Oscar (a Pseudonym) v The Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 16 December 2025
• Neutral Citation: [2025] IECA 278
• Docket Number: Court of Appeal Record No. 2024/140

Oscar (A Pseudonym)

Applicant/Appellant

and

The Director of Public Prosecutions, Ireland and the Attorney General

Respondents

The Director of Public Prosecutions, Ireland and the Attorney General

Respondents/Appellants

and

Oscar (A Pseudonym)

Applicant/Respondent

[2025] IECA 278

Kennedy J.

Meenan J.

Collins J.

Court of Appeal Record No. 2024/140

Court of Appeal Record No. 2024/158

THE COURT OF APPEAL

CIVIL

Prosecution – Sexual offences – Criminal Law (Sexual Offences) Act 2006 – Appellant seeking to restrain the respondents from continuing with a prosecution against him – Whether s. 3 of the Criminal Law (Sexual Offences) Act 2006 was unconstitutional

Facts: The appellant appealed to the Court of Appeal from the judgment and orders of the High Court ([2024] IEHC 279) dismissing his application to restrain the respondents, the Director of Public Prosecutions, Ireland and the Attorney General, from continuing with a prosecution against the appellant on a charge of defilement contrary to s. 3(1) of the Criminal Law (Sexual Offences) Act 2006 and a charge of sexual exploitation contrary to s. 3 of the Child Trafficking and Pornography Act 1998. The appellant sought and was refused a declaration that s. 3 of the 2006 Act was unconstitutional, as well as a declaration that s. 3(8) must be interpreted to have application where an accused reasonably believed the child complainant to be over 15 years of age and within 2 years of age of the accused.

Held by the Court that the judge approached the issue of seriousness in the correct way and considered the facts alleged; he had access to the book of evidence, considered it and took the prosecution case at its highest. It appeared to the Court that as the appellant would retain his anonymity, this impacted in a significant way on the appeal for injunctive relief/prohibition. The Court gave limited weight to residual matters of alleged prejudice contended for under the Children Act 2001. The Court held that the appellant's constitutional fairness argument was a novel proposition and was not supported by any authority. The Court was not persuaded that the High Court judge erred in his analysis or conclusions on that issue. The Court rejected the applications to admit fresh evidence. The Court held that an accused cannot be convicted of an offence contrary to s. 3 of the 2006 Act absent mens rea. The Court did not find any error in the judge’s analysis in that regard. The Court was satisfied that the trial judge correctly interpreted s. 3 of the 2006 Act, and was correct in dismissing the appellant’s claim of unconstitutionality.

The Court dismissed the appeal.

Appeal dismissed.

APPROVED JUDGMENT

JUDGMENT of Ms. Justice Isobel Kennedy delivered on the 16 ^th day of December 2025

Introduction

1 This is an appeal brought by the appellant from the judgment and orders of the High Court (Simons J., [2024] IEHC 279) dismissing his application to restrain the respondents from continuing with a prosecution against the appellant on a charge of defilement contrary to s.3(1) of the Criminal Law (Sexual Offences) Act 2006 (“the 2006 Act”) and a charge of sexual exploitation contrary to s.3 of the Child Trafficking and Pornography Act 1998, as amended by s.6 of the Criminal Law (Sexual Offences) (Amendment) Act, 2007 and as substituted by s.3(2) of the Criminal Law (Human Trafficking) Act, 2008.

2 The appellant sought and was refused a declaration that s.3 of the 2006 Act was unconstitutional, as well as a declaration that s.3(8) of the 2006 Act must be interpreted to have application where an accused reasonably believed the child complainant to be over 15 years of age and within 2 years of age of the accused.

3 I will refer the individual to whom Simons J. gave the pseudonym “Oscar” as the appellant, and the respondents as “the Director”.

4 The Director cross appeals against part of the orders made, however, it was agreed that this be left to another date and so this judgment addresses the appellant's appeal only.

5 The issues in this appeal are to be found in the fact that the appellant was 15 years old at the time of the alleged offences and therefore a child. The primary relief sought and the focus of the within appeal concerns the injunctive relief.

6 The appellant was 15 years of age at the time of the alleged offending and the complainant was 12 years of age. His arrest, interview and charge all occurred prior to his 18 ^th birthday.

7 The judgment in People (DPP) v PB [2025] IESC 12 was delivered after the High Court judgment in the within appeal. PB concerned the interpretation of s.93(1) of the Children Act 2001 (“the 2001 Act”), and, as this appellant was charged with the alleged offences prior to his 18 ^th birthday, reporting restrictions will continue to apply throughout the proceedings and beyond.

8 The High Court found that there were certain periods of culpable prosecutorial delay, specifically a period of 3 ¹/₂ months, being the date from the specialist interview to the date of the appellant's arrest, and a period of 10 months after the file was submitted to the Director's office and the date of charge. The appellant contends the judge ought to have found greater periods of culpable delay. However, the Director submits that the judge in fact found that the period of 2 years and 2 months between the date of the complaint to the date of charge represented a failure to comply with the duty of expedition. The High Court conducted the balancing exercise as laid down by the Supreme Court in Donoghue v Director of Public Prosecutions [2014] 2 IR 762, and found that the prosecution should proceed, but subject to ad hoc reporting restrictions.

9 Crucially, the judge found that “ the only potential prejudice suffered by the applicant as a result of the prosecutorial delay is that he has lost the opportunity of availing of the reporting restrictions under section 93 of the Children Act 2001.” [emphasis added]

10 The appellant has filed two motions seeking to adduce fresh evidence relating to stress and anxiety, which I will address hereunder.

The Appellant's Submissions

11 The appellant submits that the prosecution of the appellant was delayed to such an extent that his continued prosecution was unjust and unfair, and not in accordance with minimal standards of constitutional justice, and that the High Court judge erred in refusing to order prohibition of the appellant's trial.

12 The appellant contends that the alleged offending should not be regarded as serious in the “ DOE” ( DOE v. Director of Public Prosecutions [2025] IESC 17) sense in that they are not so serious so as to require exceptional prejudice to ground prohibition. He asserts that he did not believe he was committing a criminal offence as he held the belief that the complainant was 15 years old, and that the putative absence of mens rea as to the age of the child complainant means that the charge of defilement cannot be regarded as serious. He contends that the learned High Court judge failed to properly address this issue.

13 To expand on the above in terms of the appellant's submissions, the appellant argues his state of mind as to the age of the complainant was of great significance in assessing the seriousness of the offence in that, “ no offence at all would have been committed if the facts had been as the Applicant believed them to be, when balancing the public interest in prosecution as against the culpable delay, the public interest in prosecuting him as an adult for an offence for which he did not have a guilty state of mind, is very low”.

14 The appellant argues that prohibition ought to be granted on grounds of fundamental unfairness in that he was charged with an offence under s.3 of the 2006 Act (defilement of a child under 17 years). He submits that he believed the complainant to be 15 years old, and does not contend that he should be charged with an offence under s.2 of the 2006 Act (defilement of a child under the age of 15 years), but that the Director may have accepted that he was not guilty of the latter offence, and so did not charge him with that.

15 The unfairness arises, it is said, in that pursuant to s.3(8) of the 2006 Act, if a person aged 15 years has sexual intercourse with a female aged 15 years who consents, he is not guilty of a criminal offence, whereas a person who does the same act believing the female is 15 years old but where she is in fact under 15, is guilty of an offence.

16 I note that this latter proposition does not take account of the fact that the complainant was aged 12 years.

17 The constitutional challenge is related to the above issue, where the appellant contends that s.3(8) of the 2006 Act should be interpreted to mean that a 15-year-old boy who reasonably believes that the person with whom he has sexual intercourse is 15 years old is not guilty of an offence. It is argued that the section as a whole is unconstitutional on the ground that the section necessarily criminalises the appellant's conduct in that his belief as to the complainant being aged 15 is irrelevant.

The Director's Submissions

18 The Director refers to Donoghue, and submits that the High Court judge was correct in finding that any potential prejudice to the appellant was insufficient to outweigh the public interest, especially as there is strong public interest in the prosecution of serious offences.

19 Moreover, it is said following DOE, it is clear that the appellant will enjoy the benefit of reporting restrictions under s. 93 of the 2001 Act, and therefore there is no prejudice of such a calibre so as to outweigh the public interest in the prosecution of these serious charges.

20 It is noted that the High Court judge correctly interpreted s.3(8) of the 2006 Act in that it does not create a defence of reasonable mistake as to the complainant having attained the age of 15, and that contrary to...