THE SUPREME COURT
The People (At the Suit of the Director of Public Prosecutions)
Judgment of O’Donnell J. delivered on the 9th day of June 2016
1 The respondent to this appeal pleaded guilty on the 14th of February 2012, to 5 counts of indecent assault contrary to common law in relation to a boy. On 10th July 2012, the respondent pleaded guilty to a further 14 counts of indecent assault on another boy. The five counts relating to the first complainant occurred during 1984. The other 14 counts relating to the second complainant occurred between 1982 and 1984. At the time relevant to the offences the maximum penalty provided by statute for indecent assault upon a male person was 10 years’ imprisonment by virtue of section 62 of the Offences Against the Person Act 1861. However, it is now said on behalf of the Director of Public Prosecutions that the learned Circuit Court judge was erroneously informed by counsel for the prosecution that the effect of the decision of the High Court in S(M) v. Ireland & Ors (No.2)  4 IR 369 (“S(M) (No.2)”), was that the offence attracted a maximum penalty of two years on each count. (Transcript 19/11/2012, p.18). The Circuit Court judge then sentenced the respondent to two years’ imprisonment on all counts, to run concurrently.
2 The Director of Public Prosecutions applied to the Court of Appeal under the provisions of section 2 of the Criminal Justice Act 1993, for a review of the sentences on the grounds that it was alleged that they were unduly lenient. The Court of Appeal delivered judgment on the 10th of February 2015, holding that the Circuit Court judge had not been in error in treating the maximum penalty available as that of two years on each count, but also considering that the sentence as a whole was unduly lenient and that some element of consecutive sentences should have been applied. Accordingly, the Court of Appeal altered the sentence on Count 27 to one year consecutive on the expiry of the two year concurrent sentences on the other counts so that the total sentence became three years. By the time the appeal was heard however the respondent had already served the initial sentence imposed by the Circuit Court judge, and accordingly had to return to prison to serve the balance of the sentence now imposed by the Court of Appeal. The Director of Public Prosecutions was not satisfied with this determination either as a matter of law (since it had the effect of determining that the maximum sentence available for indecent assault upon a male which occurred between 1981 and 1990 was 2 years’ imprisonment, with possible further consequences for the maximum penalty for indecent assault upon a female committed during the same period) or in the sentence applied, and applied to this Court for leave to appeal. By a determination of the 10th of July 2015 ( I.E.S.C. DET. 25) a panel of this Court granted leave to appeal on the grounds that the case involved a point of law of general public importance.
The Statutory Background
3 Few areas of law have undergone as many and significant changes as the Irish law relating to sexual offences, reflecting perhaps considerable differences in public attitudes over time. This has given rise to much legal difficulty. An agreed starting point however for the purpose of this case, is that indecent assault is an offence at common law and is gender neutral; that is that the gender of the victim (or indeed the perpetrator) is not a constituent of the offence. For more than 100 years however, the sentencing provisions applicable in Ireland distinguished between indecent assault upon males, and those committed on females. The Offences against the Person Act 1861, provided for the separate punishment of indecent assaults. Thus, section 52 of the 1861 Act appears under the heading “Rape, Abduction, and Defilement of Women” and provided:
Section 62 of the same Act which dealt with indecent assault upon a male person is contained in the section headed “Unnatural Offences”. Section 61 provided for sentence for the “abominable crime of buggery committed either with mankind or with any animal” and section 62 provided:
“Whosoever shall be convicted of any indecent assault upon any female . . . shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour.”
The reference to penal servitude can now be ignored, by virtue of, inter alia, the provisions of section 11 of the Criminal Law Act 1997. Accordingly it can be said that the 1861 Act provided that indecent assaults upon a male would attract a sentence of up to ten years’ imprisonment whereas indecent assaults upon females would attract a sentence of two years. Given the sections of the Act in which the relevant provisions are contained, and the fact that the Act itself criminalised male homosexual behaviour (while not referring to female homosexual activity) it seems likely that the differentiations in sentence did not depend, solely or perhaps at all, on a less serious view being taken of sexual assaults upon females. Rather, it seems likely that the Act was drafted on an assumption that the perpetrators of such offences would be males, and given the fact that the Act also criminalised consensual male homosexual activity, the heavier sentence for indecent assault upon a male reflected the Victorian condemnation of both indecent assault, and male homosexuality. This all illustrates however the difference in attitudes to sexual matters between the mid-Victorian period, and the late 20th century.
“Whosoever shall attempt to commit the said abominable Crime, or shall be guilty of any Assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . . to be kept in Penal Servitude for any Term not exceeding ten years . . .”
4 The next relevant legislative step was the Criminal Law (Amendment) Act 1935. This was a major piece of indigenous legislation introduced in the aftermath of the Carrigan Report. It was paternalistic legislation reflecting very clearly the public mores of its times and addressed questions such as the age of consent, and the importation of contraceptives. It was characterised as legislation for the protection of women and young girls. It also made some slight changes to the penalty for indecent assault on a female person, by permitting heavier penalties for repeat offenders. Thus section 6 of the Act provided:
5 The apparent inconsistency between the punishment for indecent assault upon a female and that upon a male, was sought to be addressed by the Criminal Law (Rape) Act 1981. Section 10 of that Act provided as follows:
This provision had the effect of equalizing the penalty for indecent assault and removing any distinction in penalty between assault upon males and those upon females. However, and crucially for present purposes, it did so by separate legislation. Thus it could be said that the gender of the victim remained relevant at least for the purposes of identifying the separate statutory authority for the imposition of the sentence. The legal provisions imposing penalties were therefore, in a sense, separate but equal. This separate provision did not reflect any underlying philosophical or ideological approach: it was probably no more than a consequence of the separate statutory treatment of the penalties as a matter of history. However the existence of separate penalty provisions depending on the gender of the victim is crucial in this case.
“In lieu of section 52 (repealed by this Act) of the Offences against the Person Act, 1861, as amended by section 19 of the Criminal Law Amendment Act, 1885, it is hereby enacted that whosoever shall be convicted of any indecent assault upon any female shall be liable, in the case of a first conviction of any such offence, to imprisonment for any term not exceeding two years, and in the case of a second or any subsequent conviction of any such offence, to penal servitude for any term not exceeding five years nor less than three years or imprisonment for any term not exceeding two years.”
6 In 1990, the Criminal Law (Rape) (Amendment) Act renamed the offence of indecent assault as sexual assault. It is clear however that the underlying offence remained in existence. Thus section 2(1) provided:
Subsection 2 then provided that:
“The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.”
While this provision made a single sentencing provision for what was now sexual assault, it also had the effect of reducing the maximum penalty available from ten years to five years. This in turn was addressed by section 37 of the Sex Offenders Act 2001, which reinstated the general sentence of ten years which is now applicable irrespective of the gender of the victim, and also provided for an increased penalty of 14 years where the assault was committed on a person under 17 years of age. Thus, section 37 provided:
6 The somewhat tortuous history of the separate statutory penalties provided for indecent assault and subsequently sexual assault upon males and females can be set out in tabular form as follows:
“(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.”
|Male Victim||Female Victim|
|1861 ||Section 62 of the Offences Against the Person Act 1861: maximum penalty ten years’ imprisonment.||Section 52 of the Offences Against the Person Act 1861: maximum penalty two years’ imprisonment. |
|1935 ||Section 62 of the Offences Against the Person Act 1861: maximum penalty ten years’ imprisonment. ||Section 6 of the Criminal Law (Amendment) Act 1935, two years’ maximum imprisonment for the first offence; five years’ maximum imprisonment for any subsequent offence.|
|1981 ||Section 62 of the Offences Against the Person Act 1861: maximum penalty ten years’ imprisonment. ||Criminal Law (Rape) Act 1981: ten years’ maximum imprisonment.|
|1990 ||Criminal Law (Rape) (Amendment) Act 1990: sexual assault maximum penalty, five years’ imprisonment.|
|2001 ||Section 37 of the Sex Offenders Act 2001: ten years’ maximum imprisonment and up to 14 years’ maximum imprisonment for assault upon a child under 17 years of age.|
7 The table illustrates the glaring anomalies that arose between 1861 and 1981 when a differential penalty applied or was available depending upon the gender of the victim of indecent assault. This was not merely a matter of historical interest. A major phenomenon of recent times has been the discovery and prosecution of historical sex abuse claims, many of which occurred while the differential penalties applied. It was perhaps inevitable that a challenge would be brought to the fact that a person (of either sex) who committed an indecent assault upon a male could be exposed to a greater punishment than a person who committed a sexual or indecent assault upon a female. It was also perhaps inevitable that such a challenge would be based essentially on grounds of equality: that there was, in such differential treatment by statute, a discrimination in treatment based upon gender.
8 Such a challenge was not however straightforward. An obvious issue of locus standi arose. The perpetrator was not being discriminated against, or in any way differentiated on the grounds of his or her gender. Men and women accused of offences either under section 62 or section 52 of the 1861 Act (and later section 6 of the 1935 Act) were treated the same. It is also arguable that through modern eyes at least, any difficulty lay with the provisions of section 6 of the 1935 Act setting a penalty which might today be considered too low. Furthermore, if there was a differentiation being made in respect of the perpetrator, it was arguable that for the reasons already addressed, that it was, if anything, a discrimination based in part upon sexual orientation of the perpetrator rather than gender of the perpetrator or the victim. The extent to which such discrimination was, as a matter of history, constitutionally impermissible, is more problematic, and again raises complex issues of timing. It is not necessary to consider any of these matters in detail since the matter of the case was the subject of a careful and extensive judgment in the High Court decision of S(M) (No.2) delivered by Ms Justice Laffoy whose decision was not appealed and moreover has been accepted as correct by both parties to this appeal. Importantly for present purposes, that case dealt with indecent assaults alleged to have been committed between 1966 and 1976, and therefore at a time when the statutory penalties had not been equalised. Laffoy J. held that the differentiation in penalty between section 62 of the 1861 Act for indecent assault on a male, and section 6 of the 1935 Act for indecent assault on a female, breached Article 40.1. Having reached that conclusion, it was necessary to consider the appropriate remedy.
9 It is apparent, and Laffoy J. so held, that the statutory provisions in issue are merely sentencing provisions. The offence itself remained a matter of common law, and was neither created nor amended by statute. Accordingly, the striking down of the sentence provisions in respect of indecent assault in section 60 left the matter to be regulated by common law. Prima facie a sentencing court dealing with a common law offence was at large as to penalty. (See: Verrier v DPP  2 A.C. 195). However, Laffoy J. concluded that given the limitation by statute on the sentence available in the case of an assault on a female to two years, a court could not, consistent with the constitutional guarantee of equality, impose a sentence for indecent assault upon a male, greater than that which had applied at the relevant time in respect of indecent assault committed on a female. Perhaps the most significant part of the judgment therefore, for present purposes, is that recorded in the reporter’s note at the end of the judgment which records the fact that the Court heard further submissions as to remedy and sets out the declaration granted by the High Court, namely:
10 The declaration was formulated in contingent terms because of course the plaintiff in that case had not been convicted of any offence, and was entitled to the presumption of innocence. The declaration however assumes that the consequence of the constitutional invalidity of section 62 insomuch as it fixed a maximum penalty for indecent assault upon a male, was that that statutory provision fell away, but that the power of sentencing at common law remained, or became, available. However the matter was not entirely governed by common law. A sentencing court had power to impose a sentence, but was constrained by the requirements of Article 40.1, and could impose no greater sentence than was then available in respect of indecent assault upon a female. It is also noteworthy that the declaration was in general terms, and did not itself fix the maximum sentence constitutionally available. In other words, it could be said that in the light of the declaration, that the common law power of sentencing for the common law offence of indecent assault, when carried out upon a male person, was limited by the maximum sentence for the equivalent sentence “available at the time of the offence for indecent assault upon a female”. Plainly this formulation contemplated the possibility, and indeed it is arguable, declared, that the power to sentence at common law an offence in respect of a male and which would otherwise have been dealt with by section 62 of the 1861 Act, was limited by the provisions in place at the relevant time, in respect of the equivalent assault upon a female.
“A declaration that if the plaintiff were to be convicted and sentenced for the common law offence of indecent assault in respect of a male person, for the sentencing judge to apply a maximum sentence of more than the equivalent sentence that would have been available at the time of the offence for an indecent assault upon a female would be to breach the plaintiff’s constitutional right to equality.” S(M) v. Ireland & Ors (No.2)  4 IR 369, 401.
11 The decision in S(M) (No. 2) was not appealed, and this Court was not asked to reconsider any issue determined in that decision. On the contrary, both parties accepted that the decision was correct, that a power of sentencing at common law was available, and that at least for offences occurring at any time after the coming into force of the Constitution and up until 1981, the maximum sentence which could be imposed for a sexual assault upon a male victim was limited to two years’ imprisonment. The fundamental question for this Court relates to offences alleged to have occurred after 1981, when the sentence for sexual assault upon a female had been increased to 10 years’ imprisonment. Both the text and logic of the decision in S(M) (No.2) might suggest that in such circumstances the maximum penalty which could be imposed at common law, would have been 10 years— since that was the statutory limit imposed in respect of sexual assault upon a female and the principle of equality pursuant to Article 40.1 required that the offence of indecent assault upon a male be treated in the same fashion. In this regard, it is perhaps noteworthy that the second edition of Sexual Offences by Tom O’Malley, adopts this view. Thus, it is said at paragraph 4.04, O’Malley, Sexual Offences, 2nd Ed., (Dublin, 2013), p.98:
12 The difference between the two sides in this case is clear, and reasonably limited. The DPP contends that since the unconstitutionality was relative rather than absolute: that is that it was created by the difference in treatment in respect of offences committed on males and females and therefore it follows, that once the maximum sentence for sexual assault upon a female became 10 years’ imprisonment, that had a similar effect in respect of the remaining common law offence of sexual assault upon a male. Put another way, the unlimited power of sentence for sexual assault on a male at common law was limited between 1981 and 1990 by the requirements of equality, and the fact that the corresponding offence in respect of a female was a sentence limited to two years. Once that corresponding sentence increased, it followed that the relational limitation on the power of sentence of common law also moved to 10 years. On the other hand, the respondent contends that both counsel for the DPP in the Circuit Court, and the Court of Appeal, were right to conclude that the maximum sentence for indecent assaults committed in males between 1981 and 1990 remained at two years as that was fixed by the decision in S(M) (No.2) and could not be altered by the coming into force of a separate statutory provision dealing with assaults on females. This was put most clearly at paragraph 20 in the judgment under appeal : “It cannot be the case that a legislative provision that expressly provides for indecent assault on a female person in a legislative context of differentiation could have an indirect or implied effect on the punishment for indecent assault upon a male “.
“At this point it may be convenient to summarise the maximum sentences that have attached to indecent assault offences from 1861 onwards. From that date until 1935, the maximum sentence for indecent assault upon a male and indecent assault upon a female, were respectively, 10 years’ and two years’ imprisonment. (Any reference to penal servitude in older statutes may now be ignored, as the Criminal Law Act 1997 transformed all remaining terms of penal servitude into terms of imprisonment). From 1935 to 1981, the maximum sentence for indecent assault on a female was two years’ imprisonment on a first conviction and five years on a second or subsequent conviction. By virtue of the High Court decision in M. (S.) v Ireland, the maximum sentence for indecent assault on a male committed during this period must be treated as the same as that for indecent assault on a female even if, on paper, it remained at 10 years’ imprisonment. On the entry into force in June 1981 of the s.10 of the Criminal Law (Rape) Act 1981, the maximum sentence for indecent assault on a female was raised to 10 years’ imprisonment, and, for the reasons indicated earlier, it may be assumed that an indecent assault upon a male committed between that date and January 1991, when the Criminal Law (Rape) (Amendment) Act 1990 entered into force, could also attract 10 years’ imprisonment. The Act of 1990 (s.2) renamed the two former indecent assault offences as sexual assault, a gender-neutral offence, with a maximum sentence of five years’ imprisonment.”
13 It is important to recognise the limited, if important matter, which this Court has to decide. The decision in S(M)(No.2) is accepted by both parties. It follows therefore that the Court does not need to consider whether the fact that this was an equality claim meant that any constitutional repugnancy in the statutory provision was only conditional and contingent, i.e. the statutory maximum was only inoperative so long as the equivalent provision fixed a lower penalty in respect of assaults on females. It is not suggested that there was anything intrinsically objectionable in a maximum sentence of 10 years. However no such issue was raised here and the case proceeded on the basis that the terms of section 62 of the 1861 Act, insomuch a they provided for a penalty for indecent assault upon a male, fell away entirely. On the other hand no issue arises here as to whether the conclusion in S(M) (No.2), that the common law power of sentencing remained available on the striking down of the sentencing power in section 62, was correct. Finally, the case might also involve interesting issues as to the effect of time on issues of constitutionality. The respondent’s argument here depends upon the fact that section 62 had been declared unconstitutional prior to the sentencing in his case. That however was an unconstitutionality which he could never have asserted. Indeed, since section 62 remained binding law until declared unconstitutional in part by the decision in S(M) (No.2) in 2007, the fact is that, at the time of the relevant offences, there was no inequality of which anyone could complain . Other issues of time and the interpretation of the Constitution arise if the discrimination is viewed as one of sexual orientation. However, none of these issues were ventilated here and do not arise for consideration now. Instead, the case was argued on the basis that the decision in S(M) (No.2) was relied on by both parties. The only question therefore was the consequence of that decision for the sentencing process in respect of offences such as those in this case and which occurred between 1981 and 1990.
14 The respondent contends, and the Court of Appeal agreed, that the effect of the decision in S(M) (No.2) was that a person convicted of an indecent assault upon a male person could only lawfully be sentenced to a maximum of two years for any offence committed at any time between 1937 (and the coming in to force of Bunreacht na hÉireann which included for the first time the guarantee of equality before the law) and 1991 when a single penalty was provided for the offence thereafter to be known as sexual assault. This conclusion would also have the further curious effect that it might then follow that anyone convicted of sexual assault upon a female between the period of 1981 and 1991 could also only be sentenced to a maximum period of two years, since on this argument, the provision of the 1981 Act permitting the imposition of ten years’ imprisonment for sexual assault upon a female, would itself be an unconstitutional inequality. The end point of this argument would be that persons who committed indecent assaults upon males or females between 1981 and 1990, could only be sentenced to a maximum of two years’ imprisonment because, anything else would infringe the constitutional guarantee of equality, albeit, that at the relevant time the statutory provisions permitting sentence, (and which were valid unless and until declared unconstitutional) each provided for an equal sentence of ten years’ imprisonment.
15 I do not see any reason why the Constitution must be deployed as a bludgeon when it is capable of being used as a scalpel. The logic of the declaration made by the High Court in S(M) (No.2) was that the power of sentence for a common law offence of indecent assault was unlimited, but the constitutional guarantee of equality meant that an indecent assault upon a male could not attract a higher sentence of common law, than the maximum available by statute, for indecent assault committed on a female. Between 1937 and 1981 this meant that the sentence at common law for indecent assault upon a male was limited to two years. However, when the penalty for such assault upon a female was increased in 1981, considerations of equality did not, and arguably could not, require that the maximum penalty for indecent assault upon a male remain at two years’ imprisonment. That would be to perpetrate a further inequality, and indeed undermine the provisions of the legislation deliberately enacted by the Oireachtas in 1981, which legislation had been introduced to give effect to the principle of equality. The effect of the decision in S (M)(No.2) was not to limit the maximum penalty for indecent assault upon a male to two years’ imprisonment. It was, as the declaration made by the Court recognised explicitly, to limit the penalty to the maximum then available for a sexual assault upon a female at the relevant time. That meant that in the case of an assault committed on a male between 1937 and 1981, the maximum penalty was two years’ imprisonment. However ,as indeed was recognised by Professor O’Malley, the application of the same principle equally required that between 1981 and 1990, the maximum sentence be limited to a period of ten years’ imprisonment provided for by statute in the case of indecent assaults committed upon a female. Accordingly I would reverse the decision of the Court of Appeal in this regard.
16 It remains to consider the second limb of this appeal. On the basis that the maximum sentence available to the sentencing judge was ten years’ imprisonment in respect of any offence of indecent assault, the DPP contends that the effect of the three year sentence imposed on appeal by the Court of Appeal was still unduly lenient. It is not clear if this aspect of the appeal was maintained to guard against any argument that the appeal would be moot unless the DPP contended for a change in the actual sentence imposed, and I offer no view upon this. The appeal on this point was pressed, and the Court must address it. However, I do not consider that this Court should now embark upon an analysis of the appropriate sentence for historic indecent assaults on males in general, or those perpetrated in this case in particular. The most striking feature of this case from the point of view of sentencing is that the respondent served the sentence originally imposed by the Circuit Court judge, had been released, then had his sentence increased by the Court of Appeal, served that additional period, and is now once again at liberty. If this Court were to conclude that the DPP was right, and that the sentence should be increased further, it would mean that the respondent in this case would have the experience of being imprisoned on three different occasions for the offences to which he pleaded guilty. There may be circumstances in which such a consequence is unavoidable, but I do not think in the circumstances of this case, such an outcome could be consistent with what justice requires. Once the legal issue as to the maximum sentence available has been clarified by this Court, the question of the appropriate sentence for any indecent assault or sexual assault in any particular case, is a matter for sentencing courts, which may be reviewed if appropriate by the Court of Appeal. Here, arising it should be said from an unfortunate error made on behalf of the DPP, neither the sentencing court nor the appellate court approached this sentence, in the knowledge that the maximum legal sentence available was ten years’ imprisonment. Accordingly this Court does not have the benefit of the views of either court on the appropriate sentence against that legal background. The sentencing of offenders for sexual assault may depend on a number of factors. There is no suggestion that sentencing courts, or the Court of Appeal, have any difficulty in principle in carrying out this task, which requires a determination by this Court, and indeed given the unusual procedural history of this case, it is unlikely that any determination in this case would provide useful guidance for future cases. On the other hand, nothing in the facts of this case suggests that justice requires this Court to proceed to impose its own sentence upon the respondent. Accordingly, and without endorsing or criticising the sentence imposed by the Court of Appeal, I would dismiss this aspect of the appeal.