Mr Justice Richard Humphreys in the High Court has denied an application for leave to seek judicial review challenging the rules of the Prisoners (Temporary Release) Rules 2004 (S.I. No. 680 of 2004). The rules require that the person shall keep the peace and be of good behaviour during the period of his or her release. The Court found that a failure by the legislation to define what was meant by this did not in itself mean the law should be declared ultra vires. The Court held that a degree of vagueness in the law is necessary and unavoidable, as the alternative approach of extreme specificity would result in the creation of huge omissions and anomalies within the law, and ‘gaps in the protection for injured parties and society’.
By way of background the applicant, Mr Patrick McNamee had been granted temporary release. He had been serving a four year term for a burglary offence. Gardai alleged that Mr McNamee was witnessed trespassing on residential property. He was arrested on suspicion of an offence under s. 11 of the Criminal Justice (Public Order) Act 1994 and subsequently charged with an offence contrary to s. 6 of the Criminal Justice Act 1960, which makes it an offence to be unlawfully at large. Counsel for Mr McNamee argued 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’ and therefore the rule is ultra vires and/or incompatible with the European Convention on Human Rights. Leave was sought to prohibit his pending trial on grounds of a lack of notice provided by the law as to the meaning of keeping the peace and being of good behaviour.
The Court considered the effect of granting leave for prohibition on the public interest, holding that to grant the application would amount to a de facto suspension of the provision under challenge, rendering the offence unenforceable in the interim period for others charged with the same. Holding that “the court must be slow to accept any approach which involves putting elements of the criminal law of the State into suspension”, it was stated that the court should only intervene in exceptional circumstances to prohibit a criminal trial, so as to avoid the opening up of an avenue for the “delay or frustration of the criminal process”.
Lastly, the court considered that even if doubt were to arise relating to the scope of the prisoner rules as to what constitutes ‘keeping the peace and being of good behaviour’, there can be no doubt that the attempt or commission of criminal offences cannot be deemed compliant with this requirement. A complaint as to unconstitutional vagueness can only be relevant where the applicant cannot be deemed to have been on reasonable notice of the sort of behaviour prohibited, necessarily excluding the commission of a criminal offence, as occurred here.
The full judgement is available here.