The Court of Appeal ruled that the offence of sexual exploitation of a child under section 3(2) of the Child Trafficking and Pornography Act 1998 is a standalone offence and does not require proof that the child was trafficked.
The decision, delivered electronically on 18 November 2021, answered a question referred by the Director of Public Prosecutions after a trial in Kerry Circuit Court. The referral followed the acquittal of two respondents, identified in the judgment only as LS and PS. The court stressed that a referral under section 34 of the Criminal Procedure Act 1967 is without prejudice to the verdict in favour of an acquitted person.
LS had faced eight charges and PS three, alleging sexual exploitation of a child on dates between 27 January and 7 April 2013. The allegations concerned conduct at or near PS’s farmhouse, farmyard or farmland. After the prosecution case closed, the defence sought directed verdicts, arguing that the offence required proof of trafficking. The trial judge accepted the application and directed verdicts of not guilty.
In the trial judge’s account, the prosecution had argued that the statutory definition of trafficking was met. The judge considered that LS had not employed or accommodated the complainant. As to PS, the judge accepted that he and his wife could be argued to have acted in loco parentis and to have provided accommodation and employment, but found no evidence supporting exploitation or trafficking in the circumstances as he understood them.
On appeal, the Director argued that the offence did not depend on trafficking. The respondents argued that the section’s statutory context and legislative history supported the trial judge’s interpretation, and raised concerns that a broader reading could extend criminal liability too far.
The Court of Appeal concluded that the amended wording was clear and unambiguous. It said the expanded definition of sexual exploitation inserted by the Criminal Law (Sexual Offences) Act 2017 dispelled any remaining doubts. The court answered that the trial judge was incorrect to rule that proof of trafficking was required.
The judgment resolves the referred question of law only. It does not set aside or alter the respondents’ acquittals.