THE SUPREME COURT
Appeal No 14/2010
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Fennelly delivered the 8th day of February 2012.
1. This case presents an unusual problem arising from the effects of the abolition, by the Criminal Law (Sexual Offences) Act, 1993, of the offence of buggery. The Act of 1993 was enacted in response to the judgment of the European Court of Human Rights delivered on 26th October 1988 in Norris v. Ireland (1991) 13 E.H.R.R. 186. In that case, the European Court found that the State had violated the rights of the applicant by maintaining in force legislation which made it a criminal offence to commit the act of buggery between consenting adults. The Act of 1993 did not, however, contain any saving provisions in respect of acts of buggery committed prior to the introduction of the Act of 1993 on 7th July 1993.
2. The case comes to the Court by way of appeal from the judgment of the High Court (O’Keeffe J) dated 2nd December 2009 and the order of 17th December 2009 quashing the decision of the learned District Judge, Mary Devins, who had declined to make any order in respect of the prosecution of the above-named notice party/ appellant (hereinafter called “the Appellant”) on charges of buggery and indecent assault.
3. On 19th September 1997 the Appellant was arrested and charged with the following offences:
4. The Appellant was, at the time, a priest, holding the position of Dean of Studies in a secondary boarding school in the west of Ireland. The alleged victim was then a 13 year old male boarder at the school. The allegation is that the Appellant, under the guise of treating him for pain following sporting activity, invited him to his room, where he caused him to remove his clothes, massaged his genitals and anal area and committed buggery on him. Although similar activity is alleged to have taken place on more than one occasion, there is only one charge of buggery. The Appellant has denied the charges.
5. These matters came on for hearing before the Respondent, District Judge Devins, on 19th September 2007. The learned judge raised with the prosecuting member of An Garda Síochána the question of the validity of the charges, since the laws governing them had, she suggested, been repealed in their entirety. The events at that hearing and at an earlier hearing, where similar charges had been laid, are described in detail in the judgment which has been delivered by Hardiman J. Evidence of arrest and caution was given. After discussion with the prosecuting garda and the solicitor representing the Appellant and, having considered written submissions, the learned judge ruled that she would make no order. She said that she was not satisfied the charges were good or grounded in good law and that no argument had been opened to her to suggest that the charges were good. She said that she was not accepting the evidence of charge and caution which had been given earlier.
6. It is clear that the concern of the learned District Judge was that, in view of the repeal by the Criminal Law (Sexual Offences) Act, 1993 of section 61 of the Offences against the Person Act, 1861, the charges were not good in law. This repeal did not, however, on any view of the matter, affect the charges of indecent assault. Nonetheless, she declined to make any order in respect of any of the charges. The consequence of her ruling was that the prosecution could not continue.
7. On 19th November, 2007 the High Court granted leave to the applicant (hereinafter “the Director”) to apply for judicial review by way of an order of certiorari quashing the decision of the District Court to make no order in respect of the three charge sheets against the Appellant; and an order of mandamus requiring the Respondent to accept the evidence of arrest, charge and caution that was given on 19th September, 2007 and to proceed to deal with the three charges in the ordinary way.
8. In the High Court, as in this Court, the question of whether the prosecution of the Appellant can be permitted to continue depends on the resolution of two distinct but closely related questions. The first question is whether buggery was a statutory or a common law offence at the time of its abolition in 1993. If it was a statutory offence, it is not in dispute that, by virtue of section 21 of the Interpretation Act, 1937, any person can be prosecuted at any time after the passing of the Act of 1993 for an offence of buggery committed prior to its repeal. In that event, it is unnecessary to consider the consequences which would flow from its having had the character only of a common law offence. If, on the other hand, buggery was, contrary to what was held by the High Court, a crime at common law only, with the penalty being provided by statute, section 21 of the Act of 1937 does not apply. In this event, a second question arises: whether the prosecution can continue by virtue of the effect of section 1 of the Interpretation (Amendment) Act, 1997 which applies saving provisions in the case of the statutory abolition of a common law offence.
9. O’Keeffe J, having considered all the statutory and historical references submitted to the High Court, and following, in particular, the judgment of McWilliam J in the High Court in Norris v. the Attorney General  I.R. 36, held that the offence of buggery was a statutory offence when it was abolished in 1993 and not an offence at common law only.
10. The Criminal Law (Sexual Offences) Act, 1993 repealed and replaced the existing law relating to buggery. Section 2 provided that “any rule of law by virtue of which buggery between persons is an offence is hereby abolished;” Section 14 repealed the enactments specified in the Schedule, which included sections 61 and 62 of the Offences against the Persons Act, 1861. Thus, the language of the Act was comprehensive enough to cover and to repeal the offence of buggery, as it stood under the existing law, whether it was an offence at common law only or a statutory offence.
11. It should be noted, of course, that the Act of 1993 did not decriminalise buggery in all circumstances. In particular, section 3 of that Act provides for new criminal offences of buggery against persons under the age of 17.
12. It is common case that the repeal of an offence means that, in the absence of saving provisions, no prosecution can be brought for acts committed contrary to the repealed law, whether committed before or after the coming into effect of the repealing statute. Put simply, where a statute merely repeals a statute creating an offence or abolishes an offence at common law, no prosecution can be brought for the commission of that offence irrespective of whether the impugned act was committed before or after the repealing statute. In practice, however, this matter depends on transitional or saving provisions in the relevant Interpretation Acts. Section 21 of the Interpretation Act, 1937 contained saving provisions for the case of the repeal of statutes. Subsection 2 of that section provided:-
“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.” (Emphasis added).
13. That provision was in force at the date of the passing of the Act of 1993 and the date of the charging of the Appellant. While the Act of 1937 has since been repealed by the Interpretation Act, 2005 and section 21 has been replaced by section 27 of the latter Act, I believe the events relevant to the present appeal continue to be governed by the Act of 1937, because of the transitional or saving provision in section 3(2)(b) of the Act of 2005. Section 3(2)(b) provides:-
“The repeal by this Act of an Act which provides for any matter…… in another enactment does not affect the matter so provided for if—
the other enactment would be changed in intent or become unclear or absurd.
14. In view of the public importance of the case, the Court invited the Attorney General to make submissions. The Court has, therefore, the benefit of submissions on behalf of the Appellant, the Director and the Attorney General.
15. The High Court and this Court had occasion in the course of consideration of the constitutional claims made in Norris v Attorney General to review the legal history of the crime of buggery. Whether it originated in the common law of England or of Ireland or in statute was not a relevant issue so far as the constitutionality of the prohibition of buggery was concerned. Nonetheless, the judgments, and, in particular, the judgment of McWilliam J in the High Court, represent the only modern examination of the legal history of the offence which was abolished in 1993. It is not surprising, therefore, that the wide-ranging submissions presented to the Court by the parties and the Attorney General make reference, in one way or the other, to those judgments.
16. The Appellant maintains that buggery was historically and at all times in Irish law a common law and not a statutory offence and that the significance of the Act of 1861 was limited to the fact that it provided a penalty. This, it is submitted, is confirmed by the wording of section 61 of that Act:-
“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.”
17. It is argued that the section did not create the criminal offence or define its component acts. It presumes its existence and prescribes a maximum penalty. The Appellant cites the statements of several learned authors to the effect that the offence was a common law offence: “it is a felony at common law” (Ó Siocháin, The Criminal Law of Ireland, 6th Ed., (1977); “Buggery is a felony at common law the penalty for which was fixed by s 61 of the Offences Against the Person Act, 1861” (Peter Charleton, Offences Against the Person, (1992) at p. 296, para. 8.50)
18. The Director, supported by the Attorney General, submits that the offence was historically both a statutory and a common law offence and relies on the historical analysis contained in the judgment of McWillam J to the effect that it was statutory. He also cites Mr Tom O’Malley’s work on Sexual Offences, (Round Hall, 1996) at pp. 136-137) and the Law Reform Commission, Consultation Paper on Child Sexual Abuse (Dublin, 1989) stating that the offence was created by the Act of 1861. The Attorney General submits that the offence was a statutory offence prior to the enactment of the Act of 1861 and that it continued to be so after that date.
19. The parties have cited a wide range of dicta, not all of them consistent, from successive editions of Halsbury’s Laws of England. It has to be borne in mind that the Sexual Offences Act 1956 repealed the Act of 1861 in England, while there were no changes in our law on the topic until 1993. The first edition of Halsbury (1909), Vol. 1, para. 1091, stated:-
“It is a felony by statute to commit the abominable crime of buggery either with mankind or with an animal. The punishment for this offence is penal servitude for life or for not less than three years, or imprisonment with or without hard labour and for not more than two years.” (Emphasis added)
20. O’Keeffe J noted that the authors based the first proposition on section 61 of the Offences against the Person Act 1861. For what it is worth, therefore, the authors of the first edition of Halsbury were of the opinion that buggery was a felony by statute, the relevant enactment being the Act of 1861. For the second proposition, however, the authors stated:-
“This offence was probably first made punishable by the Common Law Courts by statute (1533 – 4, 25 Hen. VIII, c. 6(2) Stephen, History of the Criminal Law, 429). (See however 1 Hawk. P.C., c. 4). The punishment by 25 Hen. VII c. 6, and so it remained until the Offences Against the Person Act 1861, Section 61.”
21. The Appellant’s written submissions elaborate the distinction between unwritten law (lex non scripta) and written law (lex scripta) by reference to Blackstone and other renowned writers. However, the question is not whether buggery was historically a crime at common law. It probably was. What has to be decided is whether it was made a crime by statute and, more particularly, whether buggery was an offence contrary to statute at the time of its abolition by the Act of 1993.
22. The offence in the present case is laid as being contrary to section 61 of the Offences against the Person Act, 1861, which is set out above at paragraph 16.
23. The section itself is inconclusive on the question. It does not purport to create the offence and can be read as impliedly referring to the common law for the origin of the offence itself. Whether that is a correct reading obliges us to consider the law on the subject prior to 1861.
24. Buggery was first made criminal by statute in England in 1533 by the Act of 25 Henry VIII., cap. 6, which did not apply to Ireland.
25. It appears that prior to 1533 buggery was treated as an offence against religion and was triable in the ecclesiastical courts. Many of the text books treat it under the heading ‘Offences against Religion/ Ecclesiastical Offences’. Pollock & Maitland, The History of English Law, Vol. II, 2nd Ed., (Cambridge, 1911) state at p. 556 that it was “so closely connected with heresy that the vulgar had but one name for both”.
26. Although the Act of 25 Hen. VIII did not apply to Ireland, and has long since been repealed in England, that Act forms an important part of the history of the offence. Its provisions were, as we shall see, effectively re-enacted in an Irish Act of a century later. The statute passed at Westminster in the 25th year of the reign of Henry VIII (1533) provided as follows:-
“For as much as there is not yet sufficient and condign Punishment appointed and limited by the due Course of the Laws of this Realm, for the detestable and abominable Vice of Buggery committed with Mankind or Beast …it … be enacted … That the same Offence be from henceforth adjudged Felony, and such Order and Form of Process therein to be used against the Offenders as in the Cases of Felony at the Common Law; and that the Offenders being hereof convict by Verdict Confession or Outlawry, shall suffer such Pains of Death, and Losses and Penalties of their Goods Chattels Debts Lands Tenements and Hereditaments, as Felons be accustomed to do, according to the Order of the Common Laws of this Realm; and that no Person offending in any such Offence shall be admitted to his Clergy; and that Justices of Peace shall have Power and Authority, within the Limits of their Commissions and Jurisdiction, to hear and determine the said Offence, as they douse to do in cases of other Felonies...”
27. Following certain repeals during the reigns of Edward VI and Mary, the Act of Henry VIII was revived and made perpetual by 5 Eliz., cap. XVII (1562) and remained in force until 1828 when it was repealed in England by the passing of 9 Geo. IV, cap. XXXI.
28. What is of interest is that the Act of Henry VIII has been treated by distinguished writers over several centuries as providing the basis in statute law for the crime of buggery. It appears that it also involved depriving the ecclesiastical courts of jurisdiction over the offence. Thomas’ Systematic Arrangement of Lord Coke’s First Institute of the Laws of England (London, 1660) stated:-
“If any person shall commit buggery with mankind or beast, by authority of Parliament this offence is adjudged felony without benefit of Clergy.”
The text continued:-
“The Act of 25 H. 8. hath adjudged it felony, and therefore the judgement for felony doth now belong to this offence, viz. to be hanged by the neck till he be dead. He that readeth the Preamble of this Act, shall finde how necessary the reading of our ancient Authors is. The Statute doth take away the benefit of Clergy from the Delinquent…”
Blackstone’s Commentaries on the Laws of England, 5th Ed., (Dublin, 1765–1769), Book The Fourth: Of Public Wrongs, pp. 215 to 216, at the end of a lengthy passage on the crime of buggery, stated:-
“But now the general punishment of all felonies is the same, namely, by hanging: and this offence (being in the times of popery only subject to ecclesiastical censures) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6 revived and confirmed by 5 Eliz. c. 17.”
Deacon’s, Digest of the Criminal Laws of England (London, 1831), dealing with the form of the indictment stated:-
“The indictment should charge, that the prisoner “against the order of nature had a veneral affair with A.B., and then and there carnally knew the said A.B.:” but this is not sufficient, without also charging, that the prisoner “feloniously, &c. with the said A.B. did commit and perpetrate that detestable and abominable crime of buggery;” for this is the express term made use of by the statute.”
Stephens, in his History of the Criminal Law of England, Vol. 11, (London, 1883), at ch. XXV (Offences against Religion), pp. 429 to 430, explained how the ecclesiastical jurisdiction was lost and replaced by statute:-
“The whole of the ecclesiastical ordinary jurisdiction did not fall at once, nor did it all remain untouched till 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 concerned 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.
The earliest enactment of this kind I believe to have been 25 Hen. 8, c. 6 (1533), which makes unnatural offences felony, reciting in the preamble that “there is not yet sufficient and condign punishment appointed by the due course of the laws of this land” for such offences...”
Pollock & Maitland, cited above at para. 25, in Vol. II, ch. VII, s.4 (Ecclesiastical Offences) at pp. 556 to 557, having made the observation, cited above, linking the crime with heresy, observed that the “statute of 1533 which makes it felony affords an almost sufficient proof that the temporal courts had not punished it and that no one had been put to death for it for a very long time past.”
As noted above at para. 19, the first edition of Halsbury (1909), published two years before Pollock & Maitland, took the same view.
29. These commentators were, of course, concerned with English law, in effect, originating with the Act of Henry VIII. While Irish statute law took a different route, it was closely parallel and, in any event, ended with the Offences against the Person Act, 1861, which applied to the entire of what was then the United Kingdom.
30. The first Irish statutory provision on the subject was an Act of the Irish Parliament 10 Charles I, Session 2, c.20 (1634), which is entitled “An Act for the Punishment of the Vice of Buggery.” It was a short enactment and provided virtually in its entirety:
“Forasmuch as there is not yet sufficient and condigne punishment appointed and limited by the due course of the laws of this realme, for the detestable and abhominable vice of buggery committed with mankind or beast; it may therefore please the King’s Highnesse, with the assent of his lords spirituall and temporall, and the commons of this present Parliament assembled, that it may be enacted, and be it enacted by the authority of the same, That the same offence be from henceforth adjudged felonie, and such order and form of processe therein to be used against the offenders, as in the case of felony at the common law; and that the offenders being hereof convicted by verdict, confession, or outlawry, shall suffer such paines of death, and losses … as felons be accustomed to doe, according to the order of the common lawes of this realme...”
31. The Irish Act was materially identical to the English Act of Henry VIII. It made the commission of buggery a felony by statute and provided that the processes of the common law were to apply to it.
32. As a matter of substance, English and Irish law thereafter followed parallel, though virtually identical, courses. The separate, though identical, Acts of the reign of Henry VIII of 1533 (repealed and re-enacted by the Act of 1562), and 1634 remained in effect until 1828 and 1829 respectively when the United Kingdom enacted separate Offences against the Person Acts, one applying to England and Wales and one to Ireland.
33. The Act of 1829, 10 Geo. IV, cap. 34, applicable to Ireland, was passed for the purpose of “consolidating and amending the Statutes……relating to Offences against the Person.” To that end it repealed a large number of enactments, including the Act of 1634 “for the Punishment of the Vice of Buggery,” but replaced them. Amongst other provisions, it enacted section 18:-
“And be it enacted, That every Person convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall suffer Death as a Felon.”
34. Although the form of the section differs from that of the earlier one —“adjudged felony”— I cannot see that there is any difference in substance and it would be inconsistent with the consolidating objective of the Act that it should make any radical change. The “abominable crime” to which it referred had been a crime, a felony, by statute since 1634. The act of buggery thus remained declared a felony by statute, as it had been for almost two hundred years. As McWilliam J expressed it at p. 41 of Norris, that, by virtue of section 18, the “offence was continued as a felony.”
35. An additional important aspect of the Offences against the Person (Ireland) Act, 1829 has been referred to by both Mr O’Malley and Mr Charleton (though they cite the English rather than the Irish legislation). Section 21 of the Act of 1829 provided:-
“And whereas upon Trials for the Crimes of Buggery and Rape, and of carnally abusing Girls under the respective Ages herein-before mentioned, Offenders frequently escape by reason of the Difficulty of the Proof which has been required of the Completion of these several Crimes: for Remedy thereof be it enacted, That it shall not be necessary in any of those Cases to prove the actual Emission of Seed in order to constitute a carnal Knowledge, but the carnal Knowledge shall be deemed complete upon Proof of Penetration only.”
36. As appears from that section and as is confirmed by the extract from Deacon, cited above at para. 28, the term “carnal knowledge” applies to the commission of both buggery and rape. Section 21 represented a crucial degree of statutory definition of the elements of the offence.
37. In 1861, the Acts of 1828 (England) and 1829 (Ireland) were replaced and repealed in two stages. On 6th August, 1861, both the English and the Irish Acts then in force (i.e. 9 Geo. IV, c. 31; and 10 Geo. IV, c. 34) were repealed by 24 & 25 Vict., c. 95: An Act to repeal certain Enactments which have been consolidated in several Acts of the present Session relating to indictable Offences and other Matters. The Act provided that the repealed Acts would continue in force up until 31st October, 1861 and it contained a saving provision in respect of offences already committed. On the same date, six statutes were passed to consolidate and amend the laws in respect various aspects of the criminal law. One of these was the Offences against the Person Act, 1861 (24 & 45 Vict, c. 100), described as “An Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person.” It was effective as and from 1st November, 1861.
38. Thus, up to the coming into effect of section 61 of that Act, the crime of buggery was, and had been since 1634 in Ireland, an offence by statute. As noted above at para. 16, section 61 provided:-
“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.”
39. Section 62 dealt with attempts and is not material for present purposes. Section 63 effectively re-enacted section 21 of the Act of 1829 (10 Geo. IV, c. 34) by providing:
“Whenever, upon the Trial for any Offence punishable under this Act, it may be necessary to prove carnal Knowledge, it shall not be necessary to prove the actual Emission of Seed in order to constitute a carnal Knowledge, but the carnal Knowledge shall be deemed complete upon Proof of Penetration only.”
40. As is clear from the above, the language of section 63 of the Act of 1861 prescribed the essence of the offence of buggery (as also of rape). It provided that the offence is deemed to be committed on proof of penetration only.
41. This history demonstrates that the offence of buggery appeared in the statute books in Ireland without interruption from 1634 until 1993. The Act of 1533 established it as a felony in England and the Act of 1634 did so in Ireland.
42. There were two consolidating phases in the nineteenth century: in Ireland in 1829; and in the United Kingdom as a whole in 1861. These did not involve any break in the statutory criminalisation of the Act. Furthermore, from 1829 the statute provided, and repeated in 1861, the essential sexual element of the crime, namely penetration.
43. In this respect, the Appellant says, firstly, that buggery was an offence at common law, i.e., prior to the enactment of the Act of Henry VIII and, secondly, that that Act did not make it a crime, but merely prescribed a penalty. It is, of course, perfectly possible that buggery was a crime at common law prior to 1533 in England, which I treat as being equivalent to 1634 in Ireland. It would not, however, follow from that supposition, that the act was not made a crime by statute. Indeed, the Appellant in his written submissions observes that section 12 of the (English) Sexual Offences Act, 1956 makes buggery a statutory offence by providing that “it is a felony for a person to commit buggery with another person… or with an animal.”
44. Distinguished commentators on the criminal law from Coke’s Institutes, through to Blackstone and Stephens and Pollock & Maitland have, as is clear from the extracts quoted above, treated the crime as statutory.
45. The first three editions of Halsbury took the same view. The Appellant, however, submits that the fourth edition arrived at the opposite conclusion. It said at para. 505 of the 4th Edition of Halsbury, Vol 11(1) that “at common law it is an indictable offence for a person to commit buggery with an animal or with another person. It is also a statutory offence for a person to commit buggery with another person or with an animal …” It is clear from the context that the statutory basis for the latter statement is the (English) Sexual Offences Act, 1956. I am not at all sure that this passage is inconsistent with buggery having been a statutory offence in England during the currency of the Act of 1861. The passage uses the present tense, i.e., buggery remained a common law offence even after the entry into force of the Act of 1956. Equally, therefore, it may have been a statutory as well as a common law offence before 1956.
46. I am satisfied that buggery was a criminal offence in Ireland by statute at all times from 1634 to 1993. It was a statutory offence when it was abolished in 1993. Consequently, section 21 of the Interpretation Act, 1937 applies to allow the prosecution of offences committed prior to its repeal by the Act of 1993. It follows from this that the possibility of prosecuting a person such as the Appellant for an offence allegedly committed prior to 1993 was preserved by that section. The learned District Judge was in error in declining to make an order on the prosecution of the Appellant. I would affirm the decision of the High Court and dismiss the appeal.
47. The majority of the Court is of the view that the offence of buggery was not a statutory offence when it was abolished in 1993. If that was so, of course, it is necessary to address the Appellant’s submissions as to the applicability and effect of the Interpretation (Amendment) Act 1997. On this particular issue, I find myself in agreement with the judgments of the Chief Justice and of Hardiman J. Section 1 of the Act of 1997 should be interpreted in the light of the principle against doubtful criminalisation. Whatever meaning may be attributed to section 1(1) and (2), the meaning of subsection (4) is so obscure that it could not provide a sound basis for rendering criminal an act which had ceased to be criminal. Moreover, the section would have to be construed in such a way as not to render it incompatible with the European Convention on Human Rights. These matters are discussed in detail in the judgments of the Chief Justice and of Hardiman J.
48. I would add that, independently of the conclusion I have reached in respect of the crime of buggery, there was never any basis for preventing the prosecution for the other two offences of indecent assault.