High Court dismisses judicial review application where applicant claims lack of notice regarding criminal law requirements for temporary release. Applicant had prior convictions and acknowledged conditions. Court finds applicant on notice and lacks locus standi.

Neutral Citation: [2016] IEHC 286

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 110 J.R.]

BETWEEN

PATRICK MCNAMEE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY

GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of May, 2016

1. Prior to the matters complained of in this application for leave to seek judicial review, the applicant had amassed a total of 164

convictions for various offences. His most recent relevant conviction was on 19th June, 2014, when he was sentenced to four and a

half years’ imprisonment with 12 months suspended for the offences of robbery, attempted robbery, burglary and the unauthorised

taking of a motor vehicle. He now claims 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.

2. On 17th December, 2015, while serving his sentence for the conviction recorded in June, 2014, the applicant was 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 that release, the applicant acknowledged the conditions in writing and in

particular that they had been explained to him.

3. At approximately 11 a.m. on 23rd December, 2015, some six days after his release, Gardaí allege that the applicant was witnessed

trespassing on residential property. He was arrested on suspicion of an offence contrary to 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, which includes being on temporary release where a condition to which release has been made subject has been

broken. According to the précis of evidence exhibited, he is said to have replied after caution “I wasn’t doing any burglaries, I wasn’t

doing any of that”.

4. Bail was refused by the District Court, and subsequently by the High Court (Butler J.). Bail was then subsequently re-applied for,

and granted.

5. The applicant now seeks leave to apply for judicial review for reliefs by way 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. I directed that the application be made on notice and I have now heard both from counsel for

the applicant and from Ms. Grainne Mullan B.L. for the respondents.

The test for leave in G. v. D.P.P.

6. In G. v. D.P.P. [1994] 1 I.R. 374 at 377 to 378, Finlay C.J. set out the criteria for the grant of an ex parte application for leave. In

some previous leave decisions (e.g., M.McK. v. Minister for Justice and Equality (Unreported, High Court, 25th April, 2016)), I have

attempted to summarise these requirements. As developed by subsequent changes to the rules of court, and subsequent caselaw,

the criteria can be summarised as follows:

(i) That the applicant “has a sufficient interest in the matter to which the application relates” (p. 377);

(ii) That “an arguable case in law can be made that the applicant is entitled to the relief which he seeks” (p. 378) on the

basis of facts averred to by the applicant, albeit that the court can also have regard at least to uncontradicted or reliable

evidence adduced by a respondent who has been put on notice of the application (Joel v. D.P.P. [2012] IEHC 295

(Unreported, High Court, 9th July, 2012) per Charleton J. at para. 13); Gilligan v. Governor of Portlaoise Prison

(Unreported, High Court, McKechnie J., 12th April, 2001). Of course, in particular circumstances a higher threshold than

arguability applies, such as where legislation requires substantial grounds, or where the grant of leave would itself be likely

to determine the event (Agrama v. Minister for Justice and Equality [2016] IECA 72 (Unreported, Court of Appeal, 22nd

February 2016) per Birmingham J. at para. 32);

(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” (p. 378).

(v) That there are no other grounds to warrant refusal of leave. “These conditions or proofs are not intended to be

exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary

remedy which may well include, amongst other things, consideration of whether the matter concerned is one of

importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte

application.” (p. 378).

7. It is now therefore necessary to assess the application under the headings that are in issue in this case, particularly standing,

arguability, alternative remedies and discretion.

Vagueness allegations – a new cottage industry

8. Since the decisions of the High Court (Hogan J.) in Douglas v. D.P.P. [2013] 1 I.R. 510 and McInerney & Curtis v. D.P.P. [2014] 1

I.R. 536, a minor cottage industry appears to have grown up around the issue of allegations of vagueness in the substantive criminal

law.

9. A number of such applications have proceeded unsuccessfully to a full hearing (See Cox v. D.P.P. [2015] IEHC 642 (Unreported,

High Court, McDermott J., 20th October, 2015); and P.P. v. D.P.P. (Unreported, High Court, Moriarty J., not yet circulated, October,

2015), but notwithstanding this, such allegations are now appearing with noticeable regularity. I recently set out reasons for rejecting

an application for leave to pursue one such complaint in Casey v. D.P.P. [2015] IEHC 824 (Unreported, High Court, 21st December,

2015).

10. 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, with a very clear core

meaning and a penumbra of debate to be teased out on a case-by-case basis.

11. That is, as it should be, and indeed as it must be, 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.

12. To that extent, the “war on vagueness” that seems to be at issue in the current wave of challenges to the substantive definition

of offences has the potential for serious negative effects on the integrity of the criminal justice system. Excessive specificity will

create significant gaps in the protection for injured parties and society. That fact is more or less acknowledged in the English Law

Commission Paper, Binding Over (Law Com No. 222) (para. 4.12.), on which the applicant relies. The policy choice as to where to

strike the balance between specificity and inclusion is primarily a legislative one, a point also discussed by the English Law

Commission.

13. Furthermore, 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. The Strasbourg jurisprudence, as

understood by the U.K. courts, accepts that “absolute certainty is unattainable, and might entail excessive rigidity … some degree of

vagueness is inevitable” (R. v. Rimmington [2006] 1 A.C. 459 per Lord Bingham at p. 483, para. 35, citing Sunday Times v. U.K.

(Application no. 6538/74), European Court of Human Rights, 26th April, 1979 (1979) 2 E.H.R.R. 245, para. 49, G. v. Federal Republic of

Germany (1989) 60 D.R. 256 at p. 261, para. 1, and S.W. v. U.K. (Application no. 20166/92), European Court of Human Rights, 5th

December, 1995 (1995) 21 E.H.R.R. 363 at para. 34).

14. Douglas and McInerney & Curtis were exceptional cases dealing with extremely vague offences reflecting the social mores of 80

years ago, imposed in the shifting area of community standards of sexual conduct. They are outlying decisions in a system of criminal

justice that is necessarily predicated on general concepts. The fact that a concept is general does not make it unconstitutionally or

unfairly vague. The exceptional nature of those cases cannot be generalised into a broadside attack on a wider set of concepts or

offences in our criminal code.

15. It is particularly important that a firm approach be taken to such applications at the leave stage, not only because this cottage

industry is based on a false premise for the reason I have indicated, but also, as I pointed out in Casey (at para. 11), if leave for

prohibition is granted on the grounds of unconstitutional vagueness of a statutory provision, this amounts to a de facto suspension of

that provision, allowing any others charged with such an offence to obtain similar leave orders and stays on prosecution, thereby

rendering the offence unenforceable for the time being contrary to the obligation imposed on judges to “uphold”, subject to the

Constitution, the laws of the State pursuant to Article 34.6.1° of the Constitution. The court must be slow to accept any approach

which involves putting elements of the criminal law of the State into suspension. Such orders can of course be granted in appropriate

circumstances, but judicial restraint must be calibrated to a high level in such a situation.

Is the application premature?

16. As indicated by Denham J. (as she then was) (Murray C.J., Geoghegan, Fennelly, and Macken JJ. concurring) in Gilligan v. Special

Criminal Court [2006] 2 I.R. 389 at 407, the court is required to “reach constitutional issues last”. That principle is a specific instance

of the broader principle that the court should “reach public law issues last”. The same approach must apply to other similar public law

issues, such as relating to the validity of a statutory instrument, or the compatibility of a statutory or regulatory provision with the

ECHR. In the context of a challenge such as the present one, this means that the applicant must generally first submit to the criminal

process. If he is innocent, as he asserts, then presumably he will be acquitted, thereby removing the need to determine any wider

public law issues. If, on the other hand, he is convicted and such conviction is affirmed on appeal, the public law challenge to the

offence and the 2004 rules will be able to proceed on the basis of clear facts as found in the course of those criminal proceedings.

17. Such a procedure is the only practical way to vindicate the obligation of the court to reach constitutional and public law issues

last. As further discussed in Casey, this is an approach that reflects wider approaches in the common law world, see e.g., Alliance for

Water Efficiency v. Fryer (US Court of Appeal for the Seventh Circuit No. 15-1206, 22nd December, 2015) (Easterbrook J.). To

proceed as Mr. Patrick McGrath, S.C. and Mr. Eoin Lawlor, B.L. suggest, in their very able argument on behalf of the applicant, could

be to decide on the validity of an instrument in circumstances where this could turn out to have been quite unnecessary on the facts

as ultimately found in the course of the criminal process, and therefore essentially a moot. The scheme of legality envisaged by the

Constitution does not envisage a situation whereby a duly enacted law can be struck down as a result of a moot.

18. Osmanovic v. D.P.P. [2006] 3 I.R. 504; [2006] IESC 50 (as followed in a number of cases such as by Laffoy J. in S.M. v. Ireland

(No. 2) [2007] 4 I.R. 369) provides some support on the face of it for the applicant, but in a judgment given today in North East Pylon

Pressure Campaign Ltd. v. An Bord Pleanála, I discuss in more detail why Osmanovic should not be regarded as stating a general rule,

and I would rely in the present application on the reasons there stated. In summary, those reasons include the following:-

(i) to determine an issue of validity prior to an exhaustion of other remedies would be contrary to the principle of reaching

constitutional and public law issues last;

(ii) to postpone such an issue until the finalisation of underlying proceedings would be a more economical use of judicial

resources, because of the significant possibility that the issue may be capable of being resolved in any event in the

course of that process, for example by an acquittal of an applicant;

(iii) facts as found in the course of the criminal process may deprive an applicant of standing to make particular

arguments, or render those arguments clearly unsustainable, thereby reducing, if not eliminating, the necessity for the

court to embark on what may be a quite theoretical investigation of the constitutionality of the legislation;

(iv) for the court to determine the validity of that legislation in a prohibition application prior to the full ascertainment of

the factual matrix in the course of the criminal process could, in many instances, amount to the determination of a moot

question;

(v) since Osmanovic was decided, the law on prohibition has moved on very significantly, and it has now been definitively

established that prohibition, at least in the criminal context, should not be granted save in “exceptional circumstances”

(see Kearns v. D.P.P. [2015] IESC 23 (Unreported, Supreme Court, 15th January, 2015) per Dunne J., (Denham C.J.,

Murray, Hardiman and O’Donnell JJ. concurring)). In M.L. v. D.P.P. [2015] IEHC 704 (Unreported, High Court, 13th

November, 2015) , Noonan J. stated that “only in exceptional circumstances will the court intervene to prohibit a criminal

trial” (para. 22);

(vi) this is not simply because matters of fairness can be dealt with by the trial judge, but is also important because the

criminal process impacts on the rights of third parties, particularly injured parties: see the observations of Kearns P. in

Coton v. D.P.P. [2015] IEHC 302 (Unreported, High Court, 21st May, 2015);

(vii) the criminal trial is a mechanism to vindicate the legal, constitutional, EU and ECHR rights of a victim of crime, the

strengthening of which rights has been a growing theme in recent legal developments, such as directive 2012/29/EU of

the European Parliament and of the Council of 25th October, 2012 establishing minimum standards on the rights, support

and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (victims’ directive), and which

rights include the positive rights arising from the State’s “obligation to conduct an effective prosecution” (Söderman v

Sweden (Application No. 5786/08) European Court of Human Rights, 12th November, 2013, para. 88); and that to allow a

criminal trial to be de-railed unnecessarily by judicial review, when the matter complained of either lacks merit or could be

dealt with more proportionately within the trial, creates the potential for such delay or interference with the criminal

process as to bring the performance of this obligation to victims into question;

(viii) if it is the case that an applicant can secure a postponement of his or her trial simply by challenging the

constitutionality of the relevant legislation, an avenue for the delay or frustration of the criminal process will have opened

up, because the practical implementation of the statute concerned would be put into suspension pending the

determination of that challenge;

(ix) the separation of powers requires the court to refrain from putting the constitutionality of legislation under scrutiny

unless it is necessary to do so; there are enough pressures on the parliamentary system without the courts creating an

unnecessary legislative emergency by bringing into being a situation where a statute may be struck down even though

there may be other ways to vindicate the legitimate rights and interests of a particular applicant.

19. As discussed in North East Pylon, it would be illogical in the extreme if the law was such that prohibition generally can only be

granted in exceptional circumstances, but that this approach of exceptionality did not apply if an applicant was seeking to challenge

the validity of legislation, and that in the latter case prohibition could be sought as a general rule as soon as imminent danger had

been demonstrated. Such an approach would fundamentally undermine the recent jurisprudence which has sought to emphasise the

preference for bringing a challenge at the conclusion of the process rather than to disrupt it midstream. It would, furthermore, put a

huge premium on seeking to challenge the constitutionality of legislation. This would be, in the language of Kennedy J. (dissenting) in

Luis v. United States 578 US (2016) (slip op. p. 17) “an approach that creates perverse incentives”.

20. I discuss the possibility of exceptional cases further in North East Pylon, and of course there can be such exceptions (such as

Damache v. D.P.P. [2012] 2 I.R. 266 per Denham C.J. at 273) but this is not such an exceptional case.

Should the application be refused because of the failure of the applicant to swear the grounding affidavit?

21. There are clearly established reasons why an applicant in judicial review proceedings must normally swear the grounding affidavit

himself (see analysis by Baker J. in Elkhabir v. Medical Council [2016] IEHC 93 (Unreported, High Court, 12th February, 2016)),

including the following which appear relevant in the present context:

(i) that is what O. 84 and form No. 14 in Appendix T require;

(ii) the court has an autonomous obligation to uphold the provisions of statutes or statutory instruments (see Article

34.6.1° of the Constitution) independently of how strongly an objection is pressed by a respondent;

(iii) the applicant’s solicitor’s affidavit is hearsay in essential respects;

(iv) a claim that the applicant has been prejudiced by vagueness of the offence must be made by him and not by

someone on his behalf;

(v) to grant leave on a hearsay affidavit in these circumstances would undermine the integrity of the hearing to be

ultimately conducted;

(vi) it is well established that an applicant must “engage with the facts” see further below); to do so he must personally

engage in a context such as this;

(vii) a respondent must have the right to apply for the cross-examination of a deponent. This right would be significantly

curtailed if not set at nought if the relevant witness were to hide behind a paid professional engaged on his behalf, or

indeed any other person.

22. I would refuse the application on this ground, in any event, because the grounding affidavit is sworn by the applicant’s solicitor.

The present case is not one of the exceptional instances where the general rule could properly be dispensed with (such as where the

facts deposed to and relied on in the proceedings are more properly within the knowledge of some person other than the applicant). I

will deal further below with the specific issue of an averment as to whether the applicant was on notice of the extent of his

obligations under the impugned provisions.

23. It is also notable, and can only reinforce my conclusion under this heading, that despite being on notice of an issue in relation to

the deponent of the grounding affidavit, the applicant took no steps to seek to put in an affidavit of his own.

Has the applicant failed to engage with the facts?

24. As referred to above, it is well established that an applicant in a prohibition application must “engage with the facts” per Hardiman

J. in Scully v. D.P.P. [2005] 1 I.R. 242 at 252; and per O’Donnell J. in Byrne v. D.P.P. [2011] 1 I.R. 346 at 352. The primary meaning of

this obligation is to show precisely how, on the facts, the applicant has been damnified by the issue complained of. This involves a

positive statement as to what the applicant’s case in fact is. The applicant has not informed me what his account to the District

Court will be as to whether, and if so why, he was present in someone else’s residential property six days after his release from

prison. Beyond having his solicitor deny guilt on his behalf, I am left in the dark as to what the defence's case actually is, and

whether it will be contended, for example, that his foray into another citizen’s domestic property was in pursuit of birdwatching rather

than burglary. Under those circumstances, the applicant has failed to engage with the facts to the extent necessary so as to warrant

the grant of leave.

Does the applicant lack locus standi if the act complained of goes to the core to the offence and not in any penumbra of

doubt?

25. I referred earlier to the fact that general concepts will have a core of clear meaning and may also have a penumbra of arguability

at the margins which may need to be teased out on a case by case basis. 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[ing] the peace

and be[ing] 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. Thus, a prisoner is put on notice of the need to comply with the criminal law of the State as a

central element of the conditions for release. If he or she then engages in criminal behaviour (as has been alleged here) there can be

no complaint about unconstitutional vagueness. The act alleged here is clearly covered by the offence. There is no relevant

vagueness for the purposes of this case.

26. The applicant does not have standing to complain about a vagueness or lack of notice in relation to behaviour which is not only

clearly contemplated by the offence but indeed is a central case of that offence.

27. Mr. Lawlor faintly attempted to suggest that the conduct by way of trespass alleged against the applicant was not necessarily

criminal in nature, but this is clearly contradicted by the wording of the charge sheet. The allegation is clearly one of criminal

trespass. This issue was not further pursued on behalf of the applicant in the light of that wording.

Is the offence invalid if elements of it are arguably vague even if its core meaning is not?

28. Another way of viewing this aspect is that the point being advanced is not arguable because the core of the offence is not

unconstitutionally vague, and there are no arguable grounds for contending otherwise. Therefore the offence itself is not

unconstitutional. If the applicant’s conduct was not such as to clearly engage the offence, he will presumably be acquitted. But even

if an element of an offence, or its application in particular circumstances, were to be held to be either unconstitutionally vague (or for

that matter, unconstitutional on any other basis), it does not follow that the whole offence must be struck down. To do so would not

serve the interests of justice, in particular the interest in prosecuting alleged offenders and protecting victims. As with the approach

of allowing premature challenges, discussed above, an approach which required an “all or nothing” attitude to constitutional validity

would fail to defend and vindicate the legal, constitutional, ECHR and EU rights of victims, contrary to the positive obligation on the

State to “conduct an effective prosecution” (Söderman v. Sweden at para. 88, cited above in connection with prematurity). Indeed,

given that substantive criminal law cannot be patched up retrospectively, a court must be acutely aware that to invalidate entire

offences could leave a gaping hole in the protection of vulnerable citizens. There is no obligation upon the court, upon finding an

aspect of a statutory provision constitutionally frail, to automatically declare the whole of the statutory provision void ab initio. The

justice of the matter demands consideration of alternatives reliefs.

29. In general, where an aspect only of an offence is found to be unconstitutional, or where it would be unconstitutional as applied in

certain circumstances and not others, the appropriate approach is to read down the provision rather than strike it down in its

entirety. In reading down the offence in a manner compatible with the Constitution and the ECHR, the court would be stating that

while the offence stands, it would not be constitutionally permissible to prosecute it in specified and limited circumstances. This may

also have relevance outside the field of criminal law. A good example of such an approach is the decision of the Supreme Court of

Canada in McDonald & Ors. v. Attorney General of Prince Edward Island [1997] 3 S.C.R. 3, where an overbroad statute was read

down by implying a qualification that it would not apply in certain circumstances. Hogan J. took such a not dissimilar approach in

McCabe v. Ireland, the Attorney General and the D.P.P. [2014] IEHC 435 (Unreported, High Court, 30th September, 2014) by holding,

not that the impugned Act was invalid, but that it would not be constitutional to give effect to a re-activated sentence unless a

particular condition identified had been met (albeit that on appeal the Court of Appeal found it possible to resolve the matter in a

different way which meant that it was not necessary to address these particular conclusions (McCabe v. Governor of Mountjoy Prison

& McCabe v. Ireland [2015] IECA 156 (Unreported, Court of Appeal, 22nd July, 2015) per Finlay Geoghegan J. (Irvine and Mahon JJ.

concurring) at para. 36). Another important example is the approach of Laffoy J. in S.M. v. Ireland (No. 2) [2004] I.R. 369 at 401,

where having found that a particular sentencing statute gave rise to unconstitutional discrimination (because the sentence for

assault on a male exceeded that for assault on a female), she did not strike down the statute (which would have left the offence

unpunishable), but rather declared that if the plaintiff were to be convicted and sentenced to a sentence that would have exceeded

that for an assault on a female, his rights would be infringed.

30. Proportionality has in more recent years taken centre stage in the public law context (see for example, Meadows v. Minister for

Justice, Equality and Law Reform [2010] 2 I.R. 701 (Murray C.J.(Denham and Fennelly JJ. concurring); and Mallak v. Minister for

Justice, Equality and Law Reform [2012] 3 I.R. 297 (Denham C.J. (Murray, Fennelly, O'Donnell and McKechnie JJ. concurring)) and it

would be disproportionate if the courts were to deal with complaints of statutory unconstitutionality in a broad-brush manner by

striking down provisions in their entirety merely because their application in a limited set of circumstances could be unjust. The

proportionate approach, one I consider be appropriate in other public law contexts such as habeas corpus (Grant v. Governor of

Cloverhill Prison [2015] IEHC 768 (Unreported, High Court, 27th November, 2015) at paras. 85 to 92), requires the court instead to

read down the provision to constitutional dimensions, rather than declare it in its entirety to be unconstitutional, invalid, or

incompatible with the ECHR.

31. In the context of the present case, the applicant is not entitled to assert that he should obtain relief on the basis that there

could conceivably be some argument at the margin of a definition in particular circumstances. Such a hypothesis does not give rise to

arguable grounds for reliefs of the type sought. The judicial branch of the State can readily deal with such marginal situations in

other, more proportionate, ways, such as by acquitting the applicant if his guilt has not been proved beyond reasonable doubt

(reinforcing the case for having him submit to the criminal process first), or alternatively, following the conclusion of the criminal

process, through judicial review, on conventional grounds, of the conviction as affirmed on appeal or failing that, by reading down the

statute if its application to the applicant would ultimately be unjust.

32. By way of contrast with the situation considered in Hashman and Harrup v. United Kingdom. (Application No 25594/94), European

Court of Human Rights, 25th November, 1999, paras. 37 to 41, this case does not concern a person who is subject to a binding over

requirement outside the criminal process. He is currently charged with a specific offence which will require proof beyond reasonable

doubt that he failed to be of good behaviour, in the very particular sense that he committed a substantive criminal offence. This is

not a vague requirement and it is quite different to an abstract civil order binding a person to be of good behaviour generally.

Does the applicant lack locus standi if he does not show unawareness that trespass for burglary was a breach of the

conditions?

33. The foregoing is apart from the point that the applicant himself has not given any personal evidence that he was not on notice of

the requirement not to engage in burglary or attempted burglary or trespassing in circumstances giving rise to a breach of s. 11 of the

Criminal Justice (Public Order) Act 1994. That is an averment that can only come from the applicant and not from a paid professional

engaged on his behalf. The lack of positive evidence is enough to dispose of the application, but in any event, it seems unlikely in the

extreme that the applicant could have been in any real or genuine doubt about the fact that breach of s. 11 would also constitute a

breach of the conditions of release, conditions which he has already stated that he understood, and indeed his (for present purposes,

undenied) statement on being charged can reasonably be read as an acknowledgment of that. For good measure, the applicant is

actually aware of the requirements of s. 11, having been convicted under that section on numerous occasions. He has acknowledged

that the conditions of release had been explained to him by signing a form to that effect. This is not a case where he is alleged to

have engaged in conduct which is only civilly wrong, let alone conduct which is not ipso facto prohibited, but only wrong for persons

bound to keep the peace.

34. 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.

Order

35. For the foregoing reasons, which are independent of each other, I will order that the application for leave to be dismissed.