After an extraordinarily long wait, the decision in Dillon v DPP  IEHC 480 has finally been published on the website of the Courts Service. It was announced in court in March 2007, delivered in November 2007, and published online in the last couple of weeks. (I last whinged about it in January).
On the day of the decision, Eoin blogged about it in an important and extremely useful post-with-extra-stuff-in-the-comments, here. In a comment at the time, I joked that it would take a month for it to go online (how wrong I was to be so optimistic), and added then : “Given that the vagrancy law has already run into constitutional trouble (King v AG, early 80s), I’m concerned that this might not be a detailed exploration of freedom of expression and communication issues after all….” (alas, how right I was to be concerned)
The decision is remarkably brief. Indeed, the discussion of freedom of expression, which we’ve been waiting for (this being, as we thought, the first provision of a statute struck down on the basis of Article 40.6.1i), takes just a few paragraphs. After concluding that the provision cannot stand because of four separate constitutional violations, de Valera J notes that expression rights are raised, and says:
16. In Kearney v. Minister for Justice  I.R. 116, Costello J. accepted that “the right to communicate” was protected by Article 40.3 and begging as already defined is clearly a manner of communication by one person to another
17. In Murphy v. Independent Radio and Television Commission  1 I.R. 12, Barrington J. in considering the right to communicate pursuant to Article 40.3 and the right of freedom of expression pursuant to Article 40.6.1 accepts the right of the citizen to express his or her needs “by words and gestures as well as by rational discourse”.
18. Again in applying this dictum to begging as already defined, the Act clearly offends against freedom of expression as provided for in Article 40.6.1 of the Constitution.
19. There are no Irish decisions directly relevant to the provisions of the Act, though the Law Reform Commission produced a very learned, comprehensive and helpful report on vagrancy in 1985 which, had it received the attention it deserved and required, would probably have rendered this application unnecessary.
20. I have been referred, helpfully, to a number of Canadian and United States of America cases touching on the matters under review: cases such as Loper v. New York City Police Department 999 F.2d 699 (2nd Cir. 1993) and Hague v. Committee for Industrial Organisation 307 U.S. 496  and Village of Schaumburg v. Citizens for a Better Environment 444 U.S. 620 , and in particular Bennett v. Cambridge 424 Mass. 918 , clearly support the applicant’s contention that an overall ban on all forms of begging is unconstitutional. The Bennett case is of particular interest in its similarity with the instant matter.
21. The Canadian cases cited included Federated Anti-Poverty Groups of British Columbia v. Vancouver City  B.C.S.C. 105, also supports the applicant’s contention that s. 3 of the Act infringes the applicant’s right to freedom of expression and freedom to communicate though it must be noted that these authorities from the United States of America and Canada are of a persuasive value only.
22. Finally it is accepted by the applicant, and it is undoubtedly so, that the right to communicate and the right to freedom of expression can be limited in the interests of the common good. Nothing in this judgment should be construed as preventing the legislature from making laws controlling the location, time, date, duration and manner in which begging or the seeking of alms might take place and the age of any person involved in such activity.
Much as I’m glad to see that it’s actually possible to strike down legislation on the basis of its impact on freedom of expression and freedom of communication (however defined), I can’t deny that I’m extremely disappointed that the opportunity wasn’t taken to engage with the concept or indeed the application in a more meaningful way. For the case to be of value to future persons affected by possibly unconstitutional legislation, or indeed to legislators and decision-makers, let alone law students and law teachers, we need more than this, especially from a court that has the power and the duty to interpret the Constitution.