P.P v Judges of Dublin Circuit Court

• Court: Supreme Court
• Judge: Clarke C.J., O'Donnell J., McKechnie J., MacMenamin J., Dunne J., Charleton J., O'Malley J.
• Judgment Date: 26 Oct 2017
• Jurisdiction: Ireland
• Neutral Citation: [2017] IESCDET 107

[2017] IESCDET 107

THE SUPREME COURT

DETERMINATION

Clarke C.J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

BETWEEN

P. P.

APPLICANT

AND

THE JUDGES OF DUBLIN CIRCUIT COURT

THE DIRECTOR OF PUBLIC PROSECUTIONS

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

Result: The Court grants leave to the applicant to appeal to this Court from the Court of Appeal.

Reasons Given:

Jurisdiction

1 In these proceedings the applicant seeks a declaration that s.11 of the Criminal Law Amendment Act 1885 is inconsistent with the Constitution. His claim was dismissed by the High Court (Moriarty J.). That decision was upheld by the Court of Appeal (Birmingham, Mahon and Edwards JJ.) in a judgment given on the 7th February 2017 (see P.P. v Judges of the Circuit Court [2017] IECA 82).

2 The impugned section, which criminalised any act of gross indecency committed by one male person with another male person, was repealed in 1993. Any continuing power to prosecute under its provisions derives therefore from s. 27 of the Interpretation Act 2005. Prior to 1993, the constitutionality of the section had been challenged but upheld in Norris v Attorney General [1984] I.R. 36. However it had been found to be contrary to the European Convention on Human Rights in two judgments of the Court of Human Rights – Dudgeon v United Kingdom (1982) 4 E.H.R.R. 149 and Norris v Ireland (1991) 13 E.H.R.R 186.

3 The applicant is alleged to have committed offences contrary to the section between November 1978 and June 1980, at a time when he was a school teacher. He denies the charges. Between the relevant dates the complainant, a pupil of the applicant, was aged between fifteen years and eleven months and seventeen years and six months. The respondent has stated that no charge will be proceeded with where the complainant had reached the age of seventeen.

4 As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

5 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

The issues

6 The position of each of the parties is fully set out in the notices filed by them, which are available on this website and will not...