M.D. (an Infant) v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 21 April 2009
• Neutral Citation: [2009] IEHC 206
• Docket Number: [2008 No. 1990
• Court: High Court
• Date: 21 April 2009

D (M) (A Minor) v Ireland & Ors

BETWEEN

M. D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND S. D.)

PLAINTIFF

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS

[2009] IEHC 206

[No. 1990 P/2008]

THE HIGH COURT

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3(1)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

PESCA VALENTIA v MIN FOR FISHERIES 1985 IR 193 1986 ILRM 68 1985/6/1462

C (C) & G (P) v IRELAND & ORS 2006 4 IR 1 2005/7/1439 2005 IESC 48

1. Introduction

2 2 1.1 The plaintiff ("Mr. D") is a minor who has commenced these proceedings for the purposes of challenging the constitutionality of certain provisions of the Criminal Law (Sexual Offences) Act 2006 ("The Act"). Mr. D currently faces charges under the Act on foot of which he has been returned for trial to the Circuit Criminal Court at Letterkenny. The trial is currently due to commence on the 28 ^th April, 2009. It is in that context that Mr. D brings this application before the court seeking to have a stay placed on his trial until such time as the issues concerning the constitutionality of the relevant legislation have been determined.

3 3 1.2 In that context I should turn briefly to the relevant facts.

2. The Facts

2 2 2.1 It is alleged that Mr. D was, in the summer of 2006, guilty of certain sexual offences involving a female under the age of seventeen years contrary to theprovisions of s. 3(1) of the Act. At the time of the alleged offence it would appear that Mr. D was, himself, fifteen years old and that the female in respect of which he is alleged to have committed the relevant offences was fourteen years old. The female in question was not charged with any offence under the Act. It is in that context that Mr. D alleges that the legislation in question is in breach of the Constitution.

3 3 2.2 On the 10 ^th March of last year, Mr. D commenced these proceedings seeking a range of declaratory reliefs including a declaration that s. 3(1) and s. 5 of the Act are in breach of the Constitution or alternatively, in breach of Articles 6 or 14 of the European Convention on Human Rights. It is also alleged that the third named defendant ("the DPP") has acted in breach of Mr. D's constitutional rights by prosecuting him in all the circumstances of the case.

4 4 2.3 On the 8 ^th May, 2008, a statement of claim was served. Thereafter, a defence was filed on behalf of the defendants.

5 5 2.4 In May and June of last year (after the issuing of these proceedings), the DPP informed Mr. D's solicitor that he intended to proceed with the criminal trial unless an injunction was given by this Court preventing the trial from going ahead. It should be noted in passing that it was not until the 20 ^th January, 2009 that the defendants filed a defence to these proceedings. The filing of the defence arose in circumstances where Mr. D's solicitor had, on the 19 ^th December, 2008, brought an application for judgment in default of defence. It follows that, had the defendants been more proactive in filing their defence, there is every chance that these proceedings could already have been listed for hearing.

6 6 2.5 In any event the criminal proceedings against Mr. D were listed before O'Hagan J. at the Circuit Criminal Court sitting in Letterkenny on the 3 ^rd February, 2009. On that occasion, O'Hagan J. fixed the 28 ^th April next for the trial andindicated that it was his intention that the trial would go ahead in the ordinary way, unless Mr. D should secure an order from this Court which would have the effect of preventing the trial from being proceeded with until after his constitutional challenge to the relevant provisions of the Act had been determined. On that basis, Mr. D brought this application before the court which came on for hearing on the 30 ^th March. Having reviewed the basic facts it is also appropriate to indicate, at least in general terms, the nature of Mr. D's challenge to the legislation in question. I turn to the legislation and his challenge to it.

3. The Legislation and the Challenge

2 2 3.1 Section 3(1) of the Act provides as follows:-

"3.- (1) Any person who engages in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall, subject to subsection (3), be liable on conviction on indictment-"

Section 5 of the Act provides as follows:-

"5.- A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse."

3 3 3.2 It follows that the structure of the Act is to create a general criminal offence which arises in circumstances where a person engages in sexual acts with an underage person. That general offence is to be found in s. 3(1) which is not gender specific. Therefore, if s. 3(1) were the only provision in the Act relevant to such matters, it would follow that an offence could be committed by an underage female in having sex with an underage male.

4 4 3.3 However, as is clear from the above cited text, s. 5 provides for an exclusion in the case of sexual intercourse by an underage female person.

5 5 3.4 There can be little doubt but that the combined effect of s. 3(1) and s. 5 is that, in the event of there being consensual sexual activity between two underage persons the male is, by virtue of s. 3(1), guilty of an offence but the female is, by virtue of s. 5, not so guilty. In that context Mr. D argues that the Act is discriminatory and seeks to challenge its validity having regard to the Constitution, and also seeks declarations concerning the compatibility of the legislation concerned with the European Convention on Human Rights.

6 6 3.5 The defendants oppose Mr. D's challenge basing their opposition on two general sets of grounds.

7 7 3.6 Firstly, it is said that the State is entitled to make a distinction between male and female persons in this area. Thus, the defendants will seek to justify the distinction made in the legislation concerning sexual activity by, on the one hand, underage males and, on the other hand, underage females.

8 8 3.7 Secondly, the State defendants draw attention to the fact that s. 3(1) itself is not discriminatory in that it applies to all underage persons, both male and female. Thus, it is said, the only potentially discriminatory aspect of the legislation is to be found in the exclusion of underage females from criminal liability that is contained in s. 5. On that basis the State argues that, even if this Court were satisfied that the distinction contained in the Act as and between underage males and underage females amounted to unjustified discrimination, it...