Court of Appeal: ‘Act of direct action’ cannot be relied upon as part of the defence of necessity

About this case:

• Citation:
  [2025] IECA 186
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Patrick J. McCarthy

Delivering judgment for the Court of Appeal, Mr Justice Patrick McCarthy confirmed that as a matter of principle, acts of “direct action protest” cannot be relied upon as part of the defence of necessity in this jurisdiction.

Background

In April 2017, the appellant and his co-accused trespassed into a high-security restricted area at Shannon Airport. A C40 aircraft belonging to the US military was subsequently damaged, with the damage consisting of writing “Danger, danger, do not fly” and drawing a “U” shape in marker on the aircraft.

A member of the Irish Defence Forces who was present at the time of the incident apprehended the appellant, who was shouting “You should search the aircraft, you should search the aircraft. There’s prisoners and weapons on that aircraft. You should search the aircraft.”

The appellant and his co-accused were charged with criminal damage and trespass. Following a trial in Dublin Circuit Criminal Court, the men were found guilty on the count of trespass contrary to section 11 of the Criminal Justice (Public Order) Act 1994.

The appellant appealed against his conviction on grounds that the trial judge, in her charge to the jury, failed to direct the jury on the common law defence of “necessity” in relation to the trespass offence.

The Court of Appeal

Having set out s.11(1) of the 1994 Act, Mr Justice McCarthy noted that the appellant had not given evidence at trial but that his co-accused had given evidence as to his personal belief that his actions were justified as a means of preventing the death of persons in the Middle East at the hands of US Military personnel, and that both men had acted with a common purpose.

The judge considered that in light of the direct evidence of damage to the aircraft and of entry onto the premises as part of a common purpose, the evidence was capable of legitimately giving rise to a reasonable inference that the appellant intended at the time of entry as a trespasser to interfere with property.

In response to the contention of counsel for the appellant that the trial judge’s failure to direct the jury on the defence of necessity created a “fundamental injustice” and that a greater degree of judicial intervention was required where the appellant and his co-accused had appeared as litigants in person, the Court of Appeal expressed that it was “slow to accept” that a judge now has the role “to the extent of that in former times” to assist the defence on legal issues where a free choice had been made by the two men to defend themselves.

In that regard, Mr Justice McCarthy pointed out that in criminal prosecutions, legal representation can be afforded to those who cannot afford counsel at the State’s cost.

Turning to the defence of necessity, the Court of Appeal accepted that while same could in principle arise in respect of the offence of trespass, there was no Irish authority as to its definition and that the ambit of the defence “must be strictly approached since it constitutes a form of permission to break the law.”

The court explained that the law on necessity had been comprehensively set out in the judgment of R v. Thacker and others [2020] EWCA Crim 97, which judgment found that necessity was not available to the appellants where their conduct in intentionally disrupting a deportation flight was a form of “direct action”, taking the law into their own hands notwithstanding that the UK has a developed system of immigration control created by an accountable democratic process and subject to Parliamentary scrutiny and judicial review.

Mr Justice McCarthy cited with approval a passage from Charleton & McDermott’s Criminal Law and Evidence (2nd edition) defining the elements of the defence of necessity, finding that same represents the law in this jurisdiction:

The court highlighted the authors’ opinion that the “applicability of any of the elements of the defence of necessity are dubious” in circumstances of “direct action protest”, where those disturbed by government policy or by an international situation seek to cause disruption to protest or to undermine the actions which they believe to be wrong.

Confirming that in so far as the question of “direct action” is concerned, Thacker is correct as a matter of principle and an act of direct action cannot be relied upon as part of the defence of necessity , the Court of Appeal concluded that there was neither a “real and pressing danger” to the appellant or third parties nor an “inescapable necessity” to commit the subject offence.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

Director of Public Prosecutions v Dowling [2025] IECA 186