Seán Thackaberry v DPP
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] IEHC 359 |
| Docket Number | [2020 No. 234 JR] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 359
[2020 No. 234 JR]
THE HIGH COURT
JUDGMENT of Mr Justice Max Barrett delivered on 18th May 2021.
A sex offender within the meaning of the Sex Offenders Act 2001 must, under s.10 of that Act, keep the Gardaí notified of certain details about his life. If he does not do this, he can be prosecuted and convicted of an offence under s.12 of the Act. A s.12 offence is an example of what is known as a ‘hybrid’ offence, i.e. one that that can be prosecuted summarily or on indictment.
In General Direction No.3 of 8th November 2011 to members of An Garda Síochána, the DPP indicates, at section 4(1) of same, that she “elects for summary disposal in the following category of cases without submission of a Garda file….(i) a breach of section 12 of the Sex Offenders Act 2001, as amended”. However, she notes at section 4(2) that:
“The Garda having carriage of the case should consider forwarding the file to the Director…in any case where, although the offence or offences are captured by the above election, the multiplicity of the offences or the previous record of the accused or other aggravating circumstances suggest that summary disposal would be inappropriate or that a 12 month sentence (or in the case of more than one offence a 24 month sentence) would be inadequate”,
and adds, at section 6, that:
“The Garda Síochána are encouraged to seek directions in any case, even of a summary nature, where there is an unusual question of law involved, where the charge is without fairly recent Irish precedent or where the matter has aroused unusual public interest or is likely to do so”.
By virtue of the DPP's General Direction No. 3, a s.12 offence will generally proceed summarily, though the potential exists, where a particular issue/concern is perceived to present, for it to proceed on indictment.
When an alleged s.12 offence comes before the District Court, the District Judge has to decide whether the facts of the alleged offence are such that he should refuse jurisdiction essentially because of the seriousness of the offence presenting. Typically at jurisdiction hearings, a District Judge will not be told about any criminal record of the accused, as it is a pre-trial hearing and the presumption of innocence applies in its entirety. However, when greeted with a sex offender accused of a s.12 offence, a District Judge will necessarily know that the accused has a previous criminal record embracing at least one sexual offence. This is unavoidable; however, the District Judge does not unavoidably know anything else concerning that previous sexual offence, and proportionality requires that there should not be what counsel for Mr Thackaberry referred to at hearing as “ an exposé of that offence” in the context of a decision as to jurisdiction.
The question that arises in this application is whether, in deciding on jurisdiction, the District Judge, to contextualise what he is dealing with, can enquire into the facts of the previous sexual offence/s that have brought an accused within the scope of ss.10 and 12 of the Act of 2001. As will be seen, previous case-law points to this being something that the District Judge cannot ask about. This is because it involves straying into irrelevant considerations and would yield a reasonable apprehension of bias. A follow-on question that immediately arises is what if, in the concern for the presumption of innocence, there is something which, unknown to the District Judge, makes a matter unsuitable for summary trial. This question is answered by Ní Raifeartaigh J. in Gifford v. DPP [2017] 2 I.R. 761, where she observes as follows, at p.780:
“As to any practical disadvantages arising from a prohibition on references being made to previous convictions during the jurisdiction decision-making part of the process in open court, this can be, and has been, dealt with by conferring a statutory power upon the Director of Public Prosecutions to withhold consent summary trial”.
I turn below to consider the case at hand in more detail. Before proceeding, however, one general point might usefully be made. That point is as follows. This application is concerned with a pre-trial process. Hence cases such as Corporation of Dublin v. Flynn [1980] I.R. 357 and State (O'Hagan) v. Delap [1982] I.R. 213 that go to a trial process are concerned with a different limb of the criminal process and so are not considered hereafter. The court notes in passing that it was referred by counsel for the DPP to a consideration of Flynn and also of Clifford v. DPP [2013] IESC 43 in McGrath, D. and E. Egan McGrath, McGrath on Evidence, 3rd ed. (Dublin: Round Hall, 2020). With respect, however, that consideration, at paras. 13–34 et seq. is expressly concerned with proof of conviction during a trial, which rather reinforces the point just made by the court, viz. that care has to be taken when approaching case-law and commentary that one is treating the case-law and commentary concerned with the limb of the criminal process with which this application is concerned, i.e. a pre-trial determination as to jurisdiction.
Turning then to the case at hand, Mr Thackaberry has been charged with an offence contrary to s.12 of the Sex Offenders Act 2001. When his case was called before the District Court on 19th November 2019, a garda sergeant informed the court that the DPP had directed summary disposal of the charge (as per General Direction No.3). The District Judge queried if the alleged offence was indictable, counsel for the State sought time to confirm if this was so, the District Judge granted the adjournment sought and also directed that the State provide details of the underlying offence which had led to the s.12 charge.
On 26th February 2020, when Mr Thackaberry's case was again called, another garda sergeant informed the court that the DPP had directed summary disposal of the charge (as per General Direction No.3). The garda sergeant also provided an outline of the offence which had resulted in Mr Thackaberry becoming subject to the requirements of the Sex Offenders Act. Having heard these details the learned District Judge refused jurisdiction. A transcript of the exchanges on the 26th has been furnished to the court and reads, amongst other matters, as follows:
“DEFENCE COUNSEL: I appear on behalf of Seán Thackaberry, Judge….This matter is listed for the purpose of jurisdiction, Judge.
DISTRICT JUDGE: Okay. DPP summary?
GARDA SERGEANT: DPP direct summary, Judge. There was a question whether this charge was simply summary or indictable. It is indictable, Judge.
DISTRICT JUDGE: Okay, and what are the allegations?
GARDA SERGEANT…. [F]ailing to comply with Sex Offenders Register, Judge.
DISTRICT JUDGE…. [I]s this on foot of a conviction in the higher courts..?
GARDA SERGEANT: Yes Judge….[T]he conviction relates to a matter which came before the Central Criminal Court, Judge.
DISTRICT JUDGE: The Central Criminal Court?
GARDA SERGEANT…. [A]t the Central Criminal Court on the 8th of May 2013, aggravated sexual assault contrary to section 3. That's…the triggering offence…for the registering under the Sex Offenders Act.
DISTRICT JUDGE: That's what he was convicted of?
GARDA SERGEANT: Yes, Judge….
DISTRICT JUDGE…. What [were]…the penalties?
GARDA SERGEANT: He received a 7 1/2 year conviction on that, Judge.
DISTRICT JUDGE: Okay. This conviction was [before] the Central Criminal Court. I am satisfied this is not a minor allegation. I'm going to refuse jurisdiction. The date's the –
[Court Note: It is striking that notwithstanding that he has just refused jurisdiction, the learned District Judge to this point has had no express regard whatsoever to the details of the alleged offence that is actually before him.]
DEFENCE COUNSEL: Can I just ask on what basis the court is refusing jurisdiction? I appreciate that the offence that the sergeant has outlined is in respect of a matter that he [Mr Thackaberry] has been convicted of previously.
DISTRICT JUDGE…. I know that.
DEFENCE COUNSEL: The allegation was simply in respect of not –
DISTRICT JUDGE: Not registering, exactly, but the Court would have to take the wider picture. I've asked a few questions. It's failure to comply with – it's basically saying…he has to comply with the Sex Offenders Act 2001….[A]s it's a non-minor allegation, I'm refusing jurisdiction.
DEFENCE COUNSEL: May it please the Court.”
Mr Thackaberry claims that the learned District Judge (i) erred in law in (a) taking into consideration and/or attaching undue weight to irrelevant considerations (the nature of Mr Thackaberry's original sexual offence), and (b) failing to take into consideration adequately or at all relevant considerations, namely the circumstances of the offence actually alleged against Mr Thackaberry, (ii) acted without, or in excess of, jurisdiction in determining that the facts alleged did not constitute a minor offence and were not fit to be tried summarily. The principal reliefs now sought by Mr Thackaberry are an order (a) quashing the order refusing jurisdiction and (b) remitting matters to the District Court for fresh consideration.
By way of relevant law the court has been referred to Article 38.2 of the Bunreacht (“ Minor offences may be tried by courts of summary jurisdiction”), as well as to, amongst other provisions, ss.10 and 12 of the Act of 2001 (considered in detail later below).
Before proceeding further, the court notes, and respectfully rejects, the DPP's contention that the within proceedings seek to usurp the...
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