The Court of Criminal Appeal has rejected Seán Egan’s application for leave to appeal his conviction for engaging in a sexual act with a child under 17, finding that the trial judge’s direction on the statutory honest-belief defence did not entitle him to a new appeal.
Egan was convicted by a jury in the Central Criminal Court on 18 June 2009 and sentenced to 15 months in prison. The six-day trial involved two complainants and four counts: two of rape and two of engaging in a sexual act with a child. The jury acquitted him of both rape counts and one child-sex offence count, and convicted him on the other.
Egan advanced four grounds. The appeal court rejected arguments that the verdicts were inconsistent, explaining that rape requires proof of absence of consent while consent is no defence to the child-sex offence. It also said the jury could assess the two complainants separately and accept one account while finding the other had not been proved beyond reasonable doubt.
The court upheld the admission of forensic evidence about a cloth found in the glove compartment of Egan’s car. One complainant had said the alleged act occurred in the car and that Egan wiped himself with a cloth afterwards. Forensic witnesses found semen, including a stain identified as that of an unknown human male, but could not date it or link it to Egan. The court said the evidence was relevant to whether a sexual act had occurred in the car and whether the complainant’s account was supported; its weight was for the jury.
The main appeal ground concerned section 3(5) of the Criminal Law (Sexual Offences) Act 2006, which provides a defence where the accused proves an honest belief that the child was at least 17. Egan’s defence had not actively raised that issue at trial, and he did not give evidence about his belief. The trial judge nevertheless directed the jury that Egan had to point to evidence establishing a reasonable doubt about whether he held that belief. The judge said Egan did not have to testify and could rely on prosecution evidence or matters raised in cross-examination.
The appeal court held that the statutory wording placed a burden on the defence and that the trial judge was correct to require at least a reasonable doubt. It did not decide whether the provision instead required proof on the balance of probabilities, saying that question was unnecessary to resolve. The court also rejected the proposed analogy with the defence of provocation in murder cases, noting that the honest-belief defence had not been raised on evidence at trial.
The court’s decision was to reject the application for leave to appeal; it did not determine a full appeal against conviction.