DPP v Cawley

• Jurisdiction: Ireland
• Judgment Date: 14 June 2002
• Docket Number: [C.C.C. No.
• Date: 14 June 2002
• Court: Central Criminal Court (Ireland)

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 Wilson [1898] 2 Q.B. 547.

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

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

Buckman v. Button [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 London (1701) Mod. Rep. 669.

Day v. Savadge (1614) Hob. 85.

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

Director of Public Prosecutions v. Lamb [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 Case (1610) 8 Co. Rep. 114.

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

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

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

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

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

L'Office Cherifien v. Yamashita Ltd. [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. Scanlon [2001] I.R. 64.

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

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

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

Pepper v. Hart [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 Officer [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. Blaby [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. Deery [1977] N.I. 164; [1977] C.L.R. 550.

R. v. Grant [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 Perkes [1979] 1 C.A.R. (S) 265; 123 S.J. 621.

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

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

Reid v. Reid [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 Sheridan [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 Lever [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. Oliver [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 Manchester [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. Tunnicliffe [1991] 2 All E.R. 712; (1992) 4 Admin. L.R. 57.

Other cases referred to in argument:-

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

Pheasantry v. D J Donnelly [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.

Application for sex offenders certificate.

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

On the 15th April, 2002, the accused was arraigned on a number of counts and pleaded not guilty. After eight days of trial in April, 2002 the accused was re-arraigned and pleaded guilty to counts of attempted rape and larceny, a nolle prosequi being entered in respect of the other counts.

The prosecution applied for a certificate under s. 14(1) of the Sex Offenders Act 2001 to the Central Criminal Court (Herbert J.) on the 31st May, 2002.

Part 2 of the Sex Offenders Act 2001 sets out obligations of sex offenders to notify An Garda Síochána of certain information. Section 7(1) provides inter alia, that:-

"… 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."

Section 14(1) provides as follows:-

"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]."

The accused pleaded guilty on the 24th April, 2002, to offences committed on the 13th August, 1999. Counsel for the prosecutor sought a certificate pursuant to the provisions of s. 14(1) of the Sex Offenders Act 2001. Counsel for the accused submitted that as the offences were committed before the Act of 2001 came into operation on the 27th September, 2001, to issue a certificate would be to render the Act retroactive, and that 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 was applicable so as to preclude the issuance of a certificate.

Held by the Central Criminal Court (Herbert J.), in issuing a certificate pursuant to s. 14(1), 1, that the use of the expression"is convicted" in s. 7(1) was not sufficient to indicate a retroactive application of Part 2 of the Act of 2001 and in the absence of inescapably clear words, the court should first consider whether it was unfair to apply Part 2 of the Act retrospectively. If the court concluded that it would not be unfair, then it should give effect to the purpose of the provision which might lead to its retrospective application.

L'Office Cherifien v. Yamashita Ltd. [1994] 1 A.C. 486; Plewa v. Chief Adjudication Officer[1995] 1 A.C. 249; Secretary of State v. Tunnicliffe [1991] 2 All E.R. 712 considered.

2. That the overriding purpose of Part 2 of the Sex Offenders Act 2001 was not to alter the law unfairly by imposing any new or additional penalty on persons convicted after the coming into operation of the Act for past offences but rather to protect the public from future offences. While notification requirements imposed by s. 10 and the certification required by s. 14(1) of the Act of 2001 undoubtedly inflicted a detriment on a convicted person, this was not a"penalty" and therefore did not impose a heavier penalty on the accused than that which was applicable at the time the offences were committed.

3. That, balancing the duty imposed on the Oireachtas to provide for the safety of its citizens and the duty to safeguard the freedom of individual citizens, the imposition of the notification and certification requirements under Part 2 of the Act of 2001 was not oppressive or unfair to a person convicted of a sexual offence committed prior to the commencement of the Act.

4. That Part 2 of the Sex Offenders Act 2001 was intended by the Oireachtas to have retrospective effect as regards scheduled offences committed before the commencement of that Part in respect of convictions after the date of commencement.

5. That the principle that a statute should not be construed as intended to operate retroactively unless this appeared very clearly from the plain and unambiguous language of the Act, or arose by necessary and distinct implication, did not apply to Acts which merely effected procedural changes in the law.

Blyth v. Blyth [1966] A.C. 643;In re Barretto[1994] Q.B. 392 followed;Minister for Social, Community and Family Affairs v. Scanlon[2001] 1 I.R. 64 applied.

6. That statutes fixing a penalty or a maximum penalty for offences were not to be regarded as entirely procedural for the purpose of applying the principle that a statute should not be construed as intended to operate retroactively.

Director of Public Prosecutions v. Lamb [1941] 2 K.B. 89;Buckman v. Button[1943] 1 K.B. 405;Rex. v. Oliver[1944] 1 K.B. 68, not followed.

Semble: A plea of guilty constituted a "conviction" within the meaning of s.14(1) of the Sex Offenders Act 2001.

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...