Chief Justice Clarke concluded that the prosecution of P.P. for alleged historical sexual offences should be prohibited, but his judgment did not propose declaring the underlying legislation unconstitutional.
The Supreme Court appeal concerned charges arising from alleged sexual activity between P.P. and another male, who was aged between 16 and 17 and a half at the time. The alleged events occurred between late 1978 and mid-1980, before the Criminal Law (Sexual Offences) Act 1993 decriminalised consensual sexual activity between males.
The Director of Public Prosecutions argued that the Interpretation Acts allowed prosecution for offences alleged to have occurred before the relevant laws were repealed. Chief Justice Clarke said it remained possible as a matter of statute law to prosecute for such earlier conduct. But he considered whether doing so in this case was compatible with the Constitution as it stands today.
The judgment addressed a tension between changing legal standards. At the time of the alleged events, a male aged 16 was generally considered capable of consenting to otherwise lawful sexual activity. Today, the age of consent is higher. The D.P.P. had undertaken not to prosecute P.P. for any alleged event after the complainant turned 17.
Chief Justice Clarke accepted that P.P. could rely on current constitutional standards when arguing against prosecution, while also asking the court to assess the complainant’s capacity to consent by the standards that applied when the events allegedly occurred. In his view, imposing today’s age-of-consent standards on events from about 40 years earlier would be unfair. He concluded that prosecuting P.P. for the alleged offences would be inconsistent with the Constitution as it now stands.
His proposed basis was to prohibit this prosecution, not to declare the 1885 Act unconstitutional. The judgment records that the Supreme Court was divided, with other judgments reaching different conclusions. The source contains Chief Justice Clarke’s judgment only and does not establish the Court’s final disposition or order.