No trespassing signs

GM228

Snugglebunnies wrote: »

So they would have to be causing a rational fear so to speak? Surely a home owner can decide whether someone on their property is causing them fear or not regardless of at appears to be rational or not to a third party?

Fear is based on both what you feel, but more importantly how a reasonable person should feel - the important part is it needs to based on how the reasonable person feels, (the subjective aspect of the fear meets the objective conditions required), this seems to be a huge issue in refugee civil cases where the objective test always seems to trump the subjective state of mind - the "well founded" test.

There are also a number of cases which would suggest some sort of direct or indirect force or a threat would be required to establish fear.

123shooter

GM228 wrote: »

Fear is based on both what you feel, but more importantly how a reasonable person should feel - the important part is it needs to based on how the reasonable person feels, (the subjective aspect of the fear meets the objective conditions required), this seems to be a huge issue in refugee civil cases where the objective test always seems to trump the subjective state of mind - the "well founded" test.

Surely if someone tresspasses on a farmers land or someones back garden or even house they the owners/occupiers will be in fear of the intruder?

If you can only be in fear of an intruder swinging a baseball bat or chainsaw then the law makers must be right hard knocks and make Connor Mcgregor look like a right pansy.

Fred Swanson

This post has been deleted.

Peregrinus

Interestingly, while the s. 13 offence requires behaviour that "causes or is likely to cause fear in another person", it doesn't say fear of what.

This is in marked distinction to s. 14, 15 and 16, each of which creates an offence, and element of which is causing a person "to fear for his or another person's safety".

Since s. 13 just refers to "fear" without qualification, presumably the offence could be committed where somebody's trespass causes, e.g., fear of damage to property.

However, I wonder if their might be an argument that s. 13 is unconstitutionally vague? Criminal offences need to be drawn so that the citizen can know what behaviour is criminalised. On the face of it, s. 13 creates an offence which can be constituted by behaviour which causes someone to fear anything at all - e.g. "when he came into the garden I was afraid he would trip over the garden house lying the long grass, and hurt himself".

Professor Moriarty

Peregrinus wrote: »

Interestingly, while the s. 13 offence requires behaviour that "causes or is likely to cause fear in another person", it doesn't say fear of what.

This is in marked distinction to s. 14, 15 and 16, each of which creates an offence, and element of which is causing a person "to fear for his or another person's safety".

Since s. 13 just refers to "fear" without qualification, presumably the offence could be committed where somebody's trespass causes, e.g., fear of damage to property.

However, I wonder if their might be an argument that s. 13 is unconstitutionally vague? Criminal offences need to be drawn so that the citizen can know what behaviour is criminalised. On the face of it, s. 13 creates an offence which can be constituted by behaviour which causes someone to fear anything at all - e.g. "when he came into the garden I was afraid he would trip over the garden house lying the long grass, and hurt himself".

...so I got my baseball bat and battered him off my property.

123shooter

However, I wonder if their might be an argument that s. 13 is unconstitutionally vague? Criminal offences need to be drawn so that the citizen can know what behaviour is criminalised. On the face of it, s. 13 creates an offence which can be constituted by behaviour which causes someone to fear anything at all - e.g. "when he came into the garden I was afraid he would trip over the garden house lying the long grass, and hurt himself".

I think at the time when it all kicks off no one ever thinks of such and its just every man for himself and hit them first and try and get away from them. If you don't then you simply become a headline.

123shooter

Why not simplify laws and just state

---

'that no one has the right to ever enter another persons property and the owner of that property can use any means to evict or remove the intruder/threat to himself family or property.'

Peregrinus

123shooter wrote: »

I think at the time when it all kicks off no one ever thinks of such and its just every man for himself and hit them first and try and get away from them. If you don't then you simply become a headline.

. . . which is why, on the whole, we never want it to "all kick off". That rarely ends well.

Minor trespasses on land occur all the time. They're usually not a problem. Where they are a problem, the problem is usually resolved by asking the trespasser to leave. There's no reason why we would want to involve the guards, etc, in resolving them.

The various trespass offences that we have that involve substantial damage to property, causing fear, etc, represent a legislative attempt to identify the kinds of trespass where we do want the guards to get involved. Historically, where the guards became involved the emphasis was on avoiding violence by counselling/restraining the landowner from becoming excessively physical in the vindication of his property rights. In the past twenty-odd years or so the emphasis has shifted to giving the guards a more proactive power to resolve the problem by directing the trespasser to leave, and arresting him if he does not. But since police intervention, arrest, prosecution etc is a fairly heavy response (not to mention a siginficant expense for taxpayers) this is accompanied by a desire not to expand unnecessarily the class of cases in which police intervention is seen as appropriate. Hence the requirement for the likelihood of substantial damage, etc.

If the problem is that he's walking on your grass, if you're an adult your expected to be able to resolve that without calling in the Special Branch, and without resorting to tactics that are disproportionate to the value of the grass being walked on. Like, wait for him to leave and then fit a better lock on your gate.

Snugglebunnies

As a non legal person myself, I thought the laws on trespass would be a lot more clear cut. There seems to be an awful lot of room for interpretation.

123shooter

Peregrinus wrote: »

If the problem is that he's walking on your grass, if you're an adult your expected to be able to resolve that without calling in the Special Branch, and without resorting to tactics that are disproportionate to the value of the grass being walked on. Like, wait for him to leave and then fit a better lock on your gate.

Here's a related question then.

If someone enters anothers property whether it be land garden or house and the dog attacks them. What happens?

I don't mean the owner of the dog sets the dog on the intruder. What I mean is the dog, a family member who lives on the property minding his own is suddenly surprised and confronted by an intruder does the one thing he is able to do and attacks out of fright or protection.

Peregrinus

The dog doesn't distinguish between trespassers and those coming lawfully onto the premises, e.g. to deliver letters, deliver milk, ring the doorbell. In general if you keep an animal it's up to you to exercise proper control of it so that others aren't injured. It's up to you whether you do this by, e.g. keeping the animal indoors, or in a fenced section of the garden, or by keeping the gate shut, erecting a warning notice and installing the necessary roadside letterbox, intercom, etc, so that people can carry on their lawful activities without needing to enter the property.

If there's no notice or warning, and someone enters the garden and is bitten by a dog, it probably makes no difference whether he's the postman delivering letters, or someone coming in to recover a ball. If they're trespassing rather than being there on lawful business, that hasn't contributed to their being bitten. Conversely, if you've done all the right things and they come in anyway and get bitten, you're probably not liable and again it makes no difference whether they came in as trespassers or lawfully; they didn't need to come in at all.

123shooter

Peregrinus wrote: »

The dog doesn't distinguish between trespassers and those coming lawfully onto the premises, e.g. to deliver letters, deliver milk, ring the doorbell. In general if you keep an animal it's up to you to exercise proper control of it so that others aren't injured. It's up to you whether you do this by, e.g. keeping the animal indoors, or in a fenced section of the garden, or by keeping the gate shut, erecting a warning notice and installing the necessary roadside letterbox, intercom, etc, so that people can carry on their lawful activities without needing to enter the property.

If there's no notice or warning, and someone enters the garden and is bitten by a dog, it probably makes no difference whether he's the postman delivering letters, or someone coming in to recover a ball. If they're trespassing rather than being there on lawful business, that hasn't contributed to their being bitten. Conversely, if you've done all the right things and they come in anyway and get bitten, you're probably not liable and again it makes no difference whether they came in as trespassers or lawfully; they didn't need to come in at all.

So if a sign is erected at entrance warning of dogs on loose in their own property and the gate closed then the dog is safe and the owner from proscecution or the dog warden...correct?

Peregrinus

No. You'd also have to make arrangements so that people didn't need to come on to the property, e.g. to deliver mail or to speak to you. So, a roadside letterbox, a gatepost intercom, that kind of thing.

Even then, you have a problem if despite all your precautions someone needs to come onto your property for a good reason - say, the fire service, in order to fight a fire in your house or in your neighbour's, or a summons server. If the dog bites them, it's your problem. That's not a huge risk, since presumably summons servers and firefighters don't call round very often, but it's a risk.

There really is no risk-free way to leave a dog at large on your property. If you want to minimise risk, keep it indoors, or in a suitable pen. Or don't keep a dog.

But this is a bit of side issue as far as trespass is concerned. If somebody comes on to your property and your dog bites them, the question of your liability to them is not usually going to depend on whether they came as a trespasser or not.

123shooter

Peregrinus wrote: »

But this is a bit of side issue as far as trespass is concerned. If somebody comes on to your property and your dog bites them, the question of your liability to them is not usually going to depend on whether they came as a trespasser or not.

No not really as I have a sign at the gate and the gate is always closed and still people looking for neighbours come through to ask info which really p*sses me off and once a contractor came down in his truck looking for a neighbour and nearly on purpose drove towards my dogs at speed through what was a closed gate.

But from what you say I have to suffer these intrusions and could even lose my dogs or/and be sued..........madness?

I don't really want anyone coming to my house unless I invite them but it seems I can't have that choice and I have to suffer what are really intruders.

cfuserkildare

In a related issue,

A farmer places a gate over a public road, and puts a No-Trespassing sign,
How does this stand, legally?

hullaballoo

cfuserkildare wrote: »

In a related issue,

A farmer places a gate over a public road, and puts a No-Trespassing sign,
How does this stand, legally?

I suppose it depends on how well constructed the gatepost is.

123shooter

hullaballoo wrote: »

I suppose it depends on how well constructed the gatepost is.

Quackster

123shooter wrote: »

Surely if someone tresspasses on a farmers land or someones back garden or even house they the owners/occupiers will be in fear of the intruder?

So every weekend when I'm trespassing on private lands while out mountain running or hill walking (virtually every mountain outside Wicklow is privately owned), the land owners are in fear of me..?!

123shooter

Quackster wrote: »

So every weekend when I'm trespassing on private lands while out mountain running or hill walking (virtually every mountain outside Wicklow is privately owned), the land owners are in fear of me..?!

Possibly depends whether you are carrying an AK47.;)

It was quite obvious in the context of what I meant in the post you refer to.

Quackster

cfuserkildare wrote: »

In a related issue,

A farmer places a gate over a public road, and puts a No-Trespassing sign,
How does this stand, legally?

Going by a recent ruling of ABP on a case similar to this in Killarney (except the lane is privately owned and is a right-of-way), the erection of a gate, where one previously didn't exist, constitutes development and requires planning permission.

123shooter

Quackster wrote: »

Going by a recent ruling of ABP on a case similar to this in Killarney (except the lane is privately owned and is a right-of-way), the erection of a gate, where one previously didn't exist, constitutes development and requires planning permission.

I thought the gate had to be over a certain size for that. Many farmers put gates on to their fields from public roads for access but I think are ok as it is below a certain size and most farm gates like this are 10 or 12ft gates.

GM228

Fred Swanson wrote: »

Surely DPP v Nally would apply?

Which mainly deals with using "reasonable force" for self-defence against unlawful attack which is objectively tested as per Nally. Defence and simple eviction of a trespasser are not the same.

Hence why I stated that there is no reasonable force allowed for dealing with eviction og a simple trespasser - this was dealth with by another and more important case from the CCA from around the same time as Nally in the DPP vs Anthony Barnes [2006] IECCA 165 case which confirmed that the use of force in dealing with a trespasser is limited to situations of trespass which involves a criminal element.

GM228

123shooter wrote: »

Surely if someone tresspasses on a farmers land or someones back garden or even house they the owners/occupiers will be in fear of the intruder?

Plenty of crimes are tested on a reasonable persons belief, not your belief.

Self-defence for example where your fears and actions are tested on how the reasonable person would believe their fears and actions appropriate, not how you believed your fears and actions appropriate.

Snugglebunnies

So what is someone has reasonable cause to enter your property but you still are in fear of them? where does the law stand on that? I saw someone mention a summons server above... You might fear him ( I've heard some can be quite aggressive) but they still technically have reason to be on your property to do their job?

GM228

123shooter wrote: »

Why not simplify laws and just state

---

'that no one has the right to ever enter another persons property and the owner of that property can use any means to evict or remove the intruder/threat to himself family or property.'

Because the law has been simplified and common law codified to say you can't do that.

By the way the law is rarely simple.

fepper

Snugglebunnies wrote: »

So what is someone has reasonable cause to enter your property but you still are in fear of them? where does the law stand on that? I saw someone mention a summons server above... You might fear him ( I've heard some can be quite aggressive) but they still technically have reason to be on your property to do their job?

In reality your actual house may be only place to stop trespassing as you cam lock all windows and doors,the lawn and yard seem to a free for all if they get in

GM228

123shooter wrote: »

So if a sign is erected at entrance warning of dogs on loose in their own property and the gate closed then the dog is safe and the owner from proscecution or the dog warden...correct?

You could potentially create a greater liability by admitting you have a dangerous animal if it could still cause harm to a trespasser, a dog owner is liable for a bite to a treapasser if they have been negligent in failing to prevent it from happening.

GM228

Snugglebunnies wrote: »

So what is someone has reasonable cause to enter your property but you still are in fear of them? where does the law stand on that? I saw someone mention a summons server above... You might fear him ( I've heard some can be quite aggressive) but they still technically have reason to be on your property to do their job?

The law is pretty clear:-

13.—(1) It shall be an offence for a person, without reasonable excuse, to trespass on any building or the curtilage thereof in such a manner as causes or is likely to cause fear in another person.

It only applies when there is no reasonable excuse, delivering a summons is pretty reasonable.

123shooter

GM228 wrote: »

Because the law has been simplified and common law codified to say you can't do that.

By the way the law is rarely simple.

I think by your post you say it all.

The laws in Ireland appears to be set up to serve the legal profession.. The general public goes from A to B. The law goes from A to anywhere it likes.

Snugglebunnies

123shooter wrote:

Put a sign up and admit you have dangerous animals.

Never put a sign up saying you have dangerous dogs, if someone gets bitten you have already admitted they are dangerous.

A sign saying "guard dogs on duty" or "loose dogs on property" is best.

Snugglebunnies

GM228 wrote:

It only applies when there is no reasonable excuse, delivering a summons is pretty reasonable.

Even with a locked gate and a in trespassing sign? Surely they could place it in an external letterbox so as not to enter?

Professor Moriarty

Snugglebunnies wrote: »

Never put a sign up saying you have dangerous dogs, if someone gets bitten you have already admitted they are dangerous.

A sign saying "guard dogs on duty" or "loose dogs on property" is best.

Ditto for 'Beware of Dog'. I would also wonder about 'guard dogs on duty'. 'Loose dogs on property' certainly doesn't imply danger or acknowledgement of danger.

123shooter

Professor Moriarty wrote: »

Ditto for 'Beware of Dog'. I would also wonder about 'guard dogs on duty'. 'Loose dogs on property' certainly doesn't imply danger or acknowledgement of danger.

How about 'Beware ugly wife with canine assistant'? Surely there isn't a legal loophole for the wife having a face like a box of frogs?

Ahh but in Irish law..........................:rolleyes:

Professor Moriarty

123shooter wrote: »

How about 'Beware ugly wife with canine assistant'? Surely there isn't a legal loophole for the wife having a face like a box of frogs?

Ahh but in Irish law..........................:rolleyes:

Sounds like you're speaking from bitter personal experience.

123shooter

Professor Moriarty wrote: »

Sounds like you're speaking from bitter personal experience.

What you mean from the law or from an ugly wife?

Twas just in jest.

GM228

Snugglebunnies wrote: »

Even with a locked gate and a in trespassing sign? Surely they could place it in an external letterbox so as not to enter?

A no trespasaing sign has no legal meaning though and bypassing a locked gate does not give rise to a criminal action unless the lock is broken or there is criminal intent, also a summons left in an external letterbox isn't then hand delivered in person is it.

123shooter

GM228 wrote: »

A no trespasaing sign has no legal meaning though and bypassing a locked gate does not give rise to a criminal action unless the lock is broken or there is criminal intent, also a summons left in an external letterbox isn't then hand delivered in person is it.

Hasn't technology left the law in Ireland far behind?

For instance your summons being served. If the summons is sent by email then if it is opened by the receiver it then has been served.

Of course a barrister may say that the account had been hacked but the ip address and provider or phone can tell you who has been logging in to the email account.

Secondly you say the gate lock has to be broken. Then why would a potential criminal attract unwanted attention by breaking a lock when he could hop over the gate which would then be recorded on possible cctv.

In any case the lock defence is redundant but recorded evidence of the person on the property cannot be ignored?

Snugglebunnies

GM228 wrote:

A no trespasaing sign has no legal meaning though and bypassing a locked gate does not give rise to a criminal action unless the lock is broken or there is criminal intent, also a summons left in an external letterbox isn't then hand delivered in person is it.

Ah right I thought it just had to be hand delivered to the address and not necessarily the person. Surely summons servers have no more legal power than an ordinary person? If someone were to go out and tell them to get off their property, surely they couldn't insist on staying? Couldn't that provoke fear if they wouldn't leave?

GM228

123shooter wrote: »

Hasn't technology left the law in Ireland far behind?

For instance your summons being served. If the summons is sent by email then if it is opened by the receiver it then has been served.

Of course a barrister may say that the account had been hacked but the ip address and provider or phone can tell you who has been logging in to the email account.

There would be major issues around proof of service with e-mail etc, it isn't a case of "hasn't technology left the law in Ireland far behind" because I don't believe any jurisdiction around the world (except India I believe) would allow for such, summons are generally delivered in hand or via mail in every jurisdiction around the world.

123shooter wrote: »

Secondly you say the gate lock has to be broken. Then why would a potential criminal attract unwanted attention by breaking a lock when he could hop over the gate which would then be recorded on possible cctv.

In any case the lock defence is redundant but recorded evidence of the person on the property cannot be ignored?

I'm talking about breaking a lock when trespassing, a simple trespasser not breaking a lock does not give rise to a criminal element, a simple trespasser breaking a lock gives rise to charge of criminal damage, the trespass itself however is still not criminal. However someone you gains entry with a criminal intention still breaks the law weather they break a lock or not.

123shooter

GM228 wrote: »

There would be major issues around proof of service with e-mail etc, it isn't a case of "hasn't technology left the law in Ireland far behind" because I don't believe any jurisdiction around the world (except India I believe) would allow for such, summons are generally delivered in hand or via mail in every jurisdiction around the world.

So at present this process relies on a 'private detective or other' sticking the said document in to the hand of the person being served with no witnesses or actual proof of this event.

Is this how this process works?

GM228

Snugglebunnies wrote: »

Ah right I thought it just had to be hand delivered to the address and not necessarily the person. Surely summons servers have no more legal power than an ordinary person? If someone were to go out and tell them to get off their property, surely they couldn't insist on staying? Couldn't that provoke fear if they wouldn't leave?

123shooter wrote: »

So at present this process relies on a 'private detective or other' sticking the said document in to the hand of the person being served with no witnesses or actual proof of this event.

Is this how this process works?

It must be delivered to a person (and only certain persons) at the usual place of residence (or work), but only someone other than that named person after "reasonable diligence has been exercised in endeavouring to effect personal service", so either way must be hand delivered.

There are of course options for postal delivery, but delivery by hand is preferred.

123shooter

GM228 wrote: »

It must be delivered to a person (and only certain persons) at the usual place of residence (or work), but only someone other than that named person after "reasonable diligence has been exercised in endeavouring to effect personal service", so either way must be hand delivered.

But as you pointed out about the email example regarding proof. In the present form of how it is being delivered, there is no proof other than the word of the person delivering the summons.

Is this correct?

Victor

Peregrinus wrote: »

However, I wonder if their might be an argument that s. 13 is unconstitutionally vague? Criminal offences need to be drawn so that the citizen can know what behaviour is criminalised. On the face of it, s. 13 creates an offence which can be constituted by behaviour which causes someone to fear anything at all - e.g. "when he came into the garden I was afraid he would trip over the garden house lying the long grass, and hurt himself".

I think any judge would apply some form of reasonableness test to this, considering the circumstances, e.g. contrasting a trespassing 5-year old looking at the flowers on a sunny day in a housing estate with a bunch of lads in balaclavas in the middle of the night at a remote location.

GM228

123shooter wrote: »

But as you pointed out about the email example regarding proof. In the present form of how it is being delivered, there is no proof other than the word of the person delivering the summons.

Is this correct?

Yes the person who delivers the summons either gives oral evidence or a statutort declaration of service which is prima facia proof of service.

nuac

123shooter wrote: »

But as you pointed out about the email example regarding proof. In the present form of how it is being delivered, there is no proof other than the word of the person delivering the summons.

Is this correct?

Court rules usually provide that the person serving the summons endorses his/her name on the document before serving it, and makes a statutory declaration of service after serving it.

A false statutory declaration is a criminal offence

Snugglebunnies

nuac wrote:

A false statutory declaration is a criminal offence

But if they did lie about delivering it, how could they be proved wrong? Is there anything actually stopping them throwing it in the bin and saying they delivered it? Doesn't seem very fail safe!

123shooter

nuac wrote: »

Court rules usually provide that the person serving the summons endorses his/her name on the document before serving it, and makes a statutory declaration of service after serving it.

A false statutory declaration is a criminal offence

Interested but this method without witnesses or evidence seems far from foolproof or without the possibility of falseness creeping in and not at all much more reliable than someone opening an email in their own email account.

There would be ample proof the email had or had not arrived in that email account and as to whether it had been read by the email account owner is another issue just as to whether the person being summons had read the summons served on him by hand.

Point I am making the process above is as about as accurate and reliable as a trespasser being a trespasser just because he broke the lock on a gate and not being a trespasser because he hopped over the gate or fence or even pushed the gate open.

Fascicle how the law relies on processes and systems which are so weak...........assuming this is correct?

GM228

Just coming back to a summons and something I forgot about.

It should be noted that e-mail summons have been issued on (very) rare occassions in the past here (and even via Facebook and LinkedIn) but so far only in relation to civil cases.

Whilst I suppose it is technically possible for a criminal case it simply does not happen, it is difficult and rare for such an order for civil proceedings as it is so bigger issues with the criminal side no doubt.

Snugglebunnies

GM228 wrote:

It should be noted that e-mail summons have been issued on (very) rare occassions in the past here (and even via Facebook and LinkedIn) but so far only in relation to civil cases.

Why aren't all summones just sent by registered post? They have to be signed for therefore proving the recipient got them. Why don't summons severs have to have the recipient sign for the summons on delivery?

GM228

Snugglebunnies wrote: »

Why aren't all summones just sent by registered post? They have to be signed for therefore proving the recipient got them.

Cost.

They must be served via personal service, and a summons via ordinary post can't be used for the majority of criminal proceedings (those initiated by Gardaí, Revenue etc) without a court order allowing for such.

Ordinary postal summons can only be ordinarily used for criminal proceedings initiated by the likes of CIE, Transdev, An Post etc.

It would be easier for the wrong person to get/sign the summons via post. The whole point of personal service is to minimise the defence of "I didn't get any summons".

Snugglebunnies wrote: »

Why don't summons severs have to have the recipient sign for the summons on delivery?

Can you imagine the amount of unsigned documents (and ultimately deemed unserved) if those served were required to sign for them!

Edit: Post edited to clarify registered post vs ordinary post.