The Supreme Court dismissed P.P.’s appeal over a challenge to section 11 of the Criminal Law Amendment Act 1885, which created the offence of gross indecency. In a judgment delivered on 30 April 2019, Justice Dunne agreed with Justice O’Donnell that P.P. lacked standing to make the challenge on the grounds advanced.
The proceedings arose from an allegation that P.P., then aged 34, engaged in acts of gross indecency with a boy aged between 16 and 17½. The Director of Public Prosecutions had undertaken not to proceed on any count concerning alleged acts after the boy’s 17th birthday. The judgment does not determine the underlying allegations.
P.P. had sought a declaration that section 11 was incompatible with the Constitution and had not continued in force under Article 50. His grounds included claims that the offence was too uncertain, discriminated on grounds of gender and interfered with private life. Justice Dunne said the appellant had not argued that applying the provision to the conduct alleged in his own case interfered with his private-life rights. He could not establish standing by relying on a hypothetical prosecution involving consensual activity between adults when he was not facing such a charge.
Justice Dunne said that if the Director were to prosecute two adult men over alleged acts before the 1885 Act was repealed, a person facing that prosecution would likely have standing to bring the kind of challenge raised in this case. She stressed that the circumstances before the court were different.
The judgment also addressed whether a prior decision upholding a pre-1937 law prevents a later constitutional challenge. Section 11 had been found constitutional in *Norris v. The Attorney General* in 1983. Justice Dunne agreed with Justice O’Malley’s view that pre-1937 legislation may need to be assessed against the Constitution as it stands when the court considers the issue. In that situation, she said, the law ceases to have legal force when a finding of inconsistency is made.
The 1885 Act had been repealed in 1993, but Justice Dunne noted that section 27 of the Interpretation Act 2005 permits prosecution for an offence committed before repeal as if the Act had not been repealed. The appeal was dismissed; the judgment did not decide the constitutional validity of section 11 on its merits.