does so with all reasonable speed and in a peaceful manner.

The qualifying criteria there is again based on having "forcibly entered" land, from the Act itself which is more appropriate to quote from:-

Offence of forcible entry of land or a vehicle.

2.—A person who forcibly enters land or a vehicle shall be guilty of an offence unless—

(a) he is the owner of the land or vehicle, or

(b) if he is not the owner, he does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave the land or vehicle by the owner or by a member of the Garda Síochána in uniform, he does so with all reasonable speed and in a peaceable manner, or

(c) he enters in pursuance of a bona fide claim of right.

Kevin3 wrote: »

And you can't seem to fathom that forcible occupation is defined in section 3 (2) as: "In this section “forcible occupation of land or a vehicle” includes— ... (c) the act of physically resisting a lawful attempt at ejection from land or a vehicle."
A situation which could be applied to any simple trespass incident where the trespasser refuses to leave.

S18 simply states using force in certain circumstances is not an offence, no part of that section or any other Act gives a power or right to perform a lawful ejection.

Also in order to invoke S3 of the 1971 Act the trespasser would have to physically resist, simply saying no would not be enough.

You also need to note that S3 only prescribes an offence, it is not a power of eviction, not even for Gardaí - and that definition specifically applies to S3, not the entire Act.

Only a Sheriff/County Registrar can invoke a lawful ejection in pursuance of a court order. Potential lawful use of force for protection is entitely different to lawful ejection.

This would be like an analogy to the requirement for a motorist to stop if requested by Gardaí under the Road Traffic Act 1961, but that in itself did not give Gardaí any power to stop motorists, that power coming from the common law.

Kevin3

Please find quote from attached High Court judgement:

In the present case it appears to me that such an alternative course is available. On the evidence before me the case appears to fall squarely within the scope of the Prohibition of Forcible Entry and Occupation Act, 1971 which was passed specifically to deal with the kind of unlawful conduct which is admitted to have taken place in relation to the New Ross factory premises.
Under s. 3 of the act a person who remains in forcible occupation of land shall be guilty of an offence unless he is the owner of the land or so remains thereon in pursuance of a bona fide claim of right. No such bona fide claim of right has been asserted in the present case. Forcible occupation includes the act of physically resisting a lawful attempt at ejection from land. The owner for the purposes of the Act includes the lawful occupier and every person entitled to the immediate use and enjoyment of unoccupied land, and any person acting on behalf of the owner.
The penalties which may be imposed for a first offence under the Act include imprisonment for a term not exceeding six months, in case of summary conviction. Under s. 9 of the Act a member of the Garda Siochana may arrest a person without warrant where:
(a) the member knows or has reasonable cause for suspecting that the person is committing an offence under s. 3 of the Act, and
(b) the owner of the land to which the offence relates represents to any member of the Garda Siochana and the member proposing to make the arrest reasonably believes that as a result of the continuance of the offence serious damage to the land or serious interference with the lawful rights of the owner in relation thereto or serious inconvenience to the public or a section thereof is being or will be caused, and
(c) the member proposing to make the arrest reasonably believes that the arrest is necessary to prevent the damage, interference or inconvenience, and
(d) it is not reasonably practicable to apply for a warrant.
In my opinion, these powers should be used by the Garda Siochana for the purpose for which they were intended.

What power to lawfully attempt ejection from land is the judge suggesting should be used to invoke the legislation he is saying should be used?

GM228

Kevin3 wrote: »

Please find quote from attached High Court judgement:



What power to lawfully attempt ejection from land is the judge suggesting should be used to invoke the legislation he is saying should be used?

The Ross Co. case considered if there could be a criminal or punitive element in a civil contempt order. It concerned an alternative remedy to breach of a court order, not an alternative to ejection per se, and considering a court order can only be enforced by a Sheriff/County Registrar it is reasonable to say that the Gardaí would only be exercising a power in relation to lawful ejection in supporting the Sheriff/Registrar.

That said there are also two other sub sections of S3 which afford Gardaí a power of arrest where continued occupation involved actions such as erecting physical obstacles etc, the case was the result of staff entering their former place of work as part of a trade dispute and it is highly likely that they met the other criteria of S3 as I believe they did this to frustrate efforts of a receiver.

If entrance and remaining in occupation of property as a trespasser/squatter is not forcible the 1971 Act does not apply.

Kevin3

GM228 wrote: »

The Ross Co. case considered if there could be a criminal or punitive element in a civil contempt order. It concerned an alternative remedy to breach of a court order, not an alternative to ejection per se, and considering a court order can only be enforced by a Sheriff/County Registrar it is reasonable to say that the Gardaí would only be exercising a power in relation to lawful ejection in supporting the Sheriff/Registrar.

That said there are also two other sub sections of S3 which afford Gardaí a power of arrest where continued occupation involved actions such as erecting physical obstacles etc, the case was the result of staff entering their former place of work as part of a trade dispute and it is highly likely that they met the other criteria of S3 as I believe they did this to frustrate efforts of a receiver.

If entrance and remaining in occupation of property as a trespasser/squatter is not forcible the 1971 Act does not apply.

The judge selectively picks the sections of the 1971 Act which he presents as the 'alternative course'. He picks the sections I have suggested could be used in any trespass incident where the trespasser resists a lawful attempt at ejection from the land. The judge picks out and states the specific part of resisting the lawful attempt at ejection from the land. You are clutching at straws when you say he was probably referring to the erection of physical obstacles when it's never mentioned or suggested in the judgement.

We know there was no court order to allow ejection because this was an application for attachment and/or committal which he refused, because there was an alternative course of action; the 1971 Act!

GM228

Kevin3 wrote: »

The judge selectively picks the sections of the 1971 Act which he presents as the 'alternative course'. He picks the sections I have suggested could be used in any trespass incident where the trespasser resists a lawful attempt at ejection from the land. The judge picks out and states the specific part of resisting the lawful attempt at ejection from the land. You are clutching at straws when you say he was probably referring to the erection of physical obstacles when it's never mentioned or suggested in the judgement.

I never said the judge was probably referring to the erection of physical obstacles, I merely pointed out that there are other aspects of S3, but from what I remember there were such incidents in this case (I recall reading something about it in a book on industrial disputes).

The judgement concerned contempt of a court order rather than dealing with the facts of the original order or tespass.

With regards to a "lawful attempt at ejection from the land", again I would stress that a bar on a prosecution (which is effectively what S18 of the 1997 Act is) is not the same as a lawful authority to do something.

Kevin3 wrote: »

We know there was no court order to allow ejection because this was an application for attachment and/or committal which he refused, because there was an alternative course of action; the 1971 Act!

There was no order? Yes there was.

There was an injunction to cease trespass, such a court order could only be enforced by a Sheriff/County Registrar, nobody else has authority/power (not even Gardaí) to enforce a court order.

The Ross Co. case is an authorative case in deciding if there could be a criminal or punitive element for contempt of a court order, the application for an order of attachment and/or committal was in relation to breach of the injunction. The whole point of looking for an attachment/committal order was to answer for contempt against the court.

All the Ross Co. case did was introduce the English principle into Irish law that committal to prison should not happen when it was unlikely to produce the desired result where there was an alternative course available to remedy the contempt.

Kevin3

Can I get an opinion on the attached case with particular reference to the following paragraph:

I am satisfied in those circumstances that no right of hers whatever was violated in any way by any of the Council's actions. Like any owner of property, they were entitled to secure it and that is all they did in this case, an action that they were perfectly entitled to take. It was not a case in which they forcibly removed a person from a house although that, of course, is a right which as all the authorities demonstrate, they do enjoy provided no more than reasonable force is used to removed trespassers on their property. This never even got to the stage of having to remove a trespasser from a property as she was not there and the Council did not more than make the property secure against any intrusions. Thereafter, she made no attempt to establish herself as a legal occupant of the premises.

It seems to support my argument that force can be used to remove a trespasser?

Samuel T. Cogley

Starbucks have a policy of not asking customers to leave at closing time. Just sayin' :pac:

Fred Swanson

This post has been deleted.

Samuel T. Cogley

Fred Swanson wrote: »

This post has been deleted.

People get the idea when the staff start cleaning up, unless it's 24 hours.

Lmklad

I’d suggest the Criminal Justice Public Order Act is perfect for this, specifically Sec6 and 8 for a public place and Sec 13 for non-public. Any breach allows for arrest and subsequent use of reasonable force.

GM228

Kevin3 wrote: »

Can I get an opinion on the attached case with particular reference to the following paragraph:

I am satisfied in those circumstances that no right of hers whatever was violated in any way by any of the Council's actions. Like any owner of property, they were entitled to secure it and that is all they did in this case, an action that they were perfectly entitled to take. It was not a case in which they forcibly removed a person from a house although that, of course, is a right which as all the authorities demonstrate, they do enjoy provided no more than reasonable force is used to removed trespassers on their property. This never even got to the stage of having to remove a trespasser from a property as she was not there and the Council did not more than make the property secure against any intrusions. Thereafter, she made no attempt to establish herself as a legal occupant of the premises.

It seems to support my argument that force can be used to remove a trespasser?

The part in bold supports an argument, not necessarily your argument.

It's a bit ambiguous, but yes there is plenty of case law on the point of eviction from a house. And to note is that Mr. Justice Keane specifically refers to a "house". That argument is long settled (arguably since 1798) regarding using reasonable force (or rather using "no unnecessary force" as it was originally worded) and the requirement to ask someone to leave first when removing a trespasser, but that only applied to a dwelling house and where there was forcible entry and occupation (the later adoption of the Castle Doctrine is certainly authoritative in that regard).

There is a difference between removing a trespasser from a dwelling home and removing an ordinary trespasser from a non dwelling home and forcible or non forcible occupation.

GM228

Lmklad wrote: »

I’d suggest the Criminal Justice Public Order Act is perfect for this, specifically Sec6 and 8 for a public place and Sec 13 for non-public. Any breach allows for arrest and subsequent use of reasonable force.

S6 deals with threatening, abusive or insulting behaviour and breach of peace, whilst S13 deals with trespasaing which provokes fear in another person, it would be difficult to apply any of the 1994 Act to an ordinary trespasser.

coylemj

In the matter of the Gardai being called to remove someone from a licensed premises....

In one of the licensing acts, I recall reading that a Garda was permitted to 'assist' a licensee to remove someone from the premises where the presence of such person on the premises 'would subject the licensee to a fine'. Which would cover anybody (peaceful or belligerent, drunk or sober) after hours and a drunk during regular opening hours.

Lmklad

GM228 wrote: »

Lmklad wrote: »

I’d suggest the Criminal Justice Public Order Act is perfect for this, specifically Sec6 and 8 for a public place and Sec 13 for non-public. Any breach allows for arrest and subsequent use of reasonable force.

S6 deals with threatening, abusive or insulting behaviour and breach of peace, whilst S13 deals with trespasaing which provokes fear in another person, it would be difficult to apply any of the 1994 Act to an ordinary trespasser.

It would be a very rare situation where some sort of abusive behaviour would not be used, else why the issue of removing a person. As for S13 if someone in on a premises after hours I’d certainly be fearful of there actions. Remember it’s not the guard who needs to be in fear but a person on the premises.

GM228

coylemj wrote: »

In the matter of the Gardai being called to remove someone from a licensed premises....

In one of the licensing acts, I recall reading that a Garda was permitted to 'assist' a licensee to remove someone from the premises where the presence of such person on the premises 'would subject the licensee to a fine'. Which would cover anybody (peaceful or belligerent, drunk or sober) after hours and a drunk during regular opening hours.

Are you not getting confused with S6 and S8 of the Intoxicating Liquor Act 2003 which allows Gardaí (or the licensee) to request a person leave when drunk or for disorderly conduct?

GM228

Lmklad wrote: »

As for S13 if someone in on a premises after hours I’d certainly be fearful of there actions. Remember it’s not the guard who needs to be in fear but a person on the premises.

I know it is not the Guard, however it isn't as simple as saying someone was in fear, fear should be well founded.

There must be a good cause for the fear, i.e there must be a substantial reason put forth in good faith that is not unreasonable, arbitrary or irrational to create the fear.

Fear is based both on what you feel, and more importantly how a reasonable person should feel, the important part is it needs to based on how the reasonable person feels given the situation (the subjective aspect of the fear meets the objective conditions required), the objective test usually trumps the subjective state of mind - known as the "well founded" test.

Kevin3

GM228 wrote: »

The part in bold supports an argument, not necessarily your argument.

It's a bit ambiguous, but yes there is plenty of case law on the point of eviction from a house. And to note is that Mr. Justice Keane specifically refers to a "house". That argument is long settled (arguably since 1798) regarding using reasonable force (or rather using "no unnecessary force" as it was originally worded) and the requirement to ask someone to leave first when removing a trespasser, but that only applied to a dwelling house and where there was forcible entry and occupation (the later adoption of the Castle Doctrine is certainly authoritative in that regard).

There is a difference between removing a trespasser from a dwelling home and removing an ordinary trespasser from a non dwelling home and forcible or non forcible occupation.

Have you changed your position on this a bit?

GM228 wrote: »

You can only use reasonable force for defence of property (the Castle Doctrine) or person, not for a simple eviction.

Use of force in dealing with a trespasser is limited to situations of trespass which involves a criminal element and the degree of force used would have to be proportonate to any threat posed.

GM228 wrote: »

Reference to the protection of property and the reference to preventing crime are similarly construed for the purposes of the 1997 Act. If you are to use force for the purposes of protecting your property it must arise out of the similar use of force for prevention of a crime.

You can disagree with me all you like, but it's not my opinion, it's the position held by Mr. Justice Hardiman of the Court of Criminal Appeal in 2006 in the DPP vs Anthony Barnes [2006] IE CCA 165 case. He specifically dealth with the 1997 Act and confirmed it only applied to a criminal act.

There were a few other cases on the issue and legislation/common law was codified further by the Criminal Law (Defence and the Dwelling) Act 2011 which adopted the the Barnes case in relation to a dwelling:-

Lmklad

GM228 wrote: »

Lmklad wrote: »

As for S13 if someone in on a premises after hours I’d certainly be fearful of there actions. Remember it’s not the guard who needs to be in fear but a person on the premises.

I know it is not the Guard, however it isn't as simple as saying someone was in fear, fear should be well founded.

There must be a good cause for the fear, i.e there must be a substantial reason put forth in good faith that is not unreasonable, arbitrary or irrational to create the fear.

Fear is based both on what you feel, and more importantly how a reasonable person should feel, the important part is it needs to based on how the reasonable person feels given the situation (the subjective aspect of the fear meets the objective conditions required), the objective test usually trumps the subjective state of mind - known as the "well founded" test.

GM228 wrote: »

Lmklad wrote: »

As for S13 if someone in on a premises after hours I’d certainly be fearful of there actions. Remember it’s not the guard who needs to be in fear but a person on the premises.

I know it is not the Guard, however it isn't as simple as saying someone was in fear, fear should be well founded.

There must be a good cause for the fear, i.e there must be a substantial reason put forth in good faith that is not unreasonable, arbitrary or irrational to create the fear.

Fear is based both on what you feel, and more importantly how a reasonable person should feel, the important part is it needs to based on how the reasonable person feels given the situation (the subjective aspect of the fear meets the objective conditions required), the objective test usually trumps the subjective state of mind - known as the "well founded" test.

GM228 wrote: »

Lmklad wrote: »

As for S13 if someone in on a premises after hours I’d certainly be fearful of there actions. Remember it’s not the guard who needs to be in fear but a person on the premises.

I know it is not the Guard, however it isn't as simple as saying someone was in fear, fear should be well founded.

There must be a good cause for the fear, i.e there must be a substantial reason put forth in good faith that is not unreasonable, arbitrary or irrational to create the fear.

Fear is based both on what you feel, and more importantly how a reasonable person should feel, the important part is it needs to based on how the reasonable person feels given the situation (the subjective aspect of the fear meets the objective conditions required), the objective test usually trumps the subjective state of mind - known as the "well founded" test.

You are correct for “the beyond reasonable grounds” a judge would require to convict. However for a guard to act all they need is “reasonable grounds” a much lower threshold of “fear”.

GM228

Kevin3 wrote: »

Have you changed your position on this a bit?

How has it changed?

Re-read what I first wrote.....

GM228 wrote: »

You can only use reasonable force for defence of property (the Castle Doctrine) or person, not for a simple eviction.

Use of force in dealing with a trespasser is limited to situations of trespass which involves a criminal element and the degree of force used would have to be proportonate to any threat posed.

"That argument is long settled (arguably since 1798) regarding using reasonable force (or rather using "no unnecessary force" as it was originally worded) and the requirement to ask someone to leave first when removing a trespasser, but that only applied to a dwelling house and where there was forcible entry and occupation (the later adoption of the Castle Doctrine is certainly authoritative in that regard)."

So how is it changed? You are using it for defence of property, and forcible entry and occupation is a criminal offence, simple trespass is not.

I mentioned 1798, this is in relation to the Weaver vs Bush [1798] 8 TR 71 case which dealt specifically with defence of property (a "close" in that case) from unlawful possession, it allowed that in defence of possession force may be used to oppose force. This is also the case which first introduced the ask to leave first requirement before using force which you cited from Criminal Law in Ireland by Sean E. Quinn. That requirement was in relation to defence of possession of property using force as opposed to simple trespass as per Lord Kenyon.

GM228

Lmklad wrote: »

You are correct for “the beyond reasonable grounds” a judge would require to convict. However for a guard to act all they need is “reasonable grounds” a much lower threshold of “fear”.

For a Guard to have lawful reasonable cause/suspicion is actually similar to the test for fear.

They must form a subjective suspicion, but which has an objective justification, that said the objective justification turning out to be wrong does not invalidate any lawfulness, failing to have an objective justification in the firat place however will make any actions on foot of such a suspicion unlawful.

In other words simply acting on someones word that they were in fear without establishing and considering the facts makes any action unlawful.

Lmklad

For a Guard to have lawful reasonable cause/suspicion is actually similar to the test for fear.

They must form a subjective suspicion, but which has an objective justification, that said the objective justification turning out to be wrong does not invalidate any lawfulness, failing to have an objective justification in the firat place however will make any actions on foot of such a suspicion unlawful.

In other words simply acting on someones word that they were in fear without establishing and considering the facts makes any action unlawful.[/quote]

Simply acting on someone’s word is what guards do all the time. In a practical situation in real time if a business owner or proprietor tells a guard a person is not welcome to be on their premises and that that person has put them in fear the guard will be justified in removing that person on every occasion. It’s not the guards place to quantify fear, once the conditions are met the guard may act. I’m speaking real life not academically.

Kevin3

GM228 wrote: »

How has it changed?

Re-read what I first wrote.....



"That argument is long settled (arguably since 1798) regarding using reasonable force (or rather using "no unnecessary force" as it was originally worded) and the requirement to ask someone to leave first when removing a trespasser, but that only applied to a dwelling house and where there was forcible entry and occupation (the later adoption of the Castle Doctrine is certainly authoritative in that regard)."

So how is it changed? You are using it for defence of property, and forcible entry and occupation is a criminal offence, simple trespass is not.

I mentioned 1798, this is in relation to the Weaver vs Bush [1798] 8 TR 71 case which dealt specifically with defence of property (a "close" in that case) from unlawful possession, it allowed that in defence of possession force may be used to oppose force. This is also the case which first introduced the ask to leave first requirement before using force which you cited from Criminal Law in Ireland by Sean E. Quinn. That requirement was in relation to defence of possession of property using force as opposed to simple trespass as per Lord Kenyon.

I'm just very confused now as to where you say you draw the line on what is trespassing and what is forcible occupation.

Do you say you can use force on someone who is in your house who has outstayed their welcome after you have asked them to leave?

GM228

Kevin3 wrote: »

GM228 wrote: »

To be afforded the provisions of S18 you must not be able to retreat which severly limits it's application as in most cases you would be able to retreat, the exception to the requirement to retreat applies to your dwelling in which case as per the 2011 Act it only applies where there is a criminal element.

The section you are referring to is section 20 (4): "The fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable."

It's completely wrong to say a person must retreat before the defence can be used, it's merely that it should be taken into account in conjunction with other relevant evidence.

This very issue arose this week in the Martin Keenan murder trial (which has now concluded so I assume it is OK to speak about).

In answering a question put forward by the jury Mr. Justice Paul Butler told the court that the position in relation to dealing with a trespasser prior to the implementation of the Criminal Law (Defence and the Dwelling) Act 2011 and still the case outside the scope of the Act was/is that the property owner must retreat, and as I said previously only where they could not retreat could they invoke powers of defence towards a trespasser under for example S18 of the Non Fatal Offences Against the Person Act 1997.

I suspect there may be an appeal from the DPP on a point of law as this was the first test of the 2011 Act so it's possible an affirmation of what Mr. Justice Paul Butler said will find it's way into a written judgement in due course. Watch this space.

dr.fuzzenstein

Kevin3 wrote: »

I'm just very confused now as to where you say you draw the line on what is trespassing and what is forcible occupation.

Do you say you can use force on someone who is in your house who has outstayed their welcome after you have asked them to leave?

If I read GM228s posts correctly, he seems to be suggesting that if a person has entered a premise or home lawfully, i.e. was invited in or it is a public office/shop, you have no right to forcefully remove that person whatsoever and neither do the Gards. Not as long as that person does not engage in any threatening behaviour and simply refuses to leave. You have to go to court to get them out and wait for the Sherrif to arrive to remove them.
That means if you or the Gards remove that person, he/she would have grounds for legal action if he/she suffered any injury. And we know that Irish courts accept "ouch my neck hurts" as proof of a catastrophic and debilitating injury as a matter of course. And as we've seen from waterprotesters, the slightest touch on their arm will cause them to collapse in a sobbing heap on the ground.
So theoretically you could enter a house or premise and simply refuse to leave. If you are ejected, you could claim for injuries and receive a substantial award.
The law in Ireland is fascinating.

edit:
It has been rumoured that certain people who are very fond of caravans use exactly this tactic.
Gain access to field, park caravans and inform incensed landowner that they can spend €10k getting them out through the courts (which will take months, the court order will be ignored anyway), or they will move on immediately for the bargain sum of €5k. But only because they like the look of you.

Kevin3

dr.fuzzenstein wrote: »

If I read GM228s posts correctly, he seems to be suggesting that if a person has entered a premise or home lawfully, i.e. was invited in or it is a public office/shop, you have no right to forcefully remove that person whatsoever and neither do the Gards. Not as long as that person does not engage in any threatening behaviour and simply refuses to leave. You have to go to court to get them out and wait for the Sherrif to arrive to remove them.

Which would be a farcical situation and is part of the reason why I believe it's incorrect. Imagine going to the High Court every time someone just refuses to leave the nightclub or takeaway at closing time.

dr.fuzzenstein wrote: »

edit:
It has been rumoured that certain people who are very fond of caravans use exactly this tactic.
Gain access to field, park caravans and inform incensed landowner that they can spend €10k getting them out through the courts (which will take months, the court order will be ignored anyway), or they will move on immediately for the bargain sum of €5k. But only because they like the look of you.

That situation can be dealt with under other legislation which makes it an offence ie Section 19C of the Criminal Justice (Public Order) Act 1994 (as inserted by section 24 of the Housing (Miscellaneous Provisions) Act 2002)

4ensic15

A person can enter onto land or premises lawfully. If they break the conditions for entry or are asked to leave they become a trespasser. A person who refuses to leave is threatening the property in my view.

Peregrinus

4ensic15 wrote: »

A person can enter onto land or premises lawfully. If they break the conditions for entry or are asked to leave they become a trespasser. A person who refuses to leave is threatening the property in my view.

". . . in my view" may not cut it with a court. S. 18 gives you a defence if you use reasonable force for the purpose of protecting your property, but I don't thin the court is going to accept that someone's mere presence on your property is something from which it requires to be protected. You're going to have to point to some other circumstance suggesting a threat from which protection is required. You may not have to point to much, but you have to point to something.

If the legislative intention was that someone's presence on property without the owner's consent was a circumstance which always justified the use of reasonable force to remove them, s. 18 would not be written the way it is.