Supreme Court allows appeal on sexual assault charges, establishing reasonable mistake of age as a valid defence.

[2005] IESC 48

THE SUPREME COURT

Appeal No. 357/04

Appeal No. 358/04

Denham J

Hardiman J

Geoghegan J

Fennelly J

McCracken J

C.C.

Applicant/Appellant

and

Ireland, the Attorney General, and The Director of Public Prosecutions

Respondents

and

P.G.

Applicant/Appellant

and

Ireland, the Attorney General, and The Director of Public Prosecutions

Respondents

Judgment delivered on the 12th day of July, 2005 by Denham J.

1. Three cases were heard together in the High Court and, judgment was delivered by Smyth J. on the 6th day of June, 2004, where,

for the reasons given, the declarations sought by J. M., C. C., and P. G., were refused. Against that order and judgment C. C., and P.

G., have appealed to this court.

2. J. M., has appealed the costs order only, which issue will be addressed at a later stage. C. C. and P. G. proceeded before this

Court on substantive issues.

3. I shall consider first the appeal of C. C., and then the case of P. G...

The Application of C. C.

4. The applicants are each awaiting trial in the Dublin Circuit (Criminal) Court, having been charged with sexual offences against the

same complainant.

5. C. C. is charged with four offences, namely:

(i) That on the 20th day of July, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to

s.1(1) of the Criminal Law (Amendment) Act, 1935;

(ii) That on the 2nd day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years, contrary to

s. 1(1) of the Criminal Law (Amendment) Act, 1935;

(iii) That on the 10th day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to

s.1(1) of the Criminal Law (Amendment) Act, 1935; and,

(iv) That on the 16th day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to

s.1(1) of the Criminal Law (Amendment) Act, 1935.

6. The complainant was approximately 13 years 10/11 months at the time of the alleged offences, having been born on the 3rd day of

September, 1987.

7. C. C. made a statement to the Garda Síochána in which he stated that he had consensual sexual intercourse with the complainant.

It was submitted that there were grounds upon which he could have believed reasonably that the complainant was over 15 years of

age. He instructed his solicitor that he had believed that the complainant was over 15 years of age. On behalf of C. C. it was

submitted that his reasonable belief in the age of the complainant would form part of his defence if it were not for the apparent

prohibition in law of such a defence.

8. The reliefs sought by C. C. on this application for judicial review include:

(a) A declaration that knowledge, reasonable belief as to the age of the complainant, on the part of the applicant, is a defence.

(b) A declaration that the exclusion of the defence of mistake as to age is repugnant to the Constitution, that if the offence

created in s.1 (1) of the Criminal Law (Amendment) Act, 1935 is an offence of strict liability it is inconsistent with the

Constitution.

Out of time

9. The learned High Court judge held that the applicants’ application for judicial review was out of time and had not been made

promptly. However, he determined that the issues in the instant case were far too important to permit the judicial review application

to be decided on a time point only unless some serious prejudice has or is likely to be caused. He held that prejudice in this context is

not confined to the parties but is to be considered in the context of a fair and efficient justice system to the whole community.

Further, he relied on the public policy that proceedings relating to public domain law should take place promptly, except where good

reason is furnished. In all the circumstances, including the delivering of a fair and just legal system, the learned trial judge permitted

the applications for judicial review proceed. On this preliminary issue I am in agreement with Geoghegan J. that as the indictment had

not been served in either case neither applicant was out of time to seek leave for judicial review.

The propriety of an application for judicial review

10. Submissions were made that the proceedings were a moot, that the trial had not yet taken place, that the Court would have to

deal with hypothetical facts, and that thus the matter was inappropriate for judicial review.

Locus Standi

11. The applicants have locus standi to seek judicial review, they are in imminent danger of a criminal trial which affects them: Curtis

v The Attorney General [1985] I.R 458. However, that being established, it is necessary then to consider whether the remedy of

judicial review is appropriate given that the application is made in relation to a criminal process.

12. In all the circumstances of this case, including the fact that the learned trial judge had given a judgment on the merits of the

case, this Court was in a position where it had no real choice and I am satisfied that it had to proceed to consider the substantive

issues.

13. However, I would add a few words on the situation. These three cases are at their preliminary stages. The High Court found that

the relevant law, from decided cases, to guide the Court, was as follows:

“1. The overwhelming responsibility reposed by the law and the Constitution on the trial judge is to ensure the fairness of the

trial. An exceptionally important aspect of this function is to adjudicate on the evidence which should be placed before the

jury…

2. The Circuit Court did not have jurisdiction to hear and determine an application to the effect that a statute enacted prior to

the coming into force of the Constitution was inconsistent with the Constitution. (The People (Director of Public Prosecutions) –

v- M.S). [2003] 1 I.R 606).

3. Judicial review was an available remedy in principle which permitted challenges to decisions made in the course of a criminal

trial, but only in the most exceptional circumstances. (DPP v Special Criminal Court) [1999] 1 I.R 60)”.

The learned trial judge considered whether these cases should fall into the category of exceptional cases. He raised the question:

“If every case in criminal law prior to trial in the Circuit Court raised a question of the constitutionality of each and/or every or

any paragraph, subsection or section of criminal law statutes which have or has not been expressly and definitively been the

subject of at least a decision of the High Court, more probably a decision of the Supreme Court, is the remedy of judicial review

to be available?”

The learned trial judge referred to D.P.P. v Special Criminal Court [1999] I.R. 60, where the undesirability of applications for judicial

review in the currency of trial was stressed.

However, these three cases may be distinguished from a situation where judicial review is sought in the currency of a criminal trial.

These applications have been brought at the preliminary stage of the criminal process. No indictment has yet been laid, although the

charges are known. There is an important difference between considering an application for judicial review in the currency of a trial as

opposed to an application prior to the commencement of the trial, prior to the laying of an indictment. While an application for review

in the currency of a trial, may only be successful in the most exceptional circumstances, applications for judicial review prior to trial

fall into a different category. However, even in these latter cases it is still inter alia within the discretion of the Court to refuse the

application for judicial review on the grounds that the issue would be best met at the trial by the trial judge.

14. The facts in this case are somewhat hypothetical. However, the kernel issue is clear and it is the query as to the availability in

law of a defence, as to whether a mistaken belief by an applicant as to the complainant’s age is a defence under the law.

Consequently, while the facts are not yet established, and have yet to be found, and no part of this judgment should be read as in

any way taking from the jury the decision-making power on the facts, this Court is in a position to consider the law and construe the

statute and determine whether under the law such a defence is available.

15. There is no doubt but that it is wholly undesirable that a criminal trial be delayed while an application for judicial review proceeds.

However, I am satisfied that in all the circumstances of this case, including the judgment of the High Court on the substantive issue,

the facts and the issues raised, that in these cases there were circumstances so as to justify proceeding by way of judicial review.

The alternative options, including an appeal to the Court of Criminal Appeal and perhaps ultimately on a point of law of exceptional

public importance to the Supreme Court, or a case stated, may not enable a fair and just trial. It would be unfair to force the three

applicants to endure a trial without final determination of the issue of the defences available, which goes to the core of the

prosecution and the defence. It is fair and just that the applicants have a legal determination, a statutory interpretation, in all the

circumstances prior to the trial. Consequently, I would uphold the decision of the High Court in this issue. However, this decision

should not be regarded as a precedent determining that an issue of statutory interpretation would routinely be circumstances such as

to provide a basis for a judicial review pre-trial.

Statutory Interpretation

16. At the core of this case is the interpretation, the construction, of the relevant legislation, being s.1 (1) of the Criminal Law

(Amendment) Act, 1935, hereinafter referred to as the Act of 1935.

17. The offences of which C. C. is charged are to be found in s.1 (1) of the Act of 1935, which provides:

“Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be

liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term

not exceeding two years.”

The words of this section fall to be construed. I shall approach this construction from three aspects. First, consideration of the words

of the section; secondly, consideration of the common law, and thirdly, I shall consider the legislative history.

18. First, the words of s.1 (1) of the Act of 1935 require to be considered. The section states that “any person” may be charged with

this offence, if the other elements are present. The section uses the word “unlawfully” but does not describe it further. The term

“carnally” indicates the type of offence in issue. The offence relates to “any girl” under the age of fifteen years, so the age of the girl

is an element of the offence. This offence is a serious offence, at that time it was classified as a felony.

The general rules of statutory interpretation apply. Thus, the intention of the legislature is best construed from the words of the Act.

If the words are clear and unambiguous then they should be given their ordinary and natural meaning. In this case the words of the

statute are clear and ambiguous and the meaning of the statute appears clearly from the words. The words themselves do not create

an offence of strict liability. On the words of the statute there is no exclusion of the requirement of mens rea. As it is only if the

words are not clear that one may proceed to a construction by implication, the second step does not arise if one applies the general

rules of the interpretation of statutes to this section.

The legislature may have been under a mistaken view of the common law in 1935 (I shall consider the common law later in this

judgment). But that cannot be a basis for an interpretation of, or implication to be made into, the words of the Act. I adopt and apply

the approach taken in Howard v Commissioners of Public Works [1994] 1 I.R. 101, that in interpreting statutes the task of the courts

is to ascertain the intention of the legislature and that this is primarily to be sought in the words used in the statute. Further, I rely

on the judgment of Finlay C.J., where he stated at p.140:

“If, indeed, a court were satisfied upon the terms of a statute itself, that it was based upon a misapprehension as to legal

principles which would be applicable to the subject matter outside of any statutory provisions, the error thus arising and the

consequence arising from such error could not properly, having regard to the separation of powers, be corrected by a court but

could only be corrected, if it wished to do so, by the legislature itself.”

As will become apparent later in this judgment, I am satisfied that there was a misapprehension as to the common law, arising from R

v Prince [1875] 13 Cox C.C 138, which was applicable to this type of offence. However, this error thus arising, the consequence could

not properly be corrected by a court by way interpretation of or, construing by implication, s.1 (1) of the Act of 1935. The court

could not interpret or imply that mens rea was not part of the offence, as the issue was not addressed in the words of the statute,

the Act having passed into law at a time when there may have been a misapprehension as to legal principles arising from the decision

in R v Prince.

Consequently, on this first approach to the construction of the words of the section, mens rea is not excluded.

Case Law

19. A requirement of mens rea is not stated expressly in s.1 (1) of the Act of 1935. However, there have been cases over the last

130 years as to the nature of mens rea in similar offences.

Thus, secondly, I shall consider the common law. The common law on the issue of mens rea in similar offences has rested on R. v.

Prince [1875] 13 Cox C.C. 138 and similar cases following R. v. Prince.

R v Prince

20. It has been assumed that the decision in R v Prince applied to this offence. Thus I will consider the case in detail. R v Prince was

decided on 26th June, 1876, and was a decision of a court of sixteen judges. The defendant had been convicted under s.55 of the

Offences Against the Person Act, 1861 of unlawfully taking an unmarried girl under the age of sixteen out of the possession and

against the will of her father. It was proved that the defendant did take the girl and that she was under sixteen, but that he bona

fide believed, and had reasonable ground for believing, that she was over sixteen. It was held, by fifteen judges, Brett J. dissenting,

that the latter fact afforded no defence, and that the prisoner was rightly convicted. Blackburn J., giving a judgment with which

fourteen judges agreed, said that the question was reduced to the issue as to whether the words of s.55 of the Offences Against the

Person Act, 1861, whosoever shall take “any unmarried girl, being under the age of sixteen, out of the possession of her father,” are

to be read as if they were “being under the age of sixteen, and he knowing she was under that age.” No such words appear in the

statute, nor does any wording such as “knowingly” or “maliciously”. He said of the section at p. 144:

“The section in question is one of a series of enactments, beginning with sect.50 forming a code for the protection of women

and the guardians of young women. These enactments are taken with scarcely any alteration from the repealed statute 9 Geo.

4, c. 31, which had collected them into a code from a variety of old statutes all repealed by it.

Sect. 50 enacts that “whosoever shall unlawfully and carnally know and abuse any girl under the age of ten years, shall be

guilty of felony.” Sect. 51. “Whosoever shall unlawfully and carnally know and abuse any girl being above the age of ten years

and under the age of twelve years, shall be guilty of a misdemeanour.”

It seems impossible to suppose that the intention of the Legislature in those two sections could have been to make the crime depend

upon the knowledge by the prisoner of the girl’s actual age. It would produce the monstrous result that a man who had carnal

connection with a girl in reality not quite ten years old, but whom he, on reasonable grounds, believed to be a little more than ten,

was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under

ten. He could not be convicted of the misdemeanour, because she was, in fact, not above the age of ten. It seems to us that the

intention of the Legislature was to punish those who had connection with young girls though with their consent, unless the girl was,

in fact, old enough to give a valid consent. The man who has connection with a child, relying on her consent does it at his peril if she

is below the statutable age.

The 55th section on which the present case arises, uses precisely the same words as those in sects 50 and 51, and must be

construed in the same way. And if we refer to the repealed statute 4 & 5 Phil. & Mary, c.8, from the third section of which the words

in the section in question are taken with very little alteration, it strengthens the inference that such was the intention of the

Legislature.

The preamble states, as the mischief aimed at, that female children, heiresses, and others having expectations, were, unawares of

their friends, brought to contact marriages of disparagement “to the great heaviness of their friends;” and then to remedy this,

enacts, by the first section, that it shall not be lawful for anyone to take an unmarried girl, being under sixteen, out of the custody of

her father or the person to whom he either by will or by act in his lifetime, gives the custody, unless it be bona fide done by or for the

master or mistress of such child, or the guardian in chivalry or in socage of such child. This recognises a legal right to the possession

of the child depending on the real age of the child, and not on what appears. And the object of the Legislature being, as it appears

by the preamble, to protect this legal right to the possession, would be baffled if it was an excuse that the person guilty of the taking

the child thought the child above sixteen. The words “unlawfully take,” as used in the third section of 4 & 5 Phil. & Mary, c. 8, mean

without the authority of the master, or mistress, or guardian, mentioned in the immediately preceding section.

There is not much authority on the subject, but is all in favour of this view. In Reg. v Robins (1 C. & K. 456), Atcherly, Serjt. then

acting as Judge of Assize so ruled (apparently, though the report leaves it a little ambiguous), with the approval of Tindal, C.J. In

Reg. v Olifier (10 Cox C. C. 402), Bramwell, B., so ruled at the Old Bailey, apparently arriving at the conclusion independently of Reg.

v. Robins. In Reg. v. Mycock (12 Cox C. C. 28), Willes, J., without the case of Reg. v Olifier being brought to his notice, acted on the

case of Reg. v. Robins saying that a person who took a young woman from the custody of her father, must take the consequences if

she proved under age. And Quain, J., followed this decision in Reg. v. Booth (12 Cox C.C. 231). We think those rulings were right, and

consequently that the conviction in the present case should stand.”

Bramwell, B. also gave a judgment, with which seven members of the Court concurred. He also stated that the case depended on the

construction of the statute. He held at p.141:

“It is impossible to suppose that a person taking a girl out of her father's possession against his will is guilty of no offence within

the statute unless he, the taker, knows she is under sixteen--that he would not be guilty if the jury were of opinion he knew

neither one way nor the other. Let it be then that the question is whether he is guilty where he knows, as he thinks, that she is

over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever

shall take any unmarried girl being under the age of sixteen, and not believing her to be over the age of sixteen, out of the

possession," etc. Those words are not there, and the question is whether we are bound to construe the statute as though they

were, on account of the rule that the mens rea is necessary to make an act a crime.

I am of opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons. The act forbidden

is wrong in itself, if without lawful cause. I do not say illegal, but wrong. I have not lost sight of this, that though the statute

probably principally aims at seduction for carnal purposes, the taking may be by a female, with a good motive. Nevertheless,

though there may be cases which are not immoral in one sense, I say that the act forbidden is wrong. Let us remember what is

the case supposed by the statute. It supposes that there is a girl,--it does not say a woman, but a girl something between a

child and a woman--it supposes she is in the possession of her father, or mother, or other person having lawful care and charge

of her, and it supposes there is a taking, and that that taking is against the will of the person in whose possession she is. It is

then a taking of a girl in the possession of someone, against his will. I say that done without lawful cause is wrong, and that

the Legislature meant it should be at the risk of the taker, whether or not she was under sixteen. I do not say that taking a

woman of fifty from her brother's or even father's house is wrong. She is at an age when she has a right to choose for herself,

she is not a girl, nor of such tender age that she can be said to be in the possession of or under the care or in the charge of

anyone. If I am asked where I draw the line, I answer at when the female is no longer a girl in anyone's possession. But what

the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a

girl, and can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this;

it is enough to state the case. The Legislature has enacted that if anyone does this wrong act he does it at the risk of her

turning out to be under sixteen. This opinion gives full scope to the doctrine of mens rea. If the taker believed he had the

father's consent, though wrongly, he would have no mens rea. So if he did not know she was in anyone's possession, nor in the

care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute, an act which, if he

knew she was in the possession and care or charge of anyone, he would know was a crime or not according as she was under

sixteen or not. He would know he was doing an act wrong itself, whatever was his intention, if done without lawful cause. In

addition to these considerations one may add that the statute does use the word "unlawfully," and does not use the words

"knowingly or not believing to the contrary." If the question was whether his act was unlawful there would be no difficulty, as it

clearly was not lawful.

This view of the section, to my mind, is much strengthened by a reference to other sections of the same statute. Sect. 50

makes it a felony to unlawfully and carnally to know a girl under the age of ten. Sect. 51 enacts (when she is above ten and

under twelve) to unlawfully and carnally to know her is a misdemeanour. Can it be supposed, in the former case, a person

indicted might claim to be acquitted on the ground that he had believed the girl was over ten though under twelve, and so that

he had only committed a misdemeanour, or that he believed her over twelve, and so had committed no offence at all; or that in

a case under sect. 51, he could claim to be acquitted, because he believed her over twelve? In both cases the act is

intrinsically wrong. For the statute says if "unlawfully" done. The act done with mens rea is unlawfully and carnally knowing the

girl, and the man doing that act does it at the risk of the child being under the statutory age. It would be mischievous to hold

otherwise. So sect. 56 by which whoever shall take away any child under fourteen, with intent to deprive parent or guardian of

the possession of the child, or with intent to steal any article upon such child, shall be guilty of felony. Could a prisoner say “I

did take away the child to steal its clothes, but I believed it to be over fourteen?” If not, then neither could he say “I did take

the child with intent to deprive the parent of its possession, but I believed it over fourteen.” Because if words to that effect

cannot be introduced into the statute where the intent is to steal the clothes, neither can they where intent is to take the

child out of the possession of the parent. If these words cannot be introduced in sect. 56, why can they be in sect. 55?

Denman J. gave a judgment, he agreed with Bramwell J and Blackburn J., and he added at p.156:

“The defendant was indicted under the 24 & 25 Vict. c.100, s. 55, [which enacts that “whosoever shall unlawfully take or cause

to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the wish of her father or

mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanor].

I cannot hold that the word "unlawfully" is an immaterial word in an indictment framed upon this clause. I think that it must be

taken to have a meaning, and an important meaning, and to be capable of being either supported or negatived by evidence

upon the trial: (see Reg. v. Turner 1 mood C.C. 15; Reg. v. Ryan 2 mood C.C. 241; 2 Hawkins P.C.C 25, s.96.

In the present case the jury found that the defendant had done everything required to bring himself within the clause as a

misdemeanant, unless the fact that he bona fide and reasonably believed the girl taken by him to be eighteen years old constituted a

defence. That is, in other words, unless such bona fide reasonable belief prevented them from saying that the defendant, in what he

did, acted unlawfully within the meaning of the clause. The question, therefore, is whether upon this finding of the jury the defendant

did “unlawfully” the things which they found him to have done.

The solution of this question depends upon the meaning of the word “unlawfully” in sect. 55. If it means "with a knowledge or belief

that every single thing mentioned in the section existed at the moment of the taking" undoubtedly the defendant would be entitled to

an acquittal, because he did not believe that a girl under sixteen was being taken by him at all. If it only means without lawful excuse

or justification, then a further question arises, viz., whether the defendant had any lawful excuse or justification for doing all the acts

mentioned in the clause as constituting the offence, by reason merely that he bona fide and reasonably believed the girl to be older

than the age limited by the clause. Bearing in mind the previous enactments relating to the abduction of girls under sixteen, 4& 5 Phil.

& Mary, c. 8, s.2, the 9 Geo. 4 C. 16, s.20, and the general decisions upon those enactments and upon the present statute, looking

at the mischief intended to be guarded against, it appears to me reasonably clear that the word "unlawfully" in the true sense in

which it was used, is fully satisfied by holding that it is equivalent to the words "without lawful excuse," using those words as

equivalent to without such an excuse as, being proved, would be a complete legal justification for the act, even where all the facts

constituting the offence exist.

Cases may easily be suggested where such a defence might be made out; as, for instance, if it were proved that he had the

authority of a court of competent jurisdiction, or of some legal warrant, or that he acted to prevent some illegal violence, not justified

by the relation of parent and child, or school-mistress or other custodian, and requiring forcible interference by way of protection.

In the present case the jury find that the defendant believed the girl to be eighteen year of age. Even if she had been of that age

she would have been in the lawful care and charge of her father as her guardian by nature: (See Co. Litt. 88 b, note 12, edit. 19,

recognised in R v Howes, 3E & E.332, and p.336; also reported in 8 Cox C.C. 405, under the name of ex parte Barford Her father had

a right to her personal custody up to the age of twenty-one, and to appoint a guardian by deed or will whose right to her personal

custody would have extended up to the same age. The belief that she was eighteen would be no justification to the defendant for

taking her out of his possession and against his will. By taking her, even with her own consent, he must at least have been guilty of

aiding and abetting her in doing an unlawful act-viz., in escaping against the will of her natural guardian from his lawful care and

charge. This, in my opinion, leaves him wholly without lawful excuse or justification for the act he did, even though he believed that

the girl was eighteen; and, therefore, unable to allege what he had done was not unlawfully done, within the meaning of the clause.

In other words, having knowingly done a wrongful act, viz., in taking the girl away from the lawful possession of her father against her

will, and in violation of his rights as guardian by nature, he cannot be heard to say that he thought the girl was of an age beyond

that limited by the statute for the offence charged against him. He had wrongfully done the very thing contemplated by the

Legislature. He had wrongfully and knowingly violated the father's rights against the father's will, and he cannot set up a legal

defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing.”

21. In a dissenting judgment Brett J. cited case law and stated at p.155:

“Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or

mens rea.”

He came to the conclusion at p.156:

“… that a mistake of facts on reasonable grounds, to the extent that if the facts were as believed, the acts of the prisoner

would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and

every criminal enactment in England. I agree with Lord Kenyon that “such is our law” and with Cockburn, C.J., that such is the

foundation of all criminal procedure.”

22. I will return to the rationale of this case later in the judgment. However, I note at this time that R v Prince is remarkably dated in

its approach and its analysis is out of place in Ireland. For example, reference is made to a legal right to the possession of a child and

to the object of the legislation being to protect the legal right to the possession of the child.

23. I have set out this case in great detail as it has been regarded as a foundation of the common law on the issue of mens rea in

similar sexual offences. It was regarded as the foundation of the common law on the issue in England for approximately 100 years.

And it was the approach taken in many other common law countries. For example, in Charleton McDermott and Bolger, Criminal Law

(Butterworth, Ireland 1999) at p.591, reference is made to Peters [1956] VLR 743, Supreme Court of Victoria, Australia, which

followed R. v. Prince. There is no doubt that this case was a foundation stone for the common law on this issue in many common law

countries.

Assumption

24. Based on this case the common law proceeded in Ireland and it was assumed that the offence in issue was one of strict liability.

There was no considered analysis of the section or the common law.

25. This common law offence was described by the Law Reform Commission in its Consultation Paper on Child Sexual Abuse (Dublin,

1989), where it was stated to be “settled” that no defence of mistake exists. Paragraph 4.05 stated:

“The absence of any defence to any of the relevant offences of reasonable mistake as to the age of the girl is capable of

producing serious injustice, particularly where the age of the girl is close to the age of consent.”

Similarly, in the Law Reform Commission’s Report on Child Sexual Abuse, LRC 32/90 (Dublin, 1990) paragraph 4.14 stated:

“There appeared to be little dissent from the view that the Irish law in this area was unduly harsh and wholly out of step with

the law in other jurisdictions. While it may be again that a combination of prosecutorial and judicial discretion is ensuring that no

problems arise, the possibility of serious injustice should nonetheless, in the view of the Commission, be removed. The

Commission accordingly recommends that, in the case of the offences under consideration, there should be a defence available

to the accused that he genuinely believed at the time of the act on reasonable grounds that the girl had attained the age of

consent or an age attracting a less serious penalty”.

Silence

26. Section 1(1) is silent as to the mens rea required for the commission of the offence. In construing the section common law may

be applied. In fact, this silence may be filled by common law. Thus R v Prince was applied over time in many common law jurisdictions.

27. However, counsel for the applicant referred the court to Sweet v Parsley [1970] A.C. 132. This decision, of the House of Lords,

held that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary

and the court ought not to hold that an offence is an absolute offence unless it appears that that must have been the intention of

Parliament. In that case it was held that there is a long standing legal presumption that mens rea is required for the commission of a

crime. Lord Reid stated, at p.148/149:

"there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way

blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in

order to give effect to the will of Parliament, we must read in words appropriate to require mens rea;it is firmly established by a

host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that

that is not necessary".

I am satisfied that this statement reflects the common law in this jurisdiction also and I would adopt and apply this statement.

28. The analysis in Sweet v Parsley was approved by Henchy J. in The People v Murray [1977] I.R. 360. In that case the question

was whether mens rea is required for all the elements of the new offence of capital murder. Henchy J. referred also to prosecutions

under s.38 of the Offences Against the Persons Act, or other similar Acts, charging an assault on a police officer in the execution of

his duty. He stated at p.398:

“Those decisions show a sharp cleavage of judicial opinion. A denial that the relevant statutory provision requires mens rea (in

the form of intent or knowledge in relation to the fact that the victim of the assault was a member of the police acting in the

execution of his duty) is to be found in a line of authorities running from R. v. Forbes (1865) 10 Cox C.C. 362, and including R.

v. Prince (1875) L.R. 2 C.C.R. 154; R. v. Maxwell (1909) 2 Cr. App. R. 26; R. v. Mark [1961] Crim. L.R. 173; Kenlin v. Gardiner

[1967] 2 Q.B. 510; R. v. Galvin (No. 1) [1961] V.R. 733 and R. v. Reynhoudt (1962) 107 C.L.R. 381. On the other hand, strong

judicial opinion to the effect that mens rea in the form of either intent or knowledge is required for this element is to be found

in R. v. Galvin (No. 2) [1961] V.R. 740 which overruled R. v. Galvin (No. 1) [1961] V.R. 733; in the dissenting judgments of Dixon

C.J. and Kitto J. in R. v. Reynhoudt (1962) 107 C.L.R. 381; and in the unanimous decision of the British Columbia Court of Appeal

in R. v. McLeod (1954) 111 Can. C.C. 106.

I do not propose to analyse the judicial reasoning of those decisions – for that, see Howard (79 L.Q.R. 247) and Zuckerman (88

L.Q.R. 246). I confine myself to saying that I find the reasoning leading to the conclusion that the element in question does not

require mens rea to be of questionable origin, weak and unconvincing. It seems to stem from the idea that, because the section did

not qualify the reference to a peace officer acting in the execution of his duty with words indicating a requirement of knowledge on

the part of the accused of that fact, the offence should be held to be one of strict liability as to that fact. I believe that to be an

incorrect method of interpreting a statutory provision imposing criminal liability. The correct rule of interpretation in such a case is

that stated by Lord Reid at p. 148 of the report of Sweet v Parsley [1970] A.C 132:-

“Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or

another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such

cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no

way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in

order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.”

Admittedly Lord Reid was referring to a whole offence rather than to a constituent element of an offence, but the basis for the

presumption is the same in both cases, i.e., to avoid the unjust or oppressive application of the section to those who have not

merited the guilt and punishment envisaged by the section, either because they are totally blameless or because their

blameworthiness is only such as to attract guilt for a lesser offence.

I find an unrebutted presumption that Parliament, in enacting s.1 of the Criminal Justice Act, 1964, and in creating the new offence of

capital murder which is defined for the purpose of this case as “murder of a member of the Garda Síochána acting in the course of his

duty,” intended that the section should be read as requiring mens rea for all the elements of that definition. As I have indicated

earlier, to hold otherwise would be to remove any logical or ethical basis for the distinction between murder and capital murder.”

In that case this Court held that the offence of capital murder is a new statutory offence which requires proof of mens rea in relation

to each of the constituent elements. I would adopt and apply the analysis of Henchy J. and note especially his opinion that the

reasoning in cases, which includes R. v. Prince, leading to the conclusion that the element in question does not require mens rea, to

be of questionable origin, weak and unconvincing and to be an incorrect method of statutory interpretation.

29. In that case Walsh J. did distinguish the position of the Criminal Law (Amendment) Act 1935 in the following words (at p.383):

“With regard to the submission made in relation to the requirements of the Criminal Law Amendment Act, 1935, the position is

somewhat different. There it is obviously the policy of the Act of 1935 to protect young girls. The Oireachtas thought it

necessary to ensure this by imposing upon a male person who undertakes to have carnal knowledge of a young woman the risk

of her turning out to be under the age of consent. It might well be impossible for the prosecution to prove in most cases that

the accused had knowledge, and it is to be noted that the statute does not even envisage the accused successfully setting up

a defence of lack of knowledge on his part even with the whole onus of proving that fact resting upon himself. The Oireachtas

also apparently thought that an honest belief or an honest mistake with regard to age would not be consistent with the general

policy of those statutory provisions, the object of which was to protect young girls from themselves as much as from men. The

essential difference between that class of case and the present case is that in those cases the defendant is aware that he is

dealing with a young woman, because the Act makes no distinction between one class or category of girl and another when

they are under age. So far as capital murder of a member of the Garda Síochána is concerned, it is the occupation of the victim

which is the decisive matter. Before the offence of capital murder was created it mattered not in the proof of the offence of

murder whether the victim was a member of the Garda Síochána or not. If the protection afforded by the Act of 1935 to girls

under the age of 17 were to be confined only to girls of a particular occupation, then the position would be quire different as

obviously the intention of the Act would be quite different from that Act as it now stands. Therefore, I think there is no valid

comparison to be made between the statutory provision relating to capital murder and those relating to unlawful carnal

knowledge of girls under the age of consent.”

However, I would distinguish his words, for the reason that they were obiter dicta and that the issue of the Act of 1935 was not

before the Court.

30. The analysis in Sweet v Parsley was also approved and used by this Court in Re the matter of Article 26 of the Constitution, in

the matter of the Employment Equality Bill, 1996, [1997] 2 I.R. 321. In that case Hamilton C.J., in giving the decision of the Court on

the Article 26 reference, having reviewed situations where a master was held liable for the acts of his servants, stated at p.373:

“However what is sought to be done by this provision is that an employer devoid of any guilty intent, is liable to be found guilty

on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years, or both such fine and imprisonment

and to be tainted with guilt for offences which are far from being regulatory in character but are likely to attract a substantial

measure of opprobrium. The social policy of making the Act more effective does not, in the opinion of this Court, justify the

introduction of so radical a change to our criminal law. The change appears to the court to be quite disproportionate to the

mischief with which the section seeks to deal.”

In the course of this speech in Sweet v Parsley [1970] A.C. 130 at p.150, Reid L.J. – the case dealt more with the concept of

strict liability as opposed to vicarious liability, but what he had to say is equally pertinent to what the Court has to consider –

referred to “The Public scandal of convicting on a serious charge persons who are in no way blameworthy.” Of course, the

English courts would have to recognise that if parliament decreed that a person should be found guilty in those circumstances,

then the legislation might be upheld because parliament in the British system is said to be supreme.

Our situation, however, is totally different. We are governed by a Constitution with the separation of powers as its fulcrum and

the two Houses of the Oireachtas are precluded from enacting any legislation which is in any respect repugnant to the

Constitution.

The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so

unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and,

therefore, contrary to Article 38, s. 1 of the Constitution and also repugnant to Article 40, s. 1 of the Constitution.”

Thus, Sweet v Parsley has become an established part of the common law of this jurisdiction. Further, it has been recognised to be

consistent with constitutional principles such as arise in Article 38.1 and Article 40.1 of the Constitution.

31. Other common law jurisdictions apply this presumption of mens rea also. The history of its application was described by Wilson J.

in the judgment of the Supreme Court of Canada in R v Hess; R v. Nguyen [1990] 2 S.C.R 906 where he stated:

“Even the most cursory review of the history of the doctrine of mens rea confirms this observation and reveals that the

doctrine is an integral and indispensable feature of our criminal law. In Kenny’s Outlines of Criminal Law (19th Ed 1966), at p.7,

the author observes that this was not always so:

“There is evidence that throughout Europe in the remote past acts which caused serious harm were supposed to bring about

the infliction upon the people of some calamitous punishment by the gods. In such circumstances severe sufferings were

inflicted upon the offender in order to placate the outraged deity.”

But Kenny explains that with time it was recognised that it was unfair and inappropriate to impose punishment in the absence of moral

blame. There arose “the ethical conception that it was not proper to punish a man criminally unless he had known that he was doing

wrong” (Kenny, supra at p.13). Others have confirmed this account. For example, P.E. Raymond concludes his study “The Origin and

Rise of Moral Liability in Anglo-Saxon Criminal law”, 15 Or. L. Rev. 93 (1936), at p. 117, with the following passage:

“As we reach the end of the Anglo-Saxon period, which cannot be exactly fixed but is somewhere around 1100, we find the

notion of moral liability well established in the criminal law, although the development of it was to continue throughout the

centuries and even into the twentieth; for as we still have the notion of absolute liability in certain cases.”

By the seventeenth century the doctrine of mens rea was sufficiently well developed that Coke could affirm “et actus non facit reum

nisi mens sit rea” (The third Part of the Institutes of the Law of England (1871), at p.6). Two hundred years later, Blackstone would

reiterate this proposition:

“And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will

is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an

unlawful act consequent upon such vicious will” (Commentaries on the laws of England (1846), Book IV, at p.21)

And by the early part of this century, treatises on the subject took for granted the proposition that the doctrine of mens rea played

an indispensable role in the criminal law. Stround, for example, stated:

“A crime can be committed only where a person, disobeying the law by act or omission, either knows his conduct is in

contravention of the law, or would have known that fact if he had given to his conduct, and to the circumstances, the degree

of attention which the law requires, and which he is capable of giving.” (Mens Rea (1914), at pp. 10-11)

More recently, the doctrine of mens rea has been described as “[o]ne of the most desirable prerequisites for criminal responsibility in

any civilized country” (see: Howard, The Protection of Principle Under a Criminal Code” (1962), 25 M.L.R. 190, at p.190)”.

This historical analysis reflects the development of law from R. v. Prince to Sweet v Parsley. It is a development which has been

recognised in our common law: The People v Murray; and supported in In Re Article 26; in the Matter of the Employment Equality Bill,

1996. Irish common law, with the constitutional foundation including Article 38.1, is Irish jurisprudence which, in a similar vein to that

described by Wilson J., acknowledges the centrality of the doctrine of mens rea in criminal law. It is a fundamental concept of our

criminal justice system that there be a criminal mind, or, as described traditionally, that there be mens rea. The doctrine of mens rea,

the presumption of mens rea, is part of our common law. This means that whenever a section of a statute is silent as to mens rea

there is a presumption that we must read in words appropriate to require mens rea.

Special rule re aged based sexual offences

32. The Act of 1935 is to protect girls under the age of fifteen, and so the age of the girl is a relevant factor in any prosecution. But

it is not a logical consequence that the offence be one of strict liability. I am satisfied that the issue was addressed correctly by Lord

Nicholls in B (A Minor) v D.P.P. [2002] 2 A.C. 428 when he stated:

“Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law

requirement of a mental element should be excluded in respect of the age ingredient of this new offence? Thus far, having

regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction

brings, I see no sufficient grounds for so concluding.”

The concept that there was a special rule of construction in relation to age based sexual offences untouched by the doctrine of

mens rea was also rejected by Lord Steyn in B (A Minor) v D.P.P. This analysis appears to me to be a correct approach and applicable

to similar offences in Ireland.

33. The presumption that mens rea is required for the commission of an offence is well established in this jurisdiction. It is a silken

thread in the fabric of the legal system ensuring a just process. It is part of the protective cloak of Article 38.1 of the Constitution of

Ireland, of the due process of law.

34. However, there are exceptions to this general rule. There are offences where mens rea is not required. The test to determine

whether or not an offence is one of strict liability has been well recognised. Thus the language of the statute must clearly rule out

mens rea, or, alternatively, strict liability must arise by necessary implication. Walsh J. set out the test in The People v. Murray at

p.386:

“It is well established that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part

of a crime, a court cannot find a person guilty of an offence against the criminal law unless he has a guilty mind.”

I apply the test set out by Walsh J. in The People v. Murray. The first consideration is whether the statute clearly rules out mens

rea. Applying that test to the words of s.1 (1) of the Act of 1935 the answer is in the negative. Section 1(1) does not clearly rule

out mens rea. Thus it is necessary to move on to the next step and to consider whether the statute rules out mens rea by

necessary implication.

35. The meaning of ‘necessary implication’ was considered by Lord Nicholls in B (A Minor) v D.P.P. where he held that the implication

must be compellingly clear. He stated, at p.464:

“’Necessary implication’ connotes an implication which is compellingly clear. Such an implication may be found in the language

used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in

determining what intention is properly to be attributed to Parliament when creating the offence.”

I would adopt and apply this approach.

36. In analysing whether the necessary implication arises it is a relevant consideration also that the more serious the offence the

greater is the weight to be attached to the presumption of mens rea, as the more severe is the penalty and the stigma attached: B

(A Minor).

37. In considering the nature of the offence the common law becomes applicable. I am satisfied that the foundation case of R v

Prince is unsound and bad in law and that it is not applicable in this jurisdiction. The applicable common law is that of our State. This

common law rests on cases such as The People v Murray and In Re Article 26; In the Matter of Employment Equality Bill, 1996; case

law from other common law jurisdictions which have already been adopted and applied in this jurisdiction, such as Sweet v Parsley;

and other cases from common law jurisdictions which address the fundamental common law issues, such as consideration of the

concept of “necessary implication” in B (A Minor) v D.P.P. Applying this case law, and the reasons set out earlier, I am satisfied that

the common law presumption of mens rea is not ousted from s.1 (1) of the Act of 1935.

Consequently, on this second approach to the construction of the words of s.1 (1) of the Act of 1935, mens rea is not excluded.

38. Thirdly, I shall consider the legislative history of s.1 (1) of the Act of 1935. The Offences Against the Person Act, 1861, provided

“50. Whosoever shall unlawfully and carnally know and abuse any Girl under the Age of Ten Years shall be guilty of Felony, and

being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not

less than Three Years, - or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.

51. Whosoever shall unlawfully and carnally know and abuse any Girl being above the Age of Ten Years and under the Age of

Twelve Years shall be guilty of a Misdemenor, and being convicted thereof shall be liable, at the Discretion of the Court, to be

kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without

Hard Labour.”

The penalties were set out in s.52, as follows:

“52. Whosoever shall be convicted of any indecent Assault upon any Female, or of any Attempt to have carnal Knowledge of

any Girl under Twelve Years of Age, shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding

Two Years, with or without Hard Labour.”

The Criminal Law (Amendment) Act, 1885 provided in s. 4.

“Any person who –

unlawfully and carnally knows any girl under the age of thirteen years shall be guilty of felony, and being convicted

thereof shall be liable at the discretion of the court to be kept in penal servitude for life, or for any term not less than five

years, or to be imprisoned for any term not exceeding two years, with or without hard labour.”

Section 5 stated that:

“Any person who-

(1)Unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of

thirteen years and under the age of sixteen years;

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. Provided that it shall be a sufficient defence to any

charge under sub-section one of this section if it shall be made to appear to the court or jury before whom the charge

shall be brought that the person so charged had reasonable cause to believe that the girl was of or above the age of

sixteen years. Provided also, that no prosecution shall be commenced for an offence under sub-section one of this

section more than three months after the commission of the offence.” [underlining added]

It is this “proviso”, upon which the State relies, and its omission in the Act of 1935.

39. It was submitted that the omission of this “proviso” in the Act of 1935 has the effect of making a strict liability offence. I am

satisfied that this is not a correct analysis of the legislation.

The nature of the offence does not raise the implication. The nature of the offence raises the element of the age of the girl, but not

of itself strict liability. The mischief sought to be prevented is to protect young girls. They are protected against their own immaturity

by the fact that their consent is no defence. But the requirement of strict liability is not obviously necessary to protect the social

policy addressed. A very young girl will be protected by her obvious youth. A girl nearing the upper age protected by the offence will

not lose the protection and it appears proportionate not to deny an accused compelling reasons why s.1 (1) of the Act of 1935

should be construed as an offence of strict liability. However, that is not the test.

The test to be applied in construing the legislation is whether the defence of mistake is a necessary implication in construing the

statute. I am satisfied that it is not. The absence alone in the Act of 1935 of the ‘proviso’ of the Act of 1885 is not a basis upon

which to oust the fundamental constitutional concept that mens rea be a constituent element of a crime. Nor does the legislative

history make it compellingly clear that mens rea is ousted from s.1 (1) of the Act of 1935.

In this analysis I have found an analogy in the speech of Lord Hutton in B (A Minor) v D.P.P where he held that reasonable implication

was not sufficient, that the test was whether it is a necessary implication. He stated:

“Therefore the Crown can argue with considerable force that when Parliament intends that there should be a defence of

mistake it makes express provision for this defence so that where there is no express provision for such a defence the statute

by implication intends that the defence will not be available. This point is well stated by Tucker J., at p.442:

“I decide from all these statutory provisions that it is the clear intention of Parliament to protect young children and to

make it an offence to commit offences against children under a certain age whether or not the defendant knows of the

age of the victim, and that it was intended that, save where expressly provided, a mistaken or honest belief in the victims

age should afford a defence.

Therefore, I consider that it would be reasonable to infer that it was the intention of Parliament that liability under s.1 (1) of

the Act of 1960 should be strict so that an honest belief as to the age of the child would not be a defence. But the test is not

whether it is a reasonable implication that the statute rules out mens rea as a constituent part of the crime – the test is

whether it is a necessary implication.”

In the same way, as stated above, I have applied this test to Irish statutory law, that is the test of ‘necessary implication’ not of

‘reasonable implication’.

40. “Other circumstances” need also to be considered. Once again this raises the assumption, essentially based on R v Prince, that

the offence was one of strict liability.

41. There has been a general approach to the offences in the Act of 1935, in case law and elsewhere, to treat the offences as being

of strict liability. The knowledge or lack of knowledge of an accused, or his belief as to the age of the complainant, have not been

deemed relevant. Consequently it has been envisaged that any mistake by an accused as to the age of a complainant was not

relevant to culpability and the trial of the offence, although it was deemed relevant to sentencing.

42. As I have stated previously, there was an assumption in reports of the Law Reform Commission that this group of offences were

offences of strict liability.

43. This assumption and analysis of the legislation may also be seen in academia: in Sexual Offences: Law, Policies and Punishment

(Round Hall, Dublin, 1996), by Thomas O’Malley, he states at p.93:

“The most severe aspect of the offences created by ss. 1 and 2 of the 1935 Act is that mistake on the part of the defendant

as to the girl’s age will afford him no defence. Under the Criminal Law Amendment Act 1885 which governed these offences until

1935, a male charged with unlawful carnal knowledge of a girl aged between 13 and 16 years (equivalent to the present offence

in respect of girls aged between 15 and 17 years), had a defence if he had reasonable cause to believe that the girls was of or

above the age of 16 years. The 1935 Act provides no such defence. The impact of the decision in Prince’s Case is that a man is

strictly liable when the girl is under the age of consent (although the offence in that case was taking an unmarried girl out of

the possession of her father contrary to s.55 of the Offences Against the Person Act 1861). In favour of the present law, it

may be argued that the social importance of protecting young girls from sexual exploitation justifies the requirement that a man

should fully satisfy himself of the age of a young woman before he has sexual intercourse with her. Others argue that while

strict liability is justified in the case of young girls whose age cannot be in any reasonable doubt, it is unfair when the female

appears or, perhaps, claims to be over 15 or 17 years, as the case may be, and remains free of criminal liability even if she

consents to intercourse with a partner of her own age who will be automatically guilty. While a mistake as to age does not

affect criminal responsibility, it may be taken into account at the sentencing stage”.

44. However, these approaches are rooted in the rationale and decision of R v Prince. Since the basis for the reasoning is unsound, as

I have set out previously, it appears to me to be incorrect to use it to ground reasoning today. It is based on an error, a false

assumption as to the common law. Dependence on that false assumption is false. I do not believe that a statutory interpretation

should be grounded on an unsound foundation. If it was based upon a misapprehension as to legal principles outside the statute the

error should more properly be addressed by the legislature: Howard v Commissioners of Public Works [1994] 1 I.R. 101.

It is necessary to consider what intention is properly to be attributed to the legislature. The intention to be properly attributed to the

legislature may not include an incorrect view of the law: Howard. If the legislature assumed that the law (common law) was otherwise

than it is, that assumption may only be corrected by the legislature and not by the courts.

Consequently, I do not find that the general assumption, made on the basis of unsound common law, to be an implication which,

necessarily “connotes an implication which is compellingly clear”. Indeed it appears to be the antithesis. It is in error in criminal law to

construct an interpretation on unsound law, just because that was the approach for decades. Such an approach is not neutral, it is

not without prejudice. It deprives an accused of the presumption that mens rea is a requirement of the offence.

45. An analogy was drawn with s.2 (2) of the Act of 1935. This section was considered in Attorney General (Shaughnessy) v Ryan

Cormack [1960] I.R. 181 on a case stated from the Circuit Court to this Court. Section 2 (2) of the Act of 1935 provides:

“(2) Any person who attempts to have unlawful carnal knowledge of any girl who is of or over the age of fifteen years and

under the age of seventeen years shall be guilty of a misdemeanour, and shall be liable, in the case of a first conviction of such

misdemeanour, to imprisonment for any term not exceeding two years or, in the case of a second or any subsequent conviction

of such misdemeanour, to penal servitude for any term not exceeding five years nor less than three years or to imprisonment for

any term not exceeding two years.”

This Court held that consent is no defence to a charge of unlawful carnal knowledge contrary to s.2 (2) of the Act of 1935. Maguire

C.J stated:-

“The question raised is whether consent is a defence to a charge of attempted unlawful carnal knowledge contrary to s. 2, sub-

s. 2, of the Criminal Law Amendment Act, 1935. This section is an extension of earlier Acts. Notable amongst these was the

Criminal Law Amendment Act of 1885. The section under consideration and similar provisions of earlier Acts were designed to

protect young girls, not alone against lustful men, but against themselves.

Mr. Clarke has referred to the case of R. v. Beale (1), which was a charge of attempting to have carnal knowledge of a girl

under the age of 10 years contrary to 24 and 25 Vict., c. 100, s. 52. Pollock C.B., said:—"The learned Judge who tried the case

seems to have thought that a full and ample consent on the part of the girl would have prevented the completion of the crime,

and that a consent of a different character would not have had that effect. This opinion . . . was utterly unfounded. Consent

was altogether unimportant. "He also referred to the case of H.M. Advocate v. Watson (1), which was concerned with a case of

unlawful carnal knowledge of a girl between 13 and 16 years of age contrary to s. 5, sub-s. 1, of the Criminal Law Amendment

Act, 1885. In the course of his charge to the jury Lord Craighill said:—"You therefore will understand, taking the law on the

subject from me, that unlawful carnal knowledge is neither more nor less, where the woman is over 13 and under 16 years of

age, than carnal knowledge by one who is not her husband." This statement of the law has not been differed from in any

decided case. These two cases answer the two main points argued by Mr. Esmonde. In my view no assistance can be got from

s. 14 of our Act of 1935.”

The ratio decidendi of this case is the issue of the consent of the girl. Thus I would distinguish the case. Its rationale related to

consent of the girl, not to the mens rea of the defendant. Consequently it has no bearing on the matter for determination in this

case. Indeed it illustrates a confusion between the issue of the mind of the girl and her consent, and the mens rea of a defendant.

Further, the words of Walsh J. in People (D.P.P.) v Murray should not ground a decision as to the mens rea required of the applicant.

The words of Walsh J. were obiter, s.1 (1) of the Act of 1935 was not in issue. Also, there was no comparative analysis of the two

concepts, the consent of a child and the mens rea of a defendant.

Ireland did not have ‘a young man’s defence’ as did England under s.2 of the Criminal Law Amendment Act 1922. The absence of this

defence in Ireland does not advance the situation, indeed its absence could be called in aid by both sides of the argument.

While the Act of 1885 was a stepping stone in the legislative history toward the Act of 1935 I am not satisfied that it is correct to

put great weight on construing the Act of 1935 by comparison with that of 1885. The Act of 1935 should be construed by the general

rules of construction of statutes – primarily on its own words. While in 1935 the Irish legislature retained expressly the defence of

mistake in relation to a mentally impaired person the fact that in relation to others it is not expressly in the statute raises only an

ambiguity. It is an ambiguity which lies contrary to the fundamental concept of Criminal Law which requires mens rea in a criminal

offence. This ambiguity does not meet the test – the absence in the 1935 Act does not make compellingly clear the intent of the

parliament. Nor does it raise by necessary implication the existence of the defence. The fact that there has been a misapprehension

as to the legal principles which would be applicable outside the statutory provisions, merely means that an error so arising should be

corrected by parliament if it so wished. The courts have corrected the common law, i.e. R v. Prince.

46. I am not satisfied that an assumption and acceptance that an offence is one of strict liability is a necessary implication making

the meaning of s.1(1) of the Act of 1935 compelling clear so as to oust the requirement for mens rea. At its height it raises an

ambiguity. It raises a doubt. However, that does not meet the test which should be applied to oust the presumption that mens rea is

required.

Consequently, on this third approach to the construction of the words of s.1 (1) of the Act of 1935 I am not satisfied that mens rea

is excluded.

Decision on the application of C. C.

47. I have come to the conclusion that I would allow the appeal of C. C. as to the interpretation of s.1 (1) of the Act of 1935 for the

following reasons:

(a) The words of the section do not expressly exclude the requirement of mens rea.

(b) The common law is helpful in construing the section.

(c) In construing the section I adopt and apply the test set out by Walsh J. in The People v Murray.

(d) Applying that test I find that s.1 (1) of the Act of 1935 does not expressly or clearly rule out mens rea as a constituent

part of the offence.

(e) Thus it is necessary to apply the second part of the test, to construe the words and to consider whether strict liability

arises by “necessary implication”.

(f) I adopt and apply the analysis by Lord Nicholls in B (A minor) v. D.P.P. of the term “necessary implication”.

(g) Applying this analysis I am satisfied that strict liability does not arise by “necessary implication”.

(h) I distinguish R. v Prince on the following grounds:

a. It was a decision construing a different statute, s.55 of the Offences Against the Person Act, 1861.

b. While R. v Prince was followed in many common law jurisdictions for many decades that is no longer so. It has been

held to be unsound both here and abroad

c. R. v Prince led to assumptions being made in Ireland and elsewhere which assumptions need to be reviewed.

d. Henchy J. said in The People v. Murray that the reasoning in R. v Prince and similar cases was of questionable origin,

weak and unconvincing. I would adopt and apply that approach.

(i) Henchy J. stated in The People v. Murray that the correct rule of interpretation is that given by Lord Reid in Sweet v

Parsley. I would adopt and apply that approach.

(j) Sweet v Parsley was also applied by this court in In Re Article 26 of the Constitution, in the matter of the Employment

Equality Bill, 1996, and it is thus established common law in this State.

(k) Applying Sweet v Parsley, the applicable rule of construction in common law is that whenever a section is silent as to mens

rea there is a presumption that in order to give effect to the will of the legislature the court must read in words appropriate to

require mens rea.

(l) This common law presumption is enhanced by the constitutional principle of due process in Article 38.1 of the Constitution.

(m) It is relevant also that this is a serious offence with the potential for a long sentence and social stigma.

(n) I would reject any contention that there is a special rule of construction in respect of age-based sexual offences which is

untouched by the presumption of mens rea. The basis for that approach, R v Prince, is not good law.

(o) A girl may be fully protected without the necessity of strict liability.

(p) Applying the general principles of statutory interpretation and the common law, I am satisfied that the common law doctrine

of mens rea is not ousted from s.1 (1) of the Act of 1935.

(q) I am satisfied that the legislative history does not make it compellingly clear that mens rea is ousted.

(r) The general circumstances, including a false assumption as to the common law, are not necessary implications making the

meaning of s.1(1) of the Act of 1935 compelling clear so as to imply that the offence ousted the requirement of mens rea.

(s) While there may be ambiguity that does not meet the required test to oust mens rea from the offence.

(t) I conclude that the correct interpretation of s.1(1) of the Act of 1935 is that it is an offence to which the presumption of

mens rea applies and that therefore it is an offence requiring mens rea in relation to the age element of the offence.

Consequently, a mistake as to that element of the offence may provide a defence.

(u) Having considered s.1 (1) of the Act of 1935 from the three stated aspects (construing the words of the section,

consideration of common law, and the legislative history), I am satisfied, for the reasons given, that mens rea has not been

excluded from the offence. Consequently, the applicant is entitled to succeed on this application. To paraphrase Henchy J. in

The People v Murray, the inclusion of a requirement of mens rea (as to the age of the complainant in this case) is to avoid

unjust or oppressive application of the section to those who have not merited the guilt and punishment envisaged by the

section.

(v) For the reasons given I would allow the appeal of C. C., on the issue of the construction of s.1 (1) of the Act of 1935 and

order an appropriate declaration that reasonable belief as to the age of the complainant, on the part of the applicant, is a

defence.

The application of P. G.

48. P. G. sought a declaration that he is entitled to advance the defence of reasonable mistake and have that defence considered by

the jury. He also advanced his claim as to the constitutionality of the law. In this part of the judgment he is referred to as the

applicant.

49. P. G. is charged with two offences of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990, as

amended by s.37 of the Sex Offenders Act, 2001. These charges arise from an alleged sexual assault by P. G. on the complainant,

who was

50. The offence of sexual assault is a common law offence for which penalty is provided by statute. In People (D.P.P.) v EF,

(Unreported, Supreme Court, 24th February, 1994), Egan J., having set out the legislative history of the offence of indecent assault

and sexual assault held (with which Finlay C.J., O’Flaherty J., Blayney J. and Denham J. agreed) that (at p.12):

“It is clear from the foregoing that the offence of indecent assault remains but as and from the 21st January, 1991 it became

known as sexual assault. It still remains a common law offence for which punishment is provided by statute.”

Thus sexual assault is a common law offence for which the penalty is set out in statute. This law was restated recently in S.O’C. v.

Governor of Curragh Prison [2002] 1 I.R. 66 where Hardiman J. held, in a judgment with which the four other member of the Court

agreed, that the effect of the Act of 1990 with respect to the original offence of indecent assault was simply to change the name of

the offence while leaving its nature and constituents unaltered.

51. There is no statutory definition of the offence of indecent, or sexual, assault. In Doolan v D.P.P. [1993] ILRM 387 O’Hanlon J.

stated (at p.392):

“As indecent assault involves the use of unlawful force, threatened or perpetrated against another person, it was an offence at

common law, and in my opinion, it was permissible for parliament to prescribe a special range of penalties for assault, or assault

and battery, of this particular kind without having to spell out the creation of a new statutory felony or misdemeanour in the

process.”

Consequently, I am satisfied that there is no statutory law which establishes the constituent parts of the offence of indecent assault

or sexual assault. It is a common law offence.

52. However, there are some relevant statutory provisions. Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 provides:

“2(1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall

be known as sexual assault.

(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5

years.

(3) Sexual assault shall be a felony”.

The effect of this section is simply to re-name the offence, to provide the maximum sentence and to classify the offence.

53. Reference was made in the charge to s.27 of the Sex Offenders Act, 2001 which amended s.2 of the Act of 1990. However, this

Court was informed that the 2001 Act did not apply and that these words were mere surplusage. Thus no analysis of the Act of 2001

has been made.

54. It was submitted that s.14 of the Act of 1935 is relevant. It provides:

“It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such

person consented to the act alleged to constitute such indecent assault.”

However, this related to the specific issue of consent of a person, and not to the broader issue of the mens rea of an accused.

55. In refusing the relief sought the learned High Court Judge held:

“In treating the legislative ancestry (to adopt the expression of Geoghegan J. in O’Brien v O’Halloran [2001] 1 I.R. 556 at 562)

earlier in this judgment, it is clear that in expressly omitting and expressly repealing the defence that was at one time available

under section 5 of the Act of 1885, the Oireachtas clearly addressed the issue of the balance to be struck between the general

interest of the community and the protection of the rights of the individual in deliberately deleting a defence, and it is

compellingly clear that it is no longer available as a defence.”

Defence of consent

56. I am satisfied that arising out of the express words of s.14 of the Act of 1935 that the defence of consent by the complainant is

not open to the applicant. The Oireachtas established clearly that no such defence would exist. The legislature expressly addressed

an area of a social policy. However, this section is limited to the specific issue of the consent of the complainant. The section does

not address the entirely different issue of the mens rea of the applicant or the defence of mistake.

Defence of mistake

57. The defence of mistake is a distinct defence, which may arise quite apart from the issue of the consent of the complainant. A

different analysis must be taken to see if the defence of mistake may be open to the applicant.

58. It has been assumed that no defence of mistake exists in relation to this offence. This assumption rested on R. v Prince.

59. Counsel for the applicant submitted that R. v Prince is bad law, that it did not survive the dictum of Lord Reid in Sweet v Parsley

[1970] A.C. 132, that it cannot be sustained in light of The People D.P.P. v Murray [1977] IR 360 and in Re The Employment Equality

Bill 1996 [1997] 2 IR 321. It was submitted that its application to cases of sexual assault/indecent assault has been confused by a

proviso regarding unlawful carnal knowledge in 1935, but unlike that offence sexual assault had not been defined by statute. It was

submitted that treating the section so as to exclude mens rea as to the age of the complainant in the case of sexual

assault/indecent assault is incorrect.

60. I am satisfied that the counsel for the applicant is correct in his submissions. I refer to the consideration of the presumption of

mens rea made earlier in this judgment relating to the application of C. C.. There is a common law presumption in favour of mens rea,

a criminal intent, being required in criminal offences. The presumption may be displaced expressly or by necessary implication. The

presumption has not been displaced by either in relation to the common law offence of sexual assault.

61. There has been an assumption that sexual offences relating to young girls were in a special category to which the presumption of

mens rea did not apply. R. v Prince was one of the foundation stones for this approach. The issue thus is whether R. v Prince has

survived into our common law and whether it underpins this common law offence.

62. For the reason given previously in the decision relating to C. C., I am satisfied that R. v Prince has not survived into our common

law. Rather the approach to be taken in that set out in Sweet v Parsley, which was adopted by Henchy J. in The People v Murray and

by this Court In Re Article 26 of the Constitution, in the matter of Re the Employment Equality Bill 1996.

I would distinguish R. v Prince for the following reasons:

1. It relates to a different offence.

2. It turned on the construction of s.55 of the Offences Against the State Act, 1861.

3. It does not analyse the common law offence in issue in this case.

4. It is a decision of 1875 and, while antiquity does not necessarily imply infirmity, it does in this case.

5. The analysis in R v. Prince, insofar as it strays from statutory construction into social policy reflects the policy of a very

different society to that of Ireland.

6. The dissenting judgment in R v Prince correctly reflects a fundamental tenet of common law.

7. The constitutional approach is set out in Irish common law.

63. The correct approach is that set out in The People v Murray, see Henchy J. at p 398. For the reasons given earlier I would

distinguish Walsh J.’s obiter dictum. The Irish common law was also applied in In Re Article 26; in the Matter of the Employment

Equality Bill, 1996.

64. Consequently, I am satisfied that while the issue of the consent of a complainant is not a defence, the common law presumption

requiring mens rea in a criminal offence applies to this common law offence of sexual assault, and consequently the defence of

mistake is available to the applicant.

65. For the reasons given I would allow the appeal of the applicant and make an order accordingly.

In conclusion:

66. (a) For the reasons given I would allow the appeal of the applicant C. C. on the interpretation of s.1 (1) of the Act of 1935 and

grant an appropriate declaration to the effect that reasonable belief as to the age of the complainant, on the part of the applicant, is

a defence open to the applicant.

(b) For the reasons given I would allow the appeal of the applicant P. G. and I would order an appropriate declaration, to the effect

that he is entitled to advance the defence of reasonable mistake.