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Judgment Title: P.G. -v- Ireland & Ors
Composition of Court: Denham J., Hardiman J., Geoghegan J., Fennelly J., McCracken J.
Judgment by: Denham J.
Status of Judgment: Approved
Outcome: Allow And Set Aside
THE SUPREME COURT
Appeal No. 357/04
Appeal No. 358/04
Ireland, the Attorney General, and
The Director of Public Prosecutions
Ireland, the Attorney General, and
The Director of Public Prosecutions
1. Three cases were heard together in the High Court and, judgment was delivered by Smyth J. on the 6th day of June, 2004, where, for the reasons given, the declarations sought by J. M., C. C., and P. G., were refused. Against that order and judgment C. C., and P. G., have appealed to this court.
2. J. M., has appealed the costs order only, which issue will be addressed at a later stage. C. C. and P. G. proceeded before this Court on substantive issues.
3. I shall consider first the appeal of C. C., and then the case of P. G..
The Application of C. C.
4. The applicants are each awaiting trial in the Dublin Circuit (Criminal) Court, having been charged with sexual offences against the same complainant.
5. C. C. is charged with four offences, namely:
(ii) That on the 2nd day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years, contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935;
(iii) That on the 10th day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935; and,
(iv) That on the 16th day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935.
6. The complainant was approximately 13 years 10/11 months at the time of the alleged offences, having been born on the 3rd day of September, 1987.
7. C. C. made a statement to the Garda Síochána in which he stated that he had consensual sexual intercourse with the complainant. It was submitted that there were grounds upon which he could have believed reasonably that the complainant was over 15 years of age. He instructed his solicitor that he had believed that the complainant was over 15 years of age. On behalf of C. C. it was submitted 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.
8. The reliefs sought by C. C. on this application for judicial review include:
(b) A declaration that the exclusion of the defence of mistake as to age is repugnant to the Constitution, that if the offence created in s.1 (1) of the Criminal Law (Amendment) Act, 1935 is an offence of strict liability it is inconsistent with the Constitution.
9. Out of time
The learned High Court judge held that the applicants’ application for judicial review was out of time and had not been made promptly. However, he determined that the issues in the instant case were far too important to permit the judicial review application to be decided on a time point only unless some serious prejudice has or is likely to be caused. He held that prejudice in this context is not confined to the parties but is to be considered in the context of a fair and efficient justice system to the whole community. Further, he relied on the public policy that proceedings relating to public domain law should take place promptly, except where good reason is furnished. In all the circumstances, including the delivering of a fair and just legal system, the learned trial judge permitted the applications for judicial review proceed. On this preliminary issue I am in agreement with Geoghegan J. that as the indictment had not been served in either case neither applicant was out of time to seek leave for judicial review.
10. The propriety of an application for judicial review
Submissions were made that the proceedings were a moot, that the trial had not yet taken place, that the Court would have to deal with hypothetical facts, and that thus the matter was inappropriate for judicial review.
11. Locus Standi
The applicants have locus standi to seek judicial review, they are in imminent danger of a criminal trial which affects them: Curtis v The Attorney General  I.R 458. However, that being established, it is necessary then to consider whether the remedy of judicial review is appropriate given that the application is made in relation to a criminal process.
12. In all the circumstances of this case, including the fact that the learned trial judge had given a judgment on the merits of the case, this Court was in a position where it had no real choice and I am satisfied that it had to proceed to consider the substantive issues.
13. However, I would add a few words on the situation. These three cases are at their preliminary stages. The High Court found that the relevant law, from decided cases, to guide the Court, was as follows:
2. The Circuit Court did not have jurisdiction to hear and determine an application to the effect that a statute enacted prior to the coming into force of the Constitution was inconsistent with the Constitution. (The People (Director of Public Prosecutions) –v- M.S.  1 I.R 606).
3. Judicial review was an available remedy in principle which permitted challenges to decisions made in the course of a criminal trial, but only in the most exceptional circumstances. (DPP v Special Criminal Court  1 I.R 60)”.
The learned trial judge considered whether these cases should fall into the category of exceptional cases. He raised the question:
The learned trial judge referred to D.P.P. v Special Criminal Court  I.R. 60, where the undesirability of applications for judicial review in the currency of trial was stressed.
However, these three cases may be distinguished from a situation where judicial review is sought in the currency of a criminal trial. These applications have been brought at the preliminary stage of the criminal process. No indictment has yet been laid, although the charges are known. There is an important difference between considering an application for judicial review in the currency of a trial as opposed to an application prior to the commencement of the trial, prior to the laying of an indictment. While an application for review in the currency of a trial, may only be successful in the most exceptional circumstances, applications for judicial review prior to trial fall into a different category. However, even in these latter cases it is still inter alia within the discretion of the Court to refuse the application for judicial review on the grounds that the issue would be best met at the trial by the trial judge.
14. The facts in this case are somewhat hypothetical. However, the kernel issue is clear and it is the query as to the availability in law of a defence, as to whether a mistaken belief by an applicant as to the complainant’s age is a defence under the law. Consequently, while the facts are not yet established, and have yet to be found, and no part of this judgment should be read as in any way taking from the jury the decision-making power on the facts, this Court is in a position to consider the law and construe the statute and determine whether under the law such a defence is available.
15. There is no doubt but that it is wholly undesirable that a criminal trial be delayed while an application for judicial review proceeds. However, I am satisfied that in all the circumstances of this case, including the judgment of the High Court on the substantive issue, the facts and the issues raised, that in these cases there were circumstances so as to justify proceeding by way of judicial review. The alternative options, including an appeal to the Court of Criminal Appeal and perhaps ultimately on a point of law of exceptional public importance to the Supreme Court, or a case stated, may not enable a fair and just trial. It would be unfair to force the three applicants to endure a trial without final determination of the issue of the defences available, which goes to the core of the prosecution and the defence. It is fair and just that the applicants have a legal determination, a statutory interpretation, in all the circumstances prior to the trial. Consequently, I would uphold the decision of the High Court in this issue. However, this decision should not be regarded as a precedent determining that an issue of statutory interpretation would routinely be circumstances such as to provide a basis for a judicial review pre-trial.
The words of this section fall to be construed. I shall approach this construction from three aspects. First, consideration of the words of the section; secondly, consideration of the common law, and thirdly, I shall consider the legislative history.
18. First, the words of s.1 (1) of the Act of 1935 require to be considered. The section states that “any person” may be charged with this offence, if the other elements are present. The section uses the word “unlawfully” but does not describe it further. The term “carnally” indicates the type of offence in issue. The offence relates to “any girl” under the age of fifteen years, so the age of the girl is an element of the offence. This offence is a serious offence, at that time it was classified as a felony.
The general rules of statutory interpretation apply. Thus, the intention of the legislature is best construed from the words of the Act. If the words are clear and unambiguous then they should be given their ordinary and natural meaning. In this case the words of the statute are clear and ambiguous and the meaning of the statute appears clearly from the words. The words themselves do not create an offence of strict liability. On the words of the statute there is no exclusion of the requirement of mens rea. As it is only if the words are not clear that one may proceed to a construction by implication, the second step does not arise if one applies the general rules of the interpretation of statutes to this section.
The legislature may have been under a mistaken view of the common law in 1935 (I shall consider the common law later in this judgment). But that cannot be a basis for an interpretation of, or implication to be made into, the words of the Act. I adopt and apply the approach taken in Howard v Commissioners of Public Works  1 I.R. 101, that in interpreting statutes the task of the courts is to ascertain the intention of the legislature and that this is primarily to be sought in the words used in the statute. Further, I rely on the judgment of Finlay C.J., where he stated at p.140:
As will become apparent later in this judgment, I am satisfied that there was a misapprehension as to the common law, arising from R v Prince  13 Cox C.C 138, which was applicable to this type of offence. However, this error thus arising, the consequence could not properly be corrected by a court by way interpretation of or, construing by implication, s.1 (1) of the Act of 1935. The court could not interpret or imply that mens rea was not part of the offence, as the issue was not addressed in the words of the statute, the Act having passed into law at a time when there may have been a misapprehension as to legal principles arising from the decision in R v Prince.
Consequently, on this first approach to the construction of the words of the section, mens rea is not excluded.
19. Case Law
A requirement of mens rea is not stated expressly in s.1 (1) of the Act of 1935. However, there have been cases over the last 130 years as to the nature of mens rea in similar offences.
Thus, secondly, I shall consider the common law. The common law on the issue of mens rea in similar offences has rested on R. v. Prince  13 Cox C.C. 138 and similar cases following R. v. Prince.
20. R v Prince
It has been assumed that the decision in R v Prince applied to this offence. Thus I will consider the case in detail. R v Prince was decided on 26th June, 1876, and was a decision of a court of sixteen judges. The defendant had been convicted under s.55 of the Offences Against the Person Act, 1861 of unlawfully taking an unmarried girl under the age of sixteen out of the possession and against the will of her father. It was proved that the defendant did take the girl and that she was under sixteen, but that he bona fide believed, and had reasonable ground for believing, that she was over sixteen. It was held, by fifteen judges, Brett J. dissenting, that the latter fact afforded no defence, and that the prisoner was rightly convicted. Blackburn J., giving a judgment with which fourteen judges agreed, said that the question was reduced to the issue as to whether the words of s.55 of the Offences Against the Person Act, 1861, whosoever shall take “any unmarried girl, being under the age of sixteen, out of the possession of her father,” are to be read as if they were “being under the age of sixteen, and he knowing she was under that age.” No such words appear in the statute, nor does any wording such as “knowingly” or “maliciously”. He said of the section at p. 144:
Sect. 50 enacts that “whosoever shall unlawfully and carnally know and abuse any girl under the age of ten years, shall be guilty of felony.” Sect. 51. “Whosoever shall unlawfully and carnally know and abuse any girl being above the age of ten years and under the age of twelve years, shall be guilty of a misdemeanour.”
It seems impossible to suppose that the intention of the Legislature in those two sections could have been to make the crime depend upon the knowledge by the prisoner of the girl’s actual age. It would produce the monstrous result that a man who had carnal connection with a girl in reality not quite ten years old, but whom he, on reasonable grounds, believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour, because she was, in fact, not above the age of ten. It seems to us that the intention of the Legislature was to punish those who had connection with young girls though with their consent, unless the girl was, in fact, old enough to give a valid consent. The man who has connection with a child, relying on her consent does it at his peril if she is below the statutable age.
The 55th section on which the present case arises, uses precisely the same words as those in sects 50 and 51, and must be construed in the same way. And if we refer to the repealed statute 4 & 5 Phil. & Mary, c.8, from the third section of which the words in the section in question are taken with very little alteration, it strengthens the inference that such was the intention of the Legislature.
The preamble states, as the mischief aimed at, that female children, heiresses, and others having expectations, were, unawares of their friends, brought to contact marriages of disparagement “to the great heaviness of their friends;” and then to remedy this, enacts, by the first section, that it shall not be lawful for anyone to take an unmarried girl, being under sixteen, out of the custody of her father or the person to whom he either by will or by act in his lifetime, gives the custody, unless it be bona fide done by or for the master or mistress of such child, or the guardian in chivalry or in socage of such child. This recognises a legal right to the possession of the child depending on the real age of the child, and not on what appears. And the object of the Legislature being, as it appears by the preamble, to protect this legal right to the possession, would be baffled if it was an excuse that the person guilty of the taking the child thought the child above sixteen. The words “unlawfully take,” as used in the third section of 4 & 5 Phil. & Mary, c. 8, mean without the authority of the master, or mistress, or guardian, mentioned in the immediately preceding section.
There is not much authority on the subject, but is all in favour of this view. In Reg. v Robins (1 C. & K. 456), Atcherly, Serjt. then acting as Judge of Assize so ruled (apparently, though the report leaves it a little ambiguous), with the approval of Tindal, C.J. In Reg. v Olifier (10 Cox C. C. 402), Bramwell, B., so ruled at the Old Bailey, apparently arriving at the conclusion independently of Reg. v. Robins. In Reg. v. Mycock (12 Cox C. C. 28), Willes, J., without the case of Reg. v Olifier being brought to his notice, acted on the case of Reg. v. Robins saying that a person who took a young woman from the custody of her father, must take the consequences if she proved under age. And Quain, J., followed this decision in Reg. v. Booth (12 Cox C.C. 231). We think those rulings were right, and consequently that the conviction in the present case should stand.”
I am of opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons. The act forbidden is wrong in itself, if without lawful cause. I do not say illegal, but wrong. I have not lost sight of this, that though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female, with a good motive. Nevertheless, though there may be cases which are not immoral in one sense, I say that the act forbidden is wrong. Let us remember what is the case supposed by the statute. It supposes that there is a girl,--it does not say a woman, but a girl something between a child and a woman--it supposes she is in the possession of her father, or mother, or other person having lawful care and charge of her, and it supposes there is a taking, and that that taking is against the will of the person in whose possession she is. It is then a taking of a girl in the possession of someone, against his will. I say that done without lawful cause is wrong, and that the Legislature meant it should be at the risk of the taker, whether or not she was under sixteen. I do not say that taking a woman of fifty from her brother's or even father's house is wrong. She is at an age when she has a right to choose for herself, she is not a girl, nor of such tender age that she can be said to be in the possession of or under the care or in the charge of anyone. If I am asked where I draw the line, I answer at when the female is no longer a girl in anyone's possession. But what the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a girl, and can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this; it is enough to state the case. The Legislature has enacted that if anyone does this wrong act he does it at the risk of her turning out to be under sixteen. This opinion gives full scope to the doctrine of mens rea. If the taker believed he had the father's consent, though wrongly, he would have no mens rea. So if he did not know she was in anyone's possession, nor in the care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute, an act which, if he knew she was in the possession and care or charge of anyone, he would know was a crime or not according as she was under sixteen or not. He would know he was doing an act wrong itself, whatever was his intention, if done without lawful cause. In addition to these considerations one may add that the statute does use the word "unlawfully," and does not use the words "knowingly or not believing to the contrary." If the question was whether his act was unlawful there would be no difficulty, as it clearly was not lawful.
This view of the section, to my mind, is much strengthened by a reference to other sections of the same statute. Sect. 50 makes it a felony to unlawfully and carnally to know a girl under the age of ten. Sect. 51 enacts (when she is above ten and under twelve) to unlawfully and carnally to know her is a misdemeanour. Can it be supposed, in the former case, a person indicted might claim to be acquitted on the ground that he had believed the girl was over ten though under twelve, and so that he had only committed a misdemeanour, or that he believed her over twelve, and so had committed no offence at all; or that in a case under sect. 51, he could claim to be acquitted, because he believed her over twelve? In both cases the act is intrinsically wrong. For the statute says if "unlawfully" done. The act done with mens rea is unlawfully and carnally knowing the girl, and the man doing that act does it at the risk of the child being under the statutory age. It would be mischievous to hold otherwise. So sect. 56 by which whoever shall take away any child under fourteen, with intent to deprive parent or guardian of the possession of the child, or with intent to steal any article upon such child, shall be guilty of felony. Could a prisoner say “I did take away the child to steal its clothes, but I believed it to be over fourteen?” If not, then neither could he say “I did take the child with intent to deprive the parent of its possession, but I believed it over fourteen.” Because if words to that effect cannot be introduced into the statute where the intent is to steal the clothes, neither can they where intent is to take the child out of the possession of the parent. If these words cannot be introduced in sect. 56, why can they be in sect. 55?
I cannot hold that the word "unlawfully" is an immaterial word in an indictment framed upon this clause. I think that it must be taken to have a meaning, and an important meaning, and to be capable of being either supported or negatived by evidence upon the trial: (see Reg. v. Turner 1 mood C.C. 15; Reg. v. Ryan 2 mood C.C. 241; 2 Hawkins P.C.C 25, s.96.
In the present case the jury found that the defendant had done everything required to bring himself within the clause as a misdemeanant, unless the fact that he bona fide and reasonably believed the girl taken by him to be eighteen years old constituted a defence. That is, in other words, unless such bona fide reasonable belief prevented them from saying that the defendant, in what he did, acted unlawfully within the meaning of the clause. The question, therefore, is whether upon this finding of the jury the defendant did “unlawfully” the things which they found him to have done.
The solution of this question depends upon the meaning of the word “unlawfully” in sect. 55. If it means "with a knowledge or belief that every single thing mentioned in the section existed at the moment of the taking" undoubtedly the defendant would be entitled to an acquittal, because he did not believe that a girl under sixteen was being taken by him at all. If it only means without lawful excuse or justification, then a further question arises, viz., whether the defendant had any lawful excuse or justification for doing all the acts mentioned in the clause as constituting the offence, by reason merely that he bona fide and reasonably believed the girl to be older than the age limited by the clause. Bearing in mind the previous enactments relating to the abduction of girls under sixteen, 4& 5 Phil. & Mary, c. 8, s.2, the 9 Geo. 4 C. 16, s.20, and the general decisions upon those enactments and upon the present statute, looking at the mischief intended to be guarded against, it appears to me reasonably clear that the word "unlawfully" in the true sense in which it was used, is fully satisfied by holding that it is equivalent to the words "without lawful excuse," using those words as equivalent to without such an excuse as, being proved, would be a complete legal justification for the act, even where all the facts constituting the offence exist.
Cases may easily be suggested where such a defence might be made out; as, for instance, if it were proved that he had the authority of a court of competent jurisdiction, or of some legal warrant, or that he acted to prevent some illegal violence, not justified by the relation of parent and child, or school-mistress or other custodian, and requiring forcible interference by way of protection.
In the present case the jury find that the defendant believed the girl to be eighteen year of age. Even if she had been of that age she would have been in the lawful care and charge of her father as her guardian by nature: (See Co. Litt. 88 b, note 12, edit. 19, recognised in R v Howes, 3E & E.332, and p.336; also reported in 8 Cox C.C. 405, under the name of ex parte Barford Her father had a right to her personal custody up to the age of twenty-one, and to appoint a guardian by deed or will whose right to her personal custody would have extended up to the same age. The belief that she was eighteen would be no justification to the defendant for taking her out of his possession and against his will. By taking her, even with her own consent, he must at least have been guilty of aiding and abetting her in doing an unlawful act-viz., in escaping against the will of her natural guardian from his lawful care and charge. This, in my opinion, leaves him wholly without lawful excuse or justification for the act he did, even though he believed that the girl was eighteen; and, therefore, unable to allege what he had done was not unlawfully done, within the meaning of the clause. In other words, having knowingly done a wrongful act, viz., in taking the girl away from the lawful possession of her father against her will, and in violation of his rights as guardian by nature, he cannot be heard to say that he thought the girl was of an age beyond that limited by the statute for the offence charged against him. He had wrongfully done the very thing contemplated by the Legislature. He had wrongfully and knowingly violated the father's rights against the father's will, and he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing.”
23. I have set out this case in great detail as it has been regarded as a foundation of the common law on the issue of mens rea in similar sexual offences. It was regarded as the foundation of the common law on the issue in England for approximately 100 years. And it was the approach taken in many other common law countries. For example, in Charleton McDermott and Bolger, Criminal Law (Butterworth, Ireland 1999) at p.591, reference is made to Peters  VLR 743, Supreme Court of Victoria, Australia, which followed R. v. Prince. There is no doubt that this case was a foundation stone for the common law on this issue in many common law countries.
Based on this case the common law proceeded in Ireland and it was assumed that the offence in issue was one of strict liability. There was no considered analysis of the section or the common law.
25. This common law offence was described by the Law Reform Commission in its Consultation Paper on Child Sexual Abuse (Dublin, 1989), where it was stated to be “settled” that no defence of mistake exists. Paragraph 4.05 stated:
Section 1(1) is silent as to the mens rea required for the commission of the offence. In construing the section common law may be applied. In fact, this silence may be filled by common law. Thus R v Prince was applied over time in many common law jurisdictions.
27. However, counsel for the applicant referred the court to Sweet v Parsley  AC 132. This decision, of the House of Lords, held that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary and the court ought not to hold that an offence is an absolute offence unless it appears that that must have been the intention of Parliament. In that case it was held that there is a long standing legal presumption that mens rea is required for the commission of a crime. Lord Reid stated, at p.148/149:
28. The analysis in Sweet v Parsley was approved by Henchy J. in The People v Murray  I.R. 360. In that case the question was whether mens rea is required for all the elements of the new offence of capital murder. Henchy J. referred also to prosecutions under s.38 of the Offences Against the Persons Act, or other similar Acts, charging an assault on a police officer in the execution of his duty. He stated at p.398:
I do not propose to analyse the judicial reasoning of those decisions – for that, see Howard (79 L.Q.R. 247) and Zuckerman (88 L.Q.R. 246). I confine myself to saying that I find the reasoning leading to the conclusion that the element in question does not require mens rea to be of questionable origin, weak and unconvincing. It seems to stem from the idea that, because the section did not qualify the reference to a peace officer acting in the execution of his duty with words indicating a requirement of knowledge on the part of the accused of that fact, the offence should be held to be one of strict liability as to that fact. I believe that to be an incorrect method of interpreting a statutory provision imposing criminal liability. The correct rule of interpretation in such a case is that stated by Lord Reid at p. 148 of the report of Sweet v Parsley  AC 132:-
I find an unrebutted presumption that Parliament, in enacting s.1 of the Criminal Justice Act, 1964, and in creating the new offence of capital murder which is defined for the purpose of this case as “murder of a member of the Garda Síochána acting in the course of his duty,” intended that the section should be read as requiring mens rea for all the elements of that definition. As I have indicated earlier, to hold otherwise would be to remove any logical or ethical basis for the distinction between murder and capital murder.”
29. In that case Walsh J. did distinguish the position of the Criminal Law (Amendment) Act 1935 in the following words (at p.383):
30. The analysis in Sweet v Parsley was also approved and used by this Court in Re the matter of Article 26 of the Constitution, in the matter of the Employment Equality Bill, 1996,  2 IR 321. In that case Hamilton C.J., in giving the decision of the Court on the Article 26 reference, having reviewed situations where a master was held liable for the acts of his servants, stated at p.373:
In the course of this speech in Sweet v Parsley  A.C. 130 at p.150, Reid L.J. – the case dealt more with the concept of strict liability as opposed to vicarious liability, but what he had to say is equally pertinent to what the Court has to consider – 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 governed by a Constitution with the separation of powers as its fulcrum and the two Houses of the Oireachtas are precluded from enacting any legislation which is in any respect repugnant to the Constitution.
The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and, therefore, contrary to Article 38, s. 1 of the Constitution and also repugnant to Article 40, s. 1 of the Constitution.”
31. Other common law jurisdictions apply this presumption of mens rea also. The history of its application was described by Wilson J. in the judgment of the Supreme Court of Canada in R v Hess; R v. Nguyen  2 S.C.R 906 where he stated:
But Kenny explains that with time it was recognised that it was unfair and inappropriate to impose punishment in the absence of moral blame. There arose “the ethical conception that it was not proper to punish a man criminally unless he had known that he was doing wrong” (Kenny, supra at p.13). Others have confirmed this account. For example, P.E. Raymond concludes his study “The Origin and Rise of Moral Liability in Anglo-Saxon Criminal law”, 15 Or. L. Rev. 93 (1936), at p. 117, with the following passage:
“As we reach the end of the Anglo-Saxon period, which cannot be exactly fixed but is somewhere around 1100, we find the notion of moral liability well established in the criminal law, although the development of it was to continue throughout the centuries and even into the twentieth; for as we still have the notion of absolute liability in certain cases.”
By the seventeenth century the doctrine of mens rea was sufficiently well developed that Coke could affirm “et actus non facit reum nisi mens sit rea” (The third Part of the Institutes of the Law of England (1871), at p.6). Two hundred years later, Blackstone would reiterate this proposition:
“And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will” (Commentaries on the laws of England (1846), Book IV, at p.21)
And by the early part of this century, treatises on the subject took for granted the proposition that the doctrine of mens rea played an indispensable role in the criminal law. Stround, for example, stated:
“A crime can be committed only where a person, disobeying the law by act or omission, either knows his conduct is in contravention of the law, or would have known that fact if he had given to his conduct, and to the circumstances, the degree of attention which the law requires, and which he is capable of giving.”
More recently, the doctrine of mens rea has been described as “[o]ne of the most desirable prerequisites for criminal responsibility in any civilized country” (see: Howard, The Protection of Principle Under a Criminal Code” (1962), 25 M.L.R. 190, at p.190)”.
This historical analysis reflects the development of law from R. v. Prince to Sweet v Parsley. It is a development which has been recognised in our common law: The People v Murray; and supported in In Re Article 26; in the Matter of the Employment Equality Bill, 1996. Irish common law, with the constitutional foundation including Article 38.1, is Irish jurisprudence which, in a similar vein to that described by Wilson J., acknowledges the centrality of the doctrine of mens rea in criminal law. It is a fundamental concept of our criminal justice system that there be a criminal mind, or, as described traditionally, that there be mens rea. The doctrine of mens rea, the presumption of mens rea, is part of our common law. This means that whenever a section of a statute is silent as to mens rea there is a presumption that we must read in words appropriate to require mens rea.
32. Special rule re aged based sexual offences
The Act of 1935 is to protect girls under the age of fifteen, and so the age of the girl is a relevant factor in any prosecution. But it is not a logical consequence that the offence be one of strict liability. I am satisfied that the issue was addressed correctly by Lord Nicholls in B (A Minor) v D.P.P.  2 A.C. 428 when he stated:
33. The presumption that mens rea is required for the commission of an offence is well established in this jurisdiction. It is a silken thread in the fabric of the legal system ensuring a just process. It is part of the protective cloak of Article 38.1 of the Constitution of Ireland, of the due process of law.
34. However, there are exceptions to this general rule. There are offences where mens rea is not required. The test to determine whether or not an offence is one of strict liability has been well recognised. Thus the language of the statute must clearly rule out mens rea, or, alternatively, strict liability must arise by necessary implication. Walsh J. set out the test in The People v. Murray at p.386:
I apply the test set out by Walsh J. in The People v. Murray. The first consideration is whether the statute clearly rules out mens rea. Applying that test to the words of s.1 (1) of the Act of 1935 the answer is in the negative. Section 1(1) does not clearly rule out mens rea. Thus it is necessary to move on to the next step and to consider whether the statute rules out mens rea by necessary implication.
35. The meaning of ‘necessary implication’ was considered by Lord Nicholls in B (A Minor) v D.P.P. where he held that the implication must be compellingly clear. He stated, at p.464:
I would adopt and apply this approach.
36. In analysing whether the necessary implication arises it is a relevant consideration also that the more serious the offence the greater is the weight to be attached to the presumption of mens rea, as the more severe is the penalty and the stigma attached: B (A Minor).
37. In considering the nature of the offence the common law becomes applicable. I am satisfied that the foundation case of R v Prince is unsound and bad in law and that it is not applicable in this jurisdiction. The applicable common law is that of our State. This common law rests on cases such as The People v Murray and In Re Article 26; In the Matter of Employment Equality Bill, 1996; case law from other common law jurisdictions which have already been adopted and applied in this jurisdiction, such as Sweet v Parsley; and other cases from common law jurisdictions which address the fundamental common law issues, such as consideration of the concept of “necessary implication” in B (A Minor) v D.P.P. Applying this case law, and the reasons set out earlier, I am satisfied that the common law presumption of mens rea is not ousted from s.1 (1) of the Act of 1935.
Consequently, on this second approach to the construction of the words of s.1 (1) of the Act of 1935, mens rea is not excluded.
38. Thirdly, I shall consider the legislative history of s.1 (1) of the Act of 1935. The Offences Against the Person Act, 1861, provided
51. Whosoever shall unlawfully and carnally know and abuse any Girl being above the Age of Ten Years and under the Age of Twelve Years shall be guilty of a Misdemenor, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.”
The penalties were set out in s.52, as follows:
unlawfully and carnally knows any girl under the age of thirteen years
shall be guilty of felony, and being convicted thereof shall be liable at the discretion of the court to be kept in penal servitude for life, or for any term not less than five years, or to be imprisoned for any term not exceeding two years, with or without hard labour.”
Section 5 stated that:
“Any person who-
Provided also, that no prosecution shall be commenced for an offence under sub-section one of this section more than three months after the commission of the offence.” [underlining added]
It is this “proviso”, upon which the State relies, and its omission in the Act of 1935.
39. It was submitted that the omission of this “proviso” in the Act of 1935 has the effect of making a strict liability offence. I am satisfied that this is not a correct analysis of the legislation.
The nature of the offence does not raise the implication. The nature of the offence raises the element of the age of the girl, but not of itself strict liability. The mischief sought to be prevented is to protect young girls. They are protected against their own immaturity by the fact that their consent is no defence. But the requirement of strict liability is not obviously necessary to protect the social policy addressed. A very young girl will be protected by her obvious youth. A girl nearing the upper age protected by the offence will not lose the protection and it appears proportionate not to deny an accused compelling reasons why s.1 (1) of the Act of 1935 should be construed as an offence of strict liability. However, that is not the test.
The test to be applied in construing the legislation is whether the defence of mistake is a necessary implication in construing the statute. I am satisfied that it is not. The absence alone in the Act of 1935 of the ‘proviso’ of the Act of 1885 is not a basis upon which to oust the fundamental constitutional concept that mens rea be a constituent element of a crime. Nor does the legislative history make it compellingly clear that mens rea is ousted from s.1 (1) of the Act of 1935.
In this analysis I have found an analogy in the speech of Lord Hutton in B (A Minor) v D.P.P where he held that reasonable implication was not sufficient, that the test was whether it is a necessary implication. He stated:
In the same way, as stated above, I have applied this test to Irish statutory law, that is the test of ‘necessary implication’ not of ‘reasonable implication’.
40. “Other circumstances” need also to be considered. Once again this raises the assumption, essentially based on R v Prince, that the offence was one of strict liability.
41. There has been a general approach to the offences in the Act of 1935, in case law and elsewhere, to treat the offences as being of strict liability. The knowledge or lack of knowledge of an accused, or his belief as to the age of the complainant, have not been deemed relevant. Consequently it has been envisaged that any mistake by an accused as to the age of a complainant was not relevant to culpability and the trial of the offence, although it was deemed relevant to sentencing.
42. As I have stated previously, there was an assumption in reports of the Law Reform Commission that this group of offences were offences of strict liability.
43. This assumption and analysis of the legislation may also be seen in academia: in Sexual Offences: Law, Policies and Punishment (Round Hall, Dublin, 1996), by Thomas O’Malley, he states at p.93:
44. However, these approaches are rooted in the rationale and decision of R v Prince. Since the basis for the reasoning is unsound, as I have set out previously, it appears to me to be incorrect to use it to ground reasoning today. It is based on an error, a false assumption as to the common law. Dependence on that false assumption is false. I do not believe that a statutory interpretation should be grounded on an unsound foundation. If it was based upon a misapprehension as to legal principles outside the statute the error should more properly be addressed by the legislature: Howard v Commissioners of Public Works  1 I.R. 101.
It is necessary to consider what intention is properly to be attributed to the legislature. The intention to be properly attributed to the legislature may not include an incorrect view of the law: Howard. If the legislature assumed that the law (common law) was otherwise than it is, that assumption may only be corrected by the legislature and not by the courts.
Consequently, I do not find that the general assumption, made on the basis of unsound common law, to be an implication which, necessarily “connotes an implication which is compellingly clear”. Indeed it appears to be the antithesis. It is in error in criminal law to construct an interpretation on unsound law, just because that was the approach for decades. Such an approach is not neutral, it is not without prejudice. It deprives an accused of the presumption that mens rea is a requirement of the offence.
45. An analogy was drawn with s.2 (2) of the Act of 1935. This section was considered in Attorney General (Shaughnessy) v Ryan Cormack  I.R. 181 on a case stated from the Circuit Court to this Court. Section 2 (2) of the Act of 1935 provides:
This Court held that consent is no defence to a charge of unlawful carnal knowledge contrary to s.2 (2) of the Act of 1935. Maguire C.J stated:-
Mr. Clarke has referred to the case of R. v. Beale (1), which was a charge of attempting to have carnal knowledge of a girl under the age of 10 years contrary to 24 and 25 Vict., c. 100, s. 52. Pollock C.B., said:—"The learned Judge who tried the case seems to have thought that a full and ample consent on the part of the girl would have prevented the completion of the crime, and that a consent of a different character would not have had that effect. This opinion . . . was utterly unfounded. Consent was altogether unimportant. "He also referred to the case of H.M. Advocate v. Watson (1), which was concerned with a case of unlawful carnal knowledge of a girl between 13 and 16 years of age contrary to s. 5, sub-s. 1, of the Criminal Law Amendment Act, 1885. In the course of his charge to the jury Lord Craighill said:—"You therefore will understand, taking the law on the subject from me, that unlawful carnal knowledge is neither more nor less, where the woman is over 13 and under 16 years of age, than carnal knowledge by one who is not her husband." This statement of the law has not been differed from in any decided case. These two cases answer the two main points argued by Mr. Esmonde. In my view no assistance can be got from s. 14 of our Act of 1935.”
The ratio decidendi of this case is the issue of the consent of the girl. Thus I would distinguish the case. Its rationale related to consent of the girl, not to the mens rea of the defendant. Consequently it has no bearing on the matter for determination in this case. Indeed it illustrates a confusion between the issue of the mind of the girl and her consent, and the mens rea of a defendant.
Further, the words of Walsh J. in People (D.P.P.) v Murray should not ground a decision as to the mens rea required of the applicant. The words of Walsh J. were obiter, s.1 (1) of the Act of 1935 was not in issue. Also, there was no comparative analysis of the two concepts, the consent of a child and the mens rea of a defendant.
Ireland did not have ‘a young man’s defence’ as did England under s.2 of the Criminal Law Amendment Act 1922. The absence of this defence in Ireland does not advance the situation, indeed its absence could be called in aid by both sides of the argument.
While the Act of 1885 was a stepping stone in the legislative history toward the Act of 1935 I am not satisfied that it is correct to put great weight on construing the Act of 1935 by comparison with that of 1885. The Act of 1935 should be construed by the general rules of construction of statutes – primarily on its own words. While in 1935 the Irish legislature retained expressly the defence of mistake in relation to a mentally impaired person the fact that in relation to others it is not expressly in the statute raises only an ambiguity. It is an ambiguity which lies contrary to the fundamental concept of Criminal Law which requires mens rea in a criminal offence. This ambiguity does not meet the test – the absence in the 1935 Act does not make compellingly clear the intent of the parliament. Nor does it raise by necessary implication the existence of the defence. The fact that there has been a misapprehension as to the legal principles which would be applicable outside the statutory provisions, merely means that an error so arising should be corrected by parliament if it so wished. The courts have corrected the common law, i.e. R v. Prince.
46. I am not satisfied that an assumption and acceptance that an offence is one of strict liability is a necessary implication making the meaning of s.1(1) of the Act of 1935 compelling clear so as to oust the requirement for mens rea. At its height it raises an ambiguity. It raises a doubt. However, that does not meet the test which should be applied to oust the presumption that mens rea is required.
Consequently, on this third approach to the construction of the words of s.1 (1) of the Act of 1935 I am not satisfied that mens rea is excluded.
47. Decision on the application of C. C.
I have come to the conclusion that I would allow the appeal of C. C. as to the interpretation of s.1 (1) of the Act of 1935 for the following reasons:
(a) The words of the section do not expressly exclude the requirement of mens rea.
(b) The common law is helpful in construing the section.
(c) In construing the section I adopt and apply the test set out by Walsh J. in The People v Murray.
(d) Applying that test I find that s.1 (1) of the Act of 1935 does not expressly or clearly rule out mens rea as a constituent part of the offence.
(e) Thus it is necessary to apply the second part of the test, to construe the words and to consider whether strict liability arises by “necessary implication”.
(f) I adopt and apply the analysis by Lord Nicholls in B (A minor) v. D.P.P. of the term “necessary implication”.
(g) Applying this analysis I am satisfied that strict liability does not arise by “necessary implication”.
(h) I distinguish R. v Prince on the following grounds:
a. It was a decision construing a different statute, s.55 of the Offences Against the Person Act, 1861.
b. While R. v Prince was followed in many common law jurisdictions for many decades that is no longer so. It has been held to be unsound both here and abroad
c. R. v Prince led to assumptions being made in Ireland and elsewhere which assumptions need to be reviewed.
d. Henchy J. said in The People v. Murray that the reasoning in R. v Prince and similar cases was of questionable origin, weak and unconvincing. I would adopt and apply that approach.
(i) Henchy J. stated in The People v. Murray that the correct rule of interpretation is that given by Lord Reid in Sweet v Parsley. I would adopt and apply that approach.
(j) Sweet v Parsley was also applied by this court in In Re Article 26 of the Constitution, in the matter of the Employment Equality Bill, 1996, and it is thus established common law in this State.
(k) Applying Sweet v Parsley, the applicable rule of construction in common law is that whenever a section is silent as to mens rea there is a presumption that in order to give effect to the will of the legislature the court must read in words appropriate to require mens rea.
(l) This common law presumption is enhanced by the constitutional principle of due process in Article 38.1 of the Constitution.
(m) It is relevant also that this is a serious offence with the potential for a long sentence and social stigma.
(n) I would reject any contention that there is a special rule of construction in respect of age-based sexual offences which is untouched by the presumption of mens rea. The basis for that approach, R v Prince, is not good law.
(o) A girl may be fully protected without the necessity of strict liability.
(p) Applying the general principles of statutory interpretation and the common law, I am satisfied that the common law doctrine of mens rea is not ousted from s.1 (1) of the Act of 1935.
(q) I am satisfied that the legislative history does not make it compellingly clear that mens rea is ousted.
(r) The general circumstances, including a false assumption as to the common law, are not necessary implications making the meaning of s.1(1) of the Act of 1935 compelling clear so as to imply that the offence ousted the requirement of mens rea.
(s) While there may be ambiguity that does not meet the required test to oust mens rea from the offence.
(t) I conclude that the correct interpretation of s.1(1) of the Act of 1935 is that it is an offence to which the presumption of mens rea applies and that therefore it is an offence requiring mens rea in relation to the age element of the offence. Consequently, a mistake as to that element of the offence may provide a defence.
(u) Having considered s.1 (1) of the Act of 1935 from the three stated aspects (construing the words of the section, consideration of common law, and the legislative history), I am satisfied, for the reasons given, that mens rea has not been excluded from the offence. Consequently, the applicant is entitled to succeed on this application. To paraphrase Henchy J. in The People v Murray, the inclusion of a requirement of mens rea (as to the age of the complainant in this case) is to avoid unjust or oppressive application of the section to those who have not merited the guilt and punishment envisaged by the section.
(v) For the reasons given I would allow the appeal of C. C., on the issue of the construction of s.1 (1) of the Act of 1935 and order an appropriate declaration that reasonable belief as to the age of the complainant, on the part of the applicant, is a defence.
48. The application of P. G.
P. G. sought a declaration that he is 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 this part of the judgment he is referred to as the applicant.
49. P. G. is 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. These charges arise from an alleged sexual assault by P. G. on the complainant, who was then a girl of 13 years of age.
50. The offence of sexual assault is a common law offence for which penalty is provided by statute. In People (D.P.P.) v EF, (Unreported, Supreme Court, 24th February, 1994), Egan J., having set out the legislative history of the offence of indecent assault and sexual assault held (with which Finlay C.J., O’Flaherty J., Blayney J. and Denham J. agreed) that (at p.12):
Thus sexual assault is a common law offence for which the penalty is set out in statute. This law was restated recently in S.O’C. v. Governor of Curragh Prison  1 I.R. 66 where Hardiman J. held, in a judgment with which the four other member of the Court agreed, that the effect of the Act of 1990 with respect to the original offence of indecent assault was simply to change the name of the offence while leaving its nature and constituents unaltered.
51. There is no statutory definition of the offence of indecent, or sexual, assault. In Doolan v D.P.P.  ILRM 387 O’Hanlon J. stated (at p.392):
52. However, there are some relevant statutory provisions. Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 provides:
(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.
The effect of this section is simply to re-name the offence, to provide the maximum sentence and to classify the offence.
53. Reference was made in the charge to s.27 of the Sex Offenders Act, 2001 which amended s.2 of the Act of 1990. However, this Court was informed that the 2001 Act did not apply and that these words were mere surplusage. Thus no analysis of the Act of 2001 has been made.
54. It was submitted that s.14 of the Act of 1935 is relevant. It provides:
However, this related to the specific issue of consent of a person, and not to the broader issue of the mens rea of an accused.
55. In refusing the relief sought the learned High Court Judge held:
56. Defence of consent
I am satisfied that arising out of the express words of s.14 of the Act of 1935 that the defence of consent by the complainant is not open to the applicant. The Oireachtas established clearly that no such defence would exist. The legislature expressly addressed an area of a social policy. However, this section is limited to the specific issue of the consent of the complainant. The section does not address the entirely different issue of the mens rea of the applicant or the defence of mistake.
57. Defence of mistake
The defence of mistake is a distinct defence, which may arise quite apart from the issue of the consent of the complainant. A different analysis must be taken to see if the defence of mistake may be open to the applicant.
58. It has been assumed that no defence of mistake exists in relation to this offence. This assumption rested on R. v Prince.
59. Counsel for the applicant submitted that R. v Prince is bad law, that it did not survive the dictum of Lord Reid in Sweet v Parsley  AC 132, that it cannot be sustained in light of The People D.P.P. v Murray  IR 360 and in Re The Employment Equality Bill 1996  2 IR 321. It was submitted that its application to cases of sexual assault/indecent assault has been confused by a proviso regarding unlawful carnal knowledge in 1935, but unlike that offence sexual assault had not been defined by statute. It was submitted that treating the section so as to exclude mens rea as to the age of the complainant in the case of sexual assault/indecent assault is incorrect.
60. I am satisfied that the counsel for the applicant is correct in his submissions. I refer to the consideration of the presumption of mens rea made earlier in this judgment relating to the application of C. C.. There is a common law presumption in favour of mens rea, a criminal intent, being required in criminal offences. The presumption may be displaced expressly or by necessary implication. The presumption has not been displaced by either in relation to the common law offence of sexual assault.
61. There has been an assumption that sexual offences relating to young girls were in a special category to which the presumption of mens rea did not apply. R. v Prince was one of the foundation stones for this approach. The issue thus is whether R. v Prince has survived into our common law and whether it underpins this common law offence.
62. For the reason given previously in the decision relating to C. C., I am satisfied that R. v Prince has not survived into our common law. Rather the approach to be taken in that set out in Sweet v Parsley, which was adopted by Henchy J. in The People v Murray and by this Court In Re Article 26 of the Constitution, in the matter of Re the Employment Equality Bill 1996.
I would distinguish R. v Prince for the following reasons:
1. It relates to a different offence.
5. The analysis in R v. Prince, insofar as it strays from statutory construction into social policy reflects the policy of a very different society to that of Ireland.
6. The dissenting judgment in R v Prince correctly reflects a fundamental tenet of common law.
63. The correct approach is that set out in The People v Murray, see Henchy J. at p 398. For the reasons given earlier I would distinguish Walsh J.’s obiter dictum. The Irish common law was also applied in In Re Article 26; in the Matter of the Employment Equality Bill, 1996.
64. Consequently, I am satisfied that while the issue of the consent of a complainant is not a defence, the common law presumption requiring mens rea in a criminal offence applies to this common law offence of sexual assault, and consequently the defence of mistake is available to the applicant.
65. For the reasons given I would allow the appeal of the applicant and make an order accordingly.
66. In conclusion:
(b) For the reasons given I would allow the appeal of the applicant P. G. and I would order an appropriate declaration, to the effect that he is entitled to advance the defence of reasonable mistake.
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 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 relation to carnal knowledge with women of unsound mind was effectively repeated in the 1935 Act. To hold otherwise would be an unjustifiable distortion of what was clearly the intention of the Oireachtas of Saorstát Éireann.
I do not consider that my view on this requires any further reinforcement. But such reinforcement if it were to be required is to be found in the ancestry to the 1885 Act proviso to which I will be referring when treating of the PG appeal.
Accordingly, I would dismiss the CC appeal unless this court goes on to hold that section 1(1) of the 1935 Act is inconsistent with the Constitution. I believe that further argument on this issue is desirable and that this aspect of the appeal should be adjourned for that purpose.
I turn now to the PG appeal. As already mentioned, this appellant has been returned for trial on two counts of sexual assault in circumstances where the complainant is aged thirteen years. The offence of “sexual assault” is what was formerly called “indecent assault”. The change of name was brought about by statute but the offence remains the same. By definition there cannot be an assault if the complainant has consented to the acts alleged to have constituted. Normally, therefore, if there is consent there is simply no assault. That obvious truism was not fully appreciated by the Oireachtas of Saorstát Éireann when enacting section 14 of the Criminal Law (Amendment) Act, 1935. It reads as follows:
“14. It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such a person consented to the act alleged constitute such indecent assault.”
The issue which now has to be considered is what is to happen if a defendant genuinely believes that the complainant was fifteen years or more at the time of the alleged offence. Does that mean that there can be no conviction given the absence of mens rea?
The appellant, PG, claims that he was mistaken as to the age of the complainant. As has been explained he is fearful that he will not be allowed to raise that defence at the trial since the trial judge may rule that mistake as to age affords no defence. To forestall that happening he has instituted these judicial review proceedings seeking reliefs, which if granted, would have the effect of resolving this issue in his favour. I have already explained what happened in the High Court. I am satisfied that for the reasons which I have already given this court must now consider the substantive issue.
Although in the CC appeal, I have taken the view that having regard to the structure and legislative antecedents of the Criminal Law (Amendment) Act, 1935 a bona fide error as to age in a prosecution for carnal knowledge with a girl under the age of fifteen years could not have been intended by the legislature to be a good defence, the principles which have to be considered in the PG appeal would seem to be quite different.
First of all, the only possible relevance of the Criminal Law (Amendment) Act, 1935 to this appeal would seem to be section 14. In my view, that section is not relevant to the issue which this court has to consider though counsel for the respondent have strongly argued otherwise. It would seem to me that just because consent would be no defence by virtue of section 14, it does not at all follow that absence of mens rea in the form of a genuine bona fide mistake as to age would be no defence.
Nor do the provisions of the Criminal Law (Amendment) Act, 1885 give rise to any special interpretation of section 6 of the 1935 Act which would oust mens rea. That section reads as follows:
None of this matters very much in my view because, as I will be endeavouring to demonstrate in reliance on modern English cases in particular, mens rea must be presumed to be a necessary ingredient of all serious offences whether they be common law or statutory unless there is a statutory provision from which it is clear that mens rea is excluded either expressly or by necessary implication. The common law origin of the offence of indecent assault, however, has this much importance. By reason of its common law origins it is not analogous to the cluster of other offences of a sexual nature in the 1861 Act and should not be interpreted in the light of anything contained in the sections creating those offences.
The concept that somehow or other mens rea is metaphorically thrown out the window in the case of sexual offences with young children notwithstanding a genuine mistake as to age derives in the main (though not entirely) from the majority judgments in Reg v. Prince (1875) LR 2 CCR 154. That was a decision of the English Court for Crown Cases Reserved sitting as a court of sixteen judges. By a majority of fifteen judges to one the court took the view that the offence under section 55 of the Offences against the Person Act, 1861 of unlawfully taking an unmarried girl under the age of sixteen out of the possession and against the will of her father was an offence of strict liability in the sense that bona fide error as to age was no defence.
That case has been heavily criticised in modern times in the House of Lords and in a judgment of Brooke LJ sitting in a Divisional Court of the English Queens Bench Division to which I will return.
Four judgments were delivered in Prince’s case. The principal judgment was that of Blackburn J. with whom nine other judges concurred. It would seem that the basis of this judgment, when properly analysed, was the legal right of the father to the possession of the child and that that depended on the real and not the imagined age of the child. A second judgment in which there was some overlap of concurrence was delivered by Bramwell B. with the concurrence of seven other judges. Essentially, Bramwell B. arrived at the same conclusion by a different route. He took the view that “the act forbidden is wrong in itself, if without lawful cause” and that that being so any aspect of mens rea was ousted. Effectively, the learned baron appeared to be saying that unless a statute expressly provides otherwise there is no requirement of mens rea if the act the subject matter of the offence is immoral as well as criminal. A dissenting judgment which has been honourably mentioned in modern times was delivered by Brett J. I find his judgment by far the most convincing. At p. 163 of the report Brett J. said the following:
“What reason is there why, in like manner, a criminal mind, or mens rea, must not ultimately be found by the jury in order to justify a conviction, the distinction always being observed, that in some cases the proof of the committal of the acts may be prima facie, either by reason of their own nature, or by reason of the form of the statute, import the proof of the mens rea? But even in those cases it is open to the prisoner to rebut the prima facie evidence, so that if, in the end, the jury are satisfied that there was no criminal mind, or mens rea, there cannot be a conviction in England for that which is by the law considered to be a crime.”
It is only fair to say that a concern of the majority of the judges was that if they held otherwise, what they perceived as an absurdity could arise from a situation where such a defence was successfully pleaded in a prosecution under section 50 of the Offences against the Person Act, 1861 which prohibited unlawful carnal knowledge of a girl under ten years of age, the accused would be neither guilty of that offence nor of the offence created by section 51 of the same Act which prohibited carnal knowledge of a girl between the ages of ten and twelve. However, this faulty draftsmanship as some modern judgments in the Divisional Court in England and in the House of Lords have described it could not be a reason in itself for ousting the fundamental principle of mens rea. Interestingly, and perhaps in contemplation of possible proceedings such as these cases, section 13 of the Criminal Law Act, 1997 by reference to paragraph 7 of the First Schedule to that Act effected an amendment to section 2(1) and 2(2) of the 1935 Act (defilement of girl between fifteen and seventeen years of age) so as to delete the words “of or over the age of fifteen years and”. There is now a stand alone offence of having unlawful carnal knowledge with a girl under the age of seventeen years.
The significance of Prince’s case, to these appeals, if there is any at all which I rather doubt, is not its correctness (in my opinion it was incorrect) but rather the state of understanding of the law which it would have created. It is clear from the judgment of Blackburn J. that the same absence of mens rea and the context of mistake as to age would apply in relation to each of the age related offences under the 1861 Act. It would have been in that context as a matter of high probability that the special proviso in relation to the older girl offence would have been inserted into the 1885 Act. This is the further reason if such be needed why the absence of the special proviso in the 1935 Act must, as I have already indicated, lead to the necessary implication that a mistake in age defence was not intended to be permitted by the Oireachtas of Saorstát Éireann in relation to an offence under section 1(1).
Prince’s case, however, spread its tentacles. In R. v. Maughan (1934) 24 Cr. App. R. 130 the English Court of Criminal Appeal held that on a charge of indecent assault on a girl under sixteen years of age a reasonable and bona fide belief that the girl was over the age of sixteen could never be an available defence. That judgment relied in the first instance on the case of R. v. Forde  2 K.B. 400 which in turn was a decision based on perceived necessary implications arising from the English Criminal Law Amendment Act, 1922. That reasoning has no relevance in this jurisdiction. The judgment secondly relied on Prince’s case. That case was cited as authority for the proposition that once the act had been absolutely prohibited by statute the man who did the act took the risk of offending against the statute. The judgment of Avory J. went on to state:
“So here the legislature says that it shall be an offence for a man to commit an act which amounts to an indecent assault on a girl under sixteen years of age whether she consents or not.”
The reasoning in this case has also been discredited in the modern House of Lords decisions to which I will be referring and I believe it to be totally unsound. The logic of it would be that every statutory offence would be absolute unless the statute itself incorporated mens rea. That has never been the law.
Before reviewing the important modern English case law which I have been mentioning it is essential first to have regard to any modern Irish case law which might have some bearing on the issues. The only Irish case which, in my view, has any direct bearing is The People (D.P.P) v. Murray  I.R. 360. That was a case in which the Supreme Court dealt with the element of mens rea in a prosecution for capital murder. The Court of Criminal Appeal had held that the offence of “capital murder” was not a new offence and that an accused might be convicted of that offence where the prosecution proved the ingredients required to constitute mens rea in regard to ordinary murder and the fact that the person murdered was a member of the Garda Síochána acting in the course of his duty. The matter went to the Supreme Court on a section 29 certificate and the Supreme Court (Walsh, Henchy, Griffin, Kenny and Parke JJ.) allowed the appeals holding that capital murder was a new statutory offence which required proof of mens rea in relation to each of its constituent elements. In the context of that case the real issue was whether it was relevant that the accused might not have known that the person he was killing was a policeman. The relevance of that case to the issues with which this court is now concerned arises from an argument put before the court on behalf of the Director of Public Prosecutions which clearly emerges from the following passage in the judgment of Walsh J. at p. 383 of the report.
“With regard to the submission made in relation to the requirements of the Criminal Law (Amendment) Act, 1935, the position is somewhat different. There is obviously the policy of the Act of 1935 to protect young girls. The Oireachtas thought it necessary to ensure this by imposing upon a male person who undertakes to have carnal knowledge of a young woman, the risk of her turning out to be under the age of consent. It might well be impossible for the prosecution to prove in most cases that the accused had knowledge, and it is to be noted that the statute does not even envisage the accused successfully setting up a defence of lack of knowledge on his part even with the whole onus of proving that fact resting upon himself. The Oireachtas also apparently thought that an honest belief or an honest mistake with regard to age would not be consistent with the general policy of those statutory provisions, the object of which was to protect young girls from themselves as much as from men. The essential difference between that class of case and the present case is that in those cases the defendant is aware that he is dealing with a young woman, because the Act makes no distinction between one class or category of girl and another when they are under age. So far as capital murder of a member of the Garda Síochána is concerned, it is the occupation of the victim which is the decisive matter. Before the offence of capital murder was created it mattered not in the proof of the offence of murder whether the victim was a member of the Garda Síochána or not. If the protection afforded by the Act of 1935 to girls under the age of seventeen were to be confined only to girls of a particular occupation, then the position would be quite different as obviously the intention of the Act would be quite different from that Act as it now stands. Therefore, I think there is no valid comparison to be made between the statutory provisions relating to capital murder and those relating to unlawful carnal knowledge of girls under the age of consent.”
“Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of person who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.”
It is obvious that the passage cited from the judgment of Walsh J. can only be regarded as obiter dicta. But more importantly Walsh J. seems to have assumed and taken it for granted that mistake as to age could never be relevant with regard to a sexual offence on a young person. The point was never argued before the court or certainly not argued in relation to any relevant case and I cannot accept the learned judge’s remarks as applying to the offence of sexual assault. I see no reason at all why the principles set out by Lord Reid and approved of by Henchy J. should not give rise to the presumption that mens rea is applicable to the offence of sexual assault and that in that connection a mistake as to the age of a child whose consent because of age would be irrelevant cannot be treated as an exonerating factor.
The only other Irish case worth mentioning is Re the Employment Equality Bill, 1996  2 IR 321. Paragraphs 15 and 16 of the head note to that case summarise neatly an issue which arose.
“15. That in so far as it was constitutionally permissible to impose criminal liability on an employer for the acts of his employee, the offences in question should be essentially regulatory in character, apply where a person has a particular privilege or a duty to ensure that public standards as regards health or safety or the environment or the protection of the consumer are maintained, and where it might be difficult invidious or redundant to seek to make the employee liable.
16. That the offences provided for in the Bill for which the employer was sought to be made precariously liable were far from being regulatory in character but likely to attract a substantial measure of opprobrium. The social policy of the Bill did not justify the introduction of such a change in the criminal law. The provisions were disproportionate to the mischief sought to be avoided. To render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and therefore contrary to Article 38, section 1 and Article 40, section 1 of the Constitution.”
The judgment of the court delivered by Hamilton C.J. in that Reference also referred with approval to dicta of Lord Reid in Sweet v. Parsley cited above. The former Chief Justice particularly referred to Lord Reid’s disapproval of “the public scandal of convicting on a serious charge persons who were in no way blameworthy.” Of course the factual situation with which the court was dealing with in that Reference was quite different. It was referring to vicarious criminal liability. Nevertheless a constitutional requirement of an element of mens rea in serious offences seems to be hinted at.
I now return to consider Sweet v. Parsley cited already. It has been noted in several subsequent cases that Reg v. Prince cited above was cited in argument in Sweet v. Parsley but never referred to in any of the speeches which is some indication of its irrelevance to the modern jurisprudence of mens rea. Given our own constitutional requirements of a fair criminal system, I see no reason to take a more restricted view of the mens rea requirements than that taken in modern cases by the House of Lords. Lord Reid in Sweet v. Parsley starts off his speech by making it clear that if the words of an act show a clear intention to create an absolute offence that is the end of the matter. He goes on to observe that “such cases are very rare”. There follows the passage cited by Henchy J. above set out, the last two sentences of which have been described as “Lord Reid’s magisterial statement” by Lord Nicholls of Birkenhead in B (a minor v. D.P.P.  2 AC 428.
“Mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary”.
The CC appeal is a good illustration of an instance where the relevant statutory provision did not allow for the defence of mistake as to age not merely because of wording but because of the combination of wording with other relevant circumstances concerning the antecedents to the legislation.
Mens rea may take different forms, as Lord Reid further makes clear. In this connection he said the following at p. 150 of the report:
“Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention.”
“As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.”
In B (a minor) v. D.P.P. cited above the House of Lords consisting of Lord Irvine of Lairg L.C., Lord Mackay of Clashfern, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton held that mens rea was an essential element of every criminal offence unless Parliament expressly or by necessary implication provided to the contrary. Before considering some of the reasoning in the House of Lords speeches it is worth drawing attention to a judgment delivered by Brooke L.J. in the Divisional Court in that case. Interestingly, although he was the presiding judge he allowed his two colleagues to deliver their judgments first and he then delivered his in the course of which he observed:
“I am only adding a judgment of my own because this three judge court has just spent a day and a half at the taxpayers expense exploring the highways and byways of our laws on sexual offences simply because Parliament has not explained to us the mens rea requirement for some of these offences in clear simple terms. Over fifty years ago Lord Goddard C.J. said in Brend v. Wood (1946) 62 T.L.R. 462, 463:.
In the House of Lords the leading speech was delivered by Lord Nicholls. He observed at p. 460:
“As habitually happens with statutory offences, when enacting this offence Parliament defined the prohibited conduct solely in terms of the prescribed physical acts, section 1(1) says nothing about the mental element. In particular, the section says nothing about what shall be the position if the person who commits or incites the act of gross indecency honestly but mistakenly believed that the child was fourteen or over.
In support Lord Nicholls refers to the “magisterial statement” of Lord Reid already cited.
Running through the speeches of the Law Lords is the clear view that statutory provisions concerning criminal offences must not be interpreted as ousting the principle of mens rea unless they expressly do so or unless such ouster is a necessary implication. Indeed, interestingly in his speech, Lord Hutton took the view that having regard to the necessity to protect young girls from sexual predators it might be reasonable in the ordinary way to imply an intention by parliament not to allow a defence of mistake as to age but he pointed out that reasonableness was not enough. There would have to be “necessary implication” and he was unable to find any.
Again, I must emphasize that there is a hybrid aspect of the offence of sexual assault in Ireland. Although it has been held in essence to be a common law offence there have historically been a number of statutory provisions relating to it in one way or another. Section 6 and section 14 of the Criminal Law (Amendment) Act, 1935 can be included in these but it would certainly be impossible to raise a necessary implication from these sections that mistake as to age was to be ousted as a defence. Section 6 was a penalty section only. I have already explained why no such necessary implication could arise from section 14.
The overriding presumption of statutory interpretation that mens rea was an essential ingredient of every statutory offence was reiterated again by the House of Lords in Regina v. K  1 A.C. 462. The appellate committee consisted of Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hobhouse of Woodborough and Lord Millett. Lord Bingham with whom the other Law Lords agreed again stressed the overriding presumption of mens rea. The factual matrix to the case however is quite relevant to the facts underlining this appeal and it is worth citing the head note at p. 462 ff of the report.
“The defendant, a man aged twenty six at the time of the alleged offence, was charged with indecently assaulting a fourteen year old girl contrary to section 14 of the Sexual Offences Act, 1956. By way of defence he proposed to claim that the sexual activity between them was consensual, that the girl had told him that she was sixteen and that he had no reason to disbelieve her. At a preliminary hearing the judge ruled that the prosecution would be required to prove that at the time of the incident the defendant did not honestly believe that the girl was sixteen or over. On their appeal to the Court of Appeal the prosecution submitted that since Parliament had, by section 14(3)(4) provided defences in specified circumstances based on a defendant’s belief but had not so provided in section 14(2) with respect to his belief as to a complainant’s age, no such defence had been intended. The Court of Appeal accepted the submission and, allowing the appeal, ruled that the prosecution was not required to prove absence of the defendant’s genuine belief as to the girl’s age.
On the defendant’s appeal -
Held, allowing the appeal that it was an overriding presumption of statutory interpretation that mens rea was an essential ingredient of every statutory offence, unless Parliament had indicated, by express words or by necessary implication, that it should be excluded, that no express words were contained in either section 14 or elsewhere in the 1956 Act which would exclude the need for the prosecution to prove absence of genuine belief by a defendant as to the age of an under age complainant; that since the 1956 Act was a consolidation statute with corrections and improvements to the expression but not to the substance of existing provisions and since section 14 did not form part of a single coherent legislative scheme but was derived from and reflected a miscellany of preceding provisions, significance could not be attached to the inclusion of grounds of exoneration in section 14(3)(4) and the omission of such a ground from section 14(2); that the language of the statute did not, as a matter of necessary implication, justify exclusion of the presumption, and its effect, if read into section 14, did not result in absurdity but prevented further anomaly; and that, accordingly, the presumption applied and the prosecution was required to prove absence of genuine belief on the part of the defendant that the girl was sixteen …”
I would allow the PG appeal. The exact terms of the declaratory relief which might be appropriate should be discussed with counsel.