THE SUPREME COURT

O'Donnell J.

MacMenamin J.

Dunne J.

O'Malley J.

BETWEEN

1. I have read the judgments in draft being delivered today by Clarke. C. J., O'Donnell J. and O'Malley J. It is not necessary for me to set out the facts or background of this case as those have been extensively dealt with in the judgments of O'Donnell J. and O'Malley J. I agree with the judgment of O'Donnell J. but I want to make some observations on the judgment of O'Malley J. and her treatment of the issue of the effect of an earlier finding of consistency with the Constitution in relation to a pre-1937 statute. I also propose to deal briefly with the issue of locus standi.

2. This case concerns a question as to the status of the offence of gross indecency contrary to s. 11 of the Criminal Law Amendment Act 1885. As can be seen the offence in question was repealed by the Oireachtas in 1993. Having regard to the provisions of s. 27 of the Interpretation Act 2005 the offence of gross indecency created by s. 11 of the Criminal Law Amendment Act 1885 may be prosecuted notwithstanding the repeal of the 1885 Act "as if it had not been repealed". As such, there would be little doubt but that the offence at issue could be prosecuted at this stage in respect of an offence committed prior to the repeal of the Act, notwithstanding its repeal.

3. There is however more to be considered. Section 11 of the Act of 1885 was at issue in the decision of this Court in Norris v. The Attorney General [1984] IR 36 and in that case was found not to be unconstitutional. It is not necessary for me to set out the details of that case which is very well known.

4. Assuming for the moment, that the appellant has the necessary locus standi to challenge the constitutionality of s. 11 of the Act of 1885, were he to succeed in such a challenge, the effect of such an outcome would be to overrule the decision in Norris in the event that he was successful. O'Malley J. at para. 60 described the issue in the following terms:

"This appeal, as O'Donnell J. observes, potentially gives rise to a complex question that might cast doubt on one formal constitutional theory, according to which a finding of inconsistency with the Constitution in respect of a pre-1937 statute means that the legislation is deemed not to have been carried over by Article 50 as part of our law since that year. In this case, such a finding could, he says, have the striking consequence that the statutory provision in question would be deemed not to have been in existence in 1983, the year when its constitutionality was upheld by a majority of this Court in Norris."

"As the year 1937 recedes further into history, and the Constitution is subject to both amendment from time to time by the People and to interpretation by the judiciary in the light of developing jurisprudence, it seems clear that a strict application of Henchy J.'s theory will encounter increasingly formidable objections. The courts could legitimately find in one era that a particular statute was consistent with the Constitution, while coming to the opposite conclusion at a different time. A statute that is found to be unobjectionable in one particular case, other than one that has been the subject of a reference to this Court under the provisions of Article 26, does not thereby acquire an immunity from future challenge. It seems to me, therefore, that the theory may need to be refined at least to the extent of distinguishing between pre-1937 legislation that was not consistent with the Constitution as enacted in 1937, and legislation that is inconsistent with the Constitution as it stands at the time the Court considers the matter. I would respectfully adopt Walsh J.'s analysis and suggest that in the latter category, the legislation ceases to have legal force only when the finding of inconsistency is made."

"If, however, subsequent to the coming into force of the Constitution the other statutory provisions were repealed and the state of facts was altered to a point where the joint effect of the repeal of the other statutes and the alteration of the facts was to give the original statute a completely different effect, then the question would arise of its continuing to be part of the law. In my view, Article 50, by its very terms (both in its Irish and English texts), makes it clear that laws in force in Saorstát Éireann shall continue to be in force only to the extent to which they are not inconsistent with the Constitution; and that, if the inconsistency arises for the first time after the coming into force of the Constitution, the law carried forward thereupon ceases to be in force."

"[T]here can be little doubt that the world of 1978 and 1979 in Ireland was a very different country as far as attitudes to sexuality, sexual orientation, sexual behaviour and many other matters were concerned."

Locus standi
8. Insofar as the issue of locus standi is concerned, I agree with the judgment of O'Donnell J. for the reasons given by him. Put very simply, the facts of this case involve an allegation that a then thirty four year old man engaged in acts of gross indecency with a boy who was at the relevant times aged between sixteen years of age and seventeen and a half. It has been indicated by the Director of Public Prosecutions that the criminal proceedings would not proceed in respect of any count on the indictment in respect of acts alleged to have occurred after the complainant had reached his seventeenth birthday. The appellant in his statement required to ground his application for judicial review sought inter alia, a declaration that s. 11 of the Criminal Law Amendment Act 1885 is incompatible with the Constitution of Ireland, in particular Articles 38.1, 40.1, 40.3.1. 40.3.2, and/or 40.4.1, and had not been continued in force by Article 50.1 thereof prior to its repeal in s. 14 of the Criminal Law (Sexual Offences) Act 1993. It is relevant to note the grounds relied on by the appellant in putting forward his challenge to the Act of 1885. In the first instance, it was asserted that the offence of gross indecency was so vague and uncertain in its remit and potential application that it was contrary to the fundamental principle of legal certainty in criminal matters as guaranteed under Article 38.1 of the Constitution. Secondly complaint was made that the offence of gross indecency contrary to common law and/or contrary to s. 11 of the Act of 1885 failed to distinguish between acts involving children and acts between consenting adults. This was contrasted with the provisions of s. 14 of the Criminal Law (Sexual Offences) Act 1993. Therefore, complaint was made as to the fact that the offences involved in this case alleged to have occurred included offences alleged to have occurred both before and after the seventeenth birthday of the alleged complainant. I presume that this ground of complaint prompted the undertaking of the Director of Public Prosecutions in this case to give an undertaking not to prosecute the appellant in respect of any counts in relation to the period after the seventeenth birthday of the alleged complainant.

9. Further the appellant relied on the fact that the offence of gross indecency was one that could only be committed by a male and it was contended that it thus discriminated on grounds of gender in breach of Article 40.1 of the Constitution of Ireland. Finally, it was contended that the offence of gross indecency as provided for by s. 11 of the Act of 1885 is an interference with the right of the appellant to private life as guaranteed by Article 8 of the European Convention on Human Rights and Article 40.3.1 of the Constitution of Ireland.

10. Some of the grounds relied on by the appellant are no longer relevant to this appeal as is apparent from the determination granting leave to the appellant to appeal to this Court. However, taking the last of those grounds, it seems to me that in order to establish locus standi to challenge the provisions of s. 11 of the Act of 1885 it would have been necessary for the appellant to have argued that s. 11 of the Act of 1885 was an interference with his right to private life including the right of a thirty four year old man to engage in acts of gross indecency with a sixteen year old boy. Quite simply, the appellant has not made that case. In those circumstances, I fail to see how he has locus standi to challenge the provisions of s. 11. It was noted in the judgment of O'Donnell J. that in 1978/79 the facts alleged in this case, if proven, would constitute an offence under s. 11 and such conduct if alleged today would also constitute an offence. As O'Donnell J. put it at p. 26, the appellant could, if he wished, have contended that the criminalisation of sexual relations between an older man and a boy of sixteen is invalid but he did not do so. What he cannot do, as O'Donnell J. said, is to put forward the hypothetical case of the section being applied to prosecute adult consensual sexual activity with a person over seventeen years of age because he is not facing such a charge.

11. I should note in passing at this point that in the course of argument it was contended on behalf of the Director of Public Prosecutions that it was open to the Director to prosecute two adult males for an offence of gross indecency contrary to s. 11 in relation to acts alleged to have occurred prior to the repeal of the Act of 1885. If such a course were to be taken by the Director of Public Prosecutions, then, undoubtedly, any individual facing such a potential prosecution would be likely to have locus standi to mount the challenge that the applicant in these proceedings now seeks to make. However, the facts of this case are quite different and accordingly he is not in a position to challenge the provisions of the Act on the grounds relied on by him.

12. In the circumstances of the case I would dismiss the appeal.