DPP v Judge Devins & O'M (M)

• Jurisdiction: Ireland
• Judge: Denham C.J.,Mr. Justice Hardiman,Mr. Justice Fennelly
• Judgment Date: 08 February 2012
• Neutral Citation: [2012] IESC 7
• Court: Supreme Court
• Docket Number: [S.C. No. 14 of 2010]
• Date: 08 February 2012

[2012] IESC 7

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

[Appeal No: 14/2010]

DPP v Judge Devins & O'M (M)

Between/

The Director of Public Prosecutions

Applicant/Respondent

and

Judge Mary Devins

Respondent

and

M.O'M.

Notice Party/Appellant

OFFENCE AGAINST PERSON ACT 1861 S61

OFFENCE AGAINST PERSON ACT 1861 S62

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S14

NORRIS v AG 1984 IR 36

SIOCHAIN CRIMINAL LAW OF IRELAND 7ED 1981 143

CHARLETON OFFENCES AGAINST PERSON 1992 PAR 8.50

QUINN CRIMINAL LAW IN IRELAND 3ED 1998 128

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S2

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S3

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S4

INTERPRETATION ACT 1937 S21

INTERPRETATION ACT 2005 S27

INTERPRETATION ACT 1937 S21(A)

INTERPRETATION (AMDT) ACT 1997 S1

INTERPRETATION (AMDT) ACT 1997 S1(1)

INTERPRETATION (AMDT) ACT 1997 S1(1)B

INTERPRETATION (AMDT) ACT 1997 S1(1)C

INTERPRETATION (AMDT) ACT 1997 S1(1)A

INTERPRETATION (AMDT) ACT 1997 S1(2)

INTERPRETATION (AMDT) ACT 1997 S1(3)

INTERPRETATION (AMDT) ACT 1997 S1(4)

GREALIS v DPP 2001 3 IR 144

OFFENCE AGAINST PERSON ACT 1861 S47

CONSTITUTION ART 15.5

NON-FATAL OFFENCES AGAINST PERSON ACT 1997 S28(1)

NORRIS v IRELAND 1991 13 EHRR 186

CRIMINAL PROCEDURE ACT 1967 S4

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S8

INTERPRETATION ACT 2005 S27

GOULDING v JUDGE MCVEIGH & DPP UNREP HIGH

INTERPRETATION ACT 2005 S27

INTERPRETATION ACT 1937 S1(1)

DUDGEON v UK 1981 4 EHRR 149

OFFENCES AGAINSTS THE PERSON (ENGLAND) ACT 1828

STEPHENS HISTORY OF CRIMINAL LAW 1883

POLLOCK & MAITLAND 1911 HISTORY OF ENGLISH LAW

MARSHALL MOTHER LEAKY & BISHOP OUP 2007

ARCHBOLDS CRIMINAL PLEADING EVIDENCE & PRACTICE 1962

CHARLETON OFFENCES AGAINST THE PERSON 1992 296

O'SIOCHAIN CRIMINAL LAW IN IRELAND 6ED 1977

CONSTITUTION ART 50

OFFENCE AGAINST PERSON ACT 1861 S47

OFFENCE AGAINST PERSON ACT 1861 S52

INTERPRETATION (AMDT) ACT 1997 S1(2)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S28(1)

LIVERSIDGE v ANDERSON 1942 AC 206

STRONGER v CALIFORNIA 539 US 607 (2004)

US CONSTITUTION ART 1(9)

CALDER v BULL 3 US 386 1798

FALTER v US 23F. 2D 420

CARMELL v TAXAS 2000 529 US 513

R v FORD 1993 15 OR 3D 173 CA

CORPUS JURIS SECUNDUM S224

KELLY IRISH CONSTITUTION 2003 1050

OXFORD ENGLISH DICTIONARY 1993

DPP v CAGNEY 2008 2 IR 111

AG v CUNNINGHAM 1932 IR 28

KING v AG 1981 IR 233

DPP v FLANAGAN 1979 IR 265

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S14

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S3

INTERPRETATION ACT 1937 S21

INTERPRETATION ACT 2005 S3(2)(B)

O'MALLEY SEXUAL OFFENCES 1996 136

HALSBURY 1909 VOL 1 PAR 1091

OFFENCES AGAINST THE PERSON ACT 1861 S61

DEACONS DIGEST OF CRIMINAL LAWS OF ENGLAND 1831

STEPHENS HISTORY OF CRIMINAL LAW OF ENGLAND VOL 11 LONDON 1883 CH XXV OFFENCES AGAINST RELIGION 429

POLLOCK & MAITLAND PAR 25 VOL II CH VIII S4 ECCLESIASTICAL OFFENCES P556

BUGGERY ACT 1533 10 CHARLES I SESSION 2 C 20 1634

BUGGERY ACT 1533 PUNISHMENT FOR THE VICE OF BUGGERY S18

OFFENCES AGAINST THE PERSON (IRELAND) ACT 1829 S21

HALSBURY 4ED VOL 11(1) PAR 505

SEXUAL OFFENCES ACT 1956 (UK)

INTERPRETATION ACT 1937 S21

CRIMINAL LAW

Buggery

Abolition of offence - Revival of liability for offence - Nature of offence - Common law or statutory basis - Clarity in criminal law - Effect of abolition of offence - Lack of transitional provisions - Effect of subsequent saving provisions - Statutory interpretation - Lacuna re offence of buggery of child if alleged acts occurring prior to abolition of offence - Prospective effect of legislation - Whether offence of buggery abolished - Whether any transitional provisions enacted at time of abolition of offence of buggery - Whether criminal liability for offence could be revived even though lost when offence abolished - Whether saving provisions enacted subsequent to abolition of offence of buggery could revive offence - Whether accused charged post abolition of offence could be prosecuted for offences allegedly committed prior to abolition of offence - Norris v AG [1984] IR 36 and Norris v Ireland (App. No 10581/83), (1991) 13 EHRR 186 considered; Grealis v DPP [2001] 3 IR 144 followed; Dudgeon v UK (App No 7525/76), (1981) 4 EHRR 149, Liversidge v Anderson [1942] AC 206, People (DPP) v Cagney [2007] IESC 46, [2008] 2 IR 111, Attorney General v Cunningham [1932] IR 28, King v Attorney General [1981] IR 233, and DPP v Flanagan [1979] IR 265 considered - Offences against the Person Act 1861, (24 & 25 Vict, c100), ss 47, 52, 61, 62 and 63 - Statute Law Revision Act 1892 (55 & 56 Vict, c19) - Interpretation Act 1937 (No 38), s 21 - Criminal Law (Sexual Offences) Act 1993 (No 20), ss 2, 3, 4 and 14 - Non-Fatal Offences against the Person Act 1997 (No 26), s 28 - Interpretation (Amendment) Act 1997 (No 36), s 1 - Interpretation Act 2005 (No 23), ss 3(2)(b) and 27 - Constitution of Ireland, Articles 15.5 and 38.1 - Appeal allowed as respects buggery (14/2010 - SC - 8/2/2012) [2012] IESC 7

DPP v Judge Devins and O'M(M)

Facts: The Supreme Court had to consider whether the offence of buggery was a statutory offence under s. 61 Offences against the Person Act 1861 or whether it was a common law offence and whether the notice party/ appellant could be prosecuted. The trial judge had held that the offence of buggery prior to its repeal by s. 14 Criminal Law (Sexual Offences) Act 1993 was a statutory offence. The Court considered the impact of inter alia the Interpretation Act 1937 and 1997 on the offence.

Held by the Supreme Court per Denham CJ (Hardiman, Macken JJ concurring): that the Act of 1997 did not revive the common law offence of buggery. The DPP could not prosecute the appellant for an offence of buggery which was abolished in 1993. The common law offence was abolished in 1993 and no words could retrospectively revive the right to prosecute. The appeal would be allowed.

Per Fennelly J. (Murray J. concurring): Buggery was a criminal offence by statute at all times from 1634 to 1993. S. 21 Interpretation Act 1937 applied allowing the prosecution of offences committed prior to its repeal by the Act of 1993. The possibility of prosecuting a person was preserved for an offence committed prior to 1993. The High Court decision would be affirmed and the appeal dismissed. Per Hardiman J.: The offence of buggery was not an offence at law because it was abolished since 1993. The clumsy and glib attempt to revive liability for the offence if committed before 1993 ignored the non-existence of any offence of buggery. There was a failure to think through the consequences of the legislation. The Act of 1997 was not sufficiently clear and precise to revive the right to prosecute.

Reporter: E.F.

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

2 JUDGMENTS DELIVERED BY DENHAM C.J. [FENNELLY J. CONCUR] & HARDIMAN J. [MACKEN J. CONCUR] & FENNELLY J. [MURRAY J. CONCUR]

3 1. The primary issues on this appeal are: (a) whether the offence of buggery was a statutory offence under s. 61 of the Offences against the Person Act, 1861, referred to as "the Act of 1861", or whether it was a common law offence; and (b) whether M.O'M., the notice party/appellant, referred to as "the appellant", may be prosecuted for the offence of buggery in respect of acts constituting that offence, which were allegedly committed prior to the repeal of s. 61 of the Act of 1861.

4 2. The appellant was a priest who held a teaching post in a secondary school in the west of Ireland. He faces charges relating to a 13 year old boy and a 14 year old boy at the school. On the 20 ^th June, 2007, the appellant was charged with the following offences:-

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

6 (ii) indecent assault contrary to s. 62 of the Act of 1861 on a date unknown between the 1 ^st September 1970, and 30 ^th June, 1971; and

7 (iii) indecent assault contrary to s. 62 of the Act of 1861 on a date unknown between the 1 ^st September, 1970, and the 31 ^st December, 1970.

8 3. On the 20 ^th June, 2007, the matter came before Judge Devins, the respondent, referred to as "the respondent", evidence of arrest, charge and caution of the appellant was given, and the matter was adjourned for service of the book of evidence.

9 4. On the 18 ^th July, 2007, the respondent indicated her doubts as to whether the charges were good in law, and she made no order in relation to the charges. It appears that the respondent was of the view that since the repeal of s. 61 and s. 62 of the Act of 1861 those charges were not grounded in law. The respondent made no order in relation to all three charges.

10 5. On direction of the Director of Public Prosecutions, referred to as "the D.P.P.", the appellant was arrested and charged on the 19 ^th September, 2007, with the following offences:-

11 (i) buggery contrary to s. 61 of the Act of 1861, as amended by the Statute Revision Act, 1892, on a date unknown between 1 ^st September, 1970 and 31 ^st December, 1970;

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

13 (iii) indecent assault contrary to common law on a date unknown between the 1 ^st September, 1970 and the 30 ^th June, 1971.

14 6. On the 19 ^th September, 2007, the matter came before the respondent and evidence of arrest, charge and caution was given. However, the respondent considered that she was not satisfied that the charges were grounded on good law and she would not accept the evidence of the arrest, charge and caution. The respondent made no order.

Judicial Review Proceedings

15 7. On the 19 ^th November, 2007, the D.P.P. obtained...