DPP v C.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 10 February 2016
• Neutral Citation: [2016] IECCC 1
• Docket Number: CCDP / 110 / 2013
• Court: Central Criminal Court (Ireland)
• Date: 10 February 2016

[2016] IECCC 1

CENTRAL CRIMINAL COURT

Eagar J.

CCDP / 110 / 2013

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANTS

AND

C.C.

RESPONDENT

Crime & sentencing ? Practice & procedure ? Trial ? Indictment ? Amendment to indictment ? Sexual offences

Facts: The accused was alleged to have committed a number of serious sexual offences upon a complainant in 1973/1974. A first trial had already completed, and an issue arose as to the remaining indictment and the dates therein. The prosecution applied for permission to amend the indictment.

Held by Mr Justice Eagar, that the proposed amendments would be permitted. Having considered the proposed amendments and the relevant jurisprudence, the Court was satisfied that the accused would not suffer any injustice by allowing the indictment to be amended. H v DPP [2006] 3 IR 575 and B v. DPP [1997] 2 ILRM 118 considered.

DECISION of Mr. Justice Eagar delivered on the 10th day of February, 2016

1 The Court ruled that the remaining indictment (there having been a first trial) should be severed and that the trial in respect of the complainant, T.C., should proceed before the jury.

2 Mr. Devalley S.C., counsel for the prosecution, indicated that there was an issue which had to be considered in relation to the dates of the indictment, and averted to the possibility that the Court may have the responsibility to marry the counts on the indictment with the evidence, and further, that it may be necessary to amend the indictment.

3 Counsel for the prosecution outlined the background to the prosecution. Complaints were made against the accused in 2004. The statements of a number of the key witnesses were taken, in and around the early months of 2004. The complainant T.C. made a statement on 11th March, 2004, a subsequent statement on the 23rd August, 2004 and a further statement of evidence on 10th September, 2004.

4 The accused man was arrested and detained at Milford Garda Station on 21st December, 2004 and released pending the directions of the Director of Public Prosecutions. It is common case that he left the jurisdiction at that time and the prosecution indicate that he was located in the United Kingdom in 2013.

5 A European Arrest Warrant was prepared in relation to a large number of complaints, relating to offences at 21 ? 24 in the European Arrest Warrant. The Director of Public Prosecutions directed that the accused, C.C., be charged with four offences:

?21. On a date unknown between the 1st January, 1974 and the 31st December, 1974 (both dates inclusive) at Drumcliffe, Ennis, Co. Clare, the requested person did commit an act of indecent assault upon [T.C.].

22. On a date unknown between the 1st September, 1973 and the 30th September, 1973 (both dates inclusive) at Lisdoonvarna, Co. Clare, the requested person did commit an act of indecent assault upon [T.C.].

23. On a date unknown between the 1st January, 1974 and the 31st December, 1974 (both dates inclusive) at Seán O'Farrell's shop, Mill Road, Ennis, Co. Clare, the requested person did commit an act of indecent assault upon [T.C.].

24. On a date unknown between the 1st January, 1974 and the 31st December, 1974 (both dates inclusive) at Seán O'Farrell's shop, Mill Road, Ennis, Co. Clare, the requested person did commit an act of indecent assault upon [T.C.] (on an occasion other than that stated in the Offence No. 23).

6 C.C., the accused, did not contest the application for his rendition and he was subsequently charged with these offences among other offences.

7 It was common case that there had been an earlier trial in relation to other charges contained in the original indictment.

8 It is also of note that in the European Arrest Warrant, information was given in relation to the allegation made by T.C., that his father had sexually abused him ?over a number of years?. It is also noteworthy that the information records that whilst travelling home in the van and whilst driving, the requested person would grope T.C. On certain trips T.C. would be raped and made to perform oral sex on the requested person. In the 1970s, the requested person opened up a chipper in Ennis, Ireland. T.C. worked full time for him and stayed in a bedroom upstairs at night. During the night T.C. would have to get up to go to the toilet which was outside the back of the house. T.C. would sneak up the stairs as quietly as possible. He would only just be in bed when he would hear the floorboards creaking and the requested person would arrive into his room. The requested person would rape him and then force him to perform oral sex on him. Prior to raping him, he often gagged him with a sponge and tie around his mouth so that he could not make noise. T.C. would cry from the pain of the anal penetration. In no point in the information given in relation to these allegations is a date specified.

9 Because C.C. was rendered to Ireland, counsel for the prosecution said, issues arose as to the interpretation to be put on Article 27, contained within the Framework Decision of the 13th June, 2002 in relation to European Arrest Warrants. Article 27 deals with possible prosecution for further offences, namely the rule of specialty. Article 27 (2) states that ?a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.?

10 In Irish national law the Court can act to amend the indictment or to permit the prosecution to amend the indictment provided it is in accordance with Section 6 of the Criminal Justice (Administration) Act 1924, unless the Court finds that the required amendments would result in injustice to the accused.

11 Counsel for the prosecution quoted from the decision of Leymann and Pustovarov ( Case T-388/08) [2008] E.C.R. I-08993, a decision of the Third Chamber of the European Court of Justice which dealt with the interpretation of Article 27 (2). In that case Mr. Pustarov had been charged with possession of, according to the European Arrest Warrant, large quantities of hashish when in fact he had been involved in importation of amphetamines. The Supreme Court raised a number of questions for a preliminary ruling. In the first question raised the Court stated at para. 41:

?By its first question the referring Court asks, essentially, what the decisive criteria are which would enable it to determine whether the person surrendered is being prosecuted for an ?offence other? than that for which he was surrendered within the meaning of Article 27 (2) of the Framework Decision.?

At para. 42 the Court said:

?It is clear from Article 1(1) and (2) of the Framework Decision and from recitals 5, 6, 7 and 11 in its preamble that the purpose of the Framework Decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings based on the principle of mutual recognition.?

Para. 43 states:

?Article 27(2) of the Framework Decision lays down the specialty rule, according to which a person who has been surrendered may not be prosecuted, sentenced or otherwise deprived of liberty for an...