S.M. v Ireland (No 2)

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 12 July 2007
• Neutral Citation: [2007] IEHC 280
• Court: High Court
• Docket Number: [2003 No. 6559 P]
• Date: 12 July 2007

M (S) v Ireland

BETWEEN/

S.M.

PLAINTIFF

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS

[2007] IEHC 280

RECORD NO. 2003/6559 P

THE HIGH COURT

CONSTITUTIONAL LAW

Statute

Validity - Criminal law - Indecent assault committed prior to 1981- Single offence carrying different maximum penalty depending solely on gender of victim - Whether permissible having regard to guarantee of equality - Whether classification of persons convicted of indecent assault on male persons for different treatment in sentencing for legitimate legislative purpose and relevant to purpose. - Whether arbitrary, invidious discrimination - Whether justification for discrimination - Effect of declaration of inconsistency - de Burca v Attorney General [1976] IR 38 applied; Cox v Ireland [1992] 2 IR 503, In Re Employment Equality Bill 1996 [1997] 2 IR 321 and Molyneux v Ireland [1997] 2 ILRM 241 considered; Norris v Attorney General [1984] IR 36 distinguished - Constitution of Ireland 1937, Article 40 - Offences Against the Person Act 1861 (24 & 25 Vic, c 100 ), s 62 - Criminal Law Amendment Act 1935 (No 6), s 6 - Declaration granted (2003/6599P - Laffoy J - 12/7/2007) [2007] IEHC 280 M(S) v Ireland

the plaintiff was charged with various offences of indecent assault against males. The relevant sentencing provision was section 62 of the Offences Against the Person Act 1861 which provided, inter alia, as follows: "Whosoever...shall be guilty of...any indecent assault upon a male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable...to be kept in penal servitude for any term not exceeding ten years". The plaintiff sought a declaration that section 62 was repugnant to Article 40.1 of the Constitution on the basis that it amounted to an unjustifiable inequality before the law as it imposed a maximum sentence of ten years imprisonment for indecent assault on a male, that being five times greater than the maximum sentence for a first conviction of indecent assault on a female, as provided for by section 6 of the Criminal Law Amendment Act 1935. The defendants contended, inter alia, that the plaintiff did not have not sufficient locus standi to challenge the provision.

Held by Ms Justice Laffoy in declaring that the statutory maximum penalty provided for in section 62 of the Act of 1861 was inoperative:

1. that the plaintiff had sufficient locus standi to challenge the constitutionality of section 62 of the Act of 1861 as he had been returned for trial and was in imminent danger of a determination which would affect his rights.

2. That section 62 of the Act of 1861, in mandating a maximum penalty for indecent assault when committed against a male which was substantially different from the maximum penalty mandated by law when the same offence was committed against a female, was prima facie discriminatory on the ground of gender in contravention of Article 40.1 of Bunreacht na hÉireann unless the differentiation it created was legitimated by reason of being founded on difference of capacity, whether physical or moral, or difference of social function of men and women in a manner which was not invidious, arbitrary or capricious.

3. That there was nothing in the Act of 1861 or in an objective consideration of the differences of physical capacity, moral capacity and social function of men and women which pointed to a legitimate legislative purpose for imposing a more severe maximum penalty for indecent assault on a male than for the same offence against a female.

Reporter: P.C.

WEIGHTS & MEASURES CONSOLIDATION ACT 1878 (UK)

CASUAL TRADING ACT 1980

CASUAL TRADING ACT 1995

KILKENNY BOROUGH COUNCIL CASUAL TRADING BYE-LAWS 2003

FREEDOM OF INFORMATION ACT 1997

DUBLIN CORPORATION v MCGRATH 1978 ILRM 208

KILKENNY MARKETS ACT 1861

STREET TRADING ACT 1926

HAWKERS ACT 1888

OCCASIONAL TRADING ACT 1979

COUSINS PEASE & CHITTY'S LAW OF MARKETS & FAIRS 5ED 1998 1

HALSBURY'S LAWS OF ENGLAND 4ED PARA 623

CONVEYANCING & LAW OF PROPERTY ACT 1884 (UK)

MANCHESTER MARKETS ACT 1846 (UK)

MAYOR OF NEW WINDSOR & ANOR v TAYLOR 1899 AC 41

LOCAL ACT 9 GEO 2 C.XV 1734 (UK)

LOCAL ACT 59 GEO 3 C.CXXVI 1819 (UK)

HALSBURY'S LAWS OF ENGLAND 3ED PARA 308

COUSINS PEASE & CHITTY'S LAW OF MARKETS & FAIRS 5ED 1998 102

KILKENNY MARKETS ACT 1861 S28

CHARTER OF KING JAMES I OF 1608

CHARTER OF KING JAMES I OF 1609

MARQUIS OF DOWNSHIRE v O'BRIEN 1887 19 LRIR 380

R (HAYNES) v STAFFORD BOROUGH COUNCIL 2007 1 WLR 1365

CASUAL TRADING ACT 1995 S2(2)

SKIBBEREEN UDC v QUILL 1986 IR 123 1986 ILRM 170 1986 4 1498

HAND v DUBLIN CORPORATION 1991 1 IR 409 1991 ILRM 556 1991 3 647

BRIDGEMAN v LIMERICK CORPORATION UNREP FINNEGAN 2.6.2000 2000/3/812

BRIDGEMAN v LIMERICK CORPORATION 2001 2 IR 517 2001 2 444

CASUAL TRADING ACT 1995 S7(4)

CASUAL TRADING ACT 1995 (COMMENCEMENT) ORDER 1995 SI 267/1995

CASUAL TRADING ACT 1995 S6

CASUAL TRADING ACT 1995 S17(1)(b)

CASUAL TRADING ACT 1995 S17(4)

1 Judgment of Miss Justice Laffoy delivered on 12th July, 2007.

Factual and procedural background

2 The plaintiff stands charged with 33 offences, 31 of which relate to indecent assault on a male. The offences are alleged to have occurred over a ten-year span between 1966 and 1976. There are eight complainants, each of whom was under seventeen years of age at the time of the alleged offences against him. If the plaintiff is convicted of any of the alleged offences of indecent assault on a male, having regard to the time frame within which the offences are alleged to have been committed, the relevant sentencing provision is s. 62 of the Offences Against the Person Act, 1861 (the Act of 1861), which, insofar as is relevant to such offence, provides as follows:

"Whosoever ... shall be guilty of ... any indecent assault upon a male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable ... to be kept in penal servitude for any term not exceeding ten years ..."

3 The charges against the plaintiff have a long history. On 1st October, 1997 he was charged with 23 offences of indecent assault, in respect of which he was served with a book of evidence in November 1997. In relation to those charges, on 16th February, 1998 he obtained leave to apply for judicial review against the third defendant (the Director) seeking to prohibit the further prosecution of the offences on the ground of delay. That application was refused by this Court (McGuinness J.) on 20th December, 1999. While the judicial review proceedings were being prosecuted, the plaintiff was charged with a further eight offences of indecent assault. On 28th February, 2000 the plaintiff was returned for trial, the two sets of charges being consolidated. On foot of an application by the plaintiff the matter was transferred from the Galway Circuit Criminal Court to the Dublin Circuit Criminal Court, where the matter stands adjourned pending the outcome of these proceedings.

4 These proceedings were initiated by plenary summons which issued on 30th May, 2003. The primary relief which the plaintiff seeks is a declaration that s. 62 of the Act of 1861 is unconstitutional and is null and void. Following the coming into operation of the European Convention on Human Rights Act, 2003 (the Act of 2003) the plaintiff was given leave to amend his statement of claim to seek a declaration pursuant to s. 5(1) of that Act that s. 62 is incompatible with the State's obligations under the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). Subsequently, after the matter had been listed for hearing, the defendants brought a motion seeking to dismiss these proceedings on the basis that they were an abuse of process. That motion was successful at first instance. However, an appeal by the plaintiff against that decision was successful. The judgment of the Supreme Court was delivered by Kearns J. on 28th March, 2007. That cleared the way for the substantive proceedings to be heard in this Court.

The plaintiff's argument in outline

5 It is the plaintiff's contention that s. 62 of the Act of 1861, as amended and operational at the time of the offences he is alleged to have committed, is in breach of Article 40.1 of the Constitution, amounting to an unjustifiable inequality before the law, as it imposes a maximum sentence of ten years imprisonment for indecent assault on a male person, that being five times greater than the maximum sentence for a first conviction of indecent assault on a female, as provided by s. 6 of the Criminal Law Amendment Act, 1935 (the Act of 1935). While the plaintiff also contends that s. 62 breaches his rights under article 6 of the Convention to fair procedures in determination of criminal charges free from discrimination on the grounds of sex as provided for by article 14 of the Convention, in reality, the focus of the submissions made on his behalf was on the guarantee of equality contained in Article 40.1. Therefore, the focus of this judgment will be on whether, as was argued on behalf of the plaintiff, s. 62 is contrary to Article 40.1 and was never carried over into law by Article 50.1 of the Constitution.

6 In addressing that issue, it is necessary to consider first the legislative history of punishment of the offence of indecent assault and the nature of that offence.

The legislative history of punishment for indecent assault

7 Sections 61 and 62 of the Act of 1861 were enacted under the heading "Unnatural Offences". Section 61, as amended by the Statute Law Revision Act, 1892, provided as follows:

"Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be kept in penal servitude for life."

8 Section 62, as...