PPS Ref: 1054440
PROSECUTION REPLY ON REASONABLE EXCUSE
- The accused, Mr Dillon currently faces two charges arising out of a single incident on the 18th October 2020. Both charges relate to breaches of the then Health Protection (Coronavirus, Restriction) (No.2) Regulations (Northern Ireland) 20201.
- The second complaint is an alternative to the first and therefore if satisfied the accused is guilty of breaching the Regulations the court should consider complaint one first. If satisfied none of the exemptions apply to that count the prosecution would seek a conviction on that offence and the second will be withdrawn without prejudice2.
- The prosecution does not propose to go through the facts of the case in this argument as it appears the factual matrix as provided on the Prosecution papers is accepted i.e. Mr Dillon was present in a gathering of approximately 500 persons on the 18th October 2020 at Stormont Estate in breach of the regulations. However, Mr Dillon wishes to rely upon a reasonable excuse for being present.
- If the court is satisfied he had a reasonable excuse then the complaint would not be made out.
- The court should first consider Article 1243 of the Magistrates Court (Northern Ireland) Order 1981 which sets out that if an accused relies upon any exception, exemption, provision, excuse or qualification, the burden of proving the excuse shall be on him.
- The court has heard no evidence regarding the reasonable excuse the accused wishes to rely upon, nor was anything said upon arrest after caution. This is Mr Dillon’s burden to prove.
- Should the accused give evidence as per the argument lodged, he would be providing that he was taking part in a planned peaceful protest in response to the Covid -19 pandemic and that he has a right to do so as provided for by Articles 10/11 of the ECHR.
- Articles 10 & 11 are qualified rights, they are not absolute. R v Dolan & others  EWCA CIV 1605 establishes that in England and Wales the restrictions are compatible with the ECHR. The court may find this decision helpful.
- At paragraph 103, Lord Burnett of Maldon stated:
“103. The first difficulty with Mr Havers’ submissions on article 11 is that he submits that the regulations must necessarily be regarded as being incompatible with article 11 in all, or nearly all, circumstances. It is difficult to see how that can be so when the regulations themselves include the inbuilt exception of “reasonable excuse”. That would necessarily focus attention on the particular facts of a given case in the event of an alleged breach. In our view, the regulations cannot be regarded as incompatible with article 11 given the express possibility of an exception where there was a reasonable excuse. It may well be that in the vast majority of cases there will be no reasonable excuse for a breach of regulation 7 as originally enacted.There were powerful public interests which lay behind the enactment of regulation 7 , given the gravity of the pandemic in late March. “
- Regulation 7 is the England and Wales equivalent to Regulation 5 in Northern Ireland.
- As the court will see that Regulation 5(3) provides that a gathering for religious/political purposes will not be in breach of Regulation 5(1) provided the conditions in 5(4) have been complied with. There is no evidence this is the case.
- Furthermore, when considering reasonable excuse the court is entitled to consider the actions of Mr Dillon on the day as detailed in the statement of Constable Murphy. Mr Dillon attended the gathering, did not keep a safe distance from others, was obstructive to police refusing to provide his name, refused to put on a mask or leave the areas and had to be arrested for his details to be provided. Upon caution Mr Dillion made no reply.
- The prosecution submit, there is no evidence upon which the court could determine the accused had a reasonable excuse for breaching the regulations.
- Dolan makes it clear than in the context of a global pandemic, what amounts to reasonable excuse would be limited. The accused was given numerous warnings by police to leave and failed to do so.
- The fact Mr Dillon refused to comply with police requests to follow safety measures will also be something the court will consider.
8th August 2022
1 Regulations found at appendix one.
2 Alternatively the Prosecution would seek an adjournment until the conclusion of any appeal.
3 Found at appendix two