The High Court ordered the release of a woman detained on an immigration charge after finding that the particulars of the charge, as they stood, did not disclose an offence known to law.
In a judgment delivered on 6 October 2011, Mr Justice Hogan held that the charge was framed in terms of a provision previously found unconstitutional because it did not clearly distinguish the offence from a possible defence. The court concluded that the woman’s detention under that charge was not in accordance with law and directed her release under Article 40.4.2 of the Constitution.
The woman, a Chinese national, had been arrested on 27 September and charged under the Immigration Act 2004, as amended. The charge alleged that she had failed to produce a valid passport or other identity document when asked by an immigration officer and had not given a satisfactory explanation.
She was remanded in custody after the prosecution objected to bail, citing the absence of satisfactory proof of her identity and describing her as a flight risk. She remained in custody following a further District Court appearance on 30 September.
The respondent accepted that the charge particulars were defective. The court noted two flaws in the charge sheet, but said it was unnecessary to decide the legal consequences of the first, which concerned how the statutory provisions were described. The second flaw was substantive: the particulars mirrored wording from an earlier version of section 12 of the 2004 Act, which the High Court had declared unconstitutional in *Dokie v Director of Public Prosecutions*.
Applying the reasoning in *Dokie*, Hogan J said the charge did not allow the conduct said to constitute the offence to be separated from a possible defence. That left the applicant unable to know with the precision required by the Constitution what conduct was criminalised.
The court also rejected the respondent’s argument that the applicant had acquiesced in her detention by not challenging the particulars before the District Court made the remand order. The judge accepted that the defect came to attention only after the applicant received legal advice, and found no tactical advantage in her not raising it earlier while she was in custody.
No application to amend the charge had been made. Hogan J expressly left open whether such an application could properly be made, and whether the District Court would grant it. Those questions were outside the scope of the Article 40 inquiry, which addressed only whether the applicant was lawfully detained at that time.