About this case:

• Citation:
  [2019] IESC 26
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Donal O'Donnell

By a narrow majority, Mr Justice Donal O’Donnell delivered the leading judgment in which he found that the man only had locus standi on grounds related to his personal circumstances – which importantly did not extend to his claim that the criminalisation of consensual conduct between adult males was impermissible and repugnant to the Constitution.

Background

Between November 1978 and July 1980, when PP was a school teacher, it is alleged that he invited one of his pupils, MD (who was between 15 and 17 at the time) to his house, gave him alcohol, showed him pornography, and engaged in buggery, oral sex, and masturbation. The prosecution of PP is currently awaiting trial in Dublin Circuit Court.

Judicial review

PP commenced judicial review proceedings grounded on a short affidavit in which a number of grounds were raised, including the contention that the trial should be prohibited on the basis of culpable delay, that s. 11 of the Criminal Law Amendment Act 1885 was inconsistent with the Constitution on grounds of vagueness, and/or because of alleged impermissible discrimination on the basis of gender.

In the High Court, Mr Justice Michael Moriarty dismissed the claims and found it unnecessary to consider the contention raised prominently by the State that PP lacked locus standi to assert the unconstitutionality of s. 11 of the Criminal Law Amendment Act 1885 on the grounds which he did.

In the Court of Appeal, the challenge was dismissed on the grounds that PP lacked locus standi to make the case he sought to argue in respect of the alleged repugnancy of s. 11 of the Criminal Law Amendment Act 1885 to the Constitution. The court also upheld the dismissal of PP’s claim on the merits.

While finding that a number of the issues raised did not satisfy the constitutional threshold for appeal in this case, the Supreme Court granted leave on three grounds:

1. Is the consent of both parties an essential ingredient of the offence of gross indecency under s. 11 of the Criminal Law Amendment Act 1885?
2. Having regard to the answer to the first question, does PP have locus standi to challenge the compatibility of that section with the Constitution? 
3. Having regard to the answer to the foregoing question is s. 11 of the Criminal Law Amendment Act 1885 compatible with the Constitution?

Supreme Court

Mr Justice Donal O’Donnell, with whom Mr Justice John MacMenamin and Ms Justice Elizabeth Dunne concurred, dismissed the appeal and concluded that the Constitution could not preclude PP’s trial.

Considering the first question, Mr Justice O’Donnell explained that s.11 of the Criminal Law Amendment Act 1885 does not mention consent, but that PP contended that consent was an essential component of the offence created by that section. Mr Justice O’Donnell said that PP’s argument was that if he established consent as “a necessary ingredient in the offence, he, as a person charged under the offence, would claim to have locus standi to challenge s.11 of the 1885 Act on the grounds that it criminalises consensual activity in general, including that between adult males in private”. However, Mr Justice O’Donnell said that PP could not avoid the difficulties of establishing locus standi through this route.

Mr Justice O’Donnell said it was clear that PP, as a person charged with offences contrary to s.11 of the Criminal Law Amendment Act 1885, had locus standi to challenge to Act – but that such a challenge must arise out of his own particular circumstances. What PP could not do was assert a jus tertii – a claim based on the rights of a third party.

PP could not “summon up the hypothetical case of the possibility of the section being applied to prosecute adult consensual activity with a person over 17, because he is not facing such an accusation. (Cahill v Sutton [1980] IR 269 considered). If the general rule was applied to PP’s case, Mr Justice O’Donnell said it was fatal to PP’s attempts to argue that the section was invalid because it was capable of applying (and did apply in the past) to consensual adult male activity in private.

Although it was not suggested that s.11 of the 1885 Act should be retrospectively expunged from the law altogether, Mr Justice O’Donnell said that the very facts of this case showed why this would not be a desirable course – because the consequence would remove the criminalisation of all gross indecency, including circumstances still considered wrongful by modern criminal law. This, he said was “a high price to pay for the dubious sense of moral superiority provided by condemning past failings”. 

From his analysis, Mr Justice O’Donnell said that PP did not have locus standi to argue the criminalisation of consensual conduct between adult males as impermissible and rendering s.11 of the 1885 Act repugnant to the Constitution. He answered the questions as follows:

• (i) The consent of both parties is not an essential ingredient of the offence of gross indecency under s. 11 of the Criminal Law Amendment Act 1885; 
• (ii) PP, as a person charged under s. 11 of the Criminal Law Amendment Act 1885, has locus standito challenge the compatibility of the section with the Constitution, but only on grounds related to his personal circumstances; 
• (iii) In the light of the answers to the foregoing questions, s. 11 of the 1885 Act has not been shown to be incompatible with the Constitution on the grounds in respect of which PP has locus standiarising from his personal circumstances. It follows that the appeal must be dismissed.

Notorious statutory provision

Dissenting, Ms Justice Iseult O’Malley and Mr Justice Frank Clarke said they would have allowed the appeal. Describing s.11 as “a notorious statutory provision that was a key part of a legal regime that caused so much misery to many homosexual men in Ireland until its repeal in 1993”, Ms Justice O’Malley concluded that PP had standing to argue that s.11 of the Criminal Law Amendment Act 1885 was repugnant to the Constitution because PP was charged with an offence under that Act. She said that PP had standing “to make the case that it criminalises all sexual activity between men, whether in public or private, regardless of age or consent, because the complainant in the case was, by reference to the law on sexual offences as it stood at the time, to be treated as an adult”.

Ms Justice O’Malley said it was not possible to apply current legislative standards on the protection of young persons to events that took place decades before those standards were introduced, because to do so would “involve retrospectively casting doubt upon or invalidating the legal rules of the time regarding matters such as the age of marriage”, and “risk criminalising persons who engaged in conduct that was lawful at the time”. 

Ms Justice O’Malley also concluded that it was not possible to interpret the section to bring it into compliance with the Constitution, by reading in an age of consent – stating that to do so would “do violence to the intention of the legislature” and would “amount to an unconstitutional usurpation of the role of the legislature”.

An adult for sexual consent purposes

Mr Justice Clarke, Chief Justice of the Supreme Court, said the prosecution of PP should be prohibited. He said that if PP had been prosecuted at the time of the alleged offences, he would have been able to mount a claim that MD was an adult for sexual consent purposes – therefore it would be unfair to impose contemporary age of consent norms on the events simply because prosecution was delayed by forty years.

Although finding that Ms Justice O’Malley was correct in her analysis that PP’s prosecution should be prohibited, Mr Justice Clarke said that he did not arrive at this conclusion on the basis of declaring the Criminal Law Amendment Act 1885 inconsistent with the Constitution, but rather on the basis of determining it impermissible under the Constitution for the DPP for prosecute PP in respect of the alleged offences having regard to the fact that MD was of an age generally considered to be one at which a male could consent to sexual activity.

• by Seosamh Gráinséir for Irish Legal News