Supreme Court dismisses prosecution for repealed buggery but allows indecent assault charges to proceed.

[2012] IESC 7

THE SUPREME COURT

014/2010

Denham C. J.

Murray J

Hardiman J.

Fennelly J.

Macken J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

v.

JUDGE MARY DEVINS

Respondent

and

M. Notice Party/Appellant

JUDGMENT of Mr. Justice Hardiman delivered the 8th day of February, 2012.

1. This case arises out of an attempt to prosecute the applicant for a number of sexual offences allegedly committed in 1970/71. This

attempt was made more than 35 years after the alleged events. As will be seen, the case has become afflicted with difficulties of

several kinds, mainly due to ill considered changes in the law without proper thought about future prosecutions.

Central Point.

2. The central point in this case was flagged to the prosecution by Judge Devins on the day the Book of Evidence was produced

before the learned District Judge. She pointed out that the Section which the prosecution relied upon as creating the offence of

buggery (s.61 of the Offences against the Person Act, 1861) had been repealed by the Oireachtas in the Criminal Law (Sexual

Offences) Act, 1993. If the charge had been brought as “ buggery contrary to Common Law) she would no doubt have pointed out

that the same Act provided that “any rule of law by virtue of which buggery between persons is an offence is hereby abolished”.

3. Very remarkably, no transitional provisions were contained in the Act of 1993. Such provisions are absolutely necessary if the

Oireachtas desire to preserve the possibility of prosecuting for a repealed or abolished offence after the date of the repeal or

abolition, unless this issue is covered by some general provision. The failure to include transitional provisions in the Act of 1993 is

inexplicable, and no explanation has been attempted. Thus, the State has had to fall back on a general provision. But which general

provision? Different provisions will apply depending on whether the offence in question is an offence contrary to statute, or an

offence contrary to Common Law. This issue, which would normally be one of technical or historical interest only, has taken a great

deal of time on the hearing of this appeal. The question then arises as to whether the general provision appropriate is effective to

create a criminal liability in the Notice Party several years after the offence of buggery between persons had been “abolished”.

Charges

4. The notice party was charged with three offences. The allegations were:

(1) That on a date unknown between the 1st September, 1970 and the 31st December, 1970 at St. Jarlath’s College,

Tuam, Co. Galway, he indecently assaulted one P.D.

(2) That on a date unknown between the 1st September, 1970 and the 30th June, 1971 at the same location, he did

indecently assault one C.D.

(3) That on a date unknown between 1st September, 1970 and 31st December, 1970 at the same location he did commit

buggery with one P.D.

This case relates entirely to the third charge and neither the respondent nor the notice party has ever raised any difficulty with the

prosecution of the first two.

History of Criminal Proceedings

5. This account is taken wholly from the prosecution evidence in the affidavit grounding this application.

6. On the 20th June, 2007, about thirty-six to thirty-seven years after the date of the alleged offence, the notice party was arrested

and charged with the offences set out above. They all related to a time when the notice party was teaching at a school in Galway.

7. When the matter came before the District Court in Castlebar on the 20th June, 2007, a garda gave evidence of arrest, charge and

caution. The notice party was represented by his solicitor, Ms. Fiona McAllister. The respondent, who was the District Judge presiding

at the hearing, raised the question of jurisdiction. The prosecuting Garda Inspector, Inspector Murray, informed her that the D.P.P.,

who was the moving party in the proceedings, had elected for trial on indictment and he asked for an adjournment in order to allow a

Book of Evidence to be prepared. An independent surety was accepted as a bailsperson and the matter was adjourned to the 18th

July, 2007.

8. On the 18th July, the matter came before the respondent again at Castlebar District Court. The book of evidence was served on

the defendant, the notice party in these proceedings, in court. The Inspector then called a sergeant Carroll to give evidence of

service which he did. Inspector Murray told the Court that the D.P.P. had directed that the matter be tried on indictment pursuant to

s.4(A)(2) of the Criminal Procedure Act 1967. The District Judge asked him what his application was. He replied that his application

was that the notice party be returned for trial to the current sittings of the Central Criminal Court in Dublin. The District Judge pointed

out that the matter was not properly returnable to the Central Criminal Court but rather to the Circuit Criminal Court. The Inspector

was then given some time to research the matter and the District Judge said that she would research the matter as well.

9. According to Inspector Murray he then took advice from the Office of the Director of Public Prosecutions which confirmed that the

matter should be brought before the Circuit Criminal Court and not the Central Criminal Court. The D.P.P. also brought to his attention

that an issue might arise as to whether the indecent assault charge should not have been brought “contrary to Common Law” instead

of “contrary to s.62 of the Offences against the Person Act, 1861”, as originally drafted. He said they were studying a recent High

Court judgment on the topic and directed that Inspector Murray apply to adjourn the case until further instructions could be obtained.

Subsequently, the Inspector returned to Court and told the Judge that he was conceding that the matter should be returned to the

Circuit Criminal Court and not the Central Criminal Court. The District Judge was unhappy that the prosecution had been incorrect on

this issue. He then asked for an adjournment, giving the reason which had been outlined to him by the D.P.P.’s office. Ms. McAllister,

solicitor for the notice party, objected to the application and pointed out that the State had included the existing charges in the Book

of Evidence and that the notice party should be sent forward on those charges.

10. The District Judge then intervened and said that she had been researching the points raised and that she had identified a further

complication. She pointed out that s.14 of the Criminal Law (Sexual Offences) Act 1993 had repealed both s.61 and s.62 of the

Offences against the Person Act 1861. The offence of buggery contrary to s.61 had been charged. She put the matter back until

after the luncheon adjournment so that the State could research it further.

11. When the Court resumed the Inspector said that he had again been in touch with the D.P.P.’s office and was renewing his

application to have the matter adjourned to September. Ms. McAllister objected. The District Judge indicated that she would not

accede to the application. The Inspector said that if the District Judge was refusing his application, he would then ask her to return

the notice party for trial to the next sitting of the Castlebar Circuit Court. The notice party’s solicitor had no objection to this.

12. The learned District Judge then said that they were both missing the point. She repeated that s.14 of the Criminal Law (Sexual

Offences) Act 1993 had repealed both s.61 and s.62 of the Act of 1861. She further said that s.8 of the Criminal Law (Sexual

Offences) Act, 2006 had now repealed s.14 of the Act of 1993. She said the effect of all this was that all references to buggery had

been repealed from the statute books save for a reference, irrelevant to the present case, in the definition of “sexual act” in the Act

of 2006.

13. All that the learned District Judge said, summarised above, transpires to be accurate.

14. The Inspector then informed the Court that he had been informed by the D.P.P.’s office that s.27 of the Interpretation Act 2005

made it clear that even if a statutory offence had been repealed, that fact does not mean that a person could not be charged with

it.

15. The learned District Judge indicated that she believed this to be wrong. She said it could not be the case. She then asked him to

comment further on the legislation and the Inspector indicated that he did not have it with him and that he would need time to study

the Acts to which he had referred in order to comment on it in any constructive manner.

16. The learned District Judge stated that she would make “No Order” in the case.

17. It thus appears that, at the end of the July, 2007 sitting of the Court, the prosecution had been stymied when the learned

District Judge simply marked the case “No Order”. This is the correct order for a judge of the District Court to make when he or she

has no jurisdiction to make any other order in the case.

Second Arrest

18. By direction of the D.P.P. the notice party was again arrested and charged on the 19th September, 2007 with the same offences

but with some important differences in their legal formulation. He was charged in effect with:

(1) Buggery contrary to s.61 of the Offences against the Person Act 1861,

(2) Indecent assault contrary to Common Law,

(3) Indecent assault contrary to Common Law.

19. This matter came before the District Court again on the same day and the Inspector was again prosecuting and Ms. McAllister,

solicitor, again represented the notice party.

20. According to the Inspector’s affidavit, he called a member of the gardaí to give evidence of arrest, charge and caution. Before

anything else happened, the learned District Judge asked if these charges were correctly founded in law. The Inspector referred to

what had happened on the previous occasion. He said that the charges now before the Court were valid and that they had been

directed by the D.P.P. He said that they were being brought as a result of the D.P.P.’s most recent instructions. He handed in to

court a copy of s.27 of the Interpretation Act, 2005. The learned District Judge asked Ms. McAllister what she thought. Ms. McAllister

said that the D.P.P had already brought the charges the result of which was that the learned District Judge had made no order and

that the D.P.P. was now coming again with substantially the same charges despite the District Judge’s earlier decision.

21. The District Judge asked how she was to know whether the charges were correct in law or not. The Inspector relied on the

Interpretation Act 2005. The learned District Judge queried then why the matter had been brought before the Court on the day

appointed for the Annual Licensing District Court. The Inspector said that the D.P.P. had issued his instructions in early September

and the matter could have been brought before an earlier court but the notice party had been ill.

22. The learned District Judge then adjourned for an hour to consider the matter and took possession of the various authorities

handed to her.

23. When the learned District Judge came to deal with the matter again she said that it was her decision to make “No Order” in the

case. She was not satisfied that the charges before her were good or were grounded in law. She said no argument had been opened

to suggest to her that the charges were good. She said that one of the cases given to her, Goulding v. Judge McVeigh and the

D.P.P., an unreported decision of the High Court, was the relevant authority.

24. Accordingly, the result of the second appearance before the District Court in September, 2007, was again that the learned

District Judge made no order. It is clear from what was attributed to the learned District Judge in the State’s affidavit that her

grounds for this was that the offence of buggery had been repealed (in unusually trenchant terms, as will transpire), by the Criminal

Law (Sexual Offences) Act 1993 and that she did not accept that the Notice Party could now be charged with this offence, alleged

to have taken place before the repeal.

High Court Proceedings

25. On the 19th November, 2007, the High Court granted leave to the D.P.P. to apply for:

(1) An Order of certiorari quashing the decision made by the learned District Judge on the 19th September, 2007 to make

no order in respect of the three charge sheets against the notice party.

(2) An Order of mandamus requiring the District Judge to accept the evidence of arrest charge and caution that was

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

(3) A declaration that the offence of buggery contrary to s.61 of the Offences against the Person Act 1861 is a valid

offence recognised by law, if it relates to dates prior to the repeal of the said s.61 of the Act of 1861, which occurred in

2003.

(4) If necessary a declaration that the offence of indecent assault contrary to Common Law is a valid offence recognised

by law.

(5) If necessary an Order of certiorari quashing the decision made by the District Judge on the 18th July, 2007, to make

no order.

26. For practical purposes, the relief set out at paragraphs 1 and 3 are those to which the great bulk of the argument before the

Court was directed.

27. The grounds on which this relief was sought are:

(1) That the learned District Judge erred in law in holding that the offence of buggery contrary to s.61 of the Offences

against the Person Act, 1861 is not known to law or is not properly before the Court in the circumstances of the present

case.

(2) The learned District Judge wrongfully declined to exercise her jurisdiction by failing to hear and deal with the charges

which were properly and lawfully before her, and to send the notice party forward for trial.

(3) The learned District Judge acted without any proper legal basis and in excess of jurisdiction in making “No Order”.

(4) The learned District Justice erred in law and wrongfully refused jurisdiction in hearing evidence of arrest charge and

caution and later purported to hold that she was then not accepting the evidence of arrest charge and caution.

28. By way of response the notice party claims that the offence of buggery is a Common Law offence, the penalty for which was

provided by statute. He then says that this Common Law offence of buggery was repealed by s.14 of the Criminal Law (Sexual

Offences) Act 1993.

29. It is further claimed by the notice party that the said Act of 1993 did not provide any saver or transitional provision providing for

the prosecution of offences repealed by it after the date of the repeal. He further alleged that the allegedly wrongful acts on his part

are not now an offence in Irish law. Therefore, any prosecution of him for this offence now is a nullity. He could have been

prosecuted for buggery before 1993, but the D.P.P. did not do so then.

30. By way of reply to the State’s reliance on s.27 of the Interpretation Act 2005, the notice party says that this section of the

statute and its predecessor in the Interpretation Act 1937, are not applicable to offences contrary to Common Law. He further says

that s.1(1) of the Interpretation (Amendment) Act 1997, which applies where the offence abolished is a Common Law offence, applies

only prospectively and it is not applicable in retrospect. He claimed that the learned District Judge was acting within her powers and

correctly in making no order in respect of the buggery charge.

Decision of the High Court.

31. The D.P.P.’s application was heard in the High Court by Mr. Justice O’Keefe, who delivered judgment on the 2nd December, 2009.

This Court acceded to the D.P.P’s application, held that buggery was a statutory offence, and quashed the learned District Judge’s

order of the 19th September, 2007. From this decision the notice party now appeals.

Legal Context

32. It is first necessary to put the foregoing events in their statutory and legal context.

Statutory Context

33. It is alleged that the notice party, the defendant in the criminal proceedings, committed the act of buggery between the 1st

September, 1970 and the 30th June, 1971. The parties are in agreement that, between those dates, buggery was an offence. I

conclude, for reasons indicated below, that it was an offence contrary to Common Law the penalty for which was fixed by statute,

s.61 of the Offences against the Person Act, 1861. It was not a statutory offence.

34. The offence of buggery at Common Law was subsequently abolished by s.2 of the Criminal Law (Sexual Offences) Act 1993 (“the

Act of 1993”) with effect from the 7th July, 1993. Section 2 of that Act provides as follows:

“any rule of law by virtue of which buggery between persons is an offence is hereby abolished”.

35. Section 14 of the same Act also repealed sections 61 and 62 of the Offences against the Person Act 1861 (“the Act of 1861”)

save insofar as they apply to buggery or attempted buggery with animals. This offence had not been abolished: the abolition was only

in relation to buggery “between persons”. Section 61 of the Act of 1861 had provided that the penalty for the “abominable crime of

buggery” was penal servitude for life or a term of imprisonment not exceeding ten years.

36. Crucially, the Act of 1993 contained no transitional provisions providing for the institution or maintenance of proceedings in

respect of an act committed before the offence of buggery was abolished. This absence of any transitional provisions was an

extraordinary omission and created a lacuna in the law. It is by no means the first example of unfortunate omissions in draftmanship

apparently based on the illusion that criminal law is fundamentally simple and that the intention may be taken for the deed. This is a

grave error. The language of the 1993 Act is quite consistent with buggery being an offence at Common Law. But the language of s.

2, referring to “any rule of law” would be quite redundant if it were a statutory offence, and the statutory provision creating it were

being separated repealed by s. 14.

37. It should be noted, for context, that the Act of 1993 followed certain decisions of the European Court of Human Rights, being

Dudgeon v. The United Kingdom (1981) 4 E.H.R.R. 149 and Norris v. Ireland (1988) 13 E.H.R.R. 186. The effect of these was to find

the legal provisions criminalising buggery inconsistent with the European Convention on Human Rights. This may account for the

trenchant language of the repeal which, apart from repealing the relevant sections of the statute, provided for the abolition of “any

rule of law by virtue of which buggery between persons is an offence”. Having regard to the terms of the decisions of the European

Court of Human Rights, it may be that the Oireachtas was concerned that, notwithstanding the decisions of the High Court and

Supreme Court in Norris v. The Attorney General [1984] I.R. 36 any law criminalising buggery between consenting adults would be

constitutionally vulnerable. But the repeal, as can be seen, extended not only to buggery between consenting adults, whether

homosexual or heterosexual (which had previously been criminal), but also extended to buggery with minors. Buggery of any kind

between persons ceased to be a criminal offence, just as buggery of any kind had previously been a criminal offence, without

distinctions of age, sex, consent, or status. This left an enormous lacuna, as the legislature did not seem to notice that they had

abolished the offence of buggery between and adult and a child as well as between adults.

38. On the 4th November, 1997, a belated effort was made to remedy this lacuna. This was the enactment of the Interpretation

(Amendment) Act, 1997 (“the Act of 1997”) which entered into force on that date.

39. The Act of 1997 does not deal in specific terms with buggery or with any other offence: rather s.1 (set out below) contains

transitional provisions of an entirely general, entirely non-specific, nature in respect of the statutory repeal of Common Law offences

generally and provides that the abolition of a Common Law offence does not prevent the bringing of charges in respect of conduct

committed prior to its abolition. At subsection (4) there is a general saver intended to prevent “conflict with the constitutional rights

of any person”. It does not specifically address the difficulty that some Common Law offences may have been abolished because they

are, or are thought to be, unconstitutional or a breach of the State’s international obligations.

The High Court Judgment and Later Developments

40. When the matter came before the High Court by way of judicial review, Mr. Justice O’Keeffe held that buggery was a statutory

offence and that it was therefore possible to prosecute the applicant pursuant to s.27 of the Interpretation Act 2005.

41. However, during the argument on the hearing of this appeal it was apparently accepted by both sides that the offence of buggery

was a Common Law offence. At one point the State submitted that Buggery had, perhaps been both a common law and a statutory

offence.

42. The alternative view of the offence of buggery is that it is a statutory offence by reason of s.61 of the Offences against the

Person Act, 1861. This provides:

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

shall be liable to be kept in penal servitude for life.

43. It will be observed that this form of words does not attempt to define particular acts and to criminalise them. Instead it refers to

the “abominable” crime of buggery as something as already exists and lays down a maximum penalty for it. A previous statute of the

former U.K. Parliament, 9 George IV Cap.31, “An act for consolidating and amending the statutes in England relative to Offences

against the Persons” in s.15 stated that:

“Every person convicted of the abominable crime of buggery committed with either mankind or with any animal, shall

suffer death as a felon”

44. It will be observed that this Act, too, proceeded on the basis that the offence already existed and merely laid down a penalty.

The Act of 1861 strikes us today as a statute of remarkable severity, and as being quite strident in its terms, but of course it was in

its day a reforming statute which at least relieved those prone to buggery of the prospect of the death penalty.

45. By a further statute, also passed in 1861, 24 and 25 Vict. Cap. 54, the Act of 1829 mentioned above was repealed in its entirety.

46. I do not consider it necessary, for the purpose of this judgment, to emulate the impressive historical analysis conducted by

Fennelly J. in his judgment in this case in its entirety. This analysis is of the greatest interest and is revealing in itself but it does not

alter my opinion as to whether buggery, as it existed prior to 1993, was a Common Law or a statutory offence. If, in 1993 it was a

statutory offence this could only be so by reason of the provisions of the Offences against the Person Act, 1861, quoted above.

Other earlier statutes had repealed the pre-existing law, contained in the 1829 Act. The older preceding statute, of 1562, V Eliz. Cap.

17, “An act for the punishment of the vice of sodomy” had been previously been repealed by an Act of 1829. I therefore consider it

quite sufficient, for any practical purpose, to pose the question whether the offence of buggery, as it stood in 1993, was a statutory

offence created by s.61 of the Act of 1861, or, the alternative, was a Common Law offence.

Historical observation.

47. But, in deference to the elaborate historical analysis conducted by Fennelly J. in his judgment in this case, I venture a brief

comment. There is no doubt that the offence of buggery was the subject of statutory intervention, both in this country and in

England, from a remote date. That fact in itself does not render the offence a statutory one, since, for example, the offence of

murder has been the subject of various statutory interventions which do not, however, take from the fact that the crime of murder is

indisputably a Common Law offence.

48. The post medieval statutory interventions on the topic of buggery appear to go back, in England, to the year 1553, and in Ireland

to 1634. Prior to 1533 the offence of buggery was considered an “offence against religion” and was accordingly an offence triable in

the Ecclesiastical Courts. It must be remembered that, at that remote date and to some extent as late as the middle of the 19th

century, the Ecclesiastical Courts had a large jurisdiction over matters which are now considered appropriate to the Common Law

courts. From the point of view of a defendant in a criminal case there was a very practical aspect to the distinction: the

Ecclesiastical Courts could award sentences up to and including life imprisonment, but could not impose the death penalty. A person

claiming that he should be tried in the Church Courts was said to “plead his clergy” or to seek “benefit of clergy”, by asserting that he

was a cleric.

49. Accordingly, the older legal history books including Stephens History of the Criminal Law (1883) and Pollock and Maitland (1911)

History of English Law consider the offence of buggery under the heading of “Offences against Religion/Ecclesiastical offences”.

50. These works describe how, over a significant period of time, many crimes (but not the jurisdiction over what we would now call

family law and probate, for instance) were removed from the jurisdiction of the Ecclesiastical Courts. It appears that this happened in

the case of the offence of buggery: in 1533 in England and in 1634 in Ireland, statutes were passed by the predecessors of the old

United Parliament which do not define the crime of buggery, but which assimilate it to felony at Common Law in terms of procedure

and penalty, and make it a felony without benefit of clergy.

51. This proposition is to my mind clear from what is said in Stephens monumental work, published in 1883:

“The whole of the Ecclesiastical ordinary jurisdiction did not fall at once, nor did it all remain untouched until the year

1640. It was always a recognised principle of law that the Ecclesiastical Courts should not try men for temporal offences

and that if they did so they might be restrained by a writ of prohibition. As some of the crimes with which they concern

themselves came to be regarded as temporal offences of importance, they were made felonies by statute, and thus the

Ecclesiastical Courts lost jurisdiction over them. This was the case with several offences.”

52. This proposition is, in my opinion, amply and sufficiently illustrated by the terms of the first Irish Act about buggery, 10 Chas. I,

Cap 20, entitled “An act for the punishment of the vice of buggery”. Insofar as relevant this provided:

“FORASMUCH as there is not yet sufficient and condigne punishment appointed for the detestable and abominable vice of

buggery committed with mankind or beast be it enacted that the same offence be from henceforth adjudged felonie, and

such order and form of process therein to be used against the offenders, as in cases of felony at the Common Law;

and that the offenders being thereof convicted… shall suffer such paines of death and loss and penalties of their goods,

chattels, debts, lands, tenements and hereditaments, as felons be accustomed to doe, according to the order of the

Common Law of this realme, and that no person offending in any such offence shall be admitted to his clergy”.

(Emphasis added)

53. This Act, which was itself repealed in 1829 by an Act later itself repealed in 1861, does not create an offence of buggery but

appoints a penalty and form of procedure in respect of such offence. In this regard the Section is identical to the statutory treatment

of the offence of assault occasioning actual bodily harm, which is undoubtedly a Common Law offence for the reasons set out later in

this judgment.

54. Moreover, it can be seen that the removal of the ancient right of “benefit of clergy” wholly displaced the jurisdiction of the

Ecclesiastical Courts. As to ordinary people it was displaced in any event by making the procedure for its prosecution analogous to

that used in the case of “felony at the Common Law”. In the case of clerics it was removed by the abolition of the right to “plead his

clergy”, i.e. to assert that he was a clerk in holy orders and entitled therefore to be tried by the Ecclesiastical Courts. Nor was this a

mere technicality, as witness the case of the Irish Anglican bishop John Atherton, hanged in Dublin for buggery in the year 1640, only

six years after the Act was passed: he could prior to 1634 have escaped execution by asserting benefit of clergy. See Peter Marshal,

Mother Leaky and the Bishop (Oxford University Press, 2007) for a comprehensive academic (but eminently readable) account of this

interesting and instructive episode. It appears that the Bishop was taxed with buggery only after a falling out with some powerful

interests over land in his diocese of Lismore (Waterford).

The need to decide the issue of Statutory or Common Law.

55. It is fair to say that this issue would normally be one of academic interest only. However, in the circumstances of the present

case it is a question the Court is bound to ask. This is because, if the offence of buggery committed prior to 1993 is now

prosecutable at all, it is prosecutable for one of two quite different reasons, depending whether the offence is statutory or a Common

Law one. As mentioned above, the Act of 1993 contains no transitional provisions whatever. Therefore, if buggery is a Common Law

offence, it is prosecutable now, if at all, by virtue of the provisions of the Interpretation (Amendment) Act, 1997, to whose

applicability most of this judgment is devoted. But if it is a statutory offence it is prosecutable, if at all, by reference to those

provisions of the Interpretation Acts, 1937 and 2005 upon which the Director relies. The terms of these two statutes are quite

different. Accordingly, the Statutory Scheme itself compels an answer to the question: is the offence a statutory offence or an

offence of Common Law?

56. Authority is not lacking on either side of this proposition. The modern United Kingdom authorities are not helpful because, in that

jurisdiction, buggery has undoubtedly been a statutory offence at least since 1956. Reflecting this, the 1962 edition of Archbold’s

Criminal Pleading Evidence and Practice suggests that an indictment for the offence should be laid in the following form:

“AB on the day of in the County of committed buggery with JN”.

57. In a footnote to this it is stated:

“It is submitted that since the coming into force of the Sexual Offences Act, 1956, this is the most convenient method of

stating this offence in an indictment. As, however, buggery has always been a felony at Common Law, there would

probably be no objection to stating the offence simply as ‘buggery’ without reference to any statute”. (Emphasis added)

58. This is consistent with, though not conclusive of, the position in Ireland. In Mr. Justice Charlton’s book on Offences against the

Person, at p.296 it states that:

“Buggery is a felony at Common Law, the penalty for which was fixed by s.61 of the Offences against the Person Act,

1861”.

59. I respectfully agree with this dictum which cites in a footnote a statement to the same effect in O Síochán, The Criminal Law of

Ireland, 6th Edition (1977).

60. I do not regard the case of Norris v. The Attorney General [1984] IR 36 as authority for the contrary proposition. In that case,

the plaintiff sought a declaration that the provisions of s.61 and 62 of the Act of 1861 were inconsistent with the Constitution of

Ireland and had not been continued in force by Article 50. He did this apparently, on the supposition that it was these Sections which

criminalised buggery - see the judgment of O’Higgins C.J. at p.51. It appears to me that both the High Court and the Supreme Court

judgments proceeded on that supposition, because that is the way the case was pleaded.

61. McWilliam J. in the High Court referred to the statute of 1634, which is discussed in this judgment and concluded that:

“Whether there was such an offence at Common Law in Ireland prior to the enactment of 10 Chas. I Cap. 20, or not I do

not know. The opening passage of the statute with a reference to ‘the vice’ suggests that there was not, whereas the

absence of any indication of the Acts required to constitute the offence suggests that there was.”

62. I regard this case as inconclusive at best, considered as an authority on the question of whether the offence of buggery was one

contrary to statute or one contrary to Common Law.

A Precedent

63. Moreover, the wording of s.61 is for practical purposes indistinguishable from the wording of other provisions of the same statute,

e.g. s.47, which relate to the offence of common assault and of various forms of aggravated assault. That is to say these offences

are not expressly created by the statute but a penalty is provided for them. But these offences have always been regarded as

offences at Common Law and that was confirmed by this Court in its decision in DPP v. Grealis, cited below. Moreover, it is plain from

the report in that case that the offence of assault occasioning actual bodily harm, to which s.47 relates, was not simply found by the

Court to be a Common Law offence but had previously been described as such by the legislature in the statute bringing about its

abolition.

64. We have seen, above, that the Notice Party in this case is charged with two counts of indecent assault. This is described by the

Director of Public Prosecutions as being an offence contrary to Common Law and is described in the charges brought by the Director

in this very case. Nevertheless, the offence of indecent assault is the subject of s.52 of the Act of 1861 and is in terms virtually

indistinguishable from s.61, which relates to buggery. This Section, insofar as relevant, reads as follows:

“Whosoever shall be convicted of any indecent assault upon any female… shall be liable at the discretion of the Court to

be imprisoned for any term not exceeding two years, with or without hard labour.”

65. Since the offence of indecent assault is concededly an offence at Common Law, it appears to me perverse to argue that the

offence of buggery, in relation to which the very previous Section of the same statute is in indistinguishable terms, is other than an

offence at Common Law.

66. Accordingly it appears to me that if one is to construe the words of the statute in their ordinary and natural meaning, and

consistently with the way in which indistinguishable Sections have been authoritatively construed, and to follow Grealis, one must

necessarily regard the offence of buggery as an offence at Common Law and not a statutory offence.

67. On the hearing of this appeal the Attorney General and the Director of Public Prosecutions advanced the proposition that the

offence was perhaps both an offence at Common Law and a statutory offence. I am of the view that the offence, like other offences,

must be one or other of these things, and not both. The statutory scheme created by the Oireachtas for the prosecution of the

offence of buggery after it has been repealed or abolished itself distinguishes sharply between offences at Common Law and statutory

offences. This statutory framework lays down a distinction between the two which the Courts must accept and which would be

redundant if it were possible for an offence to maintain a dual existence in both categories.

Consequences of the Foregoing Finding.

68. Accordingly, the question arises as to whether the notice party can now be prosecuted in respect of the alleged offence. It

appears that if this Common Law offence is prosecutable at all, this is by reason of Section 1(2) of the Interpretation (Amendment)

Act 1997 (“the Act of 1997”).

A tabular summary of the foregoing position may be set out as follows:

1970 – 1993 Buggery is a Common Law offence- Notice Party vulnerable to prosecution.

1993 – 1997 Common Law offence of buggery abolished by statute. The absence of any transitional provisions created a

lacuna in the law. Notice Party cannot be prosecuted.

1997- Present Interpretation (Amendment) Act 1997 seeks to remedy this lacuna – Is the Notice Party once again

vulnerable to prosecution?

The Interpretation (Amendment) Act, 1997

69. Section 1 of this Act provides, in so far as is relevant, as follows:-

“(2) Where an Act of the Oireachtas repeals an offence which is an offence at Common Law, then unless the contrary

intention appears, any proceedings in respect of any such offence committed before such 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 may be imposed and carried out as if such offence at Common Law had not been 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”. (Emphasis added)

70. The state appears to have a logical difficulty in relying on this section in the present case. It applies to offences at common law

and the notice party has not been charged with such an offence, but with an alleged statutory offence, contrary to s. 61 of the Act

of 1861.

Grealis v. D.P.P.

71. The Supreme Court considered the scope of the Act of 1997 in Grealis v. Director of Public Prosecutions [2001] 3 I.R. 144. This

case is not of binding effect to the present one, as the criminal proceedings in Grealis were instituted before the Act of 1997 came

into force. But there are aspects of the case which are of relevance to a consideration of the nature and effect of the Act of 1997.

The Grealis case concerned, in part, an offence contrary to s.47 of the Offences against the Person Act, 1861. This provided as

follows:

“Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm, shall be liable, at the

discretion of the Court, to be kept in penal servitude for a term of three years or to be imprisoned for any term not

exceeding two years”.

72. One hundred and thirty-six years later, the Non-Fatal Offences against the Person Act, 1997, by s.28(1) provided:

“The following Common Law offences are hereby abolished -

(a) Assault and battery,

(b) Assault occasioning actual bodily harm,

(c) Kidnapping and

(d) False imprisonment.”

(Emphasis added)

73. Against that statutory background this Court held that the offence of assault occasioning actual bodily harm was a Common Law

offence, the statute merely providing the penalty. It is clear from the wording of the Act of 1997, quoted above, that the Oireachtas

were also of the view that the offence of assault occasioning actual bodily harm was a Common Law offence because the legislatures

so described it in the Non-Fatal Offences against the Person Act.

74. On the hearing of this appeal it was strongly argued by the applicant that, having regard to the structural similarity of s.61 of the

Offence against the Person Act, 1861 with s.47 of the same Act that, by parity of reasoning, the offence created by s.61 must

likewise be regarded as a Common Law offence.

75. The applicant in Grealis was alleged to have committed acts of assault contrary to the Common Law on the 4th and 11th May,

1997. The Non-Fatal Offences against the Person Act came into force on the 19th August, 1997. As mentioned above, this statute

abolished what it described as the Common Law offence of assault and provided for the creation of new statutory offences. However,

just like the Act of 1993, the Non-Fatal Offences against the Person Act 1997 failed to provide any transitional provisions in respect

of any Common Law offence alleged to have been committed prior to its coming into force. In September, 1997, prior to the

introduction of the Interpretation (Amendment) Act 1997, proceedings were initiated against Mr. Grealis in respect of the alleged

assaults, said to have occurred in May, 1997.

76. The Supreme Court found that no proceedings in respect of the alleged assaults could be instituted against the applicant after

the 19th August 1997, when the Common Law offences ceased to exist, without any specific transitional provisions being provided.

The Court allowed the appeal of the state against the finding of the High Court that the Act of 1997 was unconstitutional, subject to

the determination that the Act applied prospectively only.

77. In legal terms, the significant difference between Grealis and the instant case is the date on which the prosecution against the

accused was initiated. In both cases the alleged acts were offences against the Common Law when committed, but the relevant

Common Law offences, assault and buggery respectively, were subsequently abolished by statute. In Grealis the prosecution was

initiated prior to the introduction of the Act of 1997 on 4th November, 1997 and so could not be maintained. In the instant case the

prosecution was initiated after its introduction. Does that make a significant difference?

78. In my judgment in Grealis I said (at p. 200):-

“It may be desirable to point out that this judgment does not address the position of allegations of assault occasioning

actual bodily harm which have taken place before the operation of the repealing provision of the Non-Fatal Offences

Against the Person Act, 1997 in respect of which a prosecution was initiated after the coming into operation of the

Interpretation (Amendment) Act, 1997. Such a prosecution would not appear to be affected by the prohibition of

retroactive penal legislation contained in Article 15.5 of the Constitution since assault occasioning actual bodily harm was

a criminal offence at the material time. Whether the Interpretation (Amendment) Act, 1997, would operate to allow such

a prosecution having regard to the repeal, and to the provisions of the Act intended to preserve the constitutional rights

of persons, is something which will have to be decided in another case on whose facts the issue is properly raised”.

79. This is that “other case” on whose facts the issue is properly raised. That fact should in itself be a warning to draftsmen of

legislation intended to apply to criminal matters that, given a little time, almost every conceivable factual situation will occur, and

very likely much sooner than one would think. This prospect should be considered when the Act is being first drafted, and not merely

when an emergency later arises, sometimes leading to botched repair jobs.

80. Had the Act of 1993 contained a specific saver provision in similar terms to the general saver provision eventually provided in the

Act of 1997, it is clear that a prosecution against the notice party could have been instituted. As Keane C.J. noted in Grealis, at p.

155:-

“it is perfectly competent for the legislature to provide in the repealing statute that it is not to affect crimes alleged to

have been committed before it was enacted.” (Emphasis added)

But this was not done.

81. Equally, had the offence of buggery been abolished after the Act of 1997 came into force there would be no difficulty in

instituting a prosecution against the notice party. This is because the right to prosecute the offence would simply have been

continued, as opposed to allegedly revived.

82. This distinction has also been found significant in the U.S. and Canadian cases considered below.

The Net Question

83. In light of the foregoing, the question which now arises is whether section 1 of the Act of 1997 applies in the present case so as

to revive the ability to prosecute the notice party for buggery. This issue is not said to arise at all in relation to the charges of

indecent assault which, subject to changes in nomenclature, has subsisted as an offence at least since 1861.

84. It is necessary again to note the very downright terms in which the Act of 1993 repealed any prohibition on buggery. It will be

recalled that the measure provided as follows, at section 2:

“any rule of law by virtue of which buggery between persons is an offence is hereby abolished”.

85. This could not be clearer: buggery between persons, on the passage of the Act of 1993, ceased to be an offence. The statute

providing the penalty was expressly repealed by the Act and the phrase “any rule of law” is quite broad enough to encompass any

Common Law offence. As a matter of history, there is no doubt that buggery had been an offence at Common Law since time

immemorial. But times change.

86. It is a general rule of statutory construction that, presumptively, statutes operate prospectively and not retrospectively. This

must be distinguished from the cognate but distinct rule, now given constitutional force by Article 15.5 of the Constitution, that a

person cannot be prosecuted for an action which was not an offence in law at the time of its commission.

87. The effect of the Act of 1993, then, was to end the status of buggery between persons as an offence. The Act of 1993 was

quite simply phrased in this regard and contained no provision whatever in respect of offences of buggery which had been committed

prior to its enactment but had not then been prosecuted. That is, it contained no transitional provision at all.

88. When this position at last came to be addressed by the Oireachtas in the Act of 1997, the measure was couched in general

terms. It did not, therefore, interfere with the position whereby buggery was no longer an offence. But it provided at s. 1(2) that:

“any proceedings in respect of any such offence committed before such repeal of any such offence at Common Law may

be instituted, continued or enforced as if such offence at Common Law had not been repealed”.

89. This, frankly, is the sort of legislative provision which exposes the law to ridicule. Buggery between persons has been abolished as

an offence. To be precise, “any rule of law” whereby it was an offence has been “abolished”. But, it seems from s.1(2) of the Act of

1997, that a prosecution for such an offence may be instituted “as if” the “rule of law whereby buggery between persons is an

offence” had not been abolished. In fact it had been abolished, but the defendant is, according to the State, exposed to the risk of

life imprisonment on a statutory hypothesis (“as if”) that this had never taken place.

90. This counter-factual condition can only be met on the basis of attributing to the Oireachtas a power to create a criminal liability

in the very vaguest and most unspecific language. So startling an attribution calls to mind the method of construction denounced in a

memorable judgment by the great Welsh Judge, Lord Atkin, in Liversidge v. Anderson [1942] A.C. 206.

91. But the extraordinary features of the Act of 1997 do not end there. The provisions of the last subsection of that section will be

recalled:

“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”.

92. This section is of a complexity and, more important, of a degree of uncertainty, which would baffle even the most enthusiastic or

concerned of readers. The combined effect of subsection (1) and (4) would appear to be as follows: since buggery was a Common

Law offence by virtue of a “rule of law” which has been “abolished” in 1993, a prosecution for it may be instituted and maintained, at

any time after 1997, only by virtue of section 1 of the Act and notwithstanding the unaffected “abolition” of the rule whereby

buggery between persons is an offence. But this shall not be so if it would “conflict with the constitutional right of any person” in

which case the section shall not apply so as to cause such conflict but shall otherwise “be of full force and effect”.

93. It appears to me that this is a state of the law which makes absolute nonsense of the presumption that every citizen is presumed

to know the law. A citizen of ordinary intelligence who consults the statute book will learn, in language which everyone can

understand, that any rule of law “by virtue of which buggery between persons is an offence” was “abolished” in 1993. But that is the

last clarity he will encounter. If he is lucky enough to chance upon the Act of 1997, which makes no express reference to buggery, he

will find, in much more convoluted language, a provision that, notwithstanding the Act of 1993, a prosecution may be initiated for a

Common Law offence and not a statutory one, as was actually charged in this case. He may possibly discover (although learned

judges have differed on the topic) that buggery is a Common Law offence. Viewed in this light, s.1(2) of the Act of 1997 appears to

mean that a prosecution may be initiated for any buggery between persons, whether homosexual or heterosexual, married or single,

consenting or otherwise so long as it occurred prior to 1993. But if he persists to read s.1(4) he will learn that this is not in fact so if,

but only if, its being so would conflict with anyone’s constitutional rights.

94. This is a state of considerable obscurity and uncertainty, to say the very least. For example, is a person who committed a

consensual Act of buggery with another adult in 1992 now liable to prosecution, or not?

95. If, to speculate for a moment, it was the intention of the legislators in 1993 to decriminalise only consensual buggery between

adult persons, homosexual or heterosexual, and married or single, they could of course have said so. But they did not say so. They

said something entirely different: they said that they were decriminalising all buggery between persons. This includes buggery with

persons who are minors. This fact, and the later unwillingness to state (if it were the case) that a dreadful mistake had been made in

1993 due to the inadvertence of the draftsman or the legislators has led to the extraordinary vagueness and complexity with which

we are now confronted.

Role of the Court

96. It must be clearly understood that the Court is not entitled simply to form its own view on the extent to which buggery between

persons should be a prosecutable offence and somehow read that view into the statute. On the contrary, the Court must regard as

irrelevant the fact that its members might consider that no repeal at all, or a less comprehensive repeal than that actually contained

in the Act of 1993 would have been a better policy: that is not a matter for the Court but for the legislators. Moreover, the Court

must presume that the legislators intended to enact a provision with the content expressed in the ordinary and natural meaning of the

words they have in fact enacted. If they now have second thoughts about what was enacted, that is a matter for them and is best

cured, if it is desired to cure it, by a new measure in simple and straightforward language.

Authorities

97. I am not aware of, nor was there cited to us, any authority bearing directly on the question at issue in this case. It was agreed

between the parties, however, that the case did not directly implicate the prohibition on retroactive penal legislation contained in

Article 15.5 of the Constitution. It was also agreed, if I understood it correctly, that the presumption that a statute operates

prospectively only applies to substantive law, and not to matters which are purely procedural.

98. The closest analogy, in my view, to the facts of the present case, apart from Grealis (cited above) is with the American case of

Stogner v. California 539 U.S. 607 (2004). There, two sisters had in 1998 during the course of investigations into child abuse, alleged

that their father, Stogner, had abused them between the years 1955 and 1973. At each of those dates, the Californian statute of

limitations provided for a three year limitation period. This period had expired twenty-two years prior to the indicting of the appellant.

However, political agitation in the mid-1990s led to a statute reviving criminal causes of action barred by the previous statute of

limitations. This was referred to as s.803(g). As a result of it, the appellant was charged. He moved to have the prosecution case

struck out on the ground that the due process clause and the ex post facto clause in the U.S. Constitution were violated. This latter

is Article 1, Section 9 of the U.S. Constitution which provides that:-

“no bill of attainder or Ex Post Facto law shall be passed”.

99. This argument succeeded in the trial court but was reversed by the State Court of Appeal on appeal by the prosecution. But the

U.S. Supreme Court granted certiorari and delivered judgment on the 26th June, 2003. The Court held:-

“A law enacted after the expiration of a previously applicable limitations period violates the ex post facto clause where it

is applied to revive a previously time barred prosecution. California’s law extends the time in which the prosecution is

allowed, authorises prosecutions that the passage of time has previously barred, and was enacted after prior limitation

periods for [Stogner’s] alleged offences had expired.”

100. This was because:-

“The law at issue here created a new criminal limitations period that extends the time in which prosecution is allowed. It

authorised criminal prosecutions that the passage of time had previously barred. Moreover, it was enacted after prior

limitation periods for Stogner’s alleged offence had expired. Do these features of the law, taken together, produce the

kind of retroactivity that the Constitution probids? We conclude that they do.”

101. It will be observed first, that the United States Supreme Court regarded an alteration in the limitation period, at least where the

time limited had already expired at the time of the alteration, as a substantive, and not a procedural, measure.

102. Secondly, the Court focussed, quite narrowly, on the period immediately before the passing of the new law extending the period

for prosecution. Technically, a large part of the majority judgment turned on an exegesis of the much earlier Supreme Court judgment

of Calder v. Bull 3 U.S. 386 (1798). This was a decision of Chief Justice Chase and the Court in Stogner held that what had been done

by the Californian legislature in enacting s.803(g) fell within Chase C.J.’s condemnation of “every law that aggravates a crime, or

makes it greater than it was when committed” and fell within the condemnation of laws which “inflict punishments where the party

was not, by law, liable to any punishment,” (that is, he was immune immediately prior to the new law).

103. The judgment of the Court in Stogner was given by Breyer J., with whom Stevens, O’Connor, Souter and Ginsburg JJ. joined.

They adopted the language of Chief Justice Chase who held that the ex post facto clause prevented governments from enacting

statutes with “manifestly unjust and oppressive” retrospective effects. They also followed Judge Learned Hand who wrote that

extending a limitation period after the State has assured “a man that he has become safe from its pursuit seems to most of us unfair

and dishonest” (Falter v. U.S. 23F. 2d 420 upheld in (1928) 277 U.S. 590). In such a case, said the Court, the government has

refused ‘to play by its own rules’ (Carmell v. Texas [2000] 529 U.S. 513). The Court held that the offence as it existed prior to 803(g)

had been “aggravated” in the sense that, and to the extent that, it inflicted punishment for past criminal conduct that, immediately

before the new law was enacted, did not attract any such liability.

104. Because it clearly influenced the Court in Stogner, and because of the pre-eminence of Judge Learned Hand, I quote the

relevant portion from Falter, cited above:-

“The crime was committed in 1919 and 1920, at a time when the period of the statute of limitations was three years. In

November, 1921, the proviso was added by which the period was extended to six years in the case ‘offences involving the

defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not’. The

application of the proviso to the case at bar being clear from its last sentence, the defendants argue that the amendment

is ex post facto legislation. Perhaps they would be right if the earlier statute had once run in their favour. But the period

had not run, and the argument is, and must be, that any change after the commission of the crime, and while time is

still running, is within the constitutional prohibition. It is a little curious that the only case we can discover is Com. v.

Duffy, 96 Pa. 506 though there are dicta in accord [elsewhere]. In Mallett v. North Carolina 181 U.S. 589 it was held that

the allowance of an appeal to the prosecution was constitutional and Bazell v. Ohio, 269 U.S. 167, laid it down generally

that the question was one of degree and depended on whether the result was ‘harsh and oppressive’. Certainly it is one

thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon

how much violence is done to our instinctive feelings of justice and fair play. For the State to assure a man that he has

become safe from its pursuit and thereafter to withdraw its assurance, seems to most of unfair and dishonest. But, while

the chase is on, it does not shock us to have extended beyond the time first set, or, if it does, the State forgives it.”

(Emphasis added)

105. On these principles, it would have been quite possible to put a transitional provision into the statute of 1993, which affected the

abolition of the Common Law crime of buggery, just as it was permissible in Falter to extend the time “while the time originally limited

was still running”. But that was not done, for reasons never explained.

106. The issue plainly divided the United States Supreme Court quite radically. There was in Stogner an eloquent dissent delivered by

Kennedy J. in which Rehnquist C.J., and Scalia and Thomas JJ. joined. A significant part of both the majority and the minority

judgments consists of an extremely critical analysis of the other. Kennedy J. also pointed out, at p.653 that 803(g) contained “an

additional safeguard for defendants in revived historical prosecutions”:

“It conditions prosecution on a presentation of independent evidence that corroborates the victim’s allegation by clear

and convincing evidence”.

107. In Ireland, of course, all mandatory requirements for corroboration, or for the Judge to give a corroboration warning, have been

abolished by statute even in the case of very old offences.

108. I have observed above that the United States Supreme Court’s opinion is heavily reliant on a focus on the circumstances of the

time the new law was passed on the one hand and those prevailing at the time immediately before that on the other. This is a

different focus to the alternative one which focuses instead on the time the new law was passed by comparison with the time the

offence was allegedly committed. In the American example the “new law” was s.803 (g); here it is the Interpretation (Amendment)

Act 1997, passed on the 4th November of that year. The “time immediately prior” focus significantly is that adopted in the Irish

Interpretation Act, 1937.

109. Falter was a case where the time was extended before the statute ran. An attempt to do so after that time, more analogous to

the present case, was found in the fairly recent Canadian case of R. v. Ford (1993) 15 O.R. (3d.) 173 (C.A.). There the appellant was

charged with a number of counts of prostitution related offences. At the time the alleged offences were committed (1985) the

relevant legislation provided a statutory limitation period of one year. A subsequent enactment removed the limitation period with

effect from the 1st January, 1988. This change took place after the one year limitation period had expired. The question to be

decided was whether the appellant, who could not be prosecuted for the offence because a statutory limitation period had run, could

be prosecuted for the same offence if the statutory limitation period that protected him was subsequently repealed.

110. In the Ontario Court of Appeal, Krever J.A. summarised the issue as follows:

“The appellant was vulnerable to prosecution from November, 1985 to November, 1986. From November, 1986 until

January 1, 1988, because of the expiry of the one-year limitation period he was immune from prosecution for the acts

with which we are concerned. Was the effect of the repeal on January 1, 1988, of the one-year limitation period, that the

appellant lost his immunity from prosecution or, to put it another way, that he again became vulnerable to prosecution

after January 1, 1988?”

111. The Court stated that if the prosecution’s position that the accused could now be prosecuted was correct, then:

“the legal effect of the repeal of the limitation period on January 1, 1988 was to create a criminal liability that did not

exist a moment before the enactment of the repeal.” (Emphasis added)

112. I agree with this conclusion and would apply it in the present circumstances as a matter of Irish Common Law. The result of this

is that if the section one of the Act of 1997 permits prosecution for breach of the rule of law whereby buggery between persons was

an offence, as and from the 4th November, 1997, then it created a criminal liability which did not exist a moment before its

enactment.

113. The Canadian Court cited the U.S. authority, Corpus Juris Secundum (s. 224) to the effect that “the accused cannot be

deprived of a defence which has become complete” and held that:

“the appellant acquired a freedom from vulnerability to prosecution in respect of the offences in 1985 - no small

acquisition. That which he acquired, without express language to that effect, could not be affected or removed by the

repeal in 1988 of the limitation period”.

114. Both the American and the Canadian cases cited above deal with limitation periods and not with what happened in this case: the

more radical “abolition” of the very rule said to constitute the offence, followed by the later conferring of a right to prosecute for the

offence subject to certain conditions. But these two situations can be regarded as analogous. The day before the new law was

passed, whether it was a law extending a limitation period or a law reviving a right to prosecute for an abolished offence, the

defendant was not “vulnerable to prosecution”. At some stage in the following day, in each case, he became so vulnerable. This to

my mind is a very strong analogy and makes the American and Canadian cases useful precedents.

Irish Common Law & Constitutional Rights

115. In the next portions of this judgment, I explore the extent to which the principles which were the foundation in the North

American cases cited above find a place in Irish constitutional law. For example, it appears well settled in our law that the

presumption that a statute operates prospectively only applies to statutes which make a substantive alteration in the law and not to

statutes which are purely procedural in their content. Secondly, I explore the requirements of our law in relation to the creation of a

criminal offence and conclude that clear and specific language is necessary for the creation of a criminal liability. I consider that this

requirement is of a constitutional nature and rely for this conclusion on the authorities cited below. I conclude from that that it is a

constitutional imperative that a statute creating a criminal liability should be clear, certain and specific and that the liability should be

expressed without ambiguity. I am also of the view that a statute creating, by revival or otherwise a criminal liability must be such

that a citizen in no uncertainty, or be able to find out without undue trouble or research what precisely is criminalised and what is

not. This proposition too is based on the authorities cited below.

116. I conclude that the oblique and vaguely phrased attempt to revive a criminal liability for the offence of buggery committed prior

to 1993 fails in all these regards.

Substantive or Procedural?

117. On the basis of the two authorities just mentioned, neither of which of course are binding on us, and of the cases reviewed in

them, I would conclude that in 1993 the notice party acquired an immunity from prosecution in respect of an act committed in 1970

or 1971. If the effect of the Act of 1997 is to remove this immunity and once again make him vulnerable to prosecution, it cannot be

said that it is merely procedural in nature. On the contrary, a statute having this effect is a statute creating a new criminal liability

which had been “abolished”, by reviving the right of prosecution against the notice party. But there can be no prosecution except for

breach of a law, which in this instance is the Common Law against buggery, “abolished” in 1993.

118. This case was mainly argued by addressing the question of whether the notice party’s constitutional rights would be violated if

the cause of action against him were revived. But this question is hypothetical unless the cause of action against him is in fact

revived. I propose therefore first to address the question of whether the Act of 1997 is effective to create a criminal liability in a

person who, immediately before its enactment, had no such liability because the action he is alleged to have committed had been

expressly decriminalised, without qualification, some years before.

Criteria for the Creation of a Criminal Liability.

119. No action can be considered criminal unless there is a law which constitutes it a criminal offence. This is a fundamental principle

of the Common Law, anciently expressed in the maxim nullum crimen sine lege. This principle has been endorsed on innumerable

occasions by our courts and is treated as a constitutional value in the 4th edition of J.M. Kelly: The Irish Constitution, Hogan and

Whyte eds., (Dublin, 2003). There, at p. 1050 it is said:-

“The principle that no one may be tried or punished except for an offence known to the law is a fundamental element in

the Irish and Common Law systems and an essential security against arbitrary prosecution.”

120. It is also there treated as an incident of trial in due course of law. It is also treated in that way, I believe, in the judgment of my

colleague Denham J. (as she then was) in Grealis, quoted below.

121. Thus viewed, it is hard to reconcile with the concept of a trial for an offence which has been “abolished”. According to the

Oxford English Dictionary, 1993 edition, the term “abolish” comes from the Latin “abolire”, to destroy, and the English meanings given

to the word are:-

“Put an end to, annul, demolish, destroy”.

122. The most recent treatment of the principle, nullum crimen sine lege is to be found in The People (Director of Public Prosecutions)

v. Cagney [2008] 2 I.R. 111. There it is said at pp. 121 to 122:-

“From a legal and constitutional point of view, it is a fundamental value that a citizen should know, or at least be able to

find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful”.

123, Thus, in Attorney-General v. Cunningham [1932] I.R. 28, O’Byrne J. said at p. 32 in the Court of Criminal Appeal:-

“The offence as charged in the indictment is one of maliciously firing into a dwelling-house and it seems to us that the

proper question for our determination is whether that is, at Common Law, an indictable offence. In considering that

question the court must have regard to the fundamental doctrine recognised in these Courts that the criminal law

must be certain and specific, and that no person is to be punished unless and until he has been convicted of an

offence recognised by law as a crime and punishable as such.” (Emphasis added)

124. Equally, in King v. The Attorney General [1981] I.R. 233, [often referred to as the Vagrancy Act case] Kenny J. said at p.263:-

“It is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be

convicted only of offences which have been specified with precision by the judges who made the Common Law, or of

offences which, created by statute, are expressed without ambiguity in my opinion both the governing phrases [in the

Vagrancy Act] ‘a suspected person’ and ‘reputed thief’ are so uncertain that they cannot form the foundation for a

criminal offence.” (Emphasis added)

125. In D.P.P. v. Flanagan [1979] I.R. 265 at pp. 280 to 281, Henchy J. said:-

“It is, in my view, a cardinal principle in the judicial interpretation of statutes that the range of criminal liability should not

be held to have been statutorily extended except by clear, direct and unambiguous words. If the lawmakers wish to

trench on personal liberty by extending the range of the criminal law, they may do so, within constitutional limitations; but

an intention to do so should not be imputed to them where the statute has not used clear words to that effect. No man

should be found guilty of a statutory offence when words of the statute have not plainly indicated that the conduct in

question will amount to an offence. The requirement of guilty knowledge for the commission of the offence pre-supposes

as much.”

126. I am concerned about three separate aspects of the basis on which, in the prosecution’s view, the prosecution of the notice

party for buggery can be supported.

127. Prior to 1993 there was but one offence of buggery. It was a Common Law offence and it did not distinguish between

homosexual or heterosexual buggery, between buggery with or without consent, or buggery with a person over, as opposed to under,

the age of consent. So buggery was a crime tout court, and the fact, for instance, that it was committed consensually between

heterosexual married persons of full age, made no difference to that. Specifically, there was no distinction in law between buggery

between persons, one of whom was below the age of consent, and a situation where both parties were above the age of consent: all

buggery was illegal so these distinctions were irrelevant to the constitution of the offence.

128. When, in 1993, the offence was “abolished” by s.2 and 14 of the Act of that year, s.3 made specific provision criminalising the

offence of buggery with underage persons. But that was a new statutory offence and, in accordance with the principles already

mentioned in this judgment, could only operate prospectively and therefore had no relevance to alleged offences of buggery said to

have taken place decades earlier. My first concern in this case is as to whether the Common Law offence “abolished” by the Act of

1993 can “form the foundation for” this prosecution at all. It has been abolished, annulled, destroyed, and put an end to, and was in

that strongly expressed state of non-existence when the Act of 1997 was passed. It is not clear to me how this latter Act can

mandate a prosecution for it when the offence itself no longer exists and no attempt has been made to revive it.

129. It may however be unnecessary to resolve the foregoing issue. I also have the gravest doubts as to whether s.1(2) of the Act

of 1997 is in language sufficiently certain to “form the foundation for a criminal offence”, to borrow once again the phrase of Kenny J.

in King v. The Attorney General, cited above.

130. If criminal liability for buggery is revived by s.1(2) of the Act of 1997 then it would appear to be revived in its entirety. Section

1(2) speaks merely of “an offence which is an offence at Common Law” and does not refer at all to buggery specifically. Therefore, if

its effect is to revive “an offence which was an offence at Common Law” i.e. buggery, it revives it in its original Common Law scope

and not in any cut down version. Accordingly, if we are to interpret s.1(2) as reviving the Common Law offence of buggery then it is

revived whether committed between man and man, or between man and woman, and even if it is committed with full consent, and

even if it is committed between married persons. Is this really intended?

131. Such a revival would be a truly dramatic development. It would place Ireland in the position where buggery would appear to be

revived in all its former terrifying scope and persons whose predilections had been decriminalised following the Dudgeon and Norris

cases (cited above) might again be within the scope of the criminal law. In the argument in this case, no attempt was made to

suggest that the State would not in practice prosecute such persons, as was done in certain recent litigation in the United Kingdom.

Indeed, who could so stipulate?

132. I would decline to construe s.1(2) of the Act of 1997 as reviving the offence of buggery so as to make it now prosecutable,

firstly because to do so would expose to prosecution persons whom there is every reason to believe the legislators intended to

exempt. I believe that it could - and I say no more than that - breach both the Constitution and the European Convention on Human

Rights to treat these people as having committed a criminal offence, having regard to the terms of the Dudgeon and Norris decisions.

These are persons, homosexual or heterosexual, who engaged in consensual buggery prior to 1993.

133. To this it may be objected that the State would in practice probably not prosecute anyone for consensual buggery between

persons of full age. I do not consider that as proved or as a reason capable of justifying the Supreme Court in reviving an offence

which is now unconstitutional.

134. In any event, the State, on the hearing of this appeal, offered no assurance whatever in this regard.

135. It may further be objected that the case against the notice party, which gives rise to the present appeal, is not a case of

buggery between adults but a case of buggery with a minor. This is a form of conduct which the Oireachtas has always, at any time

when it specifically considered the subject, declared to be unlawful.

136. Under the ordinary rules of standing, this point would have a decisive force. But it appears to me that the ordinary rules of

standing do not apply in this case because of the terms of s.1(4) of the Act of 1997. This provides:-

“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 provision 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”. (Emphasis added)

137. This subsection appears to require a consideration of the constitutional rights, not merely of the notice party but of “any

person” whatsoever. It is for that reason that I feel constrained to consider the rights of all persons who might be affected by the

revival of the offence of buggery as it stood prior to 1993.

138. Secondly, I do not consider the wording of s.1 of the Act of 1997 as clear and specific enough to be the foundation of a criminal

liability, having regard to the authorities quoted above and to the values on which they are grounded. I do not consider the words

sufficiently “clear direct and unambiguous” to extend the range of criminal liability, to adopt the language of D.P.P. v. Flanagan,

above.

139. Thirdly, I do not accept that the revival of criminal liability in the year 1997 in respect of an offence “abolished” in 1993, is in

any way consistent with due process, or that it is capable of giving rise to a trial in due course of law. The American and Canadian

cases cited above are suggestive of my reasons for this position. However the most direct authority is the dictum of Denham J. in

Grealis, cited above, with which I respectfully agree. I rely in particular on the following passage (at pp. 187 to 188:-

“Section 1, sub-ss. (1), (2) and (3) [of the Act of 1997] are blanket provisions covering prosecutions of prior Common

Law offences. Section 1(4) protects individuals from the said law infringing their constitutional rights. Whether it is a

sound method of drafting statutes or not, it is the method chosen by the legislature. Thus, the relevant court has a duty

under s.1(4) of the Interpretation (Amendment) Act, 1997, to determine whether the operation of s. 1 sub-s.(1), (2) or

(3) conflicts with the constitutional rights of the individuals before the court.

Before the summonses were issued in this case the offences were abolished under the Non-Fatal Offences Against the

Person Act, 1997. The actions were an offence when they took place. However, after the offence was abolished by an

Act which did not provide for any transitional arrangements, the applicant was in a situation where he was not liable for

his actions as being an offence. This situation continued until the purported change in the law effected by the

Interpretation (Amendment) Act, 1997, on the 4th November, 1997. That Act purported to retrospectively introduce law

so as to reintroduce liability for the acts of the applicant.

Section 1(4) of the Interpretation (Amendment) Act, 1997, protects the rights of the applicant. A purported validation

retrospectively of the law may be a breach of the Constitution. An application retrospectively of s. 1 of the Interpretation

(Amendment) Act, 1997, would conflict with the applicant’s constitutional right to be tried for an offence at law, in due

process of law, in circumstances where the actions had ceased to be an offence and so remained at the time of

the issuing of the summonses. A vacuum was created at which time the actions were no longer an offence under the

law. A lacuna was left by the legislature. Any prosecution of the applicant after the abolition of the offence and prior to

the coming into effect of the Interpretation (Amendment) Act, 1997, was a nullity. A purported validation retrospectively

of the new law would be a breach of the rule of law, due process and fundamental constitutional principles [The

Interpretation (Amendment) Act, 1997] is an Act which, in accordance with constitutional principles, applies

prospectively”. (Emphasis added)

140. I respectfully agree with these sentiments as applying to the present case although they may possibly have been obiter in the

context of Grealis. Here, too, the notice party, as a result of the Act of 1993, “was in a situation where he was not liable for his

actions as being an offence”. Here, too, this “situation continued until the purported change in the law effected by the Interpretation

(Amendment) Act 1997 on the 4th November, 1997”. I agree also that “that Act purported to retrospectively introduce law so as to

reintroduce liability for the acts of the [notice party]”. I further agree that this situation would “conflict with the [notice party’s]

constitutional right to be tried for an offence at law, in due process of law”.

141. The offence of buggery is not “an offence at law” or an offence known to the law, because any rule of law whereby buggery

between persons was an offence has been “abolished” since 1993. The clumsy and rather glib attempt to revive liability for the

offence if committed before 1993 appears to me simply to ignore the non-existence of any offence of buggery. A trial at which

criminal liability was sought to be imposed in respect of this non-existent offence would not in my view be a trial in due process of law

by reason of the striking lack of specificity in s.1 of the 1997 Act. There has simply been a failure to think through the consequences

of this form of legislation. Does it revive liability for the offence of buggery in the scope which that offence had prior to 1993? If so,

for the reasons set out above, I believe such revival to be an unconstitutionality, and a breach of the State’s international

obligations. But if it does not revive the offence in its former scope, what is the scope of the revived liability? I do not believe that

that question can be answered on the wording of the statute. What is the meaning of subsection (4), with specific reference to

buggery? This seems to me to be entirely imponderable, and incapable of precise answer.

142. A liability to prosecution as vague as the one allegedly based on s.1) in my view wholly lacks the “foundation of a criminal

offence”, to borrow the language of Kenny J. in King v. Attorney General, cited above.

143. I do not consider that the principal difference between this case and Grealis, the fact that in the latter case the proceedings

had been instituted prior to the Act of 1997, is a significant distinction. In each case, the Act is required to operate so as to revive

the power to prosecute for an alleged criminal action which the legislature had repealed or “abolished”. I do not think that the revival

of a right to prosecute etc. has any legal effect unless the offence is revived; I do not think the wording of subsection of the Act of

1997 is sufficiently “clear and precise” to do this and I do not think that a trial mandated for an offence which was abolished or put to

an end is a trial in due course of law.

Points specific to the Present Case

144. It will be noted that the case put forward by the State on this appeal, with its almost exclusive emphasis on s.1 of the Act of

1997 as the engine permitting prosecution, is at variance with the case advanced against the notice party in the District Court.

There, the offence of buggery was charged “contrary to s.61” of the Offences against the Person Act 1861. Since buggery was, prior

to its “abolition” a Common Law offence it is plain that the charge in this regard preferred against the notice party cannot stand since

s.61 of the Victorian Statute was specifically repealed by s.14 of the Act of 1993. Accordingly, the learned District Justice had before

her a charge alleging an offence unknown to the law and I would not interfere with her order on the buggery charge.

145. As matters developed on the hearing of this appeal, it was argued on the basis that buggery was available as an offence for a

reason quite different to that put before the learned District Justice viz. that it was in fact a Common Law offence and was therefore

revived by s.1 of the Act of 1997. I would not uphold this contention for the reasons given above. But it is in any event quite

inconsistent with the basis on which the prosecution was advanced before the learned District Judge and cannot, in my view, affect

the order which she made.

146. I interpret the effect of the order of the District Court as being that the learned District Judge made “no order” in respect of

each of the three charges before her. I would decline to interfere with that order insofar as it related to the charge of buggery.

147. However, as mentioned above, the Notice Party at no time disputed the technical propriety of the two charges of indecent

assault and I would therefore quash the orders of “no order” in respect of each of these charges and remit the matter to the learned

District Judge to proceed in accordance with law. It is fair to point out that the Notice Party raised no objection to these charges

proceeding in the ordinary way at any time and that no expense in pleading, and no time of the Court, has been devoted to dealing

with these charges.