Casey v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 824
• Docket Number: [2015 No. 694 J.R.]
• Court: High Court
• Date: 21 December 2015

BETWEEN

MICHAEL CASEY

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

[2015] IEHC 824

[2015 No. 694 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Constitution – Crime & Sentencing – S. 12 of the Licensing Act 1872 – Leave to seek prohibition of trial – Leave to seek judicial review – Challenge to constitutionality of statute whether permissible without full trial – Conflict of constitutional principle

Facts: The applicant had applied for leave to seek prohibition of his trial on the basis that s. 12 of the Licensing Act 1872 was unconstitutional as it failed to provide ingredients of the alleged offence of being drunk in a public place. The applicant contended that there existed conflict of constitutional principles as an entitlement to go to Court by way of judicial review would prevent an apprehension of breach of right while prohibition on reversing a conviction after conclusion of criminal proceedings would suggest that filing an application for prohibition of trial was desirable, if not mandatory. The applicant further contended that the principle that a person should have exhausted all remedies before challenging the constitutionality of a statute would run counter to seek leave by way of judicial review.

Mr. Justice Richard Humphreys refused to grant leave to seek judicial review. The Court in order to harmonise the constitutional principles held that if there were exceptional grounds warranting an intervention, the judicial review proceedings could be initiated with an ancillary challenge to constitutionality. The Court held that if a criminal process in the District Court had attained finality subject to judicial review, such judicial review proceedings could be brought within 3 months with an ancillary challenge to constitutionality. The Court observed that in cases where a person charged with an offence alleged that the statute creating the offence was unconstitutional, that person should initiate plenary proceedings challenging the validity of the said statute before the initiation of the trial; however, the same must be listed after the conclusion of the trial including the conclusion of appeal so that the final factual matrix could be known. The Court found that in the present case, since the applicant had not put any evidence substantiating the grounds of challenge, it was not appropriate to grant leave in that case.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2015

1 This application raises an interesting issue regarding a conflict between three important constitutional principles which point in different directions:

(i) the imperative to protect against apprehended rather than simply current threats to constitutional rights,

(ii) the principle that a court should reach constitutional issues last in considering any public law problem, and

(iii) the principle that concluded proceedings be they criminal or civil, based on an enactment subsequently found to be unconstitutional, cannot normally be reopened.

2 The applicant in this case was charged with being drunk in a public place contrary to s. 12 of the Licensing Act 1872. He was proceeded against by way of summons in the District Court returnable for 11th November, 2015. An almost illegible photocopy of the summons is exhibited which appears to contain an allegation that the applicant was drunk at a specific public place in Limerick on 31st July, 2015. The District Court has adjourned the matter to 5th January, 2016.

3 He now seeks prohibition of his trial in the District Court on the grounds that s. 12 is unconstitutional or contrary to his ECHR rights. He submits that the expression ‘ drunk’ is impermissibly vague and contravenes his right to be clearly advised as to what the elements of the offence are, in breach of both the Constitution and the Convention. His solicitor, in a somewhat Spartan affidavit that contains no information (even by way of hearsay) as to the actual facts of the incident on 31st July, 2015, avers that he has ‘ found it impossible to properly and comprehensively advise the applicant of the fundamental ingredients of the offence and the parameters within which such is to be assessed/determined’ (para. 5 of grounding affidavit).

4 The issue of general application that arises is whether it is appropriate to grant leave to seek prohibition of a trial on the ground that the underlying statute is unconstitutional or whether the applicant should be required to submit to the criminal process and any consequent appeal before being permitted to ventilate the issue of constitutionality by way of judicial review.

5 Mr. Conleth Bradley, S.C., who appears (with Mr. Christopher Hughes, B.L.) for the applicant submits that pursuant to the decision in East Donegal Cooperative Livestock Mart Limited v. Attorney General [1970] I.R. 317, the court is entitled:-

‘not merely to redress a wrong resulting from an infringement of the guarantees [of rights by the Constitution] but also to prevent the threatened or impending infringement of the guarantees and to put to the test apprehended infringement of these guarantees’ (per Walsh J. at p. 338).

6 The court in that case rejected the contention that a plaintiff had to show that an application of an impugned law ‘has actually affected his activities adversely’.

7 Set against this principle, however, is the doctrine requiring the court to ‘ reach constitutional issues last’ (per Denham J., as she then was, in Gilligan v. Special Criminal Court [2006] 2 I.R. 389 at p. 407; see also O'B. v. S. [1984] I.R. 316 at p. 328, per Walsh J.). As well as having been applied on numerous occasions by the Irish courts, this approach has a venerable history in U.S. constitutional law, as discussed in Ashwander v. Tennessee Valley Authority 297 U.S. 288 (1936). In that case, Brandeis J. said (at pp. 346-347) that:

‘The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ Liverpool, N.Y. & P. S.S. Co. v. Emigration Commissioners , 113 U. S. 33, 113 U. S. 39; … Abrams v. Van Schaick, 293 U. S. 188; Wilshire Oil Co. v. United States, 295 U. S. 100. ‘ It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ Burton v. United States 196 U.S. 283, 196 U.S. 295.’

8 An approach requiring the court not to express a view on the constitutionality of legislation until such time as it has been finally applied to a defendant in criminal proceedings would be a more economical use of judicial resources because of the significant possibility that the issue may be capable of being resolved in any event in the course of that process. An applicant may for example be acquitted, or alternatively, if convicted, may have that conviction overturned on appeal. Either outcome would render it unnecessary and inappropriate to make a determination on the constitutionality of the legislation concerned. Alternatively, facts as found in the course of the criminal process may deprive an applicant of standing to make particular arguments, or render those arguments clearly unsustainable, thereby reducing if not eliminating the necessity for the court to embark on what may be a quite theoretical investigation of the constitutionality of the legislation. For the court to determine the validity of that legislation in a prohibition application prior to the full ascertainment of the factual matrix in the course of the criminal process could, in many instances, amount to the determination of a moot question.

9 In the context of the criminal process, it has been held by Noonan J. that only ‘ in exceptional circumstances’ will the court grant an order of prohibition of a criminal trial: M.L. v. Director of Public Prosecutions [2015] IEHC 704 at para. 22. There is considerable jurisprudence supporting the need for restraint in interfering with the criminal process by means of prohibition. This is not simply because matters of fairness can be dealt with by the trial judge, but is also important because the criminal process impacts on the rights of third parties, particularly injured parties: see the observations of Kearns P. in Coton v. D.P.P. [2015] IEHC 302 and my judgment in Nulty v. Director of Public Prosecutions [2015] IEHC 758.

10 These considerations also have a relevance in practical terms. If it is the case that an applicant can secure a postponement of his or her trial simply by challenging the constitutionality of the relevant legislation, an avenue for the delay or frustration of the criminal process will have opened up. As I said in Nulty (at para. 12), the criminal trial is a mechanism to vindicate the legal, constitutional, EU and ECHR rights of a victim of crime. The strengthening of these rights has been a growing theme in recent...