The High Court has ruled that the offence of begging in a public place under the Vagrancy (Ireland) Act 1847 violates the Constitution.
In a judgment delivered on 4 December 2007, Mr Justice Eamon de Valera found that the offence’s essential ingredients and the way it could be proved breached Articles 34.1, 40.4.1, 40.1 and 40.3. He also held that the Act offended against freedom of expression under Article 40.6.1.
The case arose after Niall Dillon was charged in September 2003 with placing himself in a public street to beg, contrary to section 3 of the Act. The judgment records that he received leave to seek judicial review in December 2003, seeking a declaration that the provision was unconstitutional and orders restraining the Director of Public Prosecutions from taking further steps in the District Court proceedings.
The judge rejected the applicant’s argument that the Act required a prison sentence on conviction. He said the words “if such justice shall see fit” gave the District Judge discretion, so imprisonment was not mandatory. The grounds based on the claim of a mandatory penalty therefore failed.
The court also rejected the prosecution’s submission that “wandering abroad” could be ignored and that begging in a public place alone constituted the offence. Relying on earlier decisions interpreting similar wording, the judge said the phrase had to be given meaning and accepted that it referred to people who had made begging a habit or mode of life, or a means of livelihood. He concluded that this element linked the offence to rumour, reputation or past conduct, and that the offence and its mode of proof violated constitutional protections.
On expression and communication, the judge accepted that begging, as defined in the judgment, could communicate a person’s needs. He concluded that the Act also infringed the constitutional right to communicate and freedom of expression.
The judgment says the right to communicate and freedom of expression may be limited in the interests of the common good. It does not prevent the legislature from making laws regulating the location, time, date, duration and manner of begging, or the age of people involved. The supplied judgment text does not set out a separate formal order beyond the court’s constitutional conclusions.