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O'C. (S.) v. Governor of Curragh Prison  IESC 68 (13th July, 2001)
THE SUPREME COURT
72/00 Denham J.
THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4 (ii) OF THE CONSTITUTION
GOVERNOR OF CURRAGH PRISON
DIRECTOR OF PUBLIC PROSECUTIONS and HIS HONOUR JUDGE HAUGH
of Mr. Justice Hardiman delivered the 13th day of July, 2001. [nem. diss.]
Applicant was convicted of indecent assault, after a two day trial, on the 1st
April, 1998. The precise form of the charge against him was as follows:-
you did on a date unknown in the year 1989 indecently assault one L.M., a
female child under the age of fifteen years contrary to common law as provided
for in Section 10 Criminal Law (Rape) Act, 1981”.
Applicant was sentenced to 3½ years in prison.
November 1998 the Applicant challenged his detention pursuant to Article
40.4(ii). He was unsuccessful in these proceedings and appealed. In the
course of this appeal he raised for the first time the point at the centre of
the present proceedings. The Supreme Court, however, took the view that it
could not consider this point because it had not been raised in the High Court.
Accordingly, it dismissed the appeal but observed that
is, of course, still open to him (to raise the relevant point) by way of
appropriate proceedings to be commenced in the High Court”.
Applicant did so shortly afterwards.
Applicant says that the proceedings commenced against him by Summons, and his
subsequent conviction in those proceedings, are invalid for the following
offence of assault and therefore, of necessity, of indecent and/or sexual
assault, was abolished by the Non-Fatal Offences against the Person Act, 1997,
Interpretation (Amendment) Act, 1997 was enacted on the 4th November, 1997 in
an attempt to remedy the failure of the repealing statute to make any
transitional provisions. The Applicant contends that it does not in fact have
that effect and that if does it is repugnant to the Constitution and invalid
because it purports retroactively to impose criminal penalties.
the third point will only arise if the second is resolved in favour of the
the offence misdescribed?
offence of indecent assault upon any male person and the offence of indecent
assault upon any female person shall be known as sexual assault”.
(Supreme Court unreported 24th February, 1994) Egan J., giving the judgment of
the Court, referred to Section 2 of the 1990 Act and said:-
is clear from the foregoing that the offence of indecent assault remains but as
and from the 21st January, 1991 it became known as sexual assault. It still
remains a common law offence for which punishment is provided by statute. In
regard to indecent assaults which occurred prior to the 21st January, 1991 I
see no possible objection to them being referred to in indictments as
‘indecent assaults’. An indictment in this regard should refer to
the offence as ‘indecent assault contrary to common law’ and while
there is no necessity to include the words ‘and as provided for by
Section 10 of the Criminal Law (Rape) Act, 1981’ , it might be helpful as
pointing out where the punishment provision is to be found.”
it seems clear that the effect of Section 2 of the Act, 1990 was simply to
change the name of the offence while leaving its nature and constituents
unaltered. Obviously the legislature might have approached this matter
otherwise by constituting a new offence but it has chosen simply to alter the
name. There is no reason not to follow the decision in
and accordingly I would hold that the offence was not misdescribed either in
the Summons or in the form of conviction.
the offence repealed?
28 of the Non-Fatal against the Persons Act, 1997 provides as follows:-
following common law offences are hereby abolished-
occasioning actual bodily harm,
Appellant contends that since the offence of indecent assault is merely a
special instance of common assault, and not a separate common law offence, it
was thereby repealed by the Act of 1997.
it is a common law offence, it is not saved by the Provisions of Interpretation
Act, 1937, which applied to statutory offences only. This point accordingly
raises the basic question whether the expression
indecent assault, now known as sexual assault.
is clear from the judgment of Egan J. in
that he regarded indecent assault as a common law offence in itself: see the
first two sentences of the passage already cited.
this is so it follows that that offence was not repealed by Section 28 of the
believe that this view is confirmed by a consideration of the terms, context
and structure of the 1997 Act. There is nothing on the face of the Act to
suggest that it was designed to have any effect on the law relating to sexual
offences, which had been the subject of extensive statutory provision in the
years preceding 1997. The original statutory provision providing a penalty
for indecent assault, Section 52 of the Offence against the Person Act, 1861,
had been repealed and replaced by Section 6 of the 1935 Criminal Law Amendment
Act. This was in turn repealed and replaced by Section 10 of the Criminal Law
(Rape) Act, 1981, and that provision was repealed and replaced by Section 2 of
the Act of 1990, cited above. Accordingly I would agree with the submission
advanced on behalf of the first-named Notice Party that the offence of
indecent/sexual assault has
in a compartment entirely separate from the common law offences with which the
1997 Act is concerned”
at least since 1935.
the assault offences abolished by Section 28 are replaced by new statutory
offences created in earlier sections of the 1997 Act. However, that Act does
not create any statutory offence similar in nature to indecent assault or
sexual assault, or indeed any offence of a sexual nature at all.
learned trial judge in this case, on the authority of
 2 ILRM 469, considered the legislative history, including
relating to the Act of 1997. He said:-
is quite clear that the 1997 Act adopted many of the recommendations contained
in the Law Reform Commission report on Non-Fatal Offences against the Person.
That report forms the backdrop to the legislation. But it is equally clear
that that report was not really with sexual offences”.
would respectfully agree with that summary. The report focussed on the
repealing and replacing of the greater part of the Offences against the Person
Act, 1861 with new statutory offences.
would therefore conclude that the Act of 1997 did not have the effect of
abolishing the Offence of Indecent Assault and that it was not intended to do so.
would dismiss the appeal and affirm the Order of the learned High Court Judge.
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