It is not to be forgotten that Section 4 of the Vagrancy Act 1824 was in regular use by the State until the decision in King -v- The Attorney General [1981] I.R. 233.
Under Section 4 a “suspected person” and a “reputed thief” could be convicted of an offence of, in practice, trespass. Not so, upstanding members of society.
As the court said in King;
…the ingredients of the offence and the mode by which its commission may be proved are so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, soprone to make a man’s lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the Judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the same conduct, when engaged in by another person in similar circumstances, would be free of the taint of criminality, so out of keeping with the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow-citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct, and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”
What is forgotten (not adverted to at all) is that the impulse to categorise persons so that some are to be victimised and others are not, is general.
For some time now, the Government and its supporters have consciously tried (and succeeded) to demonise plaintiffs in personal injury actions. This process has been underway for a long time. It began at least as far back as the 1980’s with the abolition of the civil jury in Ireland for personal injury actions. Under the civil jury system, a panel of ordinary people decided what the appropriate compensation should be for an injured plaintiff (subject to parameters decided by the Supreme Court).
More recently, the establishment of the Personal Injuries Assessment Board was widely seen as calculated to disadvantage plaintiffs in personal injury cases.
The fullest expression of this demonisation was seen in the Civil Liability and Courts Act 2004. This Act introduced radical new procedures and requirements particular to personal injury actions. Plaintiffs in such actions now had to face more and more obstacles in seeking the delivery of their constitutional right to redress.
This attitude has resulted in the growth of strange ideas. As an example, consider a fatal injury action. (Furey v Fitzpatrick & MIBI IEHC (1998)). The defendant has been negligent and has caused the death of a breadwinner. The dependants are entitled (under the Civil Liability Act 1961) to seek compensation for, among other things, the loss of income resulting to them from the death of their breadwinner.
However, the defendant then discovers something completely irrelevant to the issues in the action; the deceased person was not paying his/her proper taxes, if at all. The defendant now submits to the court that the dependants ought not to be compensated for their loss. (The defendant changes the focus from his/her wrongdoing to the supposed wrongdoing of the deceased person). This chutzpah received a respectful hearing in the High Court, less so, in another case, in the Supreme Court, but that it was given an outing at all is a warning of the ease with which what is called “the legal climate” can be used to ride roughshod over the rights of people who, inevitabley, are all alone when they confront their opponents, where the opponents have laid the ground for the battle long before they meet the plaintiff.
There are many important issues which are never discussed on doorsteps with political candidates at election time, but ought to be.