P v Judges of the Circuit Court

CourtSupreme Court
JudgeMr. Justice Donal O'Donnell,Mr. Justice Clarke,Ms. Justice Iseult O'Malley
Judgment Date30 April 2019
Neutral Citation[2019] IESC 26
Docket Number[S.C. No. 57 of 2017],[Appeal No. S:AP:IE:2017:00057] [Supreme Court Appeal No. 57/2017]
Date30 April 2019



[2019] IESC 26

O'Donnell Donal J.

Clarke C.J.

O'Malley Iseult J.

Clarke C.J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

[Appeal No. S:AP:IE:2017:00057]

Appeal No: 2017/57

[Supreme Court Appeal No. 57/2017]


Consent – Gross indecency – Criminal Law Amendment Act 1885 s. 11 – Appellant seeking judicial review – Whether the consent of both parties is an essential ingredient of the offence of gross indecency under s. 11 of the Criminal Law Amendment Act 1885

Facts: The appellant commenced judicial review proceedings grounded on a short affidavit by his solicitor in which a number of grounds of challenge were raised, including the contention that his trial should be prohibited on the basis of culpable delay, and that s. 11 of the Criminal Law Amendment Act 1885 was inconsistent with the Constitution on grounds of vagueness, and/or because of alleged impermissible discrimination on the basis of gender. The High Court dismissed those claims, and found it unnecessary to consider the contention raised prominently by the respondents, the Judges of Dublin Circuit Court, the Director of Public Prosecutions, Ireland and the Attorney General, that the applicant lacked locus standi to assert the unconstitutionality of s. 11 of the 1885 Act on the grounds which he did. The Court of Appeal dismissed the appeal, holding that the appellant lacked locus standi to make the case he sought to argue in respect of the alleged repugnancy of s. 11 of the 1885 Act to the Constitution. The court upheld the trial judge’s dismissal of the appellant’s claim on the merits. By a determination issued on 26 October 2017, the Supreme Court granted leave to appeal from the decision of the Court of Appeal. However, the court considered that a number of the issues raised did not satisfy the constitutional threshold for appeal in this case, and accordingly leave to appeal was refused in respect of the claims relating to delay, and the challenge to the s. 11 of the 1885 Act on the basis of vagueness or gender discrimination. However, the court granted leave on three grounds which were interrelated and sequential, as follows: (i) Is the consent of both parties an essential ingredient of the offence of gross indecency under s. 11 of the 1885 Act? (ii) Having regard to the answer to the first question, does the appellant have locus standi to challenge the compatibility of that section with the Constitution? (iii) Having regard to the answer to the foregoing question is s. 11 of the 1885 Act compatible with the Constitution?

Held by the Court that it would resolve the issues in respect of which leave was granted as follows: (i) no, the consent of both parties is not an essential ingredient of the offence of gross indecency under s. 11 of the 1885 Act; (ii) the appellant, as a person charged under s. 11 of the 1885 Act, has locus standi to challenge the compatibility of the section with the Constitution, but only on grounds related to his personal circumstances; (iii) in the light of the answers to the foregoing questions, s. 11 of the 1885 Act has not been shown to be incompatible with the Constitution on the grounds in respect of which the appellant has locus standi arising from his personal circumstances.

The Court held that the appeal must be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Donal O'Donnell delivered on the 30th day of April, 2019.

These proceedings concern the provisions of a statute long repealed, but which played an important part in the history of Irish law, and perhaps recent Irish history more generally. It was one of the statutory provisions challenged and upheld by a narrow majority in the Supreme Court case of Norris v. The Attorney General [1984] I.R. 36, and was later held to be incompatible with the European Convention of Human Rights (‘ECHR’) in Norris v. Ireland (App. No. 10581/83) (1991) 13 E.H.R.R. 186 (here referred to collectively, where applicable, as ‘the Norris case’). It has achieved some wider public notoriety as the offence of which many men, including Oscar Wilde and Alan Turing, were convicted. It might have been thought that this legislation, repealed for more than a quarter century, belongs firmly in the past, but these proceedings require us to address its continued legal half-life today.

The offence of gross indecency between males

The Criminal Law Amendment Act 1885 (‘the 1885 Act’) is headed ‘[a]n Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes’, but s. 11 thereof is directed solely at male conduct. The Labouchère Amendment – so called because its sponsor was the radical Victorian, Henry Labouchère – was inserted in the legislation in the course of parliamentary debate. In its terms, s. 11 of the 1885 Act provided:-

‘Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.’


In England and Wales, this section was repealed but re-enacted in essentially the same terms in 1957. The offence of gross indecency was one of the matters considered in the well-known Wolfenden Report of the same year, which recommended that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence’. Subsequently, in 1967, the recommendation was followed in England and Wales by the passage of the Sexual Offences Act 1967, which, however, did not apply in Scotland or Northern Ireland. The relevant provision did not repeal the 1956 Act, or abolish the offence of gross indecency or any other offence, including buggery. Rather, it made a more general amendment in the case of acts engaged in by consenting adults, and provided:-

‘Notwithstanding any statutory or common law provision…a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years.’

Subsequent amendments reduced the age to eighteen, and later sixteen years, but otherwise left intact the essential legislative structure. In other words, the offences of gross indecency and buggery remained part of the criminal code, but were now subject to the significant qualification that consenting acts in private between males over a certain age were not captured by the prohibition.


In Ireland, as is well known, effectively the same point was arrived at somewhat later, and by a slightly different route. The legal consequences of the route chosen is, however, the genesis of the issue which arises in this case. In its Report on Child Sexual Abuse (LRC 32-1990), at para. 4.29, the Law Reform Commission recommended that s. 11 of the 1885 Act should be repealed, and there should be the same protection against both homosexual and heterosexual exploitation of the young. Eventually, s. 11 of the 1885 Act was repealed in its entirety in 1993 by s. 14 of the Criminal Law (Sexual Offences) Act 1993 (‘the 1993 Act’) and replaced by an offence under s. 4 of the same Act, which created an offence of gross indecency with a male under the age of seventeen years. Section 4 of the 1993 Act provided that:-

‘A male person who commits or attempts to commit an act of gross indecency with another male person under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 2 years.’

It is possible to speculate that the clarity of a wholesale repeal was seen as more appropriate to the significance of the legislative change than a qualified amendment, as occurred in England and Wales in 1967. The repeal of s. 11 did not, as a matter of law, have the effect of immunising pre-1993 conduct. Instead, that position was regulated at the time by the provisions of s. 21 of the Interpretation Act 1937 (now effectively reproduced in s. 27 of the Interpretation Act 2005), which provided that repeal of an enactment did not affect the previous operation of the enactment, and any legal proceedings in respect of any offence could be instituted and any penalty applied ‘as if such statute or portion of a statute had not been repealed’. Thus it might be thought that essentially the same point had been arrived at in Ireland as had been reached in England and Wales 26 years earlier, but as this case shows, nothing is that simple.


While the legal issue which arises in this case arose from the legislative change which occurred in 1993, it is desirable to set out the subsequent development in the law up to the present day. Section 3(3) of the Sexual Offenders Act 2001 (which, inter alia, places certain requirements regarding the notification of information to the Gardaí by persons who have committed sexual offences, and contains provisions for the management of such persons in the community) provided that an act of gross indecency with a male under seventeen years would not be an offence for the purposes of that Act if the victim was over fifteen years and the alleged offender no more than three years older at the time. The offence under s. 4 of the 1993 Act was eventually repealed by s. 8 of the Criminal Law (Sexual Offences) Act 2006 (‘the 2006 Act’). Sections 2 and 3 of the 2006 Act created two new offences of defilement of children under the age of fifteen and seventeen years respectively. In 2017, ss. 2 and 3 of the 2006 Act were in turn substituted by ss. 16 and 17 of the Criminal Law (Sexual Offences) Act 2017,...

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    ...nor the respondent expressly appealed. 43 The Supreme Court, by a majority of 3 to 2 decided in PP v. The Judges of Dublin Circuit Court [2019] IESC 26 that the plaintiff, who challenged the constitutionality of s.11 of the Criminal Law Amendment Act, 1885, was not entitled by virtue of th......
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