DPP v Cawley

 
FREE EXCERPT

Central Criminal Court

[C.C.C. No. 113 of 2000]
The People (Director of Public Prosecutions) v. Cawley
The People (at the suit of the Director of Public Prosecutions)
Prosecutor
and
Noel Cawley
Accused

Cases mentioned in this report:-

In re Athlumney, Ex parte WilsonELR [1898] 2 Q.B. 547.

Attorney General (McGrath) v. HealyIR [1972] I.R. 393.

In re BarrettoELRWLRUNKUNK [1994] Q.B. 392; [1994] 2 W.L.R. 149; [1994] 1 All E.R. 447; (1994) 99 Cr. App. R. 105; [1993] C.O.D. 300.

Blyth v. BlythELRWLRUNK [1966] A.C. 643; [1966] 2 W.L.R. 634; [1966] 1 All E.R. 524; 110 Sol. Jo. 148.

Buckman v. ButtonELRUNKUNKUNKUNKUNK [1943] 1 K.B. 405; [1943] 2 All E.R. 82; 112 L.J.K.B. 480; 169 L.T. 75; 107 JP 152; 59 T.L.R. 261; 41 L.G.R. 189.

City of LondonENR (1701) Mod. Rep. 669.

Day v. SavadgeENR (1614) Hob. 85.

Director of Public Prosecutions (Ivers) v. MurphyIRDLRM [1999] 1 I.R. 98; [1999] 1 I.L.R.M. 46.

Director of Public Prosecutions v. LambELRUNKUNKUNKUNKUNKUNK [1941] 2 K.B. 89; [1941] 2 All E.R. 499; 110 L.J.K.B. 480; 165 L.T. 59; 105 J.P. 251; 57 T.L.R. 449; 39 L.G.R. 170.

Dr. Bonham's CaseENR (1610) 8 Co. Rep. 114.

Gardner v. Lucas [1878] 2 A.C 582.

Gillman v. BourkeIRDLTR [1914] 2 I.R. 97; 48 I.L.T.R 38.

Hamilton v. HamiltonIRDLRM [1982] I.R. 466; [1982] I.L.R.M 290.

Inspector of Taxes v. KiernanIRDLRM [1981] I.R. 117; [1982] I.L.R.M 13.

Land Commission v. DolanIR [1930] I.R. 235.

L'Office Cherifien v. Yamashita Ltd.ELRWLRUNKUNK [1994] 1 A.C. 486; [1994] 2 W.L.R. 39; [1994] 1 All E.R. 20; [1994] 1 Lloyd's Rep. 251; (1994) 138 S.J.L.B. 19.

Minister for Social, Community and Family Affairs v. ScanlonIR [2001] I.R. 64.

Mullins v. HarnettIRDLRM [1998] 4 I.R. 426; [1998] 2 I.L.R.M. 304.

Murphy v. G.M.IR [2001] 4 I.R. 113.

Nestor v. MurphyIR [1979] I.R. 326.

Pepper v. HartWLRICRUNKTAX [1992] 3 W.L.R. 1032; [1993] 1 I.C.R. 291; [1993] 1 All ER 42; 65 T.C. 421.

Plewa v. Chief Adjudication OfficerELRWLRUNK [1995] 1 A.C. 249; [1994] 3 W.L.R. 317; [1994] 3 All E.R. 323; (1994) 91 (30) L.S.G. 32; (1994) S.J.L.B. 152.

The Queen v. BlabyELRUNKUNKUNKUNKUNK [1894] 2 Q.B. 170; [1891-4] All E.R. 535; 58 J.P. 576; 38 Sol. Jo. 420; 18 Cox CC 5; 63 L.J.M.C. 133; 70 L.T. 879; 42 W.R. 511; 10 T.L.R. 431.

R. v. DeeryDNIUNK [1977] N.I. 164; [1977] C.L.R. 550.

R. v. GrantUNKUNKUNKUNKUNKUNK [1936] 2 All E.R. 1156; 100 J.P. 324; 26 Cr. App. Rep. 8; 30 Cox CC 453; 80 Sol Jo 572; 106 L.J.K.B. 9; 155 L.T. 209; 52 T.L.R. 676; 34 L.G.R. 452.

R. (O'Reilly) v. Divisional Justices of Dublin (1903) 37 I.L.T.R.

R. v. Penwith Justices, Ex parte Hay, Pender and PerkesUNK [1979] 1 C.A.R. (S) 265; 123 S.J. 621.

Rahill v. BradyIR [1971] I.R. 69.

Regina v. Campbell, Ex parte HoyELRWLRUNK [1953] 1 Q.B. 585 ; [1953] 2 W.L.R. 578 ; [1953] 1 All E.R. 684.

Reid v. ReidELRUNKUNK [1886] 31 Ch. D. 402; 55 L.J. Ch. 294; 54 L.T. 100; 34 W.R. 332; 2 T.L.R. 254.

Rex v. Frank SheridanELRUNKUNKUNKUNKUNKUNK [1937] 1 K.B. 223; [1936] 2 All E.R. 883; 100 J.P. 319; 26 Cr. App. Rep. 1, 30 Cox CC 447; 80 Sol. Jo. 535; 106 L.J.K.B. 6; 155 L.T. 207; 52 T.L.R. 626; 34 L.G.R. 447.

Rex v. Manchester Justices, Ex parte LeverELRUNKUNKUNKUNK [1937] 2 K.B. 96 ; [1937] 3 All E.R. 453 ; 53 T.L.R. 687; 106 L.J.K.B. 519 ; 157 L.T. 68.

Rex v. OliverELRUNKUNKUNKUNKUNKUNK [1944] 1 K.B. 68; [1943] 2 All E.R. 800; 29 Cr. App. Rep. 137; 113 L.J.K.B. 119; 170 L.T. 110; 108 J.P. 30; 60 T.L.R. 82; 42 L.G.R. 37.

S. v. Recorder of ManchesterELRWLRUNKUNK [1971] A.C. 481; [1970] 2 W.L.R. 21; [1969] 3 All E.R. 1230; 134 J.P. 3; 113 Sol. Jo. 827.

Secretary of State v. TunnicliffeUNK [1991] 2 All E.R. 712; (1992) 4 Admin. L.R. 57.

Other cases referred to in argument:-

Conroy v. Attorney General and AnotherIR [1965] I.R. 411.

Pheasantry v. D J DonnellyDLRM [1982] I.L.R.M. 512.

Criminal law - Sex offenders - Notification - Certification - Retrospective effect of legislation - Whether persons convicted of offences committed prior to commencement of statute subject to requirements contained therein - Sex Offenders Act 2001 (No. 18), Pt. 2, ss.7(1) and 14(1).

Statute - Interpretation - Criminal statute - Retrospective effect - Intention of legislature - Purposive approach - Whether intention unclear - Whether retrospective application of provisions unfair.

Cur. adv. vult.

Herbert J

14th June, 2002

The offences in this matter occurred on the 13th August, 1999. On the 24th April, 2002, the accused, on the eighth day of the trial before a jury, pleaded guilty to a count of attempted rape and to a count of larceny. The matter was put back by me to the 14th June, 2002, for submissions as regards sentence. Counsel for the prosecutor seeks a certificate pursuant to the provisions of s. 14(1) of the Sex Offenders Act 2001. This application is opposed by counsel on behalf of the accused.

This measure was enacted into law on the 30th June, 2001. By s. 1(2) of the Act it is provided that the Act "shall come into operation on such day or days as the Minister may appoint by order …". By the Sex Offenders Act 2001 (Commencement) Order 2001, the entire Act was expressed to come into operation on the 27th September, 2001, so that by virtue of the provisions of s. 9 of the Interpretation Act 1937, the entire of the Sex Offenders Act 2001, came into operation at the end of the 26th September, 2001.

On the facts so stated counsel for the accused contends that for the court to issue the certificate sought would be to render the Act retroactive in its operation. In these circumstances, counsel submits, that the court should apply the general principle that an enactment of the Oireachtas should not be construed as intended to have retroactive effect in the absence of plain and unambiguous language in the Act (see Hamilton v. HamiltonIR [1982] I.R. 466 at p. 484;Murphy v. G.M.IR [2001] 4 I.R. 113).

It is provided by s. 14(1) of the Sex Offenders Act 2001 that:-

"If the conviction, after the commencement of this Part, of a person for an offence gives rise to his or her becoming subject to the requirements of this Part, the court before which he or she is convicted of an offence shall forthwith, after the conviction, issue to each of the persons referred to in subsection (5) a certificate [stating certain specified matters]."

By s. 7(1) of the Act it is provided that:-

"Without prejudice to subsection (2) and sections 13 and 16 (7), a person is subject to the requirements of this Part if he or she is convicted of a sexual offence after the commencement of this Part."

By s. 7(2) of the Act it is provided that:-

"A person is also subject to the requirements of this Part if he or she has been convicted of a sexual offence before the commencement of this Part and, at that commencement, either -

(a) the sentence to be imposed on the person in respect of the offence has yet to be determined, or

(b) a sentence has been imposed on the person in respect of the offence and -

  1. (i) the person is serving the sentence in prison,

  2. (ii) the person is temporarily released under section 2 or 3 of the Criminal Justice Act, 1960, or

  3. (iii) the sentence is otherwise still in force or current."

"Sexual offence" is defined in s. 2(1) of the Act by reference to s. 3 and the schedule to the Act, and includes at para. 18 of the schedule an offence of attempting to commit rape.

By s. 2(1) of the Act, "conviction", is defined for all purposes of the Act other than ss. 12, 22, 26(8) and 33, as including a finding of guilty but insane and "convicted" and cognate expressions are to be construed accordingly. In the decision in Attorney General (McGrath) v. HealyIR, [1972] I.R. 393, it was held that"includes" is a word of expansion when used in a statutory definition.

Counsel for the accused did not pursue the argument initially made to the court that a plea of guilty did not constitute a"conviction" within the meaning of s. 14(1) of the Act and having entered a plea of guilty the accused could not be said to have been"convicted" for the purposes of s. 7(1) of the Act. Having regard to the decisions in R. v. Grant,UNK 100 J.P. 324; The Queen v. BlabyELR [1894] 2 Q.B. 170 at p. 172;Rex v. Frank SheridanELR [1937] 1 K.B. 223 at p. 229; Rex v. Manchester Justices, Ex parte LeverELR [1937] 2 K.B. 96 at p. 100, and Regina v. Campbell, Ex parte HoyELR [1953] 1 Q.B. 587, and S. v. Recorder of ManchesterELR [1971] A.C. 481, it appears to me that counsel would be faced with enormous difficulty in pursuing such an argument.

It was submitted by counsel for the prosecutor that the language of the Act is plain and unambiguous. The person, counsel submitted, who subject to certain exceptions which do not apply on the facts of this case, is affected by the certification and additionally or alternatively, the notification requirements of Part 2 of the Act, is a person who, as the Act expressly provides in s. 7(1), is "convicted of a sexual offence after the commencement of this Part".

I am unable to accept this argument. The use of the expression "is convicted" is not sufficient to indicate a retroactive application (see...

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