THE SUPREME Court has halted the trial of a man on a charge of raping a 16-year-old girl in a van in Wexford town.
The three-judge court ruled yesterday it was "palpably unfair" for the DPP to substitute, without any new evidence, the much more serious rape charge for a previous charge of attempted unlawful carnal knowledge. The DPP had abandoned the prosecution on the lesser charge after the Supreme Court struck down the relevant law as unconstitutional.
Rape carried a maximum penalty of life imprisonment while the maximum sentence for attempted unlawful carnal knowledge was two years, Mr Justice Nicholas Kearns noted.
What the DPP had done was akin to a person being initially charged with driving through a red light and then replacing that charge with one alleging dangerous driving causing death.
Giving the Supreme Court judgment overturning the High Court's refusal to stop the man's trial, Mr Justice Kearns said the case arose on the night of February 21st, 2003, when the man and girl, who were slightly acquainted and then aged 20 and 16, happened to meet outside a disco.
The judge said a sexual encounter took place between them in a van in the centre of Wexford town. The girl was three weeks short of her 17th birthday and later alleged the man had raped her while the man insisted any sexual contact was consensual.
An officer in the DPP's office subsequently advised there was no prosect of securing a conviction for rape or attempted rape and the man was charged with attempted unlawful carnal knowledge under section 2.2 of the Criminal Law Amendment Act 1993.
His trial was adjourned pending the outcome of separate legal challenges to the constitutionality of the laws providing for the offence of unlawful carnal knowledge - section 1.1 of the 1993 Act - and attempted unlawful carnal knowledge - section 2.2.
Both sections 1.1 and 2.2 were struck down as unconstitutional in the CC and A cases respectively. The man's case was then reconsidered in the DPP's office and the director ultimately in October 2006 directed a rape charge be brought and the section 2.2 charge be dropped.
Mr Justice Kearns said it was plainly necessary to reconsider the case in the light of the CC and A decisions and it was also open to the DPP to substitute some other charge. However, it was the choice of the charge of rape that created the difficulty.
A firm view had earlier been taken by the DPP and his officers that the rape charge was not warranted and no new evidence had emerged when the decision to prefer the rape charge was made.
That decision was inconsistent with the view taken earlier and also involved "a ramping up of major proportions" in the scale of criminal behaviour alleged against the man who was now exposed to far greater risks and sanctions.
His trial would not now be dealt with locally but in the Central Criminal Court and a conviction could well result in a substantial custodial sentence. It was the magnitude of the "quantum leap" from the original charge to the rape charge which persuaded the court the trial should be restrained on grounds of fair procedures, the judge said.
The judge added that the court had inquired whether the DPP had considered charging the man under the Criminal Law Sexual Offences Acts brought in after the striking down of the laws on unlawful carnal knowledge.
However, lawyers for the DPP had argued these created a new offence and were not intended to have retrospective effect.
While this raised "an interesting point", it was not necessary to resolve it in this case as there were ample grounds to prevent this prosecution.
