McNamee v DPP

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date12 May 2016
Neutral Citation[2016] IEHC 286
CourtHigh Court
Date12 May 2016

[2016] IEHC 286

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

BETWEEN
PATRICK MCNAMEE
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

Crime & Sentencing – Leave to seek judicial review – S. 2 of the Criminal Justice Act 1960 – Order of prohibition – Temporary release – S. 3(a) of the Prisoners (Temporary Release) Rules 2004 – Prohibition of trial – Failure to swear the grounding affidavit

Facts: The applicant had been convicted, sentenced and then released under s. 2 of the Criminal Justice Act, 1960 on the ground of keeping good behaviour. Thereafter, the applicant was arrested again with an offence contrary to s. 6 of the said Act for being unlawfully at large. The applicant now sought leave to apply for an order of prohibition of his trial for the said offence on the basis of non-compliance of notice requirements in relation to keeping good behaviour.

Mr. Justice Richard Humphreys refused to leave to seek an order of prohibition to the applicant. The Court observed that in order to seek leave, the applicant must show an arguable case and engaged in some facts which was absent in the present case. The Court held that in judicial review proceedings, the applicant must swear the grounding affidavit himself in order to uphold the integrity of the hearing to be ultimately conducted. The Court found that in the instant case, the grounding affidavit being sworn by the applicant's solicitor, the applicant was not entitled to any relief as there were no exceptional circumstances warranting the departure from the rule. The Court found that the contention by the applicant about vagueness of the charge of being unlawfully at large including the breach of a condition of temporary release was incorrect as the inclusion of that condition was clearly contemplated by the statute, which was within knowledge of the applicant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of May, 2016
1

Prior to the matters complained of in this application for leave to seek judicial review, the applicant had amassed a total of 164 convictions for various offences. His most recent relevant conviction was on 19th June, 2014, when he was sentenced to four and a half years' imprisonment with 12 months suspended for the offences of robbery, attempted robbery, burglary and the unauthorised taking of a motor vehicle. He now claims that leave should be granted to prohibit his pending trial on the grounds of a lack of notice as to the requirements of the criminal law, specifically as to what is meant by keeping the peace and being of good behaviour.

2

On 17th December, 2015, while serving his sentence for the conviction recorded in June, 2014, the applicant was given temporary release from Mountjoy Prison pursuant to s. 2 of the Criminal Justice Act 1960. A condition of temporary release, pursuant to rule 3(a) of the Prisoners (Temporary Release) Rules 2004 ( S.I. No. 680 of 2004), is ‘that the person shall keep the peace and be of good behaviour during the period of his or her release’. On that release, the applicant acknowledged the conditions in writing and in particular that they had been explained to him.

3

At approximately 11 a.m. on 23rd December, 2015, some six days after his release, Gardaí allege that the applicant was witnessed trespassing on residential property. He was arrested on suspicion of an offence contrary to s. 11 of the Criminal Justice (Public Order) Act 1994, and subsequently charged with an offence contrary to s. 6 of the Criminal Justice Act 1960, which makes it an offence to be unlawfully at large, which includes being on temporary release where a condition to which release has been made subject has been broken. According to the précis of evidence exhibited, he is said to have replied after caution ‘I wasn't doing any burglaries, I wasn't doing any of that’.

4

Bail was refused by the District Court, and subsequently by the High Court (Butler J.). Bail was then subsequently re-applied for, and granted.

5

The applicant now seeks leave to apply for judicial review for reliefs by way of prohibition or injunction, and declarations that the charge of being unlawfully at large, by way of breaching a condition of temporary release to be of good behaviour, is ‘so vague and uncertain as to be incapable of a trial in due course of law’, or is not known to the law, or that rule 3(a) of the 2004 rules is ultra vires or incompatible with the ECHR. I directed that the application be made on notice and I have now heard both from counsel for the applicant and from Ms. Grainne Mullan B.L. for the respondents.

The test for leave in G. v. D.P.P.
6

In G. v. D.P.P. [1994] 1 I.R. 374 at 377 to 378, Finlay C.J. set out the criteria for the grant of an ex parte application for leave. In some previous leave decisions (e.g., M.McK. v. Minister for Justice and Equality (Unreported, High Court, 25th April, 2016)), I have attempted to summarise these requirements. As developed by subsequent changes to the rules of court, and subsequent caselaw, the criteria can be summarised as follows:

(i) That the applicant ‘has a sufficient interest in the matter to which the application relates’ (p. 377);

(ii) That ‘an arguable case in law can be made that the applicant is entitled to the relief which he seeks’ (p. 378) on the basis of facts averred to by the applicant, albeit that the court can also have regard at least to uncontradicted or reliable evidence adduced by a respondent who has been put on notice of the application ( Joel v. D.P.P. [2012] IEHC 295 (Unreported, High Court, 9th July, 2012) per Charleton J. at para. 13); Gilligan v. Governor of Portlaoise Prison (Unreported, High Court, McKechnie J., 12th April, 2001). Of course, in particular circumstances a higher threshold than arguability applies, such as where legislation requires substantial grounds, or where the grant of leave would itself be likely to determine the event ( Agrama v. Minister for Justice and Equality [2016] IECA 72 (Unreported, Court of Appeal, 22nd February 2016) per Birmingham J. at para. 32);

(iii) That the application has been made within the appropriate time limit, or that the Court is satisfied that it should extend the time limit in accordance with the applicable rules of court or legislation;

(iv) That ‘the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure’ (p. 378).

(v) That there are no other grounds to warrant refusal of leave. ‘These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application.’ (p. 378).

7

It is now therefore necessary to assess the application under the headings that are in issue in this case, particularly standing, arguability, alternative remedies and discretion.

Vagueness allegations – a new cottage industry
8

Since the decisions of the High Court (Hogan J.) in Douglas v. D.P.P. [2013] 1 I.R. 510 and McInerney & Curtis v. D.P.P. [2014] 1 I.R. 536, a minor cottage industry appears to have grown up around the issue of allegations of vagueness in the substantive criminal law.

9

A number of such applications have proceeded unsuccessfully to a full hearing (See Cox v. D.P.P. [2015] IEHC 642 (Unreported, High Court, McDermott J., 20th October, 2015); and P.P. v. D.P.P. (Unreported, High Court, Moriarty J., not yet circulated, October, 2015), but notwithstanding this, such allegations are now appearing with noticeable regularity. I recently set out reasons for rejecting an application for leave to pursue one such complaint in Casey v. D.P.P. [2015] IEHC 824 (Unreported, High Court, 21st December, 2015).

10

Across the criminal law, fundamental concepts on which our system of justice rests are, of necessity, general and undefined. Conceptions such as intention, reckless, reasonableness, lawful excuse, the distinction between major and minor offences, seriousness in the context of the level of harm; such examples could be multiplied indefinitely. Many of the core concepts of criminal law are only capable of partial, if any, definition, and many of them are of necessity couched in general terms, with a very clear core meaning and a penumbra of debate to be teased out on a case-by-case basis.

11

That is, as it should be, and indeed as it must be, because the alternative approach, extreme specificity in terms of offences, is at best simply to chase an illusion and at worst, to create huge omissions and anomalies that simply do not arise with the use of more general phrases.

12

To that extent, the ‘war on vagueness’ that seems to be at issue in the current wave of challenges to the substantive definition of offences has the potential for serious negative effects on the integrity of the criminal justice system. Excessive specificity will create significant gaps in the protection for injured parties and society. That fact is more or less acknowledged in the English Law Commission Paper, Binding Over (Law Com No. 222) (para. 4.12.), on which the applicant relies. The policy choice as to where to strike the balance between specificity and inclusion is primarily a legislative one, a point also discussed by the English Law Commission.

13

Furthermore, the addiction to complete specificity can only be...

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3 cases
  • McNamee v DPP
    • Ireland
    • Court of Appeal (Ireland)
    • 25 Julio 2017
    ...I.R. 233. McInerney v. Director of Public Prosecutions [2014] IEHC 181, [2014] 1 I.R. 536. McNamee v. Director of Public Prosecutions [2016] IEHC 286, (Unreported, High Court, Humphreys J., 12 May 2016). Norris v. The Attorney General [1984] I.R. 36. Osmanovic v. Director of Public Prosecut......
  • Krupecki v The Minister for Justice and Equality No.2
    • Ireland
    • High Court
    • 1 Octubre 2018
    ...either in whole or in part. I discuss the ' reading down' jurisprudence in some detail in my judgment in McNamee v. D.P.P. [2016] IEHC 286 (Unreported, High Court, 12th May, 2016) and I do not interpret this element of the discussion as having been upset by the Court of Appeal judgment aff......
  • L.C. v K.C.
    • Ireland
    • High Court
    • 14 Enero 2019
    ...going to swear an affidavit, the appropriate course in the circumstances is therefore to refuse the application.’ 77 In McNamee v. DPP [2016] IEHC 286, the applicant sought leave to apply for judicial review seeking the prohibition of his criminal trial. Humphreys J. noted as follows:- ‘The......

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