The High Court has ruled that an offence under section 3 of the Criminal Law (Sexual Offences) Act 1993 was not one of strict liability and included a mental element concerning the complainant’s age. It did not decide what that element was, or whether J.P. could change his guilty plea; those matters remained for the criminal trial court.
J.P. had pleaded guilty to two charges of buggery of a person under 17. He brought constitutional proceedings challenging section 3, and sentencing was adjourned while they were considered. The complainant was 16 at the time of the alleged offences and was in a relationship with J.P., who was 19. J.P. said he believed the complainant had reached 17. The judgment records that he had been advised that belief was legally irrelevant and pleaded guilty on that basis.
The Director of Public Prosecutions, Ireland and the Attorney General accepted that section 3 would be unconstitutional if it imposed strict liability, meaning the prosecution did not have to establish knowledge of age and the accused had no defence of mistake as to age. They disputed that this was the proper interpretation of the section.
The court considered whether J.P. had standing to bring the challenge, given that his statement of claim said he knew the complainant’s age. It found that he did not meet the usual standing test on the basis of his own pleaded case. However, it held that “weighty countervailing considerations” justified hearing the challenge. Among them were assertions consistent with a mistaken belief about age, the risk that the section’s interpretation and constitutionality would otherwise remain unresolved after its repeal, and the fact that J.P. had been convicted but not yet sentenced.
On interpretation, the court said section 3 was silent about the required mental element, leaving room for doubt. Applying the presumption that legislation should be construed constitutionally where reasonably possible, it concluded that the section did not exclude a mental element as to age. The section could require the prosecution to prove knowledge or recklessness, or provide a defence for the accused; the High Court did not choose between those possibilities.
The judgment said the criminal trial judge retained discretion to allow J.P. to change his plea and considered that it would be appropriate to permit a change in the circumstances. But the High Court expressly said it could not determine that question in these proceedings. It left the decision on any plea change and the precise mental element to the trial court.