The possession of images showing sexual acts between an adult woman and a dog is not a sexual offence in Ireland, a High Court judge has stated in a ruling on an extradition case.
Mr Justice Kerida Naidoo was asked to decide whether a 72-year-old man, who can't be named due to a court order because of the nature of the charges, should be extradited to the UK to face charges relating to the possession of two photographs of an adult female engaging in sexual acts with a dog.
The Northern Irish authorities wanted to prosecute the man for two charges of possessing "extreme pornography", in relation to the alleged images of bestiality, and a further 15 charges for allegations that he made indecent images of children.
Mr Justice Naidoo agreed to surrender the 72-year-old to face the allegations of creating indecent images of children, but said there is no offence in Ireland that corresponds to the possession of extreme pornography.
He dismissed the State's argument that the charge corresponded to offensive conduct of a sexual nature.
The act of possession, the judge said, "is not conduct that is in itself sexual" and is "not offensive in and of itself".
He agreed with submissions made on behalf of the respondent that if the legislature had intended to criminalise the possession of adult pornography, it would have done so explicitly.
The man has now been taken into custody as he awaits his surrender to the UK authorities where he may be tried for the allegations relating to creating indecent images of children, but he may not be tried for the allegation that he possessed two images of bestiality.
The respondent was arrested in Dublin in January by members of the Garda Extradition Unit on foot of a warrant issued by a Northern Irish Magistrates Court last November.
The warrant stated that hundreds of indecent images of children were discovered on a computer hard drive seized by the Police Service of Northern Ireland at the accused's then address in Belfast in September 2007.
The offences contained in the warrant are alleged to have occurred on dates between July 2004 and September 2007.
At a previous hearing, Joanne Williams BL for the Minister for Justice said that if convicted, the man would serve a maximum of ten years if found guilty in relation to the creation of indecent images of a child.
Ms Williams said that the two images of extreme pornography depicted a female’s mouth being penetrated by a dog’s penis and a female’s vagina being penetrated by a dog’s penis. She said the issue was whether this constituted an offence under domestic law.
She said that in Northern Ireland, legislation exists that makes it an offence to engage in any behaviour of a sexual nature likely to cause fear or alarm.
Ms Williams said that the legislation in Northern Ireland relates to the possession of an extreme image that is grossly offensive or disgusting or obscene in character. This includes oral sex with an animal, she said.
Counsel for the respondent, Brian Storan BL said: “It would be one thing if we were told he is accused of posting these pictures onto lampposts or showing them to people, but possession is not criminalised in this jurisdiction.
"The act he will be prosecuted for is possession, and that is not a criminal offence here. We have to be very careful,” said Mr Storan.
He said that it was clear that there was no offence in common law, but in England legislation has been brought in that criminalises sexual behaviour that threatens a life, or in cases where someone has sex with a corpse or sex with an animal.
He said that the action requires intention and not just recklessness or possession. He said that if someone possesses extreme pornography privately, that is not a criminal offence in this jurisdiction.
