Supreme Court to consider burden of proof for ‘reasonably mistaken’ defence in sexual act with person under 17

The Supreme Court will consider the legal burden of proof placed on a defendant seeking to establish they were reasonably mistaken about the age of a child with whom they are accused of engaging in a sexual act.

The State is appealing a High Court decision that deemed a section of the 2006 Criminal Law (Sexual Offences) Act unconstitutional as it imposed more than an evidential burden of proof on an accused who wished to invoke a defence that they were reasonably mistaken in thinking the minor had attained the age of 17 years.

The appellants will argue the High Court failed to have proper regard to the public interest in the protection of children, to the difficulties involved in prosecuting this particular offence and to the rights of the child.

Ms Justice Siobhán Stack ruled last June that it was not constitutionally permissible to place a legal burden to the civil law standard of “on the balance of probabilities” on an accused in a criminal trial rather than an evidential burden only.

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If the accused was only required to meet an evidential burden, they would be acquitted if the jury had a reasonable doubt about their mistaking the child’s age.

The disputed subsection of the 2006 Act, which was amended in 2017, permitted a jury to convict a person even if there was a reasonable doubt or even a likely doubt as to whether the accused had been reasonably mistaken about the age.

The judge held that it was necessary for the prosecution to prove that the accused had a “guilty mind” regarding the age of the child.

The presumption of innocence is of such fundamental importance to the fairness of a trial that it cannot be subjected to “proportionate restriction” as contended by the State, which pointed to the public policy of protecting children, she said.

There has been uncertainty in the law since Ms Justice Stack struck down the relevant subsection, the State parties argued in their application seeking permission to appeal directly to the highest court.

The Minister for Justice, the Attorney General, the Director of Public Prosecutions, and Ireland were granted a direct appeal to the highest court. A panel of three Supreme Court judges found the case raised issues that have “significant constitutional implications” and it should be heard as soon as March.

The court was told its ruling in the appeal will affect a number of pending prosecutions.

The man in this case was convicted of the offence of engaging in a sexual act with a child under the age of 17 and was sentenced to one year and 10 months in prison. This is being served concurrently with another separate sentence for which his release date is in 2025.

The events giving rise to the relevant trial took place about five years ago when he was 19 years and four months old and the complainant was 15 years and 10 months old.

He did not oppose the application for a Supreme Court appeal but disputed the State’s legal arguments.

The State contends Ms Justice Stack erred in concluding that the defence of reasonable mistake as to age could not be regarded as a special or exceptional defence that would warrant carrying a different burden of proof.

It also challenges her finding that the presumption of innocence is not capable of being subject to proportionate restriction.