Supreme Court of Ireland Decisions

Judgment Title: P.G. -v- Ireland & Ors

Neutral Citation: [2005]IESC47

Supreme Court Record Number: 358/04

High Court Record Number: 2002 No. 714JR

Date of Delivery: 12/07/2005

Court: Supreme Court

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“1. The overwhelming responsibility reposed by the law and the Constitution on the trial judge is to ensure the fairness of the trial. An exceptionally important aspect of this function is to adjudicate on the evidence which should be placed before the jury…

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. [2003] 1 IR 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 [1999] 1 IR 60)”.

“If every case in criminal law prior to trial in the Circuit Court raised a question of the constitutionality of each and/or every or any paragraph, subsection or section of criminal law statutes which have or has not been expressly and definitively been the subject of at least a decision of the High Court, more probably a decision of the Supreme Court, is the remedy of judicial review to be available?”

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.

16. Statutory Interpretation
At the core of this case is the interpretation, the construction, of the relevant legislation, being s.1 (1) of the Criminal Law (Amendment) Act, 1935, hereinafter referred to as the Act of 1935.

17. The offences of which C. C. is charged are to be found in s.1 (1) of the Act of 1935, which provides:

“Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years.”

“If, indeed, a court were satisfied upon the terms of a statute itself, that it was based upon a misapprehension as to legal principles which would be applicable to the subject matter outside of any statutory provisions, the error thus arising and the consequence arising from such error could not properly, having regard to the separation of powers, be corrected by a court but could only be corrected, if it wished to do so, by the legislature itself.”

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:

“The section in question is one of a series of enactments, beginning with sect.50 forming a code for the protection of women and the guardians of young women. These enactments are taken with scarcely any alteration from the repealed statute 9 Geo. 4, c. 31, which had collected them into a code from a variety of old statutes all repealed by it.

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.”

“It is impossible to suppose that a person taking a girl out of her father's possession against his will is guilty of no offence within the statute unless he, the taker, knows she is under sixteen--that he would not be guilty if the jury were of opinion he knew neither one way nor the other. Let it be then that the question is whether he is guilty where he knows, as he thinks, that she is over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever shall take any unmarried girl being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession," etc. Those words are not there, and the question is whether we are bound to construe the statute as though they were, on account of the rule that the mens rea is necessary to make an act a crime.

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?

“The defendant was indicted under the 24 & 25 Vict. c.100, s. 55, [which enacts that “whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the wish of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanor].

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.”

“Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea.”

“… that a mistake of facts on reasonable grounds, to the extent that if the facts were as believed, the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enactment in England. I agree with Lord Kenyon that “such is our law” and with Cockburn, C.J., that such is the foundation of all criminal procedure.”

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 [1956] 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.

24. Assumption

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:

“The absence of any defence to any of the relevant offences of reasonable mistake as to the age of the girl is capable of producing serious injustice, particularly where the age of the girl is close to the age of consent.”

“There appeared to be little dissent from the view that the Irish law in this area was unduly harsh and wholly out of step with the law in other jurisdictions. While it may be again that a combination of prosecutorial and judicial discretion is ensuring that no problems arise, the possibility of serious injustice should nonetheless, in the view of the Commission, be removed. The Commission accordingly recommends that, in the case of the offences under consideration, there should be a defence available to the accused that he genuinely believed at the time of the act on reasonable grounds that the girl had attained the age of consent or an age attracting a less serious penalty”.

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 [1970] 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:

"… there has for centuries been a presumption that Parliament did not intend to make criminals of persons 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 firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary".

28. The analysis in Sweet v Parsley was approved by Henchy J. in The People v Murray [1977] 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:

“Those decisions show a sharp cleavage of judicial opinion. A denial that the relevant statutory provision requires mens rea (in the form of intent or knowledge in relation to the fact that the victim of the assault was a member of the police acting in the execution of his duty) is to be found in a line of authorities running from R. v. Forbes (1865) 10 Cox C.C. 362, and including R. v. Prince (1875) L.R. 2 C.C.R. 154; R. v. Maxwell (1909) 2 Cr. App. R. 26; R. v. Mark [1961] Crim. L.R. 173; Kenlin v. Gardiner [1967] 2 Q.B. 510; R. v. Galvin (No. 1) [1961] V.R. 733 and R. v. Reynhoudt (1962) 107 C.L.R. 381. On the other hand, strong judicial opinion to the effect that mens rea in the form of either intent or knowledge is required for this element is to be found in R. v. Galvin (No. 2) [1961] V.R. 740 which overruled R. v. Galvin (No. 1) [1961] V.R. 733; in the dissenting judgments of Dixon C.J. and Kitto J. in R. v. Reynhoudt (1962) 107 C.L.R. 381; and in the unanimous decision of the British Columbia Court of Appeal in R. v. McLeod (1954) 111 Can. C.C. 106.

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 [1970] AC 132:-

“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 persons 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.”
Admittedly Lord Reid was referring to a whole offence rather than to a constituent element of an offence, but the basis for the presumption is the same in both cases, i.e., to avoid the unjust or oppressive application of the section to those who have not merited the guilt and punishment envisaged by the section, either because they are totally blameless or because their blameworthiness is only such as to attract guilt for a lesser offence.

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):

“With regard to the submission made in relation to the requirements of the Criminal Law Amendment Act, 1935, the position is somewhat different. There it 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 17 were to be confined only to girls of a particular occupation, then the position would be quire 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 provision relating to capital murder and those relating to unlawful carnal knowledge of girls under the age of consent.”

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, [1997] 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:

“However what is sought to be done by this provision is that an employer devoid of any guilty intent, is liable to be found guilty on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years, or both such fine and imprisonment and to be tainted with guilt for offences which are far from being regulatory in character but are likely to attract a substantial measure of opprobrium. The social policy of making the Act more effective does not, in the opinion of this Court, justify the introduction of so radical a change to our criminal law. The change appears to the court to be quite disproportionate to the mischief with which the section seeks to deal.”

In the course of this speech in Sweet v Parsley [1970] 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.”

“Even the most cursory review of the history of the doctrine of mens rea confirms this observation and reveals that the doctrine is an integral and indispensable feature of our criminal law. In Kenny’s Outlines of Criminal Law (19th Ed 1966), at p.7, the author observes that this was not always so:

“There is evidence that throughout Europe in the remote past acts which caused serious harm were supposed to bring about the infliction upon the people of some calamitous punishment by the gods. In such circumstances severe sufferings were inflicted upon the offender in order to placate the outraged deity.”

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)”.

“Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of this new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient grounds for so concluding.”

“It is well established that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a court cannot find a person guilty of an offence against the criminal law unless he has a guilty mind.”

“ “Necessary implication” connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.”

“50. Whosoever shall unlawfully and carnally know and abuse any Girl under the Age of Ten 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 Three Years, - or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.

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.”

“52. Whosoever shall be convicted of any indecent Assault upon any Female, or of any Attempt to have carnal Knowledge of any Girl under Twelve Years of Age, shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.”

“Any person who –
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.”

(1)Unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years;

shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years with or without hard labour. Provided that it shall be a sufficient defence to any charge under sub-section one of 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.
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]

“Therefore the Crown can argue with considerable force that when Parliament intends that there should be a defence of mistake it makes express provision for this defence so that where there is no express provision for such a defence the statute by implication intends that the defence will not be available. This point is well stated by Tucker J., at p.442:

“I decide from all these statutory provisions that it is the clear intention of Parliament to protect young children and to make it an offence to commit offences against children under a certain age whether or not the defendant knows of the age of the victim, and that it was intended that, save where expressly provided, a mistaken or honest belief in the victims age should afford a defence.

Therefore, I consider that it would be reasonable to infer that it was the intention of Parliament that liability under s.1 (1) of the Act of 1960 should be strict so that an honest belief as to the age of the child would not be a defence. But the test is not whether it is a reasonable implication that the statute rules out mens rea as a constituent part of the crime – the test is whether it is a necessary implication.”

“The most severe aspect of the offences created by ss. 1 and 2 of the 1935 Act is that mistake on the part of the defendant as to the girl’s age will afford him no defence. Under the Criminal Law Amendment Act 1885 which governed these offences until 1935, a male charged with unlawful carnal knowledge of a girl aged between 13 and 16 years (equivalent to the present offence in respect of girls aged between 15 and 17 years), had a defence if he had reasonable cause to believe that the girls was of or above the age of 16 years. The 1935 Act provides no such defence. The impact of the decision in Prince’s Case is that a man is strictly liable when the girl is under the age of consent (although the offence in that case was taking an unmarried girl out of the possession of her father contrary to s.55 of the Offences Against the Person Act 1861). In favour of the present law, it may be argued that the social importance of protecting young girls from sexual exploitation justifies the requirement that a man should fully satisfy himself of the age of a young woman before he has sexual intercourse with her. Others argue that while strict liability is justified in the case of young girls whose age cannot be in any reasonable doubt, it is unfair when the female appears or, perhaps, claims to be over 15 or 17 years, as the case may be, and remains free of criminal liability even if she consents to intercourse with a partner of her own age who will be automatically guilty. While a mistake as to age does not affect criminal responsibility, it may be taken into account at the sentencing stage”.

“(2) Any person who attempts to have unlawful carnal knowledge of any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour, and shall be liable, in the case of a first conviction of such misdemeanour, to imprisonment for any term not exceeding two years or, in the case of a second or any subsequent conviction of such misdemeanour, to penal servitude for any term not exceeding five years nor less than three years or to imprisonment for any term not exceeding two years.”

“The question raised is whether consent is a defence to a charge of attempted unlawful carnal knowledge contrary to s. 2, sub-s. 2, of the Criminal Law Amendment Act, 1935. This section is an extension of earlier Acts. Notable amongst these was the Criminal Law Amendment Act of 1885. The section under consideration and similar provisions of earlier Acts were designed to protect young girls, not alone against lustful men, but against themselves.
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.”

“It is clear from the foregoing that the offence of indecent assault remains but as and from the 21st January, 1991 it became known as sexual assault. It still remains a common law offence for which punishment is provided by statute.”

“As indecent assault involves the use of unlawful force, threatened or perpetrated against another person, it was an offence at common law, and in my opinion, it was permissible for parliament to prescribe a special range of penalties for assault, or assault and battery, of this particular kind without having to spell out the creation of a new statutory felony or misdemeanour in the process.”

“2(1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.

(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.

“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 person consented to the act alleged to constitute such indecent assault.”

“In treating the legislative ancestry (to adopt the expression of Geoghegan J. in O’Brien v O’Halloran [2001] 1 IR 556 at 562) earlier in this judgment, it is clear that in expressly omitting and expressly repealing the defence that was at one time available under section 5 of the Act of 1885, the Oireachtas clearly addressed the issue of the balance to be struck between the general interest of the community and the protection of the rights of the individual in deliberately deleting a defence, and it is compellingly clear that it is no longer available as a defence.”

2. It turned on the construction of s.55 of the Offences Against the State Act, 1861.

4. It is a decision of 1875 and, while antiquity does not necessarily imply infirmity, it does in this case.
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.

(a) For the reasons given I would allow the appeal of the applicant C. C. on the interpretation of s.1 (1) of the Act of 1935 and grant an appropriate declaration to the effect that reasonable belief as to the age of the complainant, on the part of the applicant, is a defence open to the applicant.
(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.

“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.”

“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.”

“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.”

“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.”

“Mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary”.

“It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly’ is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say ‘must have been’ because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.”

“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.”

“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:.

‘It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind’.”

“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 these circumstances the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implications. The common law presumes that, unless Parliament has indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence.

“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 …”