The Supreme Court did not decide the constitutional validity of the amended sexual-offence provision in the judgment delivered by Murray J. on 21 December 2011. He said the Court’s majority treated the provision as pre-1937 legislation and, in those circumstances, the constitutional question could not be addressed in his judgment.
Z.S. was charged in August 2004 under section 2(1) of the Criminal Law (Amendment) Act 1935, as amended by the Criminal Law Act 1997. The charge concerned alleged unlawful sexual intercourse with a girl under 17. The alleged offence was said to have occurred on 23 October 2004, when the complainant was 16. Z.S. denied that intercourse occurred, but wanted to be able to argue that he honestly and reasonably believed she was over 17.
He had already stood trial in the Circuit Criminal Court, where the jury failed to agree on a verdict. A retrial was pending. In these proceedings, he sought a declaration that the amended provision was unconstitutional because it did not permit a defence of reasonable belief about the complainant’s age.
Murray J. addressed whether the 1997 amendment meant the provision should be treated as effectively re-enacted after the Constitution came into force in 1937. If so, it would benefit from the rebuttable presumption that legislation is constitutional. He considered the amendment’s deletion of the former age threshold, which extended the offence to conduct involving girls under 15, and concluded that the provision had been effectively re-enacted. He therefore considered that it should, in principle, receive the presumption of constitutionality.
But that was not the approach adopted by the Court’s majority. Murray J. said the majority considered the provision, despite the amendment, as pre-1937 legislation without the presumption. He noted that a prior Supreme Court decision had found the separate section 1 offence inconsistent with the Constitution because it excluded a reasonable-belief defence, and that the Attorney General accepted the same conclusion would follow for section 2(1) if it were treated solely as a pre-1937 provision.
Murray J. did not decide whether the amended section was constitutional, or whether the presumption could be displaced. He said Article 34.4.5 required a single judgment of the Court on constitutional validity questions concerning post-1937 legislation, so that issue could not be addressed in his judgment. He expressly gave no view on the constitutional issues that might have arisen under the post-1937 analysis.