P.G. -v- Ireland & Ors, [2005]IESC47 (2005)

Docket Number:358/04
Party Name:P.G. , Ireland & Ors
Judge:Geoghegan J. / Denham J.
 
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JUDGMENT BY: Geoghegan J.

THE SUPREME COURT

Record No. 357/04Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.

(1)

BETWEEN/ C C

Appellant/Applicant

and

IRELAND, THE ATTORNEY GENERAL

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

(2)THE SUPREME COURT

Record No. 358/04

BETWEEN/PG

Applicant/Appellant

and

IRELAND, THE ATTORNEY GENERAL

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 12th day of July 2005

An analogous though by no means identical substantive issue arises in each of the above-named appeals which have been heard together by this court.

In the CC case the appellant stands charged with four offences contrary to section 1(1) of the Criminal Law (Amendment) Act, 1935 in respect of four separate incidents of alleged unlawful carnal knowledge of a female under the age of fifteen.

In the PG case the appellant is facing trial on two counts of sexual assault on a young girl aged thirteen years of age "contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended by section 37 of the Sex Offenders Act, 2001". Consent would normally be a defence to a charge of sexual assault but by virtue of section 14 of the 1935 Act referred to above consent is no defence if the complainant is under the age of fifteen years.

Each appellant wants to raise at his respective trial the defence that he made a bona fide error as to the age of the respective complainants. In other words each appellant wants to put forward a defence that he believed the relevant complainant to be over the age of fifteen years.

In each case this mistake as to age issue arises on an appeal from the High Court (Smyth J.) to this court in respect of judicial review proceedings brought by each appellant.

In each of the cases the respondents persuaded the High Court that bona fide mistake as to age whether reasonable or otherwise was not a defence but the respondents also raised two preliminary procedural issues. These were:

  1. That the respective judicial review applications were out of time.

  2. That judicial review proceedings were inappropriate when their purpose was to establish the existence in law of a defence to a charge still to be tried and that such issue should properly be raised before the trial judge.

    Notwithstanding that the learned High Court judge considered that both objections were valid, he nevertheless went on to consider and rule on the substantive issue. Indeed he went further. Leave had been granted in each case to seek a declaration that the exclusion of the defence of mistake (in the PG case it was confined to "reasonable mistake") by the respective appellant as to the age of the complainant was repugnant to the Constitution. For all practical purposes that relief was interpreted as meaning in the CC case, at least, a declaration (if necessary) that section 1(1) of the 1935 Act was inconsistent with the Constitution. As to what it meant in the PG case was less clear but it would appear that the constitutionality of section 14 of the 1935 Act was under attack.

    It may well be that because the learned trial judge embarked on a consideration of the substantive issues the notice of appeal in the CC case does not contain any appeal relating to the time point though the notice of appeal in the PG case does. The time point in each case was argued before this court on appeal. I would differ with the view of the trial judge that either appellant was out of time. It is not necessary to go into the details of the periods which he considered applicable. It is sufficient to say that in neither case has an indictment yet been served. The time in my view would only commence to run from the service of the indictment. Neither application for leave to bring judicial review proceedings was, therefore, out of time.

    In relation to the second of the preliminary objections, that is to say, that the substantive issue should be raised at the trial and not in judicial review proceedings, I am bound to say that I am in great sympathy with this argument. Having regard, however, to the events which have occurred since leave was granted to institute the judicial review proceedings in each case, I am quite satisfied that it would be unjust and wrong in principle for this court not to make its own decision on the issue and simply to leave the matter for the trial judge. The learned High Court judge has decided against each of the appellants on the issue relating to mistake of age. In these circumstances it is virtually inconceivable that the Circuit Court judge who would be conducting the trial would permit himself or herself to express a different view even if this court were to categorise the views of the learned High Court judge as obiter dicta.

    I, therefore, now turn to the substantive issues and I will start with the CC case.

    There is no doubt that neither section 1(1) of the Criminal Law (Amendment) Act, 1935 nor any other provision of the Act expressly permits the defence of bona fide mistake as to age whether reasonable or otherwise but neither is there any provision either incorporating or excluding the principle of mens rea in relation to this offence. As has been pointed out in particular in a number of the relevant English authorities it is quite a normal legislative practice not to make any reference to mens rea in statutes creating criminal offences, however serious, even though the principle of mens rea would have long been held to apply to such offences. The Irish practice has been similar. There is, therefore, no real significance per se in the absence of any provision permitting a defence of mistake as to age in prosecutions for age related offences under the 1935 Act. For reasons which I will be demonstrating, I would be of opinion that if there were no other circumstances affording a legitimate guide to the courts in interpreting section 1(1), I would be of the view that the suggested defence in some form at least would be available.

    However, as the learned High Court judge rightly observed, in interpreting a legislative provision one must have regard to its legislative antecedents. In this case those antecedents are to be found in the provisions of the Criminal Law (Amendment) Act, 1885. To understand the relevance of that Act, however, it is necessary to refer to sections 2 and 4 of the Criminal Law (Amendment) Act, 1935. Section 2 (now amended by section 13 of the Criminal Law Act, 1997) created the offence of unlawfully and carnally knowing any girl over the age of fifteen years but under the age of seventeen years. Unlike the offence under section 1(1) this offence was made a misdemeanour and the penalties were also much less. Section 4 of the 1935 Act went on to create the offence of unlawfully and carnally knowing a "woman or girl who is an idiot, or an imbecile, or is feeble minded" but only if "the circumstances prove that such person knew at the time of such knowledge … that such woman or girl was then an idiot or an imbecile or feeble minded (as the case may be)". Offences created by sections 1, 2 and 4 of the 1935 Act were intended as replacements for the offences created by sections 4 and 5 of the 1885 Act which provisions (apart from one small irrelevant clause) were repealed by section 20 of the 1935 Act.

    Section 4 of the 1885 Act created a felony of unlawfully and carnally knowing any girl under the age of thirteen. Section 5 of the same Act created a misdemeanour of unlawfully and carnally knowing any girl above the age of thirteen years and under the years of sixteen years and also the misdemeanour of unlawfully and carnally knowing "any female idiot of imbecile woman or girl, under circumstances which do not amount to rape, but which prove that the offender knew at the time of the commission of the offence that the woman was an idiot or imbecile". Section 5 contained a proviso in the following terms:

    "Provided that it shall be sufficient defence to any charge under subsection (1) or this section if it shall be made to appear to the court or jury before whom the charge shall be brought that the person so charged had reasonable cause to believe that the girl was of or above the age of sixteen years."

    The offence under section 5(1) was the first of the two misdemeanours to which I have referred that is to say, the offence of carnal knowledge with a girl above the age of thirteen years and under the age of sixteen years. I think that it can be safely said that by necessary implication the U.K. Parliament in enacting the Criminal Law (Amendment) Act, 1885 was not intending to provide a defence of mistake as to age in respect of the offence of unlawfully and carnally knowing a girl under the age of thirteen years as it was expressly providing for such a defence in the case of a girl over thirteen years but under sixteen years. It is to be noted also that under the 1885 Act carnal knowledge with a female of unsound mind was only an offence if the perpetrator knew at the time of the commission of the offence that the woman was so handicapped.

    The Oireachtas of Saorstát Éireann when enacting the 1935 Act was clearly intending to revise the offences under the 1885 Act and to do this in a number of ways. It was clearly intended that what might be described as "the young girl offence" was to be altered to cover girls under fifteen years of age rather than under thirteen years of age. It is equally clear that the intention was to alter what might be described as "the older girl offence" to over the age of fifteen years but under the age of seventeen years instead of over the age of thirteen years and under the age of sixteen years. However, the proviso permitting the defence of mistake of age in the case of "the older girl offence" was not inserted into the 1935 Act and by necessary implication this must have been deliberate particularly when regard is had to the fact that the mens rea element inserted into section 5 of the 1885 Act in...

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