The High Court dismissed proceedings brought by Stephen Mitchell challenging the constitutionality of section 62 of the Offences Against the Person Act 1861, finding that the case was an abuse of process because the issue could reasonably have been raised in earlier judicial review proceedings.
Mr Justice Hanna delivered judgment on 18 March 2005. The ruling dealt only with a preliminary application by Ireland, the Attorney General and the Director of Public Prosecutions to dismiss the proceedings. The parties had agreed that the application would be heard as a preliminary issue, and the judge expressly declined to comment on the substance of Mitchell’s constitutional challenge or the defendants’ response.
Mitchell had started the plenary proceedings in May 2003. They concerned criminal charges arising from allegations of indecent assault by former pupils at St Joseph’s residential school in Galway, where Mitchell had been a staff member from 1967 to 1974. He denied the allegations. The judgment records that 33 charges had been consolidated for trial, including 31 under section 62.
Mitchell had earlier sought judicial review to prohibit the prosecution of charges arising from the first group of allegations. He was refused relief in December 1999. The defendants argued that the constitutional issue in the later proceedings could and should have been raised then. Mitchell’s counsel said the issue was distinct, had not occurred to his former lawyers, and that the earlier judicial review did not cover the later group of charges.
Justice Hanna accepted that a stand-alone challenge to a statute’s constitutionality should be brought by plenary action, but found that this issue could have been included in or pursued alongside the judicial review. He applied the principle that a party may, in appropriate circumstances, be barred from raising later an issue that could reasonably have been brought forward in earlier litigation. The court considered the explanation that the point had not occurred to former lawyers untenable, and was not persuaded that the later group of charges changed the result.
The judge also considered the public interest in avoiding further delay to the criminal proceedings, which related to events many years earlier. He concluded that the plenary proceedings amounted to an abuse of process and dismissed them. The judgment did not determine whether section 62 is constitutional, nor did it decide the criminal charges or their outcome.