The Supreme Court has ruled that two men awaiting trial in Dublin may rely on a reasonable mistake about a complainant's age as part of their defence to sexual offence charges.
C.C. and P.G. were separately charged with offences involving the same complainant. C.C. faced four counts of unlawful carnal knowledge of a girl under 15, allegedly committed in July and August 2001. The complainant was then about 13 years and 10 or 11 months old. C.C. had admitted consensual intercourse but said he believed she was over 15.
P.G. faced two sexual assault charges relating to the complainant when she was 13.
Both men brought judicial review proceedings before their trials, seeking clarification of whether a reasonable mistake about age could be considered by a jury. The High Court refused the declarations sought, but the Supreme Court allowed both appeals.
Ms Justice Denham held that criminal law generally presumes that mens rea, meaning a guilty mind, is required unless legislation clearly or by necessary implication removes that requirement.
For C.C., the court found that section 1(1) of the Criminal Law (Amendment) Act 1935 did not expressly exclude mens rea and did not do so by necessary implication. The judgment rejected the longstanding assumption, derived substantially from the 19th-century English case R v Prince, that the offence imposed strict liability as to age.
For P.G., the court distinguished consent from mistake. Section 14 of the 1935 Act expressly prevents consent by a person under 15 from being a defence to sexual assault. It does not, however, remove the separate common law defence of reasonable mistake about age.
The court stressed that these rulings did not determine whether either man's claimed belief was genuine or reasonable. Those remain factual questions for the trial process.
Appropriate declarations were ordered confirming that C.C. could rely on reasonable belief as to age and that P.G. could advance a defence of reasonable mistake.