G (B) and Others v Ag & Irish Human Rights Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 08 December 2011
• Neutral Citation: [2011] IEHC 445
• Court: High Court
• Date: 08 December 2011

[2011] IEHC 445

THE HIGH COURT

[1290 JR/2010,]

G (B) & Ors v District Judge Murphy & Ors (No. 2)

BETWEEN

B. G.

APPLICANT

AND

DISTRICT JUDGE CATHERINE MURPHY, DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGES OF THE DUBLIN CIRCUIT COURT (No.2)

RESPONDENTS

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

AND

IRISH HUMAN RIGHTS COMMISSION

AMICUS CURIAE

G (B) v JUDGE MURPHY (NO 1) UNREP HOGAN 29.\9.2011 2011 IEHC 359

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

CRIMINAL LAW (INSANITY) ACT 2006 S4(3)(A)

CRIMINAL LAW (INSANITY) ACT 2006 S4(4)(A)

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

DPP v NANGLE 1984 ILRM 171

CRIMINAL LAW PROCEDURE ACT 1967 S13

CONSTITUTION ART 34.1

SALAGA (A MINOR) v MIN FOR JUSTICE & ORS UNREP HOGAN 10.2.2011 2011 IEHC 51

CAHILL v SUTTON 1980 IR 269

CURTIS v AG 1985 IR 458

KENNEDY v AG UNREP MACMENAMIN 11.1.2007 2007/32/6613 2007 IEHC 3

C (C) v IRELAND 2006 4 IR 1 2005/7/1439 2005 IESC 48

OSMANOVIC & SWEENEY v DPP & ORS 2006 3 IR 504

CRIMINAL LAW (AMDT) ACT 1935 S1

FINANCE ACT 1963 S34

M (S) v IRELAND (NO2) 2007 4 IR 369 2007/38/7813 2007 IEHC 280

OFFENCES AGAINST PERSON ACT 1861 S62 (UK)

KENNEDY v DPP & AG UNREP MACMENAMIN 11.1.2007 2007/32/6613 2007 IEHC 3

PREVENTION OF CORRUPTION (AMDT) ACT 2001 S4

CRIMINAL LAW (INSANITY) ACT 2006 S4(4)(C)

EAST DONEGAL CO-OP LTD v AG 1970 IR 317

CONSTITUTION ART 40.1

HARTLEY, STATE v GOV OF MOUNTJOY PRISON UNREP O DALAIGH 21.12.1967

MOLYNEUX v IRELAND 1997 2 ILRM 241 1997/10/3352

COX v IRELAND 1992 2 IR 503

CONSTITUTION ART 34.3.2

SOMJEE v MIN FOR JUSTICE 1981 ILRM 324

RAILWAY EXBRESS v NEW YORK 336 US 106 1946

MCKINLEY v MIN FOR DEFENCE 1992 2 IR 333

GALLAGHER v DIRECTOR OF CENTRAL MENTAL HOSPITAL (NO 2) 1996 3 IR 1

CARMODY v MIN FOR JUSTICE 2010 1 IR 635 2010 1 ILRM 157 2009 IESC 71

CONSTITUTION ART 35.5

RUPP v BRUNNECK (ADMONITORY FUNCTIONS OF CONSTITUTIONAL COURTS(GERMANY) 1972 20 AMERICAN JOURNAL OF COMPARATIVE LAW 387

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)

CRIMINAL LAW

Trial

Fitness to plead - Constitutional validity of legislation - Equality - Declaration - Doubt as to mental capacity of accused - Consent to summary disposal of indictable offence upon guilty plea - Capacity to understand nature of offence - Jurisdiction of District Court to accept guilty plea and determine fitness to plead - Consequences of sending forward for determination of fitness to plead - Effective deprivation of right to plead guilty in District Court - Discrimination against those whose mental capacity in doubt - Remedies available - Separation of powers - Vindication of rights - Declaratory relief - Invalidity of law - Extension of scope of legislation - Prematurity of application - Entitlement to certainty as to potential penalty - Whether Act discriminated unconstitutionally against persons whose mental capacity in doubt - Whether application premature - Whether accused entitled to certainty as to potential penalty - Whether Circuit Court bound by sentencing constraints of District Court - Whether appropriate to make declaration of constitutional invalidity - Whether declaratory relief sufficient - Whether courts can extend scope of legislation to vindicate rights - State (Hartley) v Governor of Mountjoy Prison, (Unrep, SC, 21/12/1967) and Molyneux v Ireland [1997] 2 ILRM 241 distinguished; Cox v Ireland [1992] 2 IR 503 considered; Railway Express v New York 336 US 106 (1949) approved - Criminal Law Procedure Act 1967 (No 12), s 13 - Criminal Law (Rape) (Amendment) Act 1990 (No 32), s 2 - Criminal Law (Insanity) Act 2006 (No 11), ss 4(3)(a) and 4(4)(a) - Constitution of Ireland 1937, Articles 34.1, 40.1 and 40.3 - Declaration of invalidity granted (2010/1290JR - Hogan J- 8/12/2011) [2011] IEHC 445

G(B) v Judge Murphy (No 2)

Facts The applicant was a 49 year old man whose mental capacity was in some doubt and he had been charged with sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 ("the 1990 Act"). When the applicant originally came before the District Court, the Director of Public Prosecutions indicated that he would consent to summary disposal but only if the applicant were to plead guilty. In the District Court the District Judge concluded that as a fitness to plead issue had arisen it had no jurisdiction in the matter, save in the event that the applicant pleaded guilty and sent the matter forward to the Circuit Court to determine the fitness to plead issue. An accused person who pleaded guilty to the charge in the District Court obtained the benefit of the summary disposal of this indictable offence and could also appeal the sentence imposed to the Circuit Court whereas the Director of Public Prosecutions did not have this benefit. The option of pleading guilty was not open to the applicant in view of the doubts attaching to his mental capacity. The applicant therefore contended that he had been effectively deprived of the right to plead guilty in such circumstances, which was an unconstitutional discrimination against him. It was contended by the respondents that the challenge regarding the constitutional issue was premature.

Held by Hogan J in issuing a declaration. The present constitutional challenge was not premature so far as the range of possible sentence was concerned. Any challenge based on the alleged inequality arising from the appeal provisions was presently too remote to merit immediate adjudication. An accused was entitled to know as a matter of right the applicable statutory maxima prior to making a decision as to whether to plead guilty. The Circuit Court was not bound by the jurisdictional limits which applied in the case of the District Court. It would seem that due to oversight the Oireachtas had inadvertently failed to have proper regard to the rights of those whose mental capacity was in doubt. The Oireachtas could not place certain categories of accused persons at a real disadvantage as compared with other similarly situated accused persons without objective justification. The most appropriate remedy was to grant a declaration that in the event that the applicant was found fit to plead by the Circuit Court and subsequently pleaded guilty, if a sentence of more than the equivalent District Court sentence was imposed, this would be in breach of the plaintiff's constitutional right to equality under Article 40.1. of the Constitution.

1 JUDGMENT of Mr. Justice Hogan delivered on the 8th day of December, 2011

2 1. The issues considered in this judgment arise as a sequel to my earlier judgment in BG v. Judge Murphy (No.l) [2011] IEHC 359 ("BG No.1"). While the salient facts were set out in that judgment, one may briefly recapitulate by saying that the applicant is a 49 year old man whose mental capacity - in view of the relevant psychiatric evidence presented to the court - may fairly be regarded as being in some doubt. He now stands charged with the sexual assault of a female, contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 (as amended)("the 1990 Act").

3 2. When the applicant originally came before the District Court in January 2010 it was indicated to the court that the Director of Public Prosecutions would consent to summary disposal of this indictable offence, but only if he were to plead guilty. In BG (No.l) I summarised thus the subsequent sequence of relevant events:-

"There then followed a series of adjournments which were variously designed to facilitate the making of appropriate disclosure by the prosecution and to obtain appropriate professional legal and psychiatric evidence. Matters came to a head in July 2010 when the Director outlined his position in writing:-"

4 'The DPP directed that the charge before the court proceed on indictment pursuant to s. 13 of the Criminal Procedure Act 1967. There is consent to the matter being disposed of if all the conditions of that section are met.

5 Since a fitness to plead issue has arisen, the accused is not in a position to enter a plea, therefore s. 13 of the Criminal Procedure Act cannot be utilised. The fitness to plead issue therefore has to be determined by the Circuit Court.

6 We will be making the application for the accused to be returned for trial for the fitness to be tried issue to be determined.'

7 Following a full hearing on 23rd July, 2010, on the issue, District Judge Murphy concluded that she had no jurisdiction in the matter, save in the event that the applicant pleaded guilty. The prosecution solicitor, Ms. Farrell, confirmed that the Director wanted the issue of the applicant's fitness to plead to be sent forward for hearing to the Circuit Court. District Judge Murphy acceded to this submission and then sent the applicant forward on bail to the next sittings of the Dublin Circuit Court so that his fitness to plead could be determined by a judge of that Court."

8 3. The critical issue in that judgment concerned the proper interpretation of the provisions of s. 4(3)(a) and s. 4(4)(a) of the Criminal Law (Insanity) Act 2006 ("the 2006 Act"). At a superficial level, the question was simply whether the question of the accused's fitness to plead should be determined by the District Court or by the Circuit Court. As it apparent from the judgment in BG (No. I), I held that District Judge Murphy was correct to rule that this question must be determined by the Circuit Court in light of the relevant provisions of s. 4(3)(a) and s. 4(4)(a) of the 2006 Act. But the ultimate issue presented by this litigation is, in truth, a more subtle and difficult one.

9 4. In the ordinary way an accused person who wished to plead guilty to the charge and thereby obtain the benefit of the summary disposal of this indictable offence could simply do so by pleading to the charge in the...