BH v DPP

JurisdictionIreland
CourtSupreme Court
Judgment Date06 February 2003
Docket Number[2000 No. 404 JR] [ S.C. No. 275 of 2001]
Date06 February 2003

High Court

Supreme Court

[2000 No. 404 JR] [ S.C. No. 275 of 2001]
B.H. v. Director of Public Prosecutions
B.H.
Applicant
and
The Director of Public Prosecutions and Judge Gillian Hussey
Respondents

Cases mentioned in this report:-

Attorney General (McDonnell) v. Higgins [1964] I.R. 374.

People (D.P.P.) v. Campbell (1983) 2 Frewen 131.

State (Brennan) v. Mahon (Unreported, High Court, Finlay P., 13th February, 1978).

The State (Cunningham) v. Ó Floinn ó floinn [1960] I.R. 198; (1960) 95 I.L.R.T. 24

The State (Walsh) v. Maguire [1979] 1 I.R. 372.

Criminal law - Offence - Penalty - Enabling Provision - Whether new offence created - Sexual Offences (Jurisdiction) Act 1996 (No. 38) s. 2(1).

Criminal law - Jurisdiction - Return for trial - Offence created by statute - Failure to disclose offence on return for trial - Whether Circuit Criminal Court has jurisdiction based on invalid return for trial - Contra forman statuti.

Judicial review - Certiorari - Discretion - Delay - Extension of time - Clear violation of due process - Whether court should exercise discretion to extend time in favour of applicant where clear violation of due process - Rules of Superior Courts 1986 (S.I. No. 15) O. 84, r. 21.

Judicial review.

The facts have been summarised in the headnote and are more fully set out in the judgment of McKechnie J., infra.

Leave for an application for certiorari by way of judicial review was granted by the High Court (Herbert J.) on the 24th July, 2000.

The application was heard by the High Court (McKechnie J.) on the 7th March, 2001.

By notice of appeal dated the 16th October, 2001, the first respondent appealed to the Supreme Court against the order of the High Court given on the 6th April, 2001. The appeal was heard by the Supreme Court (Murray, McGuinness, Hardiman, Geoghegan and McCracken JJ.) on the 16th December, 2002.

Section 2(1) of the Sexual Offences (Jurisdiction) Act 1996 provides:-

"Where a person, being a citizen of the State or being ordinarily resident in the State, does an act, in a place other than the State ('the place') against or involving a child which-

  • (a) constitutes an offence under the law of the place and

  • (b) if done within the State, would constitute an offence under, or referred to in, an enactment specified in the Schedule to this Act, he or she shall be guilty of the second-mentioned offence."

The applicant was charged with sexually assaulting a child contrary to s. 2 of the Sexual Offences (Jurisdiction) Act 1996 and was returned for trial to the Circuit Criminal Court by order of the second respondent in September, 1999.

The applicant sought an order of certiorari on the grounds that the said charge did not disclose an offence known to law. He argued that s. 2(1) was merely an enabling provision which provided for an accused to be prosecuted under one of the sections of the Acts set out in the schedule to the said Act. He argued that because no such section from the Acts in the schedule was referred to in the return for trial, the applicant was not properly before the Circuit Criminal Court.

The first respondent contended that s. 2(1) set out a new offence involving new constituent elements (such as extra-territoriality) and that the section should be read in conjunction with the schedule when it came to deciding the appropriate penalty for punishment under the Act of 1996. In the alternative, it was argued that the court had jurisdiction to amend any technical defects in the charge.

Held by the High Court (McKechnie J.), in granting an order ofcertiorari to the applicant, 1, that s. 2(1) of the Sexual Offences (Jurisdiction) Act 1996 did not create a new offence but merely declared that anyone who fell within it should be guilty of an offence under one or more of the Acts referred to in the schedule to the Act.

2. That the jurisdiction of the Circuit Criminal Court depended upon a valid return for trial without which the accused was not legally before the court.

The State (Walsh) v. Maguire [1979] 1 I.R. 372;The State (Cunningham) v. District Justice Ó Floinn ó floinn[1960] I.R. 198; Attorney General (McDonnell) v. Higgins[1964] I.R. 374 distinguished.

3. That the court should exercise its discretion to grantcertiorari where a refusal to do so would result in the accused having to submit himself for further prosecution of a charge which the court had no jurisdiction to prosecute, in clear violation of the accused's constitutional rights due process.

The first respondent appealed to the Supreme Court.

Held by the Supreme Court (Murray, McGuinness, Hardiman, Geoghegan and McCracken JJ.), in dismissing the appeal, 1, that s. 2(1) of the Sexual Offences (Jurisdiction) Act 1996 did not create a new offence but merely extended the jurisdiction to try existing offences.

2. That the return for trial was invalid since the statement of charges did not specify with which scheduled offence the applicant was being charged.

Obiter dictum:A correctly drafted statement of charges should specify the particular Irish scheduled offence concerned and should make it clear that the offence was contrary to the relevant statutory provision and should also refer to s. 2 of the Sexual Offences (Jurisdiction) Act 1996 to show on its face that it related to a foreign incident.

Cur. adv. vult.

McKechnie J.

6th April, 2001

1. On the 24th July, 2000, leave was granted to the applicant in these proceedings, to seek by way of an application for judicial review, an order quashing his return for trial in respect of bill no. 879/99. The grounds upon which such leave was authorised were:-

  • (i) that the applicant was returned for trial in respect of a matter which does not disclose a criminal offence;

  • (ii) that the said return for trial fails to disclose jurisdiction on its face; and

  • (iii) that an essential pre-requisite of a valid return for trial is that an accused person be returned in respect of at least one offence known to law.

Since the charge outlined in the return for trial is one not known to the criminal law, it is alleged that the said return is a nullity.

In consequence therefore, subject to the question of delay in moving the leave application and subject to the submission raised at para. 19 hereof, there is but one issue in these review proceedings. It is whether or not s. 2(1) of the Sexual Offences (Jurisdiction) Act 1996 creates a new offence, being one not specified in the enactments listed in the schedule thereto.

2. The following events and circumstances are relevant to a consideration of the matters above mentioned:-

  • 01/06/97: date of alleged offence involving an allegation of sexual assault on a child committed at Wigan, Greater Manchester, England;

  • 04/06/97: a written complaint of the alleged assault is made by the child to the gardaí at Ballyfermot in the City of Dublin;

  • 08/06/97: the applicant, voluntarily, attends Ballyfermot garda station and makes a statement in respect thereof;

  • 20/04/99: an information for warrant to arrest is sworn before the second respondent;

  • 20/04/99: a warrant to arrest the applicant issues from the said second respondent;

  • 29/04/99: the said warrant is executed, the applicant is brought to Ballyfermot garda station and charged, and therefrom to Kilmainham District Court where, on his own bail, he is remanded to appear on the 10th June, 1999;

  • 10/06/99: case adjourned;

  • 02/09/99: following a direction from the first respondent the book of evidence is served in which, in the statement of charges made pursuant to s. 6(1)(a) of the Criminal Procedure Act 1967 there is but one charge proffered against the applicant;

  • 23/09/99: the applicant is sent forward for trial on that said charge to the next sitting of the Circuit Criminal Court in Dublin;

  • 08/12/99: the case is listed for arraignment and a trial date of the 28th March, 2000, is given;

  • 23/03/00: an application for an adjournment is made on behalf of the applicant;

  • 31/03/00: a new trial date of either the 21st June, or the 28th June, is obtained;

  • 21/06/00: on behalf of the applicant, and prior to his arraignment, an objection is taken to the indictment, submissions are made, a ruling is given by the trial judge, further debate follows and ultimately an adjournment of the trial is obtained by the first respondent so that the matters raised can be further considered;

  • 13/07/00: submissions are again made to the court on behalf of both the applicant and the first respondent; in view of the earlier ruling made by the trial judge, which is hereinafter set forth and in light of the repeated submissions made by the first respondent, an adjournment is granted to enable the within judicial review proceedings to be taken;

  • 24/07/00: leave obtained as above indicated.

3. The information sworn to ground the application for the issuing of the aforesaid warrant, indicated that the officer in question had received a direction from the first respondent to proceed with the prosecution of the applicant for a breach of s. 2 of the Sexual Offences (Jurisdiction) Act 1996. The actual warrant itself specified the complaint as being:-

"for that you [B.H.], being the accused person, being ordinarily resident in the State, did on or about the 1st June, 1997, at the Weekly Park Hotel (Travellers Inn), Wigan, Greater Manchester, England, sexually assault …, a child, such act constitution an offence under the law of England and Wales.

Contrary to s. 2 of the Sexual Offences (Jurisdiction) Act 1996."

Apart from correcting the obvious error by substituting the word"constituting", for the word "constitution", the single charge specified in the statement of charges, contained in the book of evidence, is in precisely the same form and wording as it is in the warrant above mentioned. It was in respect of this single offence that the District Court by order dated the 23rd September, 1999, returned the applicant for...

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2 cases
  • Sherry (plaintiff) v Brennan
    • Ireland
    • High Court
    • 17 Julio 2009
    ...CRIMINAL JUSTICE ACT 1999 S9 DPP v DISTRICT JUDGE REILLY UNREP COOKE 19.12.2008 2008/18/3894 2008 IEHC 419 H (B) v DPP & JUDGE HUSSEY 2003 2 IR 43 CRIMINAL LAW Return for trial Particulars - Uncertainty - Applicable principles - Whether sufficient particularity or certainty in charges - On......
  • Hogan v District Judge Lindsay
    • Ireland
    • High Court
    • 12 Mayo 2016
    ...the applicant's circumstances do not bear any similarity to the circumstances which vitiated the return for trial in BH v. Hussey [2003] 2 I.R. 43, a decision referred to in Sherry v. Brennan and which was distinguished by McMahon J. in Sherry v. Brennan. In BH v Hussey the accused was cha......

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