CC v Ireland

• Jurisdiction: Ireland
• Judgment Date: 23 May 2006
• Date: 23 May 2006
• Docket Number: [S.C. Nos. 357 and 358 of
• Court: Supreme Court

C.C. v. Ireland

C.C.

Applicant

and

Ireland, The Attorney General and The Director of Public Prosecutions, Respondents and P.G., Applicant v.Ireland, The Attorney General and The Director of Public Prosecutions

Respondents

[2005] IESC 48 & [2006] IESC 33

[S.C. Nos. 357 and 358 of 2004]

Supreme Court

Supreme Court

Constitution - Personal rights - Trial in due course of law - Whether offence that excluded requirement to prove mens rea and permitted imposition of possible life imprisonment on conviction, vindicated personal rights of citizen - Constitution of Ireland 1937, Articles 38.1 and 40.

Criminal law - Unlawful carnal knowledge - Defences - Mens rea - Requirement of mens rea not expressly stated in statute - Availability of defence - Whether offence of unlawful carnal knowledge one of strict liability - Whether knowledge or reasonable belief as to age of complainant constitutes defence - Whether defence of mistake open to accused - Whether defence of consent of complainant open to accused - Criminal Law (Amendment) Act 1935 (No. 6), ss. 1(1) and 14 - Criminal Law (Rape) (Amendment) Act 1990 (No. 32), s. 2.

Criminal law - Sexual assault - Defences - Mens rea - Defence of mistake - Common law offence - Whether defence excluded - Whether mistake genuine - Whether mistake reasonable - Whether objective test.

Judicial review - Criminal trial - Jurisdiction - Indictment not served - Whether time running - Whether appropriate matter for judicial review - Whether matter better dealt with by trial judge.

The first applicant was charged with four offences of unlawful carnal knowledge of a female under fifteen years of age contrary to s. 1(1) of the Criminal Law (Amendment) Act 1935 before the Circuit Criminal Court. The complainant was approximately thirteen years and eleven months at the time of the alleged offences. The applicant instructed his solicitor that he had believed that the complainant was over fifteen and that she had consented to sexual relations. It was submitted on his behalf that his reasonable belief in the age of the complainant would form part of his defence if it were not for the apparent prohibition in law of such a defence. On application for judicial review the applicant sought (a) a declaration that reasonable belief as to the age of the complainant, on the part of the accused, was a defence and (b) a declaration that the exclusion of the defence of mistake as to age was repugnant to the Constitution and that if the offence created in s. 1(1) of the Criminal Law (Amendment) Act 1935 was an offence of strict liability, it was inconsistent with the Constitution.

The second applicant was charged with two offences of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001. This applicant sought a declaration that he was entitled to advance the defence of reasonable mistake and have that defence considered by the jury. He also advanced his claim as to the constitutionality of the law.

In each case the applicants wanted to raise at their respective trials the defence that each had made a bona fide error as to the age of the respective complainants, i.e. a defence that each had believed the relevant complainant to be over fifteen years of age.

Both applicants brought proceedings for judicial review and in the High Court it was held that bona fide mistake as to age whether reasonable or otherwise was not a defence. The applicants appealed to the Supreme Court.

Held by the Supreme Court (Hardiman, Geoghegan, Fennelly and McCracken JJ.; Denham J. dissenting in part), in dismissing the appeal of C.C. insofar as it was based on the interpretation of s. 1(1) of the Criminal Law (Amendment) Act 1935 and in allowing the appeal of P.G., 1, that neither s. 1(1) of the Criminal Law (Amendment) Act 1935 nor any other provision of the Act expressly permitted the defence of bona fide mistake as to age whether reasonable or otherwise and neither was there any provision which either incorporated or excluded mens rea in relation to the offence of unlawful carnal knowledge. It was normal legislative practice not to make any reference to mens rea in statutes creating criminal offences and in the absence of other circumstances affording a legitimate guide to its interpretation, it would be presumed that the normal principles governing mens rea applied to s. 1(1) of the Act of 1935.

• R. v. Prince (1875) 13 Cox C.C. 138 not followed.The People v. Murray[1977] I.R. 360; Sweet v. Parsley [1970] A.C. 132 and Re B. (A minor) v. Director of Public Prosecutions [2000] 2 A.C. 428 considered.

Per Denham J. dissenting: that where words in a statute were clear and unambiguous they should be given their ordinary and natural meaning; applying that primary rule of statutory construction, there was no exclusion of the requirement of mens rea in s. 1(1) of the Criminal Law Amendment Act 1935.

2. That the proviso permitting the defence of mistake in age in the case of girls over fifteen but under the age of seventeen was not inserted into the Act of 1935 and by necessary implication this must have been deliberate when regard was had to the repetition of themens rea element in s. 5 of the Act of 1885 in the Act of 1935. The principle of construction expression unis est exclusion alterius applied.

3. That the offence of sexual assault was a hybrid offence and neither ss. 6 nor 14 of the Act of 1935 could be construed either expressly or by necessary implication as ousting the mens rea requirement.

Re B. (A minor) v. Director of Public Prosecutions [2000] 2 A.C. 428 and Regina v. K. [2001] UKHL 41; [2002] 1 A.C. 462 considered.

4. That there was no reason why the presumption should not arise thatmens rea was applicable to sexual assault and a mistake as to the age of the child, whose consent was irrelevant because of age, could not be an exonerating factor.

The People v. Murray [1977] I.R. 360 and Sweet v. Parsley [1970] A.C. 132 followed.

5. That it was a sufficient defence for the mistaken belief as to age to be genuine without it having to be objectively reasonable.

Proudman v. Dayman (1941) 67 C.L.R. 536 followed.

6. That time for applying for leave to seek judicial review in a criminal matter did not run where the indictment had not yet been served.

7. That the proper forum for the determination of legal matters arising in the course of a criminal trial was the court of trial, subject to an appeal to the Court of Criminal Appeal. In exceptional cases, as here, where justice required due to events which had transpired including the delivery of a judgment on the substantive issue in the High Court, the court might entertain such an application.

Director of Public Prosecutions v. Special Criminal Court [1999] 1 I.R. 60 approved.

The court, having held that s. 1(1) of the Criminal Law (Amendment) Act 1935 did not afford a defence of reasonable mistake, proceeded to consider the constitutionality of the section.

It was submitted on behalf of the first applicant that the section, which precluded a defence of reasonable mistake, ran contrary to the presumption that mens rea was an essential ingredient in every offence and as a consequence was inconsistent with the right of an accused to a trial in due course of law as enshrined in Article 38.1 of the Constitution and article 6 of the European Convention of Human Rights. Such a regime constituted a failure on behalf of the State to vindicate in law the applicant's personal rights enshrined in Articles 40.3.1 and 40.4 of the Constitution. It was further argued that to the extent that the statute merely criminalised one party to consensual sex it was in breach of Article 40.1 of the Constitution.

The respondents contended that the court was obliged to weigh the infringements of the accused's constitutional right against the importance of what was achieved by the legislation. The court was urged to ignore the maximum sentence that could be imposed for a violation of the impugned section in favour of what was likely to be imposed by judge when sentencing. The respondents submitted that, if the court were to come to a conclusion that the pre-1937 statute was inconsistent with the Constitution, the declaration should be limited to a finding that the section was inconsistent only in so far as it precluded a defence of reasonable mistake.

Held by the Supreme Court, (Murray C.J., Hardiman, Geoghegan, Fennelly, and McCracken JJ.), in declaring s. 1(1) of the Criminal Law (Amendment) Act 1935 inconsistent with the Constitution, 1, that a provision which criminalised and exposed a person without mental guilt to a maximum sentence of life imprisonment failed to respect the liberty or dignity of the individual and constituted a failure by the State to vindicate the right of the citizen to liberty and his good name, rights so rooted in the traditions of the people as to be ranked as fundamental.

The Employment Equality Bill 1996 [1997] 2 I.R. 321and The State (Healy) v. O'Donoghue[1976] I.R. 325followed; R. v. Hess; R. v. Nyguen [1990] 2 S.C.R. 906 and Wisconsin v. Jadowski [2004] WI 68 considered.

2. That the right of an accused not to be convicted of a true criminal offence in the absence of mens rea was not qualified or limited by the impugned section, but wholly abrogated and the imposition of this injustice on a discrete class of person was purportedly justified solely on the basis of its effectiveness as a deterrent.

• R. v. Hess; R. v. Nguyen [1990] S.C.R. 906 considered.

3. That the court was obliged to have regard to the maximum penalty that could be imposed for violation of the impugned section, as it was inappropriate to rely on the sentencing process to mitigate the harshness of an unjust law.

The People (Director of Public Prosecutions) v. Redmond [2001] 3 I.R. 390 followed. R v. Hess; R. v. Nguyen [1990] S.C.R. 906 applied.

5. That there was no special rule...