NI High Court: Legislative mistake should not have led to quashing and re-prosecution of indecent assault offence
Northern Ireland’s High Court has determined that a decision to quash a 2008 conviction for indecent assault in light of a legislative error and subsequently re-prosecute the case was unlawful.
About this case:
- Citation: NIKB 29
- Court:NI High Court
- Judge:Mr Justice O'Hara
Mr Justice O’Hara ruled that the original conviction should not have been quashed in 2020 after it emerged in 2018 that a legislative error had removed the jurisdiction of the trial court to hear the case.
The applicant was prosecuted for a single act of indecent assault against a female, contrary to section 52 of the Offences against the Person Act 1861. The offence was committed in 2008.
The applicant pleaded guilty before a district judge in 2010. His punishment was a conditional discharge and a requirement to sign the Sex Offenders’ Register for 18 months.
The applicant’s name was anonymised as FN here, because he had already been punished for the offence. The relevant events occurred more than a decade ago, and in the opinion of the court, it was inappropriate and unnecessary to identify him and open the door to a fresh round of publicity.
So far as the applicant and his victim were concerned, the matter was closed. However in 2018 it became apparent that a lacuna in the law had occurred as a result of a change in the law in 2009, between the date of the offending and the date of the prosecution.
Specifically, the issue was whether in 2010 the applicant should have been prosecuted before a district judge or whether he could only be prosecuted in the Crown Court. That issue arose because an apparent change in the law in 2009 reversed a long-established practice that a case could be brought either in the Magistrates’ Court or in the Crown Court, with the choice of forum typically depending on how serious the circumstances of the case were.
In 2020, the applicant was informed in a letter from the Public Prosecution Service (PPS) that they were obliged to have the case listed before a district judge to have the conviction rescinded, and therefore set aside. The victim of the applicant’s offence was similarly advised.
The applicant’s case was one of 15 across Northern Ireland which were affected by this change in law. The court noted: “It is not difficult to imagine the dismay victims must have felt on learning that disturbing events from more than 10 years earlier were being resurrected.”
The applications to rescind the convictions in all 15 cases were brought before a district judge. The district judge quashed each of the convictions and sentences, relying on Article 158A of the Magistrates’ Courts (NI) Order 1981 which allows district judges to reopen cases in order to rectify mistakes in certain circumstances.
Next, PPS considered whether to re-prosecute any, or all, of the 15 defendants in the Crown Court. In the applicant’s case (and in two others) a decision was taken that the case should proceed to trial.
Upon learning this, the applicant brought this application for judicial review, contending that the 2010 conviction should not have been rescinded by the district judge in 2020. The court noted that these arguments were not raised before the district judge in 2020.
The legal mistake
It was agreed that it was beyond doubt that an error was made in the provisions of the 2008 Order. The fact that a mistake was made was publicly acknowledged, both by the Department of Justice in a 2021 report and by the then Minister for Justice in 2020.
The court accepted that it was “apparent that there was never any intention to make the change and remove the possibility of a summary prosecution”.
Further, this error was contrary to the public interest because it removed the discretion to allow some sexual offences to be dealt with before a district judge rather than being taken to the Crown Court.
The court considered the decision of the House of Lords in Inco Europe v First Choice  2 All ER 109, where Lord Nicholls noted that words could be read into a statute where there was an error in an amending statutory provision, where the court is sure of:
- the intended purpose of the statute or provision in question;
- that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and
- the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.
In applying this three-part test, it was the judgment of the court that all three elements were satisfied. Firstly, the court noted that the intended purpose of the 2008 Order was to update the law in relation to sexual offences, not to remove the jurisdiction of District Judges to hear certain cases.
Secondly, this intended purpose was not given effect, because the option of summary trial was removed without intention, reasoning, or explanation.
Thirdly, the court noted that if the error in the 2008 Order had been noticed, the inclusion of section 52 of the 1861 Act would most definitely have been corrected, and the reference removed.
Ultimately, the court concluded and declared that the relevant provisions of the Sexual Offences (NI) Order 2008 disclosed a clear and obvious error by removing provision for summary prosecution of historical offences, which was contrary to the intended purpose of the statute. As such, the court struck these provisions down as having no force and effect.
In light of that declaration, the 2020 decision of the district judge, which rescinded the conviction and sentence imposed on the applicant, was removed into the court, and having been so removed was quashed.
Therefore, the decision by the Public Prosecution Service to re-prosecute the applicant for the offence of indecent assault was declared unlawful.
As a result, the applicant was restored to the position which he was in before the matter was brought back before the district judge in 2020.