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A young man jailed for almost two years for defiling a girl aged 15 when he was aged 19 looks set to win an appeal against his conviction following a Supreme Court decision striking down a provision of the relevant law.
Legal sources anticipate that the court’s judgment means the man’s 2021 conviction, which he has separately appealed to the Court of Appeal, will be overturned, but stressed that the Director of Public Prosecutions (DPP) could decide to seek a retrial.
The man is serving a sentence for a separate offence, on foot of which he is not due for release before 2025.
Standard of proof
The State appealed to the Supreme Court after the man won a High Court challenge over the constitutionality of a law imposing the civil standard of proof – proof on the balance of probabilities – to support his claim that he was reasonably mistaken about the girl’s age.
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Section 3 of the Criminal Law (Sexual Offences) Act 2006, as amended in 2017, concerns offences of engaging in sexual acts with those aged between 15 and 17 years. The Act was rushed into law just weeks after the landmark Supreme Court CC v DPP decision, striking down the offence of unlawful carnal knowledge of a minor, sparked a constitutional crisis.
The defence of reasonable mistake as to age of a complainant, provided for under section 3.3, arises only in a small number of cases because most parties in such cases know each other. The defence is only available to those alleging consensual sex.
Section 3.5 provides, when a reasonable-mistake defence is raised, the onus is on an accused to prove on the balance of probabilities they were honestly and reasonably mistaken about age.
In its judgment on the man’s case, the High Court ruled section 3.5 placed an unjustifiable legal, as opposed to an evidential, burden on the accused which offended his right to a fair trial and infringed the presumption of innocence.
The presumption of innocence applied to the question of reasonable mistake and was for the prosecution to prove, Ms Justice Siobhán Stack held.
‘Very fine’ distinctions
The main Supreme Court judgment, which all seven judges endorsed on Monday, concluded that section 3.5 is unconstitutional albeit via a different route from the High Court. The judgment was co-authored by the Chief Justice and Ms Justice Iseult O’Malley who, despite different interpretations of section 3 based on “very fine” distinctions, concurred section 3.5 is unconstitutional.
The Chief Justice concluded the legal burden of proof imposed on the defendant by section 3.5 did not meet the constitutional standard for a fair trial, while Ms Justice O’Malley held it disproportionately interfered with the presumption of innocence.
The court’s observation that the State had failed to demonstrate the placing of such an elevated burden of proof is necessary either for effective prosecutions or adequately safeguarding victims’ rights may inform the drafting of a law aimed at strengthening the law around consent in sexual offences.
The judgment, the court stressed, does not affect section 2 of the Act, concerning sexual acts with children aged under 15. Noting it is generally easier to assess the age of children under 15 than those over, it said any potential challenge to section 2 would be faced with “very different proportionality considerations”.