A law imposing a ‘balance of probabilities’ standard of proof on an accused who claims they made a “reasonable mistake” a complainant was aged over 17 in certain sexual offence cases involving older children has been declared unconstitutional by the Supreme Court.
The law creates an “unnecessarily high risk” of conviction for an accused person who is genuinely mistaken about age and “simply goes too far” in obliging an accused “to establish mental innocence”, the court said.
“In an era when young adults are much more sexually active than in the past, a genuine mistake is a realistic rather than a remote possibility,” it observed.
In its significant judgment on Monday, the seven-judge court unanimously dismissed an appeal by the Minister for Justice, the State and the DPP against a High Court finding that section 3.5 of the Criminal Law (Sexual Offences) Act 2006 is unconstitutional.
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Section 3.5 provides a defence for an accused charged with defilement of a child under 17 to demonstrate they reasonably believed the complainant was aged over 17. It requires that those advancing that defence must prove it on the balance of probabilities.
The challenge to section 3.5 was made by a man who has separately appealed his May 2021 conviction for an offence of defilement, when he was aged 19, of a child aged 15, for which he was sentenced to one year and 10 months imprisonment. He was acquitted of a separate charge of rape. He denied both offences.
The issues in the Supreme Court appeal only relate to cases involving older children and where the defence claims the child under 17 did, as a matter of fact rather than law, consent to the sexual act AND where the accused claims they believed, on reasonable grounds, the child was aged 17 or older.
All the parties to the appeal accepted a belief about age, even if honestly held, will not be a defence unless it is based on reasonable grounds. They also accepted it is permissible to make an accused prove, to some extent, their ‘reasonable mistake’ about age claim.
The dispute in the appeal concerned how far such a claim must be proven by the defence.
In its core finding today, the Supreme Court ruled that pitching the burden of proof on those claiming a reasonable mistake concerning age on the balance of probabilities either impairs the right to be presumed innocent or fails to guarantee the right to a fair trial.
On that basis, it dismissed the appeal, affirmed the declaration by the High Court’s Ms Justice Siobhan Stack that section 3.5 is unconstitutional and lifted a stay on that declaration which was imposed pending the outcome of the appeal.
The Chief Justice, Donal O’Donnell, who co-authored the court’s judgment with Ms Justice Iseult O’Malley, stressed the declaration applies only to the standard of proof requirement in section 3.5. The rest of the section “remains fully capable of operation”, including section 3.3 which requires the defence to establish a reasonable doubt whether the accused was reasonably mistaken about the age of the complainant.
Section 2 of the Act, dealing with offences against younger children, “is entirely unaffected”, he added.
It is unusual for the court to deliver judgments during the superior courts summer vacation, which runs to early October but the Chief Justice noted the man’s appeal against his conviction remains listed in the Court of Appeal pending the outcome of the Supreme Court appeal against the 2022 judgment in favour of the man by the High Court’s Ms Justice Siobhán Stack.
Opposing the appeal, the man, represented by Fiona Murphy SC, with Ronan Munro SC, argued any burden of proof cannot go beyond the requirement to provide grounds for reasonable doubt on the age issue because that would infringe the presumption of innocence and violate the right to a fair trial.
The Irish Human Rights and Equality Commission, represented by Seán Guerin SC, was involved in the appeal as an assistant to the court on legal issues and it supported those arguments.
The State appellants accepted the age of the child must be proven beyond reasonable doubt but argued there is no onus on the prosecution to show an accused had any mens rea (intention) in relation to the age. It was argued the defilement offence is complete if an accused did in fact engage in sexual activity with a child under 17 and section 3.5 simply provides for a special defence for an accused who can show they made a reasonable mistake about the age.
The Supreme Court, in its 92 page judgment, held, if section 3.5 is intended to provide a chance of acquittal for defendants who are genuinely mistaken about age, it is “unduly difficult” to establish that and “creates an unnecessarily high risk of conviction” for people who are so mistaken.
If the measure is alternatively seen as relieving the prosecution of the onus of proving intent on the part of the accused, and reversing that onus onto the defence, it “simply goes too far in obliging the accused to establish mental innocence”, it said.
Addressing the appellant’s arguments the legislature was entitled to be concerned a lesser burden on the defence would provide insufficient protection to children, the court stressed it was “essential” to emphasise this appeal concerned only the section 3 older child offence.
Any potential challenge to the burden of proof in section 2, concerning younger children, would face “very different” proportionality considerations, it said.
It is generally easier to assess the age of children under 15 than those in their mid-teens and it is also a fact that younger children are “even more vulnerable to exploitation”.
It had not been established that raising the standard of proof in relation to what the accused believed is rationally related to the wish to reduce potential courtroom distress to a witness, it also held.
In further findings, it said the consequences for an individual accused of what must be regarded as a very serious crime under section 3.5 are “extremely onerous”, including a likely prison sentence and a “very definite social stigma”. In an era when young adults are much more sexually active than in the past, a genuine mistake is a realistic rather than a remote possibility if the parties are not known to each other, it said.
It concluded the objective of the legislation is legitimate and justifies both imposing a burden of proof on the defence and the requirement that the mistake about age be reasonable. However, the pitching of the burden of proof at the level of proof on the balance of probabilities either impairs the right to be presumed innocent to the point where it must be considered disproportionate or contrary to the constitutional presumption of innocence or fails to guarantee a trial in due course of law, it held.
