The High Court said it would propose a conditional stay of a minor’s criminal trial while his constitutional challenge to provisions of the Criminal Law (Sexual Offences) Act 2006 is heard. The court had not yet made a final order: it said it would hear counsel further about steps and a timetable to secure an early hearing.
The plaintiff, identified in the judgment as M. D., is charged under the Act and had been returned for trial to the Circuit Criminal Court in Letterkenny. His trial was listed to begin on 28 April 2009. He asked the High Court to prevent that trial from proceeding until the challenge was determined.
The judgment says it is alleged that M. D., then 15, committed sexual offences in summer 2006 involving a 14-year-old female. She was not charged. M. D. challenges sections 3(1) and 5 of the Act under the Constitution and, alternatively, the European Convention on Human Rights. He also alleges that the Director of Public Prosecutions breached his constitutional rights by prosecuting him in the circumstances. These matters were not decided in this application.
Section 3(1) creates an offence of engaging in a sexual act with a child under 17. Section 5 excludes a female child under 17 from liability solely for engaging in sexual intercourse. The State argued that it could justify the distinction and that striking down section 5 would leave section 3(1) in force, potentially exposing both participants to prosecution rather than preventing M. D.’s prosecution.
Justice Clarke accepted there was a fair issue to be tried over whether the distinction was justified. He also found it arguable that prosecuting only one participant in a consensual act involving two underage people could, in limited circumstances, raise a discrimination issue. That was enough for the plaintiff to meet the fair-case threshold; it was not a ruling that the legislation was unconstitutional or that the prosecution was discriminatory.
The judge stressed that legislation presumed constitutional should generally be enforced while a challenge is pending, and that a stay should be rare. He considered that a very short delay could be justified if the constitutional case could be heard promptly. He also took account of the plaintiff having started his proceedings in time and the possibility that the defendants’ later filing of their defence contributed to the case not being heard before the criminal trial.
The proposed stay was strictly conditional on M. D. and his advisers meeting reasonable procedural requirements to secure the earliest possible hearing. The defendants would have liberty to apply if there were delay attributable to the plaintiff. The court reserved the question of the necessary steps and timetable for further submissions.