Supreme Court allows appeals where prosecution must prove defendant lacked honest belief in complainant's age.

THE SUPREME COURT

Record No. 357/04

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.

(1)

BETWEEN/

CC

Appellant/Applicant

and

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

(2)

THE SUPREME COURT

Record No. 358/04

BETWEEN/

PG

Applicant/Appellant

and

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 12th day of July 2005

1. An analogous though by no means identical substantive issue arises in each of the above-named appeals which have been heard

together by this court.

2. In the CC case the appellant stands charged with four offences contrary to section 1(1) of the Criminal Law (Amendment) Act,

1935 in respect of four separate incidents of alleged unlawful carnal knowledge of a female under the age of fifteen.

3. In the PG case the appellant is facing trial on two counts of sexual assault on a young girl aged thirteen years of age “contrary to

section 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended by section 37 of the Sex Offenders Act, 2001”. Consent

would normally be a defence to a charge of sexual assault but by virtue of section 14 of the 1935 Act referred to above consent is no

defence if the complainant is under the age of fifteen years.

4. Each appellant wants to raise at his respective trial the defence that he made a bona fide error as to the age of the respective

complainants. In other words each appellant wants to put forward a defence that he believed the relevant complainant to be over the

age of fifteen years.

5. In each case this mistake as to age issue arises on an appeal from the High Court (Smyth J.) to this court in respect of judicial

review proceedings brought by each appellant.

6. In each of the cases the respondents persuaded the High Court that bona fide mistake as to age whether reasonable or otherwise

was not a defence but the respondents also raised two preliminary procedural issues. These were:

1. That the respective judicial review applications were out of time.

2. That judicial review proceedings were inappropriate when their purpose was to establish the existence in law of a defence to

a charge still to be tried and that such issue should properly be raised before the trial judge.

7. Notwithstanding that the learned High Court judge considered that both objections were valid, he nevertheless went on to consider

and rule on the substantive issue. Indeed he went further. Leave had been granted in each case to seek a declaration that the

exclusion of the defence of mistake (in the PG case it was confined to “reasonable mistake”) by the respective appellant as to the

age of the complainant was repugnant to the Constitution. For all practical purposes that relief was interpreted as meaning in the CC

case, at least, a declaration (if necessary) that section 1(1) of the 1935 Act was inconsistent with the Constitution. As to what it

meant in the PG case was less clear but it would appear that the constitutionality of section 14 of the 1935 Act was under attack.

8. It may well be that because the learned trial judge embarked on a consideration of the substantive issues the notice of appeal in

the CC case does not contain any appeal relating to the time point though the notice of appeal in the PG case does. The time point in

each case was argued before this court on appeal. I would differ with the view of the trial judge that either appellant was out of

time. It is not necessary to go into the details of the periods which he considered applicable. It is sufficient to say that in neither

case has an indictment yet been served. The time in my view would only commence to run from the service of the indictment. Neither

application for leave to bring judicial review proceedings was, therefore, out of time.

9. In relation to the second of the preliminary objections, that is to say, that the substantive issue should be raised at the trial and

not in judicial review proceedings, I am bound to say that I am in great sympathy with this argument. Having regard, however, to the

events which have occurred since leave was granted to institute the judicial review proceedings in each case, I am quite satisfied

that it would be unjust and wrong in principle for this court not to make its own decision on the issue and simply to leave the matter

for the trial judge. The learned High Court judge has decided against each of the appellants on the issue relating to mistake of age. In

these circumstances it is virtually inconceivable that the Circuit Court judge who would be conducting the trial would permit himself or

herself to express a different view even if this court were to categorise the views of the learned High Court judge as obiter dicta.

10. I, therefore, now turn to the substantive issues and I will start with the CC case.

11. There is no doubt that neither section 1(1) of the Criminal Law (Amendment) Act, 1935 nor any other provision of the Act

expressly permits the defence of bona fide mistake as to age whether reasonable or otherwise but neither is there any provision either

incorporating or excluding the principle of mens rea in relation to this offence. As has been pointed out in particular in a number of

the relevant English authorities it is quite a normal legislative practice not to make any reference to mens rea in statutes creating

criminal offences, however serious, even though the principle of mens rea would have long been held to apply to such offences. The

Irish practice has been similar. There is, therefore, no real significance per se in the absence of any provision permitting a defence of

mistake as to age in prosecutions for age related offences under the 1935 Act. For reasons which I will be demonstrating, I would be

of opinion that if there were no other circumstances affording a legitimate guide to the courts in interpreting section 1(1), I would be

of the view that the suggested defence in some form at least would be available.

12. However, as the learned High Court judge rightly observed, in interpreting a legislative provision one must have regard to its

legislative antecedents. In this case those antecedents are to be found in the provisions of the Criminal Law (Amendment) Act, 1885.

To understand the relevance of that Act, however, it is necessary to refer to sections 2 and 4 of the Criminal Law (Amendment) Act,

1935. Section 2 (now amended by section 13 of the Criminal Law Act, 1997) created the offence of unlawfully and carnally knowing

any girl over the age of fifteen years but under the age of seventeen years. Unlike the offence under section 1(1) this offence was

made a misdemeanour and the penalties were also much less. Section 4 of the 1935 Act went on to create the offence of unlawfully

and carnally knowing a “woman or girl who is an idiot, or an imbecile, or is feeble minded” but only if “the circumstances prove that

such person knew at the time of such knowledge … that such woman or girl was then an idiot or an imbecile or feeble minded (as

the case may be)”. Offences created by sections 1, 2 and 4 of the 1935 Act were intended as replacements for the offences created

by sections 4 and 5 of the 1885 Act which provisions (apart from one small irrelevant clause) were repealed by section 20 of the 1935

Act.

13. Section 4 of the 1885 Act created a felony of unlawfully and carnally knowing any girl under the age of thirteen. Section 5 of the

same Act created a misdemeanour of unlawfully and carnally knowing any girl above the age of thirteen years and under the years of

sixteen years and also the misdemeanour of unlawfully and carnally knowing “any female idiot of imbecile woman or girl, under

circumstances which do not amount to rape, but which prove that the offender knew at the time of the commission of the offence

that the woman was an idiot or imbecile”. Section 5 contained a proviso in the following terms:

“Provided that it shall be sufficient defence to any charge under subsection (1) or 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.”

14. The offence under section 5(1) was the first of the two misdemeanours to which I have referred that is to say, the offence of

carnal knowledge with a girl above the age of thirteen years and under the age of sixteen years. I think that it can be safely said that

by necessary implication the U.K. Parliament in enacting the Criminal Law (Amendment) Act, 1885 was not intending to provide a

defence of mistake as to age in respect of the offence of unlawfully and carnally knowing a girl under the age of thirteen years as it

was expressly providing for such a defence in the case of a girl over thirteen years but under sixteen years. It is to be noted also

that under the 1885 Act carnal knowledge with a female of unsound mind was only an offence if the perpetrator knew at the time of

the commission of the offence that the woman was so handicapped.

15. The Oireachtas of Saorstát Éireann when enacting the 1935 Act was clearly intending to revise the offences under the 1885 Act

and to do this in a number of ways. It was clearly intended that what might be described as “the young girl offence” was to be

altered to cover girls under fifteen years of age rather than under thirteen years of age. It is equally clear that the intention was to

alter what might be described as “the older girl offence” to over the age of fifteen years but under the age of seventeen years

instead of over the age of thirteen years and under the age of sixteen years. However, the proviso permitting the defence of mistake

of age in the case of “the older girl offence” was not inserted into the 1935 Act and by necessary implication this must have been

deliberate particularly when regard is had to the fact that the mens rea element inserted into section 5 of the 1885 Act in relation to

carnal knowledge with women of unsound mind was effectively repeated in the 1935 Act. To hold otherwise would be an unjustifiable

distortion of what was clearly the intention of the Oireachtas of Saorstát Éireann.

16. I do not consider that my view on this requires any further reinforcement. But such reinforcement if it were to be required is to be

found in the ancestry to the 1885 Act proviso to which I will be referring when treating of the PG appeal.

17. Accordingly, I would dismiss the CC appeal unless this court goes on to hold that section 1(1) of the 1935 Act is inconsistent with

the Constitution. I believe that further argument on this issue is desirable and that this aspect of the appeal should be adjourned for

that purpose.

18. I turn now to the PG appeal. As already mentioned, this appellant has been returned for trial on two counts of sexual assault in

circumstances where the complainant is aged thirteen years. The offence of “sexual assault” is what was formerly called “indecent

assault”. The change of name was brought about by statute but the offence remains the same. By definition there cannot be an

assault if the complainant has consented to the acts alleged to have constituted. Normally, therefore, if there is consent there is

simply no assault. That obvious truism was not fully appreciated by the Oireachtas of Saorstát Éireann when enacting section 14 of

the Criminal Law (Amendment) Act, 1935. It reads as follows:

“14. 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

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

19. Although the draftsmanship could have been more accurate it is quite clear what the section means. Notwithstanding the

existence of consent, the acts which would otherwise be an assault are to in fact constitute an assault if the complainant is under

the age of fifteen years.

20. The issue which now has to be considered is what is to happen if a defendant genuinely believes that the complainant was fifteen

years or more at the time of the alleged offence. Does that mean that there can be no conviction given the absence of mens rea?

21. The appellant, PG, claims that he was mistaken as to the age of the complainant. As has been explained he is fearful that he will

not be allowed to raise that defence at the trial since the trial judge may rule that mistake as to age affords no defence. To forestall

that happening he has instituted these judicial review proceedings seeking reliefs, which if granted, would have the effect of resolving

this issue in his favour. I have already explained what happened in the High Court. I am satisfied that for the reasons which I have

already given this court must now consider the substantive issue.

22. Although in the CC appeal, I have taken the view that having regard to the structure and legislative antecedents of the Criminal

Law (Amendment) Act, 1935 a bona fide error as to age in a prosecution for carnal knowledge with a girl under the age of fifteen

years could not have been intended by the legislature to be a good defence, the principles which have to be considered in the PG

appeal would seem to be quite different.

23. First of all, the only possible relevance of the Criminal Law (Amendment) Act, 1935 to this appeal would seem to be section 14. In

my view, that section is not relevant to the issue which this court has to consider though counsel for the respondent have strongly

argued otherwise. It would seem to me that just because consent would be no defence by virtue of section 14, it does not at all

follow that absence of mens rea in the form of a genuine bona fide mistake as to age would be no defence.

24. Nor do the provisions of the Criminal Law (Amendment) Act, 1885 give rise to any special interpretation of section 6 of the 1935

Act which would oust mens rea. That section reads as follows:

“6.- In lieu of section 52 (repealed by this Act) of the Offences against the Person Act, 1861, as amended by section 19 of the

Criminal Law Amendment Act, 1885, it is hereby enacted that whosoever shall be convicted of any indecent assault upon any

female shall be liable, in the case of a first conviction of any such offence, to imprisonment for any term not exceeding two

years, and in the case of a second or any subsequent conviction of any such offence, to penal servitude for any term not

exceeding five years nor less than three years or imprisonment for any term not exceeding two years.”

25. The wording of that section clearly implies that it is essentially a penalty section. It is not itself purporting to create an offence of

indecent assault. It is true that it is expressed to be in lieu of section 52 of the 1861 Act which was repealed by section 20 of the

1935 Act but the wording of section 52 itself gives rise to a natural construction that it was a penalty section also. I appreciate that

this is contrary to some of the more recent speeches in the House of Lords in which it appeared to be stated that indecent assault

was a statutory offence first created by section 52 of the 1861 Act. Apart from one inconsistent decision, however, the thrust of the

jurisprudence in the Irish courts has always been that indecent assault was a common law offence. It is unnecessary to review the

cases on this point as nothing turns on it in the event. It is sufficient to refer to the latest of them, that is to say, SO’C v. Governor

of Curragh Prison [2002] 1 I.R. 66 in which Hardiman J. delivering a judgment in the Supreme Court with which four other judges

concurred clearly regarded indecent assault or sexual assault as it is now known as a common law offence.

26. None of this matters very much in my view because, as I will be endeavouring to demonstrate in reliance on modern English cases

in particular, mens rea must be presumed to be a necessary ingredient of all serious offences whether they be common law or

statutory unless there is a statutory provision from which it is clear that mens rea is excluded either expressly or by necessary

implication. The common law origin of the offence of indecent assault, however, has this much importance. By reason of its common

law origins it is not analogous to the cluster of other offences of a sexual nature in the 1861 Act and should not be interpreted in the

light of anything contained in the sections creating those offences.

27. The concept that somehow or other mens rea is metaphorically thrown out the window in the case of sexual offences with young

children notwithstanding a genuine mistake as to age derives in the main (though not entirely) from the majority judgments in Reg v.

Prince (1875) LR 2 CCR 154. That was a decision of the English Court for Crown Cases Reserved sitting as a court of sixteen judges.

By a majority of fifteen judges to one the court took the view that the offence under section 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 was

an offence of strict liability in the sense that bona fide error as to age was no defence.

28. That case has been heavily criticised in modern times in the House of Lords and in a judgment of Brooke LJ sitting in a Divisional

Court of the English Queens Bench Division to which I will return.

29. Four judgments were delivered in Prince’s case. The principal judgment was that of Blackburn J. with whom nine other judges

concurred. It would seem that the basis of this judgment, when properly analysed, was the legal right of the father to the possession

of the child and that that depended on the real and not the imagined age of the child. A second judgment in which there was some

overlap of concurrence was delivered by Bramwell B. with the concurrence of seven other judges. Essentially, Bramwell B. arrived at

the same conclusion by a different route. He took the view that “the act forbidden is wrong in itself, if without lawful cause” and that

that being so any aspect of mens rea was ousted. Effectively, the learned baron appeared to be saying that unless a statute

expressly provides otherwise there is no requirement of mens rea if the act the subject matter of the offence is immoral as well as

criminal. A dissenting judgment which has been honourably mentioned in modern times was delivered by Brett J. I find his judgment by

far the most convincing. At p. 163 of the report Brett J. said the following:

“What reason is there why, in like manner, a criminal mind, or mens rea, must not ultimately be found by the jury in order to

justify a conviction, the distinction always being observed, that in some cases the proof of the committal of the acts may be

prima facie, either by reason of their own nature, or by reason of the form of the statute, import the proof of the mens rea?

But even in those cases it is open to the prisoner to rebut the prima facie evidence, so that if, in the end, the jury are

satisfied that there was no criminal mind, or mens rea, there cannot be a conviction in England for that which is by the law

considered to be a crime.”

30. I think that that is a reasonably accurate statement of Irish law also.

31. It is only fair to say that a concern of the majority of the judges was that if they held otherwise, what they perceived as an

absurdity could arise from a situation where such a defence was successfully pleaded in a prosecution under section 50 of the

Offences against the Person Act, 1861 which prohibited unlawful carnal knowledge of a girl under ten years of age, the accused would

be neither guilty of that offence nor of the offence created by section 51 of the same Act which prohibited carnal knowledge of a girl

between the ages of ten and twelve. However, this faulty draftsmanship as some modern judgments in the Divisional Court in England

and in the House of Lords have described it could not be a reason in itself for ousting the fundamental principle of mens rea.

Interestingly, and perhaps in contemplation of possible proceedings such as these cases, section 13 of the Criminal Law Act, 1997 by

reference to paragraph 7 of the First Schedule to that Act effected an amendment to section 2(1) and 2(2) of the 1935 Act

(defilement of girl between fifteen and seventeen years of age) so as to delete the words “of or over the age of fifteen years and”.

There is now a stand alone offence of having unlawful carnal knowledge with a girl under the age of seventeen years.

32. The significance of Prince’s case, to these appeals, if there is any at all which I rather doubt, is not its correctness (in my opinion

it was incorrect) but rather the state of understanding of the law which it would have created. It is clear from the judgment of

Blackburn J. that the same absence of mens rea and the context of mistake as to age would apply in relation to each of the age

related offences under the 1861 Act. It would have been in that context as a matter of high probability that the special proviso in

relation to the older girl offence would have been inserted into the 1885 Act. This is the further reason if such be needed why the

absence of the special proviso in the 1935 Act must, as I have already indicated, lead to the necessary implication that a mistake in

age defence was not intended to be permitted by the Oireachtas of Saorstát Éireann in relation to an offence under section 1(1).

33. Prince’s case, however, spread its tentacles. In R. v. Maughan (1934) 24 Cr. App. R. 130 the English Court of Criminal Appeal held

that on a charge of indecent assault on a girl under sixteen years of age a reasonable and bona fide belief that the girl was over the

age of sixteen could never be an available defence. That judgment relied in the first instance on the case of R. v. Forde [1923] 2 K.B.

400 which in turn was a decision based on perceived necessary implications arising from the English Criminal Law Amendment Act,

1922. That reasoning has no relevance in this jurisdiction. The judgment secondly relied on Prince’s case. That case was cited as

authority for the proposition that once the act had been absolutely prohibited by statute the man who did the act took the risk of

offending against the statute. The judgment of Avory J. went on to state:

“So here the legislature says that it shall be an offence for a man to commit an act which amounts to an indecent assault on

a girl under sixteen years of age whether she consents or not.”

34. The reasoning in this case has also been discredited in the modern House of Lords decisions to which I will be referring and I

believe it to be totally unsound. The logic of it would be that every statutory offence would be absolute unless the statute itself

incorporated mens rea. That has never been the law.

35. Before reviewing the important modern English case law which I have been mentioning it is essential first to have regard to any

modern Irish case law which might have some bearing on the issues. The only Irish case which, in my view, has any direct bearing is

The People (D.P.P) v. Murray [1977] I.R. 360. That was a case in which the Supreme Court dealt with the element of mens rea in a

prosecution for capital murder. The Court of Criminal Appeal had held that the offence of “capital murder” was not a new offence and

that an accused might be convicted of that offence where the prosecution proved the ingredients required to constitute mens rea in

regard to ordinary murder and the fact that the person murdered was a member of the Garda Síochána acting in the course of his

duty. The matter went to the Supreme Court on a section 29 certificate and the Supreme Court (Walsh, Henchy, Griffin, Kenny and

Parke JJ.) allowed the appeals holding that capital murder was a new statutory offence which required proof of mens rea in relation to

each of its constituent elements. In the context of that case the real issue was whether it was relevant that the accused might not

have known that the person he was killing was a policeman. The relevance of that case to the issues with which this court is now

concerned arises from an argument put before the court on behalf of the Director of Public Prosecutions which clearly emerges from

the following passage in the judgment of Walsh J. at p. 383 of the report.

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

is somewhat different. There 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 seventeen were to be confined only to girls of a particular occupation, then the

position would be quite 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 provisions relating to capital murder and

those relating to unlawful carnal knowledge of girls under the age of consent.”

36. Henchy J. in his judgment cites with approval a passage in the speech of Lord Reid in the House of Lords in the case 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 person 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.”

37. Henchy J. goes on to observe that although Lord Reid was referring to a whole offence rather than to a constituent element of an

offence the basis for the presumption would be the same in both cases i.e. “to avoid unjust or repressive 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.” That speech of Lord Reid is of the utmost

importance as it is the foundation of all the modern jurisprudence in England in favour of the presumption of mens rea and it is of

considerable interest that it was expressly approved of by Henchy J.

38. It is obvious that the passage cited from the judgment of Walsh J. can only be regarded as obiter dicta. But more importantly

Walsh J. seems to have assumed and taken it for granted that mistake as to age could never be relevant with regard to a sexual

offence on a young person. The point was never argued before the court or certainly not argued in relation to any relevant case and

I cannot accept the learned judge’s remarks as applying to the offence of sexual assault. I see no reason at all why the principles set

out by Lord Reid and approved of by Henchy J. should not give rise to the presumption that mens rea is applicable to the offence of

sexual assault and that in that connection a mistake as to the age of a child whose consent because of age would be irrelevant

cannot be treated as an exonerating factor.

39. The only other Irish case worth mentioning is Re the Employment Equality Bill, 1996 [1997] 2 I.R. 321. Paragraphs 15 and 16 of

the head note to that case summarise neatly an issue which arose.

“15. That in so far as it was constitutionally permissible to impose criminal liability on an employer for the acts of his

employee, the offences in question should be essentially regulatory in character, apply where a person has a particular

privilege or a duty to ensure that public standards as regards health or safety or the environment or the protection of the

consumer are maintained, and where it might be difficult invidious or redundant to seek to make the employee liable.

16. That the offences provided for in the Bill for which the employer was sought to be made precariously liable were far from

being regulatory in character but likely to attract a substantial measure of opprobrium. The social policy of the Bill did not

justify the introduction of such a change in the criminal law. The provisions were disproportionate to the mischief sought to be

avoided. 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, section 1 and Article 40, section 1 of the Constitution.”

40. The judgment of the court delivered by Hamilton C.J. in that Reference also referred with approval to dicta of Lord Reid in Sweet

v. Parsley cited above. The former Chief Justice particularly referred to Lord Reid’s disapproval of “the public scandal of convicting on

a serious charge persons who were in no way blameworthy.” Of course the factual situation with which the court was dealing with in

that Reference was quite different. It was referring to vicarious criminal liability. Nevertheless a constitutional requirement of an

element of mens rea in serious offences seems to be hinted at.

41. I now return to consider Sweet v. Parsley cited already. It has been noted in several subsequent cases that Reg v. Prince cited

above was cited in argument in Sweet v. Parsley but never referred to in any of the speeches which is some indication of its

irrelevance to the modern jurisprudence of mens rea. Given our own constitutional requirements of a fair criminal system, I see no

reason to take a more restricted view of the mens rea requirements than that taken in modern cases by the House of Lords. Lord

Reid in Sweet v. Parsley starts off his speech by making it clear that if the words of an act show a clear intention to create an

absolute offence that is the end of the matter. He goes on to observe that “such cases are very rare”. There follows the passage

cited by Henchy J. above set out, the last two sentences of which have been described as “Lord Reid’s magisterial statement” by

Lord Nicholls of Birkenhead in B (a minor v. D.P.P. [2000] 2 A.C. 428.

42. Lord Reid goes on to point out that where there is no legal presumption a statutory provision must be construed traditionally

according to the plain literal and grammatical meaning of the words. However, that approach is not sufficient where there is a legal

presumption such as a presumption of mens rea. He further points out that there is a multitude of criminal enactments where the

words of the Act simply make it an offence to do certain things but where everyone agrees that there cannot be a conviction without

proof of mens rea in some form. He sums the position up by saying:

“Mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary”.

43. There is then an interesting passage:

“It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they

contain the word ‘knowingly’ is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates

an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is

necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the

intention of Parliament. I say ‘must have been’ because it is a universal principle that if a penal provision is reasonably capable

of two interpretations, that interpretation which is most favourable to the accused must be adopted.”

44. The CC appeal is a good illustration of an instance where the relevant statutory provision did not allow for the defence of mistake

as to age not merely because of wording but because of the combination of wording with other relevant circumstances concerning

the antecedents to the legislation.

45. Mens rea may take different forms, as Lord Reid further makes clear. In this connection he said the following at p. 150 of the

report:

“Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts

are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention.”

46. In the context of this particular case various arguments could be made in relation to the proposed defence. It could be said that

the onus is on the defendant. It could be said that the mistaken belief can be subjective and only has to be bona fide and honest or

alternatively it could be said that the honest belief has to be an objectively reasonable one. Given the difficulties of proof adverted to

by Walsh J. in the passage cited above in his judgment in the Murray case, it may well be that the onus of proof in relation to this

defence would be on the defendant. These questions would be best left to the trial judge and may ultimately if necessary have to be

determined on an appeal to the Court of Criminal Appeal. On the question, however, as to whether it is sufficient for the belief to be

genuine without it having to be objectively reasonable, I am firmly of the opinion that that is the case. Once by reason of the

governing principles requiring mens rea, the court permits such a defence, it is illogical to require that the belief must be objectively

reasonable. Indeed Lord Reid appears to be of this view as he seems to cite with approval a dictum of the well-known Australian

judge, Dixon J., in Proudman v. Dayman (1941) 67 C.L.R.536, 540:

“As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act

innocent affords an excuse for doing what would otherwise be an offence.”

47. Similar views were expressed in the speeches of Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce and Lord Diplock.

48. In B (a minor) v. D.P.P. cited above the House of Lords consisting of Lord Irvine of Lairg L.C., Lord Mackay of Clashfern, Lord

Nicholls of Birkenhead, Lord Steyn and Lord Hutton held that mens rea was an essential element of every criminal offence unless

Parliament expressly or by necessary implication provided to the contrary. Before considering some of the reasoning in the House of

Lords speeches it is worth drawing attention to a judgment delivered by Brooke L.J. in the Divisional Court in that case. Interestingly,

although he was the presiding judge he allowed his two colleagues to deliver their judgments first and he then delivered his in the

course of which he observed:

“I am only adding a judgment of my own because this three judge court has just spent a day and a half at the taxpayers

expense exploring the highways and byways of our laws on sexual offences simply because Parliament has not explained to us

the mens rea requirement for some of these offences in clear simple terms. Over fifty years ago Lord Goddard C.J. said in

Brend v. Wood (1946) 62 T.L.R. 462, 463:.

‘It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind

that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime,

the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind’.”

49. What is of particular interest in the judgment is that Brooke L.J. then proceeds strongly to criticise the sixteen judge bench that

sat in Reg v. Prince and where apparently no counsel appeared for the prisoner. He points out how different the world was then. The

Married Women’s Property Act, 1882 had not yet been enacted, as he put it “husband and wife were one, and the husband was the

one”. A girl might marry with her father’s consent from the age of twelve onwards and the age for heterosexual intercourse was

twelve. But most significantly, he went on to point out that between the ages of twelve and twenty one the father’s right to

possession of a girl was a much more potent force than the girl’s own wishes. If she was taken out of her father’s possession without

his consent habeas corpus was available at his suit. In no uncertain terms he made it clear that it was his view that Prince’s case had

had a deleterious effect on the thinking in criminal law relating to sexual offences ever since. Brett J. alone came in for praise in

relation to his single dissenting judgment. As Brooke L.J. pointed out Brett J. had said that on all the cases he had reviewed he had

understood that there could be no conviction for crime in England in the absence of a criminal mind or mens rea and 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 was an excuse and that such excuses applied to every criminal charge and every criminal enactment in England.

Although Brooke L.J. did not consider that the Divisional Court could cast doubt on the correctness of Reg v. Prince he noted that

despite it being cited in Sweet v. Parsley the House of Lords omitted any reference to it in their judgments and, of course,

subsequently its correctness has been queried by a number of Law Lords.

50. In the House of Lords the leading speech was delivered by Lord Nicholls. He observed at p. 460:

“As habitually happens with statutory offences, when enacting this offence Parliament defined the prohibited conduct solely in

terms of the prescribed physical acts, section 1(1) says nothing about the mental element. In particular, the section says

nothing about what shall be the position if the person who commits or incites the act of gross indecency honestly but

mistakenly believed that the child was fourteen or over.

In these circumstances the starting point for a court is the established common law presumption that a mental element,

traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or

by necessary implications. The common law presumes that, unless Parliament has indicated otherwise, the appropriate mental

element is an unexpressed ingredient of every statutory offence.

51. In support Lord Nicholls refers to the “magisterial statement” of Lord Reid already cited.

52. I think that I should pause here to make clear that although the modern English case law is primarily dealing with statutory

provisions including statutory provisions relating to indecent assault, the observations relating to the requirements of mens rea are

even more relevant to a common law offence. There is the clear underlying assumption in all the dicta of the different judges and Law

Lords that at common law the element of mens rea was always required for serious offences. The only issue in their minds was when

and in what circumstances should a statutory provision be interpreted as removing that basic requirement for a statutory offence.

53. Running through the speeches of the Law Lords is the clear view that statutory provisions concerning criminal offences must not

be interpreted as ousting the principle of mens rea unless they expressly do so or unless such ouster is a necessary implication.

Indeed, interestingly in his speech, Lord Hutton took the view that having regard to the necessity to protect young girls from sexual

predators it might be reasonable in the ordinary way to imply an intention by parliament not to allow a defence of mistake as to age

but he pointed out that reasonableness was not enough. There would have to be “necessary implication” and he was unable to find

any.

54. Again, I must emphasize that there is a hybrid aspect of the offence of sexual assault in Ireland. Although it has been held in

essence to be a common law offence there have historically been a number of statutory provisions relating to it in one way or

another. Section 6 and section 14 of the Criminal Law (Amendment) Act, 1935 can be included in these but it would certainly be

impossible to raise a necessary implication from these sections that mistake as to age was to be ousted as a defence. Section 6 was

a penalty section only. I have already explained why no such necessary implication could arise from section 14.

55. The overriding presumption of statutory interpretation that mens rea was an essential ingredient of every statutory offence was

reiterated again by the House of Lords in Regina v. K [2002] 1 A.C. 462. The appellate committee consisted of Lord Bingham of

Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hobhouse of Woodborough and Lord Millett. Lord Bingham with whom the other

Law Lords agreed again stressed the overriding presumption of mens rea. The factual matrix to the case however is quite relevant to

the facts underlining this appeal and it is worth citing the head note at p. 462 ff of the report.

“The defendant, a man aged twenty six at the time of the alleged offence, was charged with indecently assaulting a fourteen

year old girl contrary to section 14 of the Sexual Offences Act, 1956. By way of defence he proposed to claim that the sexual

activity between them was consensual, that the girl had told him that she was sixteen and that he had no reason to disbelieve

her. At a preliminary hearing the judge ruled that the prosecution would be required to prove that at the time of the incident

the defendant did not honestly believe that the girl was sixteen or over. On their appeal to the Court of Appeal the prosecution

submitted that since Parliament had, by section 14(3)(4) provided defences in specified circumstances based on a defendant’s

belief but had not so provided in section 14(2) with respect to his belief as to a complainant’s age, no such defence had been

intended. The Court of Appeal accepted the submission and, allowing the appeal, ruled that the prosecution was not required

to prove absence of the defendant’s genuine belief as to the girl’s age.

On the defendant’s appeal -

Held, allowing the appeal that it was an overriding presumption of statutory interpretation that mens rea was an essential

ingredient of every statutory offence, unless Parliament had indicated, by express words or by necessary implication, that it

should be excluded, that no express words were contained in either section 14 or elsewhere in the 1956 Act which would

exclude the need for the prosecution to prove absence of genuine belief by a defendant as to the age of an under age

complainant; that since the 1956 Act was a consolidation statute with corrections and improvements to the expression but

not to the substance of existing provisions and since section 14 did not form part of a single coherent legislative scheme but

was derived from and reflected a miscellany of preceding provisions, significance could not be attached to the inclusion of

grounds of exoneration in section 14(3)(4) and the omission of such a ground from section 14(2); that the language of the

statute did not, as a matter of necessary implication, justify exclusion of the presumption, and its effect, if read into section

14, did not result in absurdity but prevented further anomaly; and that, accordingly, the presumption applied and the

prosecution was required to prove absence of genuine belief on the part of the defendant that the girl was sixteen …”

56. I would merely comment that on that view of the law neither section 6 nor section 14 of the 1935 Act could possibly be

construed as ousting the mens rea requirement. But as I have already indicated that is my own view at any rate.

57. I would allow the PG appeal. The exact terms of the declaratory relief which might be appropriate should be discussed with

counsel.