The High Court ruled that an alleged offence of buggery under section 61 of the Offences Against the Person Act 1861 could be prosecuted even though the provision had been repealed. The judgment did not itself make a final order: Mr Justice O’Keeffe said he would hear the parties on what order was appropriate.
The case was a judicial review brought by the Director of Public Prosecutions against District Court Judge Mary Devins, with M. O’M. as notice party. The DPP challenged the judge’s decision on 19 September 2007 to make no order on three charge sheets. The charges concerned alleged offences between 1 September 1970 and 30 June 1971, including buggery and two counts of indecent assault. The judgment described the notice party as a priest who taught at St Jarlath’s College, Tuam.
The DPP argued that section 61 created a statutory offence and that section 27 of the Interpretation Act 2005 preserved the possibility of prosecution for conduct alleged to have occurred before repeal. The notice party argued that buggery was a common-law offence abolished by the Criminal Law (Sexual Offences) Act 1993, and that the later prosecution could not proceed.
The judge first rejected the notice party’s objection that the judicial review was late. He found that the grounds for the application arose on 19 September 2007, when the notice party was charged again and evidence of arrest, charge and caution was given. He was satisfied that the DPP had acted promptly.
On the central legal question, the judge concluded that section 61 provided for a statutory offence of buggery. He was not satisfied that buggery had been established as a common-law offence. He relied on his assessment of the historical and legal material, including an earlier analysis in Norris v Attorney General, and said section 27 of the 2005 Act allowed prosecution for an alleged statutory offence despite repeal.
The judgment therefore resolved the legal issue about the nature of the section 61 offence and whether prosecution could be permissible. It did not decide the notice party’s guilt, determine the truth of the allegations, or specify what further steps should be taken in the District Court. The appropriate order remained for the parties to address.