Tallon v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 31 May 2022
• Neutral Citation: [2022] IEHC 322
• Court: High Court
• Docket Number: [Record No. 2020/867 JR]

Between:

Stephen Tallon

Applicant

and

The Director of Public Prosecutions

and

Ireland

and

The Attorney General

Respondents

[2022] IEHC 322

[Record No. 2020/867 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Convictions – Criminal Justice Act 2006 – Applicant seeking certiorari – Whether the civil order exceeded the jurisdiction vested in the District Court

Facts: The applicant, Mr Tallon, was convicted on the 2nd of November, 2020 pursuant to s. 117 of the Criminal Justice Act 2006 for his breach, on two separate occasions (August and October, 2020), of a civil order which the District Court imposed on him on the 31st of August, 2020, under s. 115 of the 2006 Act. On the same day, the applicant was also convicted of separate offences under ss. 7 and 8 of the Criminal Justice (Public Order) Act 1994. The applicant applied to the High Court seeking certiorari in respect of the four conviction orders made by the District Court on the 2nd of November, 2020 as well as the civil order made on the 31st of August, 2020. The applicant advanced his case by way of judicial review on the basis that the civil order, in its terms, exceeded the jurisdiction vested in the District Court under s. 115 because it prohibited acts or behaviour which were not themselves anti-social and interfered in an impermissible manner with the applicant’s constitutional rights, most particularly his right to freedom of expression, which was protected pursuant to the provisions of Article 40.6.1 of the Constitution. In the alternative, the applicant contended that if s. 115 of the 2006 Act properly construed gives jurisdiction to a District Judge to make a civil order prohibiting the exercise of a constitutional right in the manner which occurred in this case, then s. 115 is unconstitutional on the grounds that it permits an impermissible interference with constitutional rights (specifically the right to freedom of expression and the right to equality insofar as it prohibits conduct which is not unlawful if carried out by a person who is not subject to a like order). It was further contended that to the extent that the civil order was intra vires the powers of the District Judge under s. 115, then s. 117 of the 2006 Act is unconstitutional, in broad terms, because it: (i) fails to vindicate a citizen’s right not to be tried on a criminal charge save in due course of law (Article 38.1); (ii) fails to vindicate the right of all citizens to be held equal before the law (Article 40.1); (iii) criminalizes an act without the requirement of it being established beyond reasonable doubt that the said person had deviated from a clearly prescribed standard of conduct (Article 38.1); (iv) fails to vindicate the right not to be deprived of liberty and/or his personal rights on conviction when the ingredients of the offence are arbitrary and vague (Articles 40.4 and 40.3); and (v) fails to vindicate the right to freedom of expression (Article 40.6.1). A challenge to the constitutionality of ss. 7 and 8 of the 1994 Act was expressly abandoned during the hearing but the applicant maintained his claim for certiorari of the conviction orders obtained on foot thereof.

Held by the Court that the nexus between the original application for a civil order and its criminal counterpart under s. 117 was a cause for real caution for the part of the judge who was required to give effect to the provision as the initial civil procedure defines the outer limits of the behaviour which can constitute a criminal offence in circumstances where either: (i) in respect of behaviour which actually amounts to a crime, a conviction may be obtained without proving the crime; and (ii) in respect of behaviour which is in breach of a civil order but does not otherwise constitute criminal wrongdoing, a conviction may also be obtained. The Court decided that the standards of fairness inherent in the concepts of constitutional justice and equality before the law which inhere in constitutional order are not met where a civil order is drawn under s. 115 in a manner which extends beyond the mischief of anti-social behaviour covered in the evidence led before the District Court and in a manner which encroaches into areas of human activity which are perfectly lawful and are constitutionally protected. The Court held that by failing to tailor the civil order made to capture recurrence of behaviour adjudged on the evidence led to be anti-social, the District Judge exceeded the jurisdiction vested under Part 11 of the 2006 Act; similarly, the failure to tailor the order to the offending behaviour resulted in a disproportionate interference with the applicant’s personal rights including his right to equality before the law and his right to freely communicate.

The Court held that the orders made under ss. 115 and 117 of the 2006 Act were ultra vires and should be quashed.

Reliefs granted.

JUDGMENT by Ms. Justice Siobhán Phelan delivered on the 31st day of May, 2022

INTRODUCTION

1 . This case concerns the constitutional interpretation and application of the anti-social behaviour order provisions of the the Criminal Justice Act, 2006 (“the 2006 Act”) and the constitutional soundness of certain of those provisions.

2 . The Act gives members of An Garda Síochána (hereinafter the Gardaí) the power to issue a behaviour warning to a person who has behaved in an anti-social manner, as defined in the Act (s. 114(1)). The behaviour need not be criminal. If the person does not comply with the warning, a senior member of the Gardaí may apply to the District Court for an order prohibiting the person from engaging in certain defined behaviour. Such an order may be granted on the civil standard of proof. A breach of the order constitutes a criminal offence.

3 . These judicial review proceedings arise out of the Applicant's conviction on the 2 ^nd of November, 2020 pursuant to s. 117 of the 2006 Act for his breach, on two separate occasions (August and October, 2020), of a civil order which the District Court imposed on him on the 31 ^stof August, 2020 (‘the civil order’), under s.115 of the 2006 Act. On the same day, the Applicant was also convicted of separate offences under sections 7 and 8 of the Criminal Justice (Public Order) Act, 1994 (hereinafter “the 1994 Act”).

4 . The pertinent part of the civil order reads that the District Court:

“HEREBY ORDERS pursuant to section 115 of the said Act of 2006 that the respondent be prohibited from engaging in public speaking and recording anywhere within the environs of Wexford Town including North Main Street Bullring, Selksker Square at any time.”

5 . The Applicant seeks certiorari in respect of the four conviction orders made by the District Court (Judge O'Shea) on the 2 ^nd of November, 2020 as well as the civil order made on the 31 ^st of August, 2020 (Judge Cheatle).

ISSUES

6 . The Applicant advances his case by way of judicial review on the basis that the civil order, in its terms, exceeds the jurisdiction vested in the District Court under s. 115 because it prohibits acts or behaviour which are not themselves anti-social and interferes in an impermissible manner with the Applicant's constitutional rights, most particularly his right to freedom of expression, which is protected pursuant to the provisions of Article 40.6.1 of the Constitution.

7 . In the alternative, the Applicant contends that if s. 115 of the 2006 Act properly construed, it gives jurisdiction to a District Judge to make a civil order prohibiting the exercise of a constitutional right in the manner which occurred in this case, then s. 115 is unconstitutional on the grounds that it permits an impermissible interference with constitutional rights (specifically the right to freedom of expression and the right to equality insofar as it prohibits conduct which is not unlawful if carried out by a person who is not subject to a like order). unconstitutional on the grounds that it permits an impermissible interference with constitutional rights (specifically the right to freedom of expression and the right to equality insofar as it prohibits conduct which is not unlawful if carried out by a person who is not subject to a like order).

8 . It is further contended that to the extent that the civil order was intra vires the powers of the District Judge under s. 115, then s. 117 of the 2006 Act is unconstitutional, in broad terms, because it:

(i) fails to vindicate a citizen's right not to be tried on a criminal charge save in due course of law (Article 38.1) by providing for an offence whose ingredients are impermissibly arbitrary and vague, related to past conduct, ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, prone to make a person's lawful occasions become criminal or based on an arbitrary discretion vested in the District Judge when making the civil order, non-compliance with which is an element of the offence;

(ii) fails to vindicate the right of all citizens to be held equal before the law (Article 40.1);

(iii) criminalizes an act without the requirement of it being established beyond reasonable doubt that the said person had deviated from a clearly prescribed standard of conduct (Article 38.1);

(iv) fails to vindicate the right not to be deprived of liberty and/or his personal rights on conviction when the ingredients of the offence are arbitrary and vague, related to past conduct, ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, based on an arbitrary discretion vested in the District Judge making the civil order, non-compliance with which is an element of the offence (Articles 40.4 and 40.3);

(v) fails to vindicate the right to freedom of expression (Article 40.6.1).

9 . A challenge to the constitutionality of s.s 7 and 8 of the 1994 Act was expressly abandoned during the hearing but the Applicant maintains his claim for certi...