Reilly v Judge Michael Pattwell

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 17 October 2008
• Neutral Citation: [2008] IEHC 446
• Court: High Court
• Date: 17 October 2008

[2008] IEHC 446

THE HIGH COURT

[No. 832 JR/2006]

Reilly v Judge Pattwell

JUDICIAL REVIEW

BETWEEN

JOHN REILLY

APPLICANT

AND

JUDGE MICHAEL PATTWELL

RESPONDENT

AND

COBH TOWN COUNCIL AND THE ATTORNEY GENERAL

NOTICE PARTIES

LITTER POLLUTION ACT 1997 S6(4)

PROBATION OF OFFENDERS ACT 1907 S1(1)(i) (UK)

RSC O.84 r21(1)

LITTER POLLUTION ACT 1997 S6(6)

LITTER POLLUTION ACT 1997 S24

PROTECTION OF THE ENVIRONMENT ACT 2003 S58

LITTER POLLUTION ACT 1997 S28

LITTER POLLUTION ACT 1997 S9

R v CITY OF SAULT STE MARIE 1978 85 DLR (3D) 161 1978 2 SCR 1299

C (C) & G (P) v IRELAND & ORS 2006 4 IR 1 2005/7/1439 2005 IESC 48

SHANNON REGIONAL FISHERIES BOARD v CAVAN CO COUNCIL 1996 3 IR 267 1996/15/4588

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1991 ILT 127

CONNOLLY v DPP & JUDGES OF METROPOLITAN DISTRICT COURT 2003 4 IR 121 2003/9/1961

MANNING v DPP UNREP O'LEARY 29.7.2004 2004/29/6859 2004 IEHC 325

RSC O.84 r21

CAHILL v SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(B)

CONSTITUTION ART 34

CONSTITUTION ART 40

COLLINS, O'REILLY CIVIL PROCEEDINGS & THE STATE 2ED 2004 PARA 6.12

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

CRIMINAL LAW AMDT ACT 1935 S1(1)

CONSTITUTION ART 40.3

TOPPIN v MARCUS 1908 2 IR 423

GENERAL DEALERS (IRELAND) ACT 1903 S2 (UK)

MCADAM v DUBLIN UNITED TRAMWAYS CO LTD 1929 IR 327

DUBLIN CARRIAGE ACT 1853 S50 (UK)

SHERRAS v DE RUTZEN 1895 1 QB 918

DAVIES v HARVEY 1873-4 9 LR QB 433

MAGUIRE v SHANNON REGIONAL FISHERIES BOARD 1994 3 IR 580 1994 2 ILRM 253 1994/11/3473

FISHERIES (CONSOLIDATION) ACT 1959 S171(1)(B)

GAMMON (HONG KONG) LTD & ORS v AG OF HONG KONG 1985 AC 1 1984 3 WLR 437 1985 80 CAR 194 1984 2 AER 503

DIRECTOR OF CORPORATE ENFORCEMENT v GANNON 2002 4 IR 439 2003/12/2645

DPP v DEANE UNREP O CAOIMH 3.3.2003 (EX TEMPORE)

PUBLIC HEALTH (IRELAND) ACT 1878 S23 (UK)

FISHERIES (AMDT) ACT 1962 S2

ALPHACELL LTD v WOODWARD 1972 AC 824 1972 2 WLR 1320 1972 2 AER 475

PROUDMAN v DAYMAN 1941 67 CLR 536

MCAULEY, MCCUTCHEON CRIMINAL LIABILITY: A GRAMMER 2000 353-4

LITTER POLLUTION ACT 1997 S3

LITTER POLLUTION ACT 1997 S3(1)

LITTER POLLUTION ACT 1997 S3(2)

LITTER POLLUTION ACT 1997 S3(3)

LITTER POLLUTION ACT 1997 S3(4)

LITTER POLLUTION ACT 1997 S4

LITTER POLLUTION ACT 1997 S9(3)

LITTER POLLUTION ACT 1997 S15

LITTER POLLUTION ACT 1997 S16

LITTER POLLUTION ACT 1997 S16(4)

LITTER POLLUTION ACT 1997 S19

LITTER POLLUTION ACT 1997 S20

LITTER POLLUTION ACT 1997 S22

WARNER v METROPOLITAN POLICE CMSR 1969 2 AC 256 1968 2 WLR 1303 1968 52 CAR 373 1968 2 AER 356

SWEET v PARSLEY 1970 AC 132 1969 2 WLR 470 1969 53 CAR 221 1969 1 AER 347

PLANNING AND DEVELOPMENT LAW

Pollution

Certiorari - Conviction for litter pollution offence - Publican - Obligation to keep adjacent public place free of litter - Cigaratte ends - Refusal of district judge to have regard to evidence of care taken - Finding that facts proved - Whether judge acted ultra vires in refusing to consider evidence of reasonable steps taken - Whether defence of reasonable care available - Whether strict liability offence - Delay - Principles applicable to delay - Conduct of parties - Good reason for adopting procedure - Absence of prejudice - Locus standi - Absence of reasonable care - Inability to rely on defence of reasonable care if available - Whether offence of strict or absolute liability - Entitlement to know legal elements of offence prior to appeal - Whether halfway house offence - Whether offence falls into category of public welfare offence - Interpretation of statute - Natural and ordinary meaning of words - Classes of offence - Provisions providing for prior or ex post facto opportunity to be heard - Offences of strict liability - Regulatory offence - Purpose of penalty - Enforcement of social control - Relevant factors - Moral gravity of offence - Social stigma - Penalty - Ease or difficulty of discharging duty - Whether absolute liability would encourage obedience - Ease or difficulty of enforcing law - Social consequences of non-compliance - Desideratum to be achieved - Possibility of receiving evidence of reasonable care on question of penalty without undermining enforcement - Difficulty in challenging evidence given in mitigation - R v City of Sault St Marie (1978) 85 DLR 161, Shannon Regional Fisheries Board v Cavan County Council [1996] 3 IR 267, De Roiste v Minister for Defence [2001] 1 IR 190, O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301, Connolly v DPP [2003] 4 IR 121, Manning v DPP [2004] IEHC 325, (Unrep, O'Leary J, 29/7/2004), CC v Ireland [2006] IESC 33, [2006] 4 IR 1, Cahill v Sutton [1980] IR 269, A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, Toppin v Marcus [1908] 2 IR 428, McAdam v Dublin United Tramways Company Limited [1929] IR 327, Sherras v De Rutzen [1895] 1 QB 918, Davies v Harvey LR 9 QB 433, Maguire v Shannon Regional Fisheries Board [1994] 3 IR 580, Gammon (Hong Kong) Limited v Attorney General of Hong Kong [1985] AC 1, Director of Corporate Enforcement v Gannon [2002] 4 IR 429, DPP v Deane (Unrep, O Caoimh J, 3/3/2003), Alphacell Ltd v Woodward [1972] AC 824, R v Warner [1969] 2 AC 256 and Sweet v Parsley [1970] AC 132 considered - Litter Pollution Act 1997 (No 12), s 6 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Relief refused (2006/832JR - McCarthy J - 17/10/2008) [2008] IEHC 446

Reilly v Judge Patwell

1 Mr. Justice McCarthy delivered the 17th day of Oct 2008.

2 1. This action was commenced by originating notice of motion of 28 ^th July, 2006, pursuant to leave granted by O'Neill J. on 17 ^th July, 2006 and to seek inter alia the e following relief:-

3 1. An Order of certiorari quashing the order of the respondent dated the 23rd day of February 2005 finding the facts proved against the applicant of an offence under S. 6 (4) of the Litter Pollution Act 1997 to which the provisions of s. 1(1)(i) of the Probation of Offenders Act 1907 were applied.

4 2. If necessary a declaration that s. 6 (4) of the Litter Pollution Act 1997 is invalid having regard to the provisions of the Constitution of Ireland.

5 3. An order extending the time for the bringing of the application pursuant order 84 Rule 21 (1) of the Rules of the Superior Courts.

6 - as set forth in paragraph D of the applicant's Statement of Grounds dated the 12th day of July 2006.

7 2. Section 6(4) of the 1997 Act, is as follows:-

8 (1) "The occupier of a public place (not being a public road or a building or other structure) shall keep the place free of litter.

9 (3) The occupier of any land (other than land consisting of a building or other structure) that is not a public place shall keep the land free of litter that is to any extent visible from a public place.

10 (4) The owner of any land appurtenant to a residence that is let in two or more dwelling units (not being separate hereditaments) shall, notwithstanding the obligation of an occupier under subsection (2) in relation to land, keep the land free of litter that is to any extent visible from a public place.

11 (5) Every occupier of land adjoining a public road in respect of which a built-up area speed limit or special speed limit has been established in the functional area of a local authority shall keep free from litter-

12 (a) Any footway adjoining the land and forming, or forming part of, a public road, and

13 (b) any area of land forming part of a public road between any such footway and the roadway.

14 (5) No person shall, in carrying out the obligation under subsection (4), deposit any substance or object so as to create litter on a roadway or in any other place.

15 (6) A person who contravenes any provision of this section shall be guilty of an offence."

16 3. The breach of that obligation is an offence pursuant to s. 6(6) of the Act. The penalty is prescribed by s. 24 of the Act which was amended by s. 58 of The Protection of the Environment Act, 2003. As a consequence of the latter, a person guilty of an offence is liable on summary conviction to a fine not exceeding €3,000 and to a continuing daily fine, not exceeding €600, if the breach was continued, each daily breach being a separate offence, punishment on indictment is a maximum fine of €130,000 and €10,000 per day for any continuing breach. It does not appear clear what is in contemplation here is a breach on and subsequent to the date of the first alleged offence or a breach subsequent to the date of conviction of a first offence. There is no question of imprisonment.

17 4. As to the facts one might turn first to the applicant's affidavit of the 12 ^th July, 2006. The applicant is the joint occupier of "the Voyager Bar" at Casement Square, Cobh, County Cork. He describes the area as a litter "black spot" because of the existence of a "take-away" premises, which gives rise to a congregation of youths for what is said to be anti-social activity resulting in the presence of litter, rubbish and offensive material in the area: it appears however, that it is primarily cigarette ends that are deposited outside the applicant's premises and it would appear that their presence is the primary substantive cause of complaint by the first notice party, ("the council") which ultimately gave rise to the prosecution which resulted in the conviction.

18 5. The applicant apparently received letters of 7 ^th July, 2004 and 21 ^st July, 2004, from the local authority on behalf of the Council, pointing out to him his duty to keep the area outside his premises clean and he says that in response to these communications he caused the footpath outside his premises (i.e. between his premises and the public roadway) to be...