JUDGMENT of Mr. Justice Donal O'Donnell delivered on the 30th day of April, 2019.
1 These proceedings concern the provisions of a statute long repealed, but which played an important part in the history of Irish law, and perhaps recent Irish history more generally. It was one of the statutory provisions challenged and upheld by a narrow majority in the Supreme Court case of Norris v. The Attorney General  IR 36, and was later held to be incompatible with the European Convention of Human Rights ("ECHR") in Norris v. Ireland (App. No. 10581/83) (1991) 13 EHRR 186 (here referred to collectively, where applicable, as "the Norris case"). It has achieved some wider public notoriety as the offence of which many men, including Oscar Wilde and Alan Turing, were convicted. It might have been thought that this legislation, repealed for more than a quarter century, belongs firmly in the past, but these proceedings require us to address its continued legal half-life today.
The offence of gross indecency between males
2 The Criminal Law Amendment Act 1885 ("the 1885 Act") is headed "[a]n Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes", but s. 11 thereof is directed solely at male conduct. The Labouchère Amendment - so called because its sponsor was the radical Victorian, Henry Labouchère - was inserted in the legislation in the course of parliamentary debate. In its terms, s. 11 of the 1885 Act provided:-
"Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour."
3 In England and Wales, this section was repealed but re-enacted in essentially the same terms in 1957. The offence of gross indecency was one of the matters considered in the well-known Wolfenden Report of the same year, which recommended that "homosexual behaviour between consenting adults in private should no longer be a criminal offence". Subsequently, in 1967, the recommendation was followed in England and Wales by the passage of the Sexual Offences Act 1967, which, however, did not apply in Scotland or Northern Ireland. The relevant provision did not repeal the 1956 Act, or abolish the offence of gross indecency or any other offence, including buggery. Rather, it made a more general amendment in the case of acts engaged in by consenting adults, and provided:-
Subsequent amendments reduced the age to eighteen, and later sixteen years, but otherwise left intact the essential legislative structure. In other words, the offences of gross indecency and buggery remained part of the criminal code, but were now subject to the significant qualification that consenting acts in private between males over a certain age were not captured by the prohibition.
"Notwithstanding any statutory or common law provision…a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years."
4 In Ireland, as is well known, effectively the same point was arrived at somewhat later, and by a slightly different route. The legal consequences of the route chosen is, however, the genesis of the issue which arises in this case. In its Report on Child Sexual Abuse (LRC 32-1990), at para. 4.29, the Law Reform Commission recommended that s. 11 of the 1885 Act should be repealed, and there should be the same protection against both homosexual and heterosexual exploitation of the young. Eventually, s. 11 of the 1885 Act was repealed in its entirety in 1993 by s. 14 of the Criminal Law (Sexual Offences) Act 1993 ("the 1993 Act") and replaced by an offence under s. 4 of the same Act, which created an offence of gross indecency with a male under the age of seventeen years. Section 4 of the 1993 Act provided that:-
It is possible to speculate that the clarity of a wholesale repeal was seen as more appropriate to the significance of the legislative change than a qualified amendment, as occurred in England and Wales in 1967. The repeal of s. 11 did not, as a matter of law, have the effect of immunising pre-1993 conduct. Instead, that position was regulated at the time by the provisions of s. 21 of the Interpretation Act 1937 (now effectively reproduced in s. 27 of the Interpretation Act 2005), which provided that repeal of an enactment did not affect the previous operation of the enactment, and any legal proceedings in respect of any offence could be instituted and any penalty applied "as if such statute or portion of a statute had not been repealed". Thus it might be thought that essentially the same point had been arrived at in Ireland as had been reached in England and Wales 26 years earlier, but as this case shows, nothing is that simple.
"A male person who commits or attempts to commit an act of gross indecency with another male person under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 2 years."
5 While the legal issue which arises in this case arose from the legislative change which occurred in 1993, it is desirable to set out the subsequent development in the law up to the present day. Section 3(3) of the Sexual Offenders Act 2001 (which, inter alia , places certain requirements regarding the notification of information to the Gardaí by persons who have committed sexual offences, and contains provisions for the management of such persons in the community) provided that an act of gross indecency with a male under seventeen years would not be an offence for the purposes of that Act if the victim was over fifteen years and the alleged offender no more than three years older at the time. The offence under s. 4 of the 1993 Act was eventually repealed by s. 8 of the Criminal Law (Sexual Offences) Act 2006 ("the 2006 Act"). Sections 2 and 3 of the 2006 Act created two new offences of defilement of children under the age of fifteen and seventeen years respectively. In 2017, ss. 2 and 3 of the 2006 Act were in turn substituted by ss. 16 and 17 of the Criminal Law (Sexual Offences) Act 2017, which provide for the offences of engaging or attempting to engage in sexual conduct with a child under the age of fifteen and seventeen respectively. While the pace of reform in this area in recent years has been considerable, the process of legislative engagement with these issues is perhaps not yet complete. Attention has turned to the question of retrospective or posthumous pardons for those persons convicted of homosexual offences at a time when such conduct between consenting adults in private was treated as a matter for the criminal law. Thus in England and Wales, s. 164 of the Policing and Crime Act 2017 provides a posthumous pardon for persons convicted of homosexual offences, including those under s. 11 of the 1885 Act (and s. 169 makes similar provision in relation to Northern Ireland). However, what is particularly noteworthy in the context of the present case is that such retrospective pardon is only available in respect of conduct where the other person involved consented, was aged sixteen years or over, and the conduct would not be an offence under s. 71 of the Sexual Offences Act 2003.
The offence of buggery
6 Whilst s. 11 of the 1885 Act is now notorious, it was not the only part of the criminal code which prohibited homosexual conduct between males. The other provision which was often referred to (and which was also challenged in Norris v. The Attorney General  IR 36) was the offence of buggery, now understood to be a common law offence which is punishable pursuant to the provisions of s. 61 of the Offences Against the Person Act 1861 ("the 1861 Act"). Although s. 11 of the 1885 Act criminalised conduct which might be regarded as less serious than that punishable under s. 61 of the 1861 Act, s. 11 was, perhaps because of issues of evidence and proof, of more general application and therefore the main vehicle by which the criminal law punished homosexual conduct. When, in 1993, it was sought to achieve the decriminalisation of male homosexual activity between consenting adults, the offence of buggery was also addressed, and the same technique adopted as in the case of s. 11 of the 1885 Act: that is, the effective repeal of the historic provision, coupled with the creation of a new offence criminalising such conduct with young persons, in each case under 17 years of age. Thus, the provisions of ss. 61 and 62 of the 1861 Act were also repealed by s. 14 of the 1993 Act (save in respect of buggery or attempted buggery with animals) and replaced with the provisions of s. 3 of the 1993 Act, making it an offence to commit buggery with a person under the age of seventeen years. In addition, subject to ss. 3 and 5 of the 1993 Act, the offence of buggery between persons "by virtue of any rule of law" was abolished by s. 2 of the same Act. However, as a result of a decision of this court in Director of Public Prosecutions v. Devins  IESC 7,  4 I.R. 491 (Denham C.J., Hardiman and Macken JJ.; Murray and Fennelly JJ. dissenting) it has been established that, since buggery is a common law offence, the abolition of the offence by s. 2 of the 1993 Act, and the repeal by the 1993 Act of the provisions of ss. 61 and 62 of the 1861 Act, had the effect that no prosecution could be maintained for buggery alleged to have occurred before 7 July 1993. This was because, although the provisions of s. 27 of the Interpretation Act 2005 ("the 2005 Act") (replacing in this respect s. 21 of the Interpretation Act 1937) operate as a saver to permit prosecution for offences pursuant to repealed statutes for conduct which occurred prior to the repeal, those provisions were only applicable to statutory, and not common law offences. Accordingly, it was considered by the majority in Devins that it was now no longer possible to prosecute individuals for the offence of buggery where the conduct was alleged to have occurred prior to 1993, even where the victim was under the age of seventeen.
7 Even this truncated account of the development of the statutory regime in this country and the neighbouring jurisdiction gives some sense of the profound changes in the law which occurred as a result of the change in social attitudes to homosexuality, particularly in the latter part of the twentieth century. Few interested members of the public, and fewer lawyers, are unaware, at least in broad terms, of these developments, and of the significant landmarks along the way, including the Norris case, both in Ireland and before the European Court of Human Rights, the case of Dudgeon v. United Kingdom (App. No. 7525/76) (1981) 3 E.H.R.R. 40 from Northern Ireland ("the Dudgeon case"), the 1993 Act itself, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and ultimately the passage by the people of the Thirty-fourth Amendment of the Constitution, making provision for same-sex marriage. But legislative developments also show the impact of other currents in Irish society, both in relation to the prosecution of sexual offences more generally, and also the particular problem posed by cases of historic child abuse. Developments in all these areas have been swift, substantial, and sometimes turbulent. However, the currents do not all run in the same direction or with the same force. The movement towards comprehensive liberalisation of the law on relationships between homosexuals has occurred at the same time as, though separately from, a hardening of social and legal attitudes in relation to sexual contact by adults with young people. This case lies at the intersection of those developments. In addressing the issues raised, it is important, therefore, to attempt to place the statutory provisions involved in the context of the law more generally, recognising, moreover, that it is a context which has developed and changed over time. Before doing so, however, it is necessary to outline briefly the facts of this case.
8 The proceedings here concern a prosecution currently awaiting trial in the Dublin Circuit Court in relation to events alleged to have occurred on a variety of dates between 1 November 1978 and 30 July 1980. The offences are alleged to have been committed against the complainant, M.D., who was born in late November 1962, and was accordingly at the relevant times aged between fifteen and seventeen and a half years of age. However, in the course of the proceedings, the Director of Public Prosecutions ("the DPP") undertook not to proceed with any count on the indictment in respect of acts alleged to have occurred after the claimant reached his seventeenth birthday. At the time of the alleged offences, the appellant was between 34 and 35 years of age. He was a teacher in the school attended by the complainant. It is alleged that he invited the complainant to his house on a number of occasions, gave him alcohol, showed him pornography, and engaged in acts consisting in buggery, oral sex, and the complainant masturbating the appellant.
9 The appellant commenced judicial review proceedings grounded on a short affidavit by his solicitor in which a number of grounds of challenge were raised, including the contention that the trial should be prohibited on the basis of culpable delay, and that s. 11 of the 1885 Act was inconsistent with the Constitution on grounds of vagueness, and/or because of alleged impermissible discrimination on the basis of gender. In a thorough judgment, the High Court (Moriarty J.) dismissed these claims, and found it unnecessary to consider the contention raised prominently by the respondents that the applicant lacked locus standi to assert the unconstitutionality of s. 11 of the 1885 Act on the grounds which he did. The Court of Appeal (Birmingham J.; Mahon and Edwards JJ. concurring) dismissed the appeal, holding that the appellant lacked locus standi to make the case he sought to argue in respect of the alleged repugnancy of s. 11 of the 1885 Act to the Constitution. In any event, the court upheld the trial judge's dismissal of the appellant's claim on the merits (see  IECA 82).
10 By a determination issued on 26 October 2017, this court (Clarke C.J., O'Donnell, McKechnie, MacMenamin, Dunne, Charleton and O'Malley JJ.) granted leave to appeal from the decision of the Court of Appeal (see  IESCDET 107). However, the court considered that a number of the issues raised did not satisfy the constitutional threshold for appeal in this case, and accordingly leave to appeal was refused in respect of the claims relating to delay, and the challenge to the s. 11 of the 1885 Act on the basis of vagueness or gender discrimination. However, the court granted leave on three grounds which were interrelated and sequential, as follows:-
Matters which form the background to the issues to be considered
11 It appears that the issues are structured in this manner so as to invite this court to find that consent is a necessary and essential ingredient in the offence under s. 11, and that accordingly the appellant has locus standi , not just generally, but specifically to challenge the section on the basis that it criminalises (private) consensual activity and represents the enforcement of morals alone, and that the criminalisation of consensual activity is now plainly repugnant to the Constitution. If so, s. 11 of the 1885 Act must be declared invalid, so that the appellant cannot lawfully be prosecuted for the offence and the trial now pending must be prohibited.
12 The contention that a legislative provision which was repealed in 1993, and the constitutionality of which was explicitly upheld in 1981, has, however, become repugnant to the Constitution by reason of certain developments (not least the passage by referendum in 2015 of the Thirty-fourth Amendment of the Constitution); that, accordingly, it must be treated as not having survived the enactment of the Constitution in 1937; and that it is therefore not available to prosecute the appellant for offences alleged to have occurred in the late 1970s, is one which potentially poses complex questions of constitutional interpretation on its own terms. However, where the case upholding the constitutionality of the section is the much debated decision in Norris v. The Attorney General  IR 36, and the section is itself the notorious s. 11 of the 1885 Act, then an inherently complex question must be addressed in a particularly controversial context, on which, understandably, strong views continue to be expressed. Discussion of the narrow legal issue involved in this case could easily be blown off course by the powerful forces which swirl around public discussion of issues of sexuality and sexual orientation, the historic use of the criminal law in that regard, and, indeed, current views of the decision of the Supreme Court in Norris and the language it used. I think it is therefore helpful to isolate a number of matters which are either accepted by the parties, or which are, in my view at least, beyond contest as providing a helpful foundation from which to address the points raised in this appeal.
13 First, it is important to attempt to isolate the legal issue in so far as is possible. It is necessary to recognise that past events and attitudes must be approached with considerable caution. It is difficult for many living today to imagine the world of a gay man in his thirties at that time in Ireland. The struggles of an adolescent, on the other hand, may be a more recurrent theme, but there can be little doubt that the world of 1978 and 1979 in Ireland was a very different country as far as attitudes to sexuality, sexual orientation, sexual behaviour, and many other matters were concerned. It is, however, an important starting point that the facts alleged against the appellant, if established, undoubtedly constituted serious criminal conduct in 1978 and 1979. The question of whether it is appropriate to prosecute such matters 40 years later is not a matter now for this court. The decision to prosecute is for the DPP; the question of delay and lapse of time does not arise in this appeal; and the decision as to whether any offence was committed will be for a jury, if any trial proceeds.
14 Second, as already mentioned, the very significant changes in attitude over time, in particular in the latter part of the twentieth century and early part of this century, do not all point in the same direction. One other area of significant change is the appreciation of the sometimes woeful inadequacy of society's treatment of sexual contact by adults with children and young people. It is fair to say that there is now a much increased awareness of the extent of sexual conduct between adults and children and adolescents, the damaging impact it can have, the length of time it may take for victims to address the issue and be prepared to make a complaint, and the desirability that there be available some method of prosecuting and punishing this form of abuse. As a result, the courts have encountered what has been described correctly as a phenomenon of emergence of cases of historic child sex abuse. What is alleged in this case does not, of course, fit some of the classic examples of sexual abuse of very young persons. However, the complainant was an adolescent at the time of the matters complained of. A second inescapable fact of this case is that, even though s. 11 is now notorious as a statute which criminalised consensual adult homosexual activity between men, and was enforced widely, the appellant here is not accused of any such conduct. Instead, the sexual conduct alleged here up to and including penetrative sexual intercourse between a man and a boy under seventeen, has, as the Court of Appeal judgment points out, always been a crime in this jurisdiction, and, indeed, was a crime which even pre-dated the establishment of an independent legal system in Ireland. Such conduct is now viewed even more seriously where the adult is a person in a position of responsibility towards the young person involved. Whilst there is undoubtedly an ongoing debate about the precise age limit beneath which sexual activity is regarded not just as wrongful, but criminal, the fact is that even now, if the conduct alleged against the appellant were today perpetrated by a 34 year old teacher with a 16 year old boy, it would constitute a serious criminal offence.
15 Third, for a variety of reasons, and principally because of the outcome of Director of Public Prosecutions v. Devins  IESC 7,  4 I.R. 491, s. 11 of the 1885 Act (as continued in operation by the 2005 Act) may be the only available provision permitting the prosecution of some serious offences, if they occurred prior to 1993. While in the nature of things it is perhaps unlikely that there will be a large number of similar cases, nevertheless the phenomenon of historic sexual abuse cases emerging over time suggests that there will be some cases, at least, where it will be considered important to prosecute, and those which it is sought to prosecute are likely be particularly serious. Certainly, there has been no legislative or judicial decision that such matters, if occurring before 1993, should not be the subject of criminal prosecution. It is an inescapable consequence of this case that success for the appellant would remove s. 11 of the 1885 Act as a vehicle for prosecution of any such offences.
16 Fourth, the terms of s. 11 of the 1885 Act are clearly wide enough to permit prosecution of adults or male persons for consensual conduct in private. It was, after all challenged in the Norris and Dudgeon cases on precisely that basis.
17 Fifth, and critically, the argument in this case has proceeded on the assumption that, were s. 11 to be used to prosecute a person in such circumstances ( i.e. in respect of consensual adult activity in private) such a prosecution would in all probability be impermissible for a variety of reasons, not least relating to the European Convention on Human Rights and the provisions of the European Convention on Human Rights Act 2003, but also, in particular, on the basis that the use of s. 11 for that purpose would likely be considered, at least now , and notwithstanding the decision in Norris v. The Attorney General  IR 36, to be incompatible with the Constitution.
18 Sixth, the appellant's claim in this regard is that s. 11 of the 1885 Act is repugnant to the provisions of the Constitution, and thus "was not continued in force by Article 50 of the Constitution", with the consequence that it did not survive the coming into force of the Constitution in 1937, and had ceased to be in existence long prior to its repeal in 1993.
19 Seventh, the appellant does not, in these proceedings, invite the court to overrule the decision in Norris v. The Attorney General  IR 36, or find that it is clearly wrong in accordance with the test set out in Mogul v. Tipperary (N.R.) C.C.  1 I.R. 260, in the sense that it was wrongly decided. Instead, the appellant invites the court to find that, in the circumstances pertaining today , s. 11 of the 1885 Act (as continued in force by virtue of s. 27 of 2005 Act) is now unconstitutional. Such a conclusion, if arrived at, would appear to involve reversing the result in Norris at least in respect of prosecutions after 2015 under s. 11 of the 1885 Act (as maintained in force by s. 27 of 2005 Act), i.e. that s. 11, as so continued, is now unconstitutional. It is not sought to be argued that it was always unconstitutional.
20 Eighth, the argument that pre-constitutional legislation has become repugnant to the Constitution (perhaps most clearly by reference to events which occurred as late as 2015); that it must therefore be treated as not having survived the enactment of the Constitution in 1937; that it was therefore invalid, void and ineffective, and was not in existence either at the point at which it was upheld in Norris v. The Attorney General  IR 36 in 1983, or when it was repealed in 1993, might strain to breaking point the formal theory that pre-1937 legislation which is found repugnant to the Constitution for any reason must be treated as invalid as and from 1937, and that the invalidity of any post-1937 legislation must relate back to the date of enactment. I am inclined to agree, therefore, with the view expressed by O'Malley J. that, where it is found that legislation has become repugnant to or inconsistent with the Constitution, such invalidity must date from the point of the judicial decision, or perhaps the date of the identified change in the legislative or Constitutional provision. However, I agree with the Chief Justice that some of the difficult conceptual questions in this regard might be avoided if the appellant's claim is viewed more narrowly as a claim that it is now incompatible with the Constitution and the right to a fair trial in Articles 34 and 38 to put the appellant on trial. In any event, whether viewed as broadly as the appellant contends, or more narrowly, the outcome of the case, if the appellant is successful, would remove s. 11 of the 1885 Act as a viable mechanism for the prosecution of any conduct prior to 1993, even conduct which today would be regarded as being among the most serious examples of sexual conduct between an adult and a young person. This consequence would, of course, also have followed if the majority of the Supreme Court had upheld Mr. Norris's claim. It is perhaps notable that similar consequences did not, and would not, follow from the finding by the European Court of Human Rights that s. 11 of the 1885 Act was incompatible with the ECHR, because that court adheres to a theory of ex nunc invalidity.
21 Ninth, and finally, the current and historic legal prohibition on sexual conduct between an adult and a young person can be seen not merely as a legislative policy choice, but as the performance by the State through the Oireachtas of its constitutional obligation to defend and vindicate the rights of such young people. The impressive dissenting judgment of Henchy J. in Norris v. The Attorney General  IR 36 puts it in this way at pp. 78 to 79:-
22 These matters form the backdrop for the consideration of the specific legal issues in this case, and insomuch as they raise potentially difficult and complex issues in the general area, they provide a further reminder of the desirability of ensuring that the analysis in this case is focused upon the limited issues which arise for determination here.
"It would not be constitutional to decriminalise all homosexual acts, any more than it would be constitutional to decriminalise all heterosexual acts. Public order and morality…and other aspects of the common good require that homosexual acts be made criminal in many circumstances."
23 Section 11 of the 1885 Act, whilst speaking of the commission of acts of gross indecency "with another male person", does not mention consent. The appellant nevertheless contends that consent is an essential component of the offence created by s. 11. No trial has yet occurred in this case. Furthermore, the appellant does not say either by himself, or through his solicitor, that he wishes in this case to raise any issue in this regard. It is not suggested that the evidence contained in the Book of Evidence which it is proposed to call does not sufficiently demonstrate cooperation or consent (if that is required), nor is it suggested that the appellant may wish to contend that if any sexual act is proved, it was somehow unilateral. Indeed, the appellant says nothing at all about these matters, since he himself did not swear an affidavit, and his solicitor's affidavit is particularly short, limited as it is to exhibiting the Book of Evidence and formally verifying the matters set out in the Statement of Grounds.
24 In these circumstances, there is a strong presumption that the superior courts will not normally accept an invitation to provide a pre-emptive rulings on elements of an offence or of issues arising by way of possible defence in respect of a trial which has not yet occurred. The normal manner in which such matters arise and are dealt with is at the trial, where it may be subject to a ruling, which in due course might be the subject of an appeal. The superior courts are normally particularly reluctant to offer any view in advance of a trial where, as in this case, it is not clear that the issue arises as a matter of fact at all, or indeed the context in which it may arise. The observations of Fennelly J. in C.C. v. Ireland  IESC 48,  4 I.R. 1 at pp. 53 to 54 are apposite. However, as I understand it, the appellant here does not seek to raise the point directly in this way, but only as the first step in the constitutional argument which, as I understand it, proceeds in the following way. It is asserted, relying on certain authority of the courts of England and Wales, which this court is invited to adopt and approve, that consent is at least in some sense (which will later be addressed) a necessary ingredient of any offence to be charged under s. 11 of the 1885 Act. If so, it is argued, it follows that the appellant is being prosecuted for an offence which necessarily criminalises consensual conduct, and it follows that the prohibition contained in s. 11 is purely a matter of enforcement of morals or moral views. It further follows, it is argued, that the appellant is therefore entitled to challenge the constitutional validity of the legislation, and has locus standi to do so on the grounds that it criminalises such consensual activity. The final step is to assert that the criminalising of such consensual activity, and the enforcement in that regard of morals through the criminal law, is repugnant to the Constitution. I think it is apparent that the object of this argument is to seek to allow the appellant to make the broad argument about the historic criminalisation of consensual adult sexual activity, without falling foul of the law on locus standi .
25 The issue of consent, at least as defined by the appellant, might appear at first glance to be an unnecessary issue to be determined in these proceedings, even for the purposes of the constitutional challenge. The particular legal issue which arises in relation to the constituent ingredients of the offence is whether the section, on its face, is limited only to consensual (or otherwise cooperative) conduct, or whether it extends to both consensual, cooperative conduct, and unilateral conduct by the accused in the presence of another male person. But either way, it undoubtedly does cover consensual, cooperative conduct - indeed that is the very reason it became so notorious throughout the twentieth century. The only legal question is whether the section is limited to such activity. Accordingly, if the appellant is entitled to challenge the section on the basis that it criminalises consensual conduct, then it might seem unnecessary to determine definitively, and outside the proper context of contested criminal proceedings, whether it only criminalises consensual conduct, or whether it also captures some non-consensual activity. However, this consideration only illustrates the fact that the appellant's argument is formulated in this ingenious, if rather contrived, way to attempt to circumvent the obvious problem the appellant faces in relation to locus standi.
26 The problem, at least from the appellant's point of view, can be seen in the following way. There is no doubt that prosecution for a now repealed and notorious piece of legislation must raise some legal issues. Section 11 of the 1885 Act undoubtedly made criminal consensual conduct between adult males. It is beyond doubt that it was capable of enforcement, and was enforced, against adult males, which is why it was challenged in the Norris case. The appellant is not, however, charged with consensual activity with an adult. Yet, had the plaintiff's claim in Norris v. The Attorney General  IR 36 succeeded, s. 11 of the 1885 Act would have been invalid, void and ineffective for all purposes, and accordingly would simply be unavailable to prosecute the appellant or anyone else accused of sexual conduct, consensual or otherwise, with a male person under seventeen. The decision of the majority of the Supreme Court in Norris has long been debated in its own terms, but in the near 40 years that have elapsed, considerable developments have occurred in terms of constitutional amendments and the interpretation of the Constitution. The appellant and his lawyers therefore face the tantalising prospect, for them at least, that if it is possible to raise the argument that the section on its terms makes criminal consensual sexual activity between adult males in private, there is a strong possibility, indeed a probability, that the consequence may be a declaration of the inconsistency of the s. 11 of the 1885 Act with the Constitution, which would mean that the Act would void and ineffective for all purposes and could not be the basis of a prosecution against the appellant.
27 But the appellant is not charged with consensual private conduct with an adult, and cannot himself challenge the section on that basis. The argument runs, however, that if the appellant establishes that consent is a necessary ingredient in the offence, he, as a person charged under the offence, would claim to have locus standi to challenge s. 11 of the 1885 Act on the grounds that it criminalises consensual activity in general, including that between adult males in private. In this way, the appellant seeks to invoke the circumstances of consensual sexual activity between adult male persons in private in challenging the section. In my view, however, for reasons I will address shortly, the appellant cannot by this route avoid the difficulties of establishing locus standi , or, more precisely, locus standi to raise the argument in relation to consenting adults. This conclusion might be sufficient to decide the case, and therefore make it unnecessary to address the issue of whether consent is an essential element of the offence. However, in deference to the appellant's arguments and the fact that the matter has been set out in the determination of this court, and most importantly because it has already been the subject of decision by the High Court and Court of Appeal, and the law should not be left in a state of uncertainty, it is necessary to address the issue.
28 There is some confusion about what is meant by ‘consent' in this aspect of the argument. The appellant, perhaps understandably, employs the term broadly because it facilitates the making of a constitutional argument by reference to the criminalising of consensual activity. However, consent has a very specific place in the criminal law in relation to offences against the person, in particular sexual offences and offences of assault. Furthermore, there are complex issues which might arise in relation to persons under a certain age, or under a disability, who as a matter of law cannot consent. The issue becomes dangerously blurred in the appellant's submissions when it is suggested that the DPP's undertaking not to prosecute for anything which occurred after the complainant's seventeenth birthday was "apparently on the grounds that the complainant could not have consented to acts prior to this date". It would indeed be a serious matter if, as a consequence of determining that consent was an essential ingredient of the offence under s. 11 of the 1885 Act, that section became unavailable for prosecution of offences against very young children or people under a disability. As already observed, s. 11 (as maintained in force by s. 27 of 2005 Act) may now be the only method of prosecution of certain serious offences arising from conduct prior to 1993. It is not sufficient to contend that such cases may be prosecuted as sexual assault: as is observed in the submissions on behalf of the DPP, certain serious sexual conduct may not amount to sexual assault. Thus, in Fairclough v. Whipp (1951) 35 Cr. App. R. 138, an invitation to a person to touch the inviter sexually was held not to amount to a sexual assault on the invitee. In fact, the legal issue which arises here, and which has led to diverging decisions in the Court of Appeal of England and Wales, is not the presence of consent in the classic sense, but rather whether the offence under s. 11 (and any similar offences), which clearly requires two persons, is committed where one person engages in sexual conduct while another is present, and may perhaps even be the object of the conduct, but that other person does not willingly engage in it, or even may be repulsed by it. This is not so much, therefore, a question of whether it is necessary to prove consent, as to prove that the other person is acting in concert, or otherwise willingly participating, even passively. As so identified, this is a somewhat narrow issue, and one which, as already observed, does not arise in this case, and the determination of which would not necessarily advance the appellant's constitutional claim.
29 The High Court and Court of Appeal both found it was not a necessary ingredient of the offence to prove that both persons were acting in concert and participating or otherwise consenting. It is notable that in his judgment in Norris v. The Attorney General  IR 36, O'Higgins C.J. clearly took the view that proof of the offence did not require evidence of consent. At p. 51 of the report he said:-
The difference of approach in the decisions of the Court of Appeal of England and Wales can be narrowed to a small number of cases. Apart from social developments over time, it is also important to note that the issue in the case has not been strictly limited to the necessary components of an offence under s. 11 of the 1885 Act. As already noted, the approach in the England and Wales to the decriminalisation of male homosexuality was to amend the existing statute by excising from the scope of liability consensual activities in private between adults. Subsequent legislation altered the age limits, but the essential structure remained the same. It follows that, for example, there remained an offence of gross indecency in public which was the offence in issue in the case relied on by the appellant. The elements of the offences prosecuted in England and Wales are certainly sufficiently close to the offence under s. 11 to permit the decisions to be persuasive authority, but the cases cannot be read without keeping at least one eye on the very substantial changes in social attitudes over time.
"It is also to be noted that the offence dealt with in s. 11 of the Act of 1885 only applies to male persons, that the section applies irrespective of the ages of the males persons involved and irrespective of whether the act is committed in public or private, or with or without consent ." (Emphasis added)
30 In R. v. Hall  1 Q.B. 273, the Court of Appeal (per Lord Parker C.J.), having reviewed earlier authorities, concluded:-
"This Court has come to the conclusion that the proposition laid down by Humphreys J. was right and should be followed, and that the word "with" in s. 13 of the Sexual Offences Act 1956 [which re-enacted the provisions of s. 11 of the 1885 Act] does not mean ‘with the consent of' but has the somewhat looser meaning of merely ‘against' or ‘directed towards'."
The decision referred to was that of the distinguished criminal lawyer, Travers Humphreys J., who, in R. v. Pearce (1951) 35 Cr. App. R. 17, had made certain obiter observations to the effect summarised by Lord Parker C.J., although the point did not directly arise for consideration in the case. The decision in Hall was later followed in DPP v. Burgess  1 Q.B. 432, in which the judgment was also delivered by Lord Parker C.J. Burgess , however, involved the interpretation of a somewhat different statutory provision, that is, s. 1(1) of the Indecency with Children Act 1960, which made it an offence for a person to commit an act of gross indecency "with or towards" a child under the age of fourteen years. The High Court held that the section created one offence only, namely that of committing an act of gross indecency "with or towards" a child, rather than two separate offences. To that extent, the authorities from Pearce in 1951 to Burgess in 1971 are consistent.
31 The appellant, however, lays heavy reliance on the later decision of the Court of Appeal of England and Wales in R. v. Preece & Howells  Q.B. 370. The case arose from the prosecution of two men who were seen by police masturbating in adjacent cubicles of a public toilet, in circumstances where each could see what the other was doing. Each was charged with committing an offence of gross indecency with the other, and both were convicted. There was no evidence of any prior arrangement or agreement between them. The appeal focused on the manner in which the trial judge had instructed the jury on the meaning of the offence of gross indecency between males (in public) which at the time had been charged under s. 13 of the Sexual Offences Act 1956. The trial judge instructed the jury that if the two men were simultaneously masturbating in view of each other in a public place, the offence was committed provided the jury were satisfied the men were acting in concert. The alternative situation, as rephrased by the Court of Appeal was where one masturbated in a public place intending that he should be seen by another and directing his act towards that other person. Again, the trial judge instructed the jury that in such circumstances the first man would be guilty of gross indecency with the second even though the second would not be found guilty of committing gross indecency with the first. The Court of Appeal, however, found fault with that latter instruction, and, per Lord Scarman, disagreed with the view expressed in R. v. Hall  1 Q.B. 273 that "with" in s. 11 of the 1885 Act (or s. 13 of the 1956 Act), could mean "against" or "directed towards".
32 The observations of Lord Scarman, even in a brief judgment such as this, are worthy of respect and careful consideration. If this matter arose for the first time in these proceedings, a court could easily adopt the same view. However, there are, in my view, a number of compelling reasons why R. v. Preece & Howells  Q.B. 370 cannot be accepted as a guide to the state of the law in Ireland. Furthermore, it is doubtful that, even in its own terms, it goes as far as establishing the proposition on which the appellant must rely: that is, that the consent of another party is a necessary proof in a prosecution under s. 11 of the 1885 Act, and therefore that the section must be approached as one which punishes only consensual activity.
33 First, the line of authority in England and Wales is less than clear. R. v. Burgess  1 Q.B. 432 was cited in argument in R v. Preece & Howells  Q.B. 370, but was not discussed in that judgment. Burgess in turn was relied on in R. v. Francis (1989) 88 Cr. App. R. 127 (but Preece & Howells was not) where similar language was interpreted as encompassing behaviour towards another person. Second, the court in Preece & Howells considered that there was a conflict in the early authorities, and accordingly that the court must "make our choice". That choice was influenced by considerations that, if the law was as stated in R. v. Hall  1 Q.B. 273, then an innocent person who was the passive object of indecency might be subject to embarrassment by being named in the indictment of the accused person. The court also considered that, if the section was construed as applying only to actions in concert, any other situation deserving prosecution could be charged under a different provision of the criminal code. Finally, it is noteworthy that the Court of Appeal did not in fact allow the appeal on this ground. Instead, the court applied the proviso to s. 2(1) of the Criminal Appeal Act 1968, which permits the court to dismiss an appeal if it is of the opinion that a point might be decided in favour of an appellant, but that no miscarriage of justice has occurred.
34 The decision in R. v. Preece & Howells  Q.B. 370 must also be viewed not only in the light of changing social attitudes, but in light of specific changes in the law of England and Wales, which were well established by 1978. In effect, the offence was now limited to an offence in respect of children or conduct occurring in public. As the court itself observed at p. 375 of the report, "the offence, now that the words ‘in private' have been deleted, is one of indecent exhibition by two men in a public place". It was therefore through this lens of public indecency that the court was viewing the offence.
35 In my view, all of this makes R. v. Preece & Howells  Q.B. 370 something less than a compelling authority. The reasons given are largely prudential rather than derived from a precedent or interpretation of the text. Nor are they particularly persuasive. The possible embarrassment of a victim is hardly itself a clear guide to the interpretation of the section. Furthermore, I doubt that, if the argument of the appellant in this case were accepted, it would indeed be true to say that, at least in Ireland, all possible other situations hitherto thought to be covered by s. 11 of the 1885 Act could be charged under some other provision. In any event, the approach is, in my view, a dubious guide to the interpretation of a provision such as this. The range of criminal offences contained in the common law system does not constitute a comprehensive code written at the same time and by a single author. If that were the case, it might be permissible to argue that the fact that conduct was unambiguously covered by one provision in the code may suggest that it cannot be captured by another. In the common law system, where legislation proceeds incrementally over time and in response to the stimulus created by different events, it is not at all unusual that there should be some overlap between the provisions of different pieces of legislation. Counsel on behalf of the DPP has conducted an impressive survey of the decisions of the Irish courts on s. 11 of the 1885 Act which are contained in the law reports and other more general resources, such as the extensive information contained in Professor Diarmuid Ferriter's book Occasions of Sin: Sex in Society in Modern Ireland (1st edn., Profile Books, 2009), which contains extensive archival research using court records of criminal cases involving sexual offences. That survey seems to show, at a minimum, that there does not appear to be any example of an Irish case stating that consent (in any sense) was a necessary ingredient of the offence. Indeed, there are a number of cases described which would appear inconsistent with any such requirement. It certainly was the case that the offence was often charged along with charges of indecent assault, and on the facts, many of the cases involved children who as a matter of law could not consent. In addition, O'Malley J. has drawn to our attention the decision in D.W. v. Director of Public Prosecutions  IESC 54, (Unreported, Supreme Court, 31 October 2003), and in particular the passage at para. 16 of the judgment of Hardiman J. to the effect that once gross indecency is established, any party to it is criminally liable regardless of his own or another's consent. The survey therefore suggests that the description of the offence contained in the judgment of O'Higgins C.J. in Norris v. The Attorney General  IR 36 is accurate, at least so far as Irish law goes. In my view, at a minimum, it cannot be said that Preece & Howells is a sufficient basis to depart from that approach, and insomuch as it is a matter of choice, I would be slow indeed to do so given the complex developments in this area in Irish law.
36 In any event, I should say that even if R. v. Preece & Howells  Q.B. 370 were accepted, it would not, in my view, avail the appellant in this case. That case, as I understand it, does not suggest that there is a requirement of consent, at least in the sense which the appellant requires that term to be understood if he is to be able to construct an argument that the act solely criminalises consensual activity. Preece & Howells simply rejects the possibility of a unilateral offence, as it were, and requires some participation or action on the part of the other person. It does not suggest, however, that if the second person does participate, that there is a further requirement that it should be established that he did so freely as a result of a consent voluntarily and lawfully given. Specifically, it does not suggest that the offence of gross indecency could not be committed if the other person participating was a child, or a person under a disability or otherwise not capable of giving consent.
37 Accordingly, I conclude that the first issue raised in the determination on which leave to appeal was granted should be answered as follows: no; the consent of both parties is not an essential ingredient of the offence of gross indecency under s. 11 of the Criminal Law Amendment Act 1885. Since the questions upon which leave was granted are inter-related and sequential, this in itself might be enough to resolve the case, but in the light of the extensive argument in this matter, and the difference of approach in the courts below, it is desirable to address the next question.
38 Some confusion has arisen in this case by the blurring of an important distinction. The appellant contends that the issue in this case is whether he has locus standi to challenge the 1885 Act at all. If so, he appears to consider that, if it is established that he has locus standi , that is enough, and he is free to raise arguments about the validity of the section, and in particular to assert that the criminalisation of consensual activity between males renders the Act repugnant to the Constitution.
39 The appellant is a person charged with a series of offences contrary to s. 11 of the 1885 Act, now repealed but continued in effect in respect of offences prior to 1993 by the effect of s. 27 of the 2005 Act. Plainly, therefore, he has locus standi to challenge the Act. But such a challenge must arise out of his own particular circumstances. The very requirement of Irish law that constitutional validity be determined by litigation inter partes necessitates that the question of validity be approached on the facts of a particular case which are relevant to that particular plaintiff. The appellant can therefore challenge the section, as he did, on grounds of vagueness or gender discrimination. If he sought to do so, he could also, for example, have challenged the continuation of the section by the provisions of the 2005 Act, if he considered there was a plausible ground for such a challenge. He could, and did, contend that any trial on such an offence would be inconsistent with the fair trial requirements of Articles 34 and 38 of the Constitution by reason of the delay in bringing the prosecution and the lapse of time between the events complained of and any likely trial. Furthermore, he could, if he wished, have contended that the criminalisation of sexual relations between an older man and a boy of sixteen is invalid, although he did not do so. But what he cannot do, in the well known language of Cahill v. Sutton  I.R. 269, is assert a jus tertii : that is, a claim based upon the rights of a third party. He cannot summon up the hypothetical case of the possibility of the section being applied to prosecute adult consensual sexual activity with a person over seventeen years of age, because he is not facing such an accusation. In Cahill v. Sutton , Henchy J. explained this clearly at p. 282:-
It was acknowledged in that case that a theoretical argument might be made for allowing an actio popularis , i.e. that any citizen regardless of personal interest or injury might be permitted to bring proceedings challenging the constitutionality of a provision in the general public interest. However, the majority of the Supreme Court in Cahill v. Sutton concluded, at p. 283, that:-
"The general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right. In that way each challenge is assessed judicially in the light of the application of the impugned provision to the challenger's own circumstances ." (Emphasis added)
While strictly speaking this is an aspect of the law of jus tertii , it is common to speak of a person not having standing to make a particular argument, and it is in that sense the issue arises in this case. So long as the distinction set out above is understood, there is perhaps little harm in so describing the question.
"To allow one litigant to present and argue what is essentially another person's case would not be conducive to the administration of justice as a general rule."
40 This basic rule is in truth well understood, and, if applied to this case, it is fatal to the appellant's attempts to argue the invalidity of the section by reference to the fact that, on its face, the section is capable of applying, and as a matter of history did apply, to consensual adult male activity in private. While the written submissions discuss the interesting observations of Hardiman J. in A. v. The Governor of Arbour Hill Prison  IESC 45,  4 IR 88, it is not necessary to consider them at length in this case. In A., Hardiman J. was prepared to go further than Cahill v. Sutton  I.R. 269 and conclude that, even where an Act had been declared to be repugnant to the Constitution (or, post-1937, it was inconsistent with the Constitution), and was therefore invalid, void and of no effect, a person previously convicted under the section would not be entitled to challenge the conviction relying on such invalidity unless they could bring themselves within the factual situation giving rise to the original determination of invalidity. Plainly that issue does not arise here.
41 Since, however, the rule laid out in Cahill v. Sutton  I.R. 269 is described as a general rule, and moreover one of judicial self-restraint, it might be argued that it remains open to the court in an appropriate case to depart from it. Here, it might be suggested (but was not) that s. 11 of the 1885 Act is so controversial and notorious, and that its historic application to the acts of adult males in respect of consensual private activity is so offensive to modern constitutional values, that the appellant should be allowed challenge it, and, if successful, achieve the result that the section would not just be removed from the statute book (since it was already repealed a quarter century ago) but would be retrospectively expunged from the law altogether, or at least as of 1937, and possibly 1922. But the very facts of this case show why this is not a desirable course. The necessary consequence of such a conclusion would be not just to remove the historic criminalisation of adult male activity, but could also remove with it the criminalisation of all gross indecency in whatever circumstances, including those circumstances still considered wrongful by the modern criminal law. This is a high price to pay for the dubious sense of moral superiority provided by condemning past failings.
42 It follows that the appellant does not have locus standi to argue that the criminalisation of consensual conduct between adult males is impermissible and renders s. 11 of the 1885 Act repugnant to the Constitution. In consequence, a negative answer must be given to the third limb of the question raised by the determination, and the appellant's appeal must fail. I would resolve the issues in respect of which leave was granted as follows:- 43 I have had the opportunity of reading in draft the judgment O'Malley J. delivers today, and which would come to the conclusion that the appellant has locus standi to challenge s.11 of the 1885 Act, and may moreover advance the argument that it criminalises consensual sexual contact between adults. The judgment of O'Malley J. conducts an impressive and comprehensive survey of the complex legislative provisions in relation to sexual offences which have existed in Ireland over the past century and a half. It concludes, as I understand it, that the operation of s. 11 is now repugnant to the Constitution, and therefore is not capable of being the basis of the criminal charge which the appellant now faces. I think it is fair to say that the judgment sets out the argument in a more sophisticated and powerful way than has been articulated to date in these proceedings, and deserves to be considered particularly carefully, not least since the detail of the argument may not have been considered in the same way until now.
44 As I understand it, the reasoning leading to the conclusion that the appellant may challenge s. 11 of the 1885 Act, and indeed succeed in such a challenge, is put in this way: the argument on behalf of the respondents (the Attorney General and DPP) that the appellant does not have locus standi to challenge the section is, or must be, that any claim to a right to engage in consensual sexual activity must be limited by constitutional considerations to consenting adults, and does not extend to any sexual activities with a child. That, in turn, involves the contention that the complainant in this case, while 15 and 16 years of age at the time of the alleged offences, was, for constitutional purposes, a child. However, it is argued that fixing the age of childhood is a step the court cannot, or perhaps should not, take, as it would risk retrospective invalidation of relationships entered into at that time, and further would risk criminalising conduct engaged in which was fully lawful at the time. Accordingly, it is said that the State respondents' challenge to the appellant's locus standi fails. The appellant is then entitled to assert that the section criminalises consensual adult sexual conduct, and furthermore is now unconstitutional, since the Constitution, at the very least since the passage into law of the Thirty-fourth Amendment on 29 August 2015, clearly now views homosexual relationships in the same way as heterosexual relationships. The final step in the chain of reasoning is that the court could not rescue the section from invalidity by severing any offending portion, or by reading the section down, so as to limit it to offences involving younger men under a certain age. To do so, it is said, would contravene the separation of powers, since it would involve the courts performing a legislative function and usurping the function of the Oireachtas. On this reasoning, the entire section must be struck down, with the effect that neither the appellant, nor anyone else, can now be prosecuted under s. 11 of the 1885 Act for any conduct or activity engaged in up until 1993, when, of course, the section was repealed.
From what date does invalidity attach?
45 In reaching this conclusion, O'Malley J. considers the traditional approach that if a pre-1937 statute is found to be inconsistent with the Constitution, it is held to be invalid as of the date of the coming into operation of Bunreacht na hÉireann. This view, which appears to follow from the language of Article 50, was articulated most forcefully perhaps in the judgment of Henchy J. in Murphy v. The Attorney General  I.R. 241, where, indeed, it formed the basis of his conclusion in that case that a post-1937 law found repugnant to the Constitution must be deemed to be invalid as of the date of its enactment into law. For the reasons set out by O'Malley J., I agree that this rigid structure may require to be reviewed somewhat, as indeed was discussed recently in the judgments delivered in this court in P.C. v. Minister for Social Protection  IESC 57, (Unreported, Supreme Court, 28 November 2018). I agree that there are at least three circumstances in which the ‘death certificate on enactment or coming into force of the Constitution' theory cannot apply without some qualification. As Walsh J. observed in McGee v. Attorney General  IR 284 in the passage quoted at paras. 45 and 46 in the judgment of O'Malley J., where, in relation to a pre-1937 statute, the facts, or the background law, or interlocking pieces of legislation change after the coming into force of the Constitution, then any inconsistency with the Constitution may arise for the first time after that date. In such circumstances, "if the inconsistency arises for the first time after the coming into force of the Constitution, the law carried forward thereupon ceases to be in force" (Emphasis added).
46 The same conclusion might be reached in cases where the provisions of the Constitution have themselves changed. Thus, for example, the effect of the Thirty-fourth Amendment of the Constitution does not mean that the legislative provisions which existed prior to 2015 and which limited marriage to opposite-sex couples became invalid as of the date of their enactment, or, if prior to 1937, from the date of the coming into force of the Constitution. It seems clear that any invalidity could only arise upon the coming into force of the amendment. A third circumstance in which such an issue may arise are those cases where it is recognised that the values protected by the Constitution are capable of development and reconsideration in the light of changing circumstances. It is not necessary to consider the full extent, or indeed limitations, of that approach here. To take an example, however, in the field of legal assistance at criminal trials, in The State (Healy) v. Donoghue  I.R. 325, the court found that the administration of justice now required something more in relation to legal aid than had been historically provided, but that did not have the effect of invalidating any prior convictions or procedures. The interpretation of the provisions allowing for legal aid which was required after the decision in Healy applied from that point, and not to prior trials or procedures. This follows from the very fact that it is acknowledged that this was a new interpretation of what the Constitution requires. I agree with the approach outlined by O'Malley J., and consider that it is a useful illustration of a broader principle that a degree of flexibility must be available, and that there are circumstances where it is appropriate to depart from an absolute rule of invalidity ab initio . Nor does it appear to me that this is in any way in conflict with the text of Article 50. The pre-1937 law may be carried on by Article 50, and any invalidity only identified later by reason of a change in circumstances. Although the Constitution only expressly provides that the courts have jurisdiction to declare any post-1937 law to be invalid having regard to the Constitution, it is a necessary implication that the courts have jurisdiction to declare that pre-1937 legislation was not continued under Article 50. It must follow, therefore, that if a law so continued may nevertheless become invalid because it is contrary to the Constitution the courts are required to uphold, then the courts have jurisdiction to so declare. Taking this approach, then, the question raised in this case becomes whether the provisions of s. 11 of the 1885 Act are now invalid having regard to the Constitution, or perhaps, as discussed above, whether it would now be inconsistent with the administration of justice under the Constitution to put the appellant on trial for alleged offences under that section.
47 I agree that it is possible, and perhaps necessary, to approach the case in this way. However, it should be recognised that this approach has implications for the rest of the argument. First, it follows that if the section only becomes invalid and unconstitutional as of 2015, then it must be treated for these purposes as both constitutional and valid up until then, and certainly in 1978 and 1979 when the conduct is alleged to have occurred. This recognition, however, cuts the appellant off from one of the more obvious routes to success in this case. It is normally the case, where a person is charged with a criminal offence and raises a constitutional challenge to the section creating the offence, that if the invalidity of the section is established, any such invalidity will date from the enactment of the section, or the coming into force of the Constitution, as appropriate. In either case, this has the further effect that the conduct the subject of the charge cannot be considered a crime at the time committed. The legislative provision falls away, and almost, as it were, vanishes from the statute book. No prosecution can be maintained, since, ex hypothesi , the conduct alleged did not contravene any (valid) law.
48 However, if it is accepted that invalidity only arises from either the date of the declaration of invalidity by the court, or from some identified point which occurs after the conduct alleged (and here, most obviously, on the passage into law of the Thirty-fourth Amendment of the Constitution), that has the effect that the conduct alleged was unlawful at the time, and contrary to a then valid statutory provision, and that the inconsistency with the Constitution is to prosecute the appellant or anyone else for such an offence now . If so, this makes absolutely clear that any locus standi to challenge the legislation must arise out of what the appellant now faces: that is, a current prosecution for sexual contact with a boy aged 15 and 16 years while the appellant was his teacher. He cannot, for example, seek to challenge the impact of s. 11 of the 1885 Act on his life more generally up until its repeal in 1993, nor can he seek to invoke the claim that the section also criminalises sexual conduct between adult men.
49 With great respect to the appellant's argument as distilled and refined in the judgment of O'Malley J., I cannot agree that the appellant has locus standi to argue that the section interferes with the right to privacy of consenting adults. I will attempt to set out my reasons as succinctly as possible:-
(1) There is an inconsistency, which I think is in truth irreconcilable, between contending that the question of capacity must be viewed in the context of the law and social attitudes as of 1978 or 1979, but that the constitutionality of the provision must be judged by the terms and understanding of the Constitution as of today.
(2) The focus on whether s. 11 of the 1885 Act is consistent with the constitutional text as understood today , means that the only question is whether it is now consistent with the Constitution to try the appellant for the offence of gross indecency with an adolescent who was at the material time under 17 years of age. It follows that a positive answer to that question, i.e. that it is not now contrary to the Constitution to try a appellant for such an offence, can have no necessary or other implication for the validity of relationships entered into or conduct in other circumstances in 1978 or 1979.
(3) The focus on whether it is now consistent with the Constitution to prosecute the appellant for these alleged offences casts two other things into sharp relief. First, while the law on social attitudes in relation to sexual matters has undergone dramatic change in Ireland over the last half-century, it has always been the case that the conduct alleged against the appellant has been regarded as wrong, whether viewed through the eyes of the new and pious State, or through today's understanding of the impact of sexualisation on young people, and it has always been prohibited by the criminal law. Second, it is apparent that the appellant does not contend that there is any constitutional right to engage in such activity, or that any constitutional right is invaded by a criminal prohibition of it.
(4) I do not think that the issue can be inverted in this way, and the onus cast on the State parties defending the legislation to identify an age below which the Constitution positively requires a criminal prohibition on sexual contact between a man and a boy or adolescent. The State parties may, at some point, have to assert constitutional justification for some criminal prohibition if the appellant can surmount the preliminary issue of standing. But any possible justification of the legislation is not relevant to the issue of locus standi . Standing involves a consideration of the personal circumstances of the appellant as affected by the impugned legislation, and a consideration of the constitutional rights engaged. Here, the personal circumstances are clearly provided by the criminal charges the appellant now faces. The right engaged can only be the appellant's right to privacy as identified in McGee v. Attorney General  IR 284, and subsequently in Norris v. The Attorney General  IR 36. The appellant could assert that his right in relation to sexual relations and sexuality more generally is infringed by the prosecution. However, as observed he does not do so, and perhaps understandably, since it would be a difficult claim which would, moreover, effectively challenge the post-1993 legislation. The fact that the appellant does not seek to assert the claim of unconstitutionality which he has standing to assert cannot give him a right to assert a claim which he does not have standing to assert, even if it would appear to be a strong and perhaps even irresistible one.
(5) If this is the correct way to address the question of locus standi , then it follows that the finding that it does not offend the Constitution as applied today to bring a prosecution does not have any implication for marriages contracted or conduct engaged in the late 1970s. Even more clearly, to find that the appellant simply does not have locus standi to make the claim that s. 11 of the 1885 Act infringes the constitutional right to privacy of adult males to engage in consensual sexual activity can have no such implication.
(6) It does not follow, in my view at least, that to identify an age limit above which the Constitution protects a right to privacy in sexual relations is necessary in order to fix the age below which a person is to be treated as a child or young person which the Constitution requires to be protected by the criminal law. It is indeed an unusual feature of the area involved in this case that the Constitution may require the prohibition of criminalisation of conduct between adults, but also, and at the same time, require the positive criminalisation of the same conduct when engaged with a person who is young or vulnerable or in need of protection. But it does not follow that identifying an age above which the Constitution protects privacy in respect of sexual conduct is one and the same point at which the Constitution requires the prohibition of conduct below it. It is conceivable that there is some area of discretion where the Oireachtas is free to set an age of consent without immediately defining the extent of the right to privacy, and, moreover, the age below which the Constitution positively requires criminalisation. If so, then a decision that the appellant's right of privacy does not extend to engaging in sexual conduct with an adolescent under 17 years of age would again have no implication for age, or childhood, and consequently no possible implications for marriages or other conduct engaged in more than 40 years ago.
(7) If, however, I am wrong in this regard, and there is a single bright line drawn by the Constitution which sharply divides the area where the Constitution prohibits criminalisation from an area where it conversely requires penalisation, then it must follow that this is a line drawn by the Constitution, and, however difficult to discern, would be a matter which the courts are obliged to determine, so that in doing so it could not be a usurpation of a legislative function.
(8) The argument advanced so skilfully by counsel for the appellant does not therefore persuade me that the appellant has standing to argue that s. 11 of the 1885 Act penalises consensual sexual conduct, including sexual conduct between adults, as suggested at para. 77 of the judgment of O'Malley J.
If the appellant has standing to make such an argument, it does not follow that success in such an argument will avail the appellant
50 If, however, I was persuaded that the appellant did have locus standi to advance that argument (that the section penalises consensual sexual conduct, including conduct between adults), and that argument succeeded, it would not follow in my view that such a conclusion by itself - that the section impermissibly criminalised consensual adult conduct - would avail the appellant and prevent his prosecution. Again, I will try to set out my reasons shortly.
51 Any conclusion that s. 11 of the 1885 Act was inconsistent with the Constitution would not be a conclusion that the operation of the section was offensive to the Constitution in every case in which it applied. Instead, it is acknowledged that if operated solely in respect of conduct by an adult with a person who was young, vulnerable, or perhaps engaged in the conduct for financial reward, that would not offend the Constitution. As Henchy J. observed almost 35 years ago in his judgment in Norris v. The Attorney General  IR 36, the invalidity would arise from a form of overbreadth. It is not that the section did not capture conduct deserving of prohibition by criminal law, but rather that it captured too much and swept too broadly. It is, in the language sometime adopted, over inclusive. It follows therefore that the operation of the section in some cases would not offend the Constitution. Accordingly, as I think O'Malley J. acknowledges, the question becomes important here because if the section could be limited in its scope to an area which did not trench upon any constitutional protected right to privacy of adults, it would be capable of operation against the appellant - or at least would mean that the appellant would have to establish that sexual conduct with a 15 or 16 year old adolescent was protected by the Constitution if he was to succeed. However, as I understand it, O'Malley J. considers that the operation of the section cannot be salvaged because of the doctrine of severance articulated in Maher v. The Attorney General  I.R. 140, and the approach to the separation of powers exemplified by the judgment of Hardiman J. in C.C. v. Ireland  IESC 33,  4 I.R. 1. I do not agree that the position is as clear-cut.
52 The Constitution addresses the question of invalidity in express terms at Article 15.4.2°. Maher v. The Attorney General  I.R. 140 is the earliest case on the approach of the courts to that Article. It is in my view to be noted that the Article explicitly recognises that there may be partial invalidity, and that a section or provision may be repugnant in some respect, but not in others. Furthermore, I would be inclined to read Article 15.4.2° as pointing strongly towards an approach that salvaged that part of the legislation that was not offensive to the Constitution. If repugnancy of the Constitution is established, then the provision is and must be invalid, " but to the extent only of such repugnancy" (Emphasis added). As I observed in para. 20 of my judgment in P.C. v. Minister for Social Protection  IESC 57, (Unreported, Supreme Court, 28 November 2018), Article 15.4.2° can be seen as a direction to match the remedy to the wrong. I doubt that the full scope of what Article 15.4.2° requires is satisfied by the ‘blue pencil' approach to severance set out in Maher and borrowed from familiar provisions of the common law in relation to the illegality of contractual provisions or other documents. As Dr. David Kenny observed in his interesting article ‘Grounding constitutional remedies in reality: the case for as-applied constitutional challenges in Ireland' (2014) 37(1) D.U.L.J. 53, there is a curious lack of symmetry between the development of rules limiting the nature and sweep of constitutional challenges (such as the development of rules as to standing, mootness, and ripeness) and the absence of any guidance on the consequences of finding that a piece of public general legislation is repugnant to the Constitution in some respect. In my view, the function of a court is to attempt in as clinical a way as possible to undo the consequences of any invalid act, but not more.
53 An important consideration, which in my view has not been sufficiently considered and which looms large in the case of historical sexual offences, is the impact of Article 15.5 of the Constitution, which establishes in constitutional terms the well-known antipathy of the common law to retroactive penal sanction: the Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission. The interaction of this provision with a formal and rigid theory of invalidity ab initio appears to mean that if a court invalidated a provision of criminal law, even in some small and relatively technical respect, the provision would be invalid and would, it appears, have created no valid prohibition. Accordingly, on this view the Oireachtas could not remedy the defect by enacting legislation, because to do so would, on this hypothesis, be a declaration of an act to be an infringement of the law that was not so at the date of the commission of the act in question.
54 Therefore, the contention made in some cases that the court is positively obliged by the separation of powers and respect for the legislative branch to simply identify the gap created by its decision, but leave to the Oireachtas the choice of remedy is difficult to apply, when the decision of the court itself puts the area beyond legislative reach. Instead, any finding of invalidity ab initio which cannot be the subject of severance in accordance with the narrow approach of Maher v. The Attorney General  I.R. 140 has the effect of creating an area of constitutional immunity for behaviour which was sought to be regulated, and perhaps prohibited, by the legislation. That immunity arises even if, as here, it is accepted that the Constitution positively requires the protection of young and vulnerable people by such legislation. If such consequences were in prospect, then I would consider it as an appropriate circumstance to exercise the jurisdiction identified in N.H.V. v. Minister for Justice and Equality  IESC 35,  1 I.R. 246, and to adjourn or suspend the making of any declaration of invalidity to permit the passage of amending legislation. Such a course would be particularly appropriate here, where the conclusion of the court would be on this hypothesis that it is contrary to the Constitution now - that is, since 2015 - not to provide for an age limit for gross indecency offences, but, on the same hypothesis, that there was no such invalidity in the section at the time.
55 Finally, it would in my view be a particularly rigid application of the approach in C.C. v. Ireland  IESC 33,  4 I.R. 1 to solemnly maintain that the court would be impermissibly intruding on the legislative domain if it were itself to fix the relevant age, even temporarily and pending further legislation, on the basis that the choice of the relevant ages would be a matter for the discretion of the Oireachtas, and something about which the court could not speculate. But in this case, the repeal of s. 11 of the 1995 was effected by the 1993 Act, which itself created by s. 4 the same offence limited to conduct with male persons under 17 years of age. It is difficult to accept that respect for the discretion of the Oireachtas would require the court to abstain from a declaration, even on a temporary basis, that a section could only be applied to cases where a complainant was under 17, and would instead, respectfully no doubt, have to invalidate the legislation in its entirety.
56 It is noteworthy that in a very similar area the courts have taken a more nuanced approach in preference to a blanket finding of invalidity. Thus, in S.M. v. Ireland (No. 2)  IEHC 280,  4 IR 369, Laffoy J. addressed the fact that, as a matter of history, the legislation applicable in Ireland treated indecent assault in separate legal provisions depending on whether the victim of the assault was male or female, and, indeed, until 1981 had provided for separate and different penalties. Furthermore, it was only in 1990 that a single, gender-neutral statute was enacted. Laffoy J. held that the applicable provisions of s. 62 of the 1861 Act (which governed indecent assaults on males prior to 1981) and which provided for a maximum 10 years sentence, were invalid having regard to the Constitution because the corresponding penalty provided for by s. 52 of the same Act (and maintained subsequently in s. 6 of the Criminal Law Amendment Act 1935) in respect of assaults on females was only two years. However, Laffoy J. held that the offence of indecent assault was a common law offence, and that s. 62 therefore only provided for sentence. Furthermore, at common law, the sentence was unlimited. However, she did not consider that that rendered any sentence unconstitutional. Instead the court was prepared to make a declaration that the sentencing power at common law for indecent assault on a male was limited by reference to the corresponding statutory penalty for assault upon a female which, until 1981, was two years imprisonment. This approach avoided the collapse of the entire regime for punishment of historic indecent assaults so that when the courts came to consider the penalty applicable at common law for assaults on male victims in the period between 1981 and 1990, when by statute the penalty in respect of such assaults on female victims was 10 years, the two year limitation no longer applied and the court had power to sentence offenders to up to 10 years imprisonment: see Director of Public Prosecutions v. Maher  IESC 31,  2 I.R. 634
57 These are particularly instructive samples, because they show the impact of modern decisions, whether legislative or judicial, on the regime for historic sex offences. The impact of these developments can be seen by considering a very serious case of predatory abuse of a young person in the period before 1981. Such conduct would always have been regarded as extremely serious, and capable of attracting charges under s. 61 of the 1861 Act, s. 11 of the 1885 Act, and s. 62 of the 1861 Act in respect of indecent assault, in which case the offender could be liable to 10 years imprisonment. However, as a result of the repeal of the 1993 Act and judicial decisions, it is not now possible to prosecute a person for the offence under s. 61; if the appellant's argument here succeeds, such a person could not be prosecuted under s. 11 of the 1885 Act; and, if the person is capable of being prosecuted and convicted under s. 62 of the 1861 Act, the penalty would be limited to two years imprisonment. Yet all of this would have occurred at a time when the Constitution is understood to require that such victims be protected by significant criminal sanctions. I fully agree that any current prosecution for historical offences must be viewed by the constitutional standard applicable at the time of trial, but nothing in the Constitution requires the application of such mechanical and formal rules as to put any such offences beyond the reach of prosecution.
58 Finally, I think it is necessary to address an argument visible in the background to this case, though not perhaps fully articulated. Locus standi is, after all, a rule of practice rather than a rule of law, and one which admits of exceptions dependant on the justice of the case. While it might be said that in any case in which it is held the appellant lacks locus standi or is advancing a jus tertii there is nevertheless a theoretical chance that the claim, if permitted, would have been successful and would have invalidated the relevant provision, here that position might be said to be much more than a theoretical possibility. Why, then, should a court bound to uphold the Constitution not take the step of identifying and invalidating a notorious provision which has blighted the lives of many men during the 20th century in this country, particularly where other plausible arguments against the constitutionality of the section can be envisaged? One answer is, perhaps, that the attraction of sweeping gestures in the nature of a comprehensive repeal is what gave rise to some of the difficulties subsequently encountered in the case law, and is what, accordingly, suggests caution now. More importantly, the problem has always been one of overbreadth: as a matter of history, the section did much more than criminalise consensual sexual conduct between adult males, although that is something for which it is now infamous. As Professor Ferriter's study shows, as a matter of history in Ireland, the section was more often invoked in relation to conduct involving older men and young boys, than consenting adult men. As the legislative provision in the neighbouring jurisdictions recently introduced to permit the retrospective pardon of persons convicted under this and similar sections recognises, only those convictions which are incompatible with modern social standards should be the subject of such a pardon. If we consider that trial today for historic offences should be permitted, then modern constitutional standards should equally apply. If the conduct charged would still be treated as criminal in a manner consistent with the Constitution, then there is, in my view, nothing offensive to the Constitution in permitting such a prosecution to proceed.
59 The Chief Justice also delivers a judgment today setting out the reasons why he would prohibit the trial of the accused, and thus, with O'Malley J., would dissent from the decision of the majority of the court. However, as I understand it, the Chief Justice, while drawing on the material set out so lucidly in the judgment of O'Malley J., would come to a somewhat different conclusion to one she has reached, and for different reasons. The Chief Justice would not make a declaration that the s. 11 of the 1885 Act (as continued by s. 27 of the 2005 Act) is unconstitutional, but rather would make a declaration that it would not be permissible under the Constitution to try the accused today for an offence contrary to s. 11. He would do so because he considers the appellant would have had a strong case to challenge the constitutionality of the 1885 Act at the time of the offence on grounds that the complainant would have been regarded by the law as an adult, and therefore might have succeeded in securing a declaration that the 1885 Act was inconsistent with the Constitution. Accordingly, he considers that the appellant should not "lose the benefit of being able to make that argument because the case is now being maintained at a time when the general legislative regime has increased the age at which persons are considered to be capable of giving consent to otherwise lawful sexual activity".
60 I agree with the Chief Justice that the issue is a difficult one, and that the matters considered in the court's deliberations are of quite unusual and indeed extraordinary complexity and subtlety. It is plain from the careful judgments delivered in this case that it is entirely possible to take a different view of the issues depending in part upon the starting point from which the case is analysed. There is a limit to the extent to which argument can expect to persuade. Accordingly, it will, I hope, be sufficient to set out relatively briefly why, with great respect, I am not persuaded by the reasoning of the Chief Justice.
61 At the heart of the argument is the concept that there was a "general view of the age of sexual consent for males" at the relevant time, that is, in the years 1978 to 1980. However, that is, I think, an unsteady foundation for the argument. There was no "general view", and still less a "general age of consent" at that time. There were different ages at which it was unlawful to engage in certain acts with certain people. Buggery, for example, which is alleged in this case, could at the relevant time have been prosecuted (but cannot now as a result of the decision in Director of Public Prosecutions v. Devins  IESC 7,  4 I.R. 491) and was an offence irrespective of the ages or the gender of the person involved. Additionally, of course, there was no age limit in respect of the offence of gross indecency. Accordingly, what there was, at the time, was an age limit for certain types of sexual conduct between adolescent males and females. This cannot be construed as a general age of consent. But this, and other aspects of the reasoning of the Chief Justice, illustrates the fact that below the surface of this argument lies, I perceive, a submerged equality-type claim, which I will address shortly.
62 In any event, I do agree that it is possible to prohibit a trial today of an historic offence which could properly have been tried at the relevant time on the basis that either changes in the legislative and factual background or in the Constitutional text or understanding mean that such a trial would no longer be considered to be a trial in due course of law under Article 38. I also agree that such an approach can usefully be taken in this case. That test is, however, a simple one: is it offensive to the Constitution to prosecute an adult male (perhaps in a position of authority), for alleged sexual behaviour including buggery with a boy (a pupil) who at the relevant time was between the ages of 15 and 17 years? That argument, which, if accepted, would presumptively invalidate the legislative provisions in place since 1993 set out earlier in this judgment, was not made in this case, and is not endorsed in either of my colleagues' judgments. In addressing that test it is, as the Chief Justice recognises, somewhat incongruous (and in my view fundamentally inconsistent) to apply today's constitutional standards for the purposes of considering consensual activity between adults of the same gender, and at the same time, to apply mid-20th century standards as to what constituted adulthood, or at least the age below which any sexual conduct with a young person was wrongful, irrespective of consent. If the question is whether it is now offensive or repugnant to the Constitution to prosecute the person, so that the trial would not be a trial in due course of law, then the question must be what the Constitution is now understood to provide.
63 Further, the question of whether it would be permissible to try an adult today under s. 11 of the 1885 Act is a question of the values that the Constitution now embodies and protects. The question of the age at which an adolescent male could engage in sexual conduct with a woman in the 1970s (or indeed at any period over the last century) is a question of the standards set by statute for the time being. The precise age of consent in such circumstances is not a constitutional standard, although, as observed, the Constitution does require that some age be set, and it is fair to say that there is an interaction between what the Constitution requires and what is provided by statute from time to time. The fact remains, however, that if the question is whether it is offensive to the Constitution to try the accused today, it is not obvious why consideration should be given to other statutory provisions applicable in different circumstances in 1978.
64 The contention that it is impermissible to try a person for sexual conduct with an adolescent male between the ages of 15 and 17 would also have the surprising consequence that, had the Oireachtas in 1993 taken a slightly different course akin to that adopted in the UK in 1967, had expressly legislated for prior cases, and had provided that no one should be prosecuted for an offence with a person over the age of 17, that would, it appears, also be unconstitutional, even though, in so doing, the Oireachtas would be reducing the field of application of the criminal offence, and, moreover, bringing it into line with that which was to apply prospectively from that date.
65 It is true that, as the Chief Justice observes, the appellant, if prosecuted in the period from 1978 to 1980, could have raised the argument that a section was unconstitutional because it criminalised consensual activity between adults, and that, at the relevant time, the complainant was to be treated as an adult, or at least as a person with whom sexual conduct could not be properly criminalised by analogy with the law relating to offences by females. But I cannot see that the appellant has suffered in any way in this regard by reasons of the passage of time. First, it is clear beyond any doubt that such a claim would have failed in the years 1978 to 1980. The passage of time has improved the arguments a plaintiff might make in this regard by reason of the changes in the text and indeed the understanding of the Constitution. Furthermore, the appellant is still entitled to advance the claim that to prosecute him for sexual conduct with an adolescent male between the ages of 15 and 17 is an impermissible interference with his right to privacy. However, that argument is studiously not made here. What has changed is that the applicable statutory provision in 1978 to 1980 did not regard certain sexual contact by a male between the ages of 15 and 17 with a female over that age as criminal. The statutory provisions in relation to offences in respect of a female between the ages of 15 and 17, or, perhaps more relevantly, heterosexual conduct with an adolescent male between 15 and 17, might be potentially relevant to an equality claim, but even in that context the change in the legislative provisions has not affected the appellant's right to advance such a claim. That claim, if made, would have to be assessed by reference to the relevant statute law relating to males and females, both complainants and accused, as of 1978 to 1980. Accordingly, the range of arguments, and the prospect of their success, has not in any way diminished by reason of the passage of time.
66 The fact is that, looked at by reference to contemporary standards as reflected in the criminal law, the one notable point of consistency in an area of rapidly changing law is that, at every relevant point, the statute law of the State has considered that it has not been lawful for an adult man to have sexual contact with an adolescent male under the age of 17. Indeed, the Criminal Law (Sexual Offences) Act 2017 treats such conduct, particularly when it is claimed that the person against whom the conduct is alleged is in a position of authority, as a particularly serious offence.
67 Lest it be considered that all these arguments depend upon the fact that the appellant has limited his case to a contention that the application of the 1885 Act is now unconstitutional, I should say that in my view, the analysis would not change if the appellant had taken the course of a full assault on the decision in Norris v. The Attorney General  IR 36, and had invited the court to find that the decision cannot now stand, not merely because of the terms of the Constitution as it stands today and as it is interpreted, but rather because the decision was always clearly wrong, and should be overruled. The Chief Justice observes at para. 5.3 of his judgment that the point was not argued, and it would be wrong to express any significant view on the issue other than to indicate that he considers that there is an argument to the effect that the minority judgments are more persuasive than those of the majority. For my part, I am more than content to approach this aspect of the issue on the assumption that there would be a strong argument that the dissenting judgment of Henchy J. in particular might well commend itself to any court before which the issue came, even by reference to the Constitution as it stood in 1980. But that would not mean that the appellant's claim here must necessarily succeed. It would mean that Norris would no longer be binding authority determining the outcome of any similar challenge as far as any inferior court is concerned, nor would it be binding on this court (that is, if it was considered in accordance with the jurisprudence of Mogul v. Tipperary (N.R.) C.C .  1 I.R. 260 that the decision was clearly wrong, which I assume for the purposes of this argument). But the section, at least as continued by the Interpretation Acts, would still exist. The appellant would still have to show that, freed from the constraints of the reasoning of the majority in Norris and looked at afresh, or perhaps even accepting the correctness of the dissenting view in Norris , that, as applied to him, the section was unconstitutional. This is so as a matter of principle, but is plainly so in the light of the judgments in Norris , where Henchy J. acknowledged that any right to privacy would not extend to sexual contact with younger people, and in any event could be subject to other limitations. What the appellant plainly cannot do is contend that if this court or any court were to be satisfied that Norris had been wrongly decided even at its time, the effect would be that s. 11 of the 1885 Act should be treated as wholly invalid since the time of the decision in Norris , with the effect that the appellant could benefit from its invalidity. That would be to fundamentally offend against the important principles of standing set out in Cahill v. Sutton  I.R. 269: the appellant can no more succeed by contending that Norris was wrongly decided than he can now seek to rely on the facts in Norris to assert the invalidity of the section. He is restricted to the facts of his own case.
68 It appears to me that what lies in the background in the judgments of my colleagues is really a submerged equality claim. This is not what might be termed a self-standing or vertical claim, i.e. that it is an impermissible interference with a constitutional right to privacy to treat as criminal and prosecute a man for sexual contact of the nature alleged here with an adolescent male between the ages of 15 and 17 (although it is possible to envisage circumstances in which such a claim might plausibly be advanced). It is rather a relative, comparative, or horizontal claim, i.e. that even if it is permissible to criminalise such conduct between males, such conduct cannot be criminalised when the same or similar conduct between opposite sexes is not. However, there are some obvious difficulties with addressing this argument in circumstances where it is not only not within the three issues on which leave was granted, but was expressly excluded at para. 11 of the determination of this court of 26 October 2017. It follows that no argument was addressed to the issue in this court. However, in any event, it should not be assumed that any argument in this regard has merit. As the Chief Justice points out at para. 5.2 of his judgment, differences in treatment between genders and in relation to sexual offences (and, I would add, particularly as a matter of history) may not be automatically impermissible, perhaps particularly where the complaint is that the prohibition is not objectionable in itself, and may indeed perform a constitutional obligation, but is under-inclusive: that is, that it does not affect more people alleged to be similarly situated (see M.D. (a minor) v. Ireland  IESC 10,  1 I.R. 697). It is sufficient for present purposes to observe that an equality claim which cannot be advanced directly here cannot be pursued indirectly under the guise of an asserted general age of consent.
69 It may be thought that all this argument is excessively refined and unnecessary in the context of one attempted prosecution for conduct occurring almost 40 years ago, and where the class of people affected by the decision must necessarily be small and decreasing over time. However, the history of social, legislative, and constitutional change, particularly in the area of sexual relations, has been rapid but not linear, and it would be foolish to think that those developments have stopped. Historic attitudes to sexual matters when embodied in legislation must be carefully scrutinised, and where an inconsistency with the Constitution is identified, it must be remedied. But as time goes on, the problems posed by findings of unconstitutionality may pose similar problems in other areas. The Constitution is not, or should not be, such a blunt instrument that excising the invalidity or even precluding the unconstitutional use of legislation should come at the price of invalidating even those portions of the code which seek to prohibit conduct which is regarded today as just as, if not more, serious than it was when the provision was first enacted. Here, the striking fact is that what is alleged against the accused has always been regarded as a serious criminal offence punishable by law. The accused person, having been charged with such an offence, has standing to argue that the criminalisation of such conduct is invalid having regard to the Constitution by reason of the fact that it is alleged to breach his constitutional rights, and in particular his constitutional right to privacy. However, he has not made that case, and cannot now seek to challenge s. 11 of the 1885 Act on a basis upon which, if utilised, it would be plainly vulnerable, namely that it criminalises consensual sexual activity between others.
70 There is no doubt that this area is, as O'Malley J. has observed, one that is particularly emotive. The facts of this case, and more generally the questions arising on trials for offences occurring many years ago in very different social circumstances, are matters upon which strong views might no doubt be held and expressed. I have sought to exclude from my consideration any views as to the nature of the conduct alleged, the propriety of the charges, the position of the complainant, or indeed the position of the appellant. It will be for a judge and jury at the trial to consider all the complex questions of law and fact which may arise in this case and attempt to arrive at a just decision. The only thing decided in this judgment in relation to the case is that the Constitution cannot be said to preclude such a trial.