High Court judge claims ‘cottage industry’ grown around lawyers challenging ‘vague’ offences

Patrick McNamee, a man with 164 previous convictions, is charged with being unlawfully at large, by way of breaching a condition of temporary release from Mountjoy Prison that he be of good behaviour.

Some six days after his release from prison, in December 2015, gardaí allege that Mr McNamee was witnessed trespassing on residential property. He is said to have replied after caution: “I wasn’t doing any burglaries, I wasn’t doing any of that”.

His lawyers sought to prohibit his prosecution on grounds that the charge of being unlawfully at large, by way of breaching a condition of his temporary release, was “so vague and uncertain as to be incapable of a trial in due course in law”. The High Court refused leave to bring judicial review proceedings last May.

In the Court of Appeal yesterday, it was argued on Mr McNamee’s behalf that “not being of good behaviour” was too vague, not an offence known to Irish law, and could cover table manners or spitting in public, for example.

Counsel for Mr McNamee, Patrick McGrath SC, submitted that his client was effectively charged with not being of good behaviour, particularised as an attempt to commit a burglary.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the three-judge Court of Appeal would reserve its judgment.

In the High Court, Mr Justice Richard Humphries said a “minor cottage industry appears to have grown up around the issue of allegations of vagueness” in criminal law.

Mr Justice Humphries said the “war on vagueness” that seems to be at issue in the “current wave of challenges” to definitions of offences has the potential for serious negative effects on the integrity of the criminal justice system.

“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. Feeding this addiction can only make the problem significantly worse.”

Excessive specificity will create significant gaps in the protection for injured parties and society, he said.

“Across the criminal law, fundamental concepts on which our system of justice rests are, of necessity, general and undefined. Conceptions such as intention, reckless, reasonableness, lawful excuse, the distinction between major and minor offences, seriousness in the context of the level of harm; such examples could be multiplied indefinitely.”

“Many of the core concepts of criminal law are only capable of partial, if any, definition, and many of them are of necessity couched in general terms.”

Mr Justice Humprhies said a “firm approach” must be taken to these application because “this cottage industry is based on a false premise”. If leave for prohibition was granted on grounds of unconstitutional vagueness of a statute, it would de facto suspend the statute, allowing others to obtain “stays on prosecution, thereby rendering the offence unenforceable”.

He refused leave to bring judicial review proceedings.

Mr McNamee was not in court for the appeal.

Ruaidhrí Giblin, Ireland International News Agency Ltd.