P. -v- D. P. P. & Ors, [2008] IEHC 426 (2008)

Docket Number:2006 4652 P
Party Name:P., D. P. P. & Ors
Judge:Murphy J.





Judgment of Mr Justice Roderick Murphy delivered on the 19th day of December, 2008

  1. Background to the proceedings

    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 That provision has been repealed by the Criminal Law (Sexual Offences) Act, 2006, but remained in force at the time the plaintiff was charged.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 5th 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 14th 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 section 3.

  2. Locus standi

    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 C.J. (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 marital privacy, because his evidence was that marriage was not an option that could be considered open to him. O'Higgins C.J. noted (at 58):

    "This being so, it is nihil ad rem for the plaintiff to suggest, as a reason for alleviating his own predicament, a possible impact of the impugned legislation on a situation which is not his, and to point to a possible injury or prejudice which he has neither suffered nor is in imminent danger of suffering within the principles laid down by this Court in Cahill v. Sutton."

    The judgment of Hardiman J. in A. v. Governor of Arbour Hill Prison [2006] 4 I.R. 88 is to similar effect. In that case the applicant was serving a three year sentence following his conviction under s. 1 of the 1935 Act. He argued that, in light of the decision of the Supreme Court in C.C., s. 1 had not survived the entry into force of the 1937 Constitution and his detention pursuant to that provision was consequently unlawful. The Supreme Court rejected this argument on the basis that the declaration of unconstitutionality in C.C. did not apply retrospectively in the manner contended for by the applicant. Hardiman J. noted that, in contrast to the applicant in C.C., the applicant in A. had raised his constitutional challenge before trial. The fact the applicant had not done so was a major obstacle in the way of his attempt to "piggyback" on the decision in C.C., particularly where he had pleaded guilty at trial. Hardiman J. observed (at paras. 196-197):

    "The applicant in this case…positively knew the age of the victim and did not deny this. He could never himself have impugned the subsection on the basis that the applicant did in C.C.…because of the operation of the jus tertii rule: a person who seeks to invalidate a statutory provision must do so by reference to the effect of the provision on his own rights. He cannot seek to attack the section on a general or hypothetical basis and specifically may not rely on its effect on the rights of a third party: see Cahill v. Sutton [1980] I.R. 269. In other words, he is confined to the actual facts of his case and cannot make up others which would suit him better. Because of this rule, the applicant could not have attacked the section on the basis that it excluded a defence of reasonable mistake as to age since that defence would not have been open to him on the admitted facts, even if it had been available in law. He had, accordingly, no locus standi on which to challenge the subsection. The applicant in C.C.…had this standing."

    The rule, however, is not an absolute one. In Cahill, Henchy J. observed (at 284-285) that, although in general a plaintiff would be required "to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering", nevertheless:

    This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification when the justice of the case so requires. Since the paramount consideration in the exercise of the jurisdiction of the Courts to review legislation in the light of the Constitution is to ensure that persons entitled to the benefit of a constitutional right will not be prejudiced through being wrongfully deprived of it, there will be cases where the want of the normal locus standi…may be overlooked if, in the circumstances of the case, there is a transcendent need to assert against the statute the constitutional provision that has been invoked….the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are weighty countervailing considerations justifying a departure from the rule.

    The plaintiff also relied on King v. Attorney General [1981] I.R. 233 as authority for the proposition that a person has locus standi to challenge the constitutionality of a provision under which he has been convicted. There O'Higgins C.J., who dissented on a different ground, observed (at 249):

    "Having been convicted, the plaintiff had an interest and a locus standi to complain in relation to the statutory provisions under which he had been convicted."

    In that case the plaintiff had been convicted of loitering in a public place with intent to commit a felony (being a 'suspected person'), contrary to s. 4 of the Vagrancy Act 1824. He successfully challenged the validity of that part of the provision under which he had been convicted.

    The other members of the Court in King did not expressly hold that the plaintiff had locus standi stemming necessarily from the fact of his conviction. However, they did not question his standing, save insofar as it related to parts of the provision that had not been applied to him. It seems logical to assume that a convicted person has standing to challenge the provisions under which he has been convicted, subject to the general qualification, flowing from the jus tertii rule, that he can assert that the manner in which the...

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