DPP v LS
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 18 November 2021 |
| Neutral Citation | [2021] IECA 308 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [128/20] |
[2021] IECA 308
The President
Edwards J.
Kennedy J.
[128/20]
[129/20]
THE COURT OF APPEAL
Acquittal – Sexual exploitation of a child – Question of law – Appellant referring a question of law pursuant to s. 34 of the Criminal Procedure Act 1967 – Whether the offence of sexual exploitation of a child was not a standalone offence but rather required proof that the complainant had been trafficked
Facts: The respondents, in March 2020, stood trial together in Kerry Circuit Court, charged with counts of sexual exploitation of a child contrary to s. 3(2) of the Child Trafficking and Pornography Act 1988, as substituted by s. 3(a) of the Criminal Law (Human Trafficking Act) 2008. Following the close of the prosecution case, an application for a directed verdict of not guilty was advanced on foot of a contention that sexual exploitation was not a standalone offence, but rather required proof that there had been not only sexual exploitation, but also that the child exploited had been trafficked. Arising from the acquittal, the appellant, the Director of Public Prosecutions, referred a question of law to the Court of Appeal, pursuant to s. 34 of the Criminal Procedure Act 1967 (as amended), in the following terms: “Was the learned trial judge correct to rule as a matter of statutory interpretation that the offence of Sexual Exploitation of a child contrary to Section 3(2) of the Child Trafficking and Pornography Act, 1998 as substituted by Section 3(a) of the Criminal Law (Human Trafficking) Act, 2008, was not a standalone offence but rather required proof that the complainant had been trafficked within the meaning of the Act.”
Held by the Court that one could not be comfortable with any situation where radical changes in the criminal law, involving criminalisation for the first time of conduct that had not previously been illegal, had inadvertently taken place. However, having scrutinised the amending legislation, the Court agreed with the position held by the Director that this had not, in fact, occurred. The Court regarded the wording of the controversial provision, as amended, as being clear and unambiguous, and any residual doubts the Court may have harboured were dispelled by the expanded definition of sexual exploitation inserted in s. 3(5) of the Criminal Law (Human Trafficking) Act 2008 by s. 10 of the Criminal Law (Sexual Offences) Act 2017.
The Court held that, in those circumstances, it would answer the question of law referred to it by saying that the trial judge was incorrect in ruling as a matter of statutory interpretation that the offence of sexual exploitation is not a standalone offence, but rather requires proof that the complainant has been trafficked within the meaning of the Act.
Appeal allowed.
JUDGMENT of the Court delivered (electronically) on the 18 th day of November 2021 by Birmingham P.
. This is an application brought by the Director of Public Prosecutions (“the Director”) pursuant to s. 34 of the Criminal Procedure Act 1967 (as amended), which provides:
“ 34. — (1) Where a person tried on indictment is acquitted (whether in respect of the whole or part of the indictment) the Attorney General in any case or, if he or she is the prosecuting authority in the trial, the Director of Public Prosecutions may, without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Court of Appeal for determination or, in the case of a person who is tried on indictment in the Central Criminal Court, make application to the Supreme Court under Article 34.5.4° of the Constitution to refer a question of law arising during the trial to it for determination.
(2) Where a question of law is referred to the Court of Appeal or the Supreme Court, as the case may be, under subsection (1), the statement of the question shall be settled by the Attorney General or the Director of Public Prosecutions, as may be appropriate, after consultation with the trial judge concerned or, in the case of a Special Criminal Court, with the member of that Court who pronounced the decision of the Court in the trial concerned following consultation by that member with the other members of the Court concerned and shall include any observations which the judge or that member, as may be appropriate, may wish to add.
[…]
(5) The Court of Appeal or the Supreme Court, as the case may be, shall ensure, in so far as it is reasonably practicable to do so, that the identity of the acquitted person in proceedings referred to in this section is not disclosed in connection with the proceedings unless the person agrees to the use of his or her name in the proceedings.”
. In March 2020, the respondents stood trial together in Kerry Circuit Court, charged with counts of sexual exploitation of a child contrary to s. 3(2) of the Child Trafficking and Pornography Act 1988, as substituted by s. 3(a) of the Criminal Law (Human Trafficking Act) 2008. LS faced eight charges, while PS faced three charges. All eleven counts involved allegations of inviting, inducing, or coercing the complainant to participate in various sexual acts at or near the farmhouse, farmyard, or farmlands of PS. The counts were laid as having occurred on various dates between 27 th January and 7 th April 2013.
. In the course of the trial, the complainant gave evidence, and she was cross-examined on behalf of the accused men. Following the close of the prosecution case, an application for a directed verdict of not guilty was advanced on foot of a contention that sexual exploitation was not a standalone offence, but rather required proof that there had been not only sexual exploitation, but also that the child exploited had been trafficked. Arising from the acquittal, the Director referred a question of law to this Court. It should be noted that s. 34 of the Criminal Procedure Act 1967 (as amended) provides for a without prejudice referral.
. The question of law referred to this Court is in the following terms:
“Was the learned trial judge correct to rule as a matter of statutory interpretation that the offence of Sexual Exploitation of a child contrary to Section 3(2) of the Child Trafficking and Pornography Act, 1998 (‘the 1998 Act’) as substituted by Section 3(a) of the Criminal Law (Human Trafficking) Act, 2008, (‘the 2008 Act’) was not a standalone offence but rather required proof that the complainant had been trafficked within the meaning of the Act.”
. Ruling on the joint application for a direction on 11 th March 2020, the trial judge pointed out that the application had been advanced on the basis that the charges of exploitation were “ill-conceived”. The judge referred to the fact that a statement of complaint had been made by the complainant on 29 th October 2014, which alleged that she had been raped by the two accused, but that the charges directed by the Director were not charges of rape or sexual assault, but of sexual exploitation contrary to s. 3(2) of the 1998 Act, as substituted by s. 3(a) of the 2008 Act. The judge made reference to the fact that the defence had argued that these charges apply only in situations involving child trafficking, and that because there was no suggestion of child trafficking in this case, the charges were ill-founded. He pointed to the fact that the defence had, in support of the application, opened the case of DPP v. NR and RN [2016] IECCC 2, a decision of Eager J. which, the trial judge noted, has never been appealed or challenged by the State. Reference was also made to the defence's reliance on obiter remarks of Edwards J. in the case of The Minister for Justice v. Adams [2012] 1 IR 140.
. The trial judge then referred to the submission advanced by the prosecution that it was appropriate to examine the definition of “trafficking” under the 2008 Act. At s. 3(5) of that Act, the definition of trafficking includes that a child was in the “custody, care or charge, or under the control of” another person and that the child was provided “with accommodation or employment”. The prosecution submitted that the definition of trafficking was satisfied by the facts of the case. The trial judge went on to opine that the Director had directed the wrong charges in the case, and, as a result, stated that he was going to direct the jury to record a verdict of not guilty. He did so having referred to the fact that as far as LS was concerned, he was not the employer of the complainant at any stage, nor had he provided any accommodation. In respect of PS, the trial judge accepted that it could be argued that PS and his wife were in loco parentis, and...
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