In summer 2001 a girl came to know a group of three young men, one of whom was 18½. She would be 14 in September of that year. We do not know the ages of the other two young men, but it would appear from later judicial review proceedings that they were over 18.
The first of the youths, CC, had sex with the girl on July 20th, and continued to do so up to August 16th. On August 10th the second youth, JM, had sex with her and on August 16th a third, PG, did so. From the evidence to the High Court, it appears they were together. All were later charged in connection with these actions.
CC was charged with unlawful carnal knowledge of the girl under Section 1 (1) of the 1935 Criminal Law (Amendment) Act. He admitted to sexual intercourse, but claimed it was consensual and the girl said she was 16.
JM was accused of unlawful carnal knowledge and of sexual assault under the 1993 Criminal Law (Sexual Offences) Act. He too claimed she consented and said he thought she was 17.
PG was charged with sexual assault of the same girl under the 1990 Criminal Law (Rape) (Amendment) Act. He claimed she consented and told him she was 17 years old.
All three were sent forward for trial in June 2002, and the cases were listed for July. In November they sought leave for judicial review proceedings which came before Mr Justice Smyth in the High Court early in 2004. While there were many grounds for the proceedings, they centred on the claim that the 1935 Act, and subsequent Acts dealing with sexual assault on girls, did not allow for a defence of mistake or reasonable belief that the girl was older than she was.
The judge rejected their applications, and found they had been aware her age was an issue. "It seems there was an advertance as to the age of the complainant/victim and the recklessness . . . of the possibility and the taking of the risk in my judgment is an intent that constitutes the necessary mens rea for the offences," he said.
CC and PG appealed to the Supreme Court. It is not known what happened to JM. The case came before the Supreme Court last July, and four of the five judges who sat gave written judgments. The majority rejected CC's appeal, though Ms Justice Susan Denham allowed the appeal of both young men on the grounds that Section 1 (1) of the 1935 Act should be interpreted to allow for the introduction of a defence of reasonable belief concerning the victim's age. Two other judges allowed PG's appeal. The court did not rule on the constitutionality of the 1935 Act.
In her minority judgment Ms Justice Denham found there was a presumption in common law that a criminal intent was required in criminal offences, and that it was not necessary for this to be stated explicitly.
While she acknowledged that it had previously been thought this did not apply to offences concerning girls, where strict liability applied and there was no room for any defence of mistake, she said this was founded on bad law rooted in a 19th century English case that should no longer apply.
Three of the judges said further arguments should be heard on the constitutional question. These arguments were put to the Supreme Court earlier this year, and Mr Justice Adrian Hardiman handed down that judgment last week.
In that case there was only one applicant, CC. The case now seemed to involve consensual sex between two teenagers. The imbalance in power that would have existed between three boys in their late teens and a girl under 14 was no longer apparent in the judgment.
It was this judgment that held that Section 1 (1) of the 1935 Act was unconstitutional, that it did not survive the enactment of the Constitution in 1937, because it did not explicitly allow for a defence of reasonable mistake about the girl's age.