The Court of Appeal has dismissed an appeal by the Director of Public Prosecutions and the State, leaving in place the High Court’s decision to quash a civil order restricting Stephen Tallon’s public speaking and recording in Wexford town, along with convictions arising from breaches of that order.
In a judgment delivered on 25 May 2023, Ms Justice Donnelly said the order was impermissibly vague and uncertain. Justices Edwards and McCarthy agreed. The court did not rule on whether the relevant provisions of the Criminal Justice Act 2006 are constitutional, and said its decision should not be taken as indicating a view either way.
Gorey District Court made the order on 31 August 2020 under section 115 of the Act. It prohibited Mr Tallon from “engaging in public speaking and recording anywhere within the environs of Wexford Town”, listing several streets and squares. The order followed evidence from six Garda witnesses and nine civilians about his preaching and commentary, which witnesses said caused disturbance, distress and annoyance. Mr Tallon disputed that he had harassed or distressed people and said he was exercising freedom of expression.
The Court of Appeal found that key terms did not make the prohibition’s reach clear. “Environs of Wexford Town” had no defined boundary; the order did not make clear whether public speaking indoors was prohibited; and “public speaking” did not resolve whether singing was included. The word “recording” was also unexplained, and the court noted there was no evidence before the District Court about recording activity of the kind the State appeared to suggest was at issue.
Mr Tallon was convicted on four counts in November 2020: two breaches of the civil order and two offences under the Criminal Justice (Public Order) Act 1994. The High Court had quashed the civil order and the two convictions under the 2006 Act, but did not quash the 1994 Act convictions. Mr Tallon did not appeal that part of the High Court decision. The Court of Appeal said the State had accepted that the convictions under the 2006 Act could not stand if the civil order was quashed. The 1994 Act convictions were not before the appeal court for decision.
The appeal court also upheld the High Court’s use of judicial review in what it described as an exceptional case. The order took effect without a stay, and Mr Tallon was arrested later the same day. The court found he could not have obtained a variation or appeal before being exposed to enforcement. It did not address proportionality as a separate basis for the decision, and observed that the High Court should not have treated the proportionality of the sentence as a standalone ground for quashing the convictions.
The court proposed an expenses order of €150 for Mr Tallon, with any party permitted to seek a different order within 14 days.