Reilly -v- Judge Patwell, [2008] IEHC 446 (2008)

Docket Number:2006 832 JR
Party Name:Reilly, Judge Patwell
Judge:McCarthy J.
 
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THE HIGH COURT

JUDICIAL REVIEW2006 832 JR

BETWEEN

JOHN REILLYAPPLICANTAND

JUDGE MICHAEL PATTWELLRESPONDENTAND

COBH TOWN COUNCIL AND THE ATTORNEY GENERALNOTICE PARTIESJUDGMENT of Mr. Justice McCarthy delivered the 17th day of October 2008.

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

  2. 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.

  3. 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.

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

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

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

    (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.

    (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.

    (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.

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

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

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

  6. 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.

  7. As to the facts one might turn first to the applicant's affidavit of the 12th 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.

  8. The applicant apparently received letters of 7th July, 2004 and 21st 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 swept daily in or about 12 noon and he says that this was his invariable practice, weather permitting, but that periodic attempts were made thereafter to sweep the area - so that since the public house did not open until 4 o'clock, no sweeping took place early on the morning of 10th September, 2004 in or about 9 a.m. or 9.15 a.m. The Council's litter warden exercised the powers conferred upon him by s. 28 of the 1997 Act, to serve what is commonly known as fixed penalty notice affording the applicant an opportunity to pay a fine of 120 within a fixed period in respect of the offence of the 10th of September, 2001. If that amount was so paid a prosecution would not ensue. Oral representations were made to Padraig Lynch, the Council's Town Clerk on the merits and subsequently a purported notice of appeal against the imposition of the fine was served on 2nd December, 2004. The next step was the implied rejection of such purported appeal by the service of the summons alleging the offence, whereof the applicant was convicted. Such summons was returnable for 23rd February, 2005, when the charge was heard.

  9. At the hearing evidence was given on behalf of the Council as prosecutor by Mr. Matthew Watkinson, their litter warden, that he found cigarette ends outside the applicant's licensed premises (of which he had photographs), on the relevant day, he described the place such that it fell into the category in respect of which a duty was imposed under s. 6(4) upon the occupier of the adjacent premises (the applicant) to clean it and he gave evidence concerning the fixed penalty notice. The solicitor for the applicant was inhibited by the learned District Judge from canvassing in cross-examination the proposition that reasonable steps had been taken by the applicant to keep the area in question free from litter and she unsuccessfully applied for a directed acquittal. The applicant was, in fact, afforded an opportunity to give evidence as to the nature of the premises in question, about Casement Square and the difficulties with litter which had arisen there: evidence as to the efforts made to keep the area of footpath in question clean, or the scheme of cleaning was held inadmissible by the learned respondent on the issue of whether the accused was guilty or not guilty. He was quite right to inhibit cross-examination (since cross-examination is permitted only on relevant matters) and to exclude that portion of the evidence of the applicant on that issue. It is plain, of course, that he had regard to such evidence in or about consideration of the penalty since it was admissible on that aspect. He was perfectly entitled to accept as the law what the second notice party ("the Attorney General") herein now contends it is. It seems fair to summarise the District Judges position as being that the sole issue was whether or not, as a fact, the applicant had kept free from litter the footpath and that whether or not he had, say, exercised reasonable care or reasonable diligence in or about attempting to do so (unsuccessfully) was irrelevant. The applicant found the facts proved but dismissed the charge pursuant to The Probation of Offenders Act, 1907, merely ordering the applicant to pay 50 costs which plainly reflects the minor nature of the offence.

  10. The applicant has expressed concern in his affidavit lest he is prosecuted for further offences (the respondent having apparently indicated that if there was a subsequent prosecution, he would impose the maximum fine) and asserts in his affidavit that he is "taking reasonable steps to deal with obligations resting upon me to keep the footpath in front of Voyager Bar premises litter free" and no doubt this is true, though not relevant.

  11. There is in existence, apparently, a "Litter Management Plan", though the fact of the existence thereof does not appear to be relevant. There is a replying affidavit of Patrick Gernon on the 1st December, 2006 sworn and filed on behalf of the Attorney General. He is an Assistant Principal Officer in the Department of the Environment with reasonability inter alia for litter policy and the implementation of the Government's Anti-Litter Initiatives. In his affidavit he referred to a national anti-litter forum established by the Government and the report thereof, which latter contained recommendations as to law enforcement, promotion of education and awareness, use of economic instruments such as environmental taxes and levies and improved performance by local authorities in cleansing operations to tackle the problem of litter in our society. He refers also to the establishment of an organisation called Irish Business Against Litter (IBAL), the activities of which may be gleaned from its name, and to a "Litter Action Plan". He describes this as a key policy document which sets out the Government's national anti-litter strategy and he states that since the entry into force of the 1997 Act, action has been taken on "many fronts to implement the Litter Action Plan". There is apparently also in existence a national litter pollution monitoring system and publication takes place of what are known as Littering Monitoring Reports. He asserts that the obligations on occupiers of premises under s. 6(4) are "a vital requirement in minimising litter, especially litter arising from the commercial activities of occupiers of business premises" and points out something which is obvious, that the statutory duty in question will be effective commensurate with the power available to local authorities to enforce it. He points out that "realistically" local authorities "cannot...

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