Supreme Court dismisses appeal on strict liability for sexual offences with under-13s, rejecting judicial review route.

THE SUPREME COURT

(1)

Record No. 357/04

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.

BETWEEN

C. C.

Appellant/Applicant

and

IRELAND, THE ATTORNEY GENERAL

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

(2)

THE SUPREME COURT

Record No. 358/04

BETWEEN

P. G.

Applicant/Appellant

and

IRELAND, THE ATTORNEY GENERAL

and THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT delivered by MR JUSTICE FENNELLY on the 12th day of July, 2005.

1. This judgment concerns only the case of Director of Public Prosecutions v C. In the case of Director of Public Prosecutions v G., I

agree with the judgments of Denham and Geoghegan JJ. In the C. case, I agree with Geoghegan J that the application for Judicial

Review was not out of time.

2. The Appellant, C., is charged before the Circuit Criminal Court, with a number of offences of unlawful carnal knowledge against one

alleged female victim, who was aged thirteen years of age at the relevant times.

3. By pursuing the route of Judicial Review, the Appellant has sought to have rulings made in advance of his trial as to the

interpretation of the applicable statutory provisions. This is not a procedure which the Court should approve. The forum for ruling on

the law applicable in criminal cases is the court of trial.

4. I am compelled, however, to agree that, exceptionally, in view of the course events have taken, this Court must consider the

correctness of the substantive rulings which have, in fact, been made by the learned High Court judge. This Court, in Transport

Salaried Staffs’ Association and others v Córas Iompair Eireann [1965] I.R. 180, upon which the Appellant relies, decided that an

action for a declaration could be entertained by the court in its discretion on a less conservative basis than in former times (see

Walsh J at page 202). However, that was not a criminal case. The decision of this Court in Director of Public Prosecutions v Special

Criminal Court [1999] 1 I.R. 60 is much more in point. O’Flaherty J, in the Supreme Court, approved the following statement made in

the High Court by Carney J:

“It is unique in my experience that relief of this nature is being sought during the currency of a trial which remains at hearing.

It cannot be emphasised strongly enough that an expedition to the judicial review court is not to be regarded as an option

where an adverse ruling is encountered in the course of a criminal trial. I am undertaking this application for judicial review

during the currency of the trial because a need has presented itself to urgently balance the hierarchy of constitutional rights

including, in particular, the right to life. In the overwhelming majority of cases it would be appropriate that any question of

judicial review be left over until after the conclusion of the trial.”

5. I fully agree with those sentiments. I also believe that, in general, they are applicable to an application such as the present made

pending a criminal trial. It is, of course, commonplace for applications to be made to prohibit criminal trials. Such applications are

brought by way of Judicial Review. It is, however, quite inappropriate and a usurpation of the function of the court of trial for an

accused person---or the prosecution, for that matter--- to seek advance rulings from the High Court as to how any legal provisions

should be interpreted in the course of a pending trial. It happens that the present case concerns a trial pending in the Circuit Court.

Judicial Review is not available at all in respect of a trial pending in the Central Criminal Court (the High Court). The proper forum for

the determination of legal matters arising in the course of trial is the trial court itself, subject to appeal to the Court of Criminal

Appeal. The learned trial judge has, however, ruled on those matters. He has delivered a considered judgment on the interpretation of

the relevant sections. As Geoghegan J says in his judgment, the Circuit Court may feel bound by the views of Smyth J. They may also

be considered binding, rightly or wrongly, not only in this but in other cases. It may be a long time before this Court has an

opportunity to consider the substance of the matter. In the ordinary way, decisions of the High Court are open to appeal to this

Court. In these exceptional circumstances, I am satisfied that the Court must entertain the appeal.

6. The Appellant stands charged with the offence of unlawful carnal knowledge of a girl under the age of fifteen years contrary to

section 1(1) of the Criminal Law (Amendment) Act, 1935 (“the 1935 Act”). He wishes to adduce evidence in his defence that the girl

told him and that he reasonably believed that she was over seventeen.

7. Section 1(1) reads:

“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.”

8. The description of the offence as a felony is now immaterial. The Criminal Law Act, 1997 abolished the distinction between felonies

and misdemeanours. However, the word formerly marked the seriousness of the offence.

9. The Appellant argues for the application of the principle of mens rea to the offence. This can be put in two ways: either the

prosecution is required to prove knowledge on the part of the accused that the girl was under age or the accused must be permitted

prove as a defence that he was mistaken, on reasonable grounds, as to her age. It is accepted that the section does not provide for

either of these propositions. Nor, on the other hand, does it include any express requirement of knowledge of age; the word

“knowingly” is absent. Although the order granting leave to apply for Judicial Review appears to relate to the second of these

formulations, the two are very closely related and this Court has heard full argument in both respects. For the purposes of the

interpretation of the section, as I will later explain, the distinction is of no relevance.

10. The order of the High Court gave leave to apply for the following relief:

Judicial Review by way of a declaration that the Applicant is entitled to rely on the defence of mistake by the Applicant as to

the age of the complainant in the said prosecution;

Judicial Review by way of a declaration that knowledge or in the alternative belief on the part of the Applicant that the

complainant was 15 years or over is a defence;

11. The order granted leave on the following legal grounds:

The provisions of the said act of 1935 replaced those of the Criminal Law Amendment Act, 1885, and thereby removed the

statutory defence of reasonable mistake as to the age of complainant in the offence of unlawful carnal knowledge of girls under

a specified age;

The legislature’s intent in introducing the said act of 1935 appears to have been to exclude mistake and/or knowledge and/or

reasonable belief as a defence in the said offence and the said act does not enjoy a presumption of constitutionality;

In all the circumstances the said prosecution of the Applicant would be in breach of the Applicant’s constitutional rights: to fair

procedures; not to be tried on any criminal charge save in due course of law; and not to be deprived of his liberty save in

accordance with law;

The public policy objective of protecting young girls can be achieved by legislative means other than the imposition of strict

liability unconnected to moral dereliction. Such imposition is unjust, irrational, inappropriate and repugnant to Article 40.1 of the

Constitution.

12. It has, for a very long time, been assumed by both the courts and the legislature both in this jurisdiction and in England, that the

offence of unlawful carnal knowledge of a girl under a specified statutory age is one of strict liability. The provenance of this

assumption, insofar as that may be relevant, may be traced back as far as the decision in 1875 of the Court of Crown Cases reserved

in R. v Prince 1 Cox 138, a case very fully discussed in the judgments of Denham and Geoghegan JJ.

13. This assumption of strict liability offence has also appeared in several judicial and extra-judicial pronouncements: notably an

obiter dictum of Walsh J in DPP v Murray [1977] I.R. 360 at p.383, quoted below; Law Reform Commission Report (LRC 32-1990) on

Child Sexual Abuse, paragraphs 4.03 and 4.13; Sexual Offences; Law, Policy and Punishment, Thomas O’Malley. (Round Hall Sweet &

Maxwell Dublin 1996 page 93). Mr O’Malley ascribes it to the “impact of the decision in Prince’s case.” This presumption has, it

appears to me, been both widespread and universal. It is not, however, based on any more recent judicial authority, though, as

Geoghegan J points out, a number of post-1922 English decisions followed R v Prince.

14. It is, of course, axiomatic that the age of the girl is the very gist of the offence. The law does not concern itself with the morality

of consensual sexual behaviour between adults. If the man believes the girl to be under age, when she is not, he commits no crime. If

it is indeed an offence of strict liability, and the girl is, in fact under fifteen, he commits the offence whatever his belief. It can

scarcely be doubted, nonetheless, that there is a moral component in the legislative policy underlying statutory protection of young

girls. It does not seem to me to be correct to equate mens rea, as some judges have done, with moral blameworthiness. The morality

of the behaviour is either relevant or it is not. I believe it is not. For the sake of completeness, it must be recalled that, as generally

understood, the word, “unlawfully,” appears in the section solely to provide for the case of marital relations, where the wife is under

fifteen. It has no other function or meaning. In the normal case, therefore, the actus reus consists in having sexual intercourse with a

girl who is under the statutory age. Under normal principles of criminal law, mens rea would also be necessary.

15. The basic and ancient principle, “actus non facit reum nisi mens sit rea” appears in innumerable judicial and extra-judicial writings

on the subject of criminal intent. It is unnecessary to go back, as many do, to Coke’s Institutes and Blackstone’s Commentaries. Also

frequently quoted is a dictum of Sir Owen Dixon, in Thomas v. The King (1937) 59 C.L.R. 279, 309, described the need for mens rea

as “the most fundamental element in a rational and humane criminal code." Mens rea remains a foundation stone of the criminal law.

It means that criminal liability does not attach without criminal intent.

16. Sweet v Parsley [1970] A.C. 132, is the leading modern English decision on the principle and is frequently cited, as demonstrated

by Denham and Geoghegan JJ, in our courts. Lord Reid made a statement at pages 148 and 149, which has been described as

“magisterial” (see Lord Nicholls of Birkenhead in Re B (A minor) 2000 1 A.C. 428 at 460):

“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……… 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.”

17. The leading modern Irish case on mens rea is DPP v Murray, already cited, where several members of the Court referred in more

modern language to that basic proposition and also addressed the related question, so important for the present case, of the test to

be applied to ascertain whether the legislature has, nonetheless, created an offence of strict liability. The question arose in the

context of the “capital murder” of a member of the Garda Síochána and was whether the criminal intent that had to be proved

against the accused persons included knowledge that the victim was in fact a garda. In that case, Walsh J restated the principle

thus:

“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.”

18. Henchy J, at page 399, cited from the dictum of Lord Reid from the leading English case of Sweet v Parsley already mentioned. To

similar effect, Kenny J stated at page 421:

“It is a general rule of our law that the act itself is not criminal unless it is accompanied by a guilty mind. The Oireachtas may

make acts crimes although the accused was not aware that he was committing an offence: these are usually called crimes of

strict liability. But, to effect this, clear language must be used. In the absence of such an indication, the general rule is that

the guilty mind or criminal intent must be established in relation to each ingredient of the offence.”

19. Lord Nicholls, in Re B (A minor), cited above, having recalled Lord Reid’s dictum, also went on to discuss the test for a strict-

liability offence, in other words that the presumed need for proof of mens rea had been negatived by the language used by

parliament. It is important to recall that Re B (A minor) concerned a comparatively recent English statutory creation, the offence of

inciting a girl under the age of fourteen to commit an indecent act. It will be necessary later to refer to the current view of the House

of Lords regarding the element of mens rea in a prosecution for the nearest equivalent to the section of the 1935 Act under

consideration in this case. The girl in Re B (A minor) was thirteen and the defendant was a boy of fifteen. Lord Nicholls equated

“necessary implication” with “compelling clarity.” At page 464 he said:

“The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived by

necessary implication. "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.”

20. These dicta are clear authority for the proposition that, insofar as section 1(1) of the 1935 Act is concerned, in the absence of

compellingly clear exclusion of its necessity, the prosecution should have to prove not only that the accused had sexual intercourse

with a girl under fifteen, but that he knew that she was under that age. The alternative formulation is that there should be a defence

of mistaken belief (on reasonable grounds) as to the age of the girl. I do not mean, of course, that proof of express subjective

knowledge would be requisite. The surrounding circumstances would in many cases furnish sufficient prima facie proof. The girl may

be of such tender years as to lead to an obvious even an overwhelming inference that the accused must have known her to be under

the age. Knowledge of her age might, in some cases, be readily inferred and imputed to the accused from a family or other

relationship. The problem presented in the present case concerns the less obvious cases and, in particular, cases where the girl

disguises her youth or lies about her age. The choice there is between strict liability and the need to prove knowledge.

21. I propose to consider separately the judicial antecedents of the assumption of strict liability and the legislation together with its

history.

22. The decision in 1875 in R. v Prince, has, by common accord, crucially influenced the assumption that the statutory offences of

having sexual intercourse with young females are offences of strict liability.

23. The offence charged in R v Prince was not, however, the statutory ancestor of the offence here at issue. Rather it was laid as

being contrary to 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.”

24. Blackburn J, speaking for ten of the judges was of the opinion that it was the intention of the legislature “to punish the abduction,

unless the girl, in fact, was of such an age as to make her consent an excuse, irrespective of whether he knew her to be too young

to give an effectual consent, and to fix that age at sixteen.” Most relevantly for present purposes, he also called in aid, in

justification of that conclusion, sections 50 and 51 of the same enactment, which are, indeed, the statutory ancestors of sections 1

and 2 of the 1935 Act save that the corresponding ages fixed by the 1861 legislation were under ten and between ten and twelve

respectively. Blackburn J supposed a case of a man charged with having sexual intercourse with a girl who was in fact under ten but

whom he believed to be slightly over ten. He thought 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.” (page 172). Insofar as this reasoning forms the basis for the decision, it can have no bearing on the

interpretation of the two equivalent sections of the 1935 Act, as they now stand. Section 2 of 1935 Act has now been amended by

section 14 and the First Schedule to Criminal Law Act, 1997 with the effect of removing the words: “of or over the age of fifteen

years and.” The offence under section 2 is now that of having unlawful carnal knowledge of a girl under seventeen. This point

consequently no longer has any force, assuming it ever did. It has also, interestingly, been rather ridiculed in some of the speeches in

the House of Lords in Re B (A minor) (see Lord Steyn at page 475 and 476). Blackburn J supported his reasoning by reference to the

mischief against which he perceived section 55 of the 1861 Act to have been aimed, namely that “female children, heiresses, and

others having expectations, were, unawares of their friends brought to contract marriages of disparagements to the great

heaviness of their friends.” He spoke of a “legal right to the possession of the child, depending on the real age of the child and not on

what appears.” I need hardly say that such considerations are utterly irrelevant to the interpretation of a statute in modern

circumstances. There were judgments by Bramwell B and Denman J to similar effect. There was also, however, a sole dissenting and

very learned judgment from Brett J, (later to become Brett LJ and Lord Esher, M.R.) which, to quote Brooke LJ in his judgment in the

Divisional Court in Re B. (A Minor) v DPP [2000] 2 A.C. 428 at page 445, has much better "stood the test of time.” That judgment

stands in the direct line of orthodoxy traceable from Coke’s Institutes and Blackstone to Sweet v Parsley. Following a lengthy review,

Brett J concluded, at page 169, that “there can be no conviction for crime in England in the absence of a criminal mind or mens

rea.”

25. I do not think that the judgment of the majority in R. v Prince can be regarded as possessing any credible authority, binding on

this Court, for the proposition that every statutory offence of having sexual intercourse with a minor is necessarily one of strict

liability. It has been treated as discredited in England (see also Lord Bingham of Cornhill in Regina v K [2002] A.C. 462 at 474); it has

been noted that, though cited in Sweet v Parlsey, it did not warrant mention in the speeches; it might finally be noted that the

prisoner was not represented. It is true that Walsh J, in his judgment in DPP v Murray, without citing R v Prince, appears to have

made the classic assumption of strict liability with regard to the very section under consideration on this appeal. At page 383, he

propounded a distinction between the offence provided by the section of the 1935 Act and the one of capital murder than before the

Court on the following basis:

“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.”

26. That was, of course, an obiter dictum. It was the statement of one judge only. It is, nonetheless, consistent with the assumption

made also by the Law Reform Commission and by Mr. Thomas O’Malley in his work on Sexual Offences. Perhaps more materially, Walsh

J referred to the absence in the 1935 Act of provision for a defence of honest belief. I should add that, while the House of Lords, in

Re B (A minor), discounted the authority of R v Prince, as I will show in a number of passages quoted at the end of this judgment, the

most serious of the age-based statutory offences now found in the (English) Sexual Offences Act 1956 are offences of strict liability.

However, like Denham and Geoghegan JJ, I consider R v Prince to be irrelevant to the interpretation of modern criminal law.

27. If it stood alone, I do not think the material already cited, including the decision in R. v Prince, would suffice to rebut the normal

presumption that mens rea is an essential element in the statutory offence or, at least, that there should be available a defence of

mistaken belief as to the age of the girl. It is necessary then to consider the legislation and its history, including the history going

back to the Act of 1885 and beyond.

28. The long title to the 1935 Act describes it as follows:

“An Act to make further and better provision for the protection of young girls and the suppression of brothels and prostitution,

and for those and other purposes to amend the law relating to sexual offences.” (emphasis added)

29. It has been the policy of the legislature for more than a century to divide offences of having sexual intercourse with young girls

into two categories according to age. As has been seen from R. v Prince , the 1861 Act provided for offences respectively against

girls under ten (a felony) and between ten and twelve (a misdemeanour). The Criminal Law Amendment Act, 1885 provided for a

felony in the case of girls under thirteen (section 4) and for a misdemeanour in the case girls between thirteen and sixteen. Thus the

felony offence first required the girl to be under ten from 1861, under thirteen from 1885 and under fifteen from 1935.

30. The 1935 Act repealed section 4 but created a felony in identical language, with the exception that it raised the age from thirteen

to fifteen. It also repealed section 5 of the 1885 Act and created a misdemeanour of identical scope, save that the new section,

section 2, applied where the girl is between fifteen and seventeen. As already noted, the lower age limit was removed by amendment

in 1997. There are some differences in respect of the wording of the penalty provisions which are not material to the present case.

31. In effect, therefore, the 1885 regime was re-enacted in 1935 but the protective policy was extended. It was now a felony to

have sexual intercourse with a girl between thirteen and fifteen, which had formerly been a misdemeanour. It is now, following the

1997 amendment, a misdemeanour to have sexual intercourse with a girl under seventeen.

32. It may be said, in passing, that the age of the accused is immaterial. While it is normally a more serious offence, when it comes to

sentencing, for an older man to have sex with a very young girl than it is for a boy closer to her age, it remains the case that the

latter, provided he has reached the age of criminal responsibility, is equally guilty of an offence. The Oireachtas has never

experimented with the notion of a “young man’s defence,” introduced in England in 1922, discussed by the Law Reform Commission

Report, already cited, and there described as “an unhappy compromise” and as “wholly unsatisfactory.” That defence arose from

section 2 of the (English) Criminal Law Amendment Act, 1922. In its original form it was criticized by the Court of Criminal Appeal in

Rex v Forde [1923] 2 K.B. 400. Such a defence, nonetheless, still exists under section 6 of the Sexual Offences Act, 1956 (unlawful

sexual intercourse with a girl between thirteen and sixteen years of age) though not in the case of a charge under section 5 of that

Act (the same where the girl is under thirteen). Thus the age basis of the offences has not been changed in England since 1885.

Otherwise these offences correspond with the offences under sections 1 and 2 of the 1935 Act (see Lord Steyn in Re B (A minor) at

page 468.) This serves to highlight, nonetheless, the difficulty of legislation in this area, especially in times of great social and moral

change.

33. This brings me to the major and, it seems to me, crucial aspect of the 1935 Act, the aspect is most relevant. That is whether the

Oireachtas should be presumed, in enacting se 1(1), in place of section 4 of the 1885 Act, to have intended that the offence would

be one of strict liability or whether it either required proof of knowledge of the girl’s age or allowed room for a defence based on

mistake or mistake on reasonable grounds regarding the age of the girl.

34. Section 5 of the 1885 Act, while making it a misdemeanour to have unlawful carnal knowledge with a girl between thirteen and

sixteen years of age, contained the following:

“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.”

35. In this connection, it is also material that section 7 of the 1885 Act, which created an offence of abducting an unmarried girl

under the age of eighteen, with intent to have carnal knowledge of her, also contained a proviso:

“Provided that it shall be a sufficient defence to any charge under 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 eighteen years.”

36. It is most important to keep in mind the fact that there has never been statutory provision for a defence of mistake as to age on

a charge of the felony offence: neither when the age was under ten from 1861, thirteen from 1885 or fifteen from 1935. The 1935

Act quite deliberately contains no proviso for a defence based on reasonable belief in respect of any offence, except that of

defilement of mentally incapacitated persons (section 5). Section 1 corresponds with section 4 of the 1885 Act, which, of course,

while dealing with offences against girls under the age of thirteen had never contained any such proviso. Insofar as it extended the

age of the girls covered, it was natural that the Oireachtas, in enacting sec 1(1), should follow suit. Furthermore, section 2, which

corresponds with section 5 of the 1885 Act, with the exception that the age range (formerly thirteen to sixteen) was changed (to

fifteen to seventeen), excluded the proviso which had been contained in the section it was replacing. Section 7 of the 1885 Act was

left unchanged except that the proviso was repealed. Section 4 of the 1935 Act, now repealed by the Criminal Law (Sexual Offences)

Act, 1993, provided for a defence if “the circumstances [should] prove” that a person accused of unlawful carnal knowledge of

certain mentally impaired persons should have knowledge that the person was so impaired. It is interesting to note that section 5 of

that Act of 1993, which replaces section 4 of the 1935 Act retains a defence that the accused “did not know and had no reason to

suspect that the person in respect of whom he is charged was mentally impaired.”

37. Two related questions arise. Does section 1(1) require proof of mens rea, specifically knowledge of the age of the girl?

Alternatively, does the section permit a defence of mistaken belief that the girl was above the statutory age? I have no doubt that

the historic and consistent line of authority, some of which I have cited, would mandate a positive answer to these questions, unless,

by “necessary implication” (as in DPP v Murray) or with “compelling clarity” (per Lord Nicholls in B (A minor) that result is excluded.

38. I need not repeat my account of the legislative history. Section 5 of the 1885 Act permitted a defence to the charge of

committing the misdemeanour of having sexual intercourse with a girl aged between thirteen and sixteen, that the accused “had

reasonable cause to believe that the girl was of or above the age” specified. The presence of this defence to the misdemeanour

charge coupled with its absence in the case of the felony seems to me necessarily to imply that the enacting legislature did not

intend such a defence to be available in the latter case. This is an obvious case of application of the principle of construction

expressio unius est exclusio alterius, applied, for example by the majority of this Court in Browne v Attorney General and others

[2003] 3 I.R. 205, per Keane CJ at page 221. That is but the first step in the reasoning. When the Oireachtas of Saorstát Eireann

came to amend that statute in 1935, it took the further step of removing any possibility of raising such a defence of mistake in the

two cases where it could previously have been raised under the 1885 Act. How can the legislature, at the same time, be taken to

have intended that it should be available in defence of a charge to which it had never previously been a defence? The intention of

the Oireachtas is further clarified by the exclusion of the defence also in the case of a charge of abducting an unmarried girl under

the age of eighteen contrary to section 7 of the 1885 Act, while effectively retaining it in the case of mentally impaired victims

(section 4). It is, to my mind, compellingly clear that the Oireachtas, as a matter of deliberate policy, deprived accused persons of

the defence of mistake as to age made on reasonable grounds in all cases, but one, in which it had previously been expressly

available. It is, therefore, also compellingly clear that the Oireachtas did not intend that such a defence should be available in the

case of a charge of the newly enacted offence of unlawful carnal knowledge of a girl under the age of fifteen. A contrary view would

make nonsense of the legislation and would, furthermore, run counter to the commonly accepted interpretation of the section which

has prevailed for the seventy years since its enactment.

39. I believe that this is the view that has also been taken in England regarding the corresponding provisions of the Sexual Offences

Act, 1956. It is true that in the two important recent cases, already cited, of Re B (A minor) and Regina v K, the House of Lords has

ruled firmly in favour of the implication of a defence of mistaken belief in certain age-based statutory sexual offences. The first case

concerned an offence of inciting a girl under the age of fourteen to commit an indecent act, an offence created by section 1 of the

Indecency with Children Act, 1960. The second concerned a sexual assault on a girl under the age of sixteen contrary to section 14

of the Sexual Offences Act, 1956. In each case the House held mens rea to be an essential element of the particular offence. It did

not follow, however, that this was the case in respect of every statutory sexual offence. In his speech in the latter case, at page

474, Lord Bingham stated, in relation to section 5 and 6 of the Sexual Offences Act, 1956, a consolidating statute:

Although properly applied to section 1 of the 1960 Act and section 14 of the 1956 Act, the presumption cannot be applied to

sections 5 and 6 of the 1956 Act. Those sections as a pair derive directly from corresponding sections in the 1861 Act, as

demonstrated above. The statutory or young man's defence was introduced into what is now section 6. Its omission from

what is now section 5 is plainly deliberate. A genuine belief that a child three years under the age of consent was over that

age would in any event defy credulity. Section 6(3) of the 1956 Act plainly defines the state of knowledge which will exonerate

a defendant accused under that section, and this express provision necessarily excludes the more general presumption.

(Emphasis added)

40. Lord Steyn, at page 478, spoke to the same effect:

“By contrast, the terms of sections 5 and 6 of the 1956 Act namely offences of having sexual intercourse with girls under 13

(section 5) and with girls under 16 (section 6) are inconsistent with the application of the presumption. The "young man's

defence" under section 6(3) makes clear that it is not available to anybody else. The linked provision in section 5, dealing with

intercourse with younger girls, must therefore also impose absolute liability.”

41. Lord Hutton expressed an identical view in Re B (A Minor) at page 481. He thought it clear that parliament had intended the

offence under section 5 of the 1956 Act to be one of strict liability.

42. For these reasons, I would dismiss the appeal in this case, insofar as it is based on the interpretation of section 1(1) of the 1935

Act. As is suggested in the judgment of Geoghegan J, it may be appropriate to give further consideration to the question of the

constitutionality of that section and to receive further submissions and hear further argument on that question.