Luke v Director of Public Prosecutions and Ors

APPROVED [2026] IEHC 182 THE HIGH COURT JUDICIAL REVIEW 2026 95 JR BETWEEN LUKE (A PSEUDONYM) APPLICANT AND DIRECTOR OF PUBLIC PROSECUTIONS IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Garrett Simons delivered on 27 March 2026 INTRODUCTION 1. This judgment is delivered in respect of a challenge to the constitutional validity of certain provisions of the Criminal Law (Sexual Offences) Act 2006 (as amended). The challenge has been taken by a male who has been accused of having engaged in sexual intercourse with a female under the age of seventeen years. At the time of the alleged offence, the Accused and the Complainant had been aged fifteen years old and fourteen years old, respectively. As of the date of this judgment, they are both eighteen years old. NO FURTHER REDACTION REQUIRED 2 2. But for the fact that the Complainant had been under the age of fifteen years at the time of the alleged offence, it would have been open, in principle, to the Accused to seek to avail of the “peer consent” defence provided for under sub- section 3(8) of the Act. This defence is sometimes referred to as the “Romeo and Juliet” defence. The details of this defence are discussed below, at paragraphs 22 and onwards. For present purposes, the defence can be summarised thus. A consent-based defence is available, to a charge of having engaged in a sexual act with a child under the age of seventeen years, if the following conditions are met: (a) the complainant must have been aged fifteen years or older as of the date of the alleged offence; (b) the accused person must either be younger, or less than two years older, than the complainant; and (c) the accused person must neither have been in a position of authority nor in a relationship with the complainant that was intimidatory or exploitative. 3. The Accused contends that the failure to extend the “peer consent” defence to a person who had made a reasonable mistake as to a complainant’s age renders the legislative provision invalid. The constitutional challenge is advanced by reference to two principal arguments. First, it is argued that criminal liability cannot arise without a “core of criminal culpability” being proved. It is said that an accused person, who made a reasonable mistake that the child had attained the age of fifteen years, lacks the requisite mens rea to justify a criminal conviction. Second, it is argued that the failure to make any accommodation, as part of the “peer consent” defence, for the contingency of a reasonable mistake as to age entails a breach of the guarantee of equality before the law enshrined in Article 40.1 of the Constitution of Ireland. 4. It should be explained from the outset that an argument similar to the first 3 argument above has previously been rejected by the Court of Appeal in Oscar v. Director of Public Prosecutions [2025] IECA 278. 5. For ease of exposition, the protagonists will be referred to throughout this judgment by reference to their status before the court of trial, rather than before the court of judicial review. Thus, the applicant for judicial review will be referred to as “the Accused”, and the victim of the alleged offence will be referred to as “the Complainant”. 6. It should be emphasised that this judgment is solely concerned with the constitutional challenge and has nothing to say in relation to the merits of the underlying criminal prosecution. The Accused enjoys a presumption of innocence, and this can only be displaced following a criminal trial in due course of law. The use of the term “the Complainant” should not be understood as expressing any view—one way or the other—on the Accused’s contention that the sexual intercourse had been consensual. Rather it is the standard term employed in cases of alleged sexual assault to describe the other party. REPORTING RESTRICTIONS 7. Both parties are entitled to statutory anonymity. In the Complainant’s case, this right derives from her status as a complainant in a criminal prosecution for a charge of sexual assault: Section 7 of the Criminal Law (Rape) Act 1981 (as amended). In the Accused’s case, this right derives from the fact that he had still been a child under the age of eighteen years at the time he was charged with the offence: Section 93 of the Children Act 2001 as clarified in People (Director of Public Prosecutions) v. P.B. [2025] IESC 12. 8. Accordingly, no particulars are to be published, broadcast or otherwise 4 communicated which are likely to identify the Complainant or the Accused as the parties to the present proceedings nor as the parties to the pending criminal prosecution. 9. For the avoidance of doubt, no reporting restrictions apply to the content of this judgment. The judgment will be published on the courts.ie website. PROCEDURAL HISTORY 10. The constitutional challenge is advanced at a high level of abstraction. It is submitted on behalf of the Accused that the constitutional challenge arises out of what is characterised as the “undisputed operation” of the statutory defence in cases where an accused person asserts that he made a reasonable mistake to the effect that the child with whom he engaged in a sexual act had attained the age of fifteen years. The Accused submits that the determination of the constitutional challenge does not necessitate the resolution of any factual controversy. Consistent with this analysis, such evidence as has been adduced on behalf of the Accused is directed to setting out the procedural history. This is done, presumably, to establish that the Accused has standing (locus standi) to pursue the constitutional challenge. 11. The evidence establishes that the Accused has been charged with a number of offences in respect of sexual acts which he is alleged to have engaged in with the Complainant on two dates in January 2023. The Accused had been aged fifteen years and four months; the Complainant, fourteen years and nine months. 12. The draft indictment had included a charge pursuant to section 2 of the Criminal Law (Sexual Offences) Act 2006. This offence is defined as engaging in a sexual act with a child who is under the age of fifteen years. It would have been a 5 defence to this charge for the Accused to prove that he was reasonably mistaken that, at the time of the alleged commission of the offence, the Complainant had attained the age of fifteen years. 13. In the event, however, the indictment, as lodged, substituted a charge pursuant to section 3 of the Act. This offence carries a lesser maximum sentence and provides for a “peer consent” defence. As explained under the next heading, a reasonable mistake as to age is not a defence to this offence, unless the accused person believed that the child had attained the age of seventeen years. 14. The Accused instituted these judicial review proceedings in January 2026. The criminal prosecution has been adjourned pending the outcome of these judicial review proceedings. 15. There had been an initial skirmish between the parties as to whether the judicial review proceedings were premature, pending the making of findings of fact by the court of trial. The State respondents had made this objection in their written submissions, citing Galvin v. Director of Public Prosecutions [2025] IESC 35. This objection was not, however, pursued at the hearing. It was explained that there had been some confusion as to whether the section 3 charge and another more serious charge arose out of the same incident. It has since been clarified that the more serious charge relates to a separate incident on a separate date. 16. The Supreme Court has recently held that where a case consists of a direct challenge to the validity of a piece of primary legislation enacted by the Oireachtas—and entitled, therefore, to a presumption of constitutionality—it should be brought by way of plenary proceedings: Z.G. v. Ireland [2025] IESC 49 (per O’Donnell C.J., at paragraphs 22 to 25). It appears from the judgment that a court may have a limited discretion to allow a case go by 6 way of judicial review. The judgment also cautions against the form of proceedings becoming a trap to be sprung on one side or avoided on the other. 17. The parties did not address me on this specific procedural point, and the proceedings were heard on 10 March 2026 on the basis of affidavit evidence alone. In preparing this judgment, I have carefully considered whether the proceedings should now be reopened and remitted to plenary hearing. I have decided that they should not for the reasons which follow. 18. First, the constitutional challenge is tightly framed and focuses on the absence— from the “peer consent” defence—of any allowance for the contingency of a reasonable mistake as to age. The parties are agreed that, in consequence of the judgment of the Court of Appeal in Oscar v. Director of Public Prosecutions, this result follows from the proper interpretation of section 3. The Accused has not sought to challenge the legislative choice to employ the threshold of fifteen years as a proxy for maturity and capacity; rather the objection is that regard should be had to the reasonable belief of an accused person as to age. It is not obvious as to what admissible evidence might be adduced in support of this tightly framed argument. This is not a case, for example, where evidence as to the maturity of adolescents and the ability to make an informed consent to sexual activity might be relevant. The burden of proof rests upon the party challenging the constitutionality of a law by reference to Article 40.1, and if that party is content to confine the constitutional challenge to such a tightly framed argument, it would be inappropriate for the court to descend into the arena and direct that evidence be produced. 19. Second, this case involves two young people, the Accused and the Complainant. The criminal prosecution is subject to the protocol to expedite rape and murder 7 cases involving victims and defendants under eighteen years of age (published on 21 February 2025). The criminal prosecution relates to incidents alleged to have occurred more than three years ago (January 2023). If the hearing of the judicial review proceedings were to be reopened, this would push back the trial date for the criminal prosecution even further. 20. Of course, the overarching objective is to ensure that the constitutional challenge is properly considered, and if the just resolution of same necessitated the reopening of the hearing, then this would have to be done notwithstanding the further delay. It is not apparent, however, that the reopening of the hearing would produce any practical benefit. The Accused, with the benefit of legal advice from an experienced legal team, has elected to pursue his constitutional challenge by reference to a tightly framed argument. As discussed above, it is not obvious as to what admissible evidence might be adduced in support of this argument. 21. In the circumstances, the interests of justice are best served by the prompt resolution of the judicial review proceedings. This will provide certainty to the parties as to the extent of the charges to be tried in the criminal prosecution and will allow an early trial date to be fixed. Accordingly, the hearing will not be reopened. CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 22. Section 3 of the Criminal Law (Sexual Offences) Act 2006 (as amended) provides that a person who engages in a “sexual act” with a child who is under the age of seventeen years shall be guilty of an offence. This offence is described in the side note as “defilement”. The offence can consist of any one of the 8 following four sexual acts: (i) vaginal sexual intercourse, (ii) buggery, (iii) rape, or (iv) aggravated sexual assault. 23. There are two express defences to the offence as follows under sub-sections 3(3) and (8): “(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years. […] (8) Where, in proceedings for an offence under this section against a child who at the time of the alleged commission of the offence had attained the age of 15 years but was under the age of 17 years, it shall be a defence that the child consented to the sexual act of which the offence consisted where the defendant— (a) is younger or less than 2 years older than the child, (b) was not, at the time of the alleged commission of the offence, a person in authority in respect of the child, and (c) was not, at the time of the alleged commission of the offence, in a relationship with the child that was intimidatory or exploitative of the child.” 24. As appears, the first of these two defences expressly requires consideration of the accused person’s mental state: a reasonable mistake as to the victim’s age is a full defence. 25. The question of whether the second of the two defences should similarly be interpreted as making an allowance for a reasonable mistake as to age has been considered in Oscar v. Director of Public Prosecutions [2025] IECA 278. The Court of Appeal held (at paragraph 101) that the High Court’s interpretation had 9 been correct: Oscar v. Director of Public Prosecutions [2024] IEHC 279. The High Court had held that the correct interpretation of the special defence under sub-section 3(8) is that it does not create a defence of reasonable mistake as to a complainant having attained the age of fifteen years. The reasoning had been as follows. 26. First, the existence of an express defence of reasonable mistake as to age under sub-section 3(3) militates against the implication of a similar defence under sub- section 3(8). The omission of similar statutory language is properly regarded as deliberate. It is apparent from the structure of section 2 and section 3 of the Act that the Oireachtas was fully alive to the question of mens rea when creating the new categories of child sexual offences. This is consistent with the legislative history: the Criminal Law (Sexual Offences) Bill 2006 was introduced and enacted within a single week, in response to the judgment of the Supreme Court in C.C. v. Ireland (No. 2) [2006] IESC 33, [2006] 4 IR 1. The “peer consent” defence was introduced under the Criminal Law (Sexual Offences) Act 2017, as part of a series of amendments which re-enacted a reasonable mistake defence as part of the revised section. Against this backdrop, the omission, from sub- section 3(8), of an allowance for a reasonable mistake is significant and must be regarded as deliberate. The very fact that the Oireachtas had, within the same set of amendments, expressly provided for a reasonable mistake as to age in one context but not the other, must be regarded as deliberate. 27. It is appropriate, therefore, to apply the maxim expressio unius est exclusio alterius, i.e. to express one thing is to exclude another. This maxim was applied by the Supreme Court in C.C. v. Ireland (No. 1) [2005] IESC 48, [2006] 4 IR 1 (per Geoghegan J., at paragraph 160 of the reported judgment). The presence of 10 a statutory defence (namely, that the accused person had reasonable cause to believe that the girl was of or above the age specified) to one charge, coupled with its absence in the case of another related charge, was held necessarily to imply that the enacting legislation did not intend such a defence to be available in the case of the latter offence. 28. Second, sub-section 3(8) identifies a number of conditions precedent to the availability of the “peer consent” defence. These include that the accused person not be more than two years older than the child concerned. The structure of the sub-section indicates that these conditions precedent are objective, factual matters which do not entail any consideration of the subjective mental state of the accused person. They are directed to the factual circumstances surrounding the conduct rather than to the mental element. 29. Third, the principle underlying the “peer consent” defence is that a child who has attained the age of fifteen years is capable of giving a legally effective consent to a sexual act, within the limited circumstances prescribed under sub- section 3(8). A younger child, such as the fourteen-year old complainant in the present proceedings, is incapable of giving a legally effective consent to a sexual act. This is so irrespective of any mistake, reasonable or otherwise, on the part of an accused person. It follows that the rival interpretation contended for by the applicant would negate the legislative intent underpinning the “peer consent” defence by sidelining the issue of consent. 30. In summary, the ordinary and natural meaning of the statutory language is that the special defence under sub-section 3(8) is not available unless the child concerned has, as a matter of fact, attained the age of fifteen years. The “peer consent” defence is not available in cases where the accused person has a 11 reasonable, but mistaken, belief as to the age of the child, i.e. that the child had attained the age of fifteen years. (It is always a defence that the accused person had a reasonable belief that the child had attained the higher age of seventeen years). MENS REA: THE CONSTITUTIONAL PRINCIPLES 31. Before turning to address the arguments advanced on behalf of the Accused in relation to mens rea, it is useful, first, to summarise the principles enunciated in the case law cited on his behalf. 32. The first judgment relied upon is that of the Supreme Court in C.C. v. Ireland (No. 2) [2006] IESC 33, [2006] 4 IR 1. There, the Supreme Court found the form of “absolute liability” provided for under sub-section 1(1) of the Criminal Law (Amendment) Act 1935 to be inconsistent with the Constitution of Ireland. The legislative provision had made carnal knowledge of a girl under the age of fifteen years a criminal offence. The Supreme Court had previously interpreted the legislative provision as excluding a defence of mistake on the part of the accused person as to the girl’s age (C.C. v. Ireland (No. 1) [2005] IESC 48, [2006] 4 IR 1). 33. The Supreme Court in C.C. v. Ireland (No. 2) characterised the statutory offence as wholly removing the mental element and expressly criminalising the mentally innocent (paragraph 40 of the reported judgment). The Supreme Court then stated as follows (at paragraphs 43 and 44 of the reported judgment): “[…] There is simply no [defence of due diligence] available here. No form of due diligence can give rise to a defence to a charge under s. 1(1), even where the defendant has been positively and convincingly misled, perhaps by the alleged victim herself. 12 It appears to us that to criminalise in a serious way a person who is mentally innocent is indeed ‘to inflict a grave injury on that person’s dignity and sense of worth’ and to treat him as ‘little more than a means to an end’ […]. It appears to us that this, in turn, constitutes a failure by the State in its laws to respect, defend and vindicate the rights to liberty and to good name of the person so treated, contrary to the State’s obligations under Article 40 of the Constitution. These rights seem fundamental […]”. 34. The position is summarised as follows (at paragraph 49 of the reported judgment): “I cannot regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual or as meeting the obligation imposed on the State by Article 40.3.1 of the Constitution:- ‘The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.’” 35. The second judgment relied upon by the Accused is that of the Supreme Court in C.W. v. Minister for Justice and Equality [2023] IESC 22, [2024] 3 IR 554. There, the Supreme Court considered a different aspect of the Criminal Law (Sexual Offences) Act 2006. More specifically, the Supreme Court considered whether it was permissible to impose a legal burden on an accused person to prove the defence of reasonable mistake as to age to the civil standard of proof. For present purposes, the part of the decision in C.W. v. Minister for Justice and Equality which is of most immediate relevance is the Supreme Court’s characterisation of the ratio of its earlier decision in C.C. v. Ireland (No. 2). This is to be found at paragraphs 179 to 182 in the joint judgment of O’Donnell C.J. and O’Malley J., as follows: “The judgment in C.C. No. 2 is replete with references to ‘mental innocence’, ‘moral innocence’, ‘lack of blameworthiness’ and ‘absence of guilty intent’. It is firmly 13 stated that the requirement for mental guilt before conviction for a serious criminal offence is of central importance in a civilised legal system. However, it seems to us that, read in the light of the judgments in C.C. No. 1 (in which four of the same members of the Court participated) the judgment does not turn on questions of moral innocence. Certain things are clear. Firstly, the Court accepted that it is a general principle of the common law that a person should not be convicted of a serious criminal offence in the absence of guilty intent. Quite apart from issues concerning the allocation of the burden of proof, that principle underlies the general rule that a person will not be convicted if he or she acts under a mistaken factual belief, such that had the facts been as believed, no offence would have been committed. In this regard, the majority judgment in C.C. No.1 (Geoghegan J.) endorsed the views of Brett J. in Prince. However, the majority accepted that, given the history of the Act of 1935 and the differences between it and the preceding legislation, the presumption as to mens rea in the construction of a criminal offence had been rebutted in ‘compellingly clear’ circumstances. Secondly, the references to ‘moral innocence’ must be assessed with caution. The appellant C.C. could not have been considered to be a ‘morally innocent’ person since he had, even on his own account, committed a criminal offence by engaging in intercourse with an underage girl who he knew did not have the capacity to give a legally valid consent. The Court’s analysis must be seen as having been directed, therefore, to his potential innocence, in legal terms, of the offence with which he had been charged. Thirdly, the Court’s most explicit objection to the provision was that there was ‘absolutely’ no defence to the charge. In its view, the right of an accused not to be convicted of a true criminal offence in the absence of mens rea was not simply qualified or limited by the 1935 Act in the interest of some other right, but had been ‘wholly abrogated’. As one counsel pithily put it in the course of this appeal, ‘there was no way out’. In our view this is the ratio of the decision. In the circumstances it appears clear that the Court was prepared, in principle, to accept that there could be some qualification of the defence rights. Further, when this is coupled with the acceptance by the Court that there were a number of options for the legislature, including the deployment of presumptions against the accused, it seems clear that the Court would in principle have accepted that a burden of proof could be imposed on the defence in this regard. Indeed, the discussion 14 in C.C. (No.1) contained a number of passages which seemed to contemplate the possibility of a provision which required the defendant to prove mistake on the balance of probabilities.” 36. The Supreme Court went on to confirm that the objective of the legislation justified both the imposition of a burden of proof on the defence and the requirement that the mistake be reasonable. See paragraph 227 of the reported judgment as follows: “Policy considerations relating to particular kinds of activity are, therefore, legitimate matters to be taken into account. We have no hesitation in holding that a burden of some sort is justifiable in the case of the offence under consideration. We take this view in part because what the accused person is proved to have done is, as a matter of fact, unlawful, since the child was not capable of giving a legally valid consent, and partly because it is an offence where, unusually, it is possible that the victim is in fact a willing participant and may be a reluctant witness. Part of the point of the legislation criminalising sexual activity with the very young is that they may sometimes need protection from their own wishes. Someone who engages in such activity with a young person can fairly be asked to show some basis on which the court of trial can accept that they were not simply exploiting a child, but genuinely and reasonably believed that they were dealing with an older person. The core problem in the case is the standard of proof that must be met.” 37. Ultimately, however, the Supreme Court found that the pitching of that burden at the level of proof on the balance of probabilities either impairs the right to be presumed innocent to the point where it must be considered disproportionate and contrary to the constitutional presumption of innocence, or fails to guarantee a trial in due course of law as required by Article 38 of the Constitution of Ireland. 38. In the present case, counsel on his behalf submitted that had the Accused been factually correct in his (asserted) belief that the Complainant had been fifteen years of age at the time, then the sexual intercourse would have been lawful (assuming that it had been consensual). Counsel seeks to assimilate the 15 Accused’s position to that of the accused person in C.C. v. Ireland (No. 2). With respect, this comparison is fallacious. The crucial distinction between the statutory offence under section 3 of the Criminal Law (Sexual Offences) Act 2006, and that at issue in C.C. v. Ireland (No. 2), is that under the latter offence the mens rea requirement had not simply been qualified or limited but had been “wholly abrogated”. By contrast, an accused person cannot be convicted of a criminal offence under section 3 of the Criminal Law (Sexual Offences) Act 2006 in circumstances where he or she can prove that they were reasonably mistaken that the child had attained the age of seventeen years. A conviction can only be entered where the accused person engaged in a sexual act with a child who is under the age of seventeen years in circumstances where the accused person either knew that the child was under age or was reckless in respect of the child’s age, in the sense of there being no grounds for a reasonable mistake as to age. 39. The core offence has been defined in a manner which expressly allows for a defence of mistaken belief as to age. This meets the concerns identified in C.C. v. Ireland (No. 2). This proposition is not undermined by the subsequent introduction, under the Criminal Law (Sexual Offences) Act 2017, of a special defence in the circumstances delineated under sub-section 3(8). It is constitutionally permissible for the legislature to carve out an exception to address the contingency of consensual sexual intercourse between two older children who are close in age. It is fundamental to this special defence that the child concerned have capacity to give a legally effective consent. The legislature has determined that this necessitates that the child concerned must be at least fifteen years of age. The existence of this factual state of affairs is a condition 16 precedent to the availability of the special defence. 40. In summary, the overall structure of the legislation does not offend against the principles identified in C.C. v. Ireland (No. 2) as subsequently explained in C.W. v. Minister for Justice and Equality. EQUALITY GUARANTEE / ARTICLE 40.1 (A). OVERVIEW 41. The Accused contends that the failure to make any accommodation, as part of the “peer consent” defence, for the contingency of a reasonable mistake as to age entails a breach of the guarantee of equality before the law enshrined in Article 40.1 of the Constitution of Ireland. 42. The discussion of this second limb of the challenge to the constitutional validity of the legislation is structured as follows. First, the principles governing a claim that there has been a breach of the equality guarantee will be summarised. This summary will refer, in particular, to case law which addresses equality claims in the context of offences alleged to have been committed by children. Second, the application of the principles to the circumstances of the present proceedings will be examined. (B). GOVERNING PRINCIPLES 43. Article 40.1 of the Constitution of Ireland provides as follows: 17 “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” 44. The principles governing a claim that there has been a breach of the equality guarantee have recently been summarised by the Supreme Court in Donnelly v. Minister for Social Protection [2022] IESC 31, [2023] 2 IR 415 (per O’Malley J., at paragraphs 191 and 192 of the reported judgment): “The authorities do demonstrate support for the following propositions: (i) Article 40.1 provides protection against discrimination that is based on arbitrary, capricious or irrational considerations. (ii) The burden of proof rests upon the party challenging the constitutionality of a law by reference to Article 40.1. (iii) In assessing whether or not a plaintiff has discharged that burden, the court will have regard to the presumption of constitutionality. (iv) The court will also have regard to the constitutional separation of powers, and will in particular accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy. (v) Where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny. Conversely, where there is no such impact, a lesser level of examination is required. (vi) The objectives of a legislative measure, and its rationality (or irrationality) and justification (or lack of justification) may in some cases be apparent on its face. Conversely, in other cases it may be necessary to adduce evidence in support of a party’s case. 18 It is necessary, therefore, to look at the elements of a successful claim. In my view, the formulation adopted by Barrington J. in Brennan v. Attorney General [1983] I.L.R.M. 449 and approved a number of times in this Court is consistent with the analysis in Dillane v. Ireland [1980] I.L.R.M. 167. The statutory classification must be for a legitimate legislative purpose, and it will not be legitimate if it is arbitrary, capricious or irrational. Further, the classification must be relevant to the legislative purpose, and it will not be relevant if it is incapable of supporting that purpose.” 45. The approach to be adopted in the case of a “pure” equality claim—i.e. a claim where a claimant does not allege that a substantive right of theirs has been breached, but rather that it is unfair, to the point of constitutional invalidity, to confer a benefit on others while excluding them—is summarised as follows (at paragraph 195 of the reported judgment): “What might be termed a ‘pure’ equality claim may arise where the legislature has decided to confer a benefit on a class of persons, and the plaintiff is aggrieved at being excluded because he or she has at least some relevant similarity with those who are included. But the legislature is entitled to make policy choices, and therefore must be entitled to distinguish between classes of persons. To refer again to the text of Article 40.1, the equality guarantee is not to be interpreted as meaning that the State shall not, in its enactments, have ‘due regard’ to differences of physical and moral capacity, and of social function. I consider, therefore, that the challenge can only succeed if the legislative exclusion is grounded upon some constitutionally illegitimate consideration, and thus draws an irrational distinction resulting in some people being treated as inferior for no justifiable reason. The Constitution does not permit the court to determine that the plaintiff should be included simply because a more inclusive policy, assimilating more people sharing some relevant characteristic into the class, would be ‘fairer’.” 46. The Supreme Court rejected the contention that a proportionality test should apply to a “pure” equality claim. In particular, O’Malley J. cautioned that direct resort to a proportionality test would seem to put the courts in the position of another House of the Oireachtas, with the power not only to overturn the choices 19 made by the elected members, but in effect to alter such choices and create new legislation based on the judges’ view of what the more proper choices would have been. 47. In O’Meara v. Minister for Social Protection [2024] IESC 1, [2024] 1 I.L.R.M. 437 (at paragraph 14), O’Donnell C.J. reiterated that the concept of equality involves not only treating like cases alike, and unalike cases unalike, but also that where a differentiation is made, it is made and justified by reference to the manner in which the comparators are unalike. 48. The outcome in O’Meara suggests that if the legislation under challenge is internally inconsistent in its treatment of the supposedly distinct class, this may support an inference that the distinction is arbitrary, capricious or irrational. On the facts of O’Meara, there were significant inconsistencies in the operation of the impugned social welfare benefit, namely, a payment to widowers, widows and surviving civil partners. The State had sought to justify its denial of the social welfare benefit to surviving cohabitees by reference, inter alia, to the particular status afforded to the institution of marriage under Article 41.3.1° of the Constitution of Ireland. O’Donnell C.J. observed that the differentiation is not even made on the basis of present marital status and does not conform to any clear or justifiable principle. 49. As explained by the Supreme Court in Z.G. v. Ireland [2025] IESC 49 (per O’Donnell C.J., at paragraphs 46 and 47), the question of whether the use of age as a classification offends against the equality guarantee falls to be determined by reference to Donnelly rationality: “I agree that discrimination on age grounds can be discriminatory and offensive to Article 40.1, although it falls into a different category to other immutable characteristics because it is a classification regularly and legitimately used. 20 However, if such a categorisation is arbitrary or irrational in the sense that it is not rationally connected to the purpose of the provision or indeed animated by prejudice or stereotyping, then it will be irrational as explained in Donnelly, and therefore invalid. In my view therefore, proper application of an irrationality standard will capture any age-based discrimination which is invidious, arbitrary, unfair or the product of prejudice. This matter can be approached in a different way. If strict scrutiny is applied, then at its most demanding it means that a legislative provision, even if it operates beneficially in every other case, will be struck down if it cannot be justified in even one case. This is indeed the same test that is applied to legislation which is alleged to breach the constitutional rights of the citizen. However, a rationality test looks at whether the provision is broadly justifiable, even if it may be argued that some people at the margins benefit when they need not, and some people do not benefit but perhaps should. Age-based distinctions are classic examples of the latter. There is no magic to an 18th birthday but most classifications which distinguish on that basis cannot be impugned simply by pointing to a 17 year old who could benefit from the provision and a 19 year old who should not. The statute inevitably operates on a generalisation, and the proper question in such a case is whether the broad distinction between children and adults (and whatever the age chosen) is a relevant and rational one in the light of the statutory purpose.” 50. On the facts of Z.G. v. Ireland, the use of age as a proxy for maturity was upheld. More specifically, it was held that a statutory classification, which precluded children under the age of eighteen years from succeeding to a residential tenancy held by a family member, was rationally connected with a legislative purpose which sought to balance security of tenure against landlords’ constitutional rights. The Supreme Court emphasised that a child does not enjoy autonomy as to where he or she resides and does not have legal capacity to enter into a binding contract. It was rational, therefore, to differentiate between a child and an adult in the context of the right to succeed to a residential tenancy. 21 51. It may assist the reader in a better understanding of the discussion which follows to refer to two recent judgments which illustrate the practical application of the foregoing principles in the context of criminal legislation which differentiates between classes of accused persons by reference to their age. 52. The first judgment is that in M. v. Ireland [2024] IEHC 523. The High Court held that a statutory classification, which applied a different sentencing regime to two subsets of juvenile offenders by reference to their age as of the date of sentencing rather than as of the date of the commission of the offence, breached the equality guarantee. The court ruled that the statutory classification was not rationally connected with any legitimate legislative purpose. Indeed, it cut against the underlying purpose of section 96(3) of the Children Act 2001, by denying the benefit of the discretionary sentencing principles to a subset of juvenile offenders by reference to an arbitrary point of distinction, namely the fact that they have reached the age of eighteen years prior to being sentenced. The current age of a juvenile offender does not affect their moral culpability as of the time of the commission of the offence. 53. The second judgment is that of Brophy v. Director of Public Prosecutions [2026] IESC 7. The Supreme Court upheld a statutory classification which denied the benefit of a particular form of criminal procedure to adults who were charged with offences said to have been committed while they were children. O’Malley J., writing for the majority, held that the distinction drawn in this respect by the legislature between adults and children is for an entirely legitimate purpose and is neither arbitrary, capricious nor irrational. The dominant legislative purpose was to protect the position of individuals who were still children at the time of their participation in the trial process and at the time of 22 sentencing. In contrast to M. v. Ireland, the person’s age as of the time of the criminal trial was a relevant consideration precisely because the legislative provision in question sought to accommodate their vulnerable status as a juvenile trial participant (rather than their reduced moral culpability). Relationship between the two limbs of Article 40.1 54. The Accused has made a very specific submission in respect of the interaction between the two limbs of Article 40.1. It is convenient to consider this submission now, as part of the overall discussion of the governing principles. 55. It will be recalled that the second sentence of Article 40.1 indicates that the first sentence shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function. The Accused’s argument is that the second sentence represents an exhaustive list of the circumstances in which unequal treatment is permissible. The argument is summarised as follows in the Accused’s written legal submissions: the constitutional guarantee of equality is said to be “subject only to qualification by statutory provisions which are justifiable on differences of capacity, physical or moral, or of social function”. 56. With respect, this argument is inconsistent with the recent case law of the Supreme Court. As explained in Donnelly v. Minister for Social Protection, a legislative classification will not offend against the equality guarantee if it is relevant to, and capable of supporting, a legitimate legislative purpose. The judgment does not stipulate that a legislative purpose will only ever be legitimate if it is confined to the grounds of discrimination enumerated under the second sentence of Article 40.1. A legislative classification may be justified, for example, on the ground that it is rationally connected with and capable of 23 supporting other constitutional values such as the protection of the institution of marriage. 57. An example of a case where a legislative classification was upheld on grounds other than capacity and social function is provided by the judgment in Re: The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360. The Supreme Court rejected an argument that the imposition of stricter conditions and limitations on judicial review proceedings, which were confined to proceedings seeking to invalidate immigration decisions, breached the equality provision. The impugned legislative provisions were facially neutral, but entailed a form of indirect discrimination in that they affected only a subset of litigants, defined by the subject matter, i.e. the recipients of immigration decisions. The legislative provision thus differentiated between non-nationals and citizens. The Supreme Court upheld the difference in treatment by reference to the legitimate legislative purpose: see page 403 of the reported judgment as follows: “Accordingly, even though by their very nature each one of the conditions and limitations which s. 5 of the Bill seeks to introduce apply only to non-nationals, the court is satisfied that they are justified by an objective legitimate purpose independent of the personal status or classification of the persons affected by them.* For the reasons already stated, those conditions and limitations are consistent with a constitutional right of access to the courts and the principles of constitutional justice. They cannot be said to treat the persons concerned unfairly.” *Emphasis (italics) added 58. As appears, the judgment does not anchor the justification in any supposed differences of capacity, physical and moral, nor of social function. 59. For completeness, it should be observed that even if the second sentence of Article 40.1 did have the constraining effect contended for by the Accused, the legislative classification and resulting exclusion under the Criminal Law (Sexual 24 Offences) Act 2006 (as amended) can be said to be predicated on a difference in capacity, i.e. the differing capacities of adults, older children, and children under the age of fifteen, respectively, to give informed consent to sexual activity. It follows that even on the Accused’s contended-for interpretation of Article 40.1, the legislative provisions pass muster. (C). APPLICATION OF PRINCIPLES COMPARATOR 60. The starting point for the analysis of a claim that there has been a breach of the equality guarantee is to identify a comparator against whom the treatment of the party challenging the legislation can be contrasted. The exercise is described as follows in O.R. (A minor) v. An tArd Chláraitheoir [2014] IESC 60, [2014] 3 IR 533 (per O’Donnell J., at paragraph 241 of the reported judgment): “[…] Any equality argument involves the proposition that like should be treated alike. Any assertion of inequality involves identifying a comparator or class of comparators which it is asserted are the same (or alike), but which have been treated differently (or unalike). In each case it is necessary to focus very clearly on the context in which the comparison is made. It is important not simply that a person can be said to be similar or even the same in some respect, but they must be the same for the purposes in respect of which the comparison is made. A person aged 70 is the same as one aged 20 for the purposes of voting, but not of retirement.” 61. In the present proceedings, the statutory classification differentiates between children above and below the age of fifteen years. The legislation dictates that a child below the age of fifteen years is incapable of giving a legally effective consent. The Accused submits that this gives rise to a parallel difference in the 25 treatment of those who are accused of an offence, contingent on the age of the complainant. 62. Here, the comparison is between two children, each of whom engaged in a sexual act with another child on the basis of a reasonable belief that the other child was aged fifteen years or upwards. In the case of the first comparator, the reasonable belief as to age was factually correct; in the case of the second comparator, the reasonable belief was mistaken because the child was, in fact, less than fifteen years of age. The first comparator would, in principle, be able to invoke the “peer consent” defence, the second comparator would not. (It is assumed for the purpose of the comparison that the gap in age between the two participants in each scenario is not more than the two years prescribed under the legislation). The difference in treatment is a function of the age of the respective complainants and their ability to give a legally effective consent. The two comparators are not similarly situated to this extent: the second comparator has engaged in sexual activity in the absence of a legally effective consent. 63. It is submitted on behalf of the Accused that the legislation produces an unlawful discrimination between the two comparators in circumstances where, it is said, each lacks any moral culpability. Both of the comparators had a reasonable belief that the other child, with whom they engaged in a sexual act, was aged fifteen years or upwards. Yet the second comparator cannot avail of the “peer consent” defence. 64. The Accused seeks to analyse the statutory classification by reference to the characteristics of the accused person alone, without any reference to the characteristics of the complainant. On this analysis, the complainant’s actual age is treated as an external and morally neutral fact. 26 65. With respect, this framing does not correctly identify the statutory classification which is actually being made under the “peer consent” defence. In truth, the statutory classification is directed, principally, to prescribing the age at which a child has legal capacity to consent to a sexual act. The legislation does not treat the two comparators differently because of any characteristic personal to them; rather, the legislation regards the age of a complainant as decisive to the availability of the “peer consent” defence. The question for determination in these proceedings is whether this statutory classification satisfies the Donnelly rationality test. IDENTIFYING THE LEGISLATIVE PURPOSE 66. In order to assess whether a statutory classification pursues a legitimate legislative purpose, it is necessary, first, to identify the legislative purpose itself. The court must be careful to avoid the trap of engaging in circular reasoning. To elaborate: the governing principles require the court to determine whether the identified legislative purpose is legitimate and whether the classification it creates is rationally connected to that purpose. This presupposes that the legislative purpose can be identified independently of the classification. If, however, the court were to identify the legislative purpose solely by reference to the classification itself, then the “rationally connected” test becomes entirely circular. The legislative purpose, so identified, would amount to no more than a restatement of the classification. Every classification can be said to be rationally connected to its own terms. 67. The risk of circular reasoning is most acute where the legislative provision under challenge is one that draws a bright line, such as, for example, an age threshold. 27 In such cases, there may be a temptation to identify the legislative purpose by reference to the line that was drawn, and then to conclude that the line is rationally connected to that purpose. The classification supplies its own justification. 68. To avoid the risk of circular reasoning, a court must steer a course between two poles. If the legislative purpose is described too narrowly, then it will be conclusory; if described too broadly, then an array of classifications might be said to be rationally connected to it. The court must find a level of specificity that is neither so narrow as to be a restatement of the classification, nor so broad as to be incapable of disciplining the inquiry. 69. Applying this approach to the present proceedings, it is necessary to consider not only the wording of section 3(8) of the Act but also its legislative context and the legislative history. 70. The legal effect of the Criminal Law (Sexual Offences) Act 2006 is to criminalise certain sexual acts involving children under the age of seventeen years. It is apparent from the following features of the legislation that the mischief sought to be addressed is the risk of exploitation of children in light of their immaturity and vulnerability. (1). The Act distinguishes between children under the ages of seventeen and fifteen, respectively, and prescribes more severe penalties in respect of offences involving the younger cohort. This is indicative that the Oireachtas regards age as a proxy for immaturity and vulnerability. A sexual act involving a child under the age of fifteen years is regarded as more serious and as justifying a more severe penalty. (2). As originally enacted, the Criminal Law (Sexual Offences) Act 2006 did 28 not contemplate that a child under the age of seventeen years could ever give a legally effective consent. This position has since been modified by the Criminal Law (Sexual Offences) Act 2017. The Oireachtas has now determined that a child who has attained the age of fifteen years is, in certain limited and carefully defined circumstances, capable of giving a legally effective consent to a sexual act. The legal capacity to consent exists only where the other party is close in age, holds no position of authority over the child, and is not in an intimidatory or exploitative relationship with him or her. The Oireachtas has, again, chosen to use an age threshold as a proxy for maturity. The legislation assumes that a child over the age of fifteen years is capable of giving an informed consent in limited circumstances. This represents a significant exception to the approach previously taken under the legislation as originally enacted. (3). The legislation recognises that children are susceptible to coercive control by persons in authority and by children materially older than themselves, and may be in relationships which are intimidatory or exploitative. These considerations are employed in the context of delineating the limited circumstances in which a child can give a legally effective consent. 71. The dominant purpose of the legislation is readily discernible from the outline markers discussed above. The legislative purpose is to protect children from inappropriate sexual activity, by reason of their immaturity and vulnerability, whilst also recognising that older children have a capacity to consent to sexual activity with their peers in limited circumstances. This legislative purpose is achieved by criminalising sexual acts involving children under the age of seventeen years, save in certain limited circumstances. Relevantly, the 29 legislation serves an additional purpose as follows. The Criminal Law (Sexual Offences) Act 2006 was enacted in response to the striking down of the previous sexual offences legislation by the Supreme Court in C.C. v. Ireland (No. 2). One purpose of the legislation is to ensure compliance with the constitutional requirements in relation to mens rea. See paragraphs 31 to 40 above. IS THE LEGISLATIVE PURPOSE LEGITIMATE? 72. As explained under the previous heading, the legislative purpose of the Criminal Law (Sexual Offences) Act 2006 (as amended) is to protect children from inappropriate sexual activity, by reason of their immaturity and vulnerability, whilst also recognising that older children have a capacity to consent to sexual activity with their peers in limited circumstances. It is necessary next to determine whether this legislative purpose serves a legitimate aim. 73. Article 42A of the Constitution of Ireland recognises and affirms the “natural and imprescriptible rights of all children”. It provides that the State shall, as far as practicable, by its laws protect and vindicate those rights. Approaching the matter from first principles, therefore, the protection of children from sexual abuse is not only a legitimate aim but serves a constitutional imperative under Article 42A. 74. Moreover, Article 45.4.2° recognises that the State shall endeavour to ensure that the tender age of children shall not be abused. As a principle of social policy, this affirmation is not prescriptive but rather “intended for the general guidance of the Oireachtas” and applicable “in the making of laws”. 75. The Supreme Court in C.W. v. Minister for Justice and Equality held that the protection of children from sexual abuse is a legitimate aim. The position is put 30 as follows (at paragraph 235 of the reported judgment): “There is no question but that the subject matter of the 2006 Act — the protection of children — is a matter of legitimate and indeed serious concern for the legislature. We acknowledge the significance of the finding of the ECtHR in K.U. v. Finland CE:ECHR:2008:1202JUD000287202, (2009) 48 E.H.R.R. 52 to the effect that contracting states have an obligation to criminalise, investigate and prosecute crimes of this nature — one can also point out that Henchy J., in his dissent in Norris v. The Attorney General [1984] I.R. 36, took a similar view of the constitutional obligations of the State to protect children. The first part of the proportionality test is therefore satisfied.” 76. It should be explained that this finding was made as part of the application of the proportionality test in the context of a claim that a substantive constitutional right had been breached. To reiterate, the rationality test applies to a “pure” equality claim. The finding that the Criminal Law (Sexual Offences) Act 2006 (as amended) pursues a legitimate aim can be read across to the rationality test. 77. In summary, the requirement that the legislative purpose be legitimate is met. DOES CLASSIFICATION SUPPORT LEGISLATIVE PURPOSE? 78. The difference in treatment, the object of the constitutional challenge, is a function of the manner in which a child’s capacity to give a legally effective consent has been delineated under the Criminal Law (Sexual Offences) Act 2006 (as amended). Section 3(8) of the Act makes it a condition precedent to the availability of the defence that the other child must have attained the age of fifteen years. As explained earlier, the “peer consent” defence is not available to an accused person who makes a reasonable mistake as to the complainant’s age: see paragraphs 22 to 30 above. 79. The question which the Donnelly/Brophy rationality test requires to be answered is whether the difference in treatment is relevant to the legislative purpose, and 31 it will not be relevant if it is incapable of supporting that purpose. For ease of exposition, the term “rationally connected” will be employed as shorthand to describe this limb of the test. 80. Here, the dominant legislative purpose is to protect children from inappropriate sexual activity, by reason of their immaturity and vulnerability, whilst also recognising that older children have a capacity to consent to sexual activity with their peers in limited circumstances. 81. To achieve this legislative purpose, it was necessary to introduce some mechanism for determining whether a child has capacity to give a legally effective consent. The approach applicable in the case of sexual offences against adults, whereby it is assumed that a complainant has capacity to consent, would not achieve the legislative purpose of delimiting the circumstances in which engagement in a sexual act with a child would be non-criminal. 82. The mechanism chosen was to use a child’s age as a proxy for maturity. The Oireachtas determined that a child over the age of fifteen is capable of giving an informed consent to sexual activity, subject to safeguards designed to ensure that the other party is not in a position of authority and that the relationship is not intimidatory or exploitative. 83. The question which arises on a “pure” equality claim is not whether the statutory classification—which causes the impugned difference in treatment—satisfies a proportionality test, but rather whether it satisfies a rationality test. In assessing whether the statutory classification is relevant to, and capable of supporting, the legitimate legislative purpose, the court must have regard to the constitutional separation of powers and accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy. 32 84. As explained in M.D. (A minor) v. Ireland [2012] IESC 10, [2012] 1 IR 697 (at paragraphs 49 and 50), this deference applies to the framing of sexual offences: “[…] The framing of sexual offences in such a way as to protect young people from the dangers of early sexual activity is a matter of notorious difficulty. States have, for centuries, wrestled with questions of great sensitivity concerning the appropriate age to set, whether to differentiate between males of different ages, or to differentiate on grounds of difference in age between the persons, not to mention the more recent liberation of same- sex activities from the stigma of criminality. Decisions on matters of such social sensitivity and difficulty are in essence a matter for the legislature. Courts should be deferential to the legislative view on such matters of social policy.” 85. The Accused’s submissions never properly engaged with the question of whether the root cause of the difference in treatment which he seeks to challenge is rationally connected to the legislative purpose. The most that the Accused does is to argue that an alternative approach had been open to the legislature, whereby the “peer consent” defence could have been extended to include a reasonable mistake as to age. More specifically, the Accused’s argument is that the age threshold should be applied by reference to what he reasonably believed the Complainant’s age to be, rather than by reference to her actual age. 86. The fact, if fact it be, that an alternative approach might have been open to the legislature, and that this alternative would have been more beneficial to the Accused, does not satisfy the rationality test. The question is narrower, and requires consideration of whether there is a rational connection between the statutory classification and a legitimate legislative purpose. The burden of proof lies with the challenger in this regard. The Accused has failed to discharge this burden. This is because the submissions proceed on the mistaken assumption that the legal test is proportionality (rather than rationality), and that the onus is 33 on the State to justify the difference in treatment. 87. The “peer consent” defence consists of a number of cumulative conditions which, collectively, are relevant to, and capable of supporting, the legislative purpose. A child under the age of seventeen years can only give a legally effective consent to sexual activity where the following conditions are fulfilled. (1). The child must have attained the age of fifteen years. This operates as a proxy for maturity and the capacity to give a legally effective consent. (2). The child must have, in fact, consented to the sexual activity. (3). The other party must be close in age or younger, and must not be in a position of authority. The relationship between the parties must not be intimidatory or exploitative. 88. If one removes the first condition, or allows it to be satisfied by reference to the accused person’s belief as to age, rather than the child’s actual age, then the second condition, factual consent, becomes incoherent. A jury cannot meaningfully assess whether a child had consented to sexual activity in circumstances where the legislation underlying the criminal prosecution deems the child to lack the capacity to give a legally effective consent. 89. The fact that an accused person may have had a reasonable belief that the other child was over the age of fifteen years cannot be regarded as a rational proxy for that child’s capacity to give informed consent to sexual activity. Were it otherwise, this would result in an accused person, who has been charged with the offence of engaging in sexual activity with a child under the age of seventeen years, being acquitted—not on the ground that he had made a reasonable mistake as to her being aged seventeen years or upwards—but rather on the ground that a child, aged less than fifteen years, had consented to a sexual act. This would 34 defeat the legislative purpose underlying the “peer consent” defence. 90. As explained earlier, the judgment in O’Meara v. Minister for Social Protection suggests that if the legislation under challenge is internally inconsistent in its treatment of the supposedly distinct class, this may support an inference that the distinction is arbitrary, capricious or irrational. Accordingly, I have carefully considered whether there might be an internal inconsistency in the approach taken under the Criminal Law (Sexual Offences) Act 2006 (as amended) to the significance of a child being under the age of fifteen years. In particular, I have considered whether there might be a contradiction between the fact that a reasonable mistake as to age is a defence to a charge, under section 2, of the defilement of a child under the age of fifteen years, but is not a defence to the distinct charge, under section 3, of the defilement of a child under the age of seventeen years. I have concluded that there is no internal inconsistency. A person who engages in a sexual act with a child knowing that she is under the age of seventeen years is prima facie guilty of an offence under section 3. This is so notwithstanding that he may have made a reasonable mistake to the effect that the child had attained the age of fifteen years. This reasonable mistake as to age would only provide a defence to the more serious offence under section 2, an offence which carries more severe penalties which reflect the gravity of engaging in sexual activity with a very young child. SUMMARY OF CONCLUSIONS ON EQUALITY CHALLENGE 91. The “peer consent” defence under section 3(8) represents an exception to the default position, namely that a child under the age of seventeen years can never give a legally effective consent to sexual activity. The statutory classification is 35 between children over the age of fifteen years and those under that age. This statutory classification is intended to achieve a specific aspect of the legislative purpose, namely the decriminalisation, in certain limited circumstances, of consensual sexual activity between older children. It is correct to say that—in consequence of this statutory classification—two subsets of accused persons fall to be treated differently. The distinction drawn is between those who engage in sexual activity with a fifteen-year old child; and those who engage in sexual activity with a younger child albeit in the mistaken belief that the child had attained fifteen years. As discussed above, the expansion of the “peer consent” defence to include scenarios where an accused person had made a reasonable mistake as to age would defeat the legislative choice to employ age as a proxy for maturity and the capacity to give informed consent. 92. In summary, the use of an age threshold as a proxy for the capacity to give informed consent to sexual activity is rationally connected to the legitimate legislative purpose of the Criminal Law (Sexual Offences) Act 2006 (as amended). It reflects the self-evident principle that adults and children differ in maturity and is consistent with a well-established line of case law which allows for the use of an age threshold as a proxy for maturity. CONCLUSION AND PROPOSED FORM OF ORDER 93. The overall structure of the Criminal Law (Sexual Offences) Act 2006 does not offend against the principles identified in C.C. v. Ireland (No. 2) as subsequently explained in C.W. v. Minister for Justice and Equality. The core offence has been defined in a manner which expressly allows for a defence of a reasonable mistake as to age. This meets the concerns identified in C.C. v. Ireland (No. 2). 36 This proposition is not undermined by the subsequent introduction, under the Criminal Law (Sexual Offences) Act 2017, of a special defence in the circumstances delineated under sub-section 3(8). It is constitutionally permissible for the legislature to carve out an exception to address the contingency of consensual sexual intercourse between two older children who are close in age. It is fundamental to this special defence that the child concerned have capacity to give a legally effective consent. The legislature has determined that this necessitates that the child concerned must be at least fifteen years of age. The existence of this factual state of affairs is a condition precedent to the availability of the special defence. 94. The use of an age threshold as a proxy for the capacity to give informed consent to sexual activity is rationally connected to the legitimate legislative purpose of the Criminal Law (Sexual Offences) Act 2006 (as amended). It reflects the self- evident principle that adults and children differ in maturity and is consistent with a well-established line of case law which allows for the use of an age threshold as a proxy for maturity. Therefore, this court dismisses the argument that the failure to make any accommodation, as part of the “peer consent” defence, for the contingency of a reasonable mistake as to age entails a breach of the guarantee of equality before the law enshrined in Article 40.1 of the Constitution of Ireland. 95. Accordingly, the application for judicial review will be dismissed in its entirety. 96. As to legal costs, the default position under section 169 of the Legal Services Regulation Act 2015 is that the respondents, having been “entirely successful” in resisting the proceedings, would be entitled to recover their costs as against the unsuccessful applicant. There is, however, a complicating factor: the 37 applicant has sought, and is prima facie entitled to, a recommendation under the Legal Aid (Custody Issues) Scheme. The Court of Appeal has held that while not determinative of the question of whether a cost order should be made against an unsuccessful applicant, such matters are a factor to be taken into account: S.O’C. v. Director of Public Prosecutions [2024] IECA 38 (at paragraphs 79 to 85). 97. Having regard to this factor, and to the public interest achieved by these proceedings in clarifying the application of the equality guarantee to the Criminal Law (Sexual Offences) Act 2006 (as amended), my provisional view is that no order as to costs be made in favour of the respondents, and that a recommendation should be made pursuant to the Legal Aid (Custody Issues) Scheme in relation to the applicant’s costs. 98. If any of the parties wish to contend for a different form of costs order than that provisionally proposed, they should notify the registrar by 17 April 2026 and arrange to have the matter relisted before me. Appearances Bernard Condon SC, Brian Storan and Seán Osborne for the applicant instructed by Barry Fitzgerald Solicitors Grainne O’Neill for the first respondent instructed by the Chief Prosecution Solicitor Remy Farrell SC and Joe Holt for the second and third respondents instructed by the Chief State Solicitor