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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Keogh [1997] IEHC 87; [1998] 4 IR 416; [1998] 1 ILRM 72 (3rd June, 1997)
URL: http://www.bailii.org/ie/cases/IEHC/1997/87.html
Cite as: [1997] IEHC 87, [1998] 1 ILRM 72, [1998] 4 IR 416

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D.P.P. v. Keogh [1997] IEHC 87; [1998] 4 IR 416; [1998] 1 ILRM 72 (3rd June, 1997)

THE HIGH COURT
1996/218 SS
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR
AND

MARTINA KEOGH
ACCUSED

JUDGMENT of Mr Justice Kelly delivered the 3rd day of June, 1997 .

1. On the 6th November, 1995 the Accused appeared before District Judge Desmond Hogan at a sitting of the Dublin Metropolitan District Court. She was charged with the following offence:-


"That you, the said Accused, on the 22nd September, 1994 at Wilton Place, in the said District, being a person of whom a member of An Garda Siochana, namely Sergeant George Kyne, had reasonable cause to suspect of loitering in a street or public place, namely Wilton Place, Dublin 2, in order to solicit or importune another person or persons for the purpose of prostitution, did, without reasonable cause, fail to comply with the direction of the said member to leave immediately the said street or public place
contrary to Section 8 of the Criminal Law (Sexual Offences) Act, 1993".

2. At the hearing the following facts were proved or admitted:-


(i) That Sergeant Kyne, a member of An Garda Siochana, attached to Harcourt Terrace Garda Station, Dublin 2, was on duty on the 21st September, 1994. At 1.20 a.m. he was at Wilton Place, Dublin 2 accompanied by Garda Sharon Burke. He saw four women, including the Accused, standing in Wilton Place, opposite the offices of the Industrial Development Authority. He stated to the Court that he had reasonable cause to suspect that these women were loitering in Wilton Place in order to solicit or importune another person or persons for the purposes of prostitution.

(ii) Sergeant Kyne cautioned the four women, including the Accused, under Section 8(1) of the Criminal Law (Sexual Offences) Act, 1993 and directed them to leave the area immediately and he informed them of the consequences of their failure to obey that direction. They indicated that they had understood the direction.

(iii) At 2.44 a.m. Sergeant Kyne returned to Wilton Place where he found that two of the women, including the Accused, were still standing in the area where they had been earlier when directed to leave. Sergeant Kyne then arrested Martina Keogh, the Accused, of 58 Lower Dominick Street, under Section 8(2) of the Criminal Law (Sexual Offences) Act, 1993 for failing to comply with his direction.

(iv) Sergeant Kyne informed the Court that he had formed his suspicion as a result of the fact that the area was well known to him as a "red light" area and that he had personally known the Accused for a period of two and a half years. He stated to the Court that he had seen the Accused in that area on previous occasions and had seen her approaching cars.

3. The solicitor for the Accused objected to this latter evidence of Sergeant Kyne. She submitted that evidence of the Accused's alleged previous behaviour was not admissible. In support of this contention she relied on the judgments in the case of King v. The Attorney General and Another [1981] I.R. 233.

4. In order to understand the basis for her submission, it is necessary that I set out Section 8 of the Criminal Law (Sexual Offences) Act, 1993 under which the Accused was charged. It reads as follows:-


"(1) A member of the Garda Siochana who has reasonable cause to suspect that a person is loitering in a street or public place in order to solicit or importune another person or other persons for the purposes of prostitution may direct that person to leave immediately that street or public place.

(2) A person who without reasonable cause fails to comply with a direction under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding -

(a) £250 in the case of a first conviction,
(b) £500 in the case of a second conviction, or
(c) £500 or to imprisonment for a term not exceeding four weeks or to both, in the case of a third or any subsequent conviction.

(3) In this section 'loitering' includes loitering in a motor vehicle".

5. The Accused's solicitor's submission concerning the inadmissibility of the evidence of Sergeant Kyne related to that part of the evidence which was adduced so as to demonstrate that he had reasonable cause to suspect that the Accused was loitering in order to solicit or importune for the purposes of prostitution. The solicitor submitted that in giving such evidence, the Sergeant was confined to matters which occurred on the day of the incident and could not give evidence of prior knowledge of the Accused. Furthermore, it was submitted, that while a Garda may know an area to be frequented by prostitutes, he could not have a reasonable suspicion that all women walking in that area were loitering for the purposes of prostitution. It was, therefore, submitted that facts relating to the reasonableness of the Garda's suspicion must relate to circumstances on the date on which he directed her to leave the area.

6. The Sergeant, who conducted the prosecution himself, submitted in response that he felt that he was entitled to rely on his knowledge of the area and the prior suspicious behaviour of the Accused. He agreed that while he had not given the dates upon which he had obtained his prior knowledge, he had relied on dates prior to the date of the alleged offence as set out in the summons.

7. The District Judge then suggested that three possibilities arose if the evidence was inadmissible. They were:-


(a) he could discount the evidence if he held it to be inadmissible and continue to hear the case,
(b) he could discount the evidence if he held it to be inadmissible and disbar himself from further hearing the case, or
(c) he could dismiss the case as a result of the prejudicial evidence having been offered.

8. He then considered the evidence and the issues of law, the right of the Accused to a fair trial and the submissions which were made by the Accused's solicitor. Having done so, he decided to seek the opinion of this Court for the determination of the following questions. The questions are:-


"(1) Whether in a prosecution for an offence contrary to Section 8(2) of the Criminal Law (Sexual Offences) Act, 1993, the prosecution is entitled to adduce evidence of the previous character and activities of an accused person, which took place prior to the date of the alleged incident and of the nature and type of area in which the offences alleged to have occurred for the purposes of establishing that a member of An Garda Siochana had reasonable cause to suspect that that person was loitering in a street or public place for the purposes set out at Section 8(1) of the Act?

(2) If the answer to Question (1) is "No", whether on the evidence led before me that there was sufficient admissible evidence to warrant a finding that Sergeant Kyne had reasonable cause to suspect that the Accused had been loitering in a street or public place for a purpose referred to in Section 8(1) of the 1993 Act? "

THE FIRST QUESTION

9. The first question falls into two parts. The first part relates to the entitlement to adduce evidence of previous character and activities of an accused person which occurred prior to the date of the alleged offence. The second part relates to the nature and type of area in which the offence is alleged to have occurred. Both pieces of evidence were adduced in the present case with a view to establishing that Sergeant Kyne had reasonable cause to suspect that the Accused was loitering in order to solicit or importune for the purposes of prostitution.

10. In the hearing before me Counsel on behalf of the Accused accepted that the second part of the first question posed in the consultative Case Stated could be answered in the affirmative. Accordingly, no issue arises on that. It follows that the prosecution is entitled to adduce evidence of the nature and type of area in which the offence is alleged to have occurred with a view to establishing the reasonableness of the suspicion of the Garda concerning the Accused's activities. It is of course entirely a matter for the Court of trial as to what weight is given to such evidence. But it is not contended that such evidence is in any way inadmissible.

11. It was the first part of the first question posed in the Case Stated that attracted the debate before me.

12. The offence which is created by Section 8 of the Act is committed when a person without reasonable cause fails to comply with a direction given under subsection (1) of the section. Such a direction can be given by a member of the Garda once he has reasonable cause to suspect that a person is loitering in a street or public place in order to solicit or importune another person or persons for the purposes of prostitution. The offence created by the section and in respect of which the Accused was charged, is not that of soliciting or importuning for the purposes of prostitution, but of failing without reasonable cause to comply with the direction given by the Garda.

13. On the hearing of a prosecution under the section, a Garda will have to give evidence that on the occasion in question


(1) he was a member of the Garda,
(2) he had reasonable cause for his suspicion,
(3) he gave the direction, and
(4) that the Accused failed to comply with the direction without reasonable cause.

14. As the prosecution has to prove the existence of a reasonable suspicion on the part of the Garda who gives the direction to leave the place, it must adduce evidence in support of that reasonable suspicion. Insofar as a Garda may rely upon knowledge of the previous character and activities on the part of the Accused, I am of opinion that he is not entitled to adduce evidence of such character or activities as part of his testimony in chief. I have come to that conclusion for a number of reasons which I will now set forth.


1. "One of the concepts of justice which the Courts have always accepted is that evidence of character or of previous convictions shall not be given at a criminal trial except at the instigation of the accused, as that could prejudice the fair trial of the issue of the guilt or innocence of the accused".

15. This statement is taken from the judgment of McWilliam J. in King v. The Attorney General (1981) I.R. 233 at 241. This principle is so well known that it hardly requires elaboration. It is a principle which is to be found not alone by reference to the constitutional concept of justice which imports fairness and fair procedures, but also by reference to the common law. In support of this I need go no further than cite the statement from the decision of Humphreys J. in R. v. Harris (1951) 1 K.B. 107 where he said by way of reference to Section 15 of the Prevention of Crimes Act, 1871:-


"That obviously allows, in such a case, something to be given in evidence which would otherwise, according to the common law of England, not be admissible, that is, laying before the tribunal of fact evidence of the previous bad character of the accused person although he had not himself put his character in issue".

Again, in R. v. Goodwin (1944) K.B. 518 the same Judge said of Section 7 of the 1871 Act:-

"The provisions of Section 7 are unusual in that they require that the jury shall know that the man whom they are trying has been previously convicted, and is likely, according to what is known of him, to commit the offence with which he is charged. On most charges the greatest care is taken to keep precisely that fact from the knowledge of the jury. That being so, whenever a charge under Section 7 is brought the Judge and everyone else concerned in the case should be meticulously careful to see that the accused person is not convicted except upon clear and unmistakable evidence that he has committed the particular offence charged against him".

16. These quotations, which were cited with approval by McWilliam J. in King's case, demonstrate the deep-seated objection at common law to evidence of this type being adduced. In my view, the adducing of such evidence would run counter to the basic concept of justice inherent in our legal system.


2. It might well be that the legislature would permit of a departure from this concept so as to admit of such evidence being given. Whether such a legislative intervention would survive an attack on its constitutionality is not for me to decide in these proceedings. However, insofar as it is suggested that Section 8 permits of such a departure, I do not agree. I am of opinion that if the section were to permit of the evidence of prior character or activities being admissible, it would have to do so in very explicit terms. The statute must be construed strictly and I do not find in Section 8 any warrant for suggesting that the well established common law rule is to be departed from.

3. The evidence given by the Sergeant in the instant case is that he knew the Accused for a period of two years and had seen her in the area on previous occasions approaching cars. That evidence is vague and imprecise. It is exceedingly difficult to rebut. In my view it would place the accused person at a considerable disadvantage and would be inconsistent with the notion of constitutionally fair procedures which must be followed in our Courts.

17. For these reasons, therefore, I have come to the conclusion that the evidence which was adduced by Sergeant Kyne on the occasion in question concerning previous behaviour on the part of the Accused was inadmissible. In so concluding, I have not overlooked the submission made on behalf of the prosecutor to the effect that the Accused is not in peril of being convicted because of her character. What is in issue is whether she complied with the direction of Sergeant Kyne. But before Sergeant Kyne could lawfully give such a direction, he had to have a reasonable suspicion. Evidence must be adduced as to the basis upon which such suspicion was formed. Therefore, although it may be said that the Accused is not in peril of being convicted because of her character, nonetheless her character is given a relevance in the proceedings because of the evidence adduced by Sergeant Kyne.

18. I am of the view that the first part of the first question must be answered in the negative. The prosecution is not entitled to adduce evidence of the previous character and activities of an accused person which took place prior to the date of the alleged incident. Such evidence could only be adduced in circumstances where the Accused herself put her character in issue.


THE SECOND QUESTION

19. Having answered the first part of the first question "No", it appears to me that the second question is largely a matter for the Court of trial. Excluding the inadmissible part of the evidence, the District Judge had evidence of four women standing in Wilton Place at 1.20 a.m. This area was known to the Sergeant to be a "red light" area. Speaking for myself, that would appear to me to be sufficient evidence to satisfy the Sergeant's reasonable suspicion but I reiterate that it is essentially a matter for the District Judge to adjudicate upon.

20. I have no doubt but that the District Judge is well capable of excluding the inadmissible part of the Sergeant's evidence from his mind in continuing the hearing.

© 1997 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/1997/87.html