Supreme Court Justice Hardiman would leave in place a District Court “no order” on a buggery charge, while quashing the same orders on two indecent assault charges and sending those charges back to the District Judge to proceed according to law.
The case concerned M., who was charged with three offences allegedly committed at St. Jarlath’s College in Tuam between September 1970 and June 1971. The charges alleged indecent assaults on P.D. and C.D., and buggery with P.D. The judgment says the notice party did not dispute the technical propriety of the assault charges. The appeal concerned the buggery charge and the legal effect of its abolition in 1993 and later legislation.
M. was first charged in June 2007. After the District Judge raised questions about the charges and the court to which the case should be sent, the prosecution sought an adjournment. The judge made “no order” in July. M. was charged again in September with the same allegations, but the buggery charge was framed as an offence under section 61 of the Offences against the Person Act 1861. The judge again made “no order”, saying she was not satisfied the charges were legally founded.
The Director of Public Prosecutions sought judicial review. The High Court held that buggery was a statutory offence and quashed the District Court’s September 2007 order. M. appealed to the Supreme Court.
Justice Hardiman concluded that buggery had been a common law offence, with its penalty fixed by statute, and had been abolished by the Criminal Law (Sexual Offences) Act 1993. He considered whether the Interpretation (Amendment) Act 1997 allowed prosecution for conduct alleged to have occurred before that abolition. He rejected the State’s argument that it did, finding the provision insufficiently clear to revive criminal liability and concluding that such revival would conflict with the right to a trial in due course of law.
On the charge as it had been brought, Justice Hardiman said section 61 had been repealed and the District Judge had faced a charge alleging an offence unknown to law. He would not interfere with the “no order” on that charge. He would quash the “no order” decisions on the two indecent assault charges and remit them for the District Judge to proceed in accordance with law. The supplied judgment is Justice Hardiman’s judgment; it does not set out the final disposition of the appeal by the Court as a whole.