Absolute statutory criminal liability, regardless of mental state, is unconstitutional.
C ( C) (applicant) v Ireland, The Attorney General and The Director of Public Prosecutions (respondent)
Criminal law - Statutory rape - Constitution - Judicial Review - Appeal - Right to a trial in due course of law - Mens rea - Defence - Mistake on reasonable grounds as to age - Personal rights - Whether s.1(1) of the Criminal Law Amendment Act 1935 (No. 6) is inconsistent with the Constitution - Whether a law capable of punishing the mentally innocent is constitutional - Bunreacht Na héireann, Aricles 38, 40.3.1, 40.3.2 and 40.4 - European Convention on Human Rights Act 2003 (No. 20) Article 6.
The Supreme Court (Chief Justice Murray, Mr Justice Hardiman, Mr Justice Geoghegan, Mr Justice Fennelly and Mr Justice McCracken); judgment delivered on May 23rd, 2006.
To criminalise in a serious way a person who is mentally innocent 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. In a civilised system of justice, the requirement of mental guilt is of central importance before conviction of a serious criminal offence. 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. The form of absolute liability provided in s.1(1) of the 1935 Act is, in all the circumstances, inconsistent with the Constitution.
The Supreme Court so held in allowing the appeal and granting a declaration that s.1(1) of the Criminal Law Amendment Act 1935 is inconsistent with the provisions of the Constitution.
Deirdre Murphy, SC and Marie Torrens, BL for the applicant; Feichin McDonagh, SC and Lisa Dempsey, BL for the respondent
Mr Justice Hardiman, delivering the judgment of the court, commenced by outlining the background to the case. The applicant was born on December 25th, 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 July 20th, 2001, and August 16th, 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 16 years of age and herself initiated the contact between them after their first encounter, when no intercourse had occurred.
The terms of s.(1) of the 1935 Act are as follows:
"Any person who unlawfully and carnally knows any girl under the age of 15 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."
The applicant sought relief by way of judicial review. His claims were for:
(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.
Mr Justice Hardiman stated that on July 12th 2005, the Supreme 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. Mr Justice Hardiman stated that the point had now been fully argued.
Mr Justice Hardiman turned then to submissions made by counsel on behalf of the applicant.
On behalf of the applicant it was 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, counsel 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 counsel said that the Oireachtas could not constitutionally enact a law which is capable of punishing the morally innocent with a long period of imprisonment. Such a regime constituted a failure to vindicate in law the applicant's personal rights as enshrined in Article 40.3.1 and 2 and Article 40.4 of the Constitution.
Counsel had also complained of discrimination on grounds of sex arising from the fact that where two persons engaged in consensual sexual intercourse only the male appeared to be guilty of a criminal offence.
Counsel relied on the proposition that, in the words of Wright J. in the well known case of Sherras v. De Rutzen 1 QB 918 at 921:
"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."
Counsel for the applicant relied primarily, in terms of authority, on the judgment of the Supreme Court in In the Matter of Article 26 of the Constitution and In the Matter of the Employment Equality Bill, 1996 2 IR 321. Mr Justice Hardiman stated that the measure in question there criminalised "discrimination" as defined in the Act and also criminalised "victimisation" as defined. In that case the court concluded 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."
Mr Justice Hardiman stated that the offence created by the Employment Equality Bill was of course a vicarious one. However, there did 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.
Mr Justice Hardiman stated that counsel for the applicant did not suggest that it was impermissible for the Oireachtas to create an offence of strict, or even of absolute, liability in all circumstances. Counsel conceded that in appropriate circumstances such an offence could indeed be created. However, these were limited to certain types of case which could not be said of the offence in question here.
Counsel relied on a number of cases, one of which 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 18. The other case 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:
"Every male person who had sexual intercourse with a female person who . . . is under the age of 14 years, whether or not he believes that she is 14 years of age or more, is guilty of an indictable offence and is liable to imprisonment for life."
Mr Justice Hardiman turned then to submissions made by counsel on behalf of the respondent.
Counsel for the respondent commenced his submissions with the proposition that "What is at issue in the 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:
"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."
On this basis it was submitted, 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, 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.
By way of reply to the applicant's strongest submission, that based on the Employment Equality Bill case, the respondent 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, it was submitted, distinguished it from a case where the defendant would of course have known that consensual intercourse had taken place.
Counsel for the respondent placed considerable emphasis on the dissenting judgment of McLachlin J. in the Supreme Court of Canada in Hess and Nguyen v. The Queen 2 SCR 906. He submitted that the dissenting judgment of McLachlin J. was to be preferred and emphasised her "balancing" approach.
Counsel for the respondent 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. It was 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.
In delivering the decision of the Supreme Court, Mr Justice Hardiman stated that firstly, it was necessary to restate the absolute nature of the offence in question. It afforded absolutely no defence once the actus reus is established, no matter how extreme the circumstances. There was no doubt that this was explicitly a provision capable of criminalising, and of jailing, the mentally blameless.
Mr Justice Hardiman rejected the respondent'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 was simply at variance with that of this court in the Employment Equality Bill Reference, cited above.
Mr Justice Hardiman stated that he could not 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". Mr Justice Hardiman stated this was factually true but he believed 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.
Mr Justice Hardiman then turned to consider the constitutional status of the offence created by s.1(1) of the Act of 1935.
Mr Justice Hardiman referred to Mr Thomas O'Malley's book on Sexual Offences in which the learned author emphasises the legally unusual nature of this offence and apparent discrimination between males and females. The author drew attention to the US Supreme Court case of Michael M. v. Superior Court of Sonoma County (1981) 450 U.S. 464. The 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. 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". Mr Justice Hardiman stated that the narrowness of the majority tells its own tale of how fraught the issue has become from a constitutional point of view.
Mr Justice Hardiman stated that the section in question here did not attempt to balance two rights one against the other. The section contained no balance: it wholly removed the mental element and expressly criminalised the mentally innocent. It need not necessarily have done so.
Mr Justice Hardiman stated that the sanctions challenged in the Employment Equality Bill in 1996 cannot compare in severity with those available under the section now in question. In those circumstances, it appeared 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. Mr Justice Hardiman stated that there is nothing of that sort available in the instant case.
Mr Justice Hardiman stated that it appeared to the Supreme Court 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 appeared that this, in turn, constituted 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.
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. Mr Justice Hardiman remarked that this was, of course, a legitimate end to be pursued by appropriate means.
Mr Justice Hardiman cited English case law and stated that they, like the Supreme Court in the Employment Equality Bill case, and like the Canadian Supreme Court, spoke 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.
Mr Justice Hardiman stated that he could not regard a provision which criminalised and exposed 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.
It followed from what has been said above that it did not appear that this stark measure can easily be viewed as consistent with the Constitution. Before reaching a conclusion to that effect Mr Justice Hardiman considered in detail the utilitarian justification of an equivalent measure offered by McLachlin J. in the Supreme Court of Canada, already referred to above. Mr Justice Hardiman concluded that the argument of McLachlin J was a classic utilitarian argument and found that this argument could not be reconciled with the Constitution as the judgment of the Supreme Court in the Employment Equality Bill case showed. 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.
Mr Justice Hardiman stated 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.
The court was 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.
Mr Justice Hardiman concluded by stating that he 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.
Chief Justice Murray, Mr Justice Geoghegan, Mr Justice Fennelly and Mr Justice McCracken joined with Mr Justice Hardiman in the judgment of the court.
Solicitors: Partners at Law (Dublin) (for the applicant); The Chief Prosecution Solicitor and Chief State Solicitor (for the respondent).
Edited by Bart D. Daly, BL, and Agatha Clancy, BL. Associate editor: Michael Keogh, BL. Kieran O'Callaghan, barrister