Tallon v Director of Public Prosecutions
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 25 May 2023 |
| Neutral Citation | [2023] IECA 125 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Nos.: 2022 182/2022 184 |
and
[2023] IECA 125
Edwards J.
McCarthy J.
Donnelly J.
Record Nos.: 2022 182/2022 184
THE COURT OF APPEAL
JUDGMENT of Ms. Justice Donnelly delivered on this 25 th day of May, 2023 .
. This is an appeal brought by the Director of Public Prosecutions (“the DPP”), Ireland, and the Attorney General (“the State”) seeking to set aside the decision of the High Court (Phelan J.) ( [2022] IEHC 322). Phelan J. granted orders of certiorari quashing the civil order made against the respondent, Mr. Tallon, by Gorey District Court on 31 August 2020 pursuant to the Criminal Justice Act, 2006 (“the 2006 Act”), and the subsequent convictions ensuing from breaches thereof.
. Part 11 of the 2006 Act is entitled “Civil Proceedings in Relation to Anti-Social Behaviour”. Section 113(2) of the 2006 Act provides that “a person behaves in an anti-social manner if the person causes or, in the circumstances, is likely to cause, to one or more persons who are not of the same household as the person—
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(a) harassment,
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(b) significant or persistent alarm, distress, fear, or intimidation, or
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(c) significant or persistent impairment of their use or enjoyment of their property.”
. The process which may result in a civil order being made by the District Court can only commence if a member of An Garda Síochána issues “a behaviour warning to a person who has behaved in an anti-social manner” (s. 114(1) of the 2006 Act). The behaviour warning must indicate certain matters, such as a statement that the person has behaved in an anti-social manner and indicating what that behaviour was and when and where it took place, demanding that it ceases, and indicating that failure to comply or the issuance of another behaviour warning may result in an application for a civil order. Time limits are provided for how long the notice will remain in force.
. If that person does not comply with a behaviour warning or has been issued three or more behaviour warnings in less than six consecutive months, a member of An Garda Síochána not below the rank of Superintendent may make an application to the District Court for a civil order prohibiting that person from continuing to engage in the specified anti-social behaviour (s.115(3)).
. Section 115 permits the District Court, on application to it, to make an order (“a civil order”) prohibiting a person from doing anything specified in the civil order if the District Court is satisfied, to the civil standard of proof, that
“(a) the respondent has behaved in an anti-social manner,
(b) the order is necessary to prevent the respondent from continuing to behave in that manner, and,
(c) having regard to the effect or likely effect of that behaviour on other persons, the order is reasonable and proportionate in the circumstances.”
. The 2006 Act provides a process for a legal aid certificate to be granted, by the court, in respect of an application for a civil order in s. 118. Mr. Tallon chose to represent himself at the hearing of the application.
. The person who is the subject matter of the civil order or a senior member of An Garda Síochána may apply to court, on notice, to vary or discharge a civil order (s.115(7) of the 2006 Act). The civil order may be appealed by the person who is subject to the order. The appeal must be brought within 21 days to the Circuit Court. Section 116(3) provides that notwithstanding the appeal, “the civil order shall remain in force unless the court that made the order or the appeal court places a stay on it”. The appeal is “in the nature of a rehearing of the application” (s.116(3)).
. A criminal offence is committed under s. 117(1) of the 2006 Act where a person who is the subject of a civil order without reasonable excuse does not comply with the directions of that order.
. Mr. Tallon was convicted of two offences contrary to the 2006 Act and of two offences under the Criminal Justice (Public Order) Act, 1994 (“the 1994 Act”). Mr. Tallon challenged the legality of the civil order made against him and the subsequent criminal convictions. He also challenged s. 115 and s. 117 of the 2006 Act as being repugnant to his constitutional rights. He was represented by solicitor and counsel in the High Court but, it seems, he did not retain them for this appeal. Mr. Tallon did not file a respondent's notice nor any written submissions to the Court. He appeared in person at the hearing of this appeal and made oral submissions on his own behalf.
. The Irish Human Rights and Equality Commission (“IHREC”) made an application pursuant to its statutory function under s. 10(2)(e) of the Human Rights and Equality Commission Act 2014 for liberty to appear as amicus curiae in this case. This was granted by the Court, to which they made written and oral submissions. IHREC considers that these proceedings raise concerns as to human rights, namely the rights to freedom of expression, the right to trial in due course of law, and the right to equality.
. The DPP and the State were separately represented at the appeal and made written and oral submissions to the Court.
. Mr. Tallon received five behaviour warnings over the period encompassing June and July 2020. The warnings received by Mr. Tallon referred variously to “excessively loud” public-speaking, “preaching and commentary”, which caused “interference”, “distress and intimidation”, “annoyance and concern” to members of the public and people working nearby.
. An application for a civil order was made by Superintendent Doyle of Wexford Garda Station. Neither Mr. Tallon nor the Superintendent were legally represented in the District Court at the hearing of the application. This Court was informed that to the best of the knowledge of the legal representatives for the DPP, the State and the amicus, this was the first such order made by the District Court. In light of what has transpired in this case, it is regrettable that no legal representative was present to ensure that the District Court judge would have every legal assistance in dealing with this application.
. Before the District Court, evidence was received from six Garda witnesses and nine civilian witnesses, all of whom reiterated the disturbance, distress, and annoyance caused by Mr. Tallon's heralding. The civilian witnesses included members of the public who lived locally and business owners with premises in the centre of Wexford town. Some business owners gave evidence that Mr. Tallon's preaching, through an electronic speaker, described by one witness as “noise pollution”, was a deterrent to customers who did not want to listen to his statements. One witness' evidence, which was not atypical, described a situation which had gone on for a number of years in which he espoused his version of “a bible or espousing on his theories on COVID or his version of morals or his version of how the gardaí behave, how the legislature behaves, how the government behaves, how the judges behave and it is incessant and I described it to one of the other business — it's like — almost like a worm in my ear because I try and block it out but once it registers at all, it's in my ear all day long and I have, on occasion, had to leave the office early because I just wasn't able to do my work.”
. Mr. Tallon, in evidence before the District Court, said there was a lack of understanding in Wexford that street preaching was a cornerstone of our society and that freedom of expression applies to it. He denied having made any personal remarks to people or isolating them or addressing them unless they approached him. He said he would answer questions raised by people on the street with a biblical quote. He was genuinely trying to reach out to people. He said he had chosen the Bullring because it was the centre of town and thus the centre of activity.
. The District Court heard submissions from the Superintendent who said all the elements required under the 2006 Act were present. The judge then heard from Mr. Tallon who challenged the submission that this was costing the owners business. He also said that he had not engaged in any activity that was interfering with another person or harassing or causing alarm or distress.
. The District Court judge gave judgment as follows:
“… I've listened very carefully to the evidence of all the people who took the trouble to come here to court today and the garda witnesses and I've also heard Stephen give his side of the story and he disputes the accounts and narratives and interpretations of the various witnesses. But having listened carefully to all the evidence in this case, I'm fully satisfied that the State has proven its case to the required standard and accordingly, I will make an order in terms of the notice of application… ( see below). And I'd just like to thank the State for the professional manner in which the case was presented. I'd just also like to add if the defendant finds some way to circumvent this order, I'm here for the whole month of September and I'd urge the State not to let it drag on and cause any more disruption to these people and the rest of the people of Wexford but to move swiftly to deal with the situation….”
. The Superintendent immediately thereafter sought, as part of the order, a prohibition on Mr. Tallon from publishing the case on Facebook or social media which the Superintendent said again may cause distress to people. The judge did not do so. The Superintendent then said it was the intention of the Gardaí to arrest Mr. Tallon and bring him to court if he breached the order. The Superintendent asked that if the respondent saw fit to appeal the order that the civil order would still stand...
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