The Supreme Court has ruled that the Circuit Criminal Court did not have jurisdiction to decide whether a pre-1937 law on indecent assault was inconsistent with the Constitution. It also said the Circuit Court could not decide whether the law violated the European Convention on Human Rights.
The ruling arose from a consultative case stated by a Circuit Court judge in proceedings against M. S., whose identity is anonymised in the judgment. The accused faced 11 indictment counts alleging indecent assault under section 62 of the Offences Against the Person Act 1861. The alleged offences dated from 1974 and 1975. The source does not state their outcome.
The accused sought to have the counts quashed, arguing that the law set different maximum penalties according to the complainant’s sex and breached constitutional guarantees and the European Convention. The Director of Public Prosecutions and the Attorney General argued that the Circuit Court lacked jurisdiction to determine the constitutional question. The Circuit Court referred questions to the Supreme Court before the accused was arraigned.
The Supreme Court held that only the High Court and Supreme Court could determine whether a law was constitutionally invalid. It concluded that the Circuit and District Courts, as courts of local and limited jurisdiction, could not decide whether laws in force before the Constitution took effect had continued in force under it. Until a law is found constitutionally invalid by a superior court, a trial judge must apply it, the judgment said.
The court also held that the Convention had not been incorporated into Irish law by legislation and was not part of the law of the State. Courts could refer to Convention jurisprudence by analogy, but could not decide that a statutory provision had no effect because it breached the Convention.
The Supreme Court answered the first question on Circuit Court jurisdiction “No” and the Convention-jurisdiction question “No”. It said the questions asking whether section 62 was unconstitutional or violated the Convention, and what consequences would follow from a Convention violation, did not arise. The court did not decide the merits of the accused’s challenges or quash the indictment counts in this judgment.