Case Summary and Outcome

The Court of Appeal of Ireland upheld the High Court’s decision to grant Judicial Review in a case challenging the legality and constitutionality of a civil order issued under Section 115 of the Criminal Justice Act, 2006, prohibiting public speaking and recording within Wexford Town. Stephen Tallon, the Applicant, challenged the order, arguing that it infringed upon his constitutional rights to freedom of expression and lacked the necessary specificity. The High Court ruled in favor of Tallon, finding the order overly broad and disproportionate, leading to its quashing. The Court of Appeal rejected the State’s arguments that Tallon had alternative remedies available and emphasized the necessity of judicial review in addressing constitutional issues. It further noted the lack of legal certainty in the terms of the civil order and refrained from addressing proportionality concerns raised by the Director of Public Prosecutions. While acknowledging the Applicant’s firm belief in the order’s unconstitutionality, the Court of Appeal upheld the High Court’s decision, dismissing the appeal brought by the State and the Director of Public Prosecutions and affirming the quashing of the civil order and associated convictions.

---

Facts

Between June 18, 2020, and August 24, 2020, the Applicant, Stephen Tallon was involved in preaching and public speaking in Wexford Town. The National Police Service of Ireland considered the Applicant’s behavior to be anti-social, describing it as excessive, aggressive, and homophobic in a way that caused distress and intimidation to the public, business owners, and workers in the vicinity of the Bull Ring. Accordingly, the Police Authorities sent five Behaviour Warnings to the Applicant in accordance with the Criminal Justice Act, 2006. [para. 12] 

On August 31, 2020, the District Court issued a Civil Order against the Applicant under Section 115 of the Criminal Justice Act, 2006 in Wexford District Court, prohibiting the Applicant from engaging in public speaking and recording anywhere within the environs of Wexford Town including an area known as “the Bullring” at any time. The District Court noted that it had pieces of evidence which inter alia included testimonies of six police officers and nine civilian witnesses who testified that his preaching was homophobic and using passages like Leviticus from the Bible and at times related to such varied issues as abortion, people wearing masks, obesity, the role of women, racist speech and anti-religious speech. [para. 14]

On November 20, 2020, the Applicant appeared before the District Court facing four separate charges: two for breaching a civil order contrary to s. 117 of the 2006 Act without “reasonable excuse,” which deems such breaches criminal offenses. Following the issuance of the order, the applicant departed from Court and returned to the Bull Ring to continue his public speaking wherein he was heard to say “that no Court in the land could stop him from his right as an Irish man.” The other two charges pertained to the applicant’s presence at the same location with signs deemed to violate Sections 7 and 8 of the Criminal Justice (Public Order) Act of 1994. These signs were described as “threatening, abusive, insulting, or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned.” The first incident occurred on August 31, 2020, with the subsequent one on September 19, 2020. 

On October 7, 2020, the Applicant was once again arrested at the Bullring for using a loudspeaker and charged under Section 117(1)(b) of the Act for non-compliance with the civil order. Evidence presented to the District Court indicated that he was singing, with the arresting guard interpreting it as public speaking referencing Jesus. The guard acknowledged that the singing was not antisocial or abusive. 

Subsequently, on November 2, 2020, the Applicant was convicted of all charges in Wexford District Court and sentenced to a total of 8 months imprisonment, comprising two consecutive four-month sentences for each breach of Section 117(1)(b) of the Act, with consideration given to the offenses under Section 7 and 8 of the 1994 Act. 

Following his convictions, Applicant filed an appeal and appeared before Wexford Circuit Court on November 6, 2020. His legal representative informed the Court that they had sought leave to apply for Judicial Review from the High Court regarding the District Court convictions. They requested a stay on the Circuit Court proceedings pending the outcome of the High Court proceedings. The Wexford Circuit Court Judge granted the stay on the condition that the Applicant agreed not to preach in Wexford County until the High Court proceedings were concluded, and any remaining matters were dealt with by the Circuit Court. The Applicant agreed to this condition.

On May 31, 2022, Justice Siobhán Phelan of the High Court issued a ruling on the case. The main considerations revolved around two key questions: firstly, whether the civil order went beyond the jurisdiction of the District Court as outlined in Section 115 of the 2006 Criminal Justice Act, and secondly, whether Section 115 was unconstitutional due to its potential infringement on constitutional rights, particularly freedom of expression and equality.

The Applicant’s primary argument centered on the contention that the civil order imposed upon him was overly broad and lacked the necessary precision to enable compliance. He emphasized that the order’s prohibition of all forms of public speaking led to arbitrary and vague offenses, such as being prosecuted for singing a hymn, which was not explicitly prohibited in the order. This, according to the applicant, amounted to the criminalization of expression and contravened his constitutional rights to freedom of speech and expression, as well as equality before the law. Additionally, the applicant argued that any civil order under section 115 should only prohibit behavior previously determined to be anti-social and should not extend to constitutionally protected activities. Furthermore, he highlighted the principle of proportionality, asserting that limitations on constitutional rights must be necessary and proportional to prevent anti-social behavior, which was not demonstrated in his case.

The Respondents countered the Applicant’s arguments by asserting that his behavior demonstrated a clear lack of intention to comply with the civil order. The Respondent emphasized the manner of his speech and referred to the transcript hearing of August 31, 2020, to support their stance. The Respondents argued that the offense lay in non-compliance with the order itself, rather than the recurrence of anti-social behavior. They contended that the District Court had the statutory authority to issue injunctions and criminalize their breach under sections 115 and 117. Regarding the Applicant’s right to freedom of expression, the respondents argued that this right was not absolute and could be legitimately constrained, citing the precedent of Murphy v. IRTC [1999] 1 IR 12. The Respondents maintained that the civil order issued by the District Court was constitutionally valid, as it was confined to Wexford Town and pertained specifically to the form of public speaking.

Justice Siobhán Phelan of the High Court addressed the Applicant’s arguments regarding the civil order’s alleged overreach and lack of specificity. The High Court emphasized that the order must be sufficiently precise to enable compliance and that any limitations on constitutional rights, such as freedom of expression, must be proportionate and necessary. The High Court found that the civil order, as constructed, did not meet these standards, as it prohibited behavior not explicitly deemed anti-social in the evidence presented before the District Court. [para. 109]

Regarding due process, Justice Phelan observed that the civil order lacked the necessary specificity and legal certainty to protect the Applicant’s rights adequately. [para. 109] The High Court further noted that the order’s prohibition on public speaking was overly broad and impermissibly vague. [para. 109] Furthermore, the High Court highlighted concerns regarding the broad nature of the civil order, noting that it potentially extended criminal law into areas of civil behavior, which could infringe on individual rights. The High Court cited the need for a fair balance between individual liberties and societal demands, as outlined in previous legal precedents. [para. 101, High Court Decision] 

The High Court also considered the principle of equality before the law, noting that the civil order’s broad application could lead to unjust outcomes by criminalizing behavior that was not clearly defined as anti-social. Justice Phelan emphasized that any limitations on fundamental rights must be carefully crafted to avoid arbitrary and discriminatory application. [para. 111, High Court Decision] Furthermore, the High Court ruled that the civil order imposed an unjustifiable restriction on the fundamental right to communicate and express opinions [para. 116] The High Court also found that the imposition of imprisonment for breaching the civil order failed to meet the proportionality test [para. 122] The Court concluded that the civil order was overbroad and violated the jurisdictional parameters of the District Court [para. 131] Consequently, the High Court concluded that the civil order exceeded the jurisdiction granted to the District Court under the 2006 Act. The High Court ruled that the order was overly broad, lacked the necessary precision, and interfered disproportionately with the applicant’s rights. Thus, the High Court held that the orders made under Sections 115 and 117 of the 2006 Act were ultra vires and should be quashed [para. 137, High Court Decision]

The Director of Public Prosecutions, Ireland, and the Attorney General filed an Appeal before the Court of Appeal against the High Court decision.

---

Decision Overview

Justice Edwards, Justice McCarthy, and Justice Donnelly delivered the decision. The primary issue before the Court was the legality and constitutionality of a civil order prohibiting public speaking in Wexford Town, and whether this order infringed upon the appellant’s right to freedom of expression. The case also addressed the appropriateness of challenging such orders through judicial review. 

The State’s counsel contended that while theoretical discussions about the ideal civil order might be intriguing, such arguments were irrelevant in the context of the present case, which revolved around the specific civil order and subsequent criminal prosecutions. They emphasized that issues such as the geographical scope of the civil order or its proportionality were moot because the defendant had not demonstrated any desire or need to engage in activities beyond those covered by the order. Furthermore, the State emphasized the availability of alternative remedies and argued that the High Court should have exercised its discretion to deny relief through judicial review. They contested the High Court’s finding that the terms of the civil order should precisely reflect the defendant’s past behavior, asserting that such precision was not mandated by the 2006 Act or the Constitution. Additionally, they challenged the High Court’s assessment of the proportionality of the sentence imposed by the District Court, arguing that this fell within the discretion conferred upon the District Court by the Oireachtas. [Para. 40-41]

Moreover, the Director of Public Prosecutions appealed, alleging that the trial judge overstepped the boundaries of judicial review by making determinations on the correctness of District Court rulings, interpreting statutes, and assessing the proportionality of the sentence. The Director of Public Prosecutions (DPP) argued that the High Court’s grant of orders of certiorari was inappropriate given the defendant’s criminal appeal pending in the Circuit Court. They also contested the High Court’s characterization of Section 115 as a penal provision, asserting that such provisions should be construed strictly. [Para. 42] 

The Applicant, on the other side, contended that the crux of the matter lay not in considerations of proportionality or specific details, but rather in the fundamental principle that no Irish individual should be deprived of their right to speak freely. The Applicant questioned the disconnect between “what was deemed illegal” and “what was considered antisocial”, emphasizing his non-aggressive demeanor and his belief that his speech was a form of public service. Additionally, the Applicant raised concerns about the involvement of law enforcement in civil matters, the lack of due process in issuing behavior warnings, and the ambiguity surrounding what constituted a “reasonable excuse” for breaching the civil order. The Applicant also questioned the basis for his arrest, asserting that his behavior, absent the civil order, was not inherently unlawful. [para. 42]

The amicus highlighted three key human rights issues before the Court for adjudication including, the availability of judicial review, the need for legal certainty in civil orders, and the requirement for proportionality in framing such orders. [para. 44]

On the issue of the Availability of Judicial Review

The State, along with the DPP, contended that the grant of judicial review should have been refused due to the availability of alternative remedies, as established precedent dictates that judicial review is not typically granted when such remedies exist [para. 52]. The State emphasized the importance of utilizing existing statutory schemes to address grievances, asserting that the pursuit of judicial review where alternative remedies are available is unjustified [para. 53]. Furthermore, the State argued that the High Court did not adequately address the jurisdiction of the District Court to modify a civil order under Section 115(7) or the potential for an appeal under Section 116 to address constitutional issues [para. 56]. 

Additionally, the State expressed concerns about the High Court’s potential to incentivize litigants to include constitutional challenges in their claims to bypass lower Courts and obtain a High Court hearing, highlighting the need for a thorough examination of why judicial review is pursued over alternative remedies [para. 58]. The State underscored the importance of determining the most appropriate forum for addressing legal issues and emphasized the jurisdictional roles of the District and Circuit Courts in matters concerning civil orders and custodial sentences under the 2006 Act [para. 61].

The amicus argued that the trial judge appropriately exercised its discretion in considering alternative remedies, emphasizing the significance of judicial review as a mechanism for upholding human rights under the Constitution. [para. 63] The amicus contended that there is no absolute requirement to exhaust all potential remedies before pursuing judicial review, as the exhaustion of alternative avenues is a matter of the Court’s discretion. [para. 63] Furthermore, the amicus asserted that the constitutional claim raised before the High Court could only be effectively adjudicated at that level, and any attempts to vary or appeal the order would involve multiple proceedings in different Courts. [para. 64] Additionally, the amicus highlighted relevant case law from other jurisdictions, underscoring the importance of clarity and precision in preventive orders to ensure that individuals subject to such orders understand their obligations clearly [para. 65].

The Applicant did not make any submissions directed towards the specific issue of the existence of alternative remedies, instead, he repeated his view that these were orders that transgressed upon his rights and were not permitted under the law and the constitution. [para 66]

The Court of Appeal first addressed the State’s argument that the Applicant had alternative remedies available, including the right to apply to vary the civil order, appeal to the Circuit Court, and appeal against his criminal conviction. The Court rejected the notion that the Applicant should be required to exhaust all these remedies before challenging the civil order through judicial review. It emphasized that forcing individuals to risk arrest and conviction before challenging a civil order would be illogical and unjust, particularly when the order could potentially criminalize otherwise lawful behavior. [para. 67-68] 

Regarding the adequacy of the alternative remedies, the Court of Appeal noted that while the State argued that the Circuit Court could have ruled on the vires issue, the circumstances of the Applicant’s case made this argument less compelling. The Trial Court’s assessment, although using the term “questionable,” was seen as a reasonable consideration of the inadequacy of the Circuit Court appeal in addressing the constitutional and vires issues raised by the Applicant. The Court stressed that the decision to grant judicial review should be based on the totality of the circumstances and the need for a just solution, rather than a strict requirement to exhaust all possible remedies. [para. 69-77]

Additionally, the Court of Appeal addressed the State’s criticism regarding the failure to apply to vary the order immediately after it was issued. It clarified that the circumstances, including the lack of a stay on the order and the Applicant’s subsequent arrest, made such an application practically impossible. The Court emphasized the responsibility of the State, as the moving party in quasi-criminal proceedings, to ensure that any order leading to a criminal sanction is within the Court’s jurisdiction. This factor, among others, was considered in determining the propriety of granting judicial review in this case. [para. 79-80]

The Court further addressed the State’s argument that the Applicant could have challenged the civil order through an appeal or application to vary before being arrested for breaching it. The Court rejected this argument, noting that unlike in criminal appeals where there is an automatic stay on the enforcement of the order, there is no such stay in civil orders under the 2006 Act. This lack of stay meant that the Applicant had no opportunity to challenge the order before being subject to its implementation, which could potentially criminalize otherwise lawful behavior. [para. 81-86]

The Court of Appeal also rejected the State’s contention that the Applicant’s actions and statements after the civil order was made, including his refusal to abide by its restrictions, should disentitle him from challenging the order through judicial review. It emphasized that while the Applicant’s belief that the order violated his rights did not give him the right to violate the order, it also did not preclude him from challenging the order through legal means. The Court highlighted the importance of allowing the Applicant to challenge the order, particularly given the vagueness of certain aspects of the order and the circumstances of his arrest for breaching it.[para. 87-88] Furthermore, the Court noted that the Applicant’s challenge in the judicial review proceedings focused on the legality of the order itself, including issues related to constitutional rights and the constitutionality of the legislation. Such challenges are typically addressed through judicial review rather than through an appeal, which is a full rehearing of the case. The Court concluded that certiorari may be an appropriate remedy in this case, considering that the civil order effectively created a criminal offense for the Applicant. [para. 89-90]

The Court of Appeal emphasized the crucial difference between seeking a variation or appealing a civil order and challenging it through judicial review. It noted that without quashing the order through judicial review, the Applicant would remain at risk of conviction for an order ultimately found to be ultra vires. Even if successful on appeal, he would still be liable for breaching the original order, highlighting a significant interpretation of the Act’s construction. [para. 91] Additionally, the Court addressed the uniqueness of this case, being the first to address a civil order prohibiting anti-social behavior, particularly in the context of freedom of expression. It stressed the importance of the Court’s discretion to hear such challenges, given the potential impact on constitutional rights and the lack of previous legal guidance on such orders. [para. 92-93]

The Court of Appeal also rejected the State’s argument that the Applicant could have raised all his points through the statutory appeal process, noting that the circumstances of this case warranted a different approach. It highlighted the lack of legal representation for the Applicant during the initial proceedings and the exceptional nature of the case, justifying the trial judge’s decision to allow a challenge through judicial review [para. 94-96]. In conclusion, the Court deemed this case truly exceptional, given its novelty and the absence of legal guidance during the initial proceedings. It affirmed that the Applicant’s challenge through judicial review was appropriate and necessary to address the legality of the wide-reaching civil order, which effectively constituted an individualized criminal prohibition [para. 97].

On the issue of certainty

The State contested the Trial Court’s finding regarding legal certainty in the Applicant’s civil order, arguing that the Trial Court never indicated a lack of clarity regarding the prohibited behavior. The State also contended that the Applicant did not challenge the terms of the civil order directly but focused on the arbitrariness of the legislative provision under which he was charged. However, the Court of Appeal found that the Applicant’s submissions to the High Court addressed the civil order, convictions, and the constitutionality of the relevant sections, indicating a challenge to the civil order itself. [para. 98-100]

The Court of Appeal emphasized the need to strictly construe individualized criminal provisions like the civil order in question. It stated that any ambiguity must be resolved in favor of the person subject to the order and that the starting point should be the plain and ordinary meaning of the words in the order. [para. 101] The Court of Appeal ultimately found the civil order to violate the principle of legal certainty on several grounds. First, it found that the description of the prohibited area within Wexford Town was vague and undefined, lacking clarity on its boundaries. Second, the order appeared to prohibit all forms of public speaking, including indoors, without clear delineation. Third, the phrase “public speaking” itself was deemed imprecise. Fourth, the conjunction of “public speaking and recording” was unclear, as it was uncertain what types of recording were prohibited. Finally, the lack of clarity extended to whether recording and subsequent broadcasting on social media were included in the prohibition [para. 116, A-E]. 

On the issue of Proportionality 

The Court of Appeal noted that while the issue of proportionality was raised by the DPP, it was deemed unnecessary to address given the findings made previously. The DPP expressed concern that the High Court went beyond the scope of judicial review by re-analyzing the application of legislation during the criminal trial. Specifically, the DPP highlighted a statement by the trial judge regarding the proportionality of the sentence imposed. However, the Court of Appeal agreed with the DPP that the issue of proportionality of the sentence was not raised in the judicial review and should not have been considered as a standalone ground for quashing the convictions. The Court of Appeal emphasized that the issue of proportionality of a sentence is typically a matter for appeal, and while it could be subject to judicial review in exceptional circumstances, those were not present in this case [para. 117-119].

The Applicant presented his perspective on the issue of civil orders respectfully but firmly, expressing his belief in their unconstitutionality. However, since he did not file a Respondent’s notice, there was no cross-appeal on other issues. The Court of Appeal highlighted the presumption of constitutionality applied to statutes and the rule of self-restraint, emphasizing that individuals must obey laws unless they are set aside by a Court. While the Applicant succeeded in quashing the civil order and related criminal convictions, the Court refrained from expressing views on the constitutionality of the legislation, maintaining that the more appropriate approach is to withhold such judgments. 

Consequently, the Court of Appeal dismissed the appeal brought by the State and the DPP, affirming the Trial Court’s discretion to hear the judicial review and the correctness of quashing the Civil Order and associated convictions [para. 121-125].

---