Supreme Court dismisses prosecution for historical consensual male acts due to changed age of consent norms.

THE SUPREME COURT

Appeal No: 2017/57

Clarke C.J.

O’Donnell J.

MacMenamin J.

Dunne J.

O’Malley J.

Between/

P.P.

Plaintiff/Appellant

and

The Judges of Dublin Circuit Court, The Director of Public Prosecutions, Ireland and the Attorney General

Defendants/Respondents

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 30th April, 2019

1. Introduction

1.1 Significant changes in the law can give rise to complications in relation to current litigation about events which occurred before

the change in question. Two areas in which there have been very significant changes in the law in Ireland in recent decades come

into focus in relation to the issues which arise on this appeal.

1.2 First, there is the law concerning sexual relations between males. We have moved from a situation where consensual sexual acts

between male adults were considered to be a serious criminal offence (under s. 11 of the Criminal Law Amendment Act 1885 (“the

1885 Act”) and under common law) to one where the People have adopted an amendment to the Constitution to enable laws to be

passed providing for same sex marriage.

1.3 The second area of change which is potentially relevant to this appeal is the age of sexual consent. The relevant history of the

changes in the law in that regard are set out in other judgments in this case and it is unnecessary to repeat the detail here. Suffice it

to say that, as a general proposition, it can be said that the age of sexual consent has increased.

1.4 The plaintiff/appellant (“Mr. P”) stands charged with historical offences involving sexual relations with another male who was aged

between sixteen and seventeen and a half years of age at the time of the alleged offences. However, the offences are alleged to

have occurred between late 1978 and mid-1980 and thus, at a time prior to the decriminalisation of consensual sexual activity

between males by virtue of the Criminal Law (Sexual Offences) Act 1993 (“the 1993 Act”). The position of the second named

defendant/respondent (“the D.P.P.”) can be simply put. If the facts can be established, it is said that what is alleged to have

occurred amounted to offences at the time when the acts in question happened. Having regard to the provisions of the Interpretation

Act (s. 21 of the 1937 version and s. 27 of that of 2005), the repeal of the measures which created the offences in question does

not preclude a prosecution for an offence after that repeal, provided that the acts are alleged to have occurred prior to repeal. On

that basis, it is contended that the prosecution can go ahead.

1.5 Mr. P has sought to challenge the constitutionality of the law under which he is to be prosecuted. The facts and detailed issues

are more fully set out in other judgments in this case and in particular those of O’Donnell and O’Malley JJ. As those judges have come

to different conclusions, I have felt it appropriate to set out my own views on the issues on which the Court has divided. However,

before so doing, it is appropriate to record some matters that do not appear to be in dispute and which form the context by reference

to which this Court has to decide the issues which arise on this appeal.

2. Common Ground

2.1 I agree with the views expressed in all of the other judgments that the starting point has to be an acknowledgement that, as a

matter of statute law, it remains possible to prosecute a person for consensual sexual activity between males which occurred prior to

the decriminalisation of such acts. It follows, in my view, that there are two possible bases on which it might have been argued that,

nonetheless, a prosecution could not be pursued at this stage. One such basis might have been that this Court could have been

persuaded that the decision in Norris v. The Attorney General [1984] I.R. 36 was incorrect and that the underlying legislation is

inconsistent with the Constitution on that basis. That issue would itself have involved a difficult question of timing.

2.2 However, it was not argued on behalf of Mr. P that Norris was incorrectly decided. It was, however, suggested that the 1885

Act, insofar as it continues to have legal effect in respect of offences alleged to have been committed prior to its repeal, is now

inconsistent with the Constitution and cannot, therefore, provide the basis for a constitutionally permissible prosecution today.

2.3 It is well settled that the Constitution falls to be interpreted in the light of prevailing standards and, of course, in the light of the

text of the Constitution as it now is. However, the legislation under challenge has been repealed and is only relevant because the

D.P.P. has sought to utilise that legislation to mount a prosecution today. On one view, it might have been said that, even having

regard to the text of the Constitution at the time and prevailing standards at the time, Norris was wrongly decided. As previously

noted, that argument was not advanced. On another view, it might be possible to re-visit the substance of the decision in Norris on

the basis of contemporary standards and the current text of the Constitution.

2.4 However, there is an alternative way in which it might be said that it is inconsistent with the Constitution to prosecute Mr. P

today. To make matters simpler (and remove the age issue which is clearly of significance in this case), it is useful to consider what

would happen if the D.P.P. sought today to prosecute a male for consensual sexual activity prior to the decriminalisation of such

activity, in circumstances where there was no question but that both parties were adults at the time of the alleged offence. There

can be no doubt but that such an action on the part of the D.P.P. would infringe the Constitution, notwithstanding the fact that,

technically, the law under which such a prosecution might be brought remains valid in respect of acts alleged to have occurred prior

to its repeal. In such circumstances, it might be said that even if the legislation remains constitutional, it would be a breach of the

Constitution to prosecute under it.

2.5 Turning to the question of age, it is clear, not least from the careful analysis to be found in the judgment of O’Malley J. on this

appeal, that the age of sexual consent at the time of the events alleged to have occurred in the context of this case was such that,

generally speaking, a sixteen year old was considered free to consent to sexual activity.

2.6 The problem which therefore emerges is that, in the context of the facts which are alleged in the prosecution in this case, the

law has moved in opposite directions in respect of two important elements of relevant criminality. Consensual sexual activity between

adult males not only is no longer a criminal offence but is implicitly recognised by conferring the constitutional status of marriage on

same sex male partners. However, the law in respect of the age of sexual consent has generally moved in the direction of increasing

the age at which such consent can be given.

2.7 The problem which the facts of this case throws up is that, at the time of the alleged offence, the age of the complainant was

not considered to be legally relevant because all sexual activity between males was criminalised. However, it is also the case that, at

the time in question, the complainant was of an age which was broadly considered to be one where he would have had the capacity

to consent to sexual activity. In this context, it is appropriate to note the fact that the D.P.P. has undertaken not to prosecute Mr. P

in respect of any event alleged to have occurred after the complainant reached the age of seventeen. In so doing, the D.P.P. is, in

effect, recognising that there might be a constitutional difficulty with prosecuting a person under the 1885 Act in respect of sexual

activity between males, where the ages of the males concerned is such that the activity in question would not be considered

unlawful today.

2.8 The question which arises is as to the standards to be applied in assessing whether it is now constitutionally permissible to

prosecute Mr. P. There is no doubt that, by today’s constitutional standards, it would be impermissible to prosecute a man for

consensual sexual relations with another man who was an adult, even if the sexual acts concerned were alleged to have occurred at

a time prior to the repeal of the relevant legislation. It seems to me to be equally clear that a person would find it difficult to argue,

today, for an entitlement to have sexual relations with a sixteen year old. The Oireachtas must enjoy a significant margin of

appreciation in determining the age of sexual consent and, in current conditions, a sixteen year old would not be considered to have

the necessary capacity to consent. Thus, if all matters are to be considered by contemporary standards, it would remain possible to

prosecute Mr. P because the constitutional barrier to his prosecution would not arise in respect of an allegation relating to a person

who did not have the capacity to consent where age is considered by the standards of today.

2.9 On the other hand, I agree with the analysis of O’Malley J. that, if one is to consider the age of consent by the standards

prevailing at the time of the alleged offence, then the complainant would have been considered to have had the capacity to consent

to any otherwise lawful sexual activity. The real question comes down to whether it is permissible for Mr. P to seek to rely on today’s

standards concerning sexual activity between consenting male adults but also to rely on the previous regime in respect of the age of

sexual consent which was applicable at the time of the events alleged to constitute the offence in this case.

2.10 Before going on to consider that difficult question and the issues of standing which it raises, I should also record that I agree

with the analysis which is to be found in the judgments of both O’Donnell and O’Malley JJ. concerning the question of whether consent

is an element of the relevant offence. I have nothing to add on that issue.

2.11 I therefore turn to what seems to me to be the key question on which the Court is divided.

3. Discussion

3.1 In one sense it may be that the question of standing, on which the Court of Appeal based much of its reasoning, is not as central

to the issues which have to be determined as that Court might have considered. It must, of course, be recalled that a principal

reason behind the law on standing, insofar as it arises in constitutional cases, is to prevent a party being able to benefit from an

argument concerning the constitutionality of legislation which relies on grounds which do not affect the plaintiff in question. One of

the consequences of a declaration of inconsistency of legislation with the Constitution is, of course, that the legislation will not apply

in any circumstances. There may be cases where the Court can make a nuanced order of inconsistency with the Constitution which

leaves the legislative measure in question extant in respect of its application to circumstances where no constitutional difficulty

arises. But this will not always be possible. In some cases it may be impossible to avoid throwing out the baby with the bath water,

such that persons who might not themselves be in a position to argue that their constitutional rights were infringed may be incidental

beneficiaries of the striking down of a piece of legislation which impermissibly interfered with the constitutional rights of others.

Indeed, this case provides a ready example. Had this Court decided by three to two in favour of Mr. Norris (as opposed to three to

two against him), then the 1885 Act would have been found unconstitutional and no one could be prosecuted under it today,

irrespective of whether they might, like Mr. Norris, have had standing to mount the challenge at the time.

3.2 The rules on standing are designed to prevent persons whose constitutional rights could not, on any view, have been infringed

from challenging legislation on the basis that someone else’s constitutional rights may be infringed by the legislation in question, so

that the plaintiff might benefit by the invalidity of the legislation concerned.

3.3 It follows that Mr. P should be confined, as O’Donnell J. suggests he must, to an argument that it is inconsistent with the

Constitution to permit him to be prosecuted for sexual activity with a sixteen year old male which is alleged to have occurred in the

late 1970s and early 1980s. The fact that it is clear that a person in a similar situation to that of Mr. P, but who was alleged to have

engaged in consensual sexual activity with a 25 year old male at the time in question, could clearly establish an entitlement not to be

prosecuted does not avail Mr. P.

3.4 However, it is equally true that the fact that a person alleged to have had sexual relations with a ten year old boy (which were

such as would have breached the 1885 Act) could not bring a constitutional action based on contemporary standards and the current

text of the Constitution, does not mean that Mr. P is precluded from making a case about a sixteen year old.

3.5 While I appreciate that the precise relief sought by Mr. P involves urging on the Court that the 1885 Act be declared

unconstitutional, it would, in my view, be an excessively narrow approach to pleading not also to consider whether the same end

might be achieved by simply determining that the Constitution precluded his prosecution under that Act. But even viewed in that way,

the age question comes into close focus.

3.6 Essentially, O’Donnell J. concludes that Mr. P has standing to challenge the constitutionality of the legislation (and, in my view,

also to seek to have the Court determine that he cannot be prosecuted under the legislation) but based only on the question of

whether such unconstitutionality can be said to have been established in respect of an alleged offence with a sixteen year old some

forty years ago. I agree with that analysis.

3.7 However, the question really comes down to the proper approach to that question in light of the fact that, by current standards,

a sixteen year old is below the age of sexual consent, but that, insofar as it is possible to determine the age of sexual consent at the

time of the alleged acts, a sixteen year old would then have been considered to have capacity to consent.

3.8 A further complication obviously arises from the fact that there was, in reality, no such thing as the age of sexual consent

between males at the time when the alleged offences are said to have occurred. That was because all relevant sexual activity

between males was criminalised irrespective of age. However, as noted by O’Malley J. in her judgment, a male of fifteen years of age

and upwards was considered to be capable of giving consent to any otherwise lawful sexual activity, such as having intercourse with

a woman who was herself of sufficient age. The argument which has found favour with O’Malley J. is that it is inconsistent with the

Constitution to permit a prosecution today for acts which would have been unlawful at the time by virtue of the 1885 Act, but where

the age of the person concerned was such that it might be inferred that they were considered by the standards of the time (as found

in legislation concerning the age of sexual consent of males relevant to heterosexual activity) to be capable of giving consent to

sexual activity.

3.9 The building blocks of that analysis seem to me to be correct. There is no doubt but that the law, in the late 1970s and early

1980s, would have considered the complainant in this case to be capable of giving consent to otherwise lawful sexual activity with a

woman. To the extent that it is possible to infer from that fact that there was a general view about the age of sexual consent for

males at that time, then it would seem that a sixteen year old was considered capable of giving such consent. If the matter is to be

judged by the standards of the time in question, then there is at least an argument that the complainant must be considered an adult

for sexual purposes.

3.10 However, the real difficulty seems to me to come down to this question. Assuming the argument which I have just outlined to be

correct, is it nonetheless permissible for Mr. P to invoke today’s Constitution and today’s standards to prevent his prosecution while

at the same time placing reliance on yesterday’s standards as to the age of sexual consent.

3.11 The argument in favour of him being permitted to do so is that to do otherwise would be to retrospectively impose today’s

standards concerning the age of sexual consent on events which happened before those standards evolved. The argument against

that proposition is that Mr. P cannot be seen to have the benefit of today’s standards for one purpose but not have to accept also

the change in standards for another purpose. It does seem to me that those two arguments are relatively evenly matched. However,

before indicating my view on which should prevail, I might make one further observation.

4. An Observation

4.1 I recognise that, as this matter was not the subject of significant debate on this appeal, any comments which I make on this

topic are necessarily tentative and undoubtedly obiter. However, it does seem to me that this Court will, at some stage, have to face

what I think can, at a minimum, be described as a tension between two well-established constitutional norms.

4.2 The first is the suggestion that, on being found inconsistent with the Constitution, any legislation which post-dates 1937 must be

treated as never having been the law and any legislation which pre-dates 1937 must be treated as not having been carried forward

by the transitional provisions of the Constitution itself. It is true, of course, that it does not necessarily follow that everything done

under the legislation in question in the intervening period between its enactment (or 1937 in the case of pre-Constitution statutes)

and the declaration of inconsistency must be undone. However, it nonetheless is the case that the law, whatever about actions

taken under the law, is, in accordance with current jurisprudence, treated as never having been valid.

4.3 The other constitutional norm is the well-established jurisprudence to the effect that the Constitution must be considered in the

light of contemporary norms. To that might be added the fact that the text of the Constitution itself may change so that, even

independent of the Court reviewing its jurisprudence in the light of contemporary norms, the Court may be required to take a different

view on the constitutionality of a measure because of changes in the text of the Constitution itself.

4.4 There is a potential difficulty in attempting to reconcile both of those norms. The fact that the proper interpretation of the

Constitution may change because of altering societal views, or because of a change in the text of the Constitution itself, seems to

imply that it may be entirely appropriate to regard legislation as being constitutional at one point in time, but as having become

unconstitutional either because contemporary norms have altered or because the Constitution itself has changed. There is, in

addition, the type of situation with which this Court was faced in Brennan v. Attorney General [1984] I.L.R.M. 355, where a regime

for the imposition of rates on agricultural land, which was doubtless entirely reasonable at the time when it was put in place, had, by

virtue of changes in the agricultural markets, become so out of kilter with reality that it was found to be inconsistent with the

Constitution. It is, of course, the case that the Court was, in Brennan, considering legislation which pre-dated Independence, but it is

possible to envisage a similar situation occurring today in respect of legislation which was enacted after 1937. If facts similar to

Brennan were to arise in respect of a post-1937 statute, such that the measure in question was considered to be a reasonable and

proportionate exercise of the State’s power at the time of enactment, but had become unreasonable because of developments in the

intervening period, why then should it be said that the legislation was never valid?

4.5 To these may be added the additional complication which arises by virtue of the provision to be found in Article 34.3.3, which

precludes any court from having jurisdiction to “question the validity of a law” where the law in question has, in substance, been

found constitutional as a result of a reference by the President to this Court under Article 26. There is thus a permanent immunity

thereby conferred on such legislation by constitutional approval by this Court as a result of an Article 26 reference. A potential

tension exists between that express constitutional requirement and the general view that measures need to be considered by

reference to contemporary standards.

4.6 I mention these matters because they at least lie in the background to some of the debate which needs to be addressed to

resolve this appeal. As the circumstances surrounding this case demonstrate, standards change. How a present day approach to

standards (including a changed text of the Constitution itself) is reconcilable with the view that legislation must be taken never to

have been valid must be open to some considerable doubt. However, that being said, it remains necessary to address what seems to

me to be the temporal issue as to whether it is permissible for Mr. P to, at the same time, rely on the present text of the Constitution

and current norms to put forward a case that it is unconstitutional to prosecute him for consensual male adult sexual activity, while

at the same time relying on the norms of the time when the alleged activity took place to decide what an “adult” is. I turn now to

that question.

5. The Temporal Issue

5.1 One possible starting point for considering this issue is to consider what might have been the situation had Mr. P been prosecuted

in or around the time when the alleged events took place. As it happens, by coincidence, it was at much the same time that the

Norris proceedings were commenced before the High Court (with the plenary summons in that case being issued in 1977 and the

allegations relevant to this case – insofar as they relate to the complainant while a sixteen year old – occurring a couple years later).

Had Mr. P been charged at that time, he clearly would have had standing to challenge the constitutionality of the legislation but

would have had to have done so by reference to a contention that consensual sexual activity with a sixteen year old was

constitutionally protected, so that the 1885 Act was therefore unconstitutional. His case would, doubtless, have been based on a

contention, similar to that advanced by Mr. Norris, that consensual sexual activity between adult males was constitutionally

protected at least to the extent that blanket criminalisation was impermissible. He would doubtless also have argued that, for those

purposes, a person should be regarded as an “adult” where other laws concerning the age of sexual consent by males were such that

a sixteen year old male was considered to have the capacity to give consent to otherwise lawful sexual activity.

5.2 On the first issue, he would undoubtedly have had to have overcome the same kind of arguments which found favour with a

majority of this Court in Norris. But, in my view, he would have had a strong case to make that the complainant was an “adult” for

such purposes, having regard to the way in which the law at the time in question treated the age of males’ sexual consent. I do not

rule out the possibility that there might have been an argument which suggested that the age at which a male might be considered to

have the capacity to give consent to sexual relations with an older woman might legitimately be different from the age at which like

capacity might be considered to arise in respect of sexual activity with another male. However, in my view, having regard to the

statute law as analysed in the judgment of O’Malley J., Mr. P would have had a strong case for being able to argue, at that time, that

the complainant should be regarded as an “adult” for the purposes of sexual consent, so that, had he been able to persuade the

Court to take a different view to that which was adopted in Norris, he would have succeeded in securing a declaration that the 1885

Act was inconsistent with the Constitution.

5.3 Should he lose the benefit of being able to make that argument concerning the age of consent simply because the case is now

being maintained at a time when the general legislative regime has increased the age at which persons are considered to be capable

of giving consent to otherwise lawful sexual activity? It might be said that the loss of the benefit of that argument is the price which

must be paid for inviting this Court to deploy the current text of the Constitution in his favour. However, I have come to the view, on

balance, that an argument along those lines should not prevail. It would, I would accept, be much easier to reach a conclusion on

that point if it were to be successfully argued that Norris was wrongly decided. As the point was not argued, it would be wrong to

express any significant view on that issue other than to indicate that I consider that there is an argument to the effect that the

minority judgments are more persuasive than those of the majority. By not arguing that Norris was wrongly decided, Mr. P has been

forced to the position where he must rely on the current text of the Constitution and contemporary norms for the proposition that it

is no longer possible to prosecute in respect of consensual male sexual activity where the activity concerned occurred prior to the

decriminalisation brought about by the 1993 Act. That course of action undoubtedly weakens his case. But I have ultimately come to

the view that, while weakened, the case remains a good one.

6. Conclusions

6.1 Had Mr. P been prosecuted at or around the time of the alleged offence he would have been able to mount a claim with some

significant credibility based on the suggestion that the complainant was an “adult” for sexual consent purposes. On that basis, it

would seem to me to be unfair to now impose, simply because the prosecution has been delayed by forty years, contemporary age of

consent norms on events which occurred so long ago.

6.2 For those reasons I have come to the view that O’Malley J. is correct in her analysis and that the prosecution of Mr. P should be

prohibited. I would do so not on the basis of declaring the 1885 Act inconsistent with the Constitution, but rather on the basis of

determining that it is impermissible under the Constitution for the D.P.P. to prosecute Mr. P in respect of the alleged offences, having

regard to the fact that the complainant was, at the time of the alleged offences, of an age which was generally considered to be one

at which a male could consent to sexual activity and that his prosecution today for such an offence would be inconsistent with the

Constitution as it now stands.