The Supreme Court has declared section 2(1) of the Criminal Law (Amendment) Act 1935 inconsistent with the Constitution, allowing an appeal by Z. S. and setting aside the High Court order.
The judgment, delivered by Mr Justice Fennelly on 21 December 2011, concerned a constitutional challenge to a provision making unlawful carnal knowledge of girls under 17 an offence. The appellant argued that the section was invalid because it provided no defence based on an honest or reasonable mistake about the complainant’s age.
The Court said the original section 2, like section 1 of the same Act, excluded a mistake-of-age defence. In an earlier case, C.C. v Ireland, section 1 had been declared inconsistent with the Constitution. The State accepted that, absent the presumption of constitutionality, section 2 could not be distinguished on that point.
The central issue was whether a 1997 amendment had transformed section 2 into a post-1937 provision that benefited from the presumption of constitutionality. The amendment removed wording limiting the offence to girls aged 15 and 16, apparently extending it to all girls under 17. The Court held that the original section had already been inconsistent with the Constitution and had not continued in force after the Constitution came into operation. As a result, there was no provision in force for the 1997 Act to amend, and the amendment had no legal effect.
The case arose after Z. S. was charged in 2004 with an offence alleged to have occurred in October 2003. He denied that the alleged intercourse took place but wished to be able to raise an honest and reasonable belief about the complainant’s age if it did. His first trial ended without a jury verdict, and a retrial was pending when the appeal was heard.
The Supreme Court allowed the appeal, set aside the High Court order and declared that section 2(1) “is and was at all material times inconsistent with the Constitution.” The judgment addresses the validity of the statutory provision; it does not determine the pending criminal charge or the facts alleged in it.