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Cite as:  IESC 10,  2 ILRM 305
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Judgment Title: M.D. (Minor) v Ireland AG & DPP
Neutral Citation:  IESC 10
Supreme Court Record Number: 176/10
High Court Record Number: 2008 1990 P
Date of Delivery: 23/02/2012
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., Hardiman J., Fennelly J., Macken J.
Judgment by: Denham C.J.
Status of Judgment: Approved
Notes on Memo: Judgment of the Court delivered by Denham CJ.
THE SUPREME COURT
[Appeal No: 176/2010]
M.D. (A Minor suing by his Mother and Next Friend S.D.)
Ireland, the Attorney General and the Director
of Public Prosecutions
Judgment of the Court delivered on the 23rd day of February, 2012 by Denham C.J.
1. This is an appeal from a decision of the High Court  IEHC 101 (Dunne J., 26th March, 2010) which upheld the constitutionality of s. 3(1) and s. 5 of the Criminal Law (Sexual Offences) Act 2006, which will be referred to as “the Act of 2006”.
2. The background to the case is that M.D., the plaintiff/appellant, who will be referred to as “the appellant”, is charged that on the 5th August, 2006, he had sexual intercourse, and committed a sexual act of buggery, with a female person under the age of seventeen years, contrary to s. 3(1) of the Act of 2006. At the time of the alleged offences the appellant was 15 years of age and the complainant was 14 years old. The complainant was not charged with any offence.
3. Section 3(1) of the Act of 2006 states:-
7. The Act of 2006 was passed following the decision of this Court in C.C. v. Ireland  4 IR 1, which held that s. 1(1) of the Criminal Law (Amendment) Act 1935, was unconstitutional because of the absence of a defence of mistake of fact as to age. The Act of 2006 replaced the statutory offences of unlawful carnal knowledge under the Criminal Law (Amendment) Act 1935 with two new offences, defilement of a child under 15 years of age and defilement of a child under 17 years of age. It also introduced a defence of honest mistaken belief as to the injured party’s age in the case of both offences.
(ii) A Declaration that the Third Named Defendant was in breach of Article 40.1 of the Constitution in charging the appellant, as a male child under the age of 17 years, with an offence contrary to s. 3(1) of the Act of 2006 in circumstances where he did not charge the female with an offence under the Act.
(iii) A Declaration that s. 3(1) of the Act of 2006 discriminates against the appellant and is in breach of the Constitution in that on conviction the child appellant would be liable to receive a term of imprisonment of up to 5 years where no penalty would be imposed on a female child under the age of 17.
(vi) A Declaration that s. 3(1) of the Act of 2006 is in breach of Article 6 and Article 14 of the European Convention on Human Rights in that it denies the appellant the right to a fair trial on grounds of gender.
(vii) A Declaration that in prosecuting the [appellant], the Third Named Defendant failed to consider and act in accordance with the Constitutional principles of justice and charity and breached Article 40.3 of the Constitution .
(viii) A Declaration that the purported consent of the Third Named Defendant to bring a prosecution against the appellant is invalid as the Third Named Defendant acted in breach of Articles 40.1, 38.1 and 40.3 of the Constitution in failing to prosecute the female for engaging in a sexual act with the child appellant contrary to the Act.
(ix) An Order staying the First Named Defendant from taking any further steps in the prosecution of these proceedings pending the outcome of the proceedings herein.
(x) Further or other order.
High Court Judgment
The statutory provision at issue in this case provides for different treatment of female and male children under l7 years of age and as such it has to be viewed as being discriminatory on grounds of gender. It is then necessary to consider whether, given the lack of equality of treatment, the defendants can rely on the provisions of Article 40 .1 to show that in the words of Laffoy J in S.M. v. Ireland  IEHC 280  4 IR 369 referred to above, ‘the differentiation is legitimated by reason of being founded on difference of capacity, whether physical or moral, or difference of social function of men and women in a manner which is not invidious, arbitrary and capricious.’”
European Convention on Human Rights
14. On the issue of s. 5 the learned High Court judge concluded:-
“Finally, I should add that the helpful submissions in relation to the issue as to whether the [appellant], if successful in his arguments, was entitled to the reliefs claimed herein given that striking down s.5 alone could not avail the [appellant], need not be considered in the light of the outcome of these proceedings.”
Notice of Appeal
The grounds of appeal were:-
(ii) The Learned Trial Judge erred in law in holding that where society has determined that certain criminal activity be deterred, it is entitled to place the burden of criminal sanction on those who bear the least adverse consequences of that criminal conduct even though the persons exposed to such adverse criminal consequences (namely, male children) are equally deserving of the law’s protection in circumstances where they have no greater moral guilt than that of the female child.
(iii) The Learned Trial Judge erred in law in finding that once discrimination on the grounds of gender is shown that the onus did not shift to the State to justify the discrimination and, furthermore, also erred in law in holding that the legislation in question did not reflect traditional sexual stereotypes.
(iv) The Learned Trial Judge erred in law in failing to take account of the evidence given that no female has been prosecuted under the Act when finding that the Act provides only a limited immunity to girls in the one area of sexual activity that can result in pregnancy . In practice no female has ever been or would be prosecuted for such offences.
(v) The Learned Trial Judge misdirected herself as to the law and facts in failing to take into account the fact that the [appellant] was not charged with rape, and in taking into account allegations about the issue of consent which are not relevant to the charges before the Circuit Court the subject matter of the case herein.
(vi) The Learned Trial Judge erred in law in failing to take account of the evidence given that the Act did not deter underage sexual activity and accordingly the impugned section could not be justified as it was not rationally connected to the objective of the Act.
(vii) The Learned Trial Judge erred in fact in determining that the risk of pregnancy was one that carried sole consequences for a girl and failed to have regard to the fact that unwanted pregnancy and early fatherhood were also undesirable consequences for a boy.
(viii) The Learned Trial Judge erred in law and in fact in failing to take account of the adverse effects of underage sexual activity on a boy.
(ix) The Learned Trial Judge erred in law and in fact in failing to have regard for the fact that a pregnancy would give rise to parental obligations and consequences for a boy.
16. In essence, this appeal raises several issues:-
(c) The submission that the appellant would be liable to receive a sentence of up to 5 years if convicted, where no penalty would be imposed on a female under the age of 17, and that s. 5 is therefore in breach of Article 38.1 of the Constitution;
17. The High Court found that this case took place in something of an evidential vacuum as to the circumstances giving rise to the prosecution. No evidence was given by the appellant or the complainant. These proceedings have been taken in advance of an intended prosecution. There are no agreed facts. The High Court judge was given a number of statements from the book of evidence, which she read. They included the statements of the complainant and memoranda of interviews with the appellant, together with statements of a number of individuals who were in the company of the appellant and the complainant at the time of the alleged offences, and also statements from a number of members of An Garda Síochána and other witnesses. The learned High Court judge stated:-
It is not possible to reconcile the different accounts of the [appellant] and the complainant in these proceedings. Nor is it necessary to do so. It is clear that there is an issue as to the question of consent. When using that term, it is to be used in the ordinary meaning of the word and not the legal meaning. It is important to have regard to the provisions of s. 3(7) of the 2006 Act which is set out above and which provide [sic] that consent is not a defence to proceedings brought under s. 3(1) of the Act. However, I think it is important to bear in mind that on the complainant's view of the circumstances, this is not a case about ‘consensual’ sexual activity as it was sometimes described in the course of these proceedings by counsel on behalf of the [appellant]. I accept that the [appellant’s] view of the circumstances may be different.”
18. Before any such prosecution is brought there is required to be a decision by the Director of Public Prosecutions, hereinafter referred to as the “DPP”, to prosecute. In making a decision, the DPP will consider and apply her discretion in each situation. Such discretion will involve an evidential test: is there sufficient evidence to warrant a prosecution? Also, there would be an application of the public interest test: is such a prosecution in accordance with the public interest? The public interest will be informed by the policy of any relevant legislation.
19. The DPP has a discretion in exercising her power to prosecute. The concept of prosecutorial discretion was addressed in Canada, where the Attorney General was the prosecuting authority. In Krieger v. Law Society of Alberta  3 S.C.R. 372 at paragraphs 46 to 47 the Supreme Court of Canada stated:-
Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.”
20. The width of the discretion of the DPP was considered by Finlay C.J., in State (McCormack) v. Curran  I.L.R.M. 225 where he stated at p. 237:-
Constitutionality of Legislation
23. The High Court held that on the face of it there was no apparent Constitutional or Convention frailty in the provisions of s. 3. This Court would affirm that decision.
24. In the High Court, and in this Court, the appellant mounted his challenge to s. 3 by linking it with s. 5. Section 5 provides that a female child under 17 years of age shall not be guilty of an offence under the Act by reason only of her engaging in an act of sexual intercourse. Thus s. 5 applies only to a female child, under the age of 17, and only in relation to acts of sexual intercourse.
25. The High Court referred to the different treatment of male and female children under the age of 17 years of age, which it regarded as discriminatory, and queried whether, given the lack of equal treatment, the respondents can rely on Article 40.1 The High Court held:-
Act of 2006 and its context
27. Although the decision in C.C. v. Ireland was concerned only with the question of the defence as to honest mistake as to age, the Oireachtas was necessarily driven to reconsider generally the criminal law regarding sexual activity involving young people. The offence of unlawful carnal knowledge of a female under section 1(1) or section 1(2) of the Act of 1935 was framed so that it could only by definition be committed by a male.
28. The Act of 2006 aims at a more comprehensive and gender-neutral approach to sexual acts with children. According to its long title, it is “an act to provide for offences in relation to the commission of sexual acts with children under the age of 17 years; and to provide for matters connected therewith.”
29. Sections 2 and 3 of the Act of 2006 provide for criminal offences of what the side note calls “defilement of a child,” respectively under the ages of fifteen or seventeen. The term “defilement” does not appear in either section. The sections speak instead of a “sexual act,” a term which is defined in s. 1 as follows:-
4.-(1) In this Act “rape under section 4” means a sexual assault that includes –
(b) penetration (however slight) of the vagina by any object held or manipulated by another person.”
33. The offence of committing a sexual act with a person, a “child” under the age of seventeen, or attempting to do so, is created by s. 3 of the Act of 2006 in the following terms:
(b) if he or she is a person in authority, to imprisonment for a term not exceeding 10 years.
(b) if he or she is a person in authority, to imprisonment for a term not exceeding 4 years.
(3) A person who has been convicted of an offence under subsection (1) shall, in respect of any subsequent conviction of an offence under that subsection, be liable on conviction on indictment—
(b) if he or she is a person in authority, to imprisonment for a term not exceeding 15 years.
(4) A person who has been convicted of an offence under subsection (2) shall, in respect of any subsequent conviction of an offence under that subsection be liable on conviction on indictment—
(b) if he or she is a person in authority, to imprisonment for a term not exceeding 7 years.
(5) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years.
(6) Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years, the court shall have regard to the presence or absence of reasonable grounds for the defendant’s so believing and all other relevant circumstances.
(7) It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted.
(8) An offence under subsection (2) shall be an arrestable offence for the purposes of the Criminal Law Act 1997 .
(9) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.
(10) A person who—
(b) is not more than 24 months older than the child under the age of 17 years with whom he or she engaged or attempted to engage in a sexual act, shall not be subject to the provisions of the Sex Offenders Act 2001.”
35. However, s. 5 of the Act of 2006 provides that:
36. It is clearly within the scope of the legislative intention that a female above the age of seventeen may be prosecuted for engaging in sexual acts with under-age boys.
37. Returning to section 3 of the Act of 2006, the following features are of note:
(b) Subsections 5 and 6 provide for a new defence of honest belief that the child in question had reached the age of seventeen;
(c) Proceedings for an offence under the section can be commenced only with the consent of the Director of Public Prosecutions;
(d) The penalty provisions are more severe in the case of persons in authority and for subsequent offences;
(e) The provisions of the Sex Offenders Act, 2001 do not apply to a person who is less than two years older than the child with whom he or she engaged in a sexual act.
38. The principle of equal treatment of citizens, indeed of all human persons, is implicit in the free and democratic nature of the State. It permeates the Constitution. Two explicit examples can be given. Article 40.6.2˚ requires that laws regulating the formation of associations and unions and the right of free assembly shall “contain no political, religious or class discrimination.” Article 44.2.3˚ provides that, whether by its laws or otherwise, “the State shall not impose any disabilities or make any discrimination on the grounds of religious profession, belief or status.” These are but aspects of the principles of freedom, justice and human dignity, which, inter alia, the preamble of the Constitution aims to safeguard. Equality is among the highest and noblest aspirations included in the Constitution of every modern state.
39. Article 40.1 is both more specific and more general. It is specific insofar as it relates expressly to “the law.” At the same time it prescribes the general principle that citizens are to “be held equal before the law.”
40. Equality is not, in all cases, an easy principle to apply in concrete situations. People may be equal in some respects but not in others. Aristotle’s oft-quoted definition illustrates the lack of precision in the notion of equality. His definition of the principle of equality is paraphrased as meaning “that things that are equal should be treated alike while things that are unalike should be treated unalike in proportion to their unalikeness.” [Nicomachean Ethics 1131a]. In other words, not only must the law treat comparable situations equally, it must not treat different situations in the same way, in the absence of justification.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
42. Thus strict equality is the norm laid down by Article 40.1. However, the Article recognises that perfectly equal treatment is not always achievable, rather the Article recognises that applying the same treatment to all human persons is not always desirable because it could lead to indirect inequality because of the different circumstances in which people find themselves.
43. The second sentence of Article 40.1 recognises that human persons have or may be perceived by the Oireachtas to have “differences of capacity, physical and moral, and of social function.” Some of these differences, particularly of capacity, are inherent, most obviously in the case of the sexes. It is axiomatic that only a woman can become pregnant. Thus, the Maternity (Protection) Act 1994 and the Maternity Protection (Amendment) Act 2004 apply to women, although a father is allowed to take time where a mother has died. Laws prohibiting discrimination on the grounds of pregnancy have justifiably applied to women.
44. It follows that laws such as these are not an example of the State holding men or women respectively unequal before the law. It follows also that the first and second sentences of Article 40.1 should not be treated as if they were in separate compartments. It is not correct to look at a law to see if it offends against the first sentence before turning to the second sentence to seek justification. The second sentence is concerned with what the first sentence means.
Application to section 3
46. Nonetheless, the natural physiological differences between males and females cannot be entirely assimilated. Rape under s. 4(1)(a) of the Criminal Law (Rape) (Amendment Act), 1990 is defined as a sexual assault including “penetration (however slight) of the anus or mouth by the penis…” can, by definition, be committed only by the male. The crime of rape defined in section 4(1(b) of the Criminal Law (Rape) Amendment Act, 1990 (penetration of the vagina by any object) could be committed by a female.
47. The act of sexual intercourse itself is engaged in by a male and a female. However, each performs a distinct physiological function. The male’s penis penetrates the female’s vagina and may emit the sperm which, relevantly for this appeal, is capable of rendering the female pregnant. Thus some natural and inevitable differentiation of treatment is inherent in the statutory scheme.
48. The appellant challenges, as infringing Article 40.1 of the Constitution, s. 5 of the Act of 2006, which expressly differentiates between the male and the female, but only in the case of the act of sexual intercourse, and only when the female is herself under the age of seventeen. The female under seventeen is not exempted from criminal liability in respect of any of the other sexual acts criminalised by the section, when committed with a person under the age of seventeen.
49. The fundamental constitutional question is whether it falls to the Court or to the Oireachtas to make the judgment as to whether the risk that the female will become pregnant justifies exempting her, but not her male counterpart, from prosecution. The framing of sexual offences in such a way as to protect young people from the dangers of early sexual activity is a matter of notorious difficulty. States have, for centuries, wrestled with questions of great sensitivity concerning the appropriate age to set, whether to differentiate between males of different ages, or to differentiate on grounds of difference in age between the persons, not to mention the more recent liberation of same-sex activities from the stigma of criminality.
50. Decisions on matters of such social sensitivity and difficulty are in essence a matter for the legislature. Courts should be deferential to the legislative view on such matters of social policy.
United States Supreme Court: Michael M v Superior Court of Sonoma County
In that case a seventeen and a half year old male was charged with violating California’s “statutory rape” law. That law, similarly to our offences of unlawful carnal knowledge under the Criminal Law (Amendment) Act, 1935, made it unlawful for a male to commit “an act of sexual intercourse with a female not the wife of the perpetrator, where the female is under the age of 18 years.” The appellant claimed that the law violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. The Court rejected the constitutional challenge in a five/four decision. A plurality of four justices joined in the judgment of Rehnquist J.. Blackmun J. concurred in the judgment. Brennan J., supported by White and Marshall JJ., filed a dissent, and Stevens J. filed a separate dissent. The majority judgments are relevant to the present case. Notably, in a footnote, it is stated that lower federal and state courts had almost uniformly concluded that statutory rape laws were constitutional. It cites some 28 cases from many states decided during the 1970’s. Rehnquist J. delivered the principal judgment. Although he noted that the Court had had some difficulty in agreeing “upon the proper approach and analysis in cases involving challenges to gender-based classifications,” he explained that “[u]nlike the California Supreme Court, we have not held that gender-based classifications are ‘inherently suspect’ and thus we do not apply so-called ‘strict scrutiny’ to those classifications.” The Equal Protection Clause did not, he said, "demand that a statute necessarily apply equally to all persons" or require "'things which are different in fact . . . to be treated in law as though they were the same." Thus, the Court had “consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” The Californian Supreme Court had accepted, as a justification for the statute “that the legislature sought to prevent illegitimate teenage pregnancies.” “That finding,” in the view of Rehnquist J. was “entitled to great deference.” The State had “a strong interest in preventing such pregnancy.” He continued:
52. The above case was decided 30 years ago, strong dissents were written by Justice Brennan and Justice Stephens, the existence of gender neutral laws in other States were noted, and the statute at issue in that case has since been altered. However, it represents a useful analysis of legislation in seeking a balance on a sensitive social issue, and the approach by the Supreme Court of the United States of America in considering that legislative balance.
53. The legislation in California recognised the innate differences between males and females participating in the act of sexual intercourse. To recognise this difference is not necessarily to discriminate. The exemption of a very young female from prosecution for an offence of taking part in an act of intercourse was regarded by the legislature as justified by the need to deter the male from having sexual intercourse with her, protecting her from the risk of pregnancy, and encouraging her to report the case. A similar approach was taken by the Oireachtas.
54. In considering s. 5 of the Act of 2006, the State justified the legislation by a social policy of protecting young girls from pregnancy, by creating a law governing anti-social behaviour, i.e. under age sexual intercourse. This was a choice of the Oireachtas. Even in a time of social change, it is a policy within the power of the legislature. The issue of under age sexual activities by young persons involves complex social issues which are appropriately determined by the Oireachtas, which makes the determination as to how to maintain social order. The Oireachtas could have applied a different social policy. But s. 5, the policy which they did adopt, was within the discretion of the Oireachtas, and it was on an objective basis, and was not arbitrary.
55. The Act, as set out earlier, makes both sexes liable for breaches of the offences created. However, s. 5 excludes the girl from criminal liability when the offence is sexual intercourse, but not for other sexual acts.
56. The Oireachtas made a choice, and such a legislative decision reflects a social policy on the issue. While the legislature could have enacted another social policy, it was an approach the legislature was entitled to take, it was an issue in society to which the legislature had to respond. The danger of pregnancy for the teenage girl was an objective which the Oireachtas was entitled to regard as relating to “differences of capacity, physical and moral and of social function”, as provided for in Article 40.1 of the Constitution. The Court would dismiss the appeal and reject the claim that s. 5 of the Act of 2006 is invalid having regard to the Constitution.
European Convention on Human Rights
58. The first claim concerned Article 8 of the Convention on the grounds that the section denies the appellant his right to respect for private life; and the second claim invoked Article 6 and Article 14 together on the grounds that the section denies the appellant the right to fair trial on grounds of gender. The High Court dealt briefly with the arguments based on the Convention, as set out earlier in this judgment. The learned judge agreed “with the submissions on behalf of the defendants that the provisions of that ECHR do not bring the matter any further than Article 40.1 of the Constitution.”
59. In reality the Convention claim has been presented as subsidiary to the constitutional claim. The claim, as pleaded, is simply that s. 3 is “in breach of” the Convention. That formulation is not acceptable. It treats the Convention as if it had direct effect and presumes that the Court has the power to grant a declaration that a section is in breach of the Convention. It is clear from the judgments of this Court in McD v L  2 IR 199 that the European Convention on Human Rights Act 2003 did not give direct effect in Irish law to the European Convention on Human Rights. As Murray C.J. stated at page 248, “The Convention does not of itself provide a remedy at national level for victims whose rights have been breached by reference to the provisions of the Convention.”
60. The appellant has not explained how the statutory provisions at issue in this case can be applied by the Court, by virtue of the Act of 2003 “in a manner which is compatible with the Convention.” Section 2 of the Act places an obligation on the courts in “interpreting and applying any statutory provision or rule of law… in so far as is possible, subject to the rules of law relating to such interpretation and application, [to] do so in a manner compatible with the State's obligations under the Convention provisions.” Section 5 of the Act could not be interpreted, and counsel for the appellant has not suggested that it could, so as to render a female criminally liable in the same way as a male, thus removing the difference in treatment of which the appellant complains.
61. The appellant has not, in these proceedings, sought a declaration pursuant to s. 5 of the Act of 2003 that either s. 3 or s. 5 of the Act of 2006 is “incompatible with the State's obligations under the Convention provisions.”
62. Although the appellant refers in written submissions to the essence of the Convention and states that it guarantees respect for human dignity and freedom and the notion of personal autonomy, the appellant has not formulated any acceptable legal basis upon which these Convention principles could enable this Court to grant the declarations sought. Moreover, it is unclear how the claims made by the appellant relate to his case. The plenary summons did not make a claim linking Article 8 with Article 14. Thus, there was no viable claim based on Article 8 as the appellant was raising an issue of unequal treatment. Even if the appellant had raised a plea on Article 8, in conjunction with Article 14, there was no adequately formulated claim. There is no free standing right under Article 14, and Article 8 relates to respect for family and private life.
63. The Court is not satisfied that the appellant has formulated any claim based on the Convention provisions capable of being entertained by this Court.