Supreme Court allows appeal, ruling buggery was a common law offence abolished in 1993 and cannot be prosecuted retrospectively.

[2012] IESC 7

THE SUPREME COURT

[Appeal No: 14/2010]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

Between/

The Director of Public Prosecutions

Applicant/Respondent

and

Judge Mary Devins

Respondent

and

M.O'M.

Notice Party/Appellant

Judgment delivered on the 8th day of February 2012 by Denham C.J.

1. The primary issues on this appeal are: (a) whether the offence of buggery was a statutory offence under s. 61 of the Offences

against the Person Act, 1861, referred to as “the Act of 1861”, or whether it was a common law offence; and (b) whether M.O’M.,

the notice party/appellant, referred to as “the appellant”, may be prosecuted for the offence of buggery in respect of acts

constituting that offence, which were allegedly committed prior to the repeal of s. 61 of the Act of 1861.

2. The appellant was a priest who held a teaching post in a secondary school in the west of Ireland. He faces charges relating to a 13

year old boy and a 14 year old boy at the school. On the 20th June, 2007, the appellant was charged with the following offences:-

(i) buggery contrary to s. 61 of the Act of 1861 on a date unknown between 1st September, 1970 and 31st December,

1970;

(ii) indecent assault contrary to s. 62 of the Act of 1861 on a date unknown between the 1st September 1970, and 30th

June, 1971; and

(iii) indecent assault contrary to s. 62 of the Act of 1861 on a date unknown between the 1st September, 1970, and the

31st December, 1970.

3. On the 20th June, 2007, the matter came before Judge Devins, the respondent, referred to as “the respondent”, evidence of

arrest, charge and caution of the appellant was given, and the matter was adjourned for service of the book of evidence.

4. On the 18th July, 2007, the respondent indicated her doubts as to whether the charges were good in law, and she made no order

in relation to the charges. It appears that the respondent was of the view that since the repeal of s. 61 and s. 62 of the Act of 1861

those charges were not grounded in law. The respondent made no order in relation to all three charges.

5. On direction of the Director of Public Prosecutions, referred to as “the D.P.P.”, the appellant was arrested and charged on the 19th

September, 2007, with the following offences:-

(i) buggery contrary to s. 61 of the Act of 1861, as amended by the Statute Revision Act, 1892, on a date unknown

between 1st September, 1970 and 31st December, 1970;

(ii) indecent assault contrary to common law on a date unknown between the 1st September, 1970 and the 31st

September, 1970; and

(iii) indecent assault contrary to common law on a date unknown between the 1st September, 1970 and the 30th June,

1971.

6. On the 19th September, 2007, the matter came before the respondent and evidence of arrest, charge and caution was given.

However, the respondent considered that she was not satisfied that the charges were grounded on good law and she would not

accept the evidence of the arrest, charge and caution. The respondent made no order.

Judicial Review Proceedings

7. On the 19th November, 2007, the D.P.P. obtained leave to bring these judicial review proceedings.

8. The orders sought by the D.P.P. included:-

(i) An order of Certiorari quashing the decision made by the respondent on the 19th September, 2007, to make no order in

respect of the three charge sheets against the appellant.

(ii) An order of mandamus requiring the respondent to accept the evidence of arrest, charge and caution that was given

on the 19th September, 2007, and to proceed to deal with the three charges in the ordinary way.

(iii) A declaration that the offence of buggery contrary to s. 61 of the Act of 1861 is a valid offence recognised by law if

it relates to dates of alleged offences that are prior to the repeal of the said s. 61.

(iv) If necessary, a declaration that the offence of indecent assault contrary to common law is a valid offence recognised

by law.

(v) If necessary, an order of Certiorari quashing the decision made by the respondent on the 18th July, 2007, to make no

order in the prosecution of the appellant.

High Court

9. On the 2nd December, 2009, the High Court (O'Keeffe J.) delivered a reserved judgment. The learned High Court judge stated that

it was his opinion that the offence of buggery was a statutory offence, and that it was permissible to prosecute in respect of an

alleged breach in the circumstances.

10. On the 17th December, 2009 the High Court ordered that:-

"In respect of the Order made by the Respondent on the 19th day of September 2007 at Castlebar in the County of Mayo

in proceedings entitled The Director of Public Prosecutions at the suit of Garda Edward P. McLoughlin v. [M.O'M.] the

Court doth grant

(i) an Order of Certiorari quashing the decision made by the respondent on 19th September 2007 to make no Order in

respect of the three charge sheets against the notice party

(ii) a declaration that the respondent should accept the evidence of arrest charge and caution that was given on the

19th day of September 2007 and to proceed to deal with the three charges in the ordinary way

(iii) a declaration that the offence of buggery contrary to Section 61 of the Offences Against the Person Act 1861 is a

valid offence recognised by law if it relates to dates of alleged offences that are prior to the repeal of the said s.61.”

The High Court made no order as to costs.

Notice of Appeal

11. The appellant has filed a notice of appeal, including the following grounds of appeal:-

(a) The learned trial judge erred in law and/or in fact in determining that the offence of buggery prior to its repeal by s.14

of the Criminal Law (Sexual Offences) Act, 1993, was a statutory offence.

(b) The learned trial Judge erred in law and in fact in making the determination on the basis that he had been referred to

"no superior authority than that of McWilliam J. in the Norris [Norris v. The A.G. [1984] I.R. 36] case where he states his

conclusion is that offence of buggery is a statutory one".

(c) That the learned trial Judge erred in law and in fact in finding that s.61 of the Act of 1861, created the statutory

offence of buggery.

Cross Appeal

12. The D.P.P. has served a cross appeal on the issue of costs. It was submitted that the learned High Court judge erred in law or in

fact by making no order for costs in favour of the D.P.P., who was the successful moving party in the application for judicial review,

and by departing from the principle that costs should follow the event, in circumstances where there were no exceptional

circumstances justifying a departure from the principle.

First Issue

13. The first issue to consider is whether buggery was a statutory offence or an offence at common law.

Legal Authorities

14. Legal authorities have written on the nature of the offence of buggery. In Pádraigh A. Ó Síocháin’s, The Criminal Law of Ireland

(7th Ed., Fóilsiúcháin Dlí, 1981) the author states, of buggery, at page 143:-

“It is punishable under section 61 Offences against the Person Act 1861 …it is a felony at common law.”

In Peter Charleton’s Offences against the Person, (Round Hall Press, 1992), Peter Charleton (as he then was) stated at p. 296,

paragraph 8.50:-

“Buggery is a felony at common law the penalty for which was fixed by section 61 of the Offences against the Person Act

1861.”

In Sean E. Quinn’s Criminal Law in Ireland, (3rd Ed., Irish Law Publishing, 1998) at p. 128, it is stated that:-

“Buggery is a common law offence; Section 61 of the Offences against the Person Act, 1861 merely provides the penalty,

it does not create the offence.”

15. One can also find legal authorities which refer to buggery as a statutory offence.

16. Thus it is necessary to construe the relevant statutes.

Legislation – Nature of Offence

17. The relevant statute is the Act of 1861. Section 61 stated:-

"Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal,

shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than ten

years."

The Statute Law Revision Act 1892, referred to as “the Act of 1892”, amended s. 61 of the Act of 1861 by deleting the words “at the

discretion of the Court” and “or for any term not less than ten years.” Thus, there is no description of the offence of buggery and no

ingredients set out. The section merely provided for sentencing options and upon amendment, it provided for one sentence, which

was penal servitude for life.

18. Section 62 of the Act of 1861 provided for an attempt to commit "an infamous crime".

It stated:-

"Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the

same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof

shall be liable at the discretion of the Court, to be kept in penal servitude for any term not exceeding ten years and not

less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour."

The Act of 1892 amended s. 62 of the Act of 1861 by removing the words “at the discretion of the Court” and the words “and not

less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour.” Thus a person

convicted of the stated misdemeanours would be liable to be kept in penal servitude for any term not exceeding ten years.

19. Section 61 of the Act of 1861 was repealed by s.14 of the Criminal Law (Sexual Offences) Act 1993, referred to as “the Act of

1993”, where it was stated:-

"The enactments specified in column (2) of the Schedule to this Act are hereby repealed to the extent specified in column

(3) of that Schedule."

The schedule referred to:-

“Sections 61 and 62 (save in so far as they apply to buggery or attempted buggery with animals).”

20. Thus, s. 61, which is in issue in this appeal, and which determined the sentence for the offence of buggery, was repealed in

1993.

21. The offence of buggery itself was abolished also. Section 2 of the Act of 1993 stated:-

"Subject to sections 3 and 5 of this Act, any rule of law by virtue of which buggery between persons is an offence is

hereby abolished."

22. Section 3 of the Act of 1993 provided that a person who committed or attempted to commit an act of buggery with a person

under the age of 17 years, other than a spouse, shall be guilty of an offence and shall be liable on conviction on indictment to terms

of imprisonment outlined, which varied depending on differing circumstances, e.g. the age of the person under the age of 17 years.

Section 4 provided that 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.

23. A consequence of this Act of 1993 was that the act of buggery committed consensually between adults was no longer

criminalised, while the law protected minors by creating the above recited offences, which would apply prospectively.

24. I am satisfied that the offence of buggery was a common law offence. And, as with so many common law offences, such as

murder, there was a statutory provision providing for sentence. Thus, s. 61 of the Act of 1861 provided the penalty for the offence of

buggery. The repeal of s. 61 by s. 14 of the Act of 1993 meant that the provision for sentencing was repealed. The offence of

buggery was not altered by s. 14 of the Act of 1993.

25. However, s. 2 of the Act of 1993 abolished the offence of buggery. In other words, the common law offence of buggery was

abolished by s. 2 of the Act of 1993.

26. If s. 61 were, contrary to my view, the section maintaining the offence of buggery, it would have been repealed by s. 14 and

there would have been no need for any other provision. However, it was not. The sentence alone was repealed by s. 14. Section 2 of

the Act of 1993 abolished the offence of buggery.

27. The fact that the provision for sentence in s. 61 of the Act of 1861 was abolished by one statutory provision of the Act of 1993,

and that the offence of buggery itself was abolished by another statutory provision, supports the view I take that s. 61 of the Act of

1861 provided only for sentence.

Second Issue: Legislation – elapse of time

28. The next issue for determination is whether in the circumstances the appellant can be charged with an offence which occurred

before the statute providing for the sentence and the offence itself were abolished in 1993.

29. The issue is complicated by the fact that there were no transitional arrangements made in the Act of 1993.

30. Section 21 of the Interpretation Act, 1937 made provision for transitional arrangements. It provided:-

“(1) Where an Act of the Oireachtas repeals the whole or a portion of previous statute, then, unless the contrary

intention appears, such repeal shall not—

(a) revive anything not in force or not existing immediately before such repeal takes effect, or

(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered

thereunder, or

(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a

statute so repealed, or

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence against or contravention of the

statute or portion of a statute so repealed which was committed before such repeal, or

(e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such

right, privilege, obligation, liability, offence, or contravention as aforesaid.

(2) Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary

intention appears, any legal proceedings, civil or criminal, in respect of any right, privilege, obligation, or liability acquired,

accrued, or incurred under or any offence against or contravention of the statute or portion of a statute so repealed may

be instituted, continued or enforced, and any penalty, forfeiture, or punishment in respect of any such offence or

contravention may be imposed and carried out as if such statute or portion of a statute had not been repealed.”

(3) Where an Act of the Oireachtas or a portion of any such Act ceases by any means or for any reason (other than

repeal by a subsequent Act of the Oireachtas) to be in force, the preceding sub-sections of this section shall apply and

have effect in relation to such Act or portion of an Act as if such cesser were caused by a repeal effected by an Act of

the Oireachtas, and accordingly, for the purposes of such application, every reference in either of the said preceding sub-

sections to a repeal shall be construed as a reference to a cesser by any means or for any reason (other than such

repeal) to be in force.”

31. Thus the Interpretation Act, 1937, contained a saving provision in relation to the situation where a statutory offence had been

abolished. It enabled the institution of proceedings after the repeal of the statute. However, there was no such saving provision in

relation to a common law offence. As buggery was a common law offence the saving provisions in the Interpretation Act, 1937 do not

apply to that offence.

32. Section 27 of the Interpretation Act, 2005, is expressed in very similar terms. It provides:-

“(1) Where an enactment is repealed, the repeal does not—

(a) revive anything not in force or not existing immediately before the repeal,

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment,

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the

enactment which was committed before the repeal, or

(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such

right, privilege, obligation, liability, offence or contravention.

(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or

liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted,

continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be

imposed and carried out, as if the enactment had not been repealed.”

33. Thus a prosecution was enabled and envisaged as capable of being instituted in relation to a statutory offence alleged to have

been committed prior to the date of the abolition of the offence. However, it is noteworthy that s. 27(1)(a) of the Interpretation Act,

1937 and s. 27(1)(a) of the Interpretation Act, 2005, both specifically provide that where an enactment is repealed the repeal does

not revive anything not in force or not existing immediately before the repeal. Thus it is envisaged that there is a continuous stream

of law addressing the issue, and that there was no gap or lacuna envisaged between a repeal of a statute and later legislation.

34. The matter of the abolition of offences at common law, and the effect on prosecutions, was addressed in the Interpretation

(Amendment) Act, 1997.

Section 1 provided:-

“(1) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common

law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not—

(a) affect the previous operation of the law in relation to the offence so abolished, abrogated or repealed or any other

offence or anything duly done or suffered thereunder,

(b) affect any penalty, forfeiture or punishment incurred in respect of any such offence so abolished, abrogated or

repealed or any other offence which was committed before such abolition, abrogation or repeal, or

(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such

offence or any other offence.

(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common

law, then unless the contrary intention appears, any proceedings in respect of any such offence or any other offence

committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or

enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence

may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise

repealed.

(3) This section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed

before or after the passing of this Act.

(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with

the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary

to secure that they do not so conflict, but shall otherwise be of full force and effect.”

35. Therefore, as the offence of buggery was abolished in 1993, it is necessary to construe the above section of the Act to

determine whether the appellant may be prosecuted for the offence of buggery alleged to have been committed in 1970.

36. Section 1(1) of the Interpretation (Amendment) Act, 1997, provides that where an Act of the Oireachtas abolishes an offence at

common law, then unless a contrary intention appears, such abolition shall not affect the previous operation of the law, affect any

penalty incurred in respect of such offence, or prejudice any proceedings pending at the time of such abolition. In this case, no

penalty had occurred, nor was any proceeding pending against the appellant, at the time of the abolition of the offence. Thus of s.

1(1) neither (b) or (c) are relevant to this case. Analysis of s. 1(1)(a) requires it to be done in the context of the section as a whole,

and I shall consider the section as a whole later in this judgment.

37. Section 1(2) provides that where an Act of the Oireachtas abolishes an offence at common law, then unless the contrary

intention appears, any proceedings in respect of such offence may be instituted, continued or enforced, and any penalty in respect of

any such common law offence may be imposed as if such offence at common law had not been abolished.

38. Section 1(3) provides that the section applies to an offence at common law, abolished before or after the passing of that Act.

39. In this case, the common law offence of buggery was abolished in 1993, which was four years before the Interpretation

(Amendment) Act, 1997.

40. Thus, on the face of s. 1(1), (2) and (3) of the Interpretation (Amendment) Act, 1997, the Oireachtas stated that even if an

offence at common law had been abolished before the passing of that Act, the Court could treat it as not having been abolished. This

legislative provision was stated in a general sense. Individual offences were not identified. There was, for example, no reference to

the offence of buggery.

41. However, the Oireachtas entered a caveat by s. 1(4). It provided that if, because of the provisions in s. 1, the section would, but

for the provisions of s. 1(4), conflict with the constitutional rights of any person, the provisions of this section shall be subject to

such limitations as are necessary to secure that they do not so conflict, but otherwise be of full force and effect. I understand this

saving provision as to apply to protect constitutional due process, to protect a person where constitutional rights could be impugned.

An Analogy

42. An analogy may be drawn with the common law offence of assault and battery and litigation thereon.

43. The Non-Fatal Offences Against the Person Act, 1997, abolished, amongst others, the offences of assault and battery, and

assault occasioning actual bodily harm. The relevant provisions came into force on the 19th August, 1997. It contained no transitional

measures relating to situations where alleged crimes had been committed prior to the 19th August, 1997, but which had not yet been

prosecuted.

44. In Grealis v. D.P.P. [2001] 3 I.R. 144, the Court considered a situation where the Non-Fatal Offences Against the Person Act,

1997, which, amongst others, abolished the common law offence of assault and battery and assault occasioning actual bodily harm,

came into force on the 19th August, 1997. It contained no transitional measures in relation to situations where alleged crimes had

been committed prior to the 19th August, 1997, but which had not yet been prosecuted.

45. The Interpretation Act, 1937, contained saving provisions allowing for the maintenance of prosecutions of statutory offences

after the statutes under which they had been constituted had been repealed; however, no such saving provisions existed where

common law offences were abolished. The Interpretation (Amendment) Act, 1997 came into force on the 4th November, 1997, and

purported to allow for the institution and maintenance of prosecutions after the common law offence had been abolished. However,

section 1(4) provided that the Act would be subject to such limitations as are necessary to ensure that it did not conflict with the

constitutional rights of any person.

46. The applicant in Grealis v. D.P.P. [2001] 3 I.R. 144 was charged on foot of two summonses for common law assault and on a third

summons with assault causing actual bodily harm contrary to s. 47 of the Act of 1861. The Interpretation (Amendment) Act, 1997,

came into force after the proceedings were instituted. This Court held that the Non-Fatal Offences Against the Person Act, 1997 was

clear and unambiguous and must be read as abolishing, amongst others, the common law offence of assault and battery and that the

said Act contained no saving or transitional provisions in respect of common law offences. It was held that the offence of assault

causing actual bodily harm was a common law offence for which there were specific statutory penalties.

47. It was held that the Interpretation (Amendment) Act, 1997, should be interpreted as having a prospective effect in order for it

not to offend against the constitutional prohibition on retrospective penal legislation, contained in Article 15.5 of the Constitution.

Thus, it was held that the Act did not apply to prosecutions, for repealed common law offences, initiated before the Act came into

effect.

48. The facts are not the same as in this case. Indeed, Hardiman J. anticipated facts such as arise in this case. He queried whether

the Interpretation (Amendment) Act, 1997, would operate to allow a prosecution of a common law offence committed prior to its

repeal but where the prosecution was initiated after the Interpretation (Amendment) Act, 1997, came into force. It is that issue

which is required to be determined in this case.

49. In Grealis v. D.P.P. [2001] 3 I.R. 144, Keane C.J. referred to judgments in England and Wales and the United States of America

and, at p. 156 to 157 stated:-

“This formidable body of authority, it is said on behalf of the first respondent, applies only to the repeal of statutory

offences. No logical or principled distinction was drawn, however, between the application of this well settled rule of law

to statutory offences and to common law offences and, with good reason, since it is clear that there is no such

distinction. Common sense, as well as authority, leads one inexorably to the conclusion that, where a common law

offence is repealed by statute, in the absence of any saving provision it ceases to exist for all purposes and no

prosecution can be maintained in respect of it after the repealing statute has taken effect.”

50. Keane C.J. considered several principles of construction of statutes, and he held that s. 28(1) of the Non-Fatal Offences Against

the Person Act, 1997, was clear and unambiguous, and that the only construction of which it is capable is that the common law

offences to which it applied are abolished from the coming into force of the section. He stated at p. 158:-

“They cease to exist in law …”

51. The decision of this Court in that case was that the Non-Fatal Offences Against the Person Act, 1997, was clear and

unambiguous and must be read as abolishing, inter alia, the common law offences of assault and battery and that it contained no

saving or transitional provisions in relation to those common law offences. It was held that the Interpretation (Amendment) Act,

1997, should be interpreted as having prospective effect in order that it not offend against the constitutional prohibition on

retrospective penal legislation contained in Article 15.5 of the Constitution. Further, it was held that the said Act did not apply to

prosecutions for repealed common law offences instituted before the Act came into force.

52. In this case, the alleged offence occurred before the offence of buggery was abolished and the prosecution was instituted after

the said Act had come into force.

Analysis

53. It appears to me that the following analysis applies. The offence of buggery was a common law offence. It was abolished in 1993.

54. As Keane C.J., said in Grealis v. D.P.P. [2001] 3 I.R. 144 of an offence in a similar situation:

“Where a common offence is repealed by statute, in the absence of any saving provision it ceases to exist for all

purposes and no prosecution can be maintained in respect of it after the repealing statute has taken effect.”.

55. If this case was in the same situation as arose in Grealis that would be the end of the matter, the appeal would be allowed on

this issue.

56. However, there was subsequent legislation by the Oireachtas. Four years after 1993 the Oireachtas enacted the Interpretation

(Amendment) Act, 1997.

57. There was thus a four year elapse of time during which the offence was abolished and no saving or transitional provisions existed.

58. A lacuna existed between 1993 and 1997. The appellant could not have been prosecuted for the alleged offence of buggery

between 1993 and 1997. Between 1993 and 1997 there was no legal foundation to prosecute the appellant for the alleged offence of

buggery. No transitional arrangements to prosecute earlier alleged offences were made in 1993.

59. In 1997 some transitional arrangements were made for prosecutions; the Interpretation (Amendment) Act, 1997, is set out earlier

in the judgment.

60. However, the Interpretation (Amendment) Act, 1997, was a general Act. There was no specific reference to the offence of

buggery. The legal position of a person such as the appellant was not clear. There is a well established requirement of clarity in the

criminal law so that an accused may know his position. The situation from 1997 was not established in a clear and plain fashion.

61. Further, the Interpretation (Amendment) Act, 1997, if applied to the appellant, would be retrospectively re-establishing the

offence for the purposes of prosecution of offences committed prior to 1993, for which the appellant would not have been liable

between 1993 and 1997.

62. Section 1(4) of the Interpretation (Amendment) Act, 1997 is set out in detail earlier in the judgment. It is a caveat. It provides

that if the section would, but for s. 1(4), conflict with the constitutional rights of a person, the provisions of the section shall be

subject to such limitations as are necessary to secure that they do not so conflict.

63. The appellant is entitled to due process of law. From 1993 to 1997 he could not be prosecuted for the offence alleged against

him, the offence had ceased to exist and no prosecutions could be brought against him, nor could any penalty be inflicted for violation

of that law while it had been in force.

64. The Interpretation (Amendment) Act, 1997, introduced new law. It purported to retrospectively introduce law so as to re-

introduce liability for the actions of persons under the law which had ceased to exist.

65. The Interpretation Acts of 1937 and 2005 made transitional arrangements for statutory offences. However, they specifically dealt

with situations where there was no lacuna in time. They provided that where an Act of the Oireachtas repeals the whole or a portion

of a previous statute then, unless the contrary intention appears, such repeal shall not revive anything not in force or not existing

immediately before such repeal takes place, etc. No such provisions are to be found in the Interpretation (Amendment) Act, 1997.

66. Constitutional due process is guarded by s. 1(4) of the Interpretation (Amendment) Act, 1997.

67. A prosecution now for the abolished offence of buggery would conflict with a constitutional right not to be exposed to a

prosecution for an offence where the Oireachtas had clearly abolished the offence, and where no transitional provisions were

provided. The appellant has a constitutional right to be tried in due process of law. In all the circumstances it would be a breach of

such a right to prosecute for an offence which was so abolished. Such a prosecution would apply the Interpretation (Amendment)

Act, 1997, retrospectively, in breach of fundamental constitutional principles. Because of s. 1(4) of the Interpretation (Amendment)

Act, 1997, that Act cannot be interpreted as validating the purported criminal proceedings against the appellant for the offence of

buggery, which proceeding would have been unlawful prior to its enactment.

68. An attempt to revive a previously barred prosecution, after the lacuna of four years, would be counter to fundamental principles

of the Constitution. Section 1(4) of the Interpretation (Amendment) Act, 1997, protects fundamental principles and procedures.

69. I am reinforced in this analysis by the consequences which would arise if the offence of buggery could be prosecuted now. If the

offence of buggery was re-established, and liability re-established, in 1997, then liability could arise once again for acts between

consensual adults that occurred prior to 1993.

70. For all these reasons, I am satisfied that the Act of 1997 does not enable or permit the prosecution of the appellant for the

offence of buggery.

Conclusion

71. Buggery was an offence contrary to common law for many centuries, until it was abolished in 1993. The abolition of the offence

was complete, irrespective of age or gender. Section 61 of the Act of 1861 provided the sentence for the offence, prior to it being

repealed in 1993 also.

72. There were no saving provisions for transitional prosecutions in the Act of 1993. Thus from that date the common law offence of

buggery was abolished. An important consequence was that consenting adults could no longer be prosecuted. In 1993 the Oireachtas

established statutory provisions prospectively protecting children and young persons.

73. In this case the alleged offences occurred in 1970 and 1971. The offence of buggery was abolished in 1993, and, while the

Interpretation Act, 1937, had a saving provision in relation to a statutory offence, it had no such provision in relation to a common

law offence, and it did not apply to the common law offence of buggery. Thus there were no transitional provisions in 1993. The

Interpretation (Amendment) Act, 1997, did have a saving provision regarding an abolished common law offence. However, this raises

the issue as to whether it can retrospectively revive an offence which has been abolished four years previously.

74. A lacuna was created in 1993 with the abolition of the common law offence of buggery, when no provisions were made for the

prosecution of earlier offences. While the Oireachtas continued a policy of protecting children and young people from such activity,

the offence of buggery no longer existed.

75. From 1993 to 1997, there was no statutory provision preserving a right to prosecute for the offence of buggery or the liability to

be so prosecuted for offences prior to 1993. This approach was consistent with the European Court of Human Rights’ decision in

Norris v. Ireland (1991) 13 E.H.R.R. 186 and the European Convention on Human Rights. The previous offence would no longer apply

to consenting adults.

76. The specific lacuna left was as to an alleged offence by an adult with children and young persons prior to the abolition of the

offence. While the Act of 1993 created new offences protecting children and young persons, these offences were not retrospective.

77. I am satisfied that the Act of 1997 could not, and did not, revive the common law offence of buggery, for a number of reasons.

78. First, the law requires that criminal offences be established clearly and unambiguously. The position as to the alleged offence of

buggery after 1993 is neither.

79. Criminal liability for the offence was removed by the Act of 1993. Thus, from 1993 to 1997, the appellant was not liable to be

prosecuted for the offence.

80. If such an Act had made a transitional provision in relation to minors at the time of abolishing the offence there would be no

lacuna, there would be no ambiguity, nor any question of retrospectivity.

81. The Interpretation (Amendment) Act, 1997, may not be construed constitutionally as applying liability for an offence

retrospectively, where criminal liability was removed from 1993, and where no transitional arrangements for prosecution were made.

82. If, contrary to my belief, the offence of buggery could be prosecuted after 1997 it would have a significant consequence. It

would apply to consenting adults. Any such construction would be constitutionally frail and it would have the infirmity of applying the

offence to consenting adults in respect of acts done prior to 1993, which was addressed in Norris v. Ireland in the European Court of

Human Rights, and subsequently by the Oireachtas when the offence was so abolished.

83. In all the circumstances, I am satisfied that the D.P.P. may not prosecute the appellant for an offence of buggery, which was

abolished in 1993. The situation in 1993, was clear, the offence of buggery was abolished. Further, it cannot be anticipated that the

D.P.P. would now prosecute consenting adults, nor that such a prosecution was envisaged by the Oireachtas. All in all, I am satisfied

that the offence of buggery was a common law offence, it was abolished in 1993, and no words of the Interpretation (Amendment)

Act, 1997, can retrospectively revive the right to the D.P.P. to prosecute, or the liability to be prosecuted, for this offence.

84. Consequently, I would hold that the learned trial judge erred in law in finding that the offence of buggery was a statutory offence

and in finding that the Act of 1861 created the statutory offence of buggery. The offence of buggery was an offence at common law

and was abolished by the legislature in 1993. The Interpretation (Amendment) Act, 1997, does not permit the prosecution of the

offence of buggery for acts committed prior to 1993, as, quite apart from the appropriate construction of the statute, such a

consequence would not be consistent with the decision of the European Court of Human Rights in Norris v. Ireland (1991) 13 E.H.R.R.

186, or the legislation abolishing the offence in 1993. Consequently, I would allow the appeal, insofar as it applies to the charge of

buggery, and so the appellant may not be prosecuted for that offence.

85. No issue was raised, or argued, as to the two charges of indecent assault, which are not affected by this judgment.