C.W v The Minister for Justice, Ireland and the Attorney General and the Director of Public Prosecutions

JudgeMr Justice Peter Charleton,Mr. Justice O'Donnell,Ms. Justice Iseult O'Malley
Judgment Date28 August 2023
Neutral Citation[2023] IESC 22
CourtSupreme Court
Docket NumberSupreme Court appeal number: S:AP:IE:2022:000082 [2022] IEHC 336
The Minister for Justice, Ireland and the Attorney General and the Director of Public Prosecutions

[2023] IESC 22

O'Donnell CJ

Dunne J

Charleton J

O'Malley J

Woulfe J

Hogan J

Murray J

Supreme Court appeal number: S:AP:IE:2022:000082

High Court record number 2021/3473P

[2022] IEHC 336

An Chúirt Uachtarach

The Supreme Court

Defilement of a child – Presumption of innocence – Guarantee of a trial in due course of law – Appellants appealing against the finding of the High Court that s. 3(5) of the Criminal Law (Sexual Offences) Act 2006 is invalid having regard to the provisions of the Constitution – Whether the subsection breached the constitutional guarantee of a trial in due course of law

Facts: The plaintiff/respondent was charged by the third appellant/respondent, the Attorney General, with two offences, being one count of rape and one count of the offence of defilement of a child under the age of 17. After being returned for trial in the Central Criminal Court he issued proceedings, in which he sought a declaration that the offence of defilement, as provided for in s. 3 of the Criminal Law (Sexual Offences) Act 2006, was invalid having regard to the Constitution and/or was incompatible with the European Convention on Human Rights. The trial proceeded in May 2021. The respondent was acquitted by the jury on the charge of rape but was convicted of defilement. He was sentenced to a term of imprisonment of one year and ten months. The respondent’s case was primarily based on the proposition that the age of the child is a key ingredient of the offence of defilement, since no crime is committed unless the child is under 17. He said that it follows as a matter of law that this element must require mens rea on the part of the accused person. He accepted that it can be permissible to impose a burden of proof on the defence in that regard, but argued that any burden so imposed cannot go beyond the requirement to prove grounds for reasonable doubt on the issue. To go further than this amounts, he said, to an infringement of the presumption of innocence and, therefore, a violation of the constitutional guarantee of a right to a trial in due course of law. The respondent/appellant State parties accepted that age is a key ingredient of the offence, in the sense that the age of the child at the relevant time must be proved beyond reasonable doubt. However, they contended that knowledge of the age on the part of the accused is not an ingredient, and that, therefore, there is no onus on the prosecution to show that an accused person had any mens rea in relation to the age; the offence is complete if the accused person did in fact engage in sexual activity with a child who was in fact under 17. They said that the section simply provides for a special defence available to a person who can show that they had made a reasonable mistake about the age of the child. In the alternative, the appellants argued that the right to be presumed innocent is not absolute and that, if mens rea as to age is indeed an element of the offence, the reverse burden is nonetheless justifiable. They contended that it is both rational and proportionate. The respondent disputed those contentions. The State parties appealed to the Supreme Court against the finding of the High Court that s. 3(5) is invalid having regard to the provisions of the Constitution and in particular Article 38 thereof: [2022] IEHC 336). The High Court held that the subsection breached the constitutional guarantee of a trial in due course of law.

Held by the Supreme Court that while the objective of the legislation is certainly a legitimate one, and justifies both the imposition of a burden of proof on the defence and the requirement that the mistake be reasonable, the pitching of that burden at the level of proof on the balance of probabilities either impairs the right to be presumed innocent to the point where it must be considered disproportionate and contrary to the constitutional presumption of innocence or fails to guarantee a trial in due course of law as required by Article 38 of the Constitution.

The Court dismissed the appeal.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Monday 28 August 2023


In concurring with the joint judgment of O'Donnell CJ and O'Malley J, it is here proposed only to offer concise observations on the history of reversed burdens of proof and on any potential indicia whereby the State may validly legislate to take an essential element of proof of a true criminal offence and require an accused to prove innocence by establishing a negative as to that element. A standard example of reversed burden comes from the Misuse of Drugs Act 1977, as amended, where the prosecution prove that: (1) A had possession; which also requires (2) a mental element of intention to possess; of (3) controlled drugs; whereupon A must prove (4) no awareness of the drugs. Here, the issue arises in the context of a sexual act, unlawful by reason of age under s 3 of the Criminal Justice ( Sexual Offences) Act 2006 s 3 as substituted by s 17 of the Criminal Justice ( Sexual Offences) Act 2017. The elements of the charge are proof: (1) of sexual intercourse or other prohibited sexual act; with (2) a child below a certain birthday; but where (3) the accused must demonstrate unawareness as to the element which makes that activity criminal as to its nature, namely (2), the age of the victim. Sexual act is defined in s 1 of the 2006 Act, as amended by the 2017 Act, as “sexual intercourse” or “buggery”, where the people are not married to each other, or (a definition taken from s 3(1) of the Criminal Law (Rape)(Amendment) Act 1990, as amended, “a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted”, or (as taken from s 4(1) of same) “a sexual assault that includes (a) penetration (however slight) of the anus or mouth by the penis, or (b) penetration (however slight) of the vagina by any object held or manipulated by another person.” Of course, a sexual assault, an aggravated sexual assault and a section 4 rape, may all be prosecuted as separate charges. Sexual intercourse is as defined in s 1(2) of the Criminal Law (Rape) Act 1981, which, in turn, is as defined in section 63 of the Offences against the Person Act, 1861, but may be described as any penetration by the penis of the male of the vagina of the female.


While some textbooks vary as to terminology, the terms here used coincide with those of the joint judgment and, in turn, with traditional common law usage. What is considered here are the fundamentals of the proof of true criminal offences, ones usually prosecuted on indictment and carrying a sense of moral opprobrium as an attack on the social order, as opposed to regulatory offences that establish and enforce rules for the proper running of a civic society.


The burden of proof in a criminal trial is on the prosecution and, save exceptions provided by statute or as to defences of mental infirmity, does not shift to the accused. That burden on the prosecution is proving the accused's guilt and proving that guilt beyond a reasonable doubt. That burden prevails in respect of every element of the case: external as to what was done or participated in by the accused (robbery: stealing something from another and using violence or a threat on that person, is an example); and mental, as to intending (having the action or result as the purpose of what was done) or consciously disregarding a risk (recklessness) or being wilfully blind (which is equivalent to a knowing action).


The elements of an offence, when broken down, carry within them all that the prosecution must prove. Sometimes, in addition, there may be a defence notwithstanding that proof. For example, while the accused may have been proven to have possession of controlled drugs, he or she may only have done so at gun-point; as with the bank official who steals but whose family is kidnapped. There is a difference, which can sometimes be hard to delineate, as between a defence and an element of a charge. But, counsel for an accused are not entitled to suddenly address a jury on provocation (in murder only) or self-defence (in assault-based cases) or mistake of fact (in theft case, as in taking someone else's bicycle instead of your own) unless there is first laid some evidential basis for that. Issue of fact are the subject to the same constraint. Counsel cannot, effectively, pull a rabbit out of a magician's hat and claim, without evidential basis, that, for instance the injuries to the corpse in a homicide case were due to incompetent ambulance para-medics trying to revive the victim and not the accused beating up the unfortunate deceased. In both, defence or facts perhaps leading to a defence, the issue has to be fairly before the jury. This, enabling a defence requirement, is called the burden of adducing evidence. It means that the defence cannot ask the judge to leave open an argument to the jury unless there is on the prosecution case or on the defence evidence (if any) some rational basis for a jury perhaps concluding that the homicide resulted from a complete loss of self-control in the face of provocation, or that the accused in hitting the victim was acting in proportionate self-defence, or that in taking the bicycle there was a potentially genuine and reasonable mistake. Fact is the same. This burden of adducing evidence is only to show a rational basis for enabling a jury to consider a defence, either one of fact or as to an element of culpability. If a defence is in the case, the prosecution must normally (unless there is a reversed burden) disprove the evidence of a mistake; as in undermining the suggestion...

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