The High Court declined to answer questions referred by a District Court judge about whether an accused charged with begging could be considered for the Adult Caution Scheme. It said the consultative case stated had an evidential deficit and raised, at least in part, a question about constitutionality that was not appropriate for determination through this procedure.
The accused, Mihai Nicolae, was charged under section 2 of the Criminal Justice (Public Order) Act 2011 with begging in a manner alleged to harass, intimidate or obstruct members of the public. The District Court case stated that he had no previous convictions in Ireland and that his solicitor had written to gardaí saying he wished to accept guilt but sought an adult caution, given the minor nature of the charge.
According to the case stated, the Court Sergeant told the District Court that the scheme applied only to scheduled offences and did not cover the charge. The District Court judge considered it desirable that the scheme be extended, in light of the charge’s minor nature, the accused’s willingness to accept responsibility at an early stage and his lack of previous convictions. The judge referred questions to the High Court about unequal treatment, whether a District Court judge could direct gardaí to apply the scheme to a non-scheduled offence, and whether any resulting unfairness could justify striking out or discontinuing the prosecution.
Mr Justice Max Barrett said the statutory procedure for a consultative case stated required the District Court judge to hear relevant evidence and make findings of fact before referring questions of law. The judgment noted that the judge had not required evidence to identify which offences were scheduled and that the case stated otherwise appeared to have been made without the benefit of evidence.
The High Court also considered that the questions included, at least in part, a query about the constitutionality of an administrative scheme. Citing earlier authorities on the limits of case stated procedure, the court said that reasoning against using the procedure to challenge the validity of legislation applied by analogy.
The court concluded that it would be inappropriate to address the questions. The judgment does not answer whether the accused was treated unequally, whether the District Court could direct application of the scheme, or whether the prosecution should be struck out or discontinued.