G. -v- District Judge Murphy & Ors, [2011] IEHC 445 (2011)

Docket Number:2010 1290 JR
Party Name:G., District Judge Murphy & Ors
Judge:Hogan J.
 
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THE HIGH COURT2010 1290 JR

BETWEEN

B. G.APPLICANTAND

DISTRICT JUDGE CATHERINE MURPHY, DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGES OF THE DUBLIN CIRCUIT COURT (No.2)RESPONDENTSAND

IRELAND AND THE ATTORNEY GENERALNOTICE PARTIESAND

IRISH HUMAN RIGHTS COMMISSIONAMICUS CURIAE

JUDGMENT of Mr. Justice Hogan delivered on the 8th day of December, 2011

1. The issues considered in this judgment arise as a sequel to my earlier judgment in BG v. Judge Murphy (No.1) [2011] IEHC 359 (“BG No.1”). While the salient facts were set out in that judgment, one may briefly recapitulate by saying that the applicant is a 49 year old man whose mental capacity - in view of the relevant psychiatric evidence presented to the court - may fairly be regarded as being in some doubt. He now stands charged with the sexual assault of a female, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 (as amended) (“the 1990 Act”).

2. When the applicant originally came before the District Court in January 2010 it was indicated to the court that the Director of Public Prosecutions would consent to summary disposal of this indictable offence, but only if he were to plead guilty. In BG (No.1) I summarised thus the subsequent sequence of relevant events:-

“There then followed a series of adjournments which were variously designed to facilitate the making of appropriate disclosure by the prosecution and to obtain appropriate professional legal and psychiatric evidence. Matters came to a head in July 2010 when the Director outlined his position in writing:-

‘The DPP directed that the charge before the court proceed on indictment pursuant to s. 13 of the Criminal Procedure Act 1967. There is consent to the matter being disposed of if all the conditions of that section are met.

Since a fitness to plead issue has arisen, the accused is not in a position to enter a plea, therefore s. 13 of the Criminal Procedure Act cannot be utilised. The fitness to plead issue therefore has to be determined by the Circuit Court.

We will be making the application for the accused to be returned for trial for the fitness to be tried issue to be determined.’

Following a full hearing on 23rd July, 2010, on the issue, District Judge Murphy concluded that she had no jurisdiction in the matter, save in the event that the applicant pleaded guilty. The prosecution solicitor, Ms. Farrell, confirmed that the Director wanted the issue of the applicant’s fitness to plead to be sent forward for hearing to the Circuit Court. District Judge Murphy acceded to this submission and then sent the applicant forward on bail to the next sittings of the Dublin Circuit Court so that his fitness to plead could be determined by a judge of that Court.”

3. The critical issue in that judgment concerned the proper interpretation of the provisions of s. 4(3)(a) and s. 4(4)(a) of the Criminal Law (Insanity) Act 2006 (“the 2006 Act”). At a superficial level, the question was simply whether the question of the accused’s fitness to plead should be determined by the District Court or by the Circuit Court. As it apparent from the judgment in BG (No.1), I held that District Judge Murphy was correct to rule that this question must be determined by the Circuit Court in light of the relevant provisions of s. 4(3)(a) and s. 4(4)(a) of the 2006 Act. But the ultimate issue presented by this litigation is, in truth, a more subtle and difficult one.

4. In the ordinary way an accused person who wished to plead guilty to the charge and thereby obtain the benefit of the summary disposal of this indictable offence could simply do so by pleading to the charge in the District Court. The District Court could then impose a maximum sentence of 12 months. If the accused wished to appeal that sentence, he could do so without constraint to the Circuit Court, where the appeal would be heard de novo. If, on the other hand, it were considered that the sentence was too lenient, it would de facto be quite impossible for the Director of Public Prosecutions to appeal any such sentence. It is true that any sentence imposed by the District Judge might in theory be appealed by the prosecution to this Court on a point of law by virtue of s. 2 of the Summary Jurisdiction Act 1857 (as amended by s. 51 of the Courts (Supplemental Provisions) Act 1961). In practice, however, it would not appear that any such appeal against a sentence imposed by the District Court has ever been taken, even though this Court enjoys a jurisdiction to overturn an acquittal on a point of law: see, e.g., the remarks of Finlay P. in Director of Public Prosecutions v. Nangle [1984] I.L.R.M. 171, 172.

5. As we presently shall see, however, this option of pleading guilty is not open to an accused in the position of the applicant in view of the doubts which attach to his mental capacity. The crux of the problem is that the relevant legislation would permit him to consent to such summary disposal only where the District Court was satisfied that he understood the nature of the charge. Since this was to beg the very question which (as I have found) the 2006 Act required first to be determined by the Circuit Court - namely, his capacity to plead - the end result was that the accused was sent forward to the Circuit Court to enable the fitness to plead issue to be determined. As a consequence, in the event that the applicant is ultimately found to be fit to plead, the terms of the legislation would seem to suggest that the applicant faces the full rigours of trial on indictment before the Circuit Court. If this is correct, then the applicant faces a maximum sentence of 14 years.

6. This is by no means the only consequence. In the event that the Circuit Court were to impose a custodial sentence then it would require quite exceptional circumstances before the applicant could secure an effective stay on that sentence of imprisonment pending an appeal to the Court of Criminal Appeal. This is in contrast to the position in the District Court, where the accused will inevitably remain at liberty pending an appeal to the Circuit Court. Nor is the appeal to the Court of Criminal Appeal an untrammelled one. Leaving aside the purely theoretical restriction that leave to appeal is formally required, of far more significance is the fact that the Court of Criminal Appeal will not interfere with any such sentence unless some error of principle has been identified. By virtue, moreover, of s. 2 of the Criminal Justice Act 1993 (as amended) it would be open to the Director of Public Prosecutions to appeal any sentence imposed by the Circuit Court on grounds of leniency, albeit that in practice that Court will interfere with the sentence originally imposed only in special cases.

7. This is the general background to the present constitutional challenge. The essence of the applicant’s case is that he has been effectively deprived of the right to plead guilty in such circumstances in that District Court and that the 2006 Act was worked an unconstitutional discrimination against him. In this regard, I also had the benefit of very helpful submissions from Mr. McDermott for the Director of Public Prosecutions, Mr. Callinan SC for the Attorney General and Mr. Fitzgerald SC for the Irish Human Rights Commission, the latter appearing as amicus curiae. Before, however, we can swim out, so to speak, to these rather deep constitutional waters, it is first necessary now to set out the somewhat complex statutory background to this case.

The statutory background

8. Section 2 of the 1990 Act (as amended) provides:-

“The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.

(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.”

9. Section 13 of the Criminal Law Procedure Act 1967 (“the 1967 Act”) allows a District Judge to accept a guilty plea in respect of such an offence provided that “the court is satisfied that [the accused] understands the nature of the offence and the facts alleged.” To repeat what I said on this point in BG (No.1):-

“Section 13(2)(a) [of the 1967 Act] requires the consent of the prosecutor (i.e., the Director) for such summary disposal. Nevertheless, where there is such summary disposal, the maximum range of penalties is confined by that sub-section to that appropriate to a minor offence. Since, however, the District Court cannot ascertain whether the applicant understands the nature of the offence, the sub-section cannot presently be invoked, quite independently of the fact that there has been no indication by the applicant that he might wish to plead guilty.”

10. Section 4(3)(a) of the 2006 Act provides:-

“Where an accused person is before the District Court (in this section referred to as “the Court”) charged with a summary offence, or with an indictable offence which is being or is to be tried summarily, any question as to whether or not the accused is fit to be tried shall be determined by the Court.”

11. Here again I might conveniently repeat my analysis of this point contained in BG (No.1):-

“The applicant has not, of course, been charged with a summary offence. He was rather charged with an indictable offence which could only be tried summarily provided he pleaded guilty and provided also that the District Judge was satisfied that he understood the nature of the offence and the facts alleged. But these essential statutory pre-conditions to the exercise of that jurisdiction are not - as yet, at least - in place in the present case. It cannot therefore be said that the offence in question “is being or is to be tried summarily”, since without these pre-conditions being satisfied, the offence will never be tried summarily.

In the present case, the effect of the Director’s...

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