B.G. v Judge Murphy

CourtHigh Court
Judgment Date08 December 2011
Docket Number[2010 No. 1290 JR]
Date08 December 2011
B.G. v. Judge Murphy
District Judge Catherine Murphy, The Director of Public Prosecutions, and The Judges of the Dublin Circuit Court, Respondents and Ireland and The Attorney General, Notice Parties, and The Irish Human Rights Commission, Amicus Curiae
[2010 No. 1290 JR]

High Court

Constitution - Equality - Criminal law - Trial - Fitness to plead - Constitutional validity of legislation - Declaration - Doubt as to mental capacity of accused - Consent to summary disposal of indictable offence upon guilty plea - Capacity of accused to understand nature of offence - Jurisdiction of District Court to accept guilty plea and determine fitness to plead - Consequences of sending forward for determination of fitness to plead - Effective deprivation of right to plead guilty in District Court - Discrimination against those whose mental capacity in doubt - Remedies available - Separation of powers - Vindication of rights - Declaratory relief - Invalidity of law - Extension of scope of legislation - Prematurity of application - Entitlement to certainty as to potential penalty - Whether Act discriminated unconstitutionally against persons whose mental capacity in doubt - Whether application premature - Whether accused entitled to certainty as to potential penalty - Whether Circuit Court bound by sentencing constraints of District Court - Whether appropriate to make declaration of constitutional invalidity - Whether declaratory relief sufficient - Whether courts can extend scope of legislation to vindicate rights - Criminal Law Procedure Act 1967 (No. 12), s. 13 - Criminal Law (Rape) (Amendment) Act 1990 (No. 32), s. 2 - Criminal Law (Insanity) Act 2006 (No. 11), ss. 4(3)(a) and 4(4)(a) - Constitution of Ireland 1937, Articles 34.1, 40.1 and 40.3.

Section 4 of the Criminal Law (Insanity) Act 2006 provides,inter alia, that:-

"(3)(a) Where an accused person is before the District Court (in this section referred to as 'the Court') charged with a summary offence, or with an indictable offence which is being or is to be tried summarily, any question as to whether or not the accused is fit to be tried shall be determined by the Court …

(4)(a) Where an accused person is before the Court charged with an offence other than an offence to which paragraph (a) ofsubsection (3) applies, any question as to whether that person is fit to be tried shall be determined by the court of trial to which the person would have been sent forward if he or she were fit to be tried and the Court shall send the person forward to that court for the purpose of determining that issue."

Section 13(2) of the Criminal Procedure Act 1967 providesinter alia:-

"If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court may - …"

The applicant, charged with the indictable offence of sexual assault of a female contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, was a man whose mental capacity was in doubt. The second respondent had indicated in the District Court that were the applicant to plead guilty, the offence could be dealt with summarily. However, due to the doubt as to the applicant's mental capacity, the District Court could not be satisfied that the applicant understood the nature of the offence (as required by s. 13(2) of the Criminal Law Procedure Act 1967, as a precondition to acceptance by the District Court of a guilty plea). The District Court therefore held that the applicant's situation did not come within the scope of s. 4(3)(a) of the Criminal Law Insanity Act 2006 and that accordingly, the question of the applicant's fitness to plead must be determined by the Circuit Court in light of s. 4(4)(a) of the Act of 2006. The applicant was sent forward to the Circuit Court to enable the fitness to plead issue to be determined.

The applicant challenged the constitutionality of the legislation on the basis that even if the Circuit Court were to find him fit to plead he would not be able to avail of the option of summary disposal of the trial as would have been possible for him originally had there been no question as to his mental capacity; this option had been closed once he had been sent forward to the Circuit Court, because even if he were to be found fit to plead he would then be returned for trial on an indictable offence in the Circuit Court. The applicant argued that this situation discriminated unfairly against persons whose mental capacity was in doubt, contrary to Article 40.1 of the Constitution which provided for equality before the law.

Held by the High Court (Hogan J.), in declaring that Article 40.1 of the Constitution had been violated, 1, that the Oireachtas had failed to have proper regard to the rights and interests of those who were either mentally ill or whose mental capacity was in doubt. It had failed to provide a mechanism whereby persons charged with indictable offences whose fitness to plead was later established by the Circuit Court could obtain the benefit of a guilty plea before the District Court.

2. That the Oireachtas had violated the Article 40.1 constitutional requirement of equality before the law. There was a plain inequality of treatment between two categories of accused for which, objectively speaking, there was no possible constitutional justification. In making rules which permitted accused persons to avail of the option of summary disposal before the District Court, the Oireachtas could not place certain categories of accused persons (such as those whose mental capacity is in doubt) at a real disadvantage as compared with other similarly situated accused persons without objective justification. The equal treatment of similarly situated persons was of the essence of the just application of law.

The State (Hartley) v. Governor of Mountjoy Prison,(Unreported, Supreme Court, 21st December, 1967) and Molyneux v. Ireland[1997] 2 I.L.R.M. 241 distinguished; Cox v. Ireland[1992] 2 I.R. 503 considered; Railway Express v. New York (1949) 336 U.S. 106 approved.

3. That the applicant's constitutional challenge to ss. 4(3)(a) and 4(4)(a) of the Criminal Law (Insanity) Act 2006 was not premature as regards the range of possible sentences but was premature in respect of the implications for appeal of such sentence as this eventuality was too remote at this stage. It was not necessary that a determination adversely affecting rights must first be made before a constitutional challenge could be brought, it was sufficient that there was a reasonable apprehension of such a determination. An accused was entitled to know with certainty, prior to making a decision as to whether to plead guilty, the penalty provisions of the offence with which he was charged and, accordingly, an accused enjoyed the requisite standing to challenge those provisions.

4. That the Circuit Court was not bound by the jurisdictional limits which applied in the District Court. A court could not imply a limitation into the words of a statute when this would be at odds with the structure of the statutory language itself.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 explained.

5. That the court could not indicate to the Oireachtas how or in what manner a particular enactment might be repealed or altered, but it could declare that the law in question failed to meet constitutional norms by reason of an unconstitutional omission, even if the court refrained from actually declaring that law to be unconstitutional.

Somjee v. Minister for Justice [1981] 1 I.L.R.M. 324doubted; Railway Express v. New York (1949) 336 U.S. 106 considered.

6. That, where a claimant had established that his fundamental rights under the Constitution were being denied, the court had jurisdiction pursuant to the provisions of the Constitution, and in particular Article 40.3, to grant such remedy as it considered necessary to vindicate the right concerned. A court could grant a declaration to remedy a legislative omission. It need not invalidate the law.

Carmody v. Minister for Justice [2009] IESC 71,[2010] 1 I.R. 635, McDonnell v. Ireland[1998] 1 I.R. 134, and S.M. v. Ireland (No. 2) [2007] IEHC 280, [2007] 4 I.R. 369 followed; District Judge McMenamin v. Ireland[1996] 3 I.R. 100 considered.

Quaere: that the courts could cure the unconstitutionality caused by a legislative omission by extending the scope of the legislation to ensure that it operated equally.

McKinley v. Minister for Defence [1992] 2 I.R. 333considered.

Cases mentioned in this report:-

C.C. v. Ireland [2005] IESC 48, [2006] 4 I.R. 1.

Cahill v. Sutton [1980] I.R. 269.

Carmody v. Minister for Justice [2009] IESC 71, [2010] 1 I.R. 635; [2010] 1 I.L.R.M. 157.

Cox v. Ireland [1992] 2 I.R. 503.

Curtis v. The Attorney General [1985] I.R. 458.

District Judge McMenamin v. Ireland [1996] 3 I.R. 100; [1997] 2 I.L.R.M. 177.

DPP v. Nangle [1984] I.L.R.M. 171.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

G. v. Judge Collins [2004] IESC 38...

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