M.D. (Minor) v Ireland AG & DPP,  IESC 10 (2012)
THE SUPREME COURT[Appeal No: 176/2010]
M.D. (A Minor suing by his Mother and Next Friend S.D.)Plaintiff/Appellant
Ireland, the Attorney General and the Director
of Public ProsecutionsDefendants/Respondents
Judgment of the Court delivered on the 23rd day of February, 2012 by Denham C.J.
This is an appeal from a decision of the High Court  IEHC 101 (Dunne J., 26th March, 2010) which upheld the constitutionality of s. 3(1) and s. 5 of the Criminal Law (Sexual Offences) Act 2006, which will be referred to as “the Act of 2006”.
The background to the case is that M.D., the plaintiff/appellant, who will be referred to as “the appellant”, is charged that on the 5th August, 2006, he had sexual intercourse, and committed a sexual act of buggery, with a female person under the age of seventeen years, contrary to s. 3(1) of the Act of 2006. At the time of the alleged offences the appellant was 15 years of age and the complainant was 14 years old. The complainant was not charged with any offence.
Section 3(1) of the Act of 2006 states:-
“Any 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, subject to subsection (3), be liable on conviction on indictment –
(a) to imprisonment for a term not exceeding 5 years …”.
Section 3(5) provides a defence of mistake as to age. It states:-
“It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed 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”.
By virtue of s. 5 of the Act of 2006, s. 3(1) does not apply to a female under the age of 17 years in respect of an act of sexual intercourse. It states:-
“A female child under the age of the 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse”.
The appellant has sought, inter alia, a declaration that s. 5 of the Act of 2006 is repugnant to the Constitution in that it discriminates against the appellant on the basis of gender, contrary to Article 40.1 of the Constitution. The appellant’s case, in essence, is that this provision is gender biased and discriminatory and that it exposes the underage male to the real risk of criminal sanctions based on the traditional sexual stereotype where it is legislatively assumed that the male is the guilty predator and the female is the innocent comely maiden. It is submitted that the fact that the female alone can become pregnant is not a ground which justifies an immunity of this kind.
The Act of 2006 was passed following the decision of this Court in C.C. v. Ireland  4 IR 1, which held that s. 1(1) of the Criminal Law (Amendment) Act 1935, was unconstitutional because of the absence of a defence of mistake of fact as to age. The Act of 2006 replaced the statutory offences of unlawful carnal knowledge under the Criminal Law (Amendment) Act 1935 with two new offences, defilement of a child under 15 years of age and defilement of a child under 17 years of age. It also introduced a defence of honest mistaken belief as to the injured party’s age in the case of both offences.
The appellant’s claim in his plenary summons is for:-
(i) A Declaration that s. 5 of the Act of 2006 is in breach of the Constitution, in that it discriminates against the appellant on the basis of gender, contrary to Article 40.1 of the Constitution.
(ii) A Declaration that the Third Named Defendant was in breach of Article 40.1 of the Constitution in charging the appellant, as a male child under the age of 17 years, with an offence contrary to s. 3(1) of the Act of 2006 in circumstances where he did not charge the female with an offence under the Act.
(iii) A Declaration that s. 3(1) of the Act of 2006 discriminates against the appellant and is in breach of the Constitution in that on conviction the child appellant would be liable to receive a term of imprisonment of up to 5 years where no penalty would be imposed on a female child under the age of 17.
(iv) A Declaration that s. 5 of the Act of 2006 is in breach of Article 38.1 of the Constitution in that the appellant is liable to a disproportionate penalty on the basis of his gender.
(v) A Declaration that s. 3(1) of the Act of 2006 is in breach of Article 8 of the European Convention on Human Rights in that it denies the appellant his right to respect for private life.
(vi) A Declaration that s. 3(1) of the Act of 2006 is in breach of Article 6 and Article 14 of the European Convention on Human Rights in that it denies the appellant the right to a fair trial on grounds of gender.
(vii) A Declaration that in prosecuting the [appellant], the Third Named Defendant failed to consider and act in accordance with the Constitutional principles of justice and charity and breached Article 40.3 of the Constitution .
(viii) A Declaration that the purported consent of the Third Named Defendant to bring a prosecution against the appellant is invalid as the Third Named Defendant acted in breach of Articles 40.1, 38.1 and 40.3 of the Constitution in failing to prosecute the female for engaging in a sexual act with the child appellant contrary to the Act.
(ix) An Order staying the First Named Defendant from taking any further steps in the prosecution of these proceedings pending the outcome of the proceedings herein.
(x) Further or other order.
On the 30th April, 2010, the High Court refused the reliefs sought by the appellant in the plenary summons.
High Court Judgment
The learned High Court judge delivered judgment on the 26th March, 2010. It was stated that:-
“It has to be remembered that the appellant in the present case has been charged with two offences; one is that he had sexual intercourse with a person under 17 years and the second is that he committed an act of buggery. On the facts alleged in this case, the complainant has no immunity in relation to the act of buggery. The immunity from conviction conferred by s. 5 is limited to acts of sexual intercourse.
The statutory provision at issue in this case provides for different treatment of female and male children under l7 years of age and as such it has to be viewed as being discriminatory on grounds of gender. It is then necessary to consider whether, given the lack of equality of treatment, the defendants can rely on the provisions of Article 40 .1 to show that in the words of Laffoy J in S.M. v. Ireland  IEHC 280  4 I.R. 369 referred to above, ‘the differentiation is legitimated by reason of being founded on difference of capacity, whether physical or moral, or difference of social function of men and women in a manner which is not invidious, arbitrary and capricious.’”
The High Court referred to the objective of the Act, as follows:-
“The objective of the Act as a whole is to protect children, boys and girls, from sexual abuse. As pointed out above, the Act deals with a complex and wide range of sexual activities, circumstances and levels of culpability. Difficult issues such as the issue of consent are dealt with in the Act. Careful consideration has been given to the sentencing regime for offenders - for example, those within a specified age range are not subject to the provisions of the Sexual Offenders Act 2001 while those in a position of authority over a child are liable to longer sentences of imprisonment. This is the legislative framework in which one must view the limited immunity conferred by s. 5. Girls and boys are equally liable to prosecution in respect of sexual activity falling short of sexual intercourse. S. 5 applies only to acts of sexual intercourse. Thus the immunity only applies to the one area of sexual activity that can result in pregnancy. It is the one consequence of sexual activity that carries no risk for boys or men. The risk of pregnancy is only borne by girls.”
The High Court concluded, on the issue of the constitutionality of the Act, that there was discrimination in s. 5 of the Act of 2006 but that it was legitimated by being founded on difference in capacity, physical or moral or difference of social function of men and women in a manner not invidious, arbitrary or capricious.
European Convention on Human Rights
The High Court addressed the issue of the European Convention on Human Rights. It was held:-
“I want to deal briefly with the arguments based on the ECHR. I agree with the submissions on behalf of the defendants that the provisions of that ECHR do not bring the matter any further than Article 40.1 of the Constitution. The United Kingdom decisions cited above, R v. Kirk  ENCA Crim 1580, E v. Director of Public Prosecutions E.W.H.C. 147 and R v. G  UKHL, 37;  1 AC 92 are persuasive authorities to that effect. Accordingly, I am satisfied that the provisions of the Act at issue in these proceedings are not incompatible with the ECHR.”
On the issue of s. 5 the learned High Court judge concluded:-
“Finally, I should add that the helpful submissions in relation to the issue as to whether the [appellant], if successful in his arguments, was entitled to the reliefs claimed herein given that striking down s.5 alone could not avail the [appellant], need not be considered in the light of the outcome of these proceedings.”
Notice of Appeal
On behalf of the appellant nine grounds of appeal were filed.
The grounds of appeal were:-
(i) The Learned Trial Judge erred in law in finding that the gender discrimination in section 5 of the Act is legitimated by reason of being founded on difference of capacity, physical or moral, or difference of social function of men and women in accordance with Article 40.1 of the Constitution, whereas the true position is that the said differing treatment...
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