Mooney v Director of Public Prosecutions

Factual and Procedural Background

The Applicant was convicted of harassment under section 10 of the Non-Fatal Offences against the Person Act 1997, having admitted to surreptitiously taking over 12,000 photographs of his next-door neighbour over an eight-year period without her knowledge. The District Court imposed a custodial sentence of nine months, suspending seven months on condition that the Applicant not communicate with or approach the injured party, and not reside within eight kilometres of her residence for life. The Applicant declined to enter into the recognisance necessary to avail of the suspended sentence, contending that the residence restriction was disproportionate and exceeded the District Court's jurisdiction. The Applicant filed an appeal to the Circuit Court and instituted judicial review proceedings challenging the lawfulness of the orders. The Director of Public Prosecutions (DPP) contended that the appeal was the appropriate remedy. The High Court considered whether judicial review was appropriate and ultimately concluded that the District Court had acted beyond its jurisdiction in imposing the residence restriction and that the restriction was disproportionate.

Legal Issues Presented

1. Whether the District Court had jurisdiction under section 10(3) of the Non-Fatal Offences against the Person Act 1997 and section 99 of the Criminal Justice Act 2006 to impose a residence restriction on the Applicant.
2. Whether the residence restriction imposed was reasonable and proportionate, particularly in relation to the Applicant’s constitutional rights to liberty and free movement.
3. Whether judicial review is an appropriate remedy in this context as opposed to an appeal to the Circuit Court.
4. Whether the conditions attached to the suspended sentence, including the replicated residence restriction, were lawful and proportionate.
5. Whether the parts of the District Court order imposing the restrictions and suspending the sentence could be severed.

Arguments of the Parties

Applicant's Arguments

• The orders imposing the residence restriction are unreasonable and disproportionate, infringing constitutional rights to liberty and free movement.
• The District Court exceeded its statutory jurisdiction by imposing a lifetime residence restriction.
• The practical effect of the restriction is to exclude the Applicant from residing in his hometown, disrupting family and daily life.
• The judicial review is the more appropriate remedy rather than an appeal, given the jurisdictional and constitutional issues raised.
• The conditions attached to the suspended sentence, replicating the excessive restrictions, are also unlawful.

Respondent's (DPP) Arguments

• The proper remedy for challenging the District Court’s orders is by way of appeal to the Circuit Court, which has broader jurisdiction.
• Judicial review is inappropriate because an adequate alternative remedy exists through the appeal process.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the statutory framework, noting that section 10(3) of the Non-Fatal Offences against the Person Act 1997 permits the District Court to impose communication and approach restrictions on a convicted person for a specified period. The Court emphasized that such orders must be clear, precise, and directed at positive acts such as communication or approach, not passive acts like residing in a particular area. The lifetime residence restriction imposed was found to exceed the statutory jurisdiction because it was indefinite and targeted passive conduct.

The Court applied the constitutional principle of proportionality, as established in Meadows and related cases, to assess whether the restrictions were justified and proportionate to the legitimate aim of protecting the injured party. It found the lifetime and geographical scope (an eight-kilometre radius) of the restriction disproportionate, especially given the minor nature of the offence and the maximum custodial sentence of twelve months. The restriction effectively exiled the Applicant from his hometown, unduly infringing his rights to liberty and free movement.

The Court also analyzed the conditions attached to the suspended sentence under section 99 of the Criminal Justice Act 2006, observing that while suspension periods may legally exceed custodial terms, the replicated eight-kilometre residence restriction was similarly disproportionate and unlawful. Furthermore, the Court held that duplicating the section 10(3) restrictions under the more general section 99 was inappropriate, as section 10(4) already criminalizes breach of those specific restrictions.

The Court considered whether the unlawful parts of the order could be severed. Drawing on O’Brien v. Coughlan, it concluded severance was not possible because the suspension of the sentence was predicated on the imposition of the extensive restrictions. Without jurisdiction to impose those restrictions, the rationale for suspending the sentence was undermined.

Regarding the choice of remedy, the Court distinguished between errors of law rendering decisions unlawful (amenable to judicial review) and errors of fact or discretion (correctable by appeal). It found that the jurisdictional excess and disproportionality raised legal questions suitable for judicial review, making this an exceptional case where judicial review was appropriate despite the pending appeal.

Holding and Implications

The Court held that the District Court orders imposing lifetime and extensive residence restrictions pursuant to section 10(3) of the Non-Fatal Offences against the Person Act 1997, as well as the replication of these restrictions as conditions of the suspended sentence under section 99 of the Criminal Justice Act 2006, were unlawful and disproportionate.

As a result, the Court proposed to set aside the entire sentence imposed by the District Court, acknowledging that severance of the unlawful restrictions from the suspension of sentence was not feasible. The Court indicated it would hear further submissions on whether the sentence could be severed from the conviction and whether the matter should be remitted to the District Court.

The decision clarifies the limits of the District Court’s jurisdiction to impose residence restrictions in harassment cases, emphasizing the necessity of proportionality and precision in such orders. It also confirms the high threshold for judicial review in sentencing matters and the circumstances under which judicial review may be preferred over appeal. No new precedent beyond the application of existing principles was established, but the judgment provides important guidance on the interpretation and interaction of sections 10(3) and 99.