D. [a minor] -v- Ireland & Ors, [2009] IEHC 206 (2009)

Docket Number:2008 1990 P
Party Name:D. [a minor], Ireland & Ors
Judge:Clarke J.
 
FREE EXCERPT

THE HIGH COURT2008 1990 P

BETWEEN

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

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONSDEFENDANTS

JUDGMENT of Mr. Justice Clarke delivered the 21st April, 2009

  1. Introduction

    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 28th 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.

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

  2. The Facts

    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 the provisions 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.

    2.2 On the 10th 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.

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

    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 20th 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 19th 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.

    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 3rd February, 2009. On that occasion, O'Hagan J. fixed the 28th April next for the trial and indicated 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 30th 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

    3.1 Section 3(1) of the Act provides as...

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