The High Court ruled that residence restrictions imposed on a man convicted of harassment were outside the District Court’s powers and disproportionate. It rejected the Director of Public Prosecutions’ objection that the challenge should be dealt with on appeal, and proposed setting aside the sentence in full.
The judgment, delivered by Mr Justice Garrett Simons on 23 August 2019, concerns a conviction under section 10 of the Non-Fatal Offences against the Person Act 1997. The man pleaded guilty after admitting that over about eight years he secretly photographed his next-door neighbour in the garden of her home, taking more than 12,000 images.
The District Court imposed nine months’ imprisonment, with seven months suspended for three years subject to conditions. These included no contact with the injured party, restrictions on approaching her home or workplace, and a ban on residing within eight kilometres of her. A separate order under section 10(3) purported to impose similar restrictions for life. The man declined to enter the recognisance required to take up the suspended sentence and pursued both a Circuit Court appeal and judicial review.
The DPP argued that the appeal was an adequate alternative remedy. The High Court rejected that preliminary objection, finding this an exceptional case because the challenge concerned whether the District Court had acted beyond its legal powers. The judge stressed that judicial review examines lawfulness, not whether the High Court would have reached a different decision on appeal.
The court held that section 10(3) allows restrictions on communication and approaching a person’s home or workplace, but does not authorise a ban on the passive act of living in an area. It also found the lifetime duration and eight-kilometre radius disproportionate to the offence and their effect on the man’s liberty and movement. The order was too vague because it did not specify the addresses he was barred from approaching.
The High Court also found the eight-kilometre residence condition attached to the suspended sentence disproportionate. It said restrictions made under section 10(3) should not be duplicated as conditions under the more general suspended-sentence power in section 99 of the Criminal Justice Act 2006.
Because the District Court’s decision to suspend part of the sentence was tied to the restrictions, the High Court concluded the conditions could not be severed from the sentence. It proposed setting aside the sentence in its entirety. The judgment did not determine whether the sentence could be separated from the conviction or whether the case should be remitted to the District Court; the judge said counsel would be heard on those questions.