PP v Judges of the Circuit Court

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Birmingham
• Judgment Date: 07 February 2017
• Neutral Citation: [2017] IECA 82
• Date: 07 February 2017
• Docket Number: Neutral Citation Number: [2017] IECA 82 No. 550/2015

[2017] IECA 82

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Mahon J.

Edwards J.

Neutral Citation Number: [2017] IECA 82

No. 550/2015

P.P.

Appellant

-AND-

The Judges of the Circuit Court, the Director of Public Prosecutions,

Ireland

and

The Attorney General

Respondents

Constitution – Gross indecency – Error in law – Appellant seeking to prohibit trial – Whether s. 11 of the Criminal Law Amendment Act 1885 is incompatible with the Constitution of Ireland

Facts: The appellant was charged before the District Court and was returned for trial to the Circuit Court on seven counts of gross indecency. The appellant appealed to the Court of Appeal from a decision of the High Court (Moriarty J) refusing to prohibit the trial of the appellant on Bill 1090/13 in the Dublin Circuit Criminal Court and refusing a declaration that s. 11 of the Criminal Law Amendment Act 1885 is incompatible with the Constitution of Ireland, and had not been continued in force prior to its repeal in s. 14 of the Criminal Law (Sexual Offences) Act 1993, together with certain other ancillary orders. The grounds of appeal formulated were as follows: (i) That the trial judge erred in law in holding that the offence of gross indecency contrary to common law, as provided for by s. 11 of the 1885 Act, was consistent with Article 38.1 of the Constitution and/or with Articles 6 and 7 of the European Convention on Human Rights; (ii) That, in particular, the trial judge erred in law in holding that the offence did not contravene the principle of legal certainty in criminal matters as guaranteed under the Constitution and/or Articles 6 and 7 of the Convention; (iii) That the trial judge erred in law and in fact in entering into an adjudication on the facts as alleged by the second respondent, the DPP, and in holding that the complainant did not or could not consent to the acts alleged against the appellant; (iv) That the trial judge erred in law in holding that consent was not an element of the offence of gross indecency in circumstances where he relied on a submission on behalf of the second respondent that she would confine the charges on the indictment to those that had arisen before the complainant had attained seventeen years of age; (v) The acceptance by the trial judge of the undertaking of the second respondent not to prosecute any acts that were committed prior to the complainant reaching the age of seventeen years of age was inconsistent with the finding of the trial judge that consent was not an element of the offence; (vi) That in particular the trial judge erred in law in holding that the offence of gross indecency contrary to common law was constitutional in circumstances where it failed to make any distinction based on the age of the parties involved; (vii) That the trial judge erred in law in holding that the offence of gross indecency contrary to common law did not discriminate on grounds of gender in breach of Article 40.1 of the Constitution and Article 14 of the Convention; (viii) That the trial judge erred in law in holding that the offence of gross indecency contrary to common law did not breach the rights of privacy as guaranteed by Article 40.3.1 of the Constitution and Article 8 of the Convention; (ix) That the trial judge erred in law and in fact in failing to hold that there was culpable delay on the part of the second respondent in investigating and prosecuting the appellant and in holding that any trial of the appellant would not be in breach of his right to a fair trial under Article 38.1 of the Constitution and Article 6 of the Convention.

Held by the Court that the appellant was not seeking to mount the challenge grounded on the facts of his case, but was, to use the language of Hardiman J in A v Governor of Arbour Hill [2006] 4 IR 88, engaged in seeking to make up facts which suit him better. The Court took the view that the appellant lacked the standing to make the arguments that he wished.

The Court held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 7th day of February 2017 by Mr. Justice Birmingham

1 This is an appeal from a decision of the High Court (Moriarty J.) refusing to prohibit the trial of the appellant on Bill 1090/13 in the Dublin Circuit Criminal Court and refusing a declaration that s. 11 of the Criminal Law Amendment Act 1885 is incompatible with the Constitution of Ireland, and had not been continued in force prior to its repeal in s. 14 of the Criminal Law (Sexual Offences) Act 1993, together with certain other ancillary orders.

2 The background to the proceedings in the High Court and now to this appeal is that the appellant has been charged before the District Court and has been returned for trial to the Circuit Court on seven counts of gross indecency. On each count, he has been charged that he did procure and/or in private commit an act of gross indecency with a male person on a date unknown between the 1st November, 1978, and the 30th June, 1980, both dates inclusive, contrary to common law and as provided for by s. 11 of the Criminal Law Amendment Act 1885. The charges are framed so as to make clear that each count on the indictment relates to dates different to and distinct from the dates when other offences were committed.

3 The complainant, who was born on the 30th November, 1962, is a former pupil of the appellant, who was a secondary school teacher at a north Dublin school. On the dates referred to in the charge sheets the complainant was between fifteen years and eleven months and seventeen years and six months. However, as we will see, the DPP has made clear that no charges will be proceeded with in respect of any period after the complainant turned seventeen years of age.

4 By reference to the book of evidence it emerges that the complainant attended counselling in 1994 and also in 2002/2003 but decided to make a formal complaint only in 2007. It appears the timing of the formal complaint was linked to the fact that the school which he had attended and where the appellant had taught was closing. In September 2008, he set out his complaints in a written document and then made a statement to gardaí over two days on the 8th and 12th October, 2008. It is to be noted that in these statements there is reference to incidents occurring between winter 1976 and 1978, but at a later stage this was amended to cover the period 1978 to 1980, and these were the dates that are now referred to in the indictment.

5 Detective Garda Cyril Kelleher, who was one of the lead investigators in the case, first became involved with the case in March, 2009. In late February 2011, he called to see the appellant at his home and made an arrangement for him to attend at a particular garda station two days later on a voluntary basis. The appellant did not attend, but instead attempted to take his own life. He did though attend at the garda station in June 2011, and when interviewed he made no admissions but indicated that he had denied the allegations to his solicitor and would be acting on his solicitor's advice.

6 Following consideration of the matter by the DPP, the appellant was charged and appeared before the Dublin Circuit Court for the first time on the 24th January, 2014. The appellant indicated that he would be pleading not guilty to all charges, and in those circumstances a trial date was set for the 19th January, 2015. On the 26th May, 2014, the appellant sought and was granted leave to seek judicial review.

7 In essence two issues are raised by the appellant in the course of the proceedings that he initiated. He raises the issue of delay and contends that there has been delay in this case to such an extent that the trial should not be permitted to proceed, and in that context he says that there is a real risk that he could not receive a fair trial. There is reference to complainant delay, and there is a particular emphasis on the issue of prosecutorial delay. Secondly, there is a constitutional challenge to s. 11 of the Criminal Law Amendment Act 1885 and to the offence of gross indecency, and in that regard reliance is also placed on the European Convention on Human Rights.

8 The matter was listed for hearing before Moriarty J. on the 6th May, 2015. On the morning of the hearing, the Chief Prosecution Solicitor furnished a letter stating that the DPP would not seek to ‘prosecute for any counts where the complainant … reached his seventeenth birthday’. However, the appellant draws attention to the fact that all of the counts with which he has been charged, and to date there have been no amended or substituted charges, refer to a period of time spanning his seventeenth birthday.

9 In November 2015, Moriarty J. delivered a reserved judgment rejecting the various grounds of challenge and refusing the appellant the reliefs sought. The appellant now brings this appeal against that judgment.

10 The grounds of appeal formulated are as follows:-

(i) That the trial judge erred in law in holding that the offence of gross indecency contrary to common law, as provided for by s. 11 of the Criminal Law Amendment Act 1885, was consistent with Article 38.1 of the Constitution of Ireland and/or with Articles 6 and 7 of the European Convention on Human Rights.

(ii) That, in particular, the trial judge erred in law in holding that the offence did not contravene the principle of legal certainty in criminal matters as guaranteed under the Constitution of Ireland and/or Articles 6 and 7 of the European Convention on Human Rights.

(iii) That the trial judge erred in law and in fact in entering into an adjudication on the facts as alleged by the second named respondent and in holding that the complainant did not or could not consent to the acts alleged against the appellant.

(iv) That the trial judge erred in law in holding that consent was not an...