Dillon v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Eamon de Valera
• Judgment Date: 04 December 2007
• Neutral Citation: [2007] IEHC 480
• Docket Number: [2003 No.942 JR]
• Date: 04 December 2007
• Court: High Court

Dillon v DPP

JUDICIAL REVIEW

BETWEEN

NIALL DILLON

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

[2007] IEHC 480

[No. 942 J. R./2003]

THE HIGH COURT

1 Judgment of Mr. Justice Eamon de Valeradelivered on the 4 day of December 2007.

2 1. On the 19 ^th day of August, 1847 in the 10 ^th year in the reign of Queen Victoria the Parliament sitting at Westminster passed into law the Vagrancy (Ireland) Act 1847. At this time the Disaster, known to us now as "The Great Hunger" was at its height and on its way to reducing the population of Ireland from eight and a half million to under four million in a few short years.

3 2. The Vagrancy (Ireland) Act 1847, (hereinafter referred to as the Act) was, clearly, passed into law to assist the authorities in controlling the social effects of this calamity.

4 3. Section 3 of the Act is declared in the preamble to be for the:-

"Punishment of persons wandering abroad or begging in public places" and it states:-

"And be it enacted, that every person wandering abroad and begging, or placing himself in any public place, street, highway, court or passage to beg or gather alms, or causing or procuring or encouraging any child or children so to do, and every person who, having been resident in any union in Ireland, shall go from such union to some other union, or from one electoral or relief district to another electoral or relief district in Ireland, for the purpose of obtaining relief in such last mentioned union or district shall on conviction thereof before any justice of the peace, if such justice shall see fit, be committed to the common jail or house of correction, there to be kept to hard labour for any time not exceeding one calendar month."

5 This section constitutes a prohibition against begging in any public place in all circumstances and remains in force to this day, over one hundred and fifty years later.

6 4. The verb "to beg" is defined in the new shorter Oxford Dictionary (1993 Edition) as "to ask for food, money etc. as a charitable gift".

7 5. The noun "alms" is defined as, variously, "charitable relief of the poor", "a charitable donation", "things given in charity", and "a good deed". (The gathering of alms now appears to be controlled by the Street and House to House Collections Act 1962, which, it should be noted, does not purport to repeal, amend or alter the Vagrancy (Ireland) Act 1847, in any way, and does not appear to seek to permit or control begging).

8 6. On the 19 ^th day of September, 2003 at Parliament Street in the city of Dublin the applicant herein, Niall Dillon, was charged that he "did place himself in a public street to beg contrary to s. 3 of the Vagrancy (Ireland) Act 1847".

9 7. By order of the High Court dated the 15 ^th December, 2003 the applicant was given leave to seek judicial review and the reliefs sought included a declaration that the provisions of s. 3 of the Vagrancy (Ireland) Act 1847, are inconsistent with the Constitution and also an order of prohibition and/or an injunction (including if necessary an interim interlocutory order) restraining the Director of Public Prosecutions from taking any further steps in the District Court, the subject matter of these judicial review proceedings.

10 8. The grounds upon which relief was sought were that s. 3 of the Vagrancy (Ireland) Act 1847, was unconstitutional in that it:-

11 (i) Interferes with the independence of the judiciary contrary to Article 35(2) of the Constitution in that it dictates to a trial judge the penalty to be imposed on a person convicted of an offence and deprives the trial judge of jurisdiction to exercise discretion so that different sentences may be applied, as appropriate in different circumstances;

12 (ii) It is inconsistent with Article 3.4 of the Constitution in that it dictates to a trial judge the penalty to be imposed on a person convicted of an offence and deprives the trial judge of jurisdiction to exercise discretion so that different sentences may be applied, as appropriate, in different circumstances;

13 (iii) It is inconsistent with Article 40.1 and/or Article 40.3 of the Constitution in that it invidiously discriminates between those who are rich and those who are poor;

14 (iv) Is inconsistent with Article 40.1 and/or Article 40.3 of the Constitution in that it invidiously discriminates between those charged with beggingoffences and persons charged with other offences in relation to public order;

15 (v) Interferes with the applicant's constitutional rights pursuant to Article 34.1 and/or Article 38 and/or Article 40.3 of the Constitution in that it is disproportionate and interferes with the applicant's constitutional rights to an extent greater than necessary, having regard to the offence and the circumstances of the applicant;

16 (vi) Is inconsistent with Article 38 and/or Article 40.4.1 and/or Article 40.1 and/or Article 40.3 of the Constitution in that the ingredients of the offence and the mode by which its commission may be proved are so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, so prone to make a man's lawful occasions become unlawful and criminal by the breath and arbitrariness of the discretion that is vested in both the prosecutor and the Judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the...