DPP v Judge Devins & others
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Keeffe |
| Judgment Date | 02 December 2009 |
| Neutral Citation | [2009] IEHC 584 |
| Court | High Court |
| Date | 02 December 2009 |
[2009] IEHC 584
THE HIGH COURT
BETWEEN
AND
AND
OFFENCES AGAINST THE PERSON ACT 1861 S61
RSC O.84
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S14
INTERPRETATION ACT 1937 S21
INTERPRETATION ACT 2005 S27
INTERPRETATION (AMDT) ACT 1997 S1(1)
OFFENCES AGAINST THE PERSON ACT 1861 S62
CRIMINAL PROCEDURE ACT 1967 S4A(2)
M (S) v IRELAND & ORS (NO 2) 2007 4 IR 369 2007/38/7813 2007 IEHC 280
CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S8
RSC O.84 r21
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S2
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S3
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S5
CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S1
HALSBURYS LAWS OF ENGLAND 4ED 1990 PARA 505
SEXUAL OFFENCES ACT 1956 S12(1) (UK)
NORRIS v AG 1984 IR 36
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S28
O'MALLEY SEXUAL OFFENCES: LAW POLICY & PUNISHMENT 1996 136-7
DPP v F (E) UNREP SUPREME 24.2.1994 1994/2/557
O'C (S) v GOVERNOR OF CURRAGH PRISON 2002 1 IR 66 2001/18/5098
INTERPRETATION (AMDT) ACT 1997 S1
GREALIS & CORBETT v DPP & AG 2001 3 IR 144 2002 1 ILRM 241 2001/11/2968
HAWKINS A TREATISE OF THE PLEAS OF THE CROWN VOL 1 1716
EAST A TREATISE OF THE PLEAS OF THE CROWN 1803
O SIOCHAIN THE CRIMINAL LAW OF IRELAND 6ED 1977
CHARLETON OFFENCES AGAINST THE PERSON 1992
OFFENCES AGAINST THE PERSON (IRL) ACT 1829 S18
HALSBURYS LAWS OF ENGLAND 1ED 1909 VOL 9 PARA 1091
CRIMINAL LAW
Statutory interpretation
Buggery - Repeal - Whether statutory or common law offence - Lawfulness of prosecuting an offence when conduct comes to light after Act repealed - Prosecution for statutory offence now repealed - Charges struck out by District Judge - Norris v Attorney General [1984] IR 36 followed; Mitchell v Ireland [2007] IESC 11 (Unrep, SC, 28/3/2007); People (DPP) v F(E) (Unrep, SC, 24/2/1994) considered - Offences Against the Person Act 1861 (c. 100), s 61 - Criminal Law (Sexual Offences) Act 2006 (No 15), s 8 - Relief refused (2007/1514JR - O'Keeffe J - 2/12/2009) [2009] IEHC 584
DPP v Judge Devins & O'Malley
Facts: The notice party was arrested and charged with offences alleged to have occurred between 1970 and 1971 as to sexual abuse perpetrated whilst the notice party was a teaching priest. The High Court granted leave to the applicant by way of judicial review to quash a decision to make no order as to three charge sheets against the notice party, seeking an order of mandamus requiring the respondent to accept evidence of arrest, charge and caution, a declaration that the offence of buggery contrary to s. 61 of the Offences Against the Person Act 1861 was a valid offence by law if it related to dates of alleged offences prior to the repeal of s. 61, and that the offence of indecent assault contrary to common law was a valid offence. The issue thus arose inter alia as to the effect of the repeal of the offence of buggery by the Criminal Law (Sexual offences) Act 1993 and the effect of s. 27 Interpretation Act 2005, in light of when the offence was alleged to have been committed.
Held by O'Keefe J. that the wording of s. 2 of the Act of 1993 abolishing the offence of buggery was not conclusive evidence that buggery was an offence at common law. The Court would find that the offence of buggery was a statutory one and that s. 61 of the Act of 1861 had provided for such an offence. The Court was not satisfied that the offence of buggery had been established as a common law offence. It was still possible to prosecute a person who committed an offence even if the conduct only came to light after the Act had been repealed by virtue of the contents of s. 27 of the Interpretation Act 2005. It was still possible to prosecute for an alleged breach of the offence of buggery. The Court would hear the parties on the appropriate order to make.
Reporter: E.F.
JUDGMENT delivered by Mr. Justice O'Keeffe on 2nd day of December, 2009
1. On 19 th November, 2007 the High Court granted leave to the Applicant to apply by way of an application for Judicial Review for:-
(i) An order of certiorari quashing the decision made by the Respondent on 19 th September, 2007, to make no Order in respect of the three charge sheets against the Notice Party.
(ii) An order of mandamus requiring the Respondent to accept the evidence of arrest, charge and caution that was given on 19 th September, 2007 and to proceed to deal with the three charges in the ordinary way.
(iii) A declaration that the offence of buggery contrary to Section 61 of the Offences Against the Person Act is a valid offence recognised by law if it relates to dates of alleged offences that are prior to the repeal of the said Section 61.
(iv) If necessary, a declaration that the offence of indecent assault contrary to common law is a valid offence recognised by law.
(v) If necessary an order of certiorari quashing the decision made by the Respondent on 18 th July, 2007 to make no Order in the prosecution of the Notice Party.
2. The grounds upon which relief was sought are:-
(i) The Respondent erred in law in holding that the offence of buggery contrary to Section 51 (sic) of the Offences Against the Person Act 1861, is not known to law or is not properly before the court in the circumstances of the present case.
(ii) The Respondent wrongfully declined to exercise her jurisdiction by failing to hear and deal with the charges which were properly and lawfully before her and to send the Notice Party forward for trial.
(iii) The Respondent acted without proper legal basis and in excess of jurisdiction in making "no Order".
(iv) The Respondent erred in law and wrongfully refused jurisdiction in hearing evidence of arrest, charge and caution of 19 th September, 2007 and then later on the same day purporting to hold that she was then not accepting evidence of arrest, charge and caution.
3. In the Statement of Grounds of Opposition it is claimed the Respondent (sic) has not acted promptly nor within the time limit of three months prescribed for seeking relief by way of Judicial Review by O. 84 of the Rules of Superior Courts 1986. It is contended that the form of the relief sought herein is essentially in nature that of mandamus. The grounds upon which relief is sought, it is claimed, first arose on 18 th July, 2007 when the Respondent struck out the charges made against the Notice Party herein. The Applicant did not make an application for leave to seek Judicial Review until 19 th November, 2007 and as a result the relief should be refused. Alternatively it is claimed that no extension of time for the making of this application has been sought and therefore the court has no jurisdiction to entertain the application.
4. Without prejudice to such contentions, it is further pleaded that the offences alleged against the Notice Party are alleged to have occurred between 1 st September, 1970 and 31 st December, 1970. It is claimed, the offence of buggery is a common law offence, the penalty for which was provided by statute (Section 61 of the Offences Against the Person Act 1861). The common law offence of buggery was repealed by Section 14 of the Criminal Law (Sexual Offences) Act 1993.
5. It is claimed that the Act of 1993 did not provide any saver for the prosecution of offences after that date which had occurred before that date. Therefore the alleged wrongful acts on the part of the Notice Party are no longer an offence under the law. Any prosecution of the Notice Party after the abolition of the offence is a nullity, a breach of the law, due process and breach of fundamental constitutional principles.
6. It is claimed that Section 21 of the Interpretation Act 1937 and Section 27 of the Interpretation Act 2005 are not applicable to offences contrary to common law. Section 1(1) of the Interpretation (Amendment) Act 1997 applies prospectively only and is not applicable. It is claimed that the Respondent acted intra vires in making no order in respect of the invalid charge of buggery.
7. Inspector Michael Murray, sworn the affidavits on behalf of the Applicant. He represented the State in the Prosecution of the Notice Party and was present in court on the relevant dates namely 20 th June, 2007, 18 th July, 2007 and 19 th September, 2007.
8. On 20 th June, 2007, the Notice Party was arrested and charged with three offences variously alleged to have occurred in the period between 1 st September, 1970 and 30 th June, 1971, being:-
(i) Buggery contrary to Section 61 of the Offences Against the Person Act 1861;
(ii) Indecent Assault contrary to Section 62 of the Offences Against the Person Act 1861; and
(iii) Indecent Assault contrary to Section 62 of the Offences Against the Person Act 1861
9. The offences relate to alleged sexual abuse perpetrated by the Notice Party who was a priest teaching in St. Jarlath's College, Tuam.
10. When the matter came before Castlebar District Court on 20 th June, 2007, Detective Garda Edward McLoughlin gave evidence of arrest, charge and caution. The Notice Party was represented by her solicitor, Miss Fiona McAllister. The Respondent raised the question of jurisdiction. Inspector Murray informed the court that the Director of Public Prosecutions elected for trial on indictment and he applied for an adjournment in order to prepare a Book of Evidence. He said the Respondent adjourned the matter to Castlebar District Court on Wednesday, 18 th July, 2007 for service of the Book of Evidence.
11. On 18 th July, 2007, at the adjourned hearing, evidence of service of the Book of Evidence was given and the court was informed that the Director of Public...
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