A Supreme Court majority decision today halting the trial of a priest on a charge of alleged buggery of a teenage boy in 1970 has important implications for other persons charged with buggery offences prior to 1993.
The decision does not affect the trial of the priest on two other charges of indecent assault of the 13-year-old boy and another 14-year-old boy which can proceed.
By a three/two majority, the Supreme Court ruled the priest cannot be tried on the buggery charge because, when repealing the offence of buggery "between persons" in 1993, the Oireachtas failed to enact the necessary saving measures to allow prosecutions for such common law offences committed prior to 1993.
Mr Justice Adrian Hardiman described as "inexplicable" the failure of the Oireachtas to include the necessary saving provisions in the Criminal Law (Sexual Offences) Act 1993 allowing prosecutions for pre-1993 buggery offences.
While general saving provisions for abolished common law offences were made four years later via the Interpretation (Amendment) Act 1997, that legislation could not be retrospectively applied to pre-1993 buggery offences, the court also ruled.
The case arose after the priest was charged in 2007 with a number of sexual offences allegedly committed on two teenage boys in 1970 and 1971 when they were boarders at a school where the priest taught.
District Judge Mary Devins had in 2007 refused to make an order concerning the buggery charge against the priest because she was concerned that offence was no longer available following its repeal by the Oireachtas in 1993.
The offence of buggery contrary to Section 61 of the Offences Against the Person Act 1861 was repealed following the successful European Court of Human Rights challenge by Senator David Norris to laws here criminalising homosexual acts.
The effect of the new Criminal Law Sexual Offices Act 1993 was to decriminalise the act of buggery committed consensually between adults and to create a new offence of buggery with minors.
The appeal to the Supreme Court was wholly concerned with whether Judge Devins was correct in making no order about the buggery charge.
Today, the Chief Justice, Ms Justice Susan Denham, Mr Justice Hardiman and Ms Justice Fidelma Macken all agreed the offence of buggery was a common law offence which ceased to exist as a result of the 1993 Act.
Because the offence was a common law offence, not a statutory offence, it was not saved by Section 21 of the Interpretation Act 1937 which provided for transitional arrangements when a statutory offence was abolished. Nor was it saved by provisions of the Interpretation (Amendment) Act 1997, the court found.
Mr Justice Nial Fennelly and Mr Justice John Murray dissented from the majority court finding that the buggery offence was a common law offence and ruled it was a statutory offence.
