Court of Appeal dismisses appeal against trespass conviction, rejecting direct action protest as a valid defence of necessity.

THE COURT OF APPEAL [2025] IECA 186 Court of Appeal Record No. 42/2023 McCarthy J Kennedy J Burns J

BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT -AND-

DAN DOWLING APPELLANT

JUDGMENT of the Court delivered on the 30th day of July 2025 by Mr Justice Patrick McCarthy

1. This is an appeal against conviction. The appellant was indicted on one count of criminal damage contrary to section 2 of the of the Criminal Damage Act 1991 and one count of trespass contrary to section 11 of the Criminal Justice (Public Order) Act 1994. A coaccused, Edward Horgan, was indicted on the same charges. On the 25th of January 2023, following a trial in the Dublin Circuit Criminal Court, the appellant and Mr Horgan were each found not guilty on the count of criminal damage and guilty on the count of trespass. The appellant now appeals against his conviction upon the ground set out below.

Factual Background

2. The charges and the subsequent conviction arose out of an incident which occurred at a high-security restricted area at Shannon Airport on the 25th of April 2017. The criminal damage alleged consisted of writing words or signs in marker on an aircraft at Shannon Airport. The trespass alleged was that on airport property.

3. A David Mulvaney (at the material time an N.C.O. in the Defence Forces) gave evidence that he and one Private Purtill were on duty as part of what is known as an Aid to Civil Power (‘ATCP’) operation (whereby members of the Defence Forces assist an Garda Síochána in the conduct of security operations) at the secure area at Shannon Airport. Two C40 aircraft belonging to the US military were parked within it. He said that walking patrols were conducted regularly around these aircraft and that no damage or unusual markings were observed on either aircraft during the patrols which preceded the incident.

4. At approximately 10:30 p.m. two men (the appellant and Mr Horgan) were observed running towards the aircraft. Mr Mulvaney and Private Purtill were 20–30 metres away from the aircraft at the time. Both witnesses identified themselves as members of the Defence Forces and shouted at the intruders, instructing them to stop. Both intruders failed to stop (but in evidence Mr Hogan rejected that proposition). Mr Mulvaney’s evidence was that he arrived at one of the aircraft at the same time as the appellant. He instructed the appellant to step back from the aircraft and observed the appellant remove a marker from his pocket and begin writing on the aircraft. He later observed the words “Danger, danger, do not fly”

written in red marker on the aircraft (a red marker was found Mr Horgan’s possession).

There was also evidence that a ‘U’ shape was written in black marker and a black marker was found immediately near the appellant.

5. Mr Mulvaney then approached the appellant, brought him to the ground and detained him.

His evidence was that he heard the appellant shouting: “You should search the aircraft, you should search the aircraft. There's prisoners and weapons on that aircraft. You should search the aircraft.”

Grounds of Appeal

6. In his notice the appellant (he defended himself at the trial) filed grounds of appeal as follows:

“Trespass, under the Criminal Justice (Public Order) Act, 1994, Section 11 includes:

"in circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an offence or with intent to unlawfully interfere with any property situate therein."

The fact that the jury found both defendants not guilty of Criminal Damage after Mr.

Horgan had given direct evidence that he did what he did, suggests that the only way the jury could have come to a not guilty verdict was by way of Lawful Excuse. If that is the case, then the jury, if correctly instructed, would conclude that the intention was not to unlawfully interfere as outlined in the Trespass law since no other charge was brought before the court and therefore no unlawful interference took place or at least was brought forward by the prosecution.

With the situation as it presented itself in court in my case, I was not able to, from my McKenzie get the following “and quietly make suggestions and assist him generally during the hearing” as my McKenzie was sat behind me separated by Perspex glass preventing him from doing so.

The appellant reserves the right to lodge on grounds to further the appeal.”

7. In his written submissions, counsel for the appellant (he subsequently retained counsel)

confirmed that the appellant is only pursuing one ground which he formulated in the following terms:

“The Trial Judge erred in failing to direct the jury on the defence of ‘necessity’, in relation to the section 11 trespass offence, in her charge.” The Law

8. Section 11(1) of the Criminal Justice (Public Order) Act 1994 states: -

It shall be an offence for a person—

(a) to enter any building or the curtilage of any building or any part of such building or curtilage as a trespasser, or

(b) to be within the vicinity of any such building or curtilage or part of such building or curtilage for the purpose of trespassing thereon, in circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an offence or with intent to unlawfully interfere with any property situate therein.

9. What the appellant’s case essentially amounts to is that the defence of necessity (otherwise characterised as ‘duress of circumstances’) at common law arises in relation to the offence of trespass on the present facts; this is analogous, it is said, with the concept of ‘lawful excuse’ in the case of an offence of criminal damage—we make no findings here as to whether or not such a defence could constitute ‘lawful excuse’ or otherwise in relation to that offence.

The Trial

10. The appellant did not give evidence; however, Mr Horgan did give evidence regarding his personal belief that his actions were justified as a means of preventing the death of persons in the Middle East at the hands, to put the matter shortly, of United States Military personnel. When questioned about his motivation for writing on the military aircraft at Shannon Airport, Mr Horgan stated, inter alia, that:

“I was there very largely and almost exclusively to try in a small way to -- or maybe not in a small way -- at major inconvenience to myself. I knew going in I was likely to be arrested. I knew going in I would be before a Court like this, but I felt from my own inconvenience point of view -- and it was huge -- it was justified. But even more so that my actions were justified because I wanted to in some way try and minimise the number of people who are being killed in the Middle East, especially, especially children. So that's why and I believe that I did have lawful excuse.”

We think this passage encapsulates the nature of his defence.

11. His contention was that the military aircraft were associated with extraordinary rendition of prisoners (indeed, that there might have been prisoners aboard on of the aircraft here) or carrying arms or troops to an unknown destination but conceived by him to be somewhere in the Middle East. In cross-examination he accepted that there was nothing untoward about the aircraft beyond the fact that they were United States Military aircraft. All of his evidence with one limited exception pertained to his actions and his views. But he said nothing about the appellant save in cross-examination. We set out hereunder the relevant passage: -

Q. Okay. Now with regards to the 25th of April 2017, were you acting in concert with Mr Dowling on that night?

A. Mr Dowling was with me on that night.

Q. Yes. And were you acting with a common purpose, with a joint aim?

A. Yes.

12. The appellant did not give evidence regarding his personal motivation for participating in the incident; however, counsel submitted that it could be inferred that the appellant possessed the same motivation as Mr Horgan on the basis that the actions were part of a joint enterprise and also on the basis of the appellant’s remarks once detained—it is said those remarks indicate that at least part of his motivation may also have been to ascertain whether or not prisoners were unlawfully held in one of the aircraft.

13. There is direct evidence of the fact of damage to, or interference with, the aircraft. There is direct evidence of his entry into the premises contrary to section 11 of Criminal Justice (Public Order) Act 1994 and the fact that he damaged the aircraft as part of a common purpose. The evidence is capable of legitimately giving rise to a reasonable inference that he intended at the time of the entry as a trespasser to at least interfere with the property, something which, of course, in principle does not amount to damaging property but can do so.

The Judge’s Charge

14. The judge instructed the jury on the trespass offence in the following terms:

“Now, the second count that is alleged against both of the accused and is entering a building or curtilage with intent to commit an offence contrary to section 11 of the Criminal Justice (Public Order) Act of 1994 as amended by section 22 of the Intoxicating Liquor Act 2008. And the particulars that the prosecution are alleging that in respect of both Dan Dowling and Edward Horgan, that on the 25th day of April 2017, at taxiway 11, Shannon Airport, Shannon, in the county of Clare, they entered the curtilage of Shannon Airport as trespassers in circumstances giving rise to the reasonable inference, that such entry was with the intention to commit an offence or to damage property situate therein.

So, this is a separate offence to the criminal damage allegation, ladies and gentlemen. So, section 11 of the Criminal Justice (Public Order) Act provides that, “It shall be an offence for a person (a) to enter any building or the curtilage of any building or any part of such building or curtilage as a trespasser. Or (b) to be within the vicinity of any such building or curtilage for the purpose of trespassing thereon.

In circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an offence or with intent to unlawfully interfere with any property situate therein. So, ladies and gentlemen, that is what the offence is provided for by law, do you understand that? It makes sense in terms of curtilage. It’s like, for example, if you were walking home and you saw someone outside a house and they were standing outside in the gardens of the house, that’s within the curtilage. So, in terms of permission. So, trespass is implicit in terms of permission. So, again, using your common sense in that regard, ladies and gentlemen.”

15. Nothing was directly said about the issue of necessity.

Submissions

16. Counsel for the appellant submitted that the trial judge erred by failing to instruct the jury on that defence in the context of the trespass offence despite the fact this purported issue was not raised by the appellant in requisitions. Citing The People (DPP) v. Cronin (No. 2)

[2006] 4 I.R. 329, counsel submitted that the failure to direct the jury on the defence of necessity created a ‘fundamental injustice’ and that a greater degree of judicial intervention in the explanation of that defence to the jury was required in this case because the appellant and Mr Horgan defended themselves. Counsel for the respondent submitted that the judge correctly charged the jury on the law pertaining to the count of trespass.

17. We are slow to accept that a judge now has a role to the extent of that in former times to assist the defence on, say, legal issues because a free choice was obviously made by the appellant and his co-accused to defend the case themselves. Also, in criminal prosecutions, persons who cannot afford counsel to do this are afforded representation at the State’s cost. Adverse consequences may follow for individuals who defend in-person, perhaps unwisely, but for these reasons that is a responsibility which falls on them. Nonetheless lest there be any question of a ‘fundamental injustice’ we are prepared to entertain the issue now raised.

Discussion

18. A defence of necessity, sometimes called ‘duress of circumstances’—since it is an established defence at common law—is part of Irish law. In principle, we accept it it could arise in respect of this offence.

19. The ambit or definition of the defence has been the subject of debate in the United Kingdom and other jurisdictions but there is no Irish authority on the point. In effect it is not in debate in any jurisdiction but that the ambit of the defence must be strictly approached since it constitutes a form of permission to break the law. The main emphasis here has been on a number of English authorities. We do not think it necessary to engage with all of them directly because we think the law of England & Wales at any rate is comprehensively set out in R v. Thacker and others [2020] EWCA Crim 97 where the earlier authorities are considered.

20. It is of some relevance that in Thacker the appellants breached the security perimeter fence of an airport, entering a restricted area, and being intent on halting a flight deporting individuals. The offence was one of ‘intentional disruption of services at an aerodrome’, contrary to section 1(2)(b) of the Aviation and Maritime Security Act 1990. The judge refused to allow a defence of necessity or duress of circumstances to go to the jury and ultimately the Court of Appeal dismissed a ground of appeal based on that refusal. This was one of a number of defences which were withdrawn from the jury, and the defence of necessity was described by Lord Burnett of Maldon CJ as being: “necessity, on the basis that their actions were justified as necessary in order to avoid that greater evil [deportation]”.

21. In the course of his judgment he referred, inter alia, to R v. Jones (Margaret) [2006] UKHL

16 and quoted with approval from the speech of Lord Hoffmann there when that judge said at para 78:

“Ordinary citizens who apprehend breaches of the law, whether affecting themselves, third parties or the community as a whole, are normally expected to call in the police and not to take the law into their own hands.”

and also that which was said by Lord Hoffman at para 94:

“If there is an issue as to whether the defendants were justified in doing acts which would otherwise be criminal, the burden is upon the prosecution to negative that defence. But the issue must first be raised by facts proved or admitted, either by the prosecution or the defence, on which a jury could find that the acts were justified. In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury.”

22. In Thacker, the Lord Chief Justice concluded as follows:

“101. The appellants’ acts therefore had to be considered in the context of a functioning state governed by the rule of law. In answer to one of the appellants’ invocation of some “higher law”, the United Kingdom has a developed system of immigration control created by an accountable democratic process and subject to Parliamentary scrutiny and judicial review. Immigration decisions may be challenged in the tribunals and the courts. Judges are routinely required to consider last-minute applications to restrain removal or deportation. We do not know what efforts each of those due to be on this flight had made to challenge removal directions or seek protection for their fundamental rights, but the appellants did not know either, save to a limited extent in respect of one prospective passenger. Yet that fact, known to the appellants, that one of the few passengers about which they knew anything was seeking to challenge her removal, undermines rather than enhances their case.

102. The judge was right to characterise the appellants’ conduct as direct action.

The appellants’ real reason for halting this flight was that they believe that all removals and deportations are “illegal” in the sense in which they would choose to use the term. Essentially, therefore, this was the appellants seeking to take the law into their own hands. The present case falls four-square within R v Jones, para 94.

The defence of necessity was not a proper matter to put before the jury.

103. Accordingly, the judge was right to withdraw the defence of necessity from the jury. …”

23. We think that the law of this jurisdiction is correctly stated in Charleton & McDermott’s Criminal Law and Evidence (2nd edition) at paragraph 22.14: -

It is now appropriate to define the circumscribing elements of the defence of necessity as laid down in other countries. Where the courts have accepted a defence of necessity, the following limitations seem to have been strictly required:

(1) a real and pressing danger to the accused, or possibly someone close to him;

(2) an inescapable necessity must exist to commit the criminal offence with which he is charged, that is that there is no lawful alternative available;

(3) there should be proportionality between the harm to be avoided and that done by the breach of the criminal law; and

(4) that the accused should not have brought about the situation giving rise to the defence by his own criminal or negligent conduct.

24. Regarding the applicability of the defence of necessity to direct action protest the authors say, at para 22.17:

“Increasingly, those disturbed by government policy or by an international situation may seek to cause whatever disruption that is within their means in order to either protest or to undermine the carrying out of what they believe to be wrong. This may involve, for instance, burgling and damaging a laboratory that uses animals in experiments or trespassing on airport space to delay military flights. The applicability of any of the elements of the defence of necessity are dubious in such circumstances.

In Jones the House of Lords held that necessity is a domestic defence to a domestic offence and so could not be relied on by protesters who had occupied an airbase so as to prevent the attack by the UK and the US on Iraq which they believed amounted to the international crime of aggression. This crime, recognised by customary international law, did not form part of the domestic law of the UK, and even if it had, Lord Hoffman held that a conviction would have been appropriate. Lord Hoffman noted that in many cases, it is more appropriate to alert the authorities to an impending danger than to take individual action:

In a moment of emergency, when individual action is necessary to prevent some imminent crime or to apprehend an escaping criminal, it may be legitimate, praiseworthy even, for the citizen to use force on his own initiative. But when law enforcement officers, if called upon, would be in a position to do whatever is necessary, the citizen must leave the use of force to them.”

25. We think that so far as the question of so-called ‘direct action’ is concerned (and that is what we have here) Thacker is correct as a matter of principle. Publication of that 2nd edition preceded Thacker which approved Jones and Charleton & McDermott’s statement is consistent with it.

26. We cannot see how there was anything in the nature of a “real and pressing danger” to the appellant (or third parties) or an “inescapable necessity” to commit the criminal offence.

This is apart entirely from the fact that what we might shortly describe as an act of direct action cannot be relied upon as part of the defence as a matter of principle.

27. We therefore dismiss this appeal.