Case Summary and Outcome

The High Court of Ireland has ruled that orders made by the District Court under sections 115 and 117 of the 2006 Criminal Justice Act, which are concerned with anti-social behaviour, went beyond the legal authority of the District Court and should be quashed. The case concerned the Applicant’s preaching and/or public speaking in Wexford Town, which led to the imposition of a civil order by the District Court under section 115 of the Criminal Justice Act. The order barred him from “engaging in public speaking and recording anywhere within the environs of Wexford Town… at any time.” The Court noted that the anti-social behaviour order was disproportionate and infringed upon the Applicant’s rights to equality before the law and to freely communicate due to the failure to tailor the civil order to show the recurrence of the offending behaviour coupled with the broad definition of anti-social behaviour.

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Facts

Between June and July 2020, the applicant, Stephen Tallon, repeatedly practiced preaching and public speaking in Wexford Town. The national police service of Ireland (hereinafter referred to as the “Police”) considered his behaviour 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 sent five Behaviour Warnings to the applicant in accordance with subsection 114(1) of the Criminal Justice Act, 2006.

Upon failure to comply with the warnings, the District Court issued a civil order against the applicant on August 31, 2020, after receiving a request from a senior member of the Police and pursuant to s. 115 of the Criminal Justice Act, 2006, prohibiting him from “engaging in public speaking … anywhere within the environs of Wexford Town, including North Main Street Bullring and Selksker Square, at any time.” The evidence submitted before the District Court included testimonies of six police officers and nine civilian witnesses who testified that his preaching was homophobic, anti-religious, and racist in nature and “was liable to cause … retaliatory behaviour including attacks on the applicant’s person.”

The applicant made an appearance in front of the District Court again, on account of four separate charges, including two for breaching the previously passed civil order without “reasonable excuse” in accordance with s. 117 of the 2006 Act, which considers a breach of the order to constitute a criminal offence. After the issuance of the said order, the applicant left the court and returned to the Bull Ring to engage in his public speaking. The other two charges centred on the applicant’s attendance at the same location with a sign that was deemed to violate Sections 7 and 8 of the Criminal Justice (Public Order) Act of 1994, and the signs were referred to 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 took place on August 31, 2020, and the subsequent one on September 19, 2020.

On November 2, 2020, the applicant was tried based on the evidence presented and found guilty on all counts in accordance with s. 117 (1) (b), “with the offences under s. 7 and s.8 of the Criminal Justice (Public Order) 1994 Act,” and sentenced to eight months of imprisonment.

The applicant filed an appeal in the Circuit Court, where the appeal was stayed pending judicial review of the matter.

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Decision Overview

Justice Siobhán Phelan delivered the decision.

The key issues before the Court were 1) whether the civil order exceeds the jurisdiction vested in the District Court under section 115 of the 2006 Criminal Justice Act, and 2) whether section 115 is unconstitutional since it permits an impermissible interference with constitutional rights, particularly the rights to freedom of expression and equality.

The relevant legal rules here are sections 115 and 117 of the Criminal Justice Act, 2006 and article 40.6.1 of the Constitution.

Section 115

“(1) On application made in accordance with this section, the District Court may make an order (a “civil order”) prohibiting the respondent from doing anything specified in the order if the court is satisfied 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.

…”.

Section 117

“(1) A person commits an offence who—

(a) ….

(b) without reasonable excuse, does not comply with a civil order to which the person is subject.

….”.

Article 40.6.1 of the Constitution

“1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality: –

i      The right of the citizens to express freely their convictions and opinions.

…

ii      The right of the citizens to assemble peaceably and without arms.

…

iii     The right of the citizens to form associations and unions.

…”.

On the one hand, the main argument submitted by the applicant was that the order passed cannot be deemed “necessary” since it extends beyond what “is required to ensure no continuation of anti-social behaviour in that the civil order made prohibits any form of public speaking.” [para. 32] The applicant contends that the civil order failed to be sufficiently precise in identifying the prohibited actions in order for the applicant to comply, which was demonstrated by prosecuting the applicant for singing a hymn even though singing was not identified in the order, resulting in creating an arbitrary and vague offence. The applicant also argued that the civil order “criminalises” expression as it does not provide clarity for interpreting what can be classified as anti-social. The applicant refers to his rights under the constitution, which guarantee freedom of speech and expression (public speaking and signing), and further require “equality of treatment before the law.” [para. 32]

The applicant further argued that any civil order issued under section 115 that forbids anti-social behaviour must be interpreted as prohibiting behaviour of the same kind that has been determined to be anti-social and cannot properly extend to activities that people are entitled to under the Constitution but which have not themselves been found to be anti-social. Emphasis was also laid on the fact that although constitutional rights are subject to limitations, interference with such rights should adhere to the principle of proportionality, which requires that the limitation extends to what is necessary to ensure that anti-social behaviour does not continue. And this was not the case with the applicant who endured “an absolute prohibition on any form of public speaking, albeit that it did not extend to social media or written communication.” [para. 33] Therefore, and given that section 115 was broadly interpreted as “providing for such a far-reaching interference with rights, the order should be rendered incompatible with the Constitution.

On the other hand, the respondents argued that the applicant’s behaviour showcased that he did not intend to comply with the civil order by any possible means. Further emphasis was placed on the manner of the applicant’s speech and the Court was requested to consider the transcript hearing of August 31, 2020. The respondents also submitted that “it is non-compliance with the terms of this order which constitutes an offence, not necessarily the recurrence of anti-social behaviour.” [para. 45] To the effect of sections 115 and 117, the respondents submitted that the District Court was vested with “statutory jurisdiction to injunct behaviour and render the breach of the injunction order a criminal offence.” [para. 46] In light of the applicant’s right to freedom of expression, the respondents contended that this “right is not an unlimited or absolute right.” and the interference of the civil order with such a right was a “legitimate constraint.” [para. 48] The respondents referred to Murphy v. IRTC  [1999] 1 IR 12 to indicate that the order issued by the District Court was constitutionally valid as it was confined to Wexford Town and to the form of public speaking.

Judge Phelan has indicated that there is no “lack of candour in the presentation of relevant facts and circumstances” [para. 60] in a manner that would otherwise support the High Court’s decision to decline to consider the merits of the judicial review case. The Court has identified the substance under various parameters and reasoned in accordance thereby.

A Broad but not Unfettered Power 

The Court construed that the District Court Judge did not exceed the jurisdiction which necessitates the determination of whether the “statutory provisions which vest jurisdiction in the District Judge withstand constitutional scrutiny.” [para. 95] The Court further stated that even if the requirements of the Court’s statutory limits are met and the procedures are complied with, the court is not working within its jurisdiction in the case if the person who is accused in this case is also denied any of his fundamental rights to justice during a criminal trial, the case referred to the State (Healy) v. Donoghue [1976] IR 325.

The Court noted the significance of the fact that the “anti-social behaviour extends to non-criminal activity” [para. 101] due to the involvement of the Police and “potentially the criminal process in an area which is otherwise the preserve of the civil process.” [para. 101] The Court in lieu of the open definition of “anti-social behaviour” in combination with the lower evidentiary standards in the requirement of the application process potentially gives rise to “an unwarranted interference with individual rights inhering in people, such as the Applicant, whose views or behaviours are unpopular and even distasteful or discriminatory but not criminal.” [para. 104] The Court further states that such behaviours can constitute a civil wrong in some cases and not a wrong at all in law in other cases. And thus, the Court construed that for the District Court in exercising jurisdiction under Part 11 of the 2006 Act, due care must be taken to ensure that the broad authority granted to the latter is used within the boundaries of a constitutional interpretation of the Act.

Due Course of Law

Judge Phelan referred to the Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129 at p.152 of the report, cited in King v. AG [1981] I.R. 233, 241, which states that the expression “due course of law” demands a fair and just balance between the enjoyment of individual liberties and the demands of an ordered society.

The provisions of the civil order established by reference to the actual evidence presented before the District Court that led to the issuing of the Order do not, in the Court’s opinion, satisfy the standards of legal certainty inherent in the protection of the applicant’s due process rights. The provisions of the civil order cover behaviour “found to be anti-social to encompass behaviour which is not legally objectionable.” [para. 109] The Court further pointed out that an order “tailored to the behaviour” [para. 109] addressed in the evidence could have specifically identified the constraints of what can be regarded to constitute anti-social behaviour.

Judge Phelan also noted that, in light of the circumstances as proved by the evidence in this case, the civil order in this instance does not adhere to these requirements. Singing was not included in the District Court’s testimony, which focused instead on abusive, loud, relentless, and violent remarks. In addition to outlawing loud, persistent, aggressive, and insulting speech, the civil order goes considerably further and forbids any public speaking. The Court ruled that it does not believe the provisions of the civil order satisfied the standards of “legal certainty inherent in the protection of the applicant’s due process.” [para. 109] The Court further noted that the terms of the civil order are “impermissibly vague and uncertain.”  In addition, the offence as construed by the civil order lacked the specificity to be deemed a criminal offence and potentially be used against actions that have not been determined to be anti-social on evidence presented before the District Court.

Principle of Equality before the Law inherent in the concept of Justice

Judge Phelan highlighted that a “broadly drawn civil order” [para. 111] towards the criminalisation of the behaviour in a way not substantiated and presented before a court allows the violation of justice through the infringement of the right to equality before the law, as provisioned under Article 40.1 by way of which the civil order extends the reach of the criminal law to the applicant and not others who are engaging in a similar manner, thereby interfering with the rights of the applicant.

On the breach of the civil order, the Court also construed that “without there necessarily being any recurrence of precisely the same behaviour that has been adjudged as anti-social offends concepts of justice recognised in decisions of the Superior Courts in cases such as King v. AG, where the previous findings of a court as to the character or conduct of the applicant were identified as features which require meticulous care to ensure that a person is not convicted except upon clear and unmistakable evidence that he has committed the particular offence charged against him and without the requirement for satisfactory evidence of criminal wrongdoing .” [para. 112]

Restriction on Fundamental Right to Communicate and the Proportionality Test

Judge Phelan ruled that the civil order in this case prohibits speech and imposes a restriction on it. The Court refers to Murphy v. IRTC [1999] 1 IR 12 where “the right to communicate and to express an opinion is a fundamental right (at p. 24).” [para. 116] The Court further highlighted that Article 40.3 and Article 40.6 which stipulates States’s obligation to defend and respect rights of individuals including “rights to freedom of expression of convictions and opinions.”

The Court further added that the sentence for imprisonment (sanction of detention) for breaching the civil order poses potential challenges to the “principle of proportionality which requires that the penalty be proportionate to the circumstances of the offence.” [Para 122] The Court ruled that no evidence leads to the notion that the applicant’s behaviour actually caused an offence to a passer-by or any other individuals and “he was prosecuted for breach of the civil order simpliciter,” [para. 122] which go beyond the needed requirement and thereby stands to fail a proportionality test [para. 123]

The Court is therefore convinced that the civil order is overbroad and was drafted in violation of the District Judge’s authority granted under the 2006 Act as a result.

Whether the Power is Hopelessly Broad

According to Judge Phelan, the civil order was not properly made in accordance with section 115(1)(b) or in accordance with the requirements of proportionality because it interferes excessively with the applicant’s constitutionally protected rights, such as his due process rights (given their ambiguity and overreach) and his freedom of opinions and speech. The Court also noted that the civil order made does not have “the precision and the clarity required to create a criminal offence and is overly broad in its terms by criminalising arbitrarily and vaguely behaviour when carried out by the applicant which is otherwise lawful.” [para. 130] The Court is satisfied that the civil order was exercised in a manner that did not discern the jurisdictional parameters of the District Court which consequently resulted in an “unconstitutional interference with the applicant’s rights.” [para. 131]

In conclusion, Judge Phelan noted that the “standards of fairness inherent in the concepts of constitutional justice and equality before the law,” were not fulfilled when a civil order under section 115 has been framed in a way that goes beyond the scope of the harm of anti-social behaviour as evidenced before the District Court, which has also infringed upon on the “legal and constitutionally protected areas of human activity.” [para. 136]

The Court finally ruled that the District Judge exceeded his jurisdiction as vested under Part 11 of the 2006 Act. Similarly, as the order was not properly constructed, it resulted in “a disproportionate interference with the applicant’s rights including his right to equality before the law and his right to freely communicate.” [para. 136]

Accordingly, the Court held that the orders, which were made under sections 115 and 117 of the 2006 Act, are “ultra vires and should be quashed.” [para. 137]

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