Man fails to stop gross indecency prosecution by citing 115-year-old law

A man has failed in his attempt to render himself immune from prosecution by arguing that a law drafted 115 years ago criminalised certain homosexual activity.

The man, whose identity cannot be published, is charged with seven counts of gross indecency under section 11 of the Criminal Law Amendment Act 1885 alleged to have been committed against a teenage boy on dates between 1978 and 1980 while he was in a position of authority.

The alleged activity involved buggery, oral sex and the complainant being required to masturbate the man.

His lawyers sought to prohibit his trial on grounds of delay and that section 11 of the 1885 Act was “incompatible” with the Constitution, is not known to the law of Ireland and should be declared incompatible with the State’s obligations under the European Convention on Human Rights.

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In judicial review proceedings before the High Court last year, Mr Justice Michael Moriarty refused the reliefs sought. The case came before the Court of Appeal in December where judgment was reserved.

Dismissing his appeal on Tuesday, Mr Justice George Birmingham said the man had sought to render himself immune from prosecution largely because a statute drafted 115 years ago criminalises certain conduct contemporary society would not regard as being properly the concern of the criminal law.

However contemporary society would regard the conduct he is alleged to have been engaged in as being properly the concern of the criminal law, Mr Justice Birmingham said.

Position of authority

In this case, Mr Justice Birmingham said the DPP seeks to mount a prosecution in relation to alleged sexual activity that occurred between 1978 and 1980 when the man was in a position of authority. The alleged activity involved buggery, oral sex and the complainant being required to masturbate the man.

That activity was illegal in 1978/80 and subsequent to that the constitutionality of the statute intended to prosecute the man had been upheld. It was “beyond any doubt” that activity of the type alleged would be illegal today.

Mr Justice Birmingham said the man would certainly be in a position to make the point that section 11 of the Criminal Law Amendment Act did not accord with “prevailing social mores”.

In truth many would think it is almost an unanswerable point, the judge said, that section 11 because of its breadth and, in particular, because it criminalises sexual activity between consenting adults in private – does not accord with prevailing social norms.

However, what he cannot say is that prevailing social mores would preclude the criminal prosecution of an adult engaged in sexual activity of the nature alleged.

Personal situation

Mr Justice Birmingham said the man had standing to challenge the constitutionality of the offence with which he is charged. But that did not mean he could advance arguments entirely divorced from his personal situation.

Norris versus the attorney general was a good example of the principle that because one has a right to bring a challenge to the validity of a statute, it does not mean that one has a right to bring every challenge on every ground.

Mr Justice Birmingham said the concept of indecency was one that is long familiar to the criminal law. The standard charge delivered by judges to juries every day of the week tells them that the offence of sexual assault was previously known as indecent assault, and defined as an assault accompanied by circumstances of indecency, the determination of indecency being a matter for them as jurors.

Mr Justice Birmingham said he was forced to conclude that the man was “not seeking to mount the challenge grounded on the (alleged) facts of this case, but he is, to use the language of Hardiman J, engaged in seeking to make up facts which suit him better”.

Mr Justice Birmingham said the man lacked standing to make the arguments he wishes to make. Accordingly he dismissed the appeal.

Mr Justice Alan Mahon and Mr Justice John Edwards agreed with Mr Justice Birmingham's judgment.