The Supreme Court allowed P.P.’s appeal in a challenge to prosecution under a repealed law criminalising gross indecency between men. In a judgment delivered on 30 April 2019, Ms Justice Iseult O’Malley concluded that P.P. had standing to argue that the law was repugnant to the Constitution and that a court could not rewrite it by adding an age of consent. She would allow the appeal and grant the declaration sought.
The judgment concerns allegations, not proven events. No trial had taken place, and the court made no finding about what happened or whether the complainant consented. P.P., a schoolteacher at the time, was charged over alleged sexual activity in 1978 and 1979 with a male pupil who was then 16, or possibly 15 in relation to the earliest alleged incident. The charges relied on section 11 of the Criminal Law Amendment Act 1885, which was repealed in 1993.
The Director of Public Prosecutions had undertaken not to prosecute P.P. over any alleged incident after the complainant turned 17. The respondents argued that the complainant’s age meant P.P. could not rely on the rights of adults engaging in consensual sexual activity. O’Malley J. rejected that standing argument. She said capacity to consent had to be assessed under the law in force at the time of the alleged events, rather than by applying later standards retrospectively. In her analysis, a 16-year-old male was treated as an adult for sexual conduct under the law then in force, although section 11 criminalised sexual activity between men regardless of age or consent.
O’Malley J. also rejected the Attorney General’s proposed solution of reading an age of consent and a related defence into the repealed provision. She said that choosing an age and defining such a defence would involve the court in making legislative policy. The judgment discussed the limits of its proposed result: it concerned consensual incidents before 1993 involving males over 15, and did not extend to non-consensual activity, boys under 15 or events after the repeal.
The source is O’Malley J.’s judgment. The supplied extract does not set out the disposition of the other Supreme Court judgments or the formal terms of any order made by the Court as a whole.