M. -v- Ireland & Ors,  IEHC 280 (2007)
|Docket Number:||2003 6559 P|
|Party Name:||M., Ireland & Ors|
THE HIGH COURT
RECORD NO. 2003/6559 P
IRELAND, THE ATTORNEY GENERAL AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of Miss Justice Laffoy delivered on 12th July, 2007.
Factual and procedural background
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 " 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.
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
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.
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
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."Section 62, as similarly amended, which I have already quoted in part, provided for a maximum penalty of ten years penal servitude, not only in the case of a conviction of any indecent assault upon a male person but for "attempt to commit the said abominable crime", that is to say, buggery, or conviction "of any assault with intent to commit the same".
Section 52 of the Act of 1861, which was enacted under the heading "Rape, Abduction and Defilement of Women", provided for a maximum penalty of two years imprisonment on conviction "of any indecent assault upon any female". That section was repealed by the Act of 1935, which enacted, in s. 6, in lieu thereof, a provision that -" whosoever shall be convicted of any indecent assault upon any female shall be liable, in the case of a first conviction of any such offence, to imprisonment for any term not exceeding two years, and in the case of a second or any subsequent conviction of any such offence, to penal servitude for any term not exceeding five years nor less than three years or imprisonment for any term not exceeding two years." Until s. 6 of the Act of 1935 was repealed in 1981, a person, whether male or female, convicted of an indecent assault of a male person was liable to a maximum penalty of ten years, whereas a person, whether male or female, who was convicted of indecent assault on a female was liable to a maximum sentence of two years for a first conviction. That remains the position in relation to a conviction for an offence of indecent assault which occurred before 1981.
Section 10 of the Criminal Law (Rape) Act, 1981 (the Act of 1981) repealed s. 6 of the Act of 1935 and raised the maximum penalty on conviction of any indecent assault upon a female to ten years imprisonment. Thereafter, the penalty for indecent assault was victim gender neutral, a state of affairs which has persisted down to the present time, notwithstanding intervening legislative changes. First, s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 (the Act of 1990), having provided that 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, further provided that a person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding five years. Secondly, s. 37 of the Sex Offenders Act, 2001 (the Act of 2001) amended the Act of 1990 by providing a maximum penalty of fourteen years for sexual assault on a child, meaning a person under seventeen years of age, and a maximum sentence of ten years for any other sexual assault.
The nature of the crime of indecent assault
The nature of the crime of indecent assault was considered by the Supreme Court in Director of Public Prosecutions v. E.F. (Supreme Court, 24th February, 1994, Unreported). In his judgment, with which the other four judges agreed, Egan J. stated that the offence of indecent assault was never created by any statute, although punishments for the offence have been from time to time laid down by various statutes. He then went on to consider, in the context of an indecent assault upon a female, inter alia, s. 6 of the Act of 1935, s. 10 of the Act of 1981 and s. 2 of the Act of 1990, which came into operation on 21st January, 1991, and he stated:"It is clear from the foregoing that the offence of indecent assault remains but as and from 21st January, 1991 it became known as sexual assault. It still remains a common law offence for which punishment is provided by statute."Egan J. went on to state that an indictment should refer to the offence as "indecent assault contrary to common law", and that, while there is no necessity to include the words "and as provided for" by the statutory provision imposing the punishment relevant to the time the offence is alleged to have been committed, it might be helpful as pointing out where the punishment is to be found. I mention that because the charge sheets which have been put before the court in this case indicate that the plaintiff is charged with indecent assault "contrary to" s. 62 of the Act of 1861. However, that is for another day and another forum.
The decision in The Director of Public Prosecutions v. E.F. was followed more recently by the Supreme Court in S.O'C. v. Governor of Curragh Prison  1 I.R. 66, where Hardiman J. reiterated that s. 2 of the Act of 1990 had merely effected a change of the name of the offence and that the nature of its constituent elements remained unaltered.
The constituent elements of the common law offence of indecent assault are set out in Charleton, McDermott & Bolger on Criminal Law (1999 Edition, Butterworths) at p. 647 as follows:
"(1) That the accused intentionally assaulted the victim. (2) That the assault, or the assault and the circumstances accompanying it, are proved to be indecent according to the contemporary standards of right-minded people.
(3) That the accused intended to commit such an assault as referred to in (2) above." As counsel for the...
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