High Court denies leave to challenge vagueness of charge of “being unlawfully at large”

About this case:

• Judgment:
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Prior to the matters complained of the application seek judicial review, the applicant Patrick McNamee had amassed a total of 164 convictions for various offences.

He claimed that leave should be granted to prohibit his pending trial on the grounds of a lack of notice as to the requirements of the criminal law, specifically as to what is meant by keeping the peace and being of good behaviour.

While serving a sentence for robbery, the applicant had been given temporary release from Mountjoy Prison pursuant to s. 2 of the Criminal Justice Act 1960.

A condition of temporary release, pursuant to rule 3(a) of the Prisoners (Temporary Release) Rules 2004 (S.I. No. 680 of 2004), is “that the person shall keep the peace and be of good behaviour during the period of his or her release”. On release, the applicant acknowledged the conditions in writing and in particular that they had been explained to him.

Six days after his release, the applicant was found trespassing on residential property, and on being cautioned stated that “I wasn’t doing any burglaries, I wasn’t doing any of that”.

The applicant was charged under s. 6 of the Criminal Justice Act 1960, which makes it an offence to be unlawfully at large, which includes being on temporary release where a condition to which release has been made subject has been broken.

He sought leave to apply for judicial review for reliefs of prohibition or injunction, and declarations that the charge of being unlawfully at large, by way of breaching a condition of temporary release to be of good behaviour, is “so vague and uncertain as to be incapable of a trial in due course of law”, or is not known to the law, or that rule 3(a) of the 2004 rules is ultra vires or incompatible with the ECHR.

The judge first considered the test for leave, citing G. v. D.P.P. 1 I.R. 374 at 377 to 378 and noting that the criteria could be summarised as being:

(i) That the applicant “has a sufficient interest in the matter to which the application relates”

(ii) That “an arguable case in law can be made that the applicant is entitled to the relief which he seeks”;

(iii) That the application has been made within the appropriate time limit, or that the Court is satisfied that it should extend the time limit in accordance with the applicable rules of court or legislation;

(iv) That “the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure”

(v) That there are no other grounds to warrant refusal of leave.

In relation to the allegation of vagueness, the judge noted that there had been a number of applications on this ground, which had proceeded unsuccessfully to a full hearing.

The judge observed that some fundamental concepts of criminal law were general and undefined, because “the alternative approach, extreme specificity in terms of offences, is at best simply to chase an illusion and at worst, to create huge omissions and anomalies that simply do not arise with the use of more general phrases.”

Furthermore, he observed that “the addiction to complete specificity can only be pandered to, not satisfied. The meaning of words depends on other words, and so on ad infinitum.”

Indeed, the European Court of Human Rights jurisprudence, as understood by UK courts, acknowledged that “absolute certainty is unattainable, and might entail excessive rigidity … some degree of vagueness is inevitable” (R. v. Rimmington 1 A.C. 459).

The judge noted that it was important that a firm approach be taken to applications on the grounds of vagueness, as if leave for prohibition is granted on the grounds of unconstitutional vagueness of a statutory provision, this would amount to a de facto suspension of that provision, thereby rendering the offence unenforceable for the time being contrary to the obligation imposed on judges to “uphold” the laws of the State.

The judge then considered if the case was premature. It was noted that the court is required to consider constitutional issues last, and that in the context of a challenge such as the present one, the applicant must generally first submit to the criminal process.

While there could be exceptions, the judge did not consider this to be such an exceptional case.

Further, the grounding affidavit had not been sworn by the applicant, but had been sworn by his solicitor. The judge noted that there were established reasons why an applicant must swear an affidavit himself, as analysed in Elkhabir v. Medical Council IEHC 93, and that he would refuse the application on this ground.

The judge also noted the duty of applicants to engage with the facts. In this case, the applicant had not explained what his account to the District Court was to be, and why he was present in someone else’s property. As he had not engaged with the facts, he was not entitled to grant of leave.

In relation to the vagueness argument again, the judge further noted that:

“Even assuming, for the sake of argument, that there could be behaviour at the margins of the definition of the offence where an issue could arise as to what constituted “keep the peace and be of good behaviour”, there can be no doubt but that the commission of or attempted criminal offences would constitute a non-compliance with this requirement.”

Therefore, the applicant did not have standing to complain about a vagueness or lack of notice in relation to behaviour which was not only clearly contemplated by the offence but indeed was a central case of that offence.

Another way of viewing this aspect was that the point being advanced was not arguable because the core of the offence was not unconstitutionally vague, and there were no arguable grounds for contending otherwise. Therefore the offence itself was not unconstitutional.

The judge concluded that:

“A vagueness complaint can only be made if the person making that complaint is not in fact on reasonable notice of the sort of behaviour prohibited by the offence. If the applicant were to have gone on affidavit to say that he was not aware that trespass in circumstances giving rise to a reasonable inference that it was for the purposes of burglary was itself a breach of the conditions of temporary release, that aspect might have been different – assuming of course that the court were to accept, even at the level of arguability, such a ludicrous hypothesis.”

The judge therefore dismissed the application for leave.