A High Court judge has given a preliminary view that the civil-standard burden placed on an accused relying on the reasonable-mistake defence to a child defilement charge is unconstitutional. She did not make a final order, instead listing the case for mention so the parties could address the form of the order.
In a judgment delivered on 1 June 2022, Ms Justice Stack considered a challenge by C.W., who had been convicted under section 3 of the Criminal Law (Sexual Offences) Act 2006. The challenge was narrowed at the hearing to subsection 5, which requires an accused to prove on the balance of probabilities that they reasonably believed the child had reached 17.
The judge said the subsection’s wording was clear and could not be interpreted as imposing only an evidential burden. She considered whether the reasonable-mistake issue was a core part of establishing guilt, despite the legislation describing it as a defence. She concluded that it was, because the child’s age and the accused’s culpability were central to the offence.
Article 38.1 of the Constitution protects the right to a trial in due course of law. The judgment reviewed prior decisions concerning the presumption of innocence and reverse burdens, and concluded that the prosecution must prove the essential elements of a criminal offence beyond reasonable doubt. In the judge’s view, requiring an accused to establish reasonable mistake on the civil standard could permit conviction despite a reasonable doubt about guilt.
The State defendants argued that the burden was justified by the objective of protecting children and the difficulty of proving an accused’s state of mind. The judge accepted that protecting children is a legitimate policy objective and that it may be appropriate to require an accused to point to evidence supporting the defence. She considered, however, that the State had not shown why a legal burden was necessary instead of an evidential one. She also rejected the argument that the protection of children justified compromising the fairness of the criminal trial.
The judgment notes that C.W. had already been convicted and sentenced to one year and ten months, to be served concurrently with another sentence. It does not revisit the jury’s reasons for convicting him. The court’s stated next step was to hear the parties on the form of the order; the judgment records a preliminary view that subsection 5 should be declared invalid, rather than a final declaration or an order affecting the conviction.