The Supreme Court has dismissed an appeal by P.P. seeking to stop a Dublin Circuit Court trial over alleged sexual offences said to have occurred between 1978 and 1980. The court held that consent by both parties is not an essential ingredient of the offence of gross indecency under section 11 of the Criminal Law Amendment Act 1885, and that P.P. could not challenge the law by relying on its historical application to consenting adult men.
The prosecution concerns allegations involving M.D., who was aged between 15 and 17 and a half during the period in question. P.P., then aged between 34 and 35, was a teacher at M.D.’s school. The judgment says it is alleged that P.P. invited M.D. to his house, gave him alcohol, showed him pornography and engaged in buggery and oral sex, as well as having M.D. masturbate him. These are allegations, not findings. The DPP undertook not to proceed on any indictment count concerning acts alleged to have occurred after M.D.’s seventeenth birthday.
P.P. brought judicial review proceedings challenging the proposed trial on several grounds. The High Court rejected the claims, and the Court of Appeal dismissed his appeal. The Supreme Court granted leave on three related questions about whether consent was an element of the offence, whether P.P. had standing to challenge section 11, and whether the section was compatible with the Constitution. Other grounds, including delay and vagueness, were not included in the appeal.
Writing for himself, Justice Donal O’Donnell concluded that the offence did not require proof that both people consented. He also held that P.P. had standing to challenge the law only in relation to his own circumstances. He could not rely on the section’s application to consensual activity between adults because he was not charged with that conduct. The judgment said he could have argued that prosecuting him for the alleged conduct violated his own constitutional rights, but he had not advanced that case.
The judge dismissed the appeal and said the Constitution could not be said to preclude a trial. He did not determine whether the alleged acts occurred or whether an offence was committed; those matters, if the trial proceeds, are for the trial judge and jury. The judgment records that the Chief Justice and Justice O’Malley dissented, but this article concerns Justice O’Donnell’s judgment.