Cox v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 20 October 2015
• Neutral Citation: [2015] IEHC 642
• Docket Number: [2014 No. 67 JR]
• Court: High Court
• Date: 20 October 2015

Cox v DPP & Ors

JUDICIAL REVIEW

BETWEEN

JOHN COX

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2015] IEHC 642

[No. 67 J.R./2014]

THE HIGH COURT

Crime & Sentencing – S.4 of the Vagrancy Act, 1824, as applied and amended by s. 15 of Prevention of Crimes Act, 1871, and s. 7 of the Penal Servitude Act 1891 – Bunreacht na hÉireann, 1937 – S. 4 of Criminal Justice (Public Order) Act, 1994 – Narrow interpretation

Facts: Following the charge of the applicant under s. 4 of the Vagrancy Act, 1824, for wilfully, openly and lewdly exposing his person with an intent to insult a female, the applicant after being granted leave to apply for judicial review sought the declaration that the said s. 4 of the 1824 Act as applied by s. 5 of the Prevention of Crimes Act, 1871, and amended by s. 7 of the Penal Servitude Act, 1891, did not survive the enactment of Bunreacht na hEireann, 1937. The applicant alleged that the offence with which he was charged had not been defined precisely as required under criminal law and thus, his detention and prosecution was unlawful under the Constitution of Ireland.

Mr. Justice McDermott dismissed the application of the applicant. The Court held that the impugned words in s. 4 of the 1824 Act created an offence with definite and precise meaning and it must be given a strict and narrow interpretation in the context within which it was drafted. The Court observed that the said s. 4 was framed to protect females and young girls from anti-social behaviour such as obscenity, vulgarity, exposure of private parts in public, and the words ‘lewdly’ and ‘obscenely’ clearly qualified the circumstances to attract criminal liability. The Court found that the words ‘rogue’ and ‘vagabond’ as appearing under said s. 4 were not contrary to the provision of art. 5, art. 15 and art. 38.1 of the Constitution.

1 1. The applicant is charged that he:-

"On the 18/10/2013 at a place unknown between Newbridge and Naas Train Stations, Co. Kildare on board an Iarnród Éireann train a place in view of a public highway/street/road/a place of public resort in the said District Court area of Naas did wilfully, openly and lewdly expose your person with intent to insult a female. Contrary to section 4 of the Vagrancy Act 1824, as applied and amended by section 15 Prevention of Crimes Act, 1871, and section 7 of the Penal Servitude Act 1891."

2 2. The applicant was granted leave to apply for judicial review (Peart J.) on 3 ^rd February, 2014 seeking declarations that s. 4 of the Vagrancy Act, 1824, as applied by s. 5 of the Prevention of Crimes Act, 1871, and amended by s. 7 of the Penal Servitude Act, 1891, did not survive the enactment of Bunreacht na hÉireann, 1937. An order by way of prohibition or an injunction preventing or restraining the further prosecution of the applicant in respect of the charge was also sought.

3 3. The applicant claims that the s. 4 offence, with which he is charged, embodies a number of concepts which are unknown to Irish criminal law and violate the principle of legal certainty. It is claimed that the provisions of s. 4 provide for an alteration of the status of the applicant, if convicted, such as would be inconsistent with the constitutional guarantees of personal liberty and equality before the law. In particular it is submitted, that insofar as the applicant, if convicted, would be deemed to be a "rogue and a vagabond, within the true intent and meaning of the Act", he would be liable to suffer the disability as referred to in ss. 5, 8, 9, 10, 13 and 20 of the Act.

4 4. The applicant relies upon the verifying affidavit of Mr. Simon Fleming, Solicitor, who states that he has found it impossible to advise the applicant concerning the elements of the offence with which he is charged and the consequences of the conviction under the section because of the vagueness and imprecision with which the offence charge is framed.

5 5. The background to the alleged offence is set out by Garda Shona Nolan in a verifying affidavit to the Statement of Opposition. It is alleged that on 18 ^th October, 2013, when the applicant was travelling on a train between Newbridge and Naas/Sallins, Co. Kildare, he removed his penis from his trousers and masturbated in front of a little girl. On 20 ^th October, 2013, Garda Nolan took a statement of evidence from the child's mother, upon whose testimony it is proposed to rely at the trial.

6 6. The child's mother states that she was travelling from Cork with her daughter who was then three years and eleven months old, intending to visit her family in Celbridge. When the train stopped at Kildare she saw a man shuffling from the top of the carriage who passed her. He muttered some obscenities while passing. He then returned to her carriage and sat two seats behind her. Her daughter moved down the carriage to look at a map of Ireland. When her mother turned to check on her she saw the man's reflection in a window staring at her daughter and masturbating. She could clearly see his penis in his hand and her daughter was sitting down and looking at him. She got up immediately and went over to him. She saw him place his penis back into his trousers. She retrieved her daughter and they returned to their seat until the train arrived at the Naas/Sallins stop. She gathered her daughter and walked to the end of the carriage, passing the man as she went. She said that she was in fear at this stage. The train was approaching Hazelhatch where she intended to disembark. She banged loudly on the driver's door who opened it straightaway. She informed him what had happened and that he should call the Gardaí. She was met at the station by her brother in-law in whose care she left her daughter. She returned to the station and met with Gardaí and station staff. She identified the applicant as the culprit.

7 7. Garda Nolan states that she arrested the applicant for an offence contrary to s. 4 of the Criminal Justice (Public Order) Act, 1994, as a result of the complaint made to her, that he had exposed himself on the train and that he was intoxicated.

8 8. Section 4 of the Vagrancy Act, 1824 provides that:-

"Every person committing any of the offences herein-before mentioned, after having been convicted as an idle and disorderly person; every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his Majesty's subjects; every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or wagon, not having any visible means of subsistence and not giving a good account of himself or herself; every person wilfully exposing to view, in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition; every person wilfully openly, lewdly, and obscenely exposing his person in any street, road, orpublic highway, or in the view thereof, or in any place of public resort, with intent to insult any female; every person wandering abroad, and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence; every person running away and leaving his wife or his or her child or children, chargeable, or whereby she or they or any of them shall become chargeable to any parish, township, or place; … every person having in his or her custody or possession any picklock, key, crow, jack, bit, or other implement with intent feloniously to brake into any dwelling house, warehouse, coach-house, stable or outbuilding, or being armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, or having upon him or her any instrument, with intent to commit any felonious act, every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any enclosed yard, garden, or area, for any unlawful purpose; every suspected person or reputed thief, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, or any highway or any place adjacent, with intent to commit felony; and every person apprehended as an idle and disorderly person, and violently resisting any constable, or other peace officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended; shall be deemed a rogue and vagabond, within the true intent and meaning of this Act; and, it shall be lawful for any justiceof the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses,) to the house of correction, there to be kept to hard labour for any time not exceeding three calendar months; and every such picklock key, crow, jack, bit, and other implement, and every such gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, and every such instrument as aforesaid, shall, by the conviction of the offender, become forfeited to the King's Majesty."

9 9. The part of the section quoted above which is highlighted in bold type is challenged in these proceedings.

10 10. It is submitted that the provision contravenes the principle nallem crimen sine lege, nulla poena sine lege, which requires that a criminal offence be as precisely defined as possible, so that it can be demonstrated with reasonable certainty before...