The Supreme Court has ruled that the Director of Public Prosecutions may not prosecute M.O’M. for an alleged offence of buggery in 1970, holding that legislation passed in 1997 could not revive liability after the offence was abolished in 1993.
In a judgment delivered on 8 February 2012, Chief Justice Denham said buggery had been a common law offence, while section 61 of the Offences Against the Person Act 1861 set its penalty. The section was repealed in 1993, and the Criminal Law (Sexual Offences) Act 1993 abolished the common law offence. The Court said that Act contained no transitional provision allowing prosecutions for alleged acts committed before abolition.
The judgment concerned three charges brought against M.O’M., a priest who had held a teaching post in a secondary school in the west of Ireland. The charges related to two boys aged 13 and 14 at the school. The buggery charge alleged an offence on an unknown date between 1 September and 31 December 1970. Two indecent assault charges alleged offences during periods in 1970 and 1971.
A judge had made no order on the charges in 2007, doubting they were grounded in law. The High Court later quashed a separate no-order decision made on 19 September 2007, directed that evidence of arrest, charge and caution be accepted, and declared that the buggery offence remained valid for alleged acts before repeal. M.O’M. appealed.
The Supreme Court considered whether the Interpretation (Amendment) Act 1997, which provided for proceedings concerning abolished common law offences, could apply to the alleged buggery offence. The judgment said there had been a four-year gap after abolition in which there was no legal basis to prosecute for that offence. Applying the 1997 Act to restore prosecution liability for conduct during that period would conflict with constitutional due process, it held.
The Court allowed the appeal insofar as it concerned the buggery charge, concluding that the DPP could not prosecute M.O’M. for that offence. It did not decide the two indecent assault charges: no issue about them was raised or argued, and the judgment said they were unaffected. The source gives no final disposition of those charges.