Bennett v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 19 March 2019 |
| Neutral Citation | [2019] IEHC 158 |
| Court | High Court |
| Docket Number | [2017 No. 1008 J.R.] |
| Date | 19 March 2019 |
AND
[2019] IEHC 158
[2017 No. 1008 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Conviction – Constitutional challenge – Locus standi – Applicant seeking orders to the effect that s. 12(1) of the Water Services Act 2007 is incompatible with the Constitution and the European Convention on Human Rights – Whether the applicant had locus standi to mount the constitutional challenge
Facts: The applicant, Mr Bennett, on the 21st September 2017 at the District Court, Court 2, Criminal Courts of Justice, Parkgate Street, Dublin 7, was convicted of an offence under s. 12(1) of the Water Services Act 2007 and a fine was imposed on him. Thereafter by way of statement of grounds and grounding affidavit of the applicant respectively dated the 18th December 2017 (leave was also afforded on that date) the applicant sought orders to the effect that s. 12(1) of the 2007 Act is incompatible with the Constitution and the European Convention on Human Rights, together with an order of certiorari quashing the conviction imposed. The respondents, the DPP, Ireland and the Attorney General, argued that the applicant had no locus standi to mount the constitutional challenge given that he determined in advance of the District Judge even making his ruling that he would not go into evidence and in fact did not tender any evidence to the court. The applicant argued that fair procedure was not adhered to by the District Court in its failure to give reasons as to why the ruling sought by the applicant vis-à-vis the mens rea and strict liability offence was not addressed.
Held by the High Court that the applicant did not have locus standi to mount the constitutional challenge made. The Court held that it was entirely inappropriate to complain of no reasons before the Court when in fact no reasons were sought before the District Court.
The Court held that all the reliefs sought by the applicant would be refused.
Reliefs refused.
On the 21st September 2017 at the District Court, Court 2, Criminal Courts of Justice, Parkgate Street, Dublin 7 Judge Flann Brennan convicted the within applicant of an offence under s. 12(1) of the Water Services Act, 2007 and imposed a fine on the applicant. Thereafter by way of statement of grounds and grounding affidavit of the applicant respectively dated the 18th December 2017 (leave was also afforded on that date) the applicant has sought orders to the effect that s. 12(1) of the 2007 Act aforesaid is incompatible with the Constitution and the European Convention on Human Rights, together with an order of certiorari quashing the conviction imposed as aforesaid.
The incident the subject matter of the conviction occurred on the 4th November 2014. It was argued that the within applicant and other individuals obstructed GMC Sierra employees from installing water meters at 13 Villa Park Road, Dublin 7 by obstructing the truck carrying the relevant employees and equipment and further by obstructing the water meter. When the relevant workers attempted to work on the water meter it is argued that the applicant jumped up and down on the water meter and was subsequently arrested.
Evidence was given before the District Court on the 20th and 21st September 2017. Following completion of the State's evidence against the applicant in respect of the within and other offences counsel for the applicant submitted that s. 12(1) of the 2007 Act was a strict liability offence by virtue of the plain meaning of the wording of same, and there was no defence permitted and accordingly it was an absolute liability offence. It was indicated that the applicant wished to put his right to protest as a defence but same was not available. The court was asked to rule as to whether or not mens rea was a defence within s. 12 and as to whether or not the applicant was entitled to rely on the defence of a right to protest. In the circumstances, the applicant's counsel asked that a ruling be made that the applicant had no case to answer. By way of response submissions, it was argued that the right to protest was not unlimited and nothing had been put forward by the applicant in evidence and therefore the issue did not arise.
The District Judge having considered the matter ruled that he was satisfied that there was evidence of offences before him and he was not satisfied that he should direct himself at that stage in relation to any of the charges. Following such ruling the judge offered counsel for the applicant an opportunity to consider and take instructions however this opportunity was declined and it was indicated that the applicant would not be going into evidence. Accordingly, no evidence was tendered on the date in respect of the incident complained of in the summonses on behalf of the applicant.
Section 12(1) of the 2007 Act provides that:
‘(1) A person who obstructs or interferes with—
(a) the exercise by a water services authority or any other prescribed person of powers vested in it or him or her under, or by virtue of, this Act, or
(b) the compliance by any person, including the owner or occupier of a premises, with the provisions of this Act or of any notice, direction or order issued under it,
commits an offence.’
Under s. 8 of the 2007 Act it is provided that a person who commits an offence inter alia under section 12 (1), is liable on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or on conviction on indictment, to a fine not exceeding €15,000, or imprisonment for a term not exceeding 5 years, or both.
The applicant states that because of the extent of the fine the offence under s. 12(1) cannot be said to be minor or regulatory in nature. In the statement of grounds and indeed the grounding affidavit of the applicant and submissions tendered on behalf of the applicant bearing date the 12th February 2019 the applicant complained that mens rea was not a component of the offence in s. 12(1) as there is nothing mentioned about mens rea in the particular...
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