The Supreme Court has declared incompatible with the Constitution a provision requiring a defendant charged with sexual activity with a child under 17 to prove, on the balance of probabilities, that they reasonably believed the child was 17 or older.
In a separate judgment concurring with the joint judgment of Chief Justice O’Donnell and Justice O’Malley, Justice Peter Charleton said the statutory requirement in section 3(5) of the Criminal Justice (Sexual Offences) Act 2006, as substituted in 2017, could not stand. The declaration was limited to that subsection.
The Court’s judgment concerned the standard of proof for the defence of reasonable mistake as to age. The legislation places a persuasive burden on a defendant to establish that defence. Justice Charleton said the burden was legitimate, but the civil standard of proving that the mistake was more likely than not was too high in this context. The defendant must instead establish a reasonable doubt, based on the whole of the evidence, that they were unaware the child was under 17.
The judgment sets out how that burden differs from the prosecution’s obligations. The prosecution must prove beyond reasonable doubt that the prohibited sexual activity took place and that the child was under 17. The defendant’s burden relates to awareness of age. It is more than simply pointing to evidence that might allow a jury to consider a possible mistake: the defendant must persuade the jury that a reasonable doubt exists on that issue.
Justice Charleton explained that the ruling arose from the particular offence and its statutory scheme. He cautioned that the finding should not be overstated or taken out of context. His judgment described the age-mistake issue in the later teenage years as capable of turning on fine distinctions, including appearance or what the child had said about their age, education or occupation.
The source judgment identifies the case as an appeal by the Minister for Justice, Ireland, the Attorney General and the Director of Public Prosecutions against CW, who was the plaintiff and respondent in the High Court proceedings. It does not set out the underlying allegations or the outcome of any prosecution of CW. The Supreme Court appeal judgment records the constitutional declaration and explains the applicable burden; it does not report a finding that CW committed an offence.