THE SUPREME COURT has upheld a lower court’s finding that a specific section that acts as a defence to charges brought under the law that criminalises sexual acts with an underage teen is unconstitutional.

The seven-judge court unanimously held that a section of the 2006 Criminal Law (Sexual Offences) Act, which states that the standard of proof required by an accused to prove that they were mistaken about the age of a complainant was ‘on the balance of probabilities’ over 17 years of age must be struck down.

The court said that it was only making findings in relation to the issue of the standard of proof when an accused is mistaken about the age of the complainant, and the rest of the legislation remains “fully capable of operation”.

The section of the 2006 Act that deals with offences against younger children remains “entirely unaffected” the court added.

The case concerns a challenge brought by a serving prisoner against a specific aspect of the 2006 Act that makes it an offence to engage or attempt to engage in a sexual act with a person under the age of 17 years.

That Act contains a defence where the accused can prove that they were mistaken that the child was underage at the time of the offence.

A part of the Act also says that the standard of proof required to prove that the defendant was reasonably mistaken as to the child’s age “shall be that applicable in civil proceedings” namely on the balance of probabilities.

It was against that subsection that lawyers representing the convicted person brought a High Court challenge asking whether it was constitutionally permissible to impose a legal burden on an accused in a criminal trial, as opposed to an evidential burden only.

In 2022, Ms Justice Siobhan Stack found the subsection in question, namely subsection 5 of section 3 of the 2006 Act, as substituted by section 17 of the 2017 Criminal Law (Sexual Offences) Act, was invalid and contrary to Article 38.1 of the Irish Constitution, which states that persons can only be tried with criminal offences that are in accordance with the law.

The judge said that she was of the view that it is an aspect of the fundamental fairness of a criminal trial that an accused should not be liable to conviction where there is a reasonable doubt of their guilt.

The judge said it was constitutionally impermissible “to impose more than an evidential burden on an accused who wishes to invoke that defence, and the imposition on the accused of a standard of proof to the civil standard, i.e., on the balance of probabilities, is contrary to Article 38.1 of the Irish Constitution”.

Therefore, a provision such as that the subsection in question, which deals with the core issue of moral culpability of the accused, and which places an obligation on him to prove on the balance of probabilities that he is not so culpable, is contrary to Article 38.1 of the Constitution, she said.

As a result, the judge said the court should make a declaration that the subsection of the Act was invalid.

The State appealed that decision.

In its ruling the Supreme Court, comprised of the Chief Justice Mr Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Iseult O’Malley, Mr Justice Seamus Woulfe, Mr Justice Gerard Hogan, and Mr Justice Brian Murray, dismissed the appeal.

The Supreme Court agreed that the defence burden, carrying a standard of proof on the balance of probabilities “cannot be constitutionally justified.”

The court found that the section challenged, if it was made to provide a chance of acquittal, created an “unnecessary high risk of conviction” of a person who was mistaken. It also went too far in obliging the accused to establish mental innocence.

While the object of the legislation is a legitimate one and justifies the imposition of the burden of proof on the defence that the mistake was reasonable, having the standard of proof on the balance of probabilities impairs the right to be presumed innocent.

The challenge, which was opposed by the State, was taken by a plaintiff found guilty of an offence under the 2006 Act by a jury at the Circuit Criminal Court. The plaintiff was jailed for a period of one year and 10 months.

His lawyers claimed that the wording of the subsection effectively breached his right to presumption of innocence and his right to a fair trial.

The judge noted that the applicant was 19 years of age when the offence is alleged to have occurred, while the complainant was just under 16 years of age.

His appeal against his conviction remains pending before the Court of Appeal.