Judgment of Murray J. delivered on the 21st day of December, 2011 (UNAPPROVED)
1. On 20th August, 2004 the appellant was charged with an offence pursuant to s.2(1) of the Criminal Law (Amendment) Act, 1935 as amended by s.13 of the Criminal Law Act, 1997.
That is the charge and if convicted, it can only be for an offence pursuant to s.2(1) of the Act of 1935 as amended by the Act of 1997.
He is not charged with, nor can he be convicted of, an offence pursuant to s.2(1) of the 1935 Act simpliciter. The gravamen of the charge is that he had unlawful sexual intercourse with a girl under the age of seventeen.
In these proceedings he seeks a declaration that s.2(1) of the Act of 1935 as amended by the Act of 1997 is unconstitutional because it does not permit him to raise an offence of reasonable belief that the girl in question was over the age of seventeen years.
Facts and circumstances
In this particular case the offence pursuant to s.2(1) as amended, is alleged to have been committed on 23rd October, 2004. The complainant was sixteen years of age at the date of the alleged offence. The appellant has denied that any sexual intercourse took place between him and the complainant. However, he has stated that he wishes to be able to put forward a defence that he had an honest and reasonable belief that the complainant, at the time when the sexual intercourse is alleged to have taken place, was over the age of seventeen years.
The appellant has already stood trial for the offence before the Circuit Criminal Court but the jury failed to agree on a verdict and a retrial is pending.
Relevant Statutory Provisions
Section 2(1) of the Act of 1935 provides as follows:
"Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour and shall be liable, in the case of a first conviction of such misdemeanour, to penal servitude for any term not exceeding five years nor less than three years or to imprisonment for any term not exceeding two years or, in the case of a second or any subsequent conviction of such misdemeanour, to any term of penal servitude not exceeding ten years nor less than three years or to imprisonment for any term not exceeding two years."
Section 13 of the Criminal Law Act, 1997, by reference to the first schedule of the Act, amended section 2 by deletion of the words underlined above "of or over the age of fifteen years and".
As and from the amendment made by the Criminal Law Act, 1997 the category of offences for which a prosecution could be brought pursuant to the amended section 2 was extended to included crimes of carnal knowledge of girls under the age of fifteen.
Prior to the amendment of s.2(1) a person who committed the offence of unlawful carnal knowledge of a girl under the age of fifteen years could only be prosecuted pursuant to s.1 of the Act of 1935 and not pursuant to section 2(1).
Section 1(1) provides:
"(1) Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years."
A person guilty of an offence under s.1 was guilty of a felony and liable to penal servitude for life or for a term of not less than three years or to imprisonment for any term not exceeding two years.
The offence under s.2(1) was a misdemeanour and a person so convicted was liable, in the case of a first conviction, to penal servitude for a term not exceeding five years and not less than three years; or to imprisonment for a term not exceeding two years. In the case or subsequent offence under s.2(1) a more severe penalty was provided for.
Section 2(3) provided that no prosecution for a misdemeanour under s.2(1) could be commenced more than twelve months after the date of the commission of the offence.
The criminal liability created by s.2(1) of the Act of 1935 attached only to those persons who committed the offence within the State, as is ordinarily the case regarding criminal offences. In 1996 the Oireachtas decided that the criminalisation of certain sexual offences should have extraterritorial effect. To that end it provided that where a person, being a citizen of, or ordinarily resident in the State, does an act in any place outside the State, against or involving a child, which, if done within the State, would constitute an offence specified in the schedule to the Act, they shall be guilty of such an offence. The one proviso to the foregoing is that the act committing the offence should also be an offence in the place or country in which it was committed. Section 2(1) of the Act of 1935 is one of the offences mentioned in the schedule.
Accordingly in 1996 the Oireachtas extended the application of s.2(1) of the 1935 Act to such offences when committed in most parts of the world.
Section 2 of the Sexual Offences (Jurisdiction) Act, 1996 provides:
"2.—(1) Where a person, being a citizen of the State or being ordinarily resident in the State, does an act, in a place other than the State (“the place”), against or involving a child which—
(a) constitutes an offence under the law of the place, and
(b) if done within the State, would constitute an offence under, or referred to in, an enactment specified in the Schedule to this Act,
he or she shall be guilty of the second-mentioned offence."
One of the enactments as specified in the schedule to the Act is s.2(1) of the Act of 1935. None of the parties adverted to this section in the course of the appeal.
Decision
The first question which arises in this case is whether the issue of the constitutionality of s.2(1) as amended by the Act of 1997, falls to be addressed on the basis that the Court is concerned only with s.2(1) of the 1935 Act as a legislative provision which predates the enactment of the Constitution in 1937 or whether s.2(1) of the Act of 1935 should be deemed to have been effectively re-enacted by the amendment to it as found in s.13 of the Criminal Law Act, 1997 and the schedule thereto. If it is the latter then the well established principle of a presumption, albeit rebuttable, of constitutionality would apply. The principle of presumption of constitutionality was articulated by Hanna J. in Pigs Marketing Board v. Donnelly (Dublin) Limited [1939] I.R. 413 at 417, in the following terms:
"When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established."
In McDonald v. Bord na gCon [1965] I.R. 217 at 239, Walsh J. referred to the practical effect of the principle as follows:
"One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant."
Walsh J. elaborated further on this principle in East Donegal Co-Operative Livestock Mart Limited v. Attorney General [1970] I.R. 317 at 341 when he stated:
"It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpetation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning."
Acts passed prior to the coming into force of the Constitution of 1937 do not enjoy a presumption of compatibility with that Constitution, (see for example The State (Sheeran) v. Kennedy [1966] I.R. 379). Accordingly, it is in that sense that I refer in this judgment to pre-1937 and post-1937 legislation.
As regards s.1 of the Act of 1935, this Court in C.C. v. Ireland and ors [2006] 4 IR 1, decided that it was inconsistent with the Constitution. That section, which had not been amended by the Act of 1997, did not benefit from the presumption of constitutionality. It was found to be inconsistent with the Constitution essentially because it was manifest from its legislative history and its terms that it excluded an accused from raising, in defence to a charge under that section, the defence that he reasonably believed that the complainant was over the age below which sexual intercourse was prohibited.
Section 2(1) is expressed in essentially the same terms as regards the intent to commit the offence. If section 2(1) is considered on its own, without regard to any amendment, and therefore on the basis that it is a pre-1937 provision not enjoying a presumption of constitutionality, it ineluctably follows, from the precedent in C.C. v. Ireland, that it suffers from the same constitutional frailty as s.1 and therefore ought to be declared inconsistent with the Constitution. Counsel for the Attorney General accepted that this was an inevitable conclusion if s.2(1) fell to be interpreted as a pre-1937 provision. He argued however, that s.2(1) as amended by the Act of 1997 must be interpreted as constituting post-1937 legislation and therefore enjoyed the presumption.
C.C. v. Ireland did not involve an adjudication or decision on the constitutionality of s.2(1) as amended or otherwise, that issue now arises in this case.
In the High Court, the learned trial judge, having reviewed the authorities and scrutinised the relevant legislative provisions concluded that s.2(1) must be considered to have been effectively re-enacted, although not expressly so, by the amendment made by the Oireachtas in the Act of 1997. Accordingly, he concluded that s.2(1) of the 1935 Act as amended by the 1997 Act enjoyed the presumption of constitutionality. It was on the basis of such an interpretive approach that he reached his final conclusion on the issue of constitutionality.
Before the issue of constitutionality is resolved one way or the other it must be determined whether s.2(1) as amended by the Act of 1997 should be addressed from the perspective of a legislative provision enacted before the coming into force of the Constitution or a provision which should be deemed to have been effectively re-enacted by the amending provision of the Act of 1997. This I think is important from the point of view of a coherent and holistic approach to judicial review of the constitutionality of Acts of the Oireachtas.
The leading authority on such an issue is the decision of this Court in E.S.B. v. Gormley [1985] I.R. 129.
In that case this Court first of all acknowledged that it was well established that where Acts passed after the coming into force of the Constitution expressly re-enacted pre-Constitution statutes, such re-enactment gave to them the status of having been passed since the coming into force of the Constitution and as a consequence the presumption of constitutionality applied to them. That clearly applies to statutory provisions which are expressly or simply stated to be re-enacted even if in exactly the same terms. Accordingly, legislation enacted prior to 1937 and which might otherwise have fallen foul of the Constitution may nonetheless escape condemnation because of its formal and express re-enactment in the same terms in post-1937 legislation by virtue of an interpretive approach based on the presumption of constitutionality.
However, what the Court had to consider in the Gormley case was an amendment, which did not constitute an express re-enactment, but which by its terms and nature could be regarded as effectively re-enacting the provision or provisions in question and thereby fall to be scrutinised as post-1937 legislation enjoying the presumption of constitutionality.
In E.S.B. v. Gormley the Court was considering the constitutionality of the provisions of s.53 and s.98 of the Electricity (Supply) Act, 1927 as amended by the Electricity (Supply)(Amendment) Act, 1945.
The first issue which the Court had to consider was summed up in the judgment delivered by Finlay C.J. in the following terms:
"The first issue of law which arose on this aspect of the case was whether s. 53 of the Act of 1927, by virtue of the amendment thereof by s. 46 of the Act of 1945, and s. 98 of the Act of 1927, by virtue of the amendment thereof by s. 5 of the Act of 1941, should be deemed to have been enacted or re-enacted by the Oireachtas since the coming into force of the Constitution and thus attract a presumption of validity having regard to the provisions of the Constitution."
The Court then went on to point out that where an Act passed since the coming into force of the Constitution expressly re-enacts pre-Constitution statutes then, according to the established jurisprudence of the Court, such re-enactment gives to them the status of having been passed after the coming into force of the Constitution.
However, the Court pointed out "It is equally clear that the mere fact of an amendment of a pre-Constitution statute contained in a statute passed after the coming into force of the Constitution does not of itself give to that pre-Constitution statute a presumption of validity."
The Court then considered whether s.53 and/or s.98 of the Act of 1927, although not expressly re-enacted, should be deemed to have been effectively re-enacted by virtue of the amendments made to them. The Court began by considering the first of the impugned provisons, namely s.53 of the Act of 1927, as amended, and stated:
"With regard to s.53 of the Act of 1927, however, and the amendment made in it by s.46 of 1945, the view of the Court is that the nature and terms that amendment, which extends and expands the nature of the work to which s.53 originally applied and the terms of the amendment, which not only made that extension but deemed the meaning of "electric line" in s.53 of the Act of 1927 to have always had this extended or expanded meaning, effectively re-enacted s.53 as part of a post-Constitution statute."
The Court referred to the nature and terms of the amendment extending and expanding the original s.53 which was sufficient to have the section treated as having been effectively re-enacted.
Therefore, I think it might be useful to look at the nature and terms of each amendment to s.53 by s.46 of the 1941 Act.
Section 53 of the 1927 Act authorised the board to place "any electric line above or below the ground across any land". Obviously "electric line" had a meaning in the context of the Act of 1927 but there was not a specific statutory definition.
It was the amending section 46 of the Act of 1941 that provided for its meaning to be statutorily defined.
The relevant amendment is as follows:
"46 (2) The expression “electric line” wherever it occurs in the Act of 1927 shall be construed and have effect and be deemed always to have had effect as meaning a wire or wires, conductor, or other means used for the purpose of conveying, transmitting, or distributing electricity and as including any transforming or other apparatus connected with any such wire or wires, conductor, or other means, and as including also any casing, coating, covering, tube, pipe, or insulator surrounding any such wire or wires, conductor, or other means or any such apparatus, and as including also any post, pole, stay, erection, or structure supporting any one or more of the things hereinbefore mentioned."
Effectively what the statutory definition says that "electric line" in the 1927 Act means the electric wire transmitting or conducting the electricity, any transformer or other apparatus connected to such wires including any coating or insulation around such wires or apparatus. It was also stated to include any electricity pole or other structure supporting the electric line.
The ordinary meaning of "electric line" in the 1927 Act, and certainly a purposive interpretation would, one would have thought, have included the electric wire, including any insulation around the wire and perhaps the poles which supported it, in any case the extended meaning given by the amending section, while no doubt significant, was not particularly wide. Nonetheless the section brought certainty as to what the term meant, and indeed should have been deemed to have meant. Although the Court in that particular instance attached some significance to the fact that the meaning was to have a retrospective effect, it cannot have been a decisive factor since it was not a factor in coming to the same conclusion concerning the other section, section 98, which was also amended. That amending section was "deemed" to effectively re-enact s.98 again having regard to its nature and terms.
Section 98 provided that "the board and also any authorised undertaker may lop or cut any tree, shrub, or hedge which obstructs or interferes with any electric wires of the board or of such authorised undertakers." The amending provision, s.5 of the Act of 1941, added to that subsection the words "or with the erection or laying of any such electric wires or with a survey of the proposed routes and any transmissions or distribution lines of the board or of such authorised undertakers". Thus the provision regarding the lopping of trees applies to a couple of extra events.
As regards s.98 the Court also concluded that the amendment constituted an effective re-enactment: It stated:
"Similar considerations apply to the amendment of s. 98 of the Act of 1927 contained in s. 5 of the Act of 1941 which, though less extensive than that contained in s. 46 of the 1945 Act, expressly extends the powers of the Board contained in s. 98 to a new event or category of case, namely, its requirement to make a survey only, as distinct from the placing of a line."
Neither of the amendments made to the Act of 1927 by the Act of 1941 affected the primary constitutional issue in that case, namely the absence of a provision entitling the landowner to reasonable compensation on the exercise of a statutory power to compulsorily acquire land under the Act. Nonetheless such amendments were considered sufficient for the whole of the Act to be considered as effectively re-enacted.
It seems to me that the nature and terms of the amendment which s.13 of the Act of 1997 makes to s.2(1) of the 1935 Act are at least of the same nature and ambit as those considered by the Court in the Gormley case. Indeed they could be said to be of an even greater ambit, especially compared to the amendment of section 98.
Although s.2(1) of the Act of 1935 was amended by the straightforward deletion of the words indicated above it is clear that in 1997 the Oireachtas took a conscious decision that s.2(1) should be extended to cover all those persons who committed the same criminal acts but in respect of a girl of any age below the age of fifteen. This was to extend and apply the criminal offence to a larger and wider category of persons.
Indeed, a person prosecuted for the same offence as the appellant in this case could only have been prosecuted for an offence contrary to s.2(1) by virtue of the 1997 amending section, if the complainant was under the age of fifteen years. He could never have been prosecuted pursuant to s.2(1) of the 1935 Act prior to 1997. It does not seem to me to be logical or coherent to consider an issue as to the constitutionality of s.2(1) as amended by s.13 of the 1997 Act as arising exclusively in relation to the 1935 Act, in one case, or as being the post-1937 legislation in another, based purely on the facts of a particular case, namely the age of the complainant or victim.
The fact that the Oireachtas had, by virtue of the provisions of s.2(1) of the Sexual Offences (Jurisdiction) Act, 1996 and the schedule thereto, effectively extended the application of the Act to the same criminal acts committed in most of the rest of the world is also a material factor. It should however be emphasised that none of the parties mentioned or relied upon this section in their submissions to the Court.
In any case I am satisfied that the nature and terms of the amendment affected by the Act of 1997 is such that the section must be treated as having been effectively re-enacted, consistent with the approach adopted by this Court in E.S.B. v. Gormley.
I accordingly agree with the conclusion of the learned trial judge on this particular question.
On such a basis it would then fall to this Court to approach the question of the constitutionality of s.2(1) as amended by the 1997 Act, on the basis of post-1937 legislation and it would therefore, in principle, enjoy the benefit of the presumption of constitutionality. That of course is a rebutable assumption. Counsel for the Attorney General had "conceded" that on the basis of such an approach the section, as amended, could reasonably be, and should be, interpreted as permitting an accused to raise a defence of reasonable belief that the complainant, was, at the time of the alleged offence, over the age of seventeen.
If the Court had decided to address the issue of constitutionality from a post-1937 perspective it would have had to decide whether the submission of the Attorney General was correct, or whether, in the particular circumstances of the case, including the legislative history, the decision in C.C. v. Ireland, and the nature of the amendment, the presumption had been displaced. These and perhaps other issues would have been open to consideration if the Court had proceeded on that basis.
However, the majority of the Court have concluded that the issue concerning the compatability of s.2(1) with the Constitution, although amended as described, falls to be considered distinctly as pre-1937 legislation which does not enjoy a presumption of constitutionality.
Article 34.4.5 provides that a decision of the Supreme Court on the question as to the validity of a law having regard to the provisions of the Constitution shall be pronounced as that of the Court with no other opinion being pronounced. This provision applies only to such decisions where they concern post-1937 legislation.
In those circumstances consideration of the constitutionality of s.2(1) as amended by the 1997 Act as post-1937 legislation is excluded.
I express no views whatsoever on the constitutional issues that might have arisen in that context.
Accordingly, although I am of the view that s.2(1) as amended by the Act of 1997 falls to be treated as a post-1937 legislation, the question of deciding on its validity having regard to the provisions of the Constitution and giving consideration to same cannot in the circumstances be considered to arise.
