DPP -v- Judge Mary Devins. Neutral Citation (2009) IEHC 584. Judgment was delivered by Mr Justice Daniel O'Keeffe on December 2nd, 2009.
Judgment
The High Court ruled that buggery was a statutory, rather than a common law, offence in a judicial review application by the DPP of a decision of Judge Devins in the District Court not to proceed with a prosecution of a former priest on charges of buggery on the grounds that the charges were not good in law.
Background
The notice party in the proceedings was charged with three offences alleged to have been committed between September 1970 and June 1971 when the accused was a priest teaching in St Jarlath’s College, Tuam. The charges related to one offence of alleged buggery and two of indecent assault, all under section 62 of the Offences Against the Person Act 1861.
When the matter came before Castlebar District Court on June 20th, 2007, the judge raised the issue of jurisdiction. The case was adjourned to the same court on July 18th for service of the book of evidence. During that hearing, a number of matters arose and the garda inspector sought an adjournment until September.
The judge referred to the fact that section 14 of the Criminal Law (Sexual Offences) Act 1993 had repealed sections 61 and 62 of the Offences Against the Person Act 1861, relating to buggery, and section 8 of the Criminal Law (Sexual Offences) Act 2006 had now repealed that section of the 1993 Act. She said she would make no order in the case.
On September 19th, 2007, the notice party was arrested and again charged with buggery contrary to section 61 of the 1861 Act and with two charges of indecent assault contrary to common law.
When the matter came before the court, Judge Devins asked the garda if the charges were correctly founded in law. Saying that instructions from the DPP had been followed, the garda gave the judge a copy of the section 27 of the Interpretation Act 2005.
After further discussion, the judge said it was her decision to make no order in the case, and the garda inspector said there was now no way to proceed except by way of judicial review.
Counsel for the notice party contended that grounds for relief arose in July and the application for judicial review was not made promptly. Mr Justice O’Keeffe found the grounds arose in September, so there was no delay.
Counsel for the DPP outlined the basis for the offence of buggery, referred to in section 61 of the 1861 Offences Against the Person Act, as “the abominable crime of buggery” and punished by penal servitude for life. While it was repealed as an offence by section 2 of the 1993 Act, sections 3 and 5 respectively provided for an offence of buggery with persons under 17 or mentally impaired.
Section 8 of the 2006 Act, repealing the offences of buggery and gross indecency with males, created the new offences of defilement of a child under 17 and under 15. Thus, they said, there was never a time when conduct such as that alleged against the notice party (buggery of a child) would not have amounted to a serious criminal offence.
They submitted that the offence of buggery had maintained a dual existence as both a statutory and a common law offence over the past century.The repeal of section 61 by the 1993 Act is catered for by the Interpretation Act 2005, allowing for the prosecution of an offence when the conduct comes to light after the relevant Act had been repealed. They acknowledged that there was a distinct offence of indecent assault which was regarded as a common law offence.
Counsel for the notice party contended that, from the 16th century onwards, buggery was historically a felony at common law for which the 1861 Act provided the penalty, quoting Mr Justice Peter Charleton's book Offences Against the Person.
In 1993 the Oireachtas had abolished the offence and the penalty was repealed. Thus in 1993 the offence was abolished.
Decision
Mr Justice O’Keeffe said: “In my opinion, the wording of section 2 of the 1993 Act, which refers to ‘any rule of law by virtue of which buggery between persons is an offence is hereby abolished’ is not conclusive that the offence is one at common law.”
While he had been referred to many statutory and historical references, none was superior to the judgment of Mr Justice Herbert McWilliam in the Norris case, where he concluded that the offence of buggery was statutory.
He concluded, therefore, that section 61 of the 1861 Act provided the basis for the statutory offence of buggery.
The 2005 Interpretation Act provided that where a statutory offence had been repealed, an offender under the Act can still be prosecuted even if the conduct only comes to light afterwards. It was therefore permissible to prosecute for an offence contrary to section 61 of the 1861 Act.
The full judgment is on www.courts.ie
Donal O’Donnell SC and Paul Anthony McDermott, instructed by the Chief Prosecution Solicitor, for the DPP; Feichín McDonagh SC and Caroline Cummings, instructed by Fiona McAllister, Castlebar, for the notice party.