Friday, February 10, 2012

Oireachtas failure halts priest’s trial for buggery

The Supreme Court has described as "inexplicable" the failure by the Oireachtas to allow for the prosecutions of buggery offences committed pre-1993, when it was decriminalising buggery between two consenting adults. 

Yesterday, a Supreme Court majority decision halted the trial of a priest for alleged buggery of a teenage boy in 1970 due to that failure.

The Department of Justice said it had just received the judgment and is studying it.

The decision does not affect the trial of the same priest on two charges of indecent assault of a 13-year-old boy and another 14-year-old boy. He had not sought to prevent his trial on those charges.

The central issue in the appeal was whether buggery was a common law or statutory offence because different legal provisions apply to the prosecution of repealed offences, depending whether they are common law or statutory offences.

By a three to two majority, the Supreme Court ruled the offence was a common law offence and overturned a High Court finding that it was a statutory offence.

It went on to rule the priest cannot be tried on the buggery charge because, when repealing the common law offence of buggery "between persons" in 1993, the Oireachtas failed to enact the necessary saving measures to allow prosecutions for buggery offences committed prior to 1993.

Although general saving provisions for abolished common law offences were sought to be made four years later via the Interpretation (Amendment) Act 1997, that could not be retrospectively applied to pre-1993 buggery offences, the court said.

Mr Justice Adrian Hardiman described as "inexplicable" and "very remarkable" the failure of the Oireachtas to include the necessary saving provisions in the Criminal Law (Sexual Offences) Act 1993 allowing prosecutions for pre-1993 buggery offences.

That legislation decriminalised the act of buggery committed consensually between adults and created a new offence of buggery with persons under the age of 17 but that new offence operated only for future offences.

The difficulties in this case mainly arose due to "ill-considered changes in the law without proper thought about future prosecutions", he said.

If the Oireachtas intended in 1993 to decriminalise only consensual buggery between adults, they could have said so but did not and said something "entirely different", they were decriminalising "all buggery" between persons, he said.

If the Oireachtas wished to cure the situation, they should do so "by a new measure in simple and straightforward language".

When the priest appeared before District Court Judge Mary Devins in 2007, she refused to make any order on the buggery charge because she was concerned that offence was no longer available following its 1993 repeal. 

When she repeated her refusal after the priest was brought before her a second time, the DPP successfully challenged her order in the High Court, but the priest then appealed that decision to the Supreme Court.

Maeve Lewis of One in Four, which supports victims of sexual abuse, said the way the legislation was created in 1993 was "most regrettable" but she said in fairness to the Oireachtas, "I do not believe it was their intention to allow sexual offences against children."

However, she added that Justice Minister Alan Shatter should move to correct the loophole immediately, as victims of abuse as children often come forward when they are adults and the legislation should be rectified in time for cases to be taken on their behalf.