The Supreme Court allowed Stephen Mitchell’s appeal against a High Court order dismissing his constitutional challenge as an abuse of process. The court set aside the dismissal; it did not decide whether section 62 of the Offences Against the Person Act 1861 was constitutional or determine the criminal charges against him.
Mitchell, a Christian Brother and teacher at St Joseph’s Residential School in Salthill, Galway, faced 33 indecent-assault charges, including 31 under section 62. The charges concerned allegations by former pupils relating to periods between 1963 and 1976. Mitchell denied the allegations when interviewed by gardaí in 1996. He was charged with the first 25 offences in October 1997 and with eight further offences in February 1999. The charges were consolidated and returned for trial in February 2000. He remained on bail.
In 1998, Mitchell brought judicial review proceedings seeking to stop a trial on delay grounds. The High Court refused that application in December 1999. In May 2003, he began separate plenary proceedings seeking declarations that section 62 was unconstitutional and that the law also breached the European Convention on Human Rights Act 2003. He sought an injunction against prosecution under the section.
The State moved to dismiss the plenary claim as an abuse of process on 8 February 2005, one week before its scheduled hearing. The High Court granted the motion, reasoning that Mitchell could have raised the constitutional issue in the earlier judicial review or in parallel proceedings. Mitchell appealed.
Giving judgment on 28 March 2007, Mr Justice Kearns said the defendants had waited almost two years after the plenary case began to raise abuse of process. They had filed defences without making that objection and had told the High Court in November 2004 that the case was ready for hearing. The defendants offered no explanation for bringing the dismissal motion at the last minute. The Supreme Court said such objections should be raised at the earliest reasonable stage and concluded that Mitchell could succeed on this ground alone.
The court also rejected the High Court’s application of the rule in Henderson v Henderson, which can prevent a party from raising in later litigation a matter that could reasonably have been brought forward earlier. The rule required a flexible assessment of all the circumstances. The court considered the constitutional challenge a distinct issue that was not appropriate to include in the earlier delay-based judicial review. It also noted that the later eight charges were not covered by that review and had not previously been the subject of legal proceedings. The appeal was allowed, leaving the constitutional question unresolved.