IESC 33
THE SUPREME COURT
IRELAND, THE ATTORNEY GENERAL and THE DIRECTOR OF PUBLIC PROSECUTIONS,
JUDGMENT of Mr. Justice Hardiman delivered on the 23rd day of May, 2006.
1. C.C. (“the applicant”) who was born on the 25th December, 1982, was charged with four offences contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935. These offences were said to have occurred between the 20th July, 2001, and the 16th August, 2001 in respect of the same person. He made full statements to the gardaí in which he admitted having consensual intercourse with the person named in the charges. He said that she told him that she was sixteen years of age and herself initiated the contact between them after their first encounter, when no intercourse had occurred.
2. The terms of s.1(1) of the 1935 Act are as follows:
3. The distinction between felonies and other crimes has been abolished by s.3(1) of the Criminal Law Act, 1997. Moreover, by virtue of the Sex Offenders Act, 2001, the applicant, if convicted, will be registered as a sex offender and subjected to certain restrictions and obligations which, on the basis of the judgment of the Court of Criminal Appeal in DPP v. NY  4 IR 309, would appear to be punitive in nature. But the degree to which this is punitive will vary with the circumstances. In a very bad case with a defendant who has no interest in gainful employment, its punitive effect may be almost nil. On the other hand, a first offender with a responsible job may have his or her career and reputation destroyed by enrolment on the register following a relatively minor offence.
“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.”
4. The applicant sought relief by way of judicial review. As the case ran, his claims were for:
5. On the 12th July, 2005, this Court held, for the reasons set out in the judgments of Geoghegan J. and Fennelly J., that, in the words of the latter judge, “The Oireachtas as a matter of deliberate policy, deprived accused persons of the defence of mistakes as to age made on reasonable grounds” by the enactment of s.1(1) of the Act of 1935 in respect of an offence contrary to that subsection. The Court deferred the hearing of the applicant’s constitutional claim and ordered further submissions in that regard. The point has now been fully argued.
(a) A declaration that a reasonable belief on the part of a defendant that the alleged injured party was over the statutory age constituted a defence to a charge under s.1(1) of the Act of 1935.
(b) A declaration, in the alternative, that the exclusion of the defence of mistake as to age is repugnant to the Constitution and that if the offence created by s.1(1) of the Act of 1935 is an offence of strict liability, that provision is inconsistent with the Constitution.
Submissions of counsel.
6. On behalf of the applicant, Ms. Deirdre Murphy S.C. submitted that it was inconsistent with the applicant’s right to a trial in due course of law as enshrined in Article 38 of the Constitution (and as guaranteed by Article 6 of the European Convention on Human Rights) to deprive him of the defence of mistake, or mistake on reasonable grounds. That regime, she said, brought about a situation where no “guilty mind” or mental guilt was required and no defence at all could be proffered once, as here, the fact of intercourse was admitted. Putting this another way she said that the Oireachtas cannot constitutionally enact a law which is capable of punishing the morally innocent with a long period of imprisonment. Such a regime, she said, constituted a failure to vindicate in law the applicant’s personal rights enshrined in Article 40.3.1 and 2 and Article 40.4 of the Constitution.
7. It is fair to say that the thrust of Ms. Murphy’s argument was based on the important general propositions just mentioned. She also complained of discrimination on grounds of sex arising from the fact that where two persons engaged in consensual sexual intercourse only the male appears to be guilty of a criminal offence.
8. Ms. Murphy pointed out that as the law stands, a defendant, possibly a young man like the present applicant, will find himself without a defence even if he were positively convinced by the girl herself that she was over the statutory age, and had objectively reasonable grounds for believing it.
9. Ms. Murphy relied on a considerable volume of material, Irish, English, American and Canadian in support of the proposition that, in the words of Wright J. in the well known case of Sherras v. De Rutzen  1 QB 918 at 921:
10. Ms. Murphy’s primary reliance, in terms of authority, was on the judgment of this Court in In the Matter of Article 26 of the Constitution and In the Matter of the Employment Equality Bill, 1996  2 IR 321. The measure in question there criminalised “discrimination” as defined in the Act and also criminalised “victimisation” as defined. It went on to provide in s.15:
“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence”.
11. The judgment of this Court was pronounced by Hamilton C.J. who said, at page 373:
“Anything done by a person in the course of his or her employment shall be treated for the purposes of this Act as done also by that person’s employer whether or not it was done with the employer’s knowledge or approval.” (Emphasis added).
12. The offence created by the Employment Equality Bill was of course a vicarious one. But there does not appear to be a distinction of substance between being severely penalised for an act of which one was ignorant on the one hand, and being even more severely penalised for an act of which one was aware but had no reason to think was unlawful. This topic is further discussed below.
“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 Sections seeks to deal.
In the course of his speech in Sweet v. Parsley  AC 132 at 150 Reid L.J. 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 the provisions of Article 40 s.1 of the Constitution.”
13. Ms. Murphy S.C. did not suggest that it was impermissible for the Oireachtas to create an offence of strict, or even of absolute, liability in all circumstances. Indeed, she positively conceded that in appropriate circumstances such an offence could indeed be created. She referred to Maguire v. Shannon Regional Fisheries Board  3 IR 580. In that case Lynch J. applied Sherras v. De Rutzen cited above and held that, prima facie every offence whether a Common Law offence or a statutory one, required mens rea. He held that this presumption of mens rea could in certain circumstances be displaced by clear statutory words in favour of strict liability. Ms. Murphy submitted, however, that the learned judge had limited to three the types of case which could be strictly criminalised in this way viz:
14. The learned judge went on to hold that the Section in question in that case “is regulatory in essence and does not create an offence which would be regarded as of a truly criminal character.” That could not be said of the offence in question here.
(1) Acts which are not criminal in any real sense but which in the public interest are prohibited under a penalty;
(2) Some, and perhaps all, public nuisances and
(3) Cases which, although criminal in form are really only a method of enforcing a civil entitlement.
15. Ms. Murphy also relied on the well known Canadian case of Regina v. City of Sault Sainte Marie (1978) 85 DLR 161. This, too, was a water pollution case and the Court upheld the validity of a strict liability statute. Giving the judgment of the Court, however, Dickson J. in a relatively short but lucid passage contrasted regulatory offences with offences of a truly criminal character. Speaking of the former he said:
16. The case just discussed is learnedly analysed in the dissenting judgment of Keane J. (as he then was) in Shannon Regional Fisheries Board v. Cavan County Council  3 IR 267. The learned judge cites an eloquent passage from Dickson J. in which he queries the justification for absolute offences and emphasises their potential to lead to “cynicism and disrespect for the law”. In a subsequent passage Dickson J. argued for the tripartite division of offences into those requiring mens rea, those of absolute liability “where it is not open to the accused to exculpate himself by showing that he was free of fault”, and an intermediate kind in which it was unnecessary for the prosecution to prove mens rea but open to the defendant to avoid liability by proving that he took all reasonable care:
“Although enforced as penal laws through the utilisation of the machinery of the criminal law, the offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application. They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like. In this appeal we are concerned with pollution.
The doctrine of the guilty mind expressed in terms of intention or recklessness, but not negligence, is at the foundation of the law of crimes. In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea: R. v. Prince (1875) LR 2 CCR 154: R. v. Tolson(1889) 23 QBD 168. Blackstone made the point over 200 years ago in words still apt:
‘To constitute a crime against human laws, there must be, first, a vicious will; and secondly, an unlawful act consequent upon such vicious will.’ I would emphasise at the outset that nothing in the discussion which follows is intended to dilute or erode that basic principle.”
17. Offences of this sort, in Dickson J’s taxonomy, would be offences of strict liability.
“The defence would be available if the accused reasonably believed in a mistaken set of facts which if true would render the act or omission innocent or if he took all reasonable steps to avoid the particular event”.
18. The relevance of this to the present case is, of course, that the Canadian Supreme Court regarded absolute liability with disfavour even in the case of many regulatory offences.
19. Ms. Murphy relied on two other transatlantic cases. The first of these was People v. Hernandez  39 Cal Rep 361, a case in which, departing from previous decisions, the Supreme Court of California had struck down a statute which criminalised on an absolute basis consensual intercourse with a woman under the age of eighteen. The other case cited was both more recent and more impressive as a piece of jurisprudence. This was the Canadian case of Hess and Nguyen v. The Queen  2 SCR 906. In this case the Supreme Court of Canada struck down s.146(1) of the Criminal Code of Canada which had provided:
20. The effect of this was baldly stated by one of the two dissenting judges, McLachlin J. as follows:
“Every male person who had sexual intercourse with a female person who is under the age of fourteen years, whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life”.
21. Ms. Murphy relied on the decision of the majority, delivered by Wilson J. Having cited a good deal of Canadian authority the learned judge said that it was:
“A person who is mentally innocent of the offence – who has no mens rea with respect to an essential element of the offence – may be convicted and sent to prison”.
22. Wilson J. went on to review the academic authorities. She concluded:
“…particularly important to reiterate that long before the Charter was enacted our system of law had a profound commitment to the principle that the innocent should not be punished. As Dickson J. (as he then was) explained ‘There rests now at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected to punishment unless the commission of the crime was voluntarily directed by a willing mind”.
23. Canadian authorities have, of course, a particular resonance by comparison with British ones since, like us, the Canadian jurisdiction does not attribute unqualified supremacy to Parliament. The judgments therefore tend to discuss the issue in terms of fundamental rights rather than in terms of statutory construction, as many of the English decisions necessarily do.
“Our commitment to the principle that those who did not intend to commit harm and who took all reasonable precautions to ensure that they did not commit an offence should not be imprisoned stems from an acute awareness that to imprison a mentally innocent person is to inflict a grave injury on that person’s dignity and sense of worth. Where that person’s beliefs and his actions leading up to the commission of the prohibited act are treated as completely irrelevant in the face of the State’s pronouncement that he must automatically incarcerated for having done the prohibited act, that person is treated as little more than a means to an end.”
Submissions on behalf of the respondent.
24. On behalf of the respondent Mr. Feichin McDonagh S.C. commenced his submissions, both written and oral, with the proposition that “What is at issue in these proceedings is not whether s.1(1) of the Act of 1935 is no longer of any effect”. He referred to Article 50.1 of the Constitution:
25. On this basis he said that, even if the applicant were otherwise successful, the Court should not grant an order restraining the prosecution of the applicant or an order declaring s.1(1) to have ceased to have any force or effect following the adoption of the Constitution in 1937. Instead, said Mr. McDonagh, the appropriate order would be that s.1(1) ceased to have force and effect to the extent that it precluded an accused from advancing a defence of reasonable mistake as to the age of the victim.
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Eireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas”.
26. By way of reply to Ms. Murphy’s strongest submission, that based on the Employment Equality Bill case, Mr. McDonagh sought to distinguish it on the basis that an employer defendant under the proposed s.15 of that Bill “needn’t have known that anything had happened”, in other words might be unaware of the actus reus itself. This, he said, distinguished it from a case where the defendant would of course have known that consensual intercourse had taken place. This distinction was not further elaborated upon, and neither was the Employment Equality Bill case further discussed.
27. Mr. McDonagh placed considerable emphasis on the dissenting judgment of McLachlin J. in the Supreme Court of Canada in R. v. Hess and R. v. Nguyen  2 SCR 906. This was the case which struck down a provision very similar to s.1(1) of the 1935 Act.
28. He pointed out that Canada had an established jurisprudence, in cases like Re British Columbia Motor Vehicle Act  2 SCR 486 and R. v. Vaillancourt  2 SCR 636 which was extremely distrustful of offences of absolute liability and appeared wholly to discountenance them in any case where there was a possibility of a jail sentence. There is no equivalent line of authority here. It was only this line of authority he said, that led the majority to the view that the Canadian statutory rape statute was contrary to the Canadian Charter of Rights. He submitted, however, that the dissenting judgment of McLachlin J. was to be preferred and emphasised her “balancing” approach which postulated a point:
29. Additionally, counsel at one time suggested that a requirement of mens rea for serious criminal offences was not in fact established in Irish law. He discussed the offence of dangerous driving causing death, which carries a maximum sentence of ten years imprisonment, and submitted that in that instance “one can be convicted while being totally blameless”. This was because, for example, “A faulty brake cable could involve you in this”. This argument may have arisen ex improviso: certainly, no authority other than the words of the statute (s.53 of the Road Traffic Act, 1961, as amended) were cited in support of this proposition. It seemed disconnected from the rest of the Director’s argument.
“ where we must weigh the impact of the infringements of the accused’s constitutional right against the importance of what is achieved by the legislation although one may postulate the case of a morally blameless person being convicted under [the Canadian Section], however rare that may be, one must also remember that all a person need do to avoid the risk of this happening is to refrain from having sex with girls of less than adult age unless he knows for certain that they are over fourteen”.
30. Mr. McDonagh also urged that in assessing the seriousness of the offence the Court should not be unduly influenced by the maximum sentence but should consider the likely sentence. He further submitted that the provisions of the Sex Offenders Act could not be taken into account in order to impugn the pre-existing 1935 Act. He declined to make any submission on the question of whether the female party to an offence contrary to s.1(1) committed any offence herself.
31. Apart from this, the bulk of the respondent’s submissions relied on a number of American cases asserting the power of States to follow their individual courses by, for example, preventing the jury from considering voluntary intoxication when considering an accused’s state of mind. He sought to distinguish the judgment of the Supreme Court of California in People v. Hernandez  39 Cal Rep 361 on its facts and to rely on other United States decisions tending to support provisions analogous to s.1(1) of the 1935 Act. He referred in particular to Wisconsin v. Jedowski (2004) W 168, a decision of the Supreme Court of Wisconsin of the 10th June, 2004;
“It is a fundamental principle of law that an actor should not be convicted of a crime if he has no reason to believe that the act he committed was a crime or that it was wrongful. An intent requirement was the general rule of common law. Nevertheless, strict liability crimes, that is crimes defined without any culpable state of mind are known at law. In general when strict liability is imposed the actor is deemed to have had sufficient notice concerning the risk of penal sanction inherent in the proscribed activity that it is not unjust to impose criminal liability without the necessity of proving moral culpability. The existence and content of a criminal prohibition in these cases are not hidden: the defendant is warned to steer well clear of the core of the offence (as in the statutory rape cases). Adults are well aware of the strict liability aspect of statutory rape laws. The legislature has broad powers to promote the public welfare and to create criminal offences and impose punishment. A State legislature is free to define a criminal offence and a State may bar consideration of a particular defence so long as the result does not offend some principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental.”
32. Firstly, it is necessary to restate the absolute nature of the offence in question here. It affords absolutely no defence once the actus reus is established, no matter how extreme the circumstances. Rather than hypothesise such circumstances one might take the facts actually found in the well known case of R. v. Prince  LR 2 CCR. This case is fully discussed in the judgment of Fennelly J. in the earlier aspect of this applicant’s case. There, the jury found that the girl in question appeared to be “very much” over the relevant age of sixteen, had told the defendant, believably, that she was eighteen, was genuinely believed by the defendant to be eighteen, and that this belief was reasonable on his part. But there was no defence. So absolute an offence is rare, even by comparison with other offences which address serious social problems, and offences that are the subject of serious societal condemnation. For example, the relatively recent child pornography legislation deals with the question of age by a system of presumptions but does not exclude their rebuttal. There is no doubt, therefore (as McLachlin J. in her dissenting judgment in Hess and Nguyen said), that this is explicitly a provision capable of criminalising, and of jailing, the mentally blameless. And the facts of Prince make clear how fatuous is any assumption that a person can always know “for certain” the age of another.
33. Secondly, I would reject the Director’s submission that in characterising the offence one should take no account, or little account, of the maximum sentence but should instead act on the belief that those who are truly blameless will suffer only a conviction and a light penalty. This approach is simply at variance with that of this Court in the Employment Equality Bill Reference, cited above. The extract given earlier in this judgment from the judgment of the Court in that case shows that it proceeded on the basis 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”. At the end of the portion of the judgment dealing with the constitutionality of s.15 of the Bill it is said:
34. A similar contention to that of the Director in this case was made in the Hess and Nguyen cases, cited above. It found favour with McLachlin J. Speaking for the majority, however, Wilson J. said;
“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”. (Emphasis added)
35. In the case of the offence now under consideration, one must also remark that mere conviction of the offence, apart from any sentence, carries a social stigma. Moreover, this stigma is compounded by the consequential enrolment of the person convicted on the Sex Offender’s Register. It seems impossible to exclude the fact of such registration from the factors to be considered in this case. In DPP v. Redmond  3 IR 390 the Court of Criminal Appeal held that the totality of the punitive consequences of an offence had to be considered. Enrolment on this register is a very formalised stigma. It would be a matter of intense shame to any individual, and, unfortunately to his family. It is something a person would wish to conceal even after many years. There have been tabloid newspaper demands to have the contents of the register published, and persons on the equivalent register in the United Kingdom have been physically attacked. So, unfortunately, have persons erroneously thought to be sexual offenders. Enrolment on the register would be incompatible with admission to various professions and occupations, such as that of school teacher. One can be enrolled on the register only as a result of a conviction. In all the circumstances I have no hesitation in regarding compulsory enrolment on the register as a punitive consequence of conviction.
“Justice McLachlin recognises that there is something troubling about subjecting someone who has made a genuine mistake of fact to life imprisonment. She feels that mental innocence may be taken into account when sentencing the accused. It seems to me that her discomfort with the idea of incarcerating the mentally innocent for as extended a period as the mentally guilty is entirely natural. But in my view, rather than work in favour of [the impugned Section], this serves to highlight the weaknesses of arguments upholding the linking of life imprisonment to an absolute liability offence. Indeed, it seems to me that my colleague implicitly accepts that there should be some correlation between moral blame and punishment.
But one cannot leave questions of mental innocence to the sentencing process. The legislature must take into account the implications of the distinction between the mentally innocent and the mentally guilty when drafting legislation. Any flaws in the provision cannot be justified by arguments that ask us to have faith that the prosecutor and judge will take these flaws into account when deciding how the accused will be punished. Reliance on prosecutorial or judicial discretion to mitigate the harshness of an unjust law will provide little comfort to the mentally innocent and cannot, in my view, serve to justify a fundamentally unsound provision”.
36. Thirdly, I cannot accept the distinction sought to be drawn between this statute and the Employment Equality Bill. It will be recalled that this distinction was based on the proposition that in the case of the latter measure the employer defendant “needn’t have known that anything had happened”. This is factually true but I believe it to be a distinction without a difference. If a person has consensual intercourse with another whom he honestly and reasonably believes to be over the relevant age, he is not aware that anything unlawful has occurred. The essential similarity between the two measures is that a mentally innocent person is criminalised.
37. I turn now to consider the constitutional status of the offence created by s.1(1) of the Act of 1935.
38. In Mr. Thomas O’Malley’s book on Sexual Offences the learned author emphasises the legally unusual nature of this offence and indeed the offence created by the following Section of the Act of 1935. At page 97 he has this to say:
39. The learned author then goes on to examine the legal arguments for and against the constitutionality and desirability of the offence as statutorily constituted.
“Despite being apparently discriminatory against males, Sections 1 and 2 of the Act of 1935 have never been challenged as being inconsistent with the Constitution. The male is guilty even if the female clearly consented and there is no defence of genuine mistake as to age, a rule that may seem at variance with the generally subjective nature of criminal liability in Ireland as exemplified by decisions on provocation and self defence. Although there have been many prosecutions in recent years, most of the important litigation on these Sections took place between the 1940s and the early 1960s when there was little awareness of the rights creating potential of the Constitution.”
40. Mr. O’Malley also draws attention to the U.S. Supreme Court case of Michael M. v. Superior Court of Sonoma County (1981) 450 U.S. 464. This case concerned the constitutionality of a section of the California code broadly similar in effect to s.1 of the Irish Act of 1935, though the age of consent was set at 18 years. By a majority of five to four the Court upheld the constitutionality of the Section. The opinion of the majority was delivered by Rehnquist J. (as he then was) who emphasised the legitimate interest of the State in preventing teenage pregnancies as justifying the element of discrimination involved in the offence. Dissenting opinions were delivered by Brennan J. (with whom White and Marshall JJ agreed) and Stevens J. Brennan J. said that statutory rapes laws were enacted “on the premise that young women, in contrast to young men, were to be deemed legally incapable of consenting to an act of sexual intercourse”. Accordingly he viewed the challenged law as “initially designed to further these outmoded sexual stereo types, rather than to reduce the incidence of teenage pregnancies”. The narrowness of the majority tells its own tale of how fraught the issue has become from a constitutional point of view. This seems a case of higher authority than that of Wisconsin v. Jedowski, cited above.
41. The Section in question here does not attempt to balance two rights one against the other. The Section contains no balance: it wholly removes the mental element and expressly criminalises the mentally innocent. It need not necessarily have done so. As Ms. Murphy S.C. pointed out in argument it might have proceeded in quite another way for example by presumptions which, however strong, afforded scope for rebuttal. It might, indeed, have decided to proceed along the lines recommended by the Law Reform Commission in their 1990 Report on Child Sexual Abuse, discussed below. But the prohibition remains in the stark form in which it has been for the last 71 years.
42. It is clear that the Oireachtas, when it passed the Employment Equality Bill in 1996, took the view that criminal liability could be imposed in respect of an act of which the defendant neither knew nor approved. That measure, however, was referred by the President to this Court under the provisions of Article 26 of the Constitution. In its judgment the Court pointed out the most unusual features of the Bill and referred to the well known words of Lord Reid about “the public scandal of convicting on a serious charge persons who are in no way blameworthy”. The Court held that “The social policy of making the Act more effective does not, in the opinion of the Court justify the introduction of so radical a change to our criminal law”. It described the sanction proposed in the Bill – a fine of £15,000 and imprisonment of up to two years or both – as “potentially severe criminal sanctions”. This of course is true, but the sanctions cannot compare in severity with those available under the Section now in question.
43. In those circumstances, it appears difficult, a fortiori, to regard s.1(1)of the Act of 1935 as consistent with the Constitution. Indeed, the regime proposed by the Employment Equality Bill, though it imposed criminal liability for an act of which the employer neither knew nor approved, did provide for what might be regarded as a due diligence defence. Section 15(3) of the Bill provided;
44. There is nothing of that sort available in the instant case.
“In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act; or (b) from doing in the course of his or her employment acts of that description.”
45. On the existing jurisprudence and in particular the judgment of the Canadian Supreme Court in R. v. City of Sault Sainte Marie, cited above and the dissenting judgment of Keane J. (as he then was) in Shannon Regional Fisheries Board v. Cavan County Council, cited above, it might appear that a defence of due diligence would suffice to justify a regulatory offence of strict liability as Dickson J. used that term. Whether it would suffice for a true criminal offence carrying a sentence of life imprisonment is not a matter which arises for decision in this case. There is simply no such defence available here. No form of due diligence can give rise to a defence to a charge under s.1(1), even where the defendant has been positively and convincingly misled, perhaps by the alleged victim herself.
46. It appears to us that to criminalise in a serious way a person who is mentally innocent is indeed “to inflict a grave injury on that person’s dignity and sense of worth” and to treat him as “little more than a means to an end”, in the words of Wilson J. quoted earlier in this judgment. It appears to us that this, in turn, constitutes a failure by the State in its laws to respect, defend and vindicate the rights to liberty and to good name of the person so treated, contrary to the State’s obligations under Article 40 of the Constitution. These rights seem fundamental in the sense of that word as used in Jedowski; cited above
47. The end to which so severe a sanction, (imposed without regard to mental guilt) is the means, is presumably the protection of young girls from engaging in consensual sexual intercourse. I pause to say that this is, of course, a legitimate end to be pursued by appropriate means. In the English case of B (A Minor) v. DPP  2AC 428, Lord Nicholls said:
48. In the same case Lord Steyn rejected the proposition that statutory rape legislation is immune from the great principle expounded in Sweet v. Parsley, cited above. He said:
“The purpose of the Section is, of course, to protect children. An age ingredient was therefore an essential ingredient of the offence. This factor of itself does not assist greatly. Without more, this does not lead to the conclusion that liability was intended to be strict so far as the age element is concerned, so that the offence is committed irrespective of the alleged offender’s belief about the age of the victim and irrespective of how the offender came to his belief.
Nor can I attach much respect to a fear that it may be difficult sometimes for the prosecution to prove that the defendant knew the child was under fourteen or was recklessly indifferent about the child’s age. A well known passage from a judgment of that great jurist Sir Owen Dickson in Thomas v. The King (1937) 59 CLR 279, 309 bears repetition:
‘The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a distrust of the Tribunal of Fact – the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code’ ”.
49. The English decisions, of course, were addressing matters of construction and not of compatibility with a Constitution. But they, like this Court in the Employment Equality Bill case, and like the Canadian Supreme Court in the cases cited, speak powerfully to the central importance of a requirement for mental guilt before conviction of a serious criminal offence, and the central position of that value in a civilised system of justice.
“In any event, I would reject the contention that there is a special rule of construction in respect of age based sexual offences which is untouched by the presumption as explained in Sweet v. Parsley.”
50. Speaking of such a system in a constitutional context, O’Higgins C.J. in The State (Healy) v. Donoghue  IR 325 said:
51. I cannot regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual or as meeting the obligation imposed on the State by Article 40.3.1 of the Constitution:
“In the first place the concept of justice, which is specifically referred to in the preamble in relation to the freedom and dignity of the individual appears again in the provisions of Article 34 which deals with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness and fair procedures, but also regard to the dignity of the individual. No court under the Constitution has jurisdiction to act contrary to justice.”
The Dangerous Driving Analogy.
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life of a person’s good name and property rights of every citizen”.
52. Nor can I agree with the Director’s submission that the law provides another example, in the form of s.53 of the Road Traffic Act, 1961 as amended, of a provision whereby a “blameless person” may be convicted of a serious offence in the furtherance of some desirable social end. It may be recalled that, in supporting this submission the Director argued that, pursuant to that Section “One can be convicted while being totally blameless a faulty brake cable could involve you in this”.
53. This surprising contention has no support in road traffic law. On the contrary as long ago as R. v. Spurge  2 QB 205 it was held that if the driver is deprived of control due to a mechanical defect which is not his fault or which he could not reasonably have safeguarded against, that is a good defence. Section 54 of the Road Traffic Act, 1961, as amended, and the cases cited in Mr. James Woods and Mr. Robert Pierce’s books on Traffic Law all support that elementary proposition. It is unnecessary to discuss the topic further.
A dictum of Walsh J.
54. I do not believe that the references to the Act of 1935 contained in the judgment of Walsh J. in People v. Murray  IR 360 at 382, 383 are of any relevance to the present case. They are incidental to the issue in that case, which was whether the offence of capital murder, created by s.1(1)(b) of the Criminal Justice Act, 1964, required proof of mens rea. The Supreme Court dealt with the case by way of appeal from the Court of Criminal Appeal pursuant to a certificate under s.29 of the Courts of Justice Act, 1924. Accordingly no question of the constitutionality of the Section of the 1935 Act in question here arose in that case. Murray focussed on a question of statutory construction. The statements as to the effect of the provisions of the Act of 1935 contained in the judgment of Walsh J. seem (if I may respectfully say so) to be correct, as do his observations as to the policy underlying the Act. But his findings go no further than the conclusion that “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”.
Utilitarian defence of absolute liability.
55. It follows from what has been said above that it does not appear that this stark measure can easily be viewed as consistent with the Constitution. But before reaching a conclusion to that effect it is appropriate to consider the utilitarian justification of an equivalent measure offered by McLachlin J. in the Supreme Court of Canada, already referred to above, and relied upon by the Director in this case. Though a dissent, it is the frankest justification available from any source for so downright a measure. Before addressing the judgment, one must first make two observations. Firstly, the judgment of McLachlin J. turns in part on the fact that s.147 of the Act (the impugned Section was 146(1) ) required that in such cases the accused must be older than the complainant. Not even this qualifying factor is present in the case of the 1935 Act. Secondly, it appears from the judgment of McLachlin J. that, prior to the litigation, the Canadian Parliament had repealed s.146(1) “and adopted a provision allowing the defence of due diligence”, as McLachlin J. put it. Remarkably, however, she did not view the fact that this had occurred as establishing “that the objectives of s.146(1) can be accomplished with a lesser infringement of the accused’s rights. An equally viable explanation is that Parliament has chosen, for whatever reasons, to reduce its objective”. As that passage makes clear, McLachlin J’s approach was based on a balancing exercise. This is an exercise not infrequently required of judges in an appropriate case, but it can also be employed by a judge who is unwilling to take a particular right as seriously as it deserves to be taken. In Hess and Nguyen, however, McLachlin J. did find that the provision contravened two Articles of the Canadian Charter, Article 7 relating to liberty and security of the person and Article 15 relating to equal treatment and the right to equal protection and equal benefit of the law. She held however that the provisions were nonetheless saved by the terms of Article 1 which guaranteed the relevant rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
56. McLachlin J. was straightforward in her analysis of the effect of the Section:
57. McLachlin J’s justification of this is wholly utilitarian. She does not deny the injustice: she embraces it on the basis that its operation tends the greater good. This works, according to McLachlin J. in the following way:
“a person who is mentally innocent of the offence – who has no mens rea with respect to an essential element of the offence – may be convicted and sent to prison… An accused can be convicted under s.146(1) although he lacks a guilty mind. He clearly must intend to have intercourse. But that is not an offence. Without wishing to commit the crime or intending to commit the crime of having intercourse with a girl of less than fourteen years, an accused may stand convicted”.
58. Quite a number of observations can be made about this passage. First, it clearly confuses the terms “strict liability” and “absolute liability”, a not insignificant error in the context of this offence and in the context of the judgment of Dickson J. in the City of Sault Sainte Marie case, cited above. Secondly, it wholly oversimplifies the position which would obtain were a “reasonable belief” defence available by saying (ambiguously) “a man could escape conviction by saying that he believed the girl to be older than fourteen”. In my view, things are not quite that simple.
“Is there a rational connection between the imposition of strict liability and deterrence of men from intercourse with young girls? In my view, there is. Were the defence of reasonable belief available, a man could escape conviction simply by saying that he believed the girl to be older than fourteen. The defence of due diligence would require him to make enquiries to avoid conviction but still leaves open the possibility that the girl may lie as to her age or even produce false identification, a not uncommon practise in the world of juvenile prostitution.
The imposition of strict liability eliminates these defences. In doing so, it effectively puts men who are contemplating intercourse with a girl who might be under fourteen years of age on guard. They know that if they have intercourse without being certain of the girl’s age, they run the risk of conviction, and many conclude that they will not take the chance. That wisdom forms part of the substratum of consciousness with which young men grow up, as exemplified by terms such as ‘jailbait’. There can be no question but that the imposition of absolute liability in s.146(1) has an additional deterrent effect.
the only way of avoiding or diminishing the infringement of the accused’s right not to be convicted in the absence of a guilty mind would be by introducing a defence of due diligence or reasonable belief. Neither of these alternatives provides as effective a deterrent as the removal of all defences based on the accused’s lack of knowledge of the victim’s age.
the elimination of mens rea from s.146(1) of the Criminal Code may be viewed as less offensive than, for example, the elimination of mens rea from the offence of murder. The age of a young girl with whom one is contemplating intercourse is unlikely to be a matter to which a man fails entirely to address his attention… a girl of thirteen may appear to be older, but there are limits to how much older.
although one may postulate the case of a morally blameless person being convicted under s.146(1), however rare that may be, one must also remember that all that a person need do to avoid the risk of this happening is to refrain from having sex with girls of less than adult age unless he knows for certain that they are over fourteen. Viewed thus, the infringement of the freedom imposed by s.146(1) of the Criminal Code, does not appear unduly draconian…”.
59. On the essential point however, McLachlin J. does not conceal the logical conclusion of her position: she sees nothing wrong in convicting a person, however young, who specifically contemplates the age of the girl and who is freely shown by her documentation appearing to prove that she is of legal age. Even that, in her view, does not exempt him from guilt of a crime which carries a sentence of up to life imprisonment.
60. McLachlin J. is not insensitive to the fact that the regime for which she contends gives rise to constitutional and indeed to moral difficulties. Elsewhere in the judgment she says “It has long been acknowledged that the imposition of an absolute liability and the inequality inherent in the offence render it problematic”. Nevertheless she justifies it on a basis which is crudely utilitarian. It may be unjust – indeed it is unjust – but it is constitutionally allowable because it has a deterrent effect and is now “part of the substratum of consciousness with which young men grow up, as exemplified by terms such as ‘jailbait’.” True, one might lessen the injustice by providing a “reasonable belief” or a “due diligence” defence but by definition neither would provide “as effective a deterrent as the removal of all defences”.
61. This, it seems, is a classic utilitarian argument. It permits the imposition of an admitted injustice on a discrete class of person on the sole justification of effectiveness. The measure, or its predecessors, is thought to be effective because its in terrorem effect has been so successful that it has entered “the substratum of consciousness with which young men grow up”.
62. The psychology of this is debatable. Certainly it is also wholly unsupported by evidence, as far as one can tell in the Canadian case and certainly in this case. One should be under no illusion as to what McLachlin J. is supporting: the complete objectification of a whole group of a community – young men – and a disregard for their human and constitutional rights, on the basis of an unevidenced speculation about the contents of the “substratum” of their consciousness.
63. This analysis might equally apply to a statute which unlike ours equally (or in the alternative) criminalised the female party to consensual intercourse. No doubt it is wholly coincidental that the discrete group the substratum of whose consciousness is discussed is restricted to members of one gender. Quite apart, however, from the lack of evidence for the argument based on the substratum of the consciousness, and quite apart from the obvious element of gender based discrimination in the legislation, the provision is objectionable because under it, to use McLachlin J’s summary of the equivalent Canadian legislation, “a person who is mentally innocent of the offence – who has no mens rea with a respect to an essential element of the offence – may be convicted and sent to prison”. This effect cannot be reconciled with the Constitution as the judgment of this Court in the Employment Equality Bill case shows. The right of an accused not to be convicted of a true criminal offence in the absence of mens rea is not qualified or limited by the 1935 Act in the interest of some other right; it is wholly abrogated. It may instructive to develop an analogy suggested by a portion of the Director’s argument, summarised above.
64. In this case, the DPP at one time submitted that a blameless person could be found guilty of dangerous driving causing death which carries a sentence of up to 10 years imprisonment. This submission is groundless in law, but may be suggestive as a hypothesis. If the law were changed so that an entirely blameless person could in law be convicted of the offence and sentenced to up to ten years imprisonment, this would plainly amount to a gross injustice. But when it became generally known no doubt many persons would cease to drive at all and others would drive with understandably exaggerated caution. Road accidents would almost certainly decline dramatically, thereby saving lives which, on a purely utilitarian analysis is an unanswerable argument. And the regime hypothesised by the Director would apply to everyone, not just members of one class or gender.
65. Despite all these arguments the suggested regime, applied to road traffic, would be objectionable to most people on the grounds of its manifest injustice. To jail perfectly respectable people on the basis of an event over which they had no control (they are, after all, “blameless”), is so complete a negation of their rights to liberty, due process, equality and respect for their human dignity that it cannot be contemplated no matter what the benefits. To put it another way, it is not a balancing of the blameless driver’s rights against those of the rest of society: it is a negation of those rights in the interest of a concept of social good. It fails the “interference with fundamental rights” test mentioned in Jedowski, above.
66. What, precisely, is the difference between the present measure and the dangerous driving hypothesis? At bottom it is this: one person’s rights would be negated because he took the risk of driving, while another person’s rights are negated because he took the risk of having sexual intercourse. I do not believe that a legally significant distinction can be drawn on that basis since the act of consensual intercourse is, like the act of driving, (assuming one is licensed and insured), prima facie lawful.
67. None of this, of course, is to deny that the State is perfectly entitled to take legitimate means, including those involving use of the criminal law, to discourage intercourse with very young girls. The Law Reform Commission, as long ago as 1990, addressed this issue and manifestly concluded that this could be done without the stark law presently in force. The commission recommended an overall reduction in the age of consent but more relevantly for present purposes recommended a defence of “genuine belief”, available to any person except a person in authority over a minor. It was further recommended that “the test for determining genuineness of belief should be subjective, but the jury is entitled to have regard to the presence or absence of reasonable grounds for such belief”. Moreover, for many years now – at least since Sweet v. Parsley in 1970, there has been ample reason to believe, or at least to apprehend, that a statute permitting conviction of a serious criminal offence without any requirement of mental or moral guilt was constitutionally vulnerable. A finding to that effect cannot reasonably be regarded as surprising.
68. As summarised above, the question of remedy was placed in the forefront of the respondent’s argument in this case. Mr. McDonagh strongly submitted that, having regard to the wording of Article 50.1 of the Constitution, any remedy should be couched in such terms as:
69. The emphasised phrase is, of course, taken from the early part of Article 50.1. Pre-constitution Free State laws such as this are continued in full force and effect “subject to this Constitution and to the extent to which they are not inconsistent therewith”.
“That Section 1(1) of the Act of 1935 ceased to have force and effect to the extent that it precluded an accused from advancing a defence of reasonable mistake”.
70. It is clear from what is said above that the Court is of the opinion that the form of absolute liability provided in s.1(1) of the 1935 Act is, in all the circumstances, inconsistent with the Constitution.
71. The difficulty with the form of limitation on a declaration to that effect that Mr. McDonagh proposes is that it appears to involve the Court in a process akin to legislation. Mr. McDonagh posits a “reasonable belief” defence on the basis that the existence of such an offence would save the Section from unconstitutionality. But so too would a defence which left the defendant’s knowledge of age to be proved by the prosecution as part of the mens rea of the offence, very likely a defence based on presumptions, and perhaps other forms of defence. It might, for example, be thought desirable to have a law on this subject along the lines proposed by the Law Reform Commission in 1990. But for present purposes it is sufficient to say that there is, obviously, more than one form of statutory rape provision which would pass constitutional muster, and it does not appear to be appropriate for the Court, as opposed to the legislature, to choose between them.
72. I would allow the appeal and grant a declaration that s.1(1) of the Criminal Law (Amendment Act, 1935), is inconsistent with the provisions of the Constitution.