C.W. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 01 June 2022
• Neutral Citation: [2022] IEHC 336
• Court: High Court
• Docket Number: Record No. 2021 3473 P

Between

C.W.

Plaintiff

and

The Minister for Justice and Equality, Ireland, The Attorney General and the Director of Public Prosecutions

Defendants

[2022] IEHC 336

Record No. 2021 3473 P

THE HIGH COURT

Conviction – Defilement of a child – Criminal Law (Sexual Offences) Act 2006 s. 3(5) – Applicant seeking a declaration that s. 3(5) of the Criminal Law (Sexual Offences) Act 2006 is invalid – Whether s. 3(5) of the Criminal Law (Sexual Offences) Act 2006 is invalid having regard to Article 38.1 of the Constitution

Facts: The plaintiff was convicted of an offence contrary to s. 3 of the Criminal Law (Sexual Offences) Act 2006 after a trial by jury and had been sentenced to a term of one year and ten months, which was being served concurrently with another sentence and for which his release date was in 2025. The plaintiff sought a declaration that the offence of defilement of a child contrary to s. 3 of the 2006 Act, as substituted by s. 17 of the Criminal Law (Sexual Offences) Act 2017, is invalid having regard to the provisions of the Constitution, and in particular Article 38.1. Section 3 makes it an offence to engage or attempt to engage in a “sexual act”, as defined in the Act with a child who is under the age of 17, but subs. 3 provides a defence where the accused proves that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years. Subs. 5 provides that the standard of proof required to prove that the defendant was reasonably mistaken as to the child’s age “shall be that applicable in civil proceedings.” While the plenary summons sought a declaration of invalidity in relation to the entire section, at the opening of the hearing, the plaintiff confirmed that the declaration of invalidity was sought only in relation to subs. 5 of s. 3. As a result, the case raised a single issue as to whether it is constitutionally permissible to impose a legal burden on an accused in a criminal trial, as opposed to an evidential burden only.

Held by the Court that it is an aspect of the fundamental fairness of a criminal trial that an accused should not be liable to conviction where there is a reasonable doubt as to his guilt and, as a consequence, a provision such as that in s. 3(5) of the 2006 Act, which deals with the core issue of moral culpability of the accused, and which places an obligation on him to prove on the balance of probabilities that he is not so culpable, is contrary to Article 38.1 of the Constitution.

The Court’s preliminary view was that it should make a declaration that subs. 5 of section 3 of the 2006 Act is invalid having regard to Article 38.1 of the Constitution.

Declaration granted.

JUDGMENT of Ms. Justice Stack delivered on the 1 ^st day of June, 2022 .

Introduction

1 . In these proceedings, the plaintiff seeks a declaration that the offence of defilement of a child contrary to s.3 of the Criminal Law (Sexual Offences) Act, 2006, as substituted by s.17 of the Criminal Law (Sexual Offences) Act, 2017, is invalid having regard to the provisions of the Constitution, and in particular Article 38.1. Section 3 makes it an offence to engage or attempt to engage in a “sexual act”, as defined in the Act with a child who is under the age of 17, but subs. 3 provides a defence where the accused proves that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years. Subs. 5 provides that the standard of proof required to prove that the defendant was reasonably mistaken as to the child's age “shall be that applicable in civil proceedings.”

2 . While the plenary summons sought a declaration of invalidity in relation to the entire section, at the opening of the hearing, the plaintiff confirmed that the declaration of invalidity was sought only in relation to subs. 5 of s. 3. As a result, the case raises a single, but important issue as to whether it is constitutionally permissible to impose a legal burden on an accused in a criminal trial, as opposed to an evidential burden only. I am using those terms in the sense in which they are used in chapter 2 of McGrath, Evidence, (2 ^nd Ed., Round Hall, 2014) and adopted by O'Malley J. in The People (Director of Public Prosecutions) v. Forsey [2019] 2 I.R. 417, where (at paras. 124 and 126) she stated:

“The ‘legal burden’ is a burden of proof ‘properly so called’ and is the burden fixed by law on a party to satisfy the tribunal of fact as to the existence or non-existence of a fact or matter. Where the legal burden is borne by a party in relation to an issue, he or she is required to persuade the tribunal of fact to the criminal or civil standard of proof, as appropriate.

…

An ‘evidential burden’ is the burden borne by a party who contends that a particular issue should be put before the decision-maker. It is discharged by adducing (or by pointing to relevant evidence adduced by the other party) sufficient evidence for that purpose, to the point that the trial judge is satisfied that it should be left for consideration.”

3 . In practice, if the section provided that the accused should only discharge an evidential burden, he or she would be acquitted if the jury had a reasonable doubt as to whether or not the accused was reasonably mistaken as to the child complainant's age, but because subs. 5 provides that the accused must establish to the civil standard that he or she was mistaken, the jury may convict even if they entertain a reasonable doubt, or even if they think it is as likely as not that the accused was reasonably mistaken as to the child complainant's age.

4 . Section 3 of the 2006 Act was enacted in response to the Supreme Court decision in C.C. v. Ireland [2006] 4 I.R. 1, where the Supreme Court declared the offence of unlawful carnal knowledge of a female under 15 years of age contrary to s. 1 (1) of the Criminal Law (Amendment) Act, 1935, invalid because it wholly abrogated the right of an accused not to be convicted of a true criminal offence in the absence of any proof of culpability. The judgment is based on the old maxim, very recently referred to by Charleton J. in Abdi v. Director of Public Prosecutions [2022] IESC 24, where he stated (at para. 50):

“[C]riminal liability is constructed on the basis of an external element coupled with a mental element, as in the old maxim in Latin actus reus non facit reum nisi mens sit rea, meaning that the act is not culpable unless the mind is guilty.”

The State defendants in this case placed great reliance on an interpretation of the “reasonable mistake” defence as relating to mens rea and I return to that issue below, but suffice it to say at this point that the concept of the “guilty mind”, while it overlaps to a considerable degree with mens rea, is not exactly equivalent and the defence was introduced so as to satisfy the constitutional requirement that criminal liability could not be imposed where no culpability could be proven.

5 . Section 3 of the 2006 Act, as substituted by s. 17 of the 2017 Act, provides as follows:

“(1) A person who engages in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment—

(a) to imprisonment for a term not exceeding 7 years, or

(b) if he or she is a person in authority, to imprisonment for a term not exceeding 15 years.

(2) A person who attempts to engage in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment—

(a) to imprisonment for a term not exceeding 7 years, or

(b) if he or she is a person in authority, to imprisonment for a term not exceeding 15 years.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years.

(4) Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years, the court shall consider whether, in all the circumstances of the case, a reasonable person would have concluded that the child had attained the said age.

(5) The standard of proof required to prove that the defendant was reasonably mistaken that the child had attained the age of 17 years shall be that applicable to civil proceedings.

(6) Subject to subsection (8), it shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted.

(7) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.

(8) Where, in proceedings for an offence under this section against a child who at the time of the alleged commission of the offence had attained the age of 15 years but was under the age of 17 years, it shall be a defence that the child consented to the sexual act of which the offence consisted where the defendant—

(a) is younger or less than 2 years older than the child,

(b) was not, at the time of the alleged commission of the offence, a person in authority in respect of the child, and

(c) was not, at the time of the alleged commission of the offence, in a relationship with the child that was intimidatory or...