New Appeal: is s 11 of Criminal Law Amendment Act 1888 (upheld in Norris v Ireland) incompatible with the Constitution?

In this determination, PP v Judges of Dublin Circuit Court, the Supreme Court granted PP leave to appeal on three questions:

(i) Is the consent of both parties an essential ingredient of the offence of gross indecency under s 11 of the Criminal Law Amendment Act 1885?

(ii) Having regard to the answer to the first question, does the applicant have locus standi to challenge the compatibility of the section with the Constitution?

(iii) Having regard to the answers to the foregoing questions, is s 11 of the Act compatible with the Constitution?

 

Background

The DPP prosecuted PP before Dublin Circuit Court on a number of counts under s 11 of the Criminal Law Amendment Act 1888. The DPP alleges that PP committed the offences between 1978 and 1980 when he was a school teacher and the complaint was aged between 15 and 17 years. PP denies the charges.

The 1888 Act states:

11. 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.

The Supreme Court upheld s 11 in Norris v Ireland 1984 IR 36. The European Court of Human Rights later held that s 11 breached the European Convention on Human Rights. The Oireachtas repealed s 11 in 1993. The DPP is prosecuting these offences under s 27 of the Interpretation act 1995.

PP has challenged the compatibility of s 11 with the Constitution. The High Court dismissed PP’s challenge. The Court of Appeal upheld that decision. The Supreme Court determined that the case raises questions of general public importance, as the DPP asserts an entitlement to use s 11 to prosecute historical offences committed before 1993.

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