The High Court has refused an application by Michael Casey to halt a Limerick District Court prosecution while he challenges the constitutionality of the offence of being drunk in a public place.
Casey was charged under section 12 of the Licensing Act 1872 over an alleged incident at a specified public place in Limerick on 31 July 2015. His District Court case had been adjourned to 5 January 2016.
He sought judicial review prohibiting the trial. His case was that the word “drunk” in the 1872 legislation was impermissibly vague and did not adequately identify the elements of the offence, contrary to constitutional and European Convention rights.
Mr Justice Richard Humphreys refused leave to pursue the judicial review at that stage. He held that, as a general rule, the criminal process, including any available appeal, should be allowed to reach its conclusion before a constitutional challenge to the legislation is actively determined, unless exceptional grounds justify earlier intervention.
The judge said this approach avoids courts deciding constitutional questions unnecessarily. An accused may be acquitted, succeed on appeal or emerge from the criminal process with factual findings which clarify whether a constitutional issue genuinely arises.
The court also identified a separate problem with Casey's application. Casey himself had not sworn the grounding affidavit. His solicitor provided no factual account of how much alcohol Casey had allegedly consumed, his condition or his own understanding of the incident. Garda statements were also not exhibited.
That mattered because the vagueness argument might only have practical relevance to someone whose conduct fell near the boundary of what “drunk” means. The court said Casey had not demonstrated that this was his position.
Leave to seek judicial review was therefore refused. The court stressed that it was not deciding that a vagueness challenge could never be arguable in a suitable case brought by someone with standing.