Court declares section 2 of 1935 Act unconstitutional as it was never in force to be amended.

THE SUPREME COURT

Appeal No 70/2009

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

Between:

Z. S.

Plaintiff/Appellant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS,

IRELAND AND THE ATTORNEY GENERAL

Defendants/Respondents

JUDGMENT delivered by Mr. Justice Fennelly on the 21st day of December 2011.

1. The Criminal law (Amendment) Act, 1935 created the offences of what was then called unlawful carnal knowledge of girls below the

age of 15 (section 1) and between the ages of 15 and 17 (section 2). The Criminal Law Act, 1997 provided that section 2 was to

apply to cases of carnal knowledge of all girls under the age of 17. Section 1 of the Act of 1935 prescribed a maximum penalty of

penal servitude for life; under section 2 the maximum penalty was five years for a first offence and ten years for a second or

subsequent offence.

2. In C.C. v Ireland and others [2006] 4 I.R. 1, the constitutionality of section 1 was challenged by reason of the absence of any

provision permitting a defence on the ground that the accused reasonably or honestly mistook the age of the complainant. For ease

of reference, this will be described as the “mistake defence.” This Court decided the issue in two stages. Firstly, the Court decided by

a majority that section 1 of the Act of 1935 by necessary implication excluded any defence based on bona fide or reasonable mistake

as to the age of the girl. In a second judgment delivered by Hardiman J, speaking for a unanimous Court, it was decided that the

section was, consequently, inconsistent with the Constitution.

3. The proceedings which have led to this appeal constitute the counterpart of C.C., so far as section 2 is concerned. The appellant

has instituted an action by plenary summons in which he alleges that section 2 is invalid, having regard to a number of provisions of

the Constitution, essentially for the same reason as persuaded the Court to strike down section 1. The appellant pleads that section

2 created “an absolute offence with no provision for the defence of reasonable mistake as to the age of the complainant.”

4. There is, however, a difference which has to be considered by the Court. Section 2, unlike section 1, was the subject of

amendment in 1997 in a way which would have the effect of extending its scope to offences involving all girls under the age of 17,

not merely those aged between 15 and 17.

5. Section 2(1) of the Act of 1935 provided as follows

“Any person who unlawfully and carnally knows 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 penal servitude

for any term not exceeding five years nor less than three years or to imprisonment for any term not exceeding two years or, in the

case of a second or any subsequent conviction of such misdemeanour, to any term of penal servitude not exceeding ten years nor

less than three years or to imprisonment for any term not exceeding two years.”

6. Section 13 combined with item number 7 of the First Schedule of the Criminal Law Act, 1997 amended that provision by deletion of

the underlined words, “of or over the age of fifteen years and.” Thenceforth, the section purported to apply to cases of carnal

knowledge of all girls under the age of 17.

7. The implications of this amendment are central to the argument on the present appeal. Without that amendment, section 2 would

share with section 1 the feature that a defence of honest mistake as to age is not allowed and, as was conceded on behalf of the

State, it would suffer the same fate as section 1. If, on the other hand, the post-1937 amendment has the effect of conferring the

presumption of constitutionality on section 2, a different result might be achieved. Thus, by application of the double-construction

rule and, by implication of a requirement of mens rea, the prosecution would have to prove that the accused did not have an honest

belief that the girl was over 17. The section could, if that argument were to be accepted, be rendered compatible with the

Constitution.

The facts

8. The essential facts relating to the appellant are agreed. On 20th August 2004, the appellant was charged with the unlawful carnal

knowledge of a female under the age of seventeen years of age contrary to the provisions of section 2 of the Act of 1935. The act

with which he is charged is alleged to have occurred on 23rd October 2003. The complainant was born on 9th January 1987; thus,

she was sixteen years of age at the date of the alleged offence.

9. The appellant was returned for trial at Dublin Circuit Criminal Court on 10th February 2006.

10. While the complainant alleges that the appellant had sexual intercourse with her, he denies this. Nonetheless, he has indicated his

wish to be able to assert a defence to the effect that any sexual intercourse which took place occurred at a time when he had an

honest and reasonable belief that the complainant was over the age of 17 years.

11. By the date of hearing of the appeal, the appellant had been tried in the Circuit Criminal Court. The jury was unable to reach a

verdict and the retrial of the appellant is pending.

The proceedings

12. The plenary summons in the present case was issued on 30th January 2007. The judgment of this Court in C.C. v Ireland declaring

section 1 of the Act of 1935 to be inconsistent with the Constitution had been delivered on 23rd May 2006. Pleadings in the present

action were closed in December 2007. The High Court (Murphy J) delivered judgment on 19th December 2008.

13. Murphy J held, firstly, that the claim of the appellant was not premature: he rejected an argument advanced on the part of the

defendants that the proceedings raised issues of statutory interpretation which could only be properly heard and determined at trial in

view of the facts and the defence actually proffered.

14. Secondly, he rejected a challenge made by the defendants to the appellant’s standing to bring the action. It had been submitted

that the appellant could not rely on an infringement of constitutional rights in the abstract without showing that his own

constitutional rights were infringed. In short, he could not rely on the absence of a provision for a defence of mistake as to age

unless he demonstrated that he was affected by that feature of the legislation. The learned trial judge held that the appellant had

sufficiently asserted that he had honestly and reasonably believed that the complainant was of sufficient age and that he had,

therefore, the necessary standing to mount a constitutional challenge.

15. The learned trial judge then considered, by careful reference to the authorities, whether the presumption of constitutionality

attached to section 2. He referred to the judgments of this Court in ESB v. Gormley [1985] I.R. 129 and Representatives of Chadwick

(deceased) v. Fingal County Council [2007] IESC 49. While agreeing that the amendment merely broadened the scope of application

of the offence without engaging either with the issue of the mental element of the offence or any defence to a prosecution under

section 2, he held that it did not follow from this that the presumption of constitutionality did not apply to the provision. In particular,

the amendment extended the application of the section “to a new event or category of case,” namely the unlawful carnal knowledge

of girls under the age of 15. It followed, in his view that the presumption of constitutionality applied.

16. The learned trial judge then addressed the question whether the presumption of constitutionality had been rebutted. He recalled a

wide range of case law on the presumption of constitutionality and the consequential application of the double construction rule. The

case was not concerned with section 2 in its original form. The intention of the Oireachtas of Saorstát Eireann could not be attributed

to the Oireachtas under the Constitution.

17. The learned trial judge finally ruled that the section had to be given a constitutional meaning, but left the task as what precise

meaning that would be to the trial court as follows:

“Accordingly, the court concludes that s. 2, in its amended form, must be interpreted in such a way as to render knowledge as to age

a relevant consideration. This may mean that knowledge as to age is to be regarded as an element of the offence, or that a defence

of honest or of reasonable mistake as to age may be invoked. The court accepts the submission of the defendants that that question

should be determined by the trial court. As the Supreme Court indicated in C.C., any of the three formulations identified above, and

perhaps others, would “pass constitutional muster”, so that once it has been determined that the provision is not of a strict liability

nature, the question of what the provision requires is one of statutory interpretation rather than constitutional law. The duty of the

trial court, therefore, is to give to the provision whatever interpretation is consistent with the Constitution and flows from an

application of the ordinary rules of statutory interpretation, including the unrebutted presumption at common law that some mental

element should be inferred.”

The appeal

18. At the hearing of the appeal, it was accepted that the problem before the Court fell to be analysed in three phases:

1. Did the amendment to section 2 effected by the Criminal Law Act, 1997 have the effect of conferring on the section

the presumption of constitutionality which applies to post-1937 statutes?

2. If not, does it follow, for the reasons given by this Court in its judgment in C.C., that the section is unconstitutional?

3. If not, and the double construction rule therefore falls to be applied, what precise meaning, there being several

alternatives, should the Court ascribe to the section?

19. In reality, as the hearing of the appeal proceeded, the focus of analysis became even more narrowly concentrated on the first

question. The State, as has already been stated, conceded that, without the presumption of constitutionality, the section could not

escape the fate of section 1(1). That concession was correctly made. Leaving the age of the complainant aside, there was no basis

for distinguishing between the nature of the offence created by the two sections without application of the double construction rule.

On the assumption the provision enjoyed the presumption of constitutionality, it was conceded that it had to be interpreted by the

court so as to permit a defence of honest mistake, according to one version at least of the possibilities mentioned by Murphy J.

Discussion of the presumption of constitutionality

20. When either the High Court or the Supreme Court, as the case may be, is called upon to consider the exercise of its power to

declare laws to be repugnant to the Constitution, it works according to the principle that any Act of the Oireachtas, i.e. any law

enacted since the entry into force of the Constitution, enjoys a presumption of constitutionality. More than seventy years ago, in

Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413, Hanna J. stated at p. 417:-

"When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed

by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly

established."

21. As the Court has explained, that principle "… springs from, and is necessitated by, that respect which one great organ of State

owes to another" (per O'Byrne J. in Buckley and others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67, at p. 80). The

presumption remains a fundamental principle of our constitutional jurisprudence. (see Goodman International Ltd. v. Mr. Justice

Hamilton [1992] 2 I.R. 542, Finlay C.J.; Curtin v Dail Eireann & others [2006] 2 I.R. 556.]

22. An important corollary of that principle is that a court, considering the exercise of that constitutional power, must apply the

principle of double construction. Where the legislative provision under examination is reasonably open to two or more interpretations,

one of which is compatible with the Constitution and the other or others of which are not, the court must adopt the former

interpretation.

23. Walsh J explained the principle in McDonald v Bord na gCon [1965] I.R. 217 at 239, as follows:

“The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional until the contrary is clearly

established. One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more

constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed

that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of

the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which

is not repugnant to the Constitution that the provision should be held to be repugnant.”

24. In East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 at 341, the same judge elaborated the

principle in the following terms.

“Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in

accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be

unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act

should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof

in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the

legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In

seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and

unambiguous cannot be given an opposite meaning.”

25. However, the presumption of constitutionality does not apply to laws passed prior to the coming into force of the Constitution.

Walsh J explained in State (Sheerin) v Kennedy [1966] IR 379.p.386:

“All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict

with the Constitution in force at the date of their enactment or in excess of the powers of the parliament which enacted them, but

they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions

of Article 50 of the Constitution—not as to their validity but, even assuming they were valid, as to whether or not they are

inconsistent with the provisions of the present Constitution.”

26. As the matter was expressed by O’Higgins C.J. in Norris v Attorney General [1984] I.R. 36 at 54:

“However, according to the actual words used in Article 50, the law or laws in question operate unless inconsistency is established,

and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-

Constitution laws enjoy any presumption of consistency or constitutionality. They do not.”

27. By one of the curious ironies of litigation, the State, having argued, in C.C., that section 1 of the Act of 1935 could not be

interpreted so as to permit a defence of honest mistake as to age, is now compelled by the consequence of the decision in that case

to argue the contrary. For the same reason, the State submits that section 2 of the Act must be considered as a post-1937

enactment by reason of its amendment in 1997.

28. The question then becomes whether that amendment, given its form and its content, has the effect of transforming a provision

enacted in 1935 effectively into a provision enacted by the Oireachtas in 1997.

29. The spectrum ranges from cases where a pre-1937 act is formally re-enacted, or applied to a new situation, to cases of slight or

peripheral amendment.

30. A good example of the first type of situation occurred on establishment of the new Court of Criminal Appeal by section 3 of the

Courts (Establishment and Constitution), Act, 1961. Section 48 of the Courts (Supplemental Provisions) Act, 1961 applied to the

newly established courts a large number of enactments relating to the previously existing courts. Amongst these was section 29 of

the Courts of Justice Act, 1924, relating to the former Court of Criminal Appeal which had been constituted in accordance with the

Act of 1924. Section 29 concerned the finality of decisions of that court. Walsh J in People (Attorney General) v Conmey [1975] 341

at 362 expressed the view that, because that section had been “expressly re-enacted by s. 48 of the Courts (Supplemental

Provisions) Act, 1961, it must be given the benefit of the canons of construction laid down by this Court” in the two cases which I

have cited in the paragraphs above. The consequence, he explained, was “that it must be assumed that the Oireachtas in 1961 did

not intend to violate the constitutional provisions referred to unless the statutory provision leads to no other possible conclusion.”

31. Finlay C.J., in his judgment in ESB v Gormley [1985] IR 129 envisaged a distinction between re-enactment and mere amendment.

At page 147 of the judgment he said:

“Where Acts passed since the coming into force of the Constitution expressly re-enact pre-Constitution statutes, this Court has

decided on a number of occasions that such re-enactment gives to them the status of having been passed since the coming into

force of the Constitution, thus applying the presumption to them.

It is equally clear that the mere fact of an amendment of a pre-Constitution statute contained in a statute passed after the coming

into force of the Constitution does not of itself give to that pre-Constitution statute a presumption of validity.”

32. Gormley was concerned with an attack on the constitutionality of statutory powers of the Electricity Supply Board. Firstly, the

Board was empowered to enter and place electric lines above or below the ground on privately owned land. Secondly, it was given

power to lop or cut trees, shrubs or hedges, which obstructed or interfered with the works of the Board.

33. In the first case, an Act of 1945 amended an Act of 1927 by giving a greatly extended meaning to the expression "electric line."

In this case, the Court held that the 1945 amendment extended and expanded the nature of the works to which the original section

applied to such an extent that “this extended or expanded meaning effectively re-enacted s.53 as part of a post-Constitution

statute.”

34. In the second case, the amendment of section 98 of the Act of 1927 by section 5 of the Act of 1945 extended the power of

lopping and cutting trees and shrubs to cases of potential obstruction of “the survey of the proposed routes of any transmissions or

distribution lines …” Though considered “less extensive” this amendment was held to have the same effect. Finlay C.J. stated that the

amendment.

“expressly extends the powers of the Board contained in s.98 to a new event or category of cases, namely, its requirement to make a

survey only as distinct from the placing of a line.”

35. The Court granted to the defendant in ESB v Gormley a declaration that section 53 of the Act of 1927, “as effectively re-

enacted,” by amendment in 1945, was invalid, having regard to the provisions of Article 40.s. 3 Constitution essentially because of

the absence of any provision for the payment of compensation to landowners for the consequences of the exercise of the statutory

powers. It refused any declaration in respect of the provisions of section 98 of the Act of 1927 as amended in 1945. In neither case

did the Court address the question of inconsistency of the legislation with the Constitution in the context of Article 50.1 of the

Constitution. For that reason, the case is of limited assistance in the present case.

The present case

36. Sections 1 and 2 of the Act of 1935 both created offences of unlawful carnal knowledge of a girl. The distinction between the

offences created by the two sections lay only in the ages of the female victims. Section 1 made it an offence to have unlawful carnal

knowledge of girls under the age of 15. Section 2, as originally enacted, made it an offence to have unlawful carnal knowledge of girls

aged over 15 and under the age of 17. Otherwise, the penalty provisions were different. In addition, a prosecution under section 2

had to be brought within a year. So far as the essential elements of the offence, apart from the age of the victim, were concerned,

there was no difference. Each section created an offence of unlawful carnal knowledge.

37. In particular, there was no difference between the two sections in so far as the question of mens rea was concerned. In its

judgments in C.C., this court held that the legislature in 1935 had quite deliberately excluded the possibility of any defence based on

mistake, bona fide or otherwise, with regard to the age of the girl. The judgments delivered by Geoghegan J and by myself, with both

of which Hardiman J and McCracken J agreed, reached this conclusion on the basis of the legislative history of the provisions. It is

unnecessary to set out that history in any detail. Suffice it to say that a defence of mistake had been allowed in 1885 in the case of

what Geoghegan J called "the older girl" and was included in the Act of 1935 itself so far as persons of feeble mind were concerned.

Geoghegan J concluded as follows at page 41:

“However, the proviso permitting the defence of mistake of age in the case of"the older girl offence" was not inserted into the Act of

1935 and by necessary implication this must have been deliberate particularly when regard is had to the fact that the mens rea

element inserted into s. 5 of the Act of 1885 in relation to carnal knowledge with women of unsound mind was effectively repeated in

the Act of 1935. To hold otherwise would be an unjustifiable distortion of what was clearly the intention of the Oireachtas of Saorstát

Éireann.”

38. In my own judgment, I expressed the same view in slightly different words at page 64:

“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. Following a second hearing in this Court in C.C., Hardiman J delivered a judgment with which all members of the Court agreed. He

held that “the form of absolute liability provided in s. 1(1) of the Act 1935 [was], in all the circumstances, inconsistent with the

Constitution.” He carefully used the word, “inconsistent,” which appears in Article 50.1 of the Constitution, which reads:

“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann

immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the

same or any of them shall have been repealed or amended by enactment of the Oireachtas.”

40. Hardiman J, at page 86 of the report, discussed a proposal that a more limited declaration might be made declaring the provision

inconsistent with the Constitution only to the extent that it excluded a defence of honest mistake. He declined to accept that

proposal. The Court, therefore, made an order declaring that section 1(1) of the Act of 1935 was inconsistent with the Constitution.

41. It has been quite correctly conceded on the part of the State that section 1(1) and section 2(1) cannot be materially

distinguished insofar as both provisions, as enacted by the Oireachtas of Saorstát Eireann, excluded any defence of honest mistake

regarding the age of complainant. It follows inevitably that section 2(1) was also inconsistent with the Constitution at the time it

came into operation. By virtue of Article 50.1 of the Constitution, section 2(1) did not “continue to be of full force and effect…” after

1937.

42. Hardiman J explained, at page 86, that the consequence of the provision’s inconsistency with the Constitution was that it did not

continue to be of “full force and effect,” as provided by Article 50.1 of the Constitution.

43. Because of the unique circumstance that, so far as the availability of a defence of honest mistake is concerned, it is

indistinguishable from section 1(1) on which the Court has already pronounced, section 2(1) was not continued in effect by Article

50.1 of the Constitution. Expressed otherwise, being inconsistent with the Constitution, it ceased to have any effect in law from the

time of coming into operation of the Constitution. Hence, it had no force in law at the date of the passing of the Criminal Law Act,

1997 and its purported amendment by that Act had no legal effect. Put simply, there was no provision in force capable of being

amended by item number 7 of the First Schedule of the Act. The Oireachtas did not in 1997 purport to re-enact section 2(1). It

mistakenly assumed that it was still in force. The amendment of 1997 took the form of the deletion of the words “of or over the age

of fifteen years and” from section 2(1) of the Act of 1935. The Oireachtas did not purport to re-enact section 2(1) as it had done, in

the case of section 29 of the Courts of Justice Act, 1924, by section 48 of the Courts (Supplemental Provisions) Act, 1961,

considered in People (Attorney General) v Conmey (see paragraph 30 above).

44. This is, of course, a highly unusual, even unique, situation. It is the consequence of the existence at this point in time of a

judgment of this Court declaring inconsistent with the Constitution a materially identical provision. The decision in C.C. v Ireland is

crucial. The situation is quite different from the legislative provision at issue in ESB v Gormley, cited above. In that case, there were

two provisions in force, which were amended in a way which the Court found to amount to effective re-enactment.

45. Section 2(1) of the Act of 1935 was, for the same reason as was held in relation to section 1(1) in C.C., inconsistent with the

Constitution. It did not survive the entry into force of the Constitution. It was not in force in 1997 and could not be amended by the

Criminal Law Act of that year.

46. The Court will allow the appeal and will set aside the order of the High Court. It will grant a declaration that section 2(1) of the

Criminal law (Amendment) Act, 1935 is and was at all material times inconsistent with the Constitution.