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Neutral Citation No. [2006] NICA 34 Ref: KERC5626

Judgment: approved by the Court for handing down Delivered: 19/06/2006

(subject to editorial corrections)

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

________

THE QUEEN

v

GERARD ROBERT SMITH

________

Before Kerr LCJ, Campbell LJ and Sheil LJ

________

KERR LCJ

Introduction

[1] This is an application by Gerard Robert Smith for leave to appeal against

his conviction of two offences of indecent assault contrary to section 52 of the

Offences against the Person Act 1861 and for leave to have time extended

within which the application might be made. The applications were heard on

19 June 2006 and on that date we dismissed both applications and indicated

that we would give our reasons later. In this judgment we now provide those

reasons.

Factual Background

[2] The applicant was born on 17 May 1972. In March 2003, he was tried

before His Honour Judge Markey QC and a jury at Belfast Crown Court on

ten counts of sexual offences committed against his cousin whom we shall

refer to as the complainant. On 6 March 2003, the applicant was convicted by

a jury on two counts of indecent assault. These related to incidents alleged to

have occurred in the period from 1987 to 1989, when the applicant was

between 14 and 17 years old and the complainant was between 9 and 12 years

of age.

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[3] On 3 April 2003, Judge Markey sentenced the applicant to two years’

imprisonment (one year on each count of indecent assault to run

consecutively). The judge ordered that the applicant’s release from

imprisonment should be on licence under article 26 of the Criminal Justice

(Northern Ireland) Order 1996. He was discharged from prison on 5 March

2004 and the period of supervision on licence ended on 5 March 2005.

[4] On 12 January 2006, as required by section 5(1) of the Human Rights Act

1998 and rule 20A of the Criminal Appeal (Northern Ireland) Rules 1968, this

court notified the Secretary of State for Northern Ireland that the applicant

had sought a declaration of incompatibility under section 4 of HRA in relation

to section 1 of the Criminal Law Amendment Act (Northern Ireland) 1923 (as

amended) and that in consequence we would consider the compatibility of

that provision with the applicant’s convention rights. By notice dated 12

January 2006, pursuant to rule 20B of the 1968 Rules, the Secretary of State

notified the court that he wished to be joined as a party to the proceedings.

He was duly made a party and was represented at the hearing by Mr

McCloskey QC.

Statutory Background

The Offences against the Person Act 1861

[5] The applicant was convicted of two counts of indecent assault on a female

under the age of 17, contrary to section 52 of the Offences Against the Person

Act 1861 which provides: -

“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 ten years or to be fined or

both”.

[6] The offences in the present case occurred before 3 October 1989 when, by

virtue of article 12 of the Treatment of Offenders (Northern Ireland) Order

1989, the maximum penalty for offences of this nature was increased from

two to ten years’ imprisonment. The longest period of imprisonment to

which the applicant could be sentenced was, therefore, two years.

Criminal Law Amendment Act (Northern Ireland) 1923 (as amended)

[7] The provision in respect of which the applicant sought a declaration of

incompatibility was section 1 of the 1923 Act which provides: -

“Consent of young person to be no defence

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It shall be no defence to a charge or indictment for

an indecent assault on a child or young person

under the age of seventeen to prove that he or she

consented to the act of indecency”.

Human Rights Act 1998

[8] Section 6(1) of HRA provides that it