Supreme Court to hear appeal by former teacher facing charges of gross indecency against a male pupil

The Supreme Court has agreed to hear an appeal by a former school teacher concerning the constitutionality of his proposed prosecution on charges of gross indecency against a male pupil over a two year period from 1978-80, allegedly beginning when the boy was aged almost 16.

Supreme Court to hear appeal by former teacher facing charges of gross indecency against a male pupil

The Supreme Court has agreed to hear an appeal by a former school teacher concerning the constitutionality of his proposed prosecution on charges of gross indecency against a male pupil over a two year period from 1978-80, allegedly beginning when the boy was aged almost 16.

The court granted leave to appeal on the issue whether consent of both parties is an essential ingredient of the offence of gross indecency under Section 11 of the Criminal Law Amendment Act 1885.

While Section 11 was repealed in 1993, the DPP says he is still entitled to bring prosecutions under it for historic offences committed before 1993.

In a published determination, a five judge Supreme Court said it will hear an appeal by the former teacher against the Court of Appeal’s dismissal of his challenge over his proposed prosecution.

An arguable point of law arose from the COA finding that Section 11 encompassed both consensual and non-consensual activity, it said.

The question of whether or not consent is a necessary ingredient of the offence that must be proved by the prosecution "is very much in dispute", it said.

The correct resolution of that issue was of "general public importance" because the DPP says he is entitled to use Section 11 for historic offences committed before its repeal, it said.

The issue may also be of direct relevance to the charges against the applicant in terms of the ingredients of the offence, the treatment of the complainant’s evidence (since he was over the age of criminal responsibility) and the appropriate sentence if convicted.

If the court finds consent of both parties is an essential ingredient of the offence, it will decide whether the man has the necessary legal standing to challenge the constitutionality of Section 11 and, if so, will rule whether or not Section 11 is constitutional.

The former teacher denies he committed offences contrary to Section 11 between November 1978 and June 1980, when he was a school teacher, against a then pupil aged between fifteen years and eleven months and seventeen years and six months.

The DPP has said no charge will be proceeded with where the complainant had reached the age of seventeen.

The Supreme Court said the alleged acts would have constituted criminal offences between 1978 to 1980 whether or not the complainant consented. In the absence of consent, the applicant would also be prosecutable today on charges of buggery and indecent assault in respect of those acts committed at that time, it said.

There was no doubt the alleged activity, if entered into today, would constitute serious offences under the legislation that replaced Section 11 in 1993 or provisions enacted in 2006, it also said. However, the question in this case was whether it is in accordance with the Constitution to prosecute the applicant with gross indecency under Section 11 of the 1885 Act.

In 1984, the Irish Supreme Court dismissed a challenge by Senator David Norris to the constitutionality of Section 11 but the provision was found contrary to the European Convention on Human Rights in two judgments of the European Court of Human Rights.

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