C.W. v Minister for Justice and Equality & Ors (Approved)

In their submissions, the State defendants relied heavily on the proposition that subss. 3 to 5 did not relate to mens rea at all but created a “due diligence” type defence. This argument was based principally on the judgment of Dickson J. for the Canadian Supreme Court in R. v. City of Sault Ste. Marie (1978) 2 S.C.R. 1299, which was approved in the dissenting judgment of Keane J. (as he then was) in Shannon Regional Fisheries Board v. Cavan County Council [1996] 3 IR 267 , and which was also referred to by the Supreme Court in C.C. As explained by Hardiman J. in the latter case (at para. 16), Dickson J. had argued for a tripartite division of offences into those requiring mens rea and those of absolute liability, “where it is not open to the accused to exculpate himself by showing that he was free of fault” and an intermediate category in which it was unnecessary for the prosecution to prove mens rea but it was open to the defendant to avoid liability by proving that he took all reasonable care. This type of defence was described by Dickson J. in the following terms:

It is clear from the judgment of Dickson J. in R. v. City of Sault Ste. Marie that he did not intend to in any way dilute or erode what that court clearly regarded as a basic principle of criminal law which was expressed as follows (at pp. 1302 to 1303):

That case was relied upon in C.C. for the proposition that an offence of absolute liability which provided for no exculpatory defence of any kind was regarded with disfavour by the Canadian Supreme Court even in the case of regulatory offences: see para. 17 of C.C. Hardiman J. did not explicitly approve the classification devised by Dickson J. nor did he express any view on precisely how culpability should be established in a trial for an offence contrary to s. 1(1) of the 1935 Act.

The ratio of C.C. was that a “guilty mind”, that is, some form of moral culpability, was a necessary element for the imposition of criminal liability in the case of a serious criminal offence such as was contained in s. 1(1) of the 1935 Act.

It is clear from the legislative history of the “reasonable mistake” defence, now contained in s. 3(3) of the 2006 Act, that it is an amendment of a defence originally introduced so as to meet the constitutional requirement identified by the Supreme Court in C.C. that the offence could not provide for those without culpability in relation to the key element of the offence, that is, the age of the child, and therefore I find it difficult to see how the “reasonable mistake” defence, when it is invoked, is not a critical component in establishing the guilt of the accused.

It is my view that it follows from the judgment in C.C. that the defence of “reasonable mistake” is a provision relating to the necessary element of the offence of defilement. As such, the presumption of innocence applies where the defence is invoked so as to require the prosecution to prove its case (that the accused did not make a reasonable mistake as to the age of the complainant) beyond a reasonable doubt. It is therefore constitutionally impermissible to impose more than an evidential burden on an accused who wishes to invoke that defence and the imposition on the accused of a standard of proof to the civil standard, i.e., on the balance of probabilities, is contrary to Article 38.1.

Apart from the submission that the reasonable mistake defence was not a core constituent element of the offence such that no breach of Article 38.1 was occasioned by placing a legal burden on an accused, the State defendants, in their submissions, focussed heavily on the proportionality of subs. 5 in light of the objectives which it pursued, while the plaintiff asserted both that the imposition of a civil standard of proof was disproportionate and, in reply, also submitted that the proportionality principle did not apply at all.

On this issue, counsel for the plaintiff referred me to para. 7.1.52 of Kelly: The Irish Constitution, 5 th ed., 2018, where the authors question whether the doctrine of proportionality has any application to the right pursuant to Article 38.1 to trial in due course of law. This paragraph states:

I am not sure that the point relating to inconsistency is well founded. In Re National Irish Bank Ltd. (No. 1) [1999] 3 IR 145 , Barrington J. stated ( per curiam ) (at p. 180):

It must be remembered that, what was in issue in Heaney was whether a failure to answer particular questions while in custody could itself give rise to the commission of a minor criminal offence (the plaintiffs there having refused to answer and having been convicted of an offence contrary to s. 52 of the Offences Against the State Act, 1939, and sentenced to the maximum term of imprisonment of six months.) As O’Flaherty J. pointed out in giving the judgment of the Supreme Court, there was no question of the trial for that offence being said to be unfair, and it therefore dealt with the case by reference to Article 40.6.1̊.i, rather than Article 38.1. Article 40.6.1̊.i is of course explicitly expressed to be subject to certain public interests, including public order and morality and the authority of the State. In this it is similar to its counterpart in the European Convention on Human Rights, Article 10, which provides in paragraph 2 for restrictions on freedom of expression in pursuance of certain legitimate public interests including “the prevention of disorder or crime” .

There was no finding in Re National Irish Bank (No. 1) that the right to silence was not subject to the doctrine of proportionality, which was the issue in Heaney. Instead, it was held that the Constitution never permitted the admission at a criminal trial of a forced or involuntary confession as to do so would breach the requirement of Article 38.1 that the trial would be fair.

The focus of the respective courts therefore appears to me to have been somewhat different, and the subsequent case law dealing with admissibility, inferences, and rules of evidence, and so on is based on an approach whereby proportionality is used as a tool to assess the constitutionality of a particular restriction on the common law presumptions and other rules of evidence as they relate to criminal trials. However, none of the cases go so far as to say that the fundamental fairness of the trial as a whole can be compromised, and the authorities proceed on the assumption that, in order to satisfy Article 38.1, the trial itself must be fair. Article 6 ECHR similarly provides for a fair trial and, in paragraph 3, sets out minimum rights of an accused which are not subject to restriction in the public interest.

The question then is whether the presumption of innocence, that is, the requirement that the prosecution prove guilt beyond a reasonable doubt, is a component part of a fair trial which can be legitimately restricted without compromising the overall fairness of the trial or whether it is so essential to that fairness that it cannot be subject to statutory modification.

On this issue, Hardy v. Ireland [1994] 2 I.R. 550 seems to be directly on point. There, a majority of the Supreme Court held that an accused charged with an offence contrary to s. 4 (1) of the Explosive Substances Act, 1883 bore only an evidential burden of showing that he had the explosive substance in his possession or under his control for a lawful object. The concluding comments of Egan J., who gave the judgment for the majority (O’Flaherty and Blayney J.J. concurring) were as follows:

In my view, that statement indicates that the presumption of innocence is of such fundamental importance to the fairness of a trial that it is not subject to proportionate restriction as are individual rules of evidence relating to admissibility, the drawing of inferences or reverse onus provisions. The requirement that the prosecution prove guilt beyond all reasonable doubt is an essential requirement of any trial in due course of law and therefore abrogation of it must be regarded as a breach of Article 38.1. Put simply, a trial which permits conviction where there is a reasonable doubt as to the guilt of the accused is not a fair trial. Of course, Hardy was decided over a year before the High Court decision in Heaney , which is generally regarded as the introduction of the proportionality principle into Irish constitutional law, but it is difficult to interpret the reference to “the essential requirement” of proof of guilt beyond a reasonable doubt as anything other than a statement that all trials, to be fair, must require that proof.

In my view, this conclusion also follows from the decision of the Court of Appeal in Smyth and the decision of the Supreme Court in Forsey , where the issue was not considered from the point of view of proportionality but rather from the fundamental question of whether the presumption of innocence would be breached if the statutory provision in question were interpreted as placing an onus on the accused to prove a particular issue to the civil standard. As O’Malley J. stated in Forsey (at para. 176), if a burden in respect of an essential element of the offence was transferred and if the accused was required to prove that the element did not exist, that could be an inroad into the presumption of innocence, since the accused person might be convicted if he or she could not positively prove that the element is absent.

Such a provision was distinguished by O’Malley J. from provisions relating to rational inferences from proven facts and admissibility of evidence, which she evidently regarded as acceptable (see para. 175).

In my view, the decisions in Hardy, Smyth, Heffernan and Forsey are all to the same effect: the constituent elements of the offence must always be proven beyond a reasonable doubt. And as subs. 3 is necessary to satisfy the constitutional imperative identified in C.C., that criminal liability can only be imposed where there is moral culpability, then the imposition in subsection 5 of a civil standard of proof places a legal burden on an accused on an issue which is central to his guilt and is therefore a breach of the presumption of innocence and cannot be justified.

In coming to this conclusion, I note that concern was expressed by Lord Steyn in R. v. Lambert (at para. 32) as to the extent to which Parliament had “frequently and in an arbitrary and indiscriminate manner made inroads on the basic presumption of innocence.” He stated that it had been shown that no fewer than 40% of the offences triable in the Crown Court appeared by the mid-1990’s to have violated the principle and he cited the 1972 Report of the Criminal Law Revision Committee, 11 th Report, Evidence (General) (1972) (Cmnd 4991), para. 140 where it had been observed that “we are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only.”

Lord Steyn also referred (at para. 34) to a passage from the judgment of Sachs J. of the South African Constitutional Court in State v. Coetzee [1997] 2 LRC 593, para. 220 at 672, which had previously found favour with Lord Bingham in McIntosh v. Lord Advocate [2001] 3 WLR 107 and which was in the following terms:

That statement by Sachs J., interpreted in light of the potential application of the doctrine of proportionality is a statement that there can, in reality, be no legitimate justification for an outcome where an innocent accused might be convicted of an offence. The proportionality principle applies where the right in question is one which is subject to legitimate restriction in the interests of what the Constitution would refer to as “the common good” , ie., a public interest of some kind. However, as stated by Sachs J., it is difficult to identify the public interest in an unsafe conviction, which would only undermine public confidence in the criminal justice system.

Lord Steyn, of course, then went on to refer to the judgment of the European Court of Human Rights in Salabiaku v. France (1988) 13 EHRR 379, 388, at para. 28, where it was held that presumptions of law or fact were permissible, but contracting states were required to remain within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. He therefore held that proportionality applied and went on, as part of the majority, to find that that aspect of the proportionality test which required the legislature to choose the means which was least restrictive of the right required him to interpret the provisions of the 1971 Act as requiring the accused only to discharge an evidential rather than a legal burden.

The majority of the House of Lords therefore reached their conclusions on the issue of whether the burden on an accused in a reverse onus provision is legal or evidential from the point of view of proportionality.

However, proportionality did not figure in Hardy or Forsey , where the prospect of any inroad on the presumption of innocence and the requirement of the prosecution to prove guilt was rejected as unacceptable.

I acknowledge of course that in O’Leary v. Attorney General [1993] 1 I.R. 102, at 110-111, Costello J. (as he then was) indicated that any infringement of the presumption of innocence by the placing of a legal burden on the accused might be justifiable and he referred in his discussion to the fact that the European Convention on Human Rights had been construed as permitting certain restrictions on the presumption. He referred on this point to X. v. United Kingdom (appln. 5124/71) which was a reverse onus case, but I have not been able to locate a copy of that decision and it is not clear that it imposed a legal burden on the accused as opposed to an evidential one. It is clear, I think, from Smyth and Forsey that a reverse onus provision on an issue of fact within the accused’s particular knowledge, such as his state of mind or his possession of a licence or lawful authority to commit an act which would otherwise be unlawful, is not repugnant to the Constitution, provided he does not have to discharge a legal burden on that issue. In any event, Costello J. ultimately did not decide that issue in O’Leary and his statement is therefore obiter .

Even if that statement had been part of the ratio , the Supreme Court authorities of Heffernan and Forsey have established as a matter of constitutional law that Article 38.1 does not permit the imposition of a legal burden on an accused in relation to a core element of the offence and these cases were all delivered recently, and therefore at a time when the doctrine of proportionality had become well-established as an analytical tool in Irish constitutional law. It is notable that, in Forsey , the suggestion that the prevention of corruption was of such public importance that the provision in question should be construed as requiring an accused to discharge a legal burden was rejected on the basis that such an argument could be made in relation to any serious criminal offence. This seems to be a rejection of the proposition that justification in the public interest can be advanced so as to dilute the presumption of innocence.

It is my view, therefore, that proportionality cannot be applied so as to dilute the obligation on the prosecution to prove beyond reasonable doubt all essential elements of an offence contrary to s. 3 of the Criminal Law (Sexual Offences) Act, 2006, that is, the offence of defilement of a child. As subs. 5 is incapable of interpretation so as to provide that the accused bears an evidential, as opposed to a legal burden, it is invalid as being contrary to Article 38.1 of the Constitution.

However, in case I am wrong in my conclusions on the applicability of proportionality, I propose to consider the arguments made by the State defendants on this basis in any event.

The State defendants relied heavily on the public policy in protecting children as a justification for the dilution of the presumption of innocence in offences contrary to s. 3 of the 2006 Act.

It goes without saying that a public policy of protecting children from sexual predators or indeed sexual activity at an age where they lack sufficient maturity to judge for themselves the desirability of such activity and to assess its possible consequences for them is not only legitimate, but the formulation of such policy and the steps to be taken to effect it are matters for the Oireachtas. However, the identification of legitimate policy which might justify a restriction of fundamental rights is not in itself sufficient to satisfy the requirements of proportionality. The judgment of Costello J. in Heaney, and his adoption (at p. 607) of the definition of proportionality set out by the Canadian Supreme Court in Chaulk v. R. [1990] 3 S.C.R. 1303, 1335-1336, has stood the test of time. It is in the following terms:

The analysis of provisions similar to subs. 5 by the Canadian Supreme Court and the House of Lords in R. v. Oakes [1986] 1 SCR 103 , and R. v. Lambert [2002] 2 AC 545 , both of which concern possession of controlled drugs, demonstrated clearly that the putting forward of a justification in terms of a legitimate public policy is far from sufficient to satisfy the test of proportionality.

This is in any event clear from the test as approved in Heaney , from which it is evident that the identification of a legitimate social policy which is said to justify the restriction on a fundamental right is only the starting point of the proportionality analysis.

In Lambert, the House of Lords accepted that difficulties in proving the state of mind of the accused could justify a reverse onus clause. However, they did not accept that a reverse onus provision could impose a legal burden on the accused. As Lord Steyn said, at para. 37, the burden was on the State to show that the legislative means adopted were not more than was necessary. The legislature has a choice as to the nature of the burden to be placed on an accused. In line, therefore, with the requirement to restrict the rights of the accused as little as possible, the majority of the House of Lords read the provision as imposing an evidential burden only on the accused.

Similarly, in R. v. Oakes [1986] 1 R.C.S. 103, Dickson C.J., at para. 70, set out the requirements for the proportionality test required by s. 1 of the Canadian Charter of Rights and Freedoms. He stated that:

the provision must be carefully designed to achieve the objective. It must not be arbitrary, unfair or based on irrational considerations. In short, it must be rationally connected to the objective.

it should impair the right or freedom as little as possible.

there must be a proportion­ality between the effects of measures responsible for limiting the right or freedom and the objective which has been identified as of “sufficient importance”.

The provision at issue in Oakes does not provide an exact analogy for subs. 5, as s. 8 of the Narcotic Control Act, R.S.C. 1970, which was under consideration in Oakes, provided that if an accused was found to be in possession of a narcotic, he was presumed to be in possession of it for the purposes of trafficking. It was open to him to establish that he had it for purposes other than those of trafficking, but the case turned on whether it could be rationally inferred from proof of the fact of possession of narcotics, which might, in any individual case, be in quite small quantities, that that possession was for the purposes of trafficking. The case therefore falls within one of those types of provisions which seek to draw inferences from a proven fact, which have been accepted in this jurisdiction in cases such as Hardy and O’Leary.

However, subs. 5 does not provide that, on proof of a given fact, an inference can be drawn unless the accused demonstrates otherwise. Oakes does not therefore provide a precise analogy for the analysis of subs. 5.

Nevertheless, in terms of the overall statement of the doctrine of proportionality, it is an important and compelling judgment, which stresses the fundamental importance of the presumption of innocence which, Dickson C.J. commented (at para. 29) was “ a hallowed principle lying at the very heart of criminal law… referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter ” . He continued: “ The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct.” He also pointed to its fundamental importance in English common law, citing Woolmington v. DPP, and to its recognition in United Nations Declaration of Human Rights, 1948, Article 11.1, and in Article 14.2 of the International Covenant on Civil and Political Rights. It is of course also recognised by Article 6.2 of the European Convention on Human Rights and in American constitutional law.

In applying the proportionality test it seems to me that care must be taken, in the first instance, in identifying the legitimate objective. On one level, as the State defendants maintain in this case, one can identify the legitimate objective in very broad terms as the protection of children. On another level, one can put forward the objective of adducing evidence which might otherwise be very difficult, or even impossible, to tender, given that it relates to the intention or knowledge of an accused person.

In my view, the objective must be identified in that second, narrower sense. As already stated, when considering the application of proportionality, it goes without saying that the protection of children is a legitimate objective of the State. However, one could identify a similarly laudable objective behind the imposition of criminal liability in any serious criminal offence. There are equally important and legitimate objectives behind, for example, the law which designates murder and rape as criminal acts, for which a person may be incarcerated.

Therefore, if such justifications were sufficient to uphold restrictions on the presumption of innocence, the net result would be that the presumption of innocence would be wholly abrogated and would not apply in any trial for a serious criminal offence. This cannot be the law as it would entirely hollow out the presumption of innocence.

I am therefore of the view that the legitimate objective in this case is to place an onus on the defendant to show that he made a reasonable mistake, as that is evidence which is peculiarly within his knowledge and therefore difficult, if not impossible, for the prosecution to negate. It is therefore legitimate to put an onus on the accused to point to something in the evidence which would justify a jury in finding that he could avail of the defence.

But I think the provisions of subs. 5 cannot be justified on a proportionality basis as the State cannot pass the next hurdle of showing that the presumption of innocence is impaired as little as possible. The question which really arises here is why it is necessary to put a legal burden on the accused at all.

In the course of oral argument, the State defendants stressed heavily the detailed consideration which had been given to the laws on statutory rape both after the judgment of the Supreme Court in C.C., and again prior to the 28 th Amendment of the Constitution on the Rights of the Child which inserted Article 42A into the Constitution.

In relation to the first of these, reference was made to the report of the Oireachtas Joint Committee on Child Protection, November, 2006, but the recommendation of this Committee was that there would be no defence of mistake as to age, though in fairness to the Committee it accepted that the law as thus recommended would be open to constitutional challenge and that a referendum should take place in order to deal with the issue: see para. 13.1.2. Indeed, it was accepted at para. 5.1.8 that an offence of statutory rape which imposed liability on an absolute or even a strict basis, would not include the mental element required by the Supreme Court decision in C.C.

The only material that I can see in this Report which is relevant to the proportionality of subs. 5 is that the Committee showed a disquiet at the prospect of the cross examination of a child as to her dress or age. However, such a cross examination is at least as likely where the onus on an accused is a legal one which requires him to show on the balance of probabilities that he did not know that the complainant had attained seventeen years of age, so I do not see that this justifies the imposition of the legal burden. There is, in any event, no recommendation in this report that such a burden be imposed, and it therefore does not assist in identifying why the provision was introduced.

I was also referred to the Second Interim Report of the Joint Committee on the Constitutional Amendment on Children, of May, 2009, which considered a proposal to include in what subsequently became Article 42A of the Constitution, a provision giving legal authority to the Oireachtas to create offences of absolute or strict liability in respect of sexual offences against or in connection with children. Again, the report is impressive for its thorough, and above all clear, analysis of the legal issues arising in these types of offences. It also demonstrates a concern about the necessity for cross examination, but, as already stated, this can occur whenever the defence, however calibrated, is available, and whether the culpability of the accused should be assessed by reference to a more or less subjective or objective standard.

At Section 10 of the Report, the onus and standard of proof is considered. It refers to the wording used in the 2006 Act that: “[i]t shall be a defence … for the defendant to prove … ”, an apparent reference to s. 2(3) and s. 3(5), as originally enacted. It then comments (at para. 10.1):

The Committee then proceed to recommend that, whatever legislative or constitutional amendments are proposed or enacted in relation to sexual offences against children, the onus of proving a mistake as to age should fall on the accused, that the standard of proof required of an accused in that respect should be proof on “the balance of probabilities”, and that legislation be enacted “ designed to apply appropriate presumptions, exclusions and inferences, as a matter of the law of evidence, in prosecutions for sexual offences against children.”.

It did not identify what those presumptions, exclusions and inferences would be, though it did further specifically recommend that legislation would be enacted so as to prevent an accused charged with a sexual offence against a child to rely on the dress and/or demeanour of the child, on consent by the child to sexual activity, or on evidence of previous sexual history of the child to establish or support a defence of mistake.

It appears that, apart from the recommendation that consent would not be a defence, which was already a feature of s. 2(5) and s. 3(7), as originally enacted, the other recommendations have not been taken up. For example, there was quite a specific recommendation that provision would be made by law to enable an adverse inference to be drawn from the failure of the accused to mention the alleged mistake as to age when questioned by Gardaí, but this does not appear to have been enacted into law.

It should be noted that the Committee ultimately did not recommend a constitutional amendment to remove the defence of honest belief or reasonable mistake. The reasons for this, as set out at para. 6.28, were:

At para. 6.27, the Committee noted that they could not entirely remove the need for a child to give evidence, noting that, even in the trial of offences contrary to s.1 (1) of the 1935 Act, there had been occasions where the child complainant had to give evidence that sexual intercourse had taken place.

Overall, considering both of those thoughtful and considered reports of Oireachtas Joint Committees, it seems to me that there was concern after the judgment in C.C. about the prospect of cross-examining child complainants on their dress, demeanour, behaviour, alcohol intake, and so forth. Ultimately it was decided, however, no referendum would be held in order to reverse C.C. and this may have been in part because of legitimate concerns about injustice for a minority of those accused charged with offences of this type. That, of course, was precisely the concern which led the Supreme Court to its decision in C.C. in the first place.

The Oireachtas Joint Committee which looked at this issue in 2009 appears to have found that in the great majority of cases, the complainant is already known to the accused and therefore the defence was operating in a minority of the prosecutions brought. Furthermore, insofar as they could tell, though the evidence was somewhat unclear, the introduction of the honest belief defence in the 2006 Act appeared not to have significantly reduced (or indeed reduced at all) the number of prosecutions.

In any event, I am not convinced, notwithstanding the obvious value of these reports for the formulation of legislative proposals and indeed proposals for referenda, that the courts are in any sense obliged to defer to an analysis by an Oireachtas Joint Committee of the social policies underlying provisions which effect the fundamental rights of an accused in a criminal trial. It seems to me that the Oireachtas is entitled to deference in the formulation of social policy, but the protection of the fundamental rights of an accused in a criminal trial is always a matter for the courts.

But leaving that aside, I do not see anything in them which puts forward any specific justification for the imposition of a legal burden to the civil standard rather than an evidential burden. It is difficult to avoid the impression that subs. 5 was included simply to make it more likely to get a conviction. However, the presumption of innocence has always been understood as a bulwark against unsafe convictions.

It therefore seems that subs. 5 goes further than is necessary to avoid the difficulties which would be posed in requiring the prosecution to lead evidence as to the deceased’s knowledge of the complainant’s age. Therefore, it seems to me that, even if it were applicable, subs. 5 would be a disproportionate restriction on the presumption of innocence.

A subsidiary point was made by the State defendants that the argument made in Fleming v. Ireland [2013] 2 IR 417 , in reliance on R. v. Oakes , that there was an onus on the State to prove, by way of evidence, the justification of any restriction on the presumption of innocence had been rejected, or at least Fleming had been interpreted in this way in Donnelly v. Minister for Social Protection [2021] IECA 155 , at para. 69 . I have to say that I read Fleming (at p. 455) as not determining the issue.

I am not sure that anything turns on it in this case as my principal conclusion is that the presumption of innocence is not subject to proportionate restrictions as are other rights and freedoms which may legitimately be restricted in the interests of the common good.

There must, in any event, be a question mark as to whether policy issues introduced by the proportionality test are issues of fact to be proven by the tendering of evidence. Generally, as considerations not amenable to forensic proof of the type suitable for the determination of discrete issues of fact which arise in litigation, they are referred to in argument and the proportionality test is applied, where it is relevant, on the basis of submissions.

Indeed, the 2009 Report of the Joint Committee referred to above suggests that the empirical evidence as to the operation of the defence of honest belief introduced in s. 3 of the 2006 Act as originally enacted was not clear and even the DPP of the day could not give categorial evidence as to whether it had a meaningful effect on the number of complaints, prosecutions and convictions. The substantive law relating to criminal liability is a policy area involving the making of choices on the part of the Oireachtas as to the circumstances in which such liability should be imposed and not a forensic issue capable of secure findings of fact. By contrast, the effect of a provision on a criminal trial is a matter of law which does not require evidence.

I would therefore doubt whether such a requirement for evidence exists in Irish law but would leave over that issue to a case where it is necessary to decide it.

The State defendants also relied on Tuohy v. Courtney [1994] 3 I.R. 1 for the proposition that there was a need to balance the right of an accused person to trial in due course of law against a countervailing constitutional right, and that it was not for the courts to impose their view of the correct or desirable balance in substitution for the view of the legislature but, as stated by the Supreme Court ( per Finlay C.J.) (at p. 47) “rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights” .

The difficulty I have with the reliance on that authority is that no countervailing constitutional right was identified in this case. The legitimate interest being pursued by the State in placing a legal burden on an accused in a criminal trial was never identified in anything other than the most general of terms. In Tuohy v. Courtney , the Supreme Court analysed the competing constitutional rights, which it identified as the plaintiff’s right to litigate and the defendant’s right “in his property to be protected against unjust or burdensome claims”

I do not see that there is any such countervailing right in this instance nor do I believe was any such right identified to me. While reference was made to Article 42A of the Constitution, no specific right protected by that provision was identified. In particular, the Oireachtas Joint Committee Report of 2009, referred to above, considered whether the proposed Article 42A should explicitly provide for “absolute or strict liability in respect of sexual offences against or in connection with children” and this proposal was not adopted.

More importantly, any right of the child which might be identified here is not one which could weigh against the right of an accused not to be convicted where there is a reasonable doubt as to his guilt, which I have found is a fundamental aspect of the right to trial in due course of law, protected by Article 38.1. Any relevant right of a child would be a substantive right, protected by the imposition of criminal liability for engaging in consensual sexual activity which would normally fall to be protected as an aspect of the unenumerated right to privacy but which would be subject to limitation in the interests of protecting children.

That, however is a matter for substantive criminal law. In that area, it is accepted that the courts must defer to the legislature: see for example D.M. (A Minor) v. D.P.P. [2012] 1 I.R. 697 where the immunity from prosecution contained in s. 5 of the 2006 Act was upheld by the Supreme Court as falling within the legitimate policy choices of the legislature.

In pursuance of its entitlement to assess the need to criminalise certain conduct which is thought to be contrary to the rights of others, the 2017 Act introduced new offences for the protection of children, such as that in s. 3A of the 2006 Act. A person challenging the imposition of criminal liability for the conduct in question may well find that they have to clear a higher bar in order to convince a court that the legislation is constitutionally infirm.

However, it does not seem to follow logically that the protection of the rights of others require the very fairness of the criminal trial to be compromised. The rights thought to be inherent in the notion of a fair trial or trial in due course of law, including the presumption of innocence and the related requirement that the prosecution prove guilt beyond a reasonable doubt, though now constitutionally protected, have been developed by the common law in response to the need to prevent the arbitrary conviction of individuals who may in fact be innocent. There is no constitutional right or interest to the conviction of a person in respect of whom there is a reasonable doubt as to guilt. Such a conviction is generally regarded as unsafe and it is not clear why such a conviction would be thought to advance the constitutional rights of others.

I am of the view that it is an aspect of the fundamental fairness of a criminal trial that an accused should not be liable to conviction where there is a reasonable doubt as to his guilt and, as a consequence, a provision such as that in s. 3(5) of the 2006 Act, which deals with the core issue of moral culpability of the accused, and which places an obligation on him to prove on the balance of probabilities that he is not so culpable, is contrary to Article 38.1 of the Constitution.

As a result, my preliminary view is that I should make a declaration that subs. 5 of section 3 of the 2006 Act is invalid having regard to Article 38.1 of the Constitution. However, I will list the matter for mention in early course to hear the parties on the form of order.