Judgment
Title: | P -v- Judges of the Circuit Court & Ors |
Neutral Citation: | [2019] IESC 26 |
Supreme Court Record Number: | S:AP:IE:2017:000057 |
High Court Record Number: | 2014 308 JR |
Date of Delivery: | 04/30/2019 |
Court: | Supreme Court |
Composition of Court: | Clarke C.J., O'Donnell Donal J., MacMenamin J., Dunne J., O'Malley Iseult J. |
Judgment by: | O'Malley Iseult J. |
Status: | Approved |
Result: | Appeal dismissed |
 | |
THE SUPREME COURT[Supreme Court Appeal No. 57/2017]
Clarke C.J.
O’Donnell J.
MacMenamin J.
Dunne J.
O’Malley J.
P.P.
APPELLANT
AND
THE JUDGES OF DUBLIN CIRCUIT COURT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
AND
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
Judgment of Ms. Justice Iseult O’Malley delivered the 30th day of April 2019
Introduction
1. The prosecution of sexual offences alleged to have been committed many years, or even decades, ago has thrown up many challenges for the criminal justice system. For the most part, however, the courts dealing with historic sexual offences have been considering conduct outlawed by legislation that is either still extant or has been replaced by identifiably similar measures. These proceedings involve a new issue, with strongly emotive aspects and significant legal complexity.
2. It is important to stress that no trial has yet taken place, and that therefore there has been no determination of any factual dispute as to the alleged events. Nothing that follows should be taken as expressing any view of those events. In particular, it will be necessary in this judgment to consider the role of consent in the legal description of the offence in question – this is not to be taken as involving any assumption as to whether or not there was in fact consent in this case.
3. The case is emotive because the appellant, who was a schoolteacher at the material time, is charged with committing the offence of gross indecency contrary to s.11 of the Criminal Law Amendment Act 1885 with one of his sixteen-year-old male pupils in the late 1970s. The acts alleged to have been committed by him would undoubtedly constitute serious offences under modern legislation. As O’Donnell J. points out, the case therefore involves the juxtaposition of the modern understanding of sexual exploitation of young people and 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.
4. It is legally complex because the current statutory and constitutional order are quite different to those applicable at the time of the alleged offences. In principle, it is constitutionally acceptable to prosecute under a provision that has been repealed. There is no doubt but that the elements of the offence charged will be those set out in that provision. However, there is a question in this case as to whether issues relating to capacity to give a legally valid consent should also be considered by reference to the statutory law of the time, or by reference to current standards set by the legislature. One proposition seems to be clear – that any proposed trial must take place under the constitutional regime in place at the time of the trial, and must not violate any of the applicable fundamental principles of that regime.
5. It is therefore necessary to examine the statutory and constitutional provisions as they stood at the time of the alleged offences, as well as the statutory and constitutional regimes now in place, and decide which elements of each are legally appropriate to apply in determining the key questions in the case.
6. The offence in question was created by an Act of Parliament in 1885 that was repealed by the Oireachtas in 1993. New legislation enacted at the time of the repeal introduced what was clearly designed as a child-protection regime – specifically, a new offence of gross indecency aimed at the protection of boys under the age of seventeen. Subsequent measures, with the most recent being the Criminal Law (Sexual Offences) Act 2017, have abolished the term “gross indecency” and created a range of offences including sexual intercourse or buggery with a child under the age of eighteen, and the exploitation of younger children for sexual purposes. However, it must be borne in mind that the 1885 measure applied to all males, of any age, who engaged in sexual activity with another man. A crucial feature is that, unlike any other sexual offence capable of being prosecuted today, consent was no defence, no matter what the age of the persons concerned.
7. By virtue of s.21 of the Interpretation Act 1937 (and the subsequent provision to the same effect contained in s.27 of the Interpretation Act 2005), offences created by a statute, alleged to have been committed while it was in force, may be prosecuted after the repeal of that statute “as if [it] had not been repealed”. All other things being equal, therefore, it is theoretically possible to prosecute a person now for an offence of gross indecency alleged to have been committed before 1993. It is not suggested that there is any constitutional frailty attaching to the Interpretation Act provisions, and for the most part they have operated uncontroversially.
8. However, the appellant claims that the 1885 provision is now unconstitutional and that he cannot therefore be prosecuted under it. As well as injunctive relief, the statement of grounds for judicial review claims inter alia a declaration that the section in question is incompatible with the Constitution and in particular Articles 38.1 (the guarantee of a trial in due course of law); 40.1 (the equality clause); 40.3.1° and 40.3.2° (the protection of personal rights including the right to privacy); and/or 40.4.1° (the right to liberty). The appellant argues that the section as interpreted in the courts of England and Wales required proof of the consent of both of the men involved. It is therefore inconsistent with current societal norms as exemplified by the Thirty-fourth Amendment to the Constitution; it breaches the right to privacy in relation to sexual activity; and it violates the principles of equality between the sexes.
9. The Director and the State parties take the position that the terms of the impugned section are sufficiently broad to encompass both consensual and non-consensual activity. While accepting that the appellant has locus standi to challenge the constitutionality of the section, arising from the fact that he is charged under it, they say that the appellant is not entitled to make the particular case he has put forward. The argument here is that he is prosecuted, not for consensual sexual activity with an adult, but on the allegation that he committed gross indecency with a child, and that there can be no question of an adult having a constitutional right to engage in such activity. The appellant is therefore said to lack standing to claim that there is any violation of his own rights. In any event, both the Director and the State parties deny that the section is unconstitutional.
10. It is important to note here that the Director has undertaken not to prosecute the appellant in respect of any incident alleged to have occurred after the complainant reached the age of seventeen. She expressly denies that this represents either a concession or the adoption of a policy by her in respect of cases of this nature – rather, it is a decision taken in respect of this particular case, intended to avoid any confusion that might be caused by the introduction of issues concerning consent. This position has led to a divergence between the arguments put forward on behalf of the Director and the State parties. The Director stands over the constitutionality of the section and maintains that in theory she could prosecute men who were adults at the time for consensual sexual activity engaged in before 1993, although she makes it clear that such a prosecution would be highly unlikely. For the reasons identified by O’Donnell J. I would seriously doubt whether such a prosecution could be permitted, but by holding out the theoretical possibility the Director avoids the suggestion that she has taken it upon herself to apply the law selectively by setting an age limit.
11. The State parties, on the other hand, propose that any constitutional infirmity that the Court might discern could be resolved by interpreting the legislation in a manner consistent with the Constitution and the European Convention on Human Rights. On this latter argument, it would be open to the Court to find that the offence could not constitutionally be prosecuted in certain circumstances. Specifically, the Attorney General is open to the “reading in” of an age of consent, and accepts that a corollary of that would be the “reading in” of a defence of mistake as to age. However, it is maintained that this course of action could not avail the appellant, since the appellant would have known that the complainant was under seventeen.
12. The societal, legal and constitutional norms in respect of the position of homosexual citizens of this State have, obviously, changed greatly since 1885, with most of the change coming over the past forty years. I agree with O’Donnell J. that the issue before the Court is not to be resolved by taking the path of either deriding the opinions of our predecessors or by deciding the case as if those opinions still held sway. However, in my view, an attempt at resolution by the application of modern legal concepts to historic offences, without regard to the legal context of the time, is equally capable of giving rise to difficulty.
13. What the Court has to determine in the first instance is whether, on the facts of the case as alleged, the appellant is entitled to mount a challenge based on the rights of men to engage in consensual sexual conduct.
Background
14. The issues in the case arise out of the following facts, set out in greater detail in the judgment of O’Donnell J. The complainant has alleged that, in 1978 and 1979, when he was a schoolboy aged sixteen (or possibly fifteen in respect of the earliest incident alleged), the appellant engaged in various forms of sexual activity with him. Some of the allegations would have grounded charges of the common law crime of buggery as provided for by s.61 of the Offences Against the Person Act 1861. Buggery was an offence for all persons, whether male or female, and it is beyond doubt that the consent of the other participant was not a defence. Indeed, a person who consented (the “patient”) was as guilty of the crime as the person who carried it out (the “agent”). However, the appellant cannot now be charged with having committed the crime of buggery in the 1970s because the Oireachtas, in 1993, expressly abolished the offence and repealed s.61. The new provision, whereby buggery of a person aged under seventeen was made an offence, cannot be applied to events before its enactment. Similarly, the offence of “rape under s.4” created by s.4 of the Criminal Law (Rape) (Amendment) Act 1990 cannot be applied retroactively.
15. The crime of indecent assault (which has remained part of our law, with occasional variations in terminology) is still available in respect of events from the period in question. Indecent assault was a crime at common law, and in the case of an indecent assault committed against a male person, the penalty prescribed at the relevant time by s.62 of the Offences Against the Person Act 1861was 10 years. Consent was and is a defence to a charge of indecent assault unless (by virtue of s.14 of the Criminal Law Amendment Act 1935) the victim was under the age of fifteen. The Director has not chosen to prefer any charge alleging the offence of indecent assault in this case.
16. Section 11 of the Act of 1885 provided as follows:
Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.
17. Incongruously, this section appeared in Part 1 of the Act of 1885, under the heading “Protection of Women and Girls”. There is a dispute between the parties as to its proper interpretation, in relation to the question of whether consent was an ingredient of the offence, but there is no dispute as to the fact that the consent of the parties was not a defence. As in the case of buggery, consent rendered the consenting party guilty of the offence.
18. The provision was repealed by the Criminal Law (Sexual Offences) Act 1993. Section 4 of that Act created a new offence in the following terms:
A male person who commits or attempts to commit an act of gross indecency with another male person under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 2 years.
19. The combination of the repeal and the enactment of the new provision therefore had the effect that consensual homosexual activity between male persons aged seventeen or over was lawful after the date of enactment. However, no specific provision was made in respect of any such activity engaged in before 1993. Despite the new legislative policy that lawfulness would depend only on age and consent, the Oireachtas did not, for example, stipulate that no prosecutions should be brought under the repealed section other than where one of the parties had been under seventeen. Instead, the operation of the Interpretation Act meant that s.11 could still be utilised for prosecutions “as if it had not been repealed”, without regard to either age or consent.
20. Section 4 was itself subsequently repealed in 2017 and a new offence of defilement of a child under the age of seventeen was introduced. Again, this being a new offence, the provision cannot be utilised in respect of events that pre-dated its enactment.
The elements of the offence of gross indecency – the English authorities
21. In his examination of the English authorities on s.11, O’Donnell J. has highlighted the disagreement on the issue of whether consent was a necessary ingredient of the offence between the members of the Court of Appeal of England and Wales who decided R. v Hall [1964] 1 Q.B. 273 and those members of the same Court who decided the later case of R. v Preece and Howells [1977] Q.B. 370.
22. R. v Pearce (1951) 35 Cr. App. R. 17 is the case where Humphreys J., in the Court of Criminal Appeal, made the observations that led to the disagreement. The appellant had been charged with attempting to commit an act of gross indecency with another man. That second man was not charged, but gave evidence for the prosecution in the trial, saying that he had not consented. The two points of law in the appeal were, firstly, whether the decision in R v. Hornby & Peaple (1948) 32 Cr. App. R. 1 invalidated the charge, and secondly, whether the words “with another male person” meant exclusively “with the consent of” the other male person.
23. Humphreys J. pointed out that the fact that the trial concerned an attempt rendered the case entirely different to Hornby. The question whether a jury could properly convict one of two people and acquit the other was immaterial in the circumstances – the finding of the jury was that Pearce had tried to commit an act of gross indecency with the other man and had failed. That appears to have been the ratio of the decision, but Humphreys J. went on to discuss Hornby. Having quoted a passage from the judgment of Lynskey J., he said:
24. This passage was considered by the Court of Criminal Appeal in R. v Hall [1964] 1 Q.B. 273. There, three men were charged under a provision of the Sexual Offences Act 1956 that for all relevant purposes re-enacted s.11 of the Act of 1885 (with the main difference being that the reference to acts in private had been deleted, so that only acts carried out in public were covered). The first two counts alleged an act of gross indecency between Jones and Gulliford. The third alleged that (in circumstances not described in the report) Hall was a party to the commission of the act. Jones admitted that he had interfered with Gulliford and pleaded guilty. Gulliford said that he had been taken by surprise by Jones and had not consented to the act. Hall’s defence was a denial. Gulliford was acquitted but Hall was convicted.
25. In Hall’s appeal, the argument was that there could be no offence unless both men consented to the act and acted in concert. Giving the judgment of the Court, Lord Parker C.J. observed that the question whether the word “with” meant “with the consent of” had been raised in Pearce but had not required an answer. Referring to the following sentence from the judgment of Humphreys J.: “Obviously it is an offence which, if two persons are to be convicted of it, must be proved to have been committed with the consent of both of them, acting in concert together, otherwise those two persons cannot be convicted”, he said that that seemed clear. He continued:
“Then he used these words, and coming from Humphreys J. they certainly deserve to be given very full weight. He said: ‘There is nothing to support the proposition that where two persons are jointly indicted for such an offence, one cannot be convicted and the other acquitted.’ Pausing there, that, as it seems to this court, can only mean that ‘with’ in the section does not mean ‘with the consent of’ but must be read in the sense of ‘towards’, otherwise it seems that Humphreys J.’s proposition could not stand.”
26. On the basis of this interpretation, the Court agreed that Humphreys J. was right, and that the word “with” did not mean “with the consent of”, but had what the Court accepted was the “somewhat looser” meaning of merely “against” or “directed towards”.
27. The final relevant English authority is R v. Preece and R v. Howells. The case came before the Court of Appeal on foot of a certificate from the trial judge, who commented that in cases not involving physical contact there was a conflict of authority on the meaning of the word “with” in s.13 of the 1885 Act. Each of the accused had been convicted, on separate counts, of an act of indecency with the other. The facts were that the two of them had been masturbating in toilet cubicles that were separated by a wall with a hole in it. One said that he had watched the other, and had hoped that he himself was being watched. The other denied having watched. The defence had submitted that “with” meant “in concert with” or “with consent”. The trial judge had ruled, relying on R. v. Hall, that if the two men acted in concert each was guilty. However, he said that one could be convicted alone if he intended to be seen and directed his actions towards the other, even if that other did not approve or consent.
28. The Court of Appeal disagreed with the interpretation of the earlier authorities adopted in Hall. It saw R. v. Jones [1896] 1 Q.B. 4 as a case where the judges assumed, rather than decided, that an act of gross indecency with another involved the participation of the other. However, in R. v Hornby the Court of Criminal Appeal had held that the two men must be acting in concert. The view of the court in R. v Hunt (1950) 34 Cr. App. R. 135 necessarily involved the willing participation of the other man, while recognising that the state of the evidence might be such that one could be convicted while the other was acquitted.
29. The judgment of Scarman L.J. goes on to consider R. v. Pearce and its treatment in R. v Hall. Humphreys J. had said in Pearce that there was nothing to support the proposition that where two men were jointly indicted for the offence, one could not be convicted and the other acquitted. In Hall, Lord Parker C.J. said that this could only be so if the word “with” in the section did not mean “with the consent of” but was to be interpreted as meaning “towards”. The Court in Preece considered that this reasoning was flawed, and that Humphreys J. could well have meant simply that on a joint indictment the evidence might be such as to produce an acquittal for one and a conviction for the other. It also thought that Humphreys J. was agreeing with, not dissenting from, the judgment of Lynskey J. in Hornby. The Court concluded that “the complete offence requires the participation, the co-operation, of two men”. It is true that the Court expressed the view that to construe the section otherwise could lead to the embarrassment of an innocent man, named in the indictment as the person “with” whom the offence was alleged to have occurred. Perhaps more to the point, it found that it was not necessary to so construe it since a man who committed a public act of indecency without the participation of another would in any event be committing an offence either at common law or under statute.
30. Finally, it is necessary to refer to Fairclough v Whipp (1951) 35 Cr. App. R. 138, the decision of Court of Criminal Appeal in which it was determined that a man who invited a child to touch him indecently did not commit the offence of indecent assault. R. v Burrows (1951) 35 Cr. App. R. 180 was a similar case to Fairclough, ruled on by the Court of Criminal Appeal in the same year, and the conviction was quashed on the same basis. In its ruling, however, the Court said that such cases should be dealt with as gross indecency.
“We have already, in the Court of Criminal Appeal in Pearce, exploded the view that one person cannot be charged with an act of gross indecency if the other cannot be charged, and, of course, in this case the boy could not be charged because he was an unwilling participator and was only a child. If the appellant had been charged with an act of gross indecency, he would, no doubt, have been very properly convicted…
…the case may be of some use if it is pointed out to prosecuting authorities generally that in a case of this description, where the prisoner and a boy are concerned, it is far safer to charge the prisoner with procuring or attempting to procure an act of gross indecency, and not to charge an indecent assault.”
31. It may be relevant to point out here that in 1960 the United Kingdom introduced legislation to deal with the Fairclough v Whipp analysis. However, the significance of the case should not be overstated. The facts of the case were that the accused was urinating beside a river. There were some young girls in the vicinity and he invited one of them – a girl aged nine – to touch his penis. She did so, and he then went away without having touched her. In quashing the indecent assault conviction, the Court of Appeal noted that an assault did not require physical contact, since it would be sufficient to cause the victim apprehension. However, an invitation to touch, without any other act on the part of the accused, could not amount to an assault.
32. There does not appear to be any Irish case where Fairclough was considered. As it is put in Charleton, Offences Against the Person (Round Hall Press, 1992), a factual scenario where the touching “is all one way” and the accused does not touch the victim in return is “a highly unlikely circumstance”. No legislative provision was put in place to deal with this scenario in this jurisdiction until 1993. It may be that this was because the authorities thought that the suggestion made by the court in Burrows was sufficient, but this seems unlikely. Gross indecency, after all, applied only to males and if Fairclough had created an issue in respect of assaults against girls one might have thought that it would have come to attention.
The Irish authorities
33. Oddly enough, the definition of the elements of the offence of gross indecency do not appear to have ever been the subject of considered adjudication in this jurisdiction. It certainly must be accepted that all of the authorities cited to the Court either provide no information from which it could be deduced that consent might have been relevant, or proceed on the assumption that consent is irrelevant. So, for example, the sentencing decision in The People (AG) v McClure [1945] I.R. 275 is reported without any reference whatsoever to the other party to the incident. Attorney General v Scuffil [1936] I.R. 469 seems to have been reported only because it dealt with a point about extension of time. The short reference to the reason given for quashing the conviction – absence of corroboration of the evidence of a child of tender years – does not explain whether the child in question was the complainant in respect of gross indecency, indecent assault, or both.
34. The 1947 case of The People (Attorney General) v England (1947) 1 Frewen 81 was, like the later case of R. v Pearce, concerned with an alleged attempt. The conviction was quashed because the words attributed to the accused were not sufficiently proximate to constitute an attempt to procure an act of gross indecency, and the judgment deals solely with that issue.
35. In Attorney General v Duffy [1931] I.R. 144, the appellant had been convicted on four counts, relating to four males who were described only as “boys”. The Court of Criminal Appeal quashed the convictions, in part because the charges should not have been tried together but also because the trial judge had not given an accomplice warning in respect of the evidence of the boys. This was because, on the evidence, they all appeared to have consented to the acts of the accused. The only conclusion that can be drawn from this is that the witnesses were over the age of criminal responsibility. However, the Director has correctly pointed out (with reference to Professor Ferriter’s work Occasions of Sin: Sex and Society in Modern Ireland (Profile Books, 2009)) that many of the charges brought in the 1920s and 30s related to very young children.
36. The Attorney General and the Director both rely, of course, on the judgment of O’Higgins C.J., in Norris v The Attorney General [1984] I.R. 36, where the offence was referred to as being one that could be committed “with or without consent.”
37. Twenty years after the decision in Norris the question of the constitutionality of s.11 was raised in D.W. v The Director of Public Prosecutions (Unreported, Supreme Court, 31st October 2003), where the applicant had been charged with indecent assault and gross indecency. However, the declaratory relief sought in the pleadings was not pursued (because the appropriate respondents had not been joined) and the case ultimately concerned only the issue of delay. The lead judgment on this issue is that of McGuinness J. It may be noted that in a partially dissenting judgment Hardiman J. would have granted relief restraining prosecution of the indecent assault charges, because of vagueness as to dates of alleged offences in and around the time of the complainant’s fifteenth birthday (and the difficulty, therefore, of establishing the defence of consent). He agreed with the majority so far as the charges of gross indecency were concerned, on the basis that age and consent were irrelevant to those charges, saying:
“…once gross indecency is established, any party to it is criminally liable regardless of his own or the other’s consent.”
38. If it were not for the Irish cases, I would be inclined to prefer the view taken in Preece and Howells over that in Hall. It seems to me that Preece and Howells comes closer to the meaning of the words used by the legislature – after all, it is not everyday usage to construe the word “with” as “against”. It also seems more likely that the legislative intent was to criminalise consensual homosexual conduct that fell short of buggery. Non-consensual touching in circumstances of indecency was already an offence, in the form of indecent assault on a male person, and carried a significantly greater penalty than the new provision. Finally, the analysis of the previous authorities seems to me to be more convincing.
39. However, I would have to accept that such analysis as can be gleaned from the Irish cases supports the view that in this jurisdiction the offence was always seen as one that could be committed by one male without the consent of the other party. A quarter of a century after the repeal of the section appears to be too late to embark on a reconstruction. In any event, as O’Donnell J. points out, the role of consent as an ingredient of the offence is something of a distraction in that the core feature of the section is that it undoubtedly criminalises consensual behaviour.
The decision in Norris v The Attorney General
40. Section 11 was, along with the provisions of the Offences Against the Person Act 1861 relating to buggery, the subject of an unsuccessful constitutional challenge in the late 1970s, with the final decision being given by this Court in 1983 (see: [1984] I.R. 36). It is therefore necessary to commence with consideration of that decision and its status in the light of subsequent developments.
41. By the time the case was argued on appeal, the European Court of Human Rights had given its decision in Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149, holding that s.11 of the Act of 1885 was inconsistent with the Convention. The Convention was not, of course, part of domestic Irish law and the plaintiff in Norris could not place direct reliance upon it. He sought declarations that ss. 61 and 62 of the Offences Against the Person Act 1861 (respectively, buggery and attempted buggery or indecent assault) and s.11 of the Act of 1885 were inconsistent with the provisions of the Constitution and had not been continued in force by Article 50. Having been unsuccessful in the High Court he appealed. The appeal was dismissed by a majority, with Finlay P. and Griffin J. agreeing with the judgment of O’Higgins C.J.
42. O’Higgins C.J. noted that the question whether the challenged legislation had been carried over or re-enacted into the corpus juris in this jurisdiction depended on whether it passed the test prescribed by Article 50 of the Constitution. Having set out Art. 50.1, (the effect of which is considered further below) he went on:
“The purpose of Article 50, s.1, is to continue in force the laws which had previously operated in Saorstát Éireann, with as few exceptions as possible. The phrase ‘subject to this Constitution’ indicates an obvious requirement that, in order to be operable in the new State, such laws must fit into the framework of, and be controlled by, the Constitution. If, by the nature of their provisions, this were not possible, such laws, on that account alone, could not be continued. Subject to the Constitution in that sense, such laws are to continue to be of full force and effect ‘to the extent to which they are not inconsistent therewith.’”
43. The Chief Justice further noted that in the case of legislation covered by Article 50 there was no presumption of consistency or constitutionality. Each such law must be examined to see what it purported to authorise or permit. If it permitted what the Constitution prohibited, or forbade what the Constitution permitted, then inconsistency would be established and, to the extent of that inconsistency, the law would be declared to have ceased to have effect “on the coming into operation of the Constitution”.
44. At p.54 of the report the Chief Justice said:
“If on examination of such legislation now, in the light of the Constitution as it has been interpreted and understood since its enactment, inconsistencies are established, such legislation, to the extent thereof, must be held not to have been so continued. To achieve this result, however, the plaintiff must show that such inconsistencies exist. It is not sufficient to show that the legislation is out of date, is lacking in public support or approval, is out of tune with the mood or requirements of the times or is of a kind impossible to contemplate now being enacted by Oireachtas Éireann. Unless inconsistency is established, such legislation, no matter what its defects or blemishes may be, is continued by the express terms of Article 50 ‘to be of full force and effect’ until repealed or amended by enactment of the Oireachtas.”
45. The plaintiff had argued inter alia that the legislation violated both his personal right to privacy and the right to marital privacy. The defendants contended, by reference to Cahill v Sutton [1980] I.R. 269, that the plaintiff lacked standing to make either point. There had been no interference with his general right to privacy, in that he had not been prosecuted and was in no danger of suffering in any way from the legislation. Since it was part of his case that marriage was for him impossible, he could not rely upon marital privacy.
46. O’Higgins C.J. accepted the latter part of the defence submission, holding that the plaintiff could not make his case on the basis of a possible impact of the legislation on a situation which was not his, or point to a possible injury or prejudice which he had neither suffered nor was in imminent danger of suffering. However, the plaintiff was not deprived of standing merely because he had neither been prosecuted nor had his way of life disturbed as a result of the legislation.
“In my view, as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened.”
47. Henchy J., delivering one of the two minority judgments, agreed with the majority that the plaintiff had no locus standi to argue the “abstract constitutional rights of married couples”. However, the impact of the impugned provisions on his personal life was so real and so palpably deleterious to his well-being that he had no difficulty in meeting the test expressed in Cahill v Sutton as follows:
“The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute…must be able to assert that, because of the alleged unconstitutionality, his…interests have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute.”
48. Henchy J. considered that, having regard to the clear evidence of the ever-present risk of prosecution, conviction and punishment, and the other real or imminent risks besetting the plaintiff’s life, the case was “virtually a classic example” of a challenge mounted by a litigant with unanswerable qualifications. He also noted the actual effects on the plaintiff’s health and social and professional life of the “repressive and constricting” treatment suffered by him.
49. The other member of the minority, McCarthy J. felt that considerations such as the fact that the plaintiff had not been prosecuted under any of the sections were irrelevant since those sections were, subject to the constitutional considerations, prima facie part of the law of the State.
“If there were a positive decision made by the Gardaí or the Director of Public Prosecutions never to prosecute in any such case, in my view it would be unlawful as a positive decision not to enforce the law.”
50. On the substantive arguments, O’Higgins C.J. firstly rejected the complaint that the absence of any equivalent offence of gross indecency between females meant that s.11 involved discrimination contrary to Article 40.1. Moving on to the right to bodily integrity, he held that if the legislation was otherwise valid, it could not be rendered inoperative merely because compliance with it was difficult for, or harmful to, the plaintiff. The exigencies of the common good had to prevail. No breach of the right to freedom of expression or freedom of association was involved, since those rights were subject to public order and morality.
51. Dealing with the core issue – the claim that the legislation interfered with the plaintiff’s right to privacy, the Chief Justice referred to the “deep religious and moral beliefs” involved in this area. He noted the teachings of the Christian churches and the long-standing criminal status of buggery. He considered certain research that in his view demonstrated that the life of a homosexual was unhappy, lonely and frustrated; that there was a risk that the homosexually orientated could be importuned into an habitual homosexual lifestyle; that there was a high risk of sexually transmitted disease; and that homosexual activity posed dangers to the institution of marriage.
52. Looking at the preamble to the Constitution, with its reference to God, the Holy Trinity and Jesus Christ, the Chief Justice said that the plaintiff’s suggestion was that, notwithstanding this proclamation of a deep religious conviction and faith, and an intention to adopt a Constitution consistent with that conviction and faith, the people had rendered inoperative laws that had existed for hundreds of years prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful. He found this suggestion “incomprehensible and difficult of acceptance.” As far as the claimed right of privacy was concerned, it could not be absolute. The State had an interest in the general moral well-being of the community, and was entitled to prohibit certain acts simply because they were morally wrong, whether they were done in private or not and whether any harm resulted to others or not. Having regard to the effects of homosexual behaviour, no one could regard with equanimity the freeing of such conduct from all legal restraints “with the certain result that it would increase and its known devotees multiply.”
53. In his dissent, Henchy J. pointed out that the Court was not called upon to express an opinion upon what the law on the topic should be, or what the purpose of the law should be.
“Such considerations are for moral philosophers, legal theorists, lawmakers and the like. In a case such as the present, where the legal materials we are considering are written instruments (i.e. statutory provisions on the one hand and overriding constitutional provisions on the other) and are not amenable to the judicial development or extension which would be the case in regard to unwritten or case law, we must take those legal materials as we find them. The judicial function in a case such as this is to lay the impugned statutory provisions down beside the invoked constitutional provisions and if, in the light of the established or admitted facts, a comparison between the two sets of provisions shows a repugnancy, the statutory provisions must be struck down either wholly or in part – if the test of severability laid down at p. 147 of the report of Maher v The Attorney General is applicable.”
54. I digress here to note that Maher v The Attorney General [1973] I.R. 140 was the well-known case concerning a provision in road traffic legislation that purported to make a certificate of blood alcohol “conclusive evidence” of the concentration of alcohol in the blood of a driver. Part of the argument made on behalf of the State was that, if necessary, the word “conclusive” could be severed so that the section would not fall in its entirety. Giving the judgment of the Court, Fitzgerald C.J. said:
“The application of the doctrine of severability or separability in the judicial review of legislation has the effect that if a particular provision is held to be unconstitutional, and that provision is independent of and severable from the rest, only the offending provision will be declared invalid. The question is one of interpretation of the legislative intent. Article 15, s.4, sub-s. 2, of the Constitution lays down that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid; therefore there is a presumption that a statute or a statutory provision is not intended to be constitutionally operative only as an entirety. This presumption, however, may be rebutted if it can be shown that, after a part has been held unconstitutional, the remainder may be held to stand independently and legally operable as representing the will of the legislature. But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed and given constitutional validity.”
55. Referring to the fact that Article 15 vests in the Oireachtas the sole and exclusive power of making laws for the State, the judgment continues:
“If, therefore, the Court were to sever part of a statutory provision as unconstitutional and seek to give validity to what is left so as to produce an effect at variance with legislative policy, the Court would be invading a domain exclusive to the legislature and thus exceeding the Court’s competency. In other words, it would be seeking to correct one form of unconstitutionality by engaging in another. The usurpation by the judiciary of an exclusively legislative function is no less unconstitutional than the usurpation by the legislature of an exclusively judicial function. The right to choose and formulate legislative policy is vested exclusively by the Constitution in the national parliament.”
56. Henchy J. rejected the argument made by the plaintiff in respect of the alleged discrimination between homosexual males and homosexual females, or between homosexual males and married couples, considering that the sexual acts involved were for physiological, social and other reasons capable of being differentiated as to their nature, their context, the range of their possible consequences and the desirability of seeking to enforce their proscription as crimes. This was a matter for legislative policy. However, he found that the plaintiff’s right of privacy – “a complex of rights which vary in nature, purpose and range (each necessarily being a facet of the citizen’s core of individuality within the constitutional order)” – had been violated. At p. 72 he said:
“Put in specific terms, the central issue in this case is whether the plaintiff's claim to be entitled to engage in homosexual acts in private must give way to the right and duty of the State to uphold considerations of public order and morality. In my opinion the legal test by which that issue should be determined is this: where, as in this case, a pre-Constitution legislature has condemned as criminal all homosexual acts between males (ranging from acts of gross indecency, the commission of which does not require even physical contact, to acts of sodomy) and thereby blights and thwarts in a variety of ways the life of a person who is by nature incapable of giving expression to his sexuality except by homosexual acts, and who wishes to be entitled to do so consensually in private, the onus lies on the Attorney General, representing the State, if he is to defeat the individual's claim, to show that to allow him that degree of privacy would be inconsistent with the maintenance of public order and morality.”
57. Given the evidence in the case (summarised by him in detail), Henchy J. considered that the State had failed to discharge that onus. He then went on:
“One way or the other, the impugned provisions seem doomed to extinction. Whether they be struck down by this Court for being unconstitutional or whether they be deemed invalid elsewhere in accordance with the decision in Dudgeon v United Kingdom (for being in contravention of the European Convention for the Protection of Human Rights and Fundamental Freedoms) they will require to be replaced with appropriate statutory provisions. It would not be constitutional to decriminalise all homosexual acts, any more than it would be constitutional to decriminalise all heterosexual acts. Public order and morality; the protection of the young, of the weak-willed, of those who may readily be subject to undue influence, and of others who should be deemed to be in need of protection; the maintenance inviolate of the family as the natural primary and fundamental unit of society; the upholding of the institution of marriage; the requirements of public health; these and other aspects of the common good require that homosexual acts be made criminal in many circumstances. The true and justifiable gravamen of the complaint against the sections under review is that they are in constitutional error for overreach or over breadth. They lack necessary discrimination and precision as to when and how they are to apply.”
58. In a similar vein, Henchy J. said that any replacement laws would need to “hedge in” such immunity from criminal sanctions as the Oireachtas might think fit to confer (on acts of a homosexual nature between consenting adults) with appropriate definitions relating to inter alia adulthood, consent and privacy and with such exceptions relating to prostitution, immoral exploitation as might justifiably be considered necessary. It should be said that McCarthy J. agreed on this aspect.
A pre-1937 statute – the effect of an earlier finding of consistency with the Constitution
59. Article 50. 1 of the Constitution provides as follows:
Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.
60. 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.
61. The theory in question was encapsulated in a dictum of Henchy J in Murphy v Attorney General [1982] I.R. 241, where he said that a declaration of inconsistency amounted to a “judicial death certificate, with the date of death stated as the date when the Constitution came into operation”. It will have been noticed that O’Higgins C.J. used words to the same effect in Norris. There is no doubt as to the weight that has been accorded to this analysis. However, as a theory, it may need some refinement to take into account certain other concepts that are also to be found in the jurisprudence of this Court.
62. To begin with, there is a well-established doctrine that the Constitution is a living document, and not to be interpreted solely through the prism of the prevailing views in 1937. The famous passage to that effect from the judgment of Walsh J. in McGee v Attorney General [1974] I.R. 284 has been cited many times in decisions of this Court:
“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
63. O’Higgins C.J. cited this passage concerning the preamble in The State (Healy) v Donoghue [1976] I.R. 325, in support of the following analysis:
“In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.”
64. It may be noted here that it was by reference to these authorities that McCarthy J. disagreed with the approach of the Chief Justice in Norris, in asking the question as to what the people thought they were adopting in 1937. McCarthy J. was firmly of the view that where contemporary mores were relevant to an issue of constitutionality, what had to be considered were the mores contemporaneous with the raising of the issue.
65. Recent cases in which this approach has been endorsed include Sinnott v Minister for Education [2001] 2 I.R. 545, A. v Governor of Arbour Hill Prison [2006] 4 I.R. 88 and DPP v White and Gormley [2014] 2 I.R. 591.
66. It is important for present purposes to note that in an earlier decision, in McGee v. Attorney General [1974] I.R. 284, Walsh J. had dealt with a submission made on behalf of the Attorney General to the effect that a pre-1937 statute could have been carried over by Article 50 of the Constitution even though its provisions were such that it could not have been validly enacted at a later date. At p. 307 he observed that as a general proposition, this was in direct conflict with Article 50 and was “quite unsustainable”. However, he considered that there were circumstances in which the proposition could be partially correct.
“If a pre-Constitution statute was such that it was not in conflict with the Constitution when taken in conjunction with other statutory provisions then in existence and with a particular state of facts then existing, and if such other statutory provisions continued in effect after the coming into force of the Constitution and the particular state of facts remained unaltered, the provisions of the first statute might not in any way be inconsistent with the provisions of the Constitution.”
67. The passage then continues:
“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.”
68. In A v Governor of Arbour Hill, Murray J. said:
“It is entirely conceivable therefore that an Act found to be unconstitutional in this, the 21st century, might well have passed constitutional muster in the 1940s or 50s. It would be impossible and absurd for the court to inquire into and identify the point in time when society could have been deemed to have evolved so as to call in question the constitutionality of an Act. The court can decide the issue only on the basis of the facts as it finds them when a case is decided.”
69. A number of the decisions of this Court illustrate the principle that a statute that was initially unobjectionable may become unconstitutional. This may be as a result of the interaction of the statute with other legislation, as in the recent cases of P.C. v Minister for Social Affairs [2018] IESC 57 and N.H.V. v Minister for Justice [2018] 1 I.R. 246. It may come about because of a failure to adapt a measure to deal with changes in the factual circumstances to which it applied, as in Brennan v Attorney General [1984] I.L.R.M. 355. Alternatively, there may be judicial development in the perceptions of constitutional rights, as in The State (Healy) v Donoghue. If it is possible that a statute enacted by the Oireachtas, which has the benefit of a presumption of constitutionality, can become unconstitutional, the same must be true of pre-1937 legislation.
70. More directly, a statute can clearly become unconstitutional as a result of an amendment to the Constitution by the People.
71. As the year 1937 recedes further into history, and the Constitution is subject both to 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.
72. It is now thirty-five years since the decision in Norris. The radical legislative changes over those years in relation to the legal position of sexual minorities, under both civil and criminal statutes, might have been thought impossible by at least some members of the Court of 1983, but there can be little doubt that they accord with concepts of the dignity and freedom of the individual currently accepted in this State. This proposition can now be stated with confidence because of the change to the Constitution brought about with the approval by the People of the 34th Amendment. That Amendment conferred on same-sex couples the right to enter into relationships and marry on the same terms as heterosexuals. It seems to me to be incontestable that a case such as Norris simply could not now be decided on the same basis as that espoused by the majority of this Court in 1983.
73. It follows, in my view, that the Court is not necessarily confined to a choice of either holding that Norris was wrong when it was decided, and that the section was not carried over in 1937, or holding that Norris was correctly decided and that it follows that the trial may now proceed. Any proposed trial would take place under the constitutional order as it now is. It is therefore possible for the appellant to succeed by persuading the Court that a trial on charges brought pursuant to s.11 of the Act of 1885 would not, at this point in time, be in accordance with the Constitution.
74. However, before the appellant can get to that point it is necessary to establish whether or not he has standing to make the central argument in his case, which is that s.11 criminalises consensual sexual activity. The argument against him is that any claim to a right to engage in such activity must be limited, by constitutional considerations, to consenting adults, and the complainant in this case was not an adult. These contentions require examination of both the essential ingredients of the offence and the question of the status of the complainant.
The relevance of the complainant’s age
75. The respondents say that the arguments upon which the section might be found unconstitutional have no application in the case of sexual activity with a child. Any issue as to consensual activity is therefore disposed of by the Director’s undertaking that the appellant will not be prosecuted in respect of any allegation concerning conduct when the complainant was over the age of seventeen. Thus, any claim made in respect of the privacy rights of consenting adults cannot avail him.
76. It should be noted here that in the High Court Moriarty J., in referring to the Director’s undertaking in the case, said in respect of the remaining counts that the complainant would have been “legally incapable” of giving an informed consent. The judgment of the Court of Appeal refers to the complainant as having been “a schoolboy” and a “child” but makes no express reference to capacity to consent.
77. The appellant has argued the constitutional issue on the basis that the section criminalised consensual adult conduct. He has not raised any argument as to whether or not the complainant should be regarded as having been a child – he has made no comment at all on the facts of the case, and should not therefore be taken as claiming or admitting anything as to his potential defence in a trial. It is important to stress, however, that it is the respondents who raise the issue of the complainant’s status as a means of denying standing to the appellant to argue that the statute violates the right to privacy of consenting adults.
78. The respondents’ argument seems to rely on the proposition that a person under the age of seventeen must be regarded by the Court as a child for purposes relating to capacity to consent to sexual activity or, at least, that it is for the appellant to assert a right to engage in such activity with a sixteen-year-old. However, such a claim could never be successful. It is clear that the Oireachtas has the policy-making function and power to determine the age of consent. For example, the Oireachtas decided, after these proceedings had been instituted and the positions of the parties formulated, to create a specific offence, restricted to “persons in authority”, in relation to sexual intercourse and buggery with a child under the age of eighteen. Consent is not a defence (s.18 of the Criminal Law (Sexual Offences) Act 2017). Provided that the legislative choice does not breach either the constitutional obligation to protect children or the rights of privacy of persons clearly entitled to make their own decisions, no constitutional right will be violated.
79. In my view, the most that an individual can claim is a right to engage in consensual sexual activity with any person considered to be an adult for the purposes of the law in force at the relevant time.
80. I think that it must follow that the question of capacity must be determined by reference to that law. The reason for this is that, although the results may be discordant, or even completely incompatible, with modern standards, the retrospective application of those modern standards could have the consequence of retrospectively criminalising conduct and invalidating relationships that were fully lawful at the time. For example, an adult female teacher who had consensual sexual intercourse with a sixteen-year-old male pupil in the 1970s did not commit an offence at that time, and could have relied upon his consent as a defence to any charge of indecent assault. Under current law she would commit a serious offence to which consent would be no defence (under s.18 of the Criminal Law (Sexual Offences) Act 2017). The question cannot be simply whether it would be consistent with the Constitution as currently understood to try the teacher for engaging in such conduct with an adolescent – the court would have to consider the law on consent as it stood at the time. This, I think, is where the problem arises of superimposing the current legislative position, reflecting current social ideas and policy, on top of the legal position in the 1970s.
81. It is true that a sixteen-year-old was, in the 1970s, an “infant” in the eyes of the law. The age of majority was twenty-one, until the reduction to eighteen by the Age of Majority Act 1985. However, the practical effects of this status were mainly seen in relation to parental rights, and the areas of law concerned with contracts and property. The position in relation to sexual matters was quite different. For example, as of the 1st January 1975 a person could enter into a valid marriage at sixteen (or even under that age with the consent of the President of the High Court). Figures from the Central Statistics Office, referred to in the Law Reform Commission’s Consultation Paper on the Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (Working Paper No.2 – 1977) show that in 1975 there were 144 marriages where the bride was sixteen, and 23 where the groom was. Prior to that date, a boy could validly marry at the age of fourteen. By contrast, the age is now set at eighteen (s.31 of the Family Law Act 1995, with provision in s.33 for permission to marry at an earlier age to be granted by the Circuit Court or High Court).
82. We are concerned here, however, with the area of criminal law and it is important to consider the question of age as it related to criminal offences. To begin with, the age of criminal responsibility was seven years. (It is now twelve.) From that age to the age of fourteen, children had the benefit of the (rebuttable) presumption of doli incapax. A boy under the age of fourteen was irrebuttably presumed to be incapable of rape. However, after that age both males and females were fully legally responsible for their criminal acts and the only difference made by age was in relation to punishment.
83. By virtue of the Criminal Law Amendment Act 1935, unlawful carnal knowledge of a girl under the age of fifteen was a felony, punishable by penal servitude for life. (The word “unlawful” refers to the fact that a girl could have been validly married below the age of fifteen, and her husband could have lawful intercourse with her. Before the enactment of this section the age for girls had been fixed at thirteen by the 1885 Act, which was in turn an amendment of the common law position where the age was twelve.) Unlawful carnal knowledge of a girl between the ages of fifteen and seventeen was, under the same statute, a misdemeanour punishable by up to five years. It is noteworthy that this latter offence could not be prosecuted after the elapse of one year from the event. By contrast, there was no limitation period for offences involving younger children, or for gross indecency.
84. Section 14 of the Criminal Law Amendment Act 1935 act provided that consent was not a defence to a charge of indecent assault upon a person (male or female) under the age of fifteen years.
85. A sixteen-year-old male was, at the time now under consideration, treated as fully adult in respect of all sexual conduct. He was fully responsible for any crime he committed. He could lawfully engage in sexual activity with a female, falling short of intercourse, if she was over fifteen and consented. If she did not consent, he committed the crime of indecent assault. If she was younger, her consent was irrelevant and he committed the same crime. He could give consent to being touched in a sexual manner. He could lawfully have intercourse with any female over seventeen provided she consented – in the absence of consent he committed rape. It was not an offence for a woman to have intercourse with a consenting sixteen-year-old male.
86. What the sixteen-year-old could not lawfully do, because no male of any age could, was engage in or be party to any form of sexual activity with another male that constituted gross indecency, with or without physical contact, whether in public or private. Consent was no defence because to consent was to participate in the crime, and the sixteen-year-old who consented to acts of gross indecency could be prosecuted for the offence or, if called as a witness by the prosecution, treated as an accomplice.
87. The Director and the other State parties point to the choice by the Oireachtas (in enacting the provisions that replaced s.11 of the Act of 1885 and s.61 of the Act of 1861) of the age seventeen as the appropriate age in a measure designed to protect children. In fact, the 2017 legislation prescribes the age of eighteen as the appropriate one for sexual intercourse and buggery, if the accused was in a position of authority (the definition of which includes teachers). As already noted, it was stressed by counsel that the Director does not see her undertaking (not to prosecute in respect of events that occurred after the complainant’s seventeenth birthday) either as a concession or as a policy, but as a route for the avoidance of any consent issue in this case. In a different case she could take a different position, while, she says, being careful not to intrude upon constitutional rights. She was not prepared to express a view as to where an appropriate age-boundary might lie, or indeed whether there is such a boundary, in terms of prosecutions for pre-1993 consensual sexual activity between men.
88. In written submissions and in the course of the hearing, counsel for the Attorney General had argued for a “reading down” of the section in the event that the Court considered it to be inconsistent with the Constitution in its full effect. Thus, he was prepared to accept a “reading-in” of an age of consent in relation to s.11. Further, he accepted that this could entail, or necessitate, the reading-in of a defence of mistaken belief as to age. However, he maintained that that defence could not avail the appellant on the facts of the case and it was therefore unnecessary to say what the age should be.
89. The problem here, as I see it, is that the position of the Director and the Attorney General involves an assumption that the age seventeen has some form of general legal status, or that the Court is entitled to ascribe a particular constitutional status to it. This gives rise to a number of concerns.
90. The first is that the Constitution is generally silent on the topic of age limits. Even Article 42A, which deals with the rights of the child, does not define childhood. The legal definition has always been considered to be a policy matter to be left to the legislature. The fact that seventeen is the age that was selected in the context of sexual matters in 1993 does not mean that no other age could have been chosen, and it is clear from the reports of the Law Reform Commission that consideration was given to other options. The provisions of the 2017 legislation referred to above use the word “child” throughout, but the age at which a young person is to be regarded as a “child” differs according to the substantive content of the various sections.
91. It may be noted that in the United Kingdom, Parliament initially set the age of consent for homosexual activity at twenty-one, then reduced it to eighteen. It now stands at sixteen.
92. Should this court determine, in this case, that a person under the age of seventeen must be regarded as a child, that could have implications for any potential future policy decision on the part of the Oireachtas as to any change it might consider appropriate on the question of the capacity of young people to give a legally effective consent. I do not consider that the Court is entitled to make that choice.
93. Of equal concern is the fact that the age seventeen had no relevance at all for males in the 1970s. I fully accept the dictum of Henchy J. as to the constitutional obligation to protect children, amongst others, from sexual exploitation by adults. However, the legislative policy at the time was that the protection for children enshrined in law was, in the case of males, afforded only up to the age of fifteen. (It seems reasonable to see this in the context of a society where an average fifteen-year-old boy might well have left school and gone to work.) Although the provisions in relation to girls were different, they could at the age of fifteen consent to sexual acts falling short of intercourse. At that age, a male could give effective consent to any activity that was lawful for any adult. He could consent to activity with a female that amounted to gross indecency, and, were it not for s.11 of the Act of 1885, he could have consented to acts of gross indecency with a man.
94. For these reasons, I do not consider that the respondents’ argument as to standing should succeed.
The constitutionality of s.11
95. If the above argument is correct, then it seems to me that there is little to be said about the compatibility of s.11 of the Act of 1885 with the Constitution. As already noted, the Constitution now views homosexual relationships in the same way as heterosexual relationships. It is clearly inconsistent with that view to prohibit consensual expressions of sexuality between persons who are, as a matter of legislative policy, determined to be of sufficient age to consent. It would seem clear, therefore, that the Oireachtas could not now validly enact legislation of the “overreach” identified by Henchy J. in relation to the provision under consideration. The question then is whether the statute can now be interpreted in a manner that is compliant with the terms of the Constitution.
96. Concerns for the protection of the young would not entitle the Court to rewrite the age limits in respect of consent to sexual touching that were actually set out in legislation, since that would criminalise conduct that was lawful at the time. Gross indecency raises a different issue because it was unlawful at any age. If the Court were to take the view that the statute could be interpreted so as to provide for a defence of consent, that would require either a decision as to the age at which consent could be given or, at least, a decision that a prosecution in respect of a complainant who was under seventeen at the time is constitutionally unobjectionable.
97. The debate in this case has largely focused on the question of standing, but it seems to me that this is simply an alternative angle of approach to the same question. If, in a hypothetical case, the Director were to prosecute a man who had engaged in sexual activity with a nineteen-year old male in 1992, it seems likely that the Court would find that the accused had standing to assert a breach of his rights. But that could only be based on a finding by the Court, whether implicit or express, that it is at least arguable that a person could give legally valid consent at the age of nineteen.
98. In my view, the Court is debarred by the separation of powers from taking this path. The most relevant authority is, I think, the decision of this Court in C.C v Ireland [2006] 4 I.R. 1.
99. The appellant C.C. had been charged with four counts of unlawful carnal knowledge of a female under the age of fifteen, contrary to s.1(1) of the Criminal Law Amendment Act 1935. In a separate case dealt with in the same judgments, P.G. had been charged with two counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended. The complainant in the P.G. case had been aged thirteen at the time of the alleged offences, and by virtue of s.14 of the Act of 1935 consent on her part would not have been a defence. Each of the applicants claimed to have made a bona fide mistake as to the age of the girl, and the first issue to be determined by the Court was whether or not this could be raised as a defence in a trial.
100. Giving one of the two majority judgments on that issue, Geoghegan J. noted that there was no real significance per se in the fact that the Act of 1935 did not expressly refer to mens rea. That was in accord with the normal legislative practice and would not of itself have prevented the Court from interpreting s.1(1) as permitting some form of the suggested defence. However, it was necessary to have regard to the legislative antecedents of the section, which (along with ss.2 and 4) was intended as a replacement for the offences previously found in ss.4 and 5 of the Criminal Law (Amendment) Act 1885.
101. Section 4 of the Act of 1885 had created the offence of unlawfully and carnally knowing a girl under the age of thirteen. Section 5 created a similar offence in respect of (i) girls aged between thirteen and sixteen and (ii) females who were (in the statutory language) “idiots” or “imbeciles” where the accused knew of the mental impairment at the time. A proviso stated that it would be a sufficient defence in respect of (i) if the accused had reasonable cause to believe that the girl was sixteen or over. The Act of 1935 effectively re-enacted the provision in respect of women of unsound mind including the mens rea element, but in raising the relevant ages for other unlawful carnal knowledge cases repealed did not replace the provision for a mistaken belief in age. Geoghegan J. considered that it was therefore clear that the legislature in 1935 had made a deliberate decision against providing for a mistake as to age in defining the offence under s.1(1). To interpret the provision otherwise would be an “unjustifiable distortion of what was clearly the intention of the Oireachtas of Saorstát Éireann”.
102. Fennelly J. took the same view.
103. However, the result was different in the case of the appellant P.G. The issue there was not determined by the effect of s.14 of the Act of 1935 – the fact that this provision meant that consent was not a defence did not dispose of the normal presumption that mens rea was required for an offence under the Act of 1990. P.G. therefore succeeded on this issue but C.C. did not.
104. The Court then heard submissions on the question whether, having regard to the foregoing, s.1(1) was consistent with the provisions of the Constitution. Counsel for the State argued, inter alia, that if the applicant was otherwise successful the Court should not either restrain the prosecution or grant a declaration that s.1(1) had ceased to have any force or effect following the adoption of the Constitution in 1937. It should, instead, declare that the provision had ceased to have force and effect to the extent that it precluded an accused from advancing a defence of reasonable mistake as to the age of the victim.
105. Giving the sole judgment, Hardiman J. found the section to be inconsistent with the Constitution because it wholly removed the mental element and expressly criminalised the mentally innocent and rendered them liable to severe penalties. The fact that it had the legitimate aim of protecting young girls did not outweigh the central importance of a requirement for mental guilt before conviction of a serious criminal offence.
106. Addressing the question of the appropriate order, Hardiman J. rejected the proposed limitation on the basis that it appeared to involve the Court in a process akin to legislation. It was true that a “reasonable belief” defence could save the section, but so too would a number of other options including possibly the creation of a defence based on presumptions, or imposing an onus on the prosecution to prove knowledge. It would not, therefore, be appropriate for the Court to choose between these options.
107. It seems to me that similar considerations arise in this case. To “read in” a defence of consent, as suggested by the Attorney General, would clearly, in reality, involve completely rewriting the legislation of 1885 in a manner completely at variance with what Parliament intended – the criminalisation of sexual activity between all men. The concomitant necessity to fix on an age of consent would involve the Court making a choice between different options that are within the policy-making function of the legislature. Finally, it would be necessary to “read in” a defence of mistaken/reasonable belief as to age.
108. Since the section has long since been repealed, an alternative approach would be to consider the Act of 1993, or perhaps the Interpretation Act. Such an approach would have the merit of doing less violence to the clear intention of the legislature. It seems at least plausible that the Oireachtas in 1993 simply did not advert to the issue of the future prosecution of past offences, or whether there should be any restrictions on such prosecutions by reference to age and consent. However, I cannot see that it is within the powers of this Court to fix the age, even on a temporary basis pending legislation, as mooted by O’Donnell J. By reference to what evidence, debate, or philosophy would it do so?
Conclusion
109. For the reasons set out above I have come to the conclusion that the appellant has standing to argue that s.11 of the Act of 1885 is repugnant to the Constitution because he is charged with an offence under it. He has 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. It is 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, firstly, involve retrospectively casting doubt upon or invalidating the legal rules of the time regarding matters such as the age of marriage and, secondly, risk criminalising persons who engaged in conduct that was lawful at the time.
110. Finally, I have concluded that it is not possible to interpret the section to bring it into compliance with the Constitution, by reading in an age of consent. To adopt this course would be to do violence to the intention of the legislature – it did not legislate for an age of consent because it intended all such activity to be unlawful, and saw consent as a mark of criminality. Such an approach by the Court would amount to an unconstitutional usurpation of the role of the legislature.
111. It may be important to state with clarity the effects that this decision would have. It would mean that prosecutions could not in future be brought in respect of consensual incidents, involving males over the age of fifteen, that took place before 1993. It does not relate to events since that date, because different legislation was in force. It does not relate to non-consensual activity, since that would be an assault. It does not relate to boys under the age of fifteen, since they could not give a legally effective consent. It does not relate to sexual activity between a male over the age of fifteen and a woman, since that was not illegal. It does not relate to females of any age, since the offence in question could only be committed by and with men.
112. In the circumstances I would allow the appeal and grant the declaration sought.