Kershaw v Ireland & AG

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 27 March 2009
• Neutral Citation: [2009] IEHC 166
• Docket Number: [No. 933 J.R./ 2007]
• Court: High Court
• Date: 27 March 2009

[2009] IEHC 166

THE HIGH COURT

[No. 933 J.R./ 2007]

Kershaw v Ireland & AG

BETWEEN

EDDIE KERSHAW

APPLICANT

AND

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

JUDGE PATRICK MCMAHON

NOTICE PARTY

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S8

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

CONSTITUTION ART 40.6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

CONSTITUTION ART 38.1

RSC O.84 r21

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10.2

VAGRANCY ACT 1824 (UK)

KING v AG 1981 IR 233

CONSTITUTIONAL LAW

Statute

Validity - Public order offence - Locus standi - Charged not convicted - Application for declaration of unconstitutionality of criminal statute - Constitution - Freedom of expression - Whether provision of statute unconstitutional - Delay - Whether applicant moving application for judicial review promptly - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Criminal Justice (Public Order) Act 1994 (No 2), s 6 - Constitution of Ireland 1937, Articles 38.1 and 40.6.1 - King v Attorney General [1981] IR 233 distinguished - Relief refused (2007/933JR - Ó Neill J - 27/3/2009) [2009] IEHC 166

Kershaw v Ireland

EX TEMPORE JUDGMENT of

O'Neill J.

delivered the 27th day of March, 2009

1 The applicant in this case was given leave to apply for judicial review and the reliefs which are now sought before me by leave of this court on 19^th July, 2007. These proceedings relate to or arise from an incident which took place on 2^nd April, 2003, at Ballyfermot Road in the City of Dublin. From the evidence on affidavit which is before me, it would appear that what happened was as follows.

2 The applicant, with approximately fifty other persons, was engaged in a protest which the applicant characterises as of a political nature. The persons in question, together with a large number of horses - approximately twenty - proceeded up Ballyfermot Road and it would appear had blocked the road. The gardaí came on the scene and the applicant was requested by members of the gardaí, to, as it were, unblock the road so as to permit traffic to pass. The applicant had apparently been identified by the gardaí as a person who was exercising a leadership role in the events. The applicant's response to these requests is not in dispute and it is set out in the statement of Garda McCarron where he says as follows:

"Sergeant Edgeworth made several attempts to reason with Eddie Kershaw and allow traffic to pass but he refused and kept on shouting and inciting the crowd. The crowd began throwing bottles and stones, one coke bottle narrowly missed a youth on the footpath. Then, more assistance arrived. I directed Eddie Kershaw to leave the area in a peaceful and orderly manner, under section 8 of the Criminal Justice (Public Order) Act. I outlined the penalties if he refused or failed to do so. He told me to fuck off. I decided I had no option but to arrest Eddie Kershaw. He resisted arrest physically and tried to use a horse to prevent his arrest also. He held on to the reins and pulled on them hard and shouted. Sergeant Edgeworth calmed the horse down while myself and Garda David Hynes, who had come to our assistance, restrained and arrested Eddie Kershaw. He repeatedly calling us "fucking scumbags". During the struggle which ensured, Eddie Kershaw pulled Garda David Hynes' tie off and swung out wildly to avoid being arrested. Other members of An Garda Siochána then came to our assistance and Eddie Kershaw was placed in the back of the patrol car. I sat in the patrol car beside him. Eddie Kershaw then tried to get out of the patrol car, despite being handcuffed and under arrest. He called on the youths beside the car to open the door and let him out. Some youths attempted to open the door, but then Sergeant Edgeworth moved the youths away and we conveyed Eddie Kershaw to Ballyfermot Garda Station. His details were entered in the custody record. He was later released, pending a file being prepared."

3 Subsequent to that, the applicant was brought before the District Court and the process whereby this arose was that an application was made by the gardaí on 8^th May, 2003, for summonses in respect of four charges. These were the offence under s. 6 of the Criminal Justice (Public Order) Act 1994 (the Act of 1994), an offence under s. 8 of that Act, and two offences under s. 2 of the Non-Fatal Offences against the Persons Act 1997.

4 On 14^th January, 2004, the summonses issued from the District Court office. The 15^th April, 2004, was the return date for the summonses and on that date the proceedings were adjourned to 25^th April, 2005, for hearing.

5 On 23 April, 2005, two days before the hearing, the applicant sent a letter to the gardaí seeking an adjournment. It would appear that the applicant had been involved in a road traffic accident and that was the reason why this adjournment arose.

6 On 25^th April, 2005, the matter was adjourned and a new trial date was set for 23^rd November, 2006. On that occasion, the trial did not proceed because the applicant was in custody.

7 On 30^th November, 2006, a new trial date of 22^nd January, 2007, was fixed.

8 On 22^nd January, 2007, the applicant failed to appear and a bench warrant issued. It was then cancelled because he turned up later in the day.

9 On 2^nd May, 2007, the case was listed for mention and a bench warrant issued as the applicant had not attended.

10 On 11^th June, 2007, another bench warrant was issued as the applicant had failed to attend.

11 On 13^th July, 2007, the bench warrant was executed and the matter was to be before the court on 20^th July, 2007, and on 19^th July, 2007, the applicant applied to this court for leave to bring these judicial review proceedings.

12 In these proceedings, the applicant seeks declarations that s. 6 of the Act of 1994, is repugnant to Article 40.6.1 of the Constitution of Ireland on the ground that it is an impermissible infringement of his right to freedom of expression and also that it is in breach of Article 10 of the European Convention on Human Rights. The applicant also makes the case that s. 6 is so vague in its terms as to be in breach of Article 38.1 of the Constitution, namely, the applicant's right to be tried in due course of law.

13 For the respondents, Mr. McDermott submits firstly, that there has been delay on the part of the applicant in bringing these judicial proceedings such that an extension of time should not be permitted.

14 Secondly, he submits that the application may be...