CC v Ireland, Attorney General and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 23 May 2006
• Neutral Citation: [2006] IESC 33
• Court: Supreme Court
• Date: 23 May 2006

[2006] IESC 33

THE SUPREME COURT

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.

357/04

C (C) v IRELAND & ORS

Between:

C.C.

Appellant/Applicant

and

IRELAND, THE ATTORNEY GENERAL and THE DIRECTOR OF PUBLIC PROSECUTIONS,

Respondent

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

CRIMINAL LAW ACT 1997 S3(1)

SEX OFFNEDERS ACT 2001

DPP v Y (N) 2002 4 IR 309

CONSTITUTION ART 38

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4

SHERRAS v DE RUTZEN 1895 1 QB 918

CONSTITUTION ART 26 OF THE EMPLOYMENT EQUALITY BILL, RE 1996 1997 2 IR 321

EMPLOYMENT EQUALITY BILL 1996 S15

MAGUIRE v SHANNON REGIONAL FISHERIES BOARD 1994 3 IR 580

R v CITY OF SAULT STE MARIE 1978 85 DLR 3d 161

SHANNON REGIONAL FISHERIES BOARD v CAVAN CO COUNCIL 1996 3 IR 267

PEOPLE v HERNANDEZ 1964 39 CAL REP 361

R v HESS; R v NGUYEN 1990 2 SCR 906

CRIMINAL CODE OF CANADA S146(1)

CONSTITUTION ART 50.1

RE BRITISH COLUMBIA MOTOR VEHICLE ACT 1985 2 SCR 486

R v VAILLANCOURT 1987 2 SCR 636

ROAD TRAFFIC ACT 1961 S53

WISCONSIN v JADOWSKI 2004 WI 68

R v PRINCE 1875 LR 2 CCR 154

DPP v REDMOND 2001 3 IR 390 2000/8/3164

O'MALLEY SEXUAL OFFENCES LAW POLICY & PUNISHMENT 1996 97

MICHAEL M v SUPERIOR COURT OF SONOMA COUNTY 1981 450 US 464

CRIMINAL LAW (AMDT) ACT 1935 S1

LAW REFORM COMMISSION REPORT ON CHILD SEXUAL ABUSE (1990)

CONSTITUTION ART 26

EMPLOYMENT EQUALITY BILL 1996 S15(3)

B (A MINOR) v DPP 2002 2 AC 428

HEALY, STATE v DONOGHUE 1976 IR 325

R v SPURGE 1961 2 QB 205

ROAD TRAFFIC ACT 1961 S54

WOODS ROAD TRAFFIC OFFENCES

PIERCE ROAD TRAFFIC LAW

DPP v MURRAY 1977 IR 360

CRIMINAL JUSTICE ACT 1964 S1(1)(B)

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL CODE OF CANADA S147

CANADIAN CHARTER ART 7

CANADIAN CHARTER ART 15

CANADIAN CHARTER ART 1

SWEET v PARSLEY 1970 AC 132

CONSTITUTIONAL LAW:

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 the citizen - Re Employment Equality Bill 1996 [1997] 2 IR 321; The State (Healy) v O'Donoghue [1976] IR 325; The People (DPP) v Redmond [2001] 3 IR 390; Re B (A Minor) v DPP [2000] 2 AC 428; Sweet v Parsley [1970] AC 132 and Sherras v De Rutzen [1895] 1 QB 918 followed - R v Hess; R v Nyguen [1990] 2 SCR 906 and Wisconsin v. Jadowski (2004) WI 68 considered - Constitution of Ireland 1937, Articles 38.1 and 40 - Declaration that 1(1) of Criminal Law (Amendment) 1935 inconsistent with Constitution granted (357 &358/2004 - SC - 23/5/2006) [2006] IESC 33, [2006] 4 IR 66; [2006] 2 ILRM 161 C(C) v Ireland

Facts: The applicant claimed inter alia a declaration that s. 1(1) of the Criminal Law (Amendment) Act 1935 was unconstitutional because of the exclusion of the defence of mistake as to age.

Held by the Supreme Court (Murray CJ, Hardiman, Geoghegan, Fennelly and McCracken JJ) in allowing the appeal that s.1(1) of the Act of 1935 was inconsistent with the provisions of the Constitution.

Reporter: R.W.

Mr. Justice Hardiman

1 C.C. ("the applicant") who was born on the 25th December, 1982, was charged with four offences contrary to s.1(1) of the Criminal Law (Amendment) Act,1935. These offences were said to have occurred between the 20th July, 2001, and the 16th August, 2001 in respect of the same person. He made full statements to the gardaí in which he admitted having consensual intercourse with the person named in the charges. He said that she told him that she was sixteen years of age and herself initiated the contact between them after their first encounter, when no intercourse had occurred.

2 The terms of s.1(1) of the 1935 Act are as follows:

"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."

3 The distinction between felonies and other crimes has been abolished by s.3(1) of the Criminal Law Act,1997. Moreover, by virtue of the Sex Offenders Act, 2001, the applicant, if convicted, will be registered as a sex offender and subjected to certain restrictions and obligations which, on the basis of the judgment of the Court of Criminal Appeal in DPP v. NY [2001] 4 IR 309, would appear to be punitive in nature. But the degree to which this is punitive will vary with the circumstances. In a very bad case with a defendant who has no interest in gainful employment, its punitive effect may be almost nil. On the other hand, a first offender with a responsible job may have his or her career and reputation destroyed by enrolment on the register following a relatively minor offence.

4 The applicant sought relief by way of judicial review. As the case ran, his claims were for:

5 2 (a) A declaration that a reasonable belief on the part of a defendant that the alleged injured party was over the statutory age constituted a defence to a charge under s.1(1) of the Act of 1935.

6 3 (b) A declaration, in the alternative, that the exclusion of the defence of mistake as to age is repugnant to the Constitution and that if the offence created by s.1(1) of the Act of 1935 is an offence of strict liability, that provision is inconsistent with the Constitution.

7 On the 12th July, 2005, this Court held, for the reasons set out in the judgments of Geoghegan J. and Fennelly J., that, in the words of the latter judge, "… The Oireachtas as a matter of deliberate policy, deprived accused persons of the defence of mistakes as to age made on reasonable grounds…" by the enactment of s.1(1) of the Act of 1935 in respect of an offence contrary to that subsection. The Court deferred the hearing of the applicant's constitutional claim and ordered further submissions in that regard. The point has now been fully argued.

Submissions of counsel.

8 On behalf of the applicant, Ms. Deirdre Murphy S.C. submitted that it was inconsistent with the applicant's right to a trial in due course of law as enshrined in Article 38 of the Constitution (and as guaranteed by Article 6 of the European Convention on Human Rights) to deprive him of the defence of mistake, or mistake on reasonable grounds. That regime, she said, brought about a situation where no "guilty mind" or mental guilt was required and no defence at all could be proffered once, as here, the fact of intercourse was admitted. Putting this another way she said that the Oireachtas cannot constitutionally enact a law which is capable of punishing the morally innocent with a long period of imprisonment. Such a regime, she said, constituted a failure to vindicate in law the applicant's personal rights enshrined in Article 40.3. 1 and 2 and Article 40.4 of the Constitution.

9 It is fair to say that the thrust of Ms. Murphy's argument was based on the important general propositions just mentioned. She also complained of discrimination on grounds of sex arising from the fact that where two persons engaged in consensual sexual intercourse only the male appears to be guilty of a criminal offence.

10 Ms. Murphy pointed out that as the law stands, a defendant, possibly a young man like the present applicant, will find himself without a defence even if he were positively convinced by the girl herself that she was over the statutory age, and had objectively reasonable grounds for believing it.

11 Ms. Murphy relied on a considerable volume of material, Irish, English, American and Canadian in support of the proposition that, in the words of Wright J. in the well known case ofSherras v. De Rutzen [1895] 1 QB 918 at 921:

"There is a presumption thatmens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence".

12 Ms. Murphy's primary reliance, in terms of authority, was on the judgment of this Court inIn the Matter of Article 26 of the Constitution and In the Matter of the Employment Equality Bill, 1996 [1997] 2 IR 321. The measure in question there criminalised "discrimination" as defined in the Act and also criminalised "victimisation" as defined. It went on to provide in s.15:

"Anything done by a person in the course of his or her employment shall be treated for the purposes of this Act as done also by that person's employerwhether or not it was done with the employer's knowledge or approval." (Emphasis added).

13 The judgment of this Court was pronounced by Hamilton C.J. who said, at page 373:

"… What is sought to be done by this provision is that an employer, devoid of any guilty intent, is liable to be found guilty on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years, or both such fine and imprisonment, and to be tainted with guilt for offences which are far from being regulatory in character but are likely to attract a substantial measure of opprobrium. The social policy of making the Act more effective does not, in the opinion of this Court, justify the introduction of so radical a change to our criminal law. The change appears to the Court to be quite disproportionate to the mischief with which the Sections seeks to deal.

In the course of his speech inSweet v. Parsley [1970] AC 132 at 150 Reid L.J. … referred to “the public scandal of convicting on a serious charge persons who are in no way blameworthy”. Of course, the English Courts would have to recognise that if Parliament decreed that a person should be found guilty in those circumstances, then the legislation might be upheld because Parliament in the British system is said to be supreme.

Our situation, however, is totally different. We are...