DPP -v- S & anor, [2003] IESC 24 (2003)

Docket Number:383/02
Party Name:DPP, S & anor
Judge:Keane C.J.
 
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THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

383/02

BETWEENTHE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/APPLICANTAND M. S. ACCUSED/RESPONDENTANDTHE ATTORNEY GENERAL NOTICE PARTY/APPLICANT

JUDGMENT of the Court delivered the 2nd day of April, 2003, by Keane C.J.

This is a Consultative Case Stated by Judge Michael O'Shea of the Circuit 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 (hereafter "the 1861 Act") 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 being given 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 (hereafter "the DPP") gave notice that he intended to have the accused arraigned before a jury at a special sitting of the Circuit Criminal Court, Dundalk, Co. Louth, on 11 counts in the indictment alleging indecent assault contrary to S.62 of the 1861 Act. At a special sitting of the court in Dundalk which dealt with certain pre-trial applications by both the DPP and the accused, the latter gave notice of his intention at the time of arraignment to apply to the court to quash the 11 counts intended to be proceeded with on the ground that S.62 of the 1861 Act was inconsistent with the provisions of the Constitution and ceased to be in force from the enactment of the Constitution because, in particular, it was inconsistent with the provisions of Article 38.1, Article 40.1 and Article 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 learned 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 1861 Act with the Constitution.

At a 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 11 counts in the indictment on those grounds. He also heard submissions on behalf of the DPP and the Attorney General 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 10 years penal servitude, but where the complainant was a female was (in the case of a first offence) two years imprisonment, the statutory provision in question constituted an unlawful discrimination on the ground of sex which was in violation of the articles of the Constitution and of the European Convention on Human Rights and Fundamental Freedoms which have already been mentioned.

It was submitted on behalf of the DPP and the Attorney General that the Circuit Court could not lawfully consider the issue as to whether the legislative provisions in question were inconsistent with the Constitution. The learned Circuit Court Judge acceded to a request made on their behalf that this question should be referred to this court by way of case stated for determination by this court. It was also submitted on their behalf that, if the learned Circuit Court judge acceded to their application then, in addition, the questions of law arising in the substantive application made on behalf of the accused should also be referred to this court. It was submitted on behalf of the accused that the jurisdiction of the Circuit Court to hear and determine the application was clear.

Having considered those submissions, the learned Circuit Court Judge acceded to the application on behalf of the DPP and the Attorney General to state a case. In paragraph 16, the questions of law for determination by this court are set out as follows:-

"(i) 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?"(ii) Are the provisions of S.62 of the Offences Against the Person Act 1861 inconsistent with the Constitution?

"(iii) 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 Convention on Human Rights and Fundamental Freedoms (1950) is inconsistent with that convention?

"(iv) Are the provisions of S.62 of the Offences Against the Person Act 1861 in violation of the Convention on Human Rights and Fundamental Freedoms (1950)?

"(v) If the said provisions are in such violation of the said convention, what consequences, if any, flow therefrom?"

At the outset of the hearing of the appeal, the court invited counsel to address them on the issue as to whether the court had jurisdiction to hear and determine the case stated. Having heard submissions, it indicated that it would reserve that question until it had heard submissions by counsel as to how the first question in the case stated should be answered i.e., as to whether the Circuit Criminal Court has jurisdiction to consider the question whether a statute enacted prior to the coming into force of the Constitution is inconsistent with the Constitution.It was accepted that, in the event of the answer to that question being in the negative, it would follow that the Circuit Court had no jurisdiction to raise the question at (ii) for determination by this court. It is clear from the decision of the former Supreme Court in Foyle Fisheries Commission -v- Gallen [1960] Ir Jur Rep. 35 that a Circuit Court judge is not entitled to state a case to the High Court on a question as to the validity of a statutory provision having regard to the Constitution. The same consequences must follow if the Circuit Court judge is similarly precluded from deciding a question as to whether a statute enacted before the coming into force of the Constitution is inconsistent with the Constitution and hence of no effect: a Circuit Judge cannot ask...

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