P(J) (plaintiff) v DPP, Ireland and Attorney General
| Jurisdiction | Ireland |
| Judge | Mr Justice Roderick Murphy |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] IEHC 426 |
| Date | 19 December 2008 |
| Court | High Court |
| Docket Number | [2006 No. 4652 P] |
[2008] IEHC 426
THE HIGH COURT
BETWEEN
AND
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S3
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003
CC v IRELAND 2006 4 IR 1
CAHILL v SUTTON 1980 IR 269
NORRIS v AG 1984 IR 36
OFFENCES AGAINST THE PERSON ACT 1861 S61
OFFENCES AGAINST THE PERSON ACT 1861 S62
A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88 2006/1/19 2006 IESC 45
CRIMINAL LAW (AMDT) ACT 1935 S1
KING v AG 1981 IR 233
VAGRANCY ACT 1824 S4
IARNROD EIREANN v IRELAND 1996 3 IR 321
CRIMINAL LAW (AMDT) ACT 1885 S4
CRIMINAL LAW (AMDT) ACT 1885 S5
CRIMINAL LAW (AMDT) ACT 1935 S2
CRIMINAL LAW (AMDT) ACT 1935 S4
B(A) MINOR v DPP IN RE 2000 2 AC 428 2000 2 WLR 452
SHEERIN STATE v KENNEDY 1966 IR 379
HAUGHEY v MORIARTY 1999 3 IR 1 2000/10/3728
MCDONALD v BORD NAGCON 1965 IR 217
GREYHOUND INDUSTRY ACT 1958 S43
GREYHOUND INDUSTRY ACT 1958 S44
GREYHOUND INDUSTRY ACT 1958 S47
CROKE v SMITH (NO 2) 1998 1 IR 101
MENTAL TREATMENT ACT 1945 S172
McMAHON v LEAHY 1984 IR 525
HAUGHEY IN RE 1971 IR 217
COMMITTEE OF PUBLIC ACCOUNTS OF DAIL EIREANN (PRIVILEGES & PROCEDURES) ACT 1970 S3(4)
EAST DONEGAL CO-OPERATIVE LIVESTOCK MART v AG 1970 IR 317
EMPLOYMENT EQUALITY BILL 1996 IN RE 1997 2 IR 321
ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360
SWEET v PARSLEY 1970 AC 132
SEXUAL OFFENCES ACT 1956 S6 (UK)
SEXUAL OFFENCES ACT 1956 S5 (UK)
BYRNE v MCDONNELL & MURPHY 1997 1 IR 392 1996 1 ILRM 543
R v SOUTH TAMESIDE MAGISTRATES COURT 1983 3 AER 689
WALSH CRIMINAL PROCEDURE 2002 PAR 16-56
R v McNALLY 1954 1 WLR 933
CONSTITUTIONAL LAW
Statute
Sexual offence - Strict liability - Guilty plea already entered - Doubts as to constitutionality of offence subsequently raised by developments in jurisprudence - Jus tertii - Plaintiff's statement of claim asserting knowledge of age - Statutory interpretation - Whether plaintiff had locus standi - Whether appropriate to apply standard jus tertii rules where proceedings challenged criminal in nature - Whether constitutional right to have mens rea requirement in offence - Whether "weighty countervailing considerations" - Whether subsequent legislation an aid to construction - McDonald v Bord na gCon [1965] IR 217 and Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 applied; Re B (a minor) v DPP [2000] 2 AC 428 followed; Iarnrod Eireann v Ireland [1996] 3 IR 321, CC v Ireland [2006] IESC 33 [2006] 4 IR 1, Cahill v Sutton [1980] IR 269, Norris v Attorney General [1984] IR 36, A v Governor of Arbour Hill Prison [2006] IESC 45 [2006] 4 IR 88, King v Attorney General [1981] IR 233, PG v Ireland [2005] IESC 48 [2006] 4 IR 1, Sweet v Parsley [1970] AC 132, State (Sheerin) v Kennedy [1966] IR 379, R v McNally [1954] 1 WLR 933, Croke v Smith (No 2) [1998] 1 IR 101, McMahon v Leahy [1984] IR 525, Byrne v Judge McDonnell [1997] 1 IR 392, In re Haughey [1971] IR 217, Re Employment Equality Bill 1996 [1997] 2 IR 321 and East Donegal Co-operative Livestock Mart Ltd v Attorney General [1970] IR 317 considered; R v South Tameside Magistrates Court, ex parte Rowland [1983] 3 All ER 689 distinguished - Criminal Law (Sexual Offences) Act 2006 (No 15) - Criminal Law (Sexual Offences) Act 1993 (No 20), s 3 - European Convention on Human Rights Act 2003 (No 20) - Criminal Law Amendment Act 1885 (48 & 49 Vic, c 69), ss 4 & 5 - Offence determined not to be one of strict liability (2006/4652P - Murphy J - 19/12/2008) [2008] IEHC 426
P(J) v DPP
Facts: The plaintiff pleaded guilty to offences of buggery contrary to s. 3 Criminal law (Sexual offences) Act 1993, which had been repealed by the Criminal law (Sexual Offences) Act 2006. The plaintiff sought a declaration that s. 3 was unconstitutional by denying a defence as to mistake as to age, irrespective of the fact that the age of the complainant was known to the defendant. The defendant contended that the plaintiff lacked locus standi. The complainant was 16 at the time of the alleged offences and in a relationship with the plaintiff who was then 19.
Held by Murphy J. that the expression of the marital defence in s. 3 did not exhaustively state the defences available. The Act of 2006 could not be relied upon to determine the intention underlying the 1993 Act. To do so would import unacceptable uncertainty into statutory interpretation. The offence under s. 3 was not a strict liability offence and incorporated some mental element as to the age of the complainant. The mental element as to age could be proven by the prosecution or be raised as a defence. The plaintiff had pleaded guilty but did not fully appreciate the nature of the offence charged against him and the trial judge could allow him to change his plea. The lack of locus standi of the plaintiff could be overlooked due to weighty countervailing considerations that existed in the case.
Reporter: E.F.
Mr Justice Roderick Murphy delivered on the 19th day of DECEMBER 2008.
The plaintiff pleaded guilty to two charges of buggery of a person under the age of 17 contrary to s. 3 of the Criminal Law (Sexual Offences) Act, 1993. That provision has been repealed by the Criminal Law (Sexual Offences) Act, 2006, but remained in force at the time the plaintiff was charged.
On 5 th October 2006 he instituted these proceedings by way of plenary summons seeking a declaration that s.3 was repugnant to the Constitution. His sentencing was adjourned pending the outcome of these proceedings and he was remanded on continuing bail.
The defence of 14 th January 2008 challenged the plaintiff's locus standi and denied that s. 3 did not permit a defence of reasonable defence as to age. The legislation was not unconstitutional. Even if the plaintiff did not know that his actions were against the law, the same was irrelevant as a matter of law. In the circumstances where the plaintiff knew the age of the complainant and had pleaded to two counts of breaching s. 3, in neither case was there any basis for restraining the sentence of the plaintiff. Moreover, s. 3 of the 1993 Act, being a post-1937 Act and one with a different legislative history, falls to be interpreted in a different way to the Act of 1935. The section was not incompatible with the European Convention on Human Rights Act, 2003 in circumstances where the plaintiff knew the age of the complainant at all material times.
The complainant was 16 at the time of the alleged offences and was in a relationship with the plaintiff, who was then 19. Although he admits having committed the acts complained of he asserts that, at the time, he believed the complainant to have attained the age of 17. He submits that that belief is immaterial in relation to the s. 3 offence and that, to secure a conviction under that section, the prosecution need not establish any element of knowledge on the part of the accused as to the complainant's age, nor can the accused invoke any defence of mistake as to age. Indeed, he was advised to precisely that effect and pleaded guilty on foot of that advice. He relied on the decision of the Supreme Court in C.C. v. Ireland [2006] 4 I.R. 1 as establishing that the section was unconstitutional if that interpretation of the provision was correct. The defendants properly conceded that if the offence were indeed one of strict liability on its proper construction, s. 3 would be repugnant to the Constitution (for convenience, in this judgment I will use the term 'strict liability' to denote an offence in respect of which there is neither a requirement that knowledge as to age be proved as an element of the offence nor a defence of mistake as to age). The issues to be resolved by this court were therefore confined to the plaintiff's standing to pursue this challenge and the correct construction of s.3.
The leading authority on this issue is the decision of the Supreme Court in Cahill v. Sutton [1980] I.R. 269. In that case the plaintiff alleged she had suffered injury as a result of her doctor's breach of contract. Her action was statute-barred, but she challenged the constitutionality of the statutory time limit on the basis that it contained no exception for the benefit of persons who were unaware of the existence of their cause of action until after the expiry of that period. On her own admission, however, she was not such a person, having been aware of the existence of her cause of action against the defendant at all times. For that reason the Court held that she could not pursue her challenge. Henchy J stated (at 286):
"The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person's interests have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute."
This rule was reiterated in Norris v. Attorney General [1984] I.R. 36. In that case the plaintiff sought to challenge ss. 61 and 62 of the Offences Against the Person Act, 1861, which provisions criminalised buggery between males. O'Higgins CJ (with whose judgment Finlay P and Griffin J agreed) recognised that the plaintiff had the requisite standing to challenge those provisions. Although he had not been prosecuted under them, their presence on the statute book represented a threat to a constitutional right, whose existence he asserted, to engage in the proscribed conduct. However, he was not permitted to rely on the affect of the provisions on the right to...
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