DPP v MS

• Jurisdiction: Ireland
• Judgment Date: 02 April 2003
• Date: 02 April 2003
• Docket Number: [S.C. No. 383 of 2002]
• Court: Supreme Court

Supreme Court

[S.C. No. 383 of 2002]

The People (Director of Public Prosecutions) v. M.S.

In the matter of a consultative case stated, pursuant to s. 16 of the Courts of Justice Act 1947, The People (Director of Public Prosecutions)

Prosecutor

and

M.S., Accused and The Attorney General, Notice party

Cases mentioned in this report:-

Corley v. Gill [1975] I.R. 313.

Coughlan v. Judge Patwell [1993] 1 I.R. 31; [1992] I.L.R.M. 808.

Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994).

Director of Public Prosecutions v. Gannon (Unreported, Supreme Court, 3rd June, 1986).

Director of Public Prosecutions (Stratford) v. O'Neill [1998] 2 I.R. 383; [1998] 1 I.L.R.M. 221.

Dolan v. Corn Exchange [1975] I.R. 315.

Doyle v. Hearne [1987] I.R. 601; [1988] I.L.R.M. 318.

Foyle Fisheries Commission v. Gallen (1960) 26 Ir. Jur. Rep. 35.

In re Ó Laighléis ó laighléis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.

I. O'T. v. B. [1998] 2 I.R. 321.

The People (Attorney General) v. McGlynn [1967] I.R. 232.

The People v. Lynch [1982] I.R. 64; [1981] I.L.R.M. 389.

The People v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.

The People (Director of Public Prosecutions) v. J.T. (1988) 3 Frewen 141.

The State (Browne) v. Feran [1967] I.R. 147.

The State (Boyle) v. Neylon [1986] I.R. 551; [1986] I.L.R.M. 337; [1987] I.L.R.M. 535.

State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

State (Pheasantry Limited) v. Donnelly [1982] I.L.R.M. 512.

The State (Sheerin) v. Kennedy [1966] I.R. 379.

Courts - Circuit Court - Jurisdiction - Statute - Validity - Enactment in force before Constitution - Consultative case stated - Whether Circuit Court had jurisdiction to determine constitutionality of enactments before Constitution - Whether Circuit Court could refer question pertaining to Constitution of pre-1937 Statute to Supreme Court - Offences Against the Person Act 1861 (24 & 25 Vict., c. 100) s. 62 - Criminal Law (Rape) (Amendment) Act 1990 (No. 32) - Constitution of Ireland 1937 Articles 34.3.2, 38.1, 40.1, 40.3, 40.4 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Articles 5, 6 and 14.

Constitution - Courts - Case stated - Supreme Court as court of first instance - Whether Supreme Court could determine issues related to jurisdiction of court and interpretation of Constitution as court of first instance - Courts of Justice Act 1947 (No. 20) s. 16 - Constitution of Ireland 1937 Article 34.4.3.

Consultative case stated.

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

On the 6th December, 2002, the Circuit Criminal Court (His Honour Judge O'Shea) stated a case for the opinion of the Supreme Court pursuant to s. 16 of the Courts of Justice Act 1947.

The questions in the case stated were as follows:-

"1. Does the Circuit Criminal Court have jurisdiction to hear and determine an application by a person, represented in proceedings before it, to the effect that a statute enacted prior to the coming into force of the Constitution is inconsistent with the Constitution?

2. Are the provisions of s. 62 of the Offences Against the Person Act 1861 inconsistent with the Constitution?

3. Does the Circuit Criminal Court have jurisdiction to hear and determine an application by a person, represented in proceedings before it, to the effect that a statute enacted prior to the coming into force of the European Convention on Human Rights and Fundamental Freedoms 1950 is inconsistent with that Convention?

4. Are the provisions of s. 62 of the Offences Against the Person Act 1861 in violation of the European Convention on Human Rights and Fundamental Freedoms 1950?

5. If the said provisions are in such violation of the said Convention, what consequences, if any, flow therefrom?"

The matter was heard by the Supreme Court (Keane C.J., Denham, Murray, McGuinness and Hardiman JJ.) on the 19th March, 2003.

An application was made to the Circuit Criminal Court to quash an indictment against the accused on the grounds that s. 62 of the Offences Against the Person Act 1861 was inconsistent with the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Pursuant to s. 16 of the Courts of Justice Act 1947, the Circuit Criminal Court stated a case for the opinion of the Supreme Court to determine whether it had jurisdiction to hear the application and to determine whether the Act of 1861 was inconsistent with the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms and, if so, the consequences which flowed therefrom.

Held by the Supreme Court (Keane C.J., Denham, Murray, McGuinness and Hardiman JJ.), in answering the case stated, 1, that the Circuit Criminal Court did not have jurisdiction to hear and determine an application to the effect that a statute enacted prior to the coming into force of the Constitution was inconsistent with the Constitution.

The State (Sheerin) v. Kennedy [1966] I.R. 379 and I.O'T v. B.[1998] 2 I.R. 321 followed. Director of Public Prosecutions (Stratford) v. O'Neill[1998] 2 I.R. 383 not approved. The People v. Lynch[1982] I.R. 64, The People (Director of Public Prosecutions) v. J.T. (1988) 3 Frewen 141 andThe State (Pheasantry Limited) v. Donnelly[1982] I.L.R.M. 512 considered.

2. That an issue as to the constitutionality of a law, whether it took the form of legislation or a rule of the common law, could not be determined by a court of local and limited jurisdiction, which discharged its constitutional duty by upholding and applying legislation to the facts of the case before it, unless and until the legislation was found to be constitutionality invalid by the Superior Courts.

3. That the application before the Circuit Court Judge was a "matter … pending before him" within the meaning of s. 16 of the Courts of Justice Act 1947 and, while it was unusual for the Supreme Court to determine as a court of first instance issues which related to the jurisdiction of a court and the interpretation of the Constitution, it was permissible for the legislature to confer such additional jurisdictions on the Superior Courts.

The State (Browne) v. Feran [1967] I.R. 147 followed.

4. That, as the European Convention on Human Rights and Fundamental Freedoms 1950 had not been incorporated into the law of the State by legislation, no court had jurisdiction to determine whether any statutory provision was inconsistent with the Convention.

In re Ó Laighléis ó laighléis [1960] I.R. 93 approved.

Quare: Whether it was possible to establish courts of limited, but not local, jurisdiction, such as the Court of Criminal Appeal, which enjoyed a jurisdiction to determine whether pre-1937 laws were inconsistent with the Constitution?

Cur. adv. vult.

Keane C.J. 2nd April, 2003

This is a consultative case stated by Judge Michael O'Shea of the Circuit Criminal Court pursuant to s. 16 of the Courts of Justice Act 1947.

The circumstances in which the case stated has come before this court should be first set out. The accused was charged in December, 1996, with having committed a number of offences of indecent assault contrary to s. 62 of the Offences Against the Person Act 1861 and one count of sexual assault contrary to the s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. He was then given leave to institute proceedings by way of judicial review in the High Court prohibiting the continuance of the prosecution on the ground that the time which had elapsed since the offences were alleged to have been committed (in the years 1974 and 1975) would prevent him from receiving a fair trial. In February, 1999, that application was dismissed by the High Court and, on an appeal to this court, the order of the High Court was affirmed on the 19th December, 2000.

On the 1st June, 2001, the District Court made an order returning the accused for trial to the Circuit Criminal Court. The Director of Public Prosecutions gave notice that he had intended to have the accused arraigned before a jury at a special sitting of the Circuit Criminal Court, Dundalk, County Louth, on eleven counts in the indictment alleging indecent assault contrary to s. 62 of the Act of 1861. At a special sitting of the court in Dundalk, which dealt with certain pre-trial applications by both the prosecutor and the accused, the latter gave notice of his intention, at the time of arraignment, to apply to the court to quash the eleven counts with which it was intended to proceed on the ground that s. 62 of the Act of 1861 was inconsistent with the provisions of the Constitution and had ceased to be in force as of the enactment of the Constitution because, in particular, it was inconsistent with the provisions of Articles 38.1, 40.1 and 40.3 of the Constitution and on the ground that it violated the provisions of Articles 5, 6 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On the 29th July, 2002, the Circuit Court Judge directed the accused to serve notice on the Attorney General that he had raised in the proceedings a question as to the inconsistency of the provisions of s. 62 of the Act of 1861 with the Constitution.

At the special sitting of the court in Dundalk on the 7th October, 2002, the Circuit Court Judge heard an application on behalf of the accused to quash the eleven counts in the indictment on those grounds. He also heard submissions on behalf of the prosecutor and the notice party as to whether he had jurisdiction to hear the application to quash the indictment. The submission on behalf of the accused was essentially to the effect that, since the maximum sentence in the case of an indecent assault, where the complainant was a male, was ten years penal servitude, but where the complainant was a female was (in the case of a first offence) two years imprisonment...