D (who is a minor) -v- Ireland & Ors, High CourtJudgment was given on April 21st, 2009, by Mr Justice Clarke
Judgment
A criminal trial of D under the Criminal Law (Sexual Offences) Act 2006, dealing with sex offences against under-age children, which was listed for April 28th, 2009, should not go ahead, provided it could be heard at the earliest possible date. The stay was sought pending a constitutional challenge to the 2006 Act.
Background
It was alleged that in the summer of 2006 the applicant D was guilty of sexual offences against a 14-year-old girl, when he was aged 15. He was charged under the 2006 Act, and she was not charged with any offence.
On March 10th, 2008, the applicant commenced proceedings seeking a declaration that s 3 (1) and s 5 of the Act were in breach of the Constitution, or alternatively in breach of Articles 6 or 14 of the European Convention on Human Rights. It was also claimed the DPP acted in breach of D’s constitutional rights in prosecuting him.
In May and June of last year the DPP informed the applicant’s solicitor that he intended to proceed with the prosecution unless an injunction was obtained preventing the trial from going ahead. The defence of the constitutional proceedings was filed in December.
The criminal proceedings were listed before Judge O’Hagan in Letterkenny Circuit Court on February 3rd, 2009, and April 28th fixed as the trial date. Judge O’Hagan said it would go ahead unless an injunction was obtained. D then sought an injunction before the High Court, which is the subject of this application.
Mr Justice Clarke outlined D’s challenge to the legislation, where s 3 states that any person who engages in a sexual act with a child under the age of 17 shall be guilty of an offence. S 5 states that a female child under 17 shall not be guilty of an offence by reason only of her engaging in an act of sexual intercourse.
Thus the original offence is not gender-specific, but s 5 provides an exemption for a female child. This meant that where consensual sex took place between two under-age people, the male was guilty of an offence, but the female was not. D argued that the Act was therefore discriminatory, and sought to challenge its constitutionality and its compatibility with the European Convention on Human Rights.
The State was defending the legislation on the grounds that it was entitled to distinguish between males and females in this area. It would also argue that, even if s 5 was struck down, the offence under s 3 (under-age sex) would remain, and D would not be immune from prosecution. The only result would be to expose the girl to prosecution as well.
The question was whether the court should exercise its power to prevent a criminal trial from proceeding.
Decision
Mr Justice Clarke said that, in considering the balance of convenience, very considerable weight had to be given to the desirability of applying legislation once it came into force unless and until it was found to be invalid.
In the CC case (2005), the Supreme Court was of the view that in the normal course of events a criminal trial should proceed and a determination of the legal issues should follow.
A court, when asked to stay criminal proceedings pending a constitutional challenge, must consider whether a fair case had been made to challenge the statute; where the balance of convenience lay, in the light of the desirability of enforcing legislation; and the proportionality of allowing the criminal trial go ahead, in the light of any special countervailing factors.
He said there was no doubt there was a fair issue to be tried on the constitutionality of the 2006 Act.
On the issue of allowing the legislation to be enforced in the meantime, he said it should be possible to do justice to all concerned in a way that did not significantly impair that imperative.
Provided that a very early trial could be arranged, it seemed a very short adjournment of the criminal proceedings would not involve any significant interference with the ordinary operation of the criminal process.
In coming to this view, he noted that D had commenced the proceedings in a timely fashion, but the State had only filed its defence in December. Had it done so earlier, it is likely that the constitutional proceedings could have been determined in advance of the criminal trial, he said.
The balance of convenience, therefore, lay in putting a stay on the criminal trial provided that measures could be put in place to ensure that the constitutional proceedings could be brought to hearing in the shortest possible time. This was strictly conditional on D and his advisers complying with all procedural requirements to ensure that the case was heard at the earliest possible date.
The full judgment is on www.courts.ie
Donal O’Donnell SC and Paul Anthony McDermott BL, instructed by the Chief Prosecution Solicitor, for the DPP; Eoin McGonigal SC, John O’Kelly SC and Mairead Carey BL, instructed by P A Dorian Co, Buncrana, Co Donegal, for the applicant