The prosecution must present some evidence that begging took place without legal authorisation before the burden shifts to an accused person, the High Court has ruled in two cases stated by a District Court judge.
Mr Justice Michael White delivered the ruling on 31 January 2012. The cases concerned separate charges against Florin Rostas and John Maughan under section 2 of the Criminal Justice (Public Order) Act 2011. The provision makes it an offence to harass, intimidate, assault or threaten another person, or obstruct the passage of people or vehicles, while begging.
The Act defines begging as requesting or soliciting money or goods from another person other than under a licence, permit or authorisation granted under an enactment. During the prosecutions, the defence sought a direction because the prosecution had not proved that either accused lacked such authorisation. The District Court judge referred related questions of law to the High Court under section 52 of the Courts (Supplemental Provisions) Act 1961.
The High Court considered whether the prosecution had to produce evidence of the absence of authorisation, or whether the accused had to establish it. Mr Justice White said the ordinary principle is that the prosecution must prove guilt, and that Irish law does not permit an implied statutory exception based on considerations such as which party could more easily prove a matter.
The judgment discussed the limited “peculiar knowledge” principle. Citing the Supreme Court’s decision in McGowan v. Carville, the judge said the principle had not been abolished, but remained restricted. Where the prosecution cannot reasonably prove the absence of lawful authority directly, sufficient evidence of its non-existence may shift the burden to the accused, having regard to the parties’ respective opportunities for knowledge.
The court held that a licence, permit or authorisation is not a legal defence that the accused must raise from the outset. Prosecutors must lead some evidence to establish a prima facie case that the begging occurred without authorisation. If that threshold is met, the accused must establish a reasonable doubt as to the legality of the begging. Whether the evidence establishes a prima facie case is for the trial judge.
Answering the referred question, the High Court said the prosecution must adduce some evidence that the accused did not act under a licence, permit or authorisation granted by or under statute. The judgment answered the legal question; it does not state that either accused was convicted or acquitted.