Daniel Phelan v Ireland, The Attorney General and The Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 08 October 2024
• Neutral Citation: [2024] IEHC 653
• Docket Number: [2017 No.9713 P]

Between

Daniel Phelan

Applicant

and

Ireland, The Attorney General and The Director of Public Prosecutions

Respondents

[2024] IEHC 653

[2017 No.9713 P]

THE HIGH COURT

JUDICIAL REVIEW

Application for declaration - mens rea - decision on consitutional issue

Facts: The Plaintiff sought a declaration that the statutory offence of threatening someone with a syringe was unconsitutional because it created an offence without a corresponding element of mens rea on the part of the accused. The Defendants argue that the provision must be be considered alongside the corresponding mental element. They further nominate recklessness as it aligns with the constitutional right to a fair trial and in the context of mens rea within the context of Irish law. The Plaintiff submissions included; that there was a constiutional requirement that the accused have mens rea in both the act and the following of the consequences.

The court considered the relevent provision found in s.6(1) of the Non-fatal Offences Against the Person Act of 1997 and noted the one of the "syringe offences" that was created after public concerns surrounding potential fatal infecition after the use of syringes of blood as weapons during the commission of assault or robbery. The mens rea in this case applies where the offence might be committed if there is intention or "where there is a likelihood" of fear of infection felt by the victim. The phrase in italics was the issue in this case. Both parties referred to Dpp v. O'Brien [2016] IECA 164, in which Mr O'Brien in which the offender chased the victim with a syringe

The court further noted that in every relevant example of caselaw it has been emphasisted that the "mental element of recklessness must be one that is subjective to the accused and that these is no place in our criminal law fior the concept of strict of absolute liability. The Jusge noted if the offender had the mental capacity of 14 years ahd had deliberately waved a syringe at person without considering the fear it would cause. The Court of Appeal held that there was no need for the victim to prove specific fear.

The Plaintiff sought a specific and literal interpretation of s.6(1) but failed to show any authority that requires this. The Judge cited the case of Heather Hill Management Company CLG. v An Bord Pleanála [2022] IESC 43, and noted that the legislative context does not remove any literal construction, but does align with a single valid construction of the section. It therefore, does not meet the interpretation that the Plaintiff sought.

The Court held the interpretation was consistent with the Constitution and further aligns with common law auithorites on mens rea anf the definition historically held in Irish law, insofar as it had been useed in the most serious crimimal offences. The court concluded, that while this was not a strong case, it did clarify an obsecure point of law. The Judge noted that the main issue in front of him was if this case was in the public interest, and held that it was not. Judge held that neither party was required to contribute to the others cost.

Judge declined to make declaration

Judgment of Ms. Justice Mary Rose Gearty delivered on the 8 ^th of October, 2024

1. Introduction

1.1 The Plaintiff seeks a declaration that the statutory offence of threatening another person with a syringe is unconstitutional as it creates an offence without a corresponding element of mens rea on the part of the accused. The Defendants argue that the provision must be read as incorporating a corresponding mental element, and they nominate recklessness, in which case the section aligns with the constitutional right to a fair trial and the case law defining mens rea in the context of Irish criminal law.

1.2 The section can, and should, be interpreted as incorporating a mental element of subjective fault. A statutory provision should be interpreted as being consistent with the Constitution if that interpretation is one that is reasonably open to the court. Interpreting the section in this way does not force the plain language of the section, is consistent with other sections in the same Act and aligns with Irish authorities on the issue of mens rea. The case law emphasises the constitutional imperative to include a consciously guilty mind as an essential element in any definition of serious crime. Any provision which creates criminal liability in the case of a morally blameless person is incompatible with our constitutional guarantees to uphold and vindicate the right to liberty and the dignity of the individual.

2. Threatening another with a Syringe

2.1 The relevant provision is s.6(1) of the Non-fatal Offences Against the Person Act of 1997 and is one of the “syringe offences” created to address public concern about incidents in which wrongdoers exploited fears of potentially fatal infection though the use of syringes or blood as weapons while committing an assault or robbery. The external factors of most such offences consist of two parts, the actus reus, or act of the accused, and the reaction of the victim. In respect of the mens rea, the offence may be committed where there is intention or “ where there is a likelihood” that the victim will fear infection. The phrase in italics is the phrase in issue.

2.2 The relevant subsections of s.6 read as follows:

“6(1) A person who—

(a) injures another by piercing the skin of that other with a syringe, or (b) threatens to so injure another with a syringe, with the intention of or where there is a likelihood of causing that other to believe that he or she may become infected with disease as a result of the injury caused or threatened shall be guilty of an offence.”

(2) Creates offences of pouring or spraying blood, or fluid resembling blood.

(3) Creates an offence of attempting to commit offences under ss. ( 1) or (2). “(5) (a) a person who intentionally injures another by piercing the skin of that other with a contaminated syringe shall be guilty of an offence.”

The penalty is set out in s.6(4) and, if convicted on indictment, the Plaintiff may be sentenced to a maximum term of 10 years imprisonment.

2.3 The Plaintiff argues that there is a constitutional requirement that the accused have mens rea, or a guilty mind, in respect of both the act and its consequences. He submits that this is not provided for in s.6(1)(b), where the requirement of mens rea, if any, includes an objective state of affairs rather than a subjective state of mind, namely, that the accused act “ with the intention of or where there is a likelihood of causing that other to believe that he or she may become infected with disease as a result of the injury caused or threatened” (Emphasis added).

2.4 This is a section which has received relatively little attention since its enactment, perhaps because it provided, in truth, a complicated alternative to more familiar offences. The 1997 Act replaced the common law offences of assault, with some amendments which are not relevant in this context. Prosecutions in respect of s.6 syringe offences were relatively rare as the 1997 Act assault offences, or robbery offences, were usually sufficient for the circumstances, with fewer formal proofs and more familiar language.

2.5 This Plaintiff was charged with an offence under s.6(1)(b) of the 1997 Act, in circumstances where it is alleged that he produced a syringe at Waterford Hospital and told a security guard there that he was going to stick it into him. On arrest, a syringe was found on his person. The Plaintiff made no admissions at interview. Two security guards have provided witness statements describing these events and saying that they did not know what was in the syringe although both describe some kind of liquid squirting out.

3. Statutory Interpretation: Presumption of Constitutionality and Context

3.1 Every statute enjoys the presumption of constitutionality. One of the earliest expressions of this principle was that of Hanna J. in Pigs Marketing Board v. Donnelly (Dublin) Limited [1939] I.R. 413 at 417, where he held:

“ … it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.”

3.2 In McDonald v. Bord na gCon [1965] I.R. 217, at 239, Walsh J. described the same presumption, often referred to as the “double construction” rule:

“ One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant.”

3.3 Walsh J. elaborated further on this principle in East Donegal Co-Operative Livestock Mart Limited v. Attorney General [1970] I.R. 317 at 341 stating that any such construction:

“ …cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas… a statutory provision which is clear and unambiguous cannot be given an opposite meaning.”

3.4 These principles, long followed, establish that the interpretation of a provision as being constitutionally valid must be reasonably open on the language of the section and that an unambiguous section cannot be, effectively, replaced by a different provision.

3.5 This exercise must also be guided by the relevant principles of statutory...