C.C. -v- Ireland & Ors, [2005]IESC48 (2005)

Docket Number:357/04
Party Name:C.C., Ireland & Ors
Judge:Denham J. / Geoghegan J. / Fennelly J.


  1. Three cases were heard together in the High Court and, judgment was delivered by Smyth J. on the 6th day of June, 2004, where, for the reasons given, the declarations sought by J. M., C. C., and P. G., were refused. Against that order and judgment C. C., and P. G., have appealed to this court.

  2. J. M., has appealed the costs order only, which issue will be addressed at a later stage. C. C. and P. G. proceeded before this Court on substantive issues.

  3. I shall consider first the appeal of C. C., and then the case of P. G..

    The Application of C. C.

  4. The applicants are each awaiting trial in the Dublin Circuit (Criminal) Court, having been charged with sexual offences against the same complainant.

  5. C. C. is charged with four offences, namely:

    (i) That on the 20th day of July, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935;

    (ii) That on the 2nd day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years, contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935;

    (iii) That on the 10th day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935; and,

    (iv) That on the 16th day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935.

  6. The complainant was approximately 13 years 10/11 months at the time of the alleged offences, having been born on the 3rd day of September, 1987.

  7. C. C. made a statement to the Garda Síochána in which he stated that he had consensual sexual intercourse with the complainant. It was submitted that there were grounds upon which he could have believed reasonably that the complainant was over 15 years of age. He instructed his solicitor that he had believed that the complainant was over 15 years of age. On behalf of C. C. it was submitted that his reasonable belief in the age of the complainant would form part of his defence if it were not for the apparent prohibition in law of such a defence.

  8. The reliefs sought by C. C. on this application for judicial review include:(a) A declaration that knowledge, reasonable belief as to the age of the complainant, on the part of the applicant, is a defence.

    (b) A declaration that the exclusion of the defence of mistake as to age is repugnant to the Constitution, that if the offence created in s.1 (1) of the Criminal Law (Amendment) Act, 1935 is an offence of strict liability it is inconsistent with the Constitution.

  9. Out of time

    The learned High Court judge held that the applicants' application for judicial review was out of time and had not been made promptly. However, he determined that the issues in the instant case were far too important to permit the judicial review application to be decided on a time point only unless some serious prejudice has or is likely to be caused. He held that prejudice in this context is not confined to the parties but is to be considered in the context of a fair and efficient justice system to the whole community. Further, he relied on the public policy that proceedings relating to public domain law should take place promptly, except where good reason is furnished. In all the circumstances, including the delivering of a fair and just legal system, the learned trial judge permitted the applications for judicial review proceed. On this preliminary issue I am in agreement with Geoghegan J. that as the indictment had not been served in either case neither applicant was out of time to seek leave for judicial review.

  10. The propriety of an application for judicial review

    Submissions were made that the proceedings were a moot, that the trial had not yet taken place, that the Court would have to deal with hypothetical facts, and that thus the matter was inappropriate for judicial review.

  11. Locus Standi

    The applicants have locus standi to seek judicial review, they are in imminent danger of a criminal trial which affects them: Curtis v The Attorney General [1985] I.R 458. However, that being established, it is necessary then to consider whether the remedy of judicial review is appropriate given that the application is made in relation to a criminal process.

  12. In all the circumstances of this case, including the fact that the learned trial judge had given a judgment on the merits of the case, this Court was in a position where it had no real choice and I am satisfied that it had to proceed to consider the substantive issues.

  13. However, I would add a few words on the situation. These three cases are at their preliminary stages. The High Court found that the relevant law, from decided cases, to guide the Court, was as follows:"1. The overwhelming responsibility reposed by the law and the Constitution on the trial judge is to ensure the fairness of the trial. An exceptionally important aspect of this function is to adjudicate on the evidence which should be placed before the jury…

  14. The Circuit Court did not have jurisdiction to hear and determine an application to the effect that a statute enacted prior to the coming into force of the Constitution was inconsistent with the Constitution. (The People (Director of Public Prosecutions) -v- M.S. [2003] 1 I.R 606).

  15. Judicial review was an available remedy in principle which permitted challenges to decisions made in the course of a criminal trial, but only in the most exceptional circumstances. (DPP v Special Criminal Court [1999] 1 I.R 60)".

    The learned trial judge considered whether these cases should fall into the category of exceptional cases. He raised the question:"If every case in criminal law prior to trial in the Circuit Court raised a question of the constitutionality of each and/or every or any paragraph, subsection or section of criminal law statutes which have or has not been expressly and definitively been the subject of at least a decision of the High Court, more probably a decision of the Supreme Court, is the remedy of judicial review to be available?"

    The learned trial judge referred to D.P.P. v Special Criminal Court [1999] I.R. 60, where the undesirability of applications for judicial review in the currency of trial was stressed.

    However, these three cases may be distinguished from a situation where judicial review is sought in the currency of a criminal trial. These applications have been brought at the preliminary stage of the criminal process. No indictment has yet been laid, although the charges are known. There is an important difference between considering an application for judicial review in the currency of a trial as opposed to an application prior to the commencement of the trial, prior to the laying of an indictment. While an application for review in the currency of a trial, may only be successful in the most exceptional circumstances, applications for judicial review prior to trial fall into a different category. However, even in these latter cases it is still inter alia within the discretion of the Court to refuse the application for judicial review on the grounds that the issue would be best met at the trial by the trial judge.

  16. The facts in this case are somewhat hypothetical. However, the kernel issue is clear and it is the query as to the availability in law of a defence, as to whether a mistaken belief by an applicant as to the complainant's age is a defence under the law. Consequently, while the facts are not yet established, and have yet to be found, and no part of this judgment should be read as in any way taking from the jury the decision-making power on the facts, this Court is in a position to consider the law and construe the statute and determine whether under the law such a defence is available.

  17. There is no doubt but that it is wholly undesirable that a criminal trial be delayed while an application for judicial review proceeds. However, I am satisfied that in all the circumstances of this case, including the judgment of the High Court on the substantive issue, the facts and the issues raised, that in these cases there were circumstances so as to justify proceeding by way of judicial review. The alternative options, including an appeal to the Court of Criminal Appeal and perhaps ultimately on a point of law of exceptional public importance to the Supreme Court, or a case stated, may not enable a fair and just trial. It would be unfair to force the three applicants to endure a trial without final determination of the issue of the defences available, which goes to the core of the prosecution and the defence. It is fair and just that the applicants have a legal determination, a statutory interpretation, in all the circumstances prior to the trial. Consequently, I would uphold the decision of the High Court in this issue. However, this decision should not be regarded as a precedent determining that an issue of statutory interpretation would routinely be circumstances such as to provide a basis for a judicial review pre-trial.

  18. Statutory Interpretation

    At the core of this case is the interpretation, the construction, of the relevant legislation, being s.1 (1) of the Criminal Law (Amendment) Act, 1935, hereinafter referred to as the Act of 1935.

  19. The offences of which C. C. is charged are to be found in s.1 (1) of the Act of 1935, which provides:"Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years."

    The words of this section fall to be construed. I shall approach this construction from three aspects. First, consideration of the words of the section; secondly, consideration of the common law, and thirdly, I shall consider the legislative history.

  20. First, the words...

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