The Supreme Court has decided that a Circuit Court judge has no jurisdiction to decide the constitutionality of a law which provides a maximum sentence of 10 years' penal servitude for an indecent assault on a male but a two-year prison sentence in the case of a first offence involving a female victim.
The decision arose when the constitutionality of Section 62 of the Offences Against The Person Act 1861 was questioned at Dundalk Circuit Criminal Court by a man charged with 11 offences of indecent assault.
The man had given notice at his arraignment before the Circuit Court that he intended to apply to that court to quash the charges on the basis that Section 62 of the Act was unconstitutional.
Since the maximum sentence in the case of an indecent assault where the complainant was a male was 10 years' penal servitude, but in the case of a first offence, two years' imprisonment where the complainant was a female, the man argued this constituted unlawful discrimination on the ground of sex.
He argued this was in violation of the Constitution and the European Convention on Human Rights and Fundamental Freedoms.
The DPP argued that the Circuit Court judge could not decide the constitutionality of the legislation and the judge referred the issue of whether he had the required jurisdiction to the Supreme Court.
Yesterday, the Chief Justice, Mr Justice Keane, giving the unanimous decision of the five-judge court, said the District and Circuit Courts were created by statute as courts of local and limited jurisdiction.
Mr Justice Keane said he did not rest his view that the District and Circuit Court enjoyed no such jurisdiction simply on the absence of legislation.
He would also hold, if it were necessary in this case, that legislation purporting to confer on those courts a jurisdiction to entertain such issues would be constitutionally invalid.
Unless and until the High Court or Supreme Court decided the constitutionality of the legislation in question, trial judges would discharge their constitutional duty by upholding it and applying it to the facts of the case before them.