A SUPREME Court majority decision halting the trial of a priest for alleged buggery of a teenage boy in 1970 due to “inexplicable” failures by the Oireachtas when decriminalising buggery in 1993, has important implications for other persons charged with buggery offences prior to 1993.
The decision does not affect the trial of the priest on two charges of indecent assault of the 13-year-old boy and another 14-year-old boy which can proceed.
The central issue in the appeal was whether buggery was a common law or statutory offence because different legal provisions apply to the prosecution of repealed offences, depending whether they are common law or statutory offences. By a three/two majority yesterday, the Supreme Court ruled the offence was a common law offence and overturned a High Court finding it was a statutory offence.
It went on to rule the priest cannot be tried on the buggery charge because, when repealing the common law offence of buggery “between persons” in 1993, the Oireachtas failed to enact the necessary saving measures to allow prosecutions for buggery offences committed prior to 1993.
Although general saving provisions for abolished common law offences were sought to be made four years later via the Interpretation (Amendment) Act 1997, that could not be retrospectively applied to pre-1993 buggery offences, the court said.
Mr Justice Adrian Hardiman described as “inexplicable” and “very remarkable” the failure of the Oireachtas to include the necessary saving provisions in the Criminal Law (Sexual Offences) Act 1993 allowing prosecutions for pre-1993 buggery offences. The difficulties in this case mainly arose due to “ill-considered changes in the law without proper thought about future prosecutions”, he said.
If the Oireachtas intended in 1993 to decriminalise only consensual buggery between adults, they could have said so but did not and said something “entirely different”, they were decriminalising “all buggery” between persons, he said.
“This fact, and the later unwillingness to state (if it were the case) that a dreadful mistake had been made in 1993 due to the inadvertence of the draftsman or legislators” had led to the “extraordinary vaguness and complexity” now confronting the court. If the Oireachtas wished to cure the situation, they should do so “by a new measure in simple and straightforward language”.
He added that sections of the 1997 Act were so complex and uncertain they would “baffle” the most enthusiastic or concerned readers.
The case arose after the priest was charged in 2007 with a number of sexual offences allegedly committed on two teenage boys in 1970/71 when they were boarders at a school where the priest taught.
When the priest appeared before District Court Judge Mary Devins in 2007, she refused to make any order on the buggery charge because she was concerned that offence was no longer available following its 1993 repeal.
When she repeated her refusal after the priest was brought before her a second time, the DPP successfully challenged her order in the High Court but the priest appealed that decision to the Supreme Court.
In her majority judgment, the Chief Justice, Ms Justice Susan Denham, noted the offence of buggery contrary to Section 61 of the Offences Against the Person Act 1861 was repealed following the successful European Court of Human Rights challenge by Senator David Norris to laws here criminalising homosexual acts.
The Criminal Law Sexual Offices Act 1993 decriminalised the act of buggery committed consensually between adults and created a new offence of buggery with persons under the age of 17 but that new offence operated only for future offences.
The Chief Justice, Mr Justice Hardiman and Ms Justice Fidelma Macken all agreed the offence of buggery was a common law offence which ceased to exist as a result of the 1993 Act but no saving provisions for pre-1993 offences were included in the 1993 Act.
Because the offence was a common law offence, not a statutory offence, it was not saved by Section 21 of the Interpretation Act 1937 which provided for transitional arrangements when a statutory offence was abolished.
While the effect of abolition of common law offences on prosection was addressed in the Interpetation Amendment Act 1997, that Act did not identify individal offences and the courts had decided it should be interepeted as having a prospective effect so it would not breach the constitutional prohibition on retrospective penal legislation.
The 1997 Act did not permit prosecutions for a common law offence committed prior to repeal of that offence where that prosecution was initiated after the 1997 Act came into force, she said.
If the 1997 Act was applied to the priest, it would retrospectively re-establish the buggery offence for the purpose of prosecuting an offence committed prior to 1993 for which he would not have been liable between 1993 and 1997.
Mr Justice Nial Fennelly and Mr Justice John Murray disagreed that buggery was a common law offence and held it was a statutory offence.
