High Court quashed return for trial due to insufficiently specified foreign sexual assault charge under Irish jurisdiction law.

THE SUPREME COURT

2001 No. 275

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

McCracken J.

BETWEEN/

B. H.

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND DISTRICT JUDGE GILLIAN HUSSEY

Respondents/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 6th day of February 2003

This is an appeal brought by the Director of Public Prosecutions against an order of the High Court (McKechnie J.) dated 6th of April,

2001 quashing an order made by Judge Gillian Hussey returning the above-named B.H. who is the applicant for Judicial Review and

respondent on this appeal for trial in the Dublin Circuit Criminal Court in respect of a charge set out in the relevant Statement of

Charges before the District Court. Although the learned High Court judge delivered a lengthy and carefully reasoned judgment, the

point of law at issue is quite net and I will attempt briefly to explain it. Following on an allegation that the respondent had committed

a sexual assault on a child in an hotel in England and following on garda investigations and the issue of an appropriate warrant the

respondent was brought before Kilmainham District Court and charged. After two adjournments, a book of evidence was served on him

on the 2nd of September, 1999 and this contained the Statement of Charges pursuant to section 6(1)(a) of the Criminal Procedure

Act, 1967 which contained one charge only. That charge read as follows:-

“For that you the said accused, being ordinarily resident in the State, did on or about the 1st of June, 1997 at the Weekly Park

Hotel (Travellers Inn), Wigan, Greater Manchester, England sexually assault (S.K.), a child, such act constituting an offence

under the law of England and Wales.

Contrary to section 2 of the Sexual Offences (Jurisdiction) Act, 1996.”

The argument was made in the High Court on behalf of the respondent and was accepted by the learned High Court judge that that

statement of charges disclosed no offence known to the law in that section 2 of the Sexual Offences (Jurisdiction) Act, 1996 did not

itself create an offence.

Section 2 of the 1996 Act contains seven subsections but only subsection (1) is relevant to this case. The other subsections deal

with attempts and conspiracies to commit offences of the type referred to in subsection (1) or the aiding or abetting of such

offences. The relevant subsection i.e., subsection (1) reads as follows:-

“Where a person, being a citizen of the State or being ordinarily in the State, does an act, in a place other than the State (‘the

place’), against or involving a child which –

(a) constitutes an offence under the law of the place and

(b) if done within the State would constitute an offence under, or referred to in, an enactment specified in the Schedule

to this Act,

he or she shall be guilty of the second- mentioned offence.”

It would seem crystal clear from any reading of that subsection that it is not purporting to create a new offence but rather to extend

the jurisdiction to try certain existing offences.

The Schedule to the Act reads as follows:

“SCHEDULE

1. Section 1 of the Criminal Law Amendment) Act, 1935.

2. Section 2 of the Criminal Law (Amendment) Act, 1935.

3. Section 2 of the Criminal Law (Rape) Act, 1981.

4. Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990.

5. Section 3 of the Criminal Law (Rape) (Amendment) Act, 1990.

6. Section 4 of the Criminal Law (Rape) (Amendment) Act, 1990.

7. Section 3 of the Criminal Law (Sexual Offences) Act, 1993.

8. Section 4 of the Criminal Law (Sexual Offences) Act, 1993.

9. Section 5 of the Criminal Law (Sexual Offences) Act, 1993.”

I do not intend reviewing the authorities cited as they are very fully and in my opinion, correctly reviewed by the learned High Court

judge in his judgment. The cases cited on behalf of the D.P.P. in support of the view that section 2 of the 1996 Act creates an

offence are clearly distinguishable for the reasons given by McKechnie J. and do not, in any way, support the argument of the D.P.P.

In view of the fact that section 2 expressly provides that the person “shall be guilty of the second-mentioned offence” and that the

second-mentioned offence must be one of the offences set out in the Schedule, I cannot see any ambiguity in the section itself and I

cannot see any reason why case law would have to be availed of to interpret it. It is plain beyond argument that the 1996 Act does

not create the offence.

A fall back argument on behalf of the D.P.P. is that the Statement of Charges provided sufficient information at any rate even if the

real offence the subject matter of the charge was a scheduled offence because of the fact that the Schedule sets out various

sections and having regard to the reference to “sexually assault”. Leaving aside for the moment the wholly unsatisfactory situation

under which an accused or even his legal advisors might have to look up nine sections with a view to ascertaining what offence was

being referred to, in this particular case if he or his lawyers had looked up the sections it could have been by no means certain as to

whether he was in reality being tried for sexual assault under section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 or

aggravated sexual assault under section 3 of the same Act. Very different penalties attach to each offence. The maximum sentence

for sexual assault is five years whereas the maximum sentence for aggravated sexual assault is imprisonment for life. The fact that

the expression “sexually assault” is used in the statement of charge does not in any way help the D.P.P. in his argument. The words

“sexually assault” are used in this connection merely as descriptive words in relation to what actually happened in England and they

cannot be regarded as constituting a term of art. It does not necessarily follow therefore from the use of the expression “sexually

assault” that the relevant scheduled offence in the Irish Act is the statutory offence of “sexual assault”.

Even if the problem of the two kinds of sexual assault did not arise I would still consider the return for trial to be invalid because the

statement of charges does not specify which scheduled offence is being referred to and, therefore, the respondent cannot have been

said to have been charged with any known specified offence.

Although the point does have to be considered in this case and, therefore, anything that I have to say about it is merely obiter dicta,

I would be of opinion that a correctly drafted Statement of Charges should specify the particular Irish scheduled offence concerned

and should make it clear that the offence was contrary to the relevant statutory provision but it should also refer to section 2 of the

Sexual Offences (Jurisdiction) Act, 1996 to show on its face that it relates to a foreign incident. Assuming that the intention of the

D.P.P. in this case was to prosecute for “sexual assault” simpliciter it would have been sufficient if the statement of charges had the

words “contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as applied by section 2 of the Sexual Offences

(Jurisdiction) Act, 1996.”

I have been concentrating on the terms of the Statement of Charges rather than on the Return for Trial which is the document which

has been quashed by the High Court. I should explain that the form of the “order on preliminary examination” is that the District judge

was of opinion that there was a sufficient case to put the accused on trial “for offences numbered 1 in the Statement of Charges and

with which the accused has been charged”. Accordingly, therefore, by implication the wording of the Statement of Charges has been

carried over into the Return for Trial. Where that form is used it must obviously follow that if the Statement of Charges is invalid, the

return is invalid.

It was also argued that even if the return for trial is invalid this did not necessarily mean that the accused was not properly before

the trial court and that the Circuit Court did not have jurisdiction to try him accordingly. For the reasons given by the learned High

Court judge I consider that this submission is unfounded and that the respondent was not properly before the Circuit Court.

I would, therefore, dismiss the appeal.