Appeal No. 70/09

IpsofactoJ.com: International Cases [2012] Part 3 Case 6 [SCIre]


SUPREME COURT OF IRELAND

Coram

Z.S.

- vs -

Director of Public Prosecutions

DENHAM CJ

MURRAY J

HARDIMAN J

FENNELLY J

MACKEN J

21 DECEMBER 2011


Judgment

Denham CJ

  1. This is an appeal by Z.S., the plaintiff/appellant, hereinafter referred to as “the appellant”, from the judgment and order of the High Court (Murphy J.) given on the 19th December, 2008, refusing a declaration that the offence (with which the appellant is charged) contrary to s. 2(1) of the Criminal Law Amendment Act, 1935, as amended by s. 13 of the Criminal Law Act, 1997, is unconstitutional on the grounds that the statutory provision does not require proof of mens rea as to the age of the complainant, or provide for a defence of honest but mistaken belief as to age.

  2. The appellant is charged with the offence of unlawful carnal knowledge of a girl under the age of 17 years contrary to s. 2(1) of the Criminal Law Amendment Act, 1935, as amended by s. 13 of the Criminal Law Act, 1997, referred to as “the Act of 1935, as amended”.

  3. The appellant is challenging the constitutionality of s. 2(1) of the Act of 1935, as amended. He submits that s. 2(1) creates an absolute liability offence so that the defence of mistake as to the age of the complainant is not open to him. Accordingly, the appellant contends that he is prejudiced and that he is entitled to a declaration of the unconstitutionality of s. 2(1) on the same reasoning as in C.C. v Ireland [2006] 4 I.R. 1.

    Background Facts

  4. The parties agreed a statement of facts in the High Court. The complainant was born on the 9th January, 1987. At the time of the incident complained of she was 16 years of age. The appellant was charged with the offence of unlawful carnal knowledge of a girl under the age of 17 years, contrary to s. 2(1) of the Act of 1935, as amended. The appellant was returned for trial on the 10th February, 2006, to the Dublin Circuit Criminal Court. The prosecution case, inter alia, was that at the time of the alleged incident complained of, the appellant ran a shop and hired the complainant as a shop assistant. The incident complained of occurred on the 23rd October, 2003, when the complainant was working for the appellant as a shop assistant. The complainant alleged that the appellant had raped her and she described an incident of sexual intercourse. Seminal staining was found on the inside of the complainant’s jeans. A blood sample was taken from the appellant. A DNA match was found between the said sample and the semen staining. The appellant was arrested on the 23rd February, 2004, and detained for the offence of rape. The appellant was interviewed and denied having sexual intercourse with the complainant. The appellant was returned for trial by the Dublin Circuit Criminal Court in February, 2006.

    Civil Proceedings

  5. The appellant brought proceedings in the High Court seeking a declaration that s. 2(1) of the Act of 1935, as amended, is invalid having regard to the provisions of the Constitution of Ireland, 1937. The appellant also sought an injunction restraining the Director of Public Prosecutions from prosecuting him on a specified Bill of Indictment pending in the Dublin Circuit Criminal Court, until determination of these proceedings.

    The High Court

  6. On the 19th December, 2008, the High Court refused the relief sought. The High Court held that s. 2, of the Act of 1935, as amended, because of its amended form, enjoys a presumption of constitutionality, and thus the double construction rule may be applied, and as s. 2 is silent as to any mental element, the double construction rule applies so as to provide knowledge of age as a relevant consideration. The learned High Court judge held:-

    In addition, while the court is mindful of the decision in Chadwick to the effect that a long-established interpretation should not be departed from without good reason, the presumption of constitutionality and the double construction rule furnish ample reason for a new interpretation of s. 2. It is clear from the authorities referred to, in particular In re Haughey, that those principles can, subject to established limits, lead the court to adopt an interpretation of a post-Constitution statutory provision which is at variance with that which would flow from an application of the normal rules of statutory interpretation. Indeed, in Chadwick Fennelly J. expressly held (at paras. 36-37) that he would not depart from the traditional interpretation of the provision under consideration because, among other reasons, such an interpretation would not place the provision in conflict with Article 40.3.2° of the Constitution. The fact that s. 2, as amended, has acquired the status of a post-Constitution statute is therefore sufficient to justify a construction of that provision which differs from that which prevailed in respect of s. 2 in its original form.

    Accordingly, the court concludes that s. 2, in its amended form, must be interpreted in such a way as to render knowledge as to age a relevant consideration. This may mean that knowledge as to age is to be regarded as an element of the offence, or that a defence of honest or of reasonable mistake as to age may be invoked. The court accepts the submission of the defendants that that question should be determined by the trial court. As the Supreme Court indicated in C.C., any of the three formulations identified above, and perhaps others, would “pass constitutional muster”, so that once it has been determined that the provision is not of a strict liability nature, the question of what the provision requires is one of statutory interpretation rather than constitutional law. The duty of the trial court, therefore, is to give to the provision whatever interpretation is consistent with the Constitution and flows from an application of the ordinary rules of statutory interpretation, including the unrebutted presumption at common law that some mental element should be inferred.

    [....]

    This court has already determined that s. 2, as amended, is consistent with the Constitution. For the reasons noted above, the basis relied upon in C.C. as excluding the mental element is not present here. Accordingly, it is legitimate and indeed necessary for the trial court to infer a particular mental element under s. 2 as to the age of the complainant by applying the ordinary rules of statutory interpretation.

    Appeal

  7. The appellant filed a notice of appeal on the 4th March, 2009.

    Trial in the Circuit Court

  8. Since the judgment of the High Court, the appellant has been tried for the offence, having been refused an application for a stay. The trial commenced before His Honour Judge McCartan on the 7th April, 2011, and ended on the 13th April, 2011, without the jury reaching a verdict. The defence claimed that the appellant did not know the age of the complainant but that he believed she was 18 years of age. The complainant said her date of birth was on her C.V., and that she said she was only 16 during the alleged attack. The appellant gave evidence that no date of birth appeared on the C.V.; the appellant said he believed her to be 18 because she had said she had two years work experience. The appellant gave evidence that the complainant made the approaches to him and that there was no sexual intercourse. In his charge to the jury, Judge McCartan directed that the defence could rely on an honest belief about the complainant’s age. The jury did not reach a verdict.

    Re-trial

  9. The re-trial of the appellant is due to commence on the 24th January, 2012.

    Issue

  10. Thus at the core of this case is whether the defence of mistake of age is open to the appellant.

    Amendment

  11. Section 2(1) of the Criminal Law Amendment Act, 1935, provided for the offence of unlawful carnal knowledge of a girl between the ages of 15 and 17 years of age. It stated:-

    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.

  12. Section 13 of the Criminal Law Act, 1997, referred to as “the Act of 1997”, amended this section. Paragraph 7 of the First Schedule states:

    The Criminal law Amendment Act, 1935, shall be amended as follows: in section 2(1) and 2(2) (defilement of girl between fifteen and seventeen years of age), “of or over the age of fifteen years and” shall be deleted.

  13. Consequently, the offence, as amended, is:

    Any person who unlawfully and carnally knows any girl who is under the age of seventeen years shall be guilty of a misdemeanour and shall be liable ....

    Re-enactment

  14. The issue then arises as to whether the Act of 1997 was such a re-enactment as to give the status of having been passed since the coming into force of the Constitution, and thus having the presumption of validity, and to which constitutional principles of construction of post 1937 legislation would apply.

  15. In Electricity Supply Board v Gormley [1985] 1 I.R. 129 at p. 147 Finlay C.J. stated:-

    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.

    Where Acts passed since the coming into force of the Constitution expressly re-enact pre-Constitution statutes, this Court has decided on a number of occasions that such re-enactment gives to them the status of having been passed since the coming into force of the Constitution, thus applying the presumption to them. 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.

    With regard to s. 53 of the Act of 1927, however, and the amendment made in it by s. 46 of the Act of 1945, the view of the Court is that the nature and terms of that amendment, which extends and expands the nature of the works to which s. 53 originally applied, and the terms of 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.

    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.

  16. The first issue of law in this case is whether s. 2(1) of the Act of 1935, as amended, 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 analysis of Finlay C.J. above is relevant to this case and I adopt and apply it.

  17. The re-enactment of s. 2(1) of the Act of 1935, by the amendment of the Act of 1997, relates to the age of the complainant. This has important consequences and addresses the nature of the offence.

  18. The importance of the age of a complainant was referred to by Geoghegan J. in C.C. v Ireland 4 I.R. 1 at p. 41, where he stated:-

    The Oireachtas of Saorstát Éireann when enacting the Act of 1935 was clearly intending to revise the offences under the Act of 1885 and to do this in a number of ways. It was clearly intended that what might be described as “the young girl offence” was to be altered to cover girls under fifteen years of age rather than under thirteen years of age. It is equally clear that the intention was to alter what might be described as “the older girl offence” to over the age of fifteen years but under the age of seventeen years instead of over the age of thirteen years and under the age of sixteen years.

    These issues have been re-addressed and re-enacted in the Act of 1997.

  19. The Act of 1997 was an effective re-enactment of the offence. It extended the previous offence to new victims. The amendment in 1997 was a fundamental change to the offence, creating an offence relating to all females under 17 years of age. The amendment extended and expanded the nature of the offence. It was an enactment with a substantive effect. Therefore, the effect of the Act of 1997 was to vest it with the status of an offence in a post Constitution statute and thus it has the status of a post 1937 enactment.

  20. As this Court has determined this appeal as a pre 1937 statutory offence, the issue of determining the case on the basis of s. 2 of the Act of 1935, as amended, constituting a post 1937 statutory offence is not one that I will undertake in all the circumstances.

    Justice Murray J

  21. 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.

  22. 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.

  23. 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.

  24. 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

  25. 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.

  26. 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

  27. 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.

  28. 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".

  29. 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.

  30. 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).

  31. 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.

  32. 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.

  33. 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.

  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. 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

  39. 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.

  40. 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.

  41. 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.

  42. 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.

  43. As regards s.1 of the Act of 1935, this Court in C.C. v Ireland [2006] 4 I.R. 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.

  44. 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.

  45. 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.

  46. 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.

  47. 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.

  48. The leading authority on such an issue is the decision of this Court in E.S.B. v Gormley [1985] I.R. 129.

  49. 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.

  50. 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.

  51. 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.

  52. 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.

  53. 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.

  54. 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.

  55. 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.

  56. 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.

  57. 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.

  58. 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.

  59. It was the amending section 46 of the Act of 1941 that provided for its meaning to be statutorily defined.

  60. 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.

  61. 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.

  62. 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.

  63. 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.

  64. 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.

  65. 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.

  66. 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.

  67. 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.

  68. 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.

  69. 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.

  70. 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.

  71. I accordingly agree with the conclusion of the learned trial judge on this particular question.

  72. 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.

  73. 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.

  74. 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.

  75. 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.

  76. In those circumstances consideration of the constitutionality of s.2(1) as amended by the 1997 Act as post-1937 legislation is excluded.

  77. I express no views whatsoever on the constitutional issues that might have arisen in that context.

  78. 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.

    Justice Fennelly

  79. The Criminal law (Amendment) Act, 1935 created the offences of what was then called unlawful carnal knowledge of girls below the age of 15 (section 1) and between the ages of 15 and 17 (section 2). The Criminal Law Act, 1997 provided that section 2 was to apply to cases of carnal knowledge of all girls under the age of 17. Section 1 of the Act of 1935 prescribed a maximum penalty of penal servitude for life; under section 2 the maximum penalty was five years for a first offence and ten years for a second or subsequent offence.

  80. In C.C. v Ireland [2006] 4 I.R. 1, the constitutionality of section 1 was challenged by reason of the absence of any provision permitting a defence on the ground that the accused reasonably or honestly mistook the age of the complainant. For ease of reference, this will be described as the “mistake defence.” This Court decided the issue in two stages. Firstly, the Court decided by a majority that section 1 of the Act of 1935 by necessary implication excluded any defence based on bona fide or reasonable mistake as to the age of the girl. In a second judgment delivered by Hardiman J, speaking for a unanimous Court, it was decided that the section was, consequently, inconsistent with the Constitution.

  81. The proceedings which have led to this appeal constitute the counterpart of C.C., so far as section 2 is concerned. The appellant has instituted an action by plenary summons in which he alleges that section 2 is invalid, having regard to a number of provisions of the Constitution, essentially for the same reason as persuaded the Court to strike down section 1. The appellant pleads that section 2 created “an absolute offence with no provision for the defence of reasonable mistake as to the age of the complainant.”

  82. There is, however, a difference which has to be considered by the Court. Section 2, unlike section 1, was the subject of amendment in 1997 in a way which would have the effect of extending its scope to offences involving all girls under the age of 17, not merely those aged between 15 and 17.

  83. Section 2(1) of the Act of 1935 provided 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.

  84. Section 13 combined with item number 7 of the First Schedule of the Criminal Law Act, 1997 amended that provision by deletion of the underlined words, “of or over the age of fifteen years and.” Thenceforth, the section purported to apply to cases of carnal knowledge of all girls under the age of 17.

  85. The implications of this amendment are central to the argument on the present appeal. Without that amendment, section 2 would share with section 1 the feature that a defence of honest mistake as to age is not allowed and, as was conceded on behalf of the State, it would suffer the same fate as section 1. If, on the other hand, the post-1937 amendment has the effect of conferring the presumption of constitutionality on section 2, a different result might be achieved. Thus, by application of the double-construction rule and, by implication of a requirement of mens rea, the prosecution would have to prove that the accused did not have an honest belief that the girl was over 17. The section could, if that argument were to be accepted, be rendered compatible with the Constitution.

    The facts

  86. The essential facts relating to the appellant are agreed. On 20th August 2004, the appellant was charged with the unlawful carnal knowledge of a female under the age of seventeen years of age contrary to the provisions of section 2 of the Act of 1935. The act with which he is charged is alleged to have occurred on 23rd October 2003. The complainant was born on 9th January 1987; thus, she was sixteen years of age at the date of the alleged offence.

  87. The appellant was returned for trial at Dublin Circuit Criminal Court on 10th February 2006.

  88. While the complainant alleges that the appellant had sexual intercourse with her, he denies this. Nonetheless, he has indicated his wish to be able to assert a defence to the effect that any sexual intercourse which took place occurred at a time when he had an honest and reasonable belief that the complainant was over the age of 17 years.

  89. By the date of hearing of the appeal, the appellant had been tried in the Circuit Criminal Court. The jury was unable to reach a verdict and the retrial of the appellant is pending.

    The proceedings

  90. The plenary summons in the present case was issued on 30th January 2007. The judgment of this Court in C.C. v Ireland declaring section 1 of the Act of 1935 to be inconsistent with the Constitution had been delivered on 23rd May 2006. Pleadings in the present action were closed in December 2007. The High Court (Murphy J) delivered judgment on 19th December 2008.

  91. Murphy J held, firstly, that the claim of the appellant was not premature: he rejected an argument advanced on the part of the defendants that the proceedings raised issues of statutory interpretation which could only be properly heard and determined at trial in view of the facts and the defence actually proffered.

  92. Secondly, he rejected a challenge made by the defendants to the appellant’s standing to bring the action. It had been submitted that the appellant could not rely on an infringement of constitutional rights in the abstract without showing that his own constitutional rights were infringed. In short, he could not rely on the absence of a provision for a defence of mistake as to age unless he demonstrated that he was affected by that feature of the legislation. The learned trial judge held that the appellant had sufficiently asserted that he had honestly and reasonably believed that the complainant was of sufficient age and that he had, therefore, the necessary standing to mount a constitutional challenge.

  93. The learned trial judge then considered, by careful reference to the authorities, whether the presumption of constitutionality attached to section 2. He referred to the judgments of this Court in ESB v Gormley [1985] I.R. 129 and Representatives of Chadwick (deceased) v Fingal County Council [2007] IESC 49. While agreeing that the amendment merely broadened the scope of application of the offence without engaging either with the issue of the mental element of the offence or any defence to a prosecution under section 2, he held that it did not follow from this that the presumption of constitutionality did not apply to the provision. In particular, the amendment extended the application of the section “to a new event or category of case,” namely the unlawful carnal knowledge of girls under the age of 15. It followed, in his view that the presumption of constitutionality applied.

  94. The learned trial judge then addressed the question whether the presumption of constitutionality had been rebutted. He recalled a wide range of case law on the presumption of constitutionality and the consequential application of the double construction rule. The case was not concerned with section 2 in its original form. The intention of the Oireachtas of Saorstát Eireann could not be attributed to the Oireachtas under the Constitution.

  95. The learned trial judge finally ruled that the section had to be given a constitutional meaning, but left the task as what precise meaning that would be to the trial court as follows:

    Accordingly, the court concludes that s. 2, in its amended form, must be interpreted in such a way as to render knowledge as to age a relevant consideration. This may mean that knowledge as to age is to be regarded as an element of the offence, or that a defence of honest or of reasonable mistake as to age may be invoked. The court accepts the submission of the defendants that that question should be determined by the trial court. As the Supreme Court indicated in C.C., any of the three formulations identified above, and perhaps others, would “pass constitutional muster”, so that once it has been determined that the provision is not of a strict liability nature, the question of what the provision requires is one of statutory interpretation rather than constitutional law. The duty of the trial court, therefore, is to give to the provision whatever interpretation is consistent with the Constitution and flows from an application of the ordinary rules of statutory interpretation, including the unrebutted presumption at common law that some mental element should be inferred.

    The appeal

  96. At the hearing of the appeal, it was accepted that the problem before the Court fell to be analysed in three phases:

    1. Did the amendment to section 2 effected by the Criminal Law Act, 1997 have the effect of conferring on the section the presumption of constitutionality which applies to post-1937 statutes?

    2. If not, does it follow, for the reasons given by this Court in its judgment in C.C., that the section is unconstitutional?

    3. If not, and the double construction rule therefore falls to be applied, what precise meaning, there being several alternatives, should the Court ascribe to the section?

  97. In reality, as the hearing of the appeal proceeded, the focus of analysis became even more narrowly concentrated on the first question. The State, as has already been stated, conceded that, without the presumption of constitutionality, the section could not escape the fate of section 1(1). That concession was correctly made. Leaving the age of the complainant aside, there was no basis for distinguishing between the nature of the offence created by the two sections without application of the double construction rule. On the assumption the provision enjoyed the presumption of constitutionality, it was conceded that it had to be interpreted by the court so as to permit a defence of honest mistake, according to one version at least of the possibilities mentioned by Murphy J.

    Discussion of the presumption of constitutionality

  98. When either the High Court or the Supreme Court, as the case may be, is called upon to consider the exercise of its power to declare laws to be repugnant to the Constitution, it works according to the principle that any Act of the Oireachtas, i.e. any law enacted since the entry into force of the Constitution, enjoys a presumption of constitutionality. More than seventy years ago, in Pigs Marketing Board v Donnelly (Dublin) Ltd. [1939] I.R. 413, Hanna J. stated at p. 417:-

    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.

  99. As the Court has explained, that principle ".... springs from, and is necessitated by, that respect which one great organ of State owes to another" (per O'Byrne J. in Buckley (Sinn Féin) v Attorney General [1950] I.R. 67, at p. 80). The presumption remains a fundamental principle of our constitutional jurisprudence. (see Goodman International Ltd. v Mr. Justice Hamilton [1992] 2 I.R. 542, Finlay C.J.; Curtin v Dail Eireann [2006] 2 I.R. 556.]

  100. An important corollary of that principle is that a court, considering the exercise of that constitutional power, must apply the principle of double construction. Where the legislative provision under examination is reasonably open to two or more interpretations, one of which is compatible with the Constitution and the other or others of which are not, the court must adopt the former interpretation.

  101. Walsh J explained the principle in McDonald v Bord na gCon [1965] I.R. 217 at 239, as follows:

    The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional until the contrary is clearly established. 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.

  102. In East Donegal Co-operative Livestock Mart Ltd. v Attorney General [1970] I.R. 317 at 341, the same judge elaborated the principle in the following terms.

    Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. 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 interpretation 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.

  103. However, the presumption of constitutionality does not apply to laws passed prior to the coming into force of the Constitution. Walsh J explained in State (Sheerin) v Kennedy [1966] IR 379.p.386:

    All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict with the Constitution in force at the date of their enactment or in excess of the powers of the parliament which enacted them, but they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions of Article 50 of the Constitution — not as to their validity but, even assuming they were valid, as to whether or not they are inconsistent with the provisions of the present Constitution.

  104. As the matter was expressed by O’Higgins C.J. in Norris v Attorney General [1984] I.R. 36 at 54:

    However, according to the actual words used in Article 50, the law or laws in question operate unless inconsistency is established, and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not.

  105. By one of the curious ironies of litigation, the State, having argued, in C.C., that section 1 of the Act of 1935 could not be interpreted so as to permit a defence of honest mistake as to age, is now compelled by the consequence of the decision in that case to argue the contrary. For the same reason, the State submits that section 2 of the Act must be considered as a post-1937 enactment by reason of its amendment in 1997.

  106. The question then becomes whether that amendment, given its form and its content, has the effect of transforming a provision enacted in 1935 effectively into a provision enacted by the Oireachtas in 1997.

  107. The spectrum ranges from cases where a pre-1937 act is formally re-enacted, or applied to a new situation, to cases of slight or peripheral amendment.

  108. A good example of the first type of situation occurred on establishment of the new Court of Criminal Appeal by section 3 of the Courts (Establishment and Constitution), Act, 1961. Section 48 of the Courts (Supplemental Provisions) Act, 1961 applied to the newly established courts a large number of enactments relating to the previously existing courts. Amongst these was section 29 of the Courts of Justice Act, 1924, relating to the former Court of Criminal Appeal which had been constituted in accordance with the Act of 1924. Section 29 concerned the finality of decisions of that court. Walsh J in People (Attorney General) v Conmey [1975] 341 at 362 expressed the view that, because that section had been “expressly re-enacted by s. 48 of the Courts (Supplemental Provisions) Act, 1961, it must be given the benefit of the canons of construction laid down by this Court” in the two cases which I have cited in the paragraphs above. The consequence, he explained, was “that it must be assumed that the Oireachtas in 1961 did not intend to violate the constitutional provisions referred to unless the statutory provision leads to no other possible conclusion.”

  109. Finlay C.J., in his judgment in ESB v Gormley [1985] IR 129 envisaged a distinction between re-enactment and mere amendment. At page 147 of the judgment he said:

    Where Acts passed since the coming into force of the Constitution expressly re-enact pre-Constitution statutes, this Court has decided on a number of occasions that such re-enactment gives to them the status of having been passed since the coming into force of the Constitution, thus applying the presumption to them.

    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.

  110. Gormley was concerned with an attack on the constitutionality of statutory powers of the Electricity Supply Board. Firstly, the Board was empowered to enter and place electric lines above or below the ground on privately owned land. Secondly, it was given power to lop or cut trees, shrubs or hedges, which obstructed or interfered with the works of the Board.

  111. In the first case, an Act of 1945 amended an Act of 1927 by giving a greatly extended meaning to the expression "electric line." In this case, the Court held that the 1945 amendment extended and expanded the nature of the works to which the original section applied to such an extent that “this extended or expanded meaning effectively re-enacted s.53 as part of a post-Constitution statute.”

  112. In the second case, the amendment of section 98 of the Act of 1927 by section 5 of the Act of 1945 extended the power of lopping and cutting trees and shrubs to cases of potential obstruction of “the survey of the proposed routes of any transmissions or distribution lines ....” Though considered “less extensive” this amendment was held to have the same effect. Finlay C.J. stated that the amendment.

    expressly extends the powers of the Board contained in s.98 to a new event or category of cases, namely, its requirement to make a survey only as distinct from the placing of a line.

  113. The Court granted to the defendant in ESB v Gormley a declaration that section 53 of the Act of 1927, “as effectively re-enacted,” by amendment in 1945, was invalid, having regard to the provisions of Article 40.s. 3 Constitution essentially because of the absence of any provision for the payment of compensation to landowners for the consequences of the exercise of the statutory powers. It refused any declaration in respect of the provisions of section 98 of the Act of 1927 as amended in 1945. In neither case did the Court address the question of inconsistency of the legislation with the Constitution in the context of Article 50.1 of the Constitution. For that reason, the case is of limited assistance in the present case.

    The present case

  114. Sections 1 and 2 of the Act of 1935 both created offences of unlawful carnal knowledge of a girl. The distinction between the offences created by the two sections lay only in the ages of the female victims. Section 1 made it an offence to have unlawful carnal knowledge of girls under the age of 15. Section 2, as originally enacted, made it an offence to have unlawful carnal knowledge of girls aged over 15 and under the age of 17. Otherwise, the penalty provisions were different. In addition, a prosecution under section 2 had to be brought within a year. So far as the essential elements of the offence, apart from the age of the victim, were concerned, there was no difference. Each section created an offence of unlawful carnal knowledge.

  115. In particular, there was no difference between the two sections in so far as the question of mens rea was concerned. In its judgments in C.C., this court held that the legislature in 1935 had quite deliberately excluded the possibility of any defence based on mistake, bona fide or otherwise, with regard to the age of the girl. The judgments delivered by Geoghegan J and by myself, with both of which Hardiman J and McCracken J agreed, reached this conclusion on the basis of the legislative history of the provisions. It is unnecessary to set out that history in any detail. Suffice it to say that a defence of mistake had been allowed in 1885 in the case of what Geoghegan J called "the older girl" and was included in the Act of 1935 itself so far as persons of feeble mind were concerned. Geoghegan J concluded as follows at page 41:

    However, the proviso permitting the defence of mistake of age in the case of"the older girl offence" was not inserted into the Act of 1935 and by necessary implication this must have been deliberate particularly when regard is had to the fact that the mens rea element inserted into s. 5 of the Act of 1885 in relation to carnal knowledge with women of unsound mind was effectively repeated in the Act of 1935. To hold otherwise would be an unjustifiable distortion of what was clearly the intention of the Oireachtas of Saorstát Éireann.

  116. In my own judgment, I expressed the same view in slightly different words at page 64:

    It is, to my mind, compellingly clear that the Oireachtas, as a matter of deliberate policy, deprived accused persons of the defence of mistake as to age made on reasonable grounds in all cases, but one, in which it had previously been expressly available. It is, therefore, also compellingly clear that the Oireachtas did not intend that such a defence should be available in the case of a charge of the newly enacted offence of unlawful carnal knowledge of a girl under the age of fifteen. A contrary view would make nonsense of the legislation and would, furthermore, run counter to the commonly accepted interpretation of the section which has prevailed for the seventy years since its enactment.

  117. Following a second hearing in this Court in C.C., Hardiman J delivered a judgment with which all members of the Court agreed. He held that “the form of absolute liability provided in s. 1(1) of the Act 1935 [was], in all the circumstances, inconsistent with the Constitution.” He carefully used the word, “inconsistent,” which appears in Article 50.1 of the Constitution, which reads:

    Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.

  118. Hardiman J, at page 86 of the report, discussed a proposal that a more limited declaration might be made declaring the provision inconsistent with the Constitution only to the extent that it excluded a defence of honest mistake. He declined to accept that proposal. The Court, therefore, made an order declaring that section 1(1) of the Act of 1935 was inconsistent with the Constitution.

  119. It has been quite correctly conceded on the part of the State that section 1(1) and section 2(1) cannot be materially distinguished insofar as both provisions, as enacted by the Oireachtas of Saorstát Eireann, excluded any defence of honest mistake regarding the age of complainant. It follows inevitably that section 2(1) was also inconsistent with the Constitution at the time it came into operation. By virtue of Article 50.1 of the Constitution, section 2(1) did not “continue to be of full force and effect ....” after 1937.

  120. Hardiman J explained, at page 86, that the consequence of the provision’s inconsistency with the Constitution was that it did not continue to be of “full force and effect,” as provided by Article 50.1 of the Constitution.

  121. Because of the unique circumstance that, so far as the availability of a defence of honest mistake is concerned, it is indistinguishable from section 1(1) on which the Court has already pronounced, section 2(1) was not continued in effect by Article 50.1 of the Constitution. Expressed otherwise, being inconsistent with the Constitution, it ceased to have any effect in law from the time of coming into operation of the Constitution. Hence, it had no force in law at the date of the passing of the Criminal Law Act, 1997 and its purported amendment by that Act had no legal effect. Put simply, there was no provision in force capable of being amended by item number 7 of the First Schedule of the Act. The Oireachtas did not in 1997 purport to re-enact section 2(1). It mistakenly assumed that it was still in force. The amendment of 1997 took the form of the deletion of the words “of or over the age of fifteen years and” from section 2(1) of the Act of 1935. The Oireachtas did not purport to re-enact section 2(1) as it had done, in the case of section 29 of the Courts of Justice Act, 1924, by section 48 of the Courts (Supplemental Provisions) Act, 1961, considered in People (Attorney General) v Conmey (see paragraph 108 above).

  122. This is, of course, a highly unusual, even unique, situation. It is the consequence of the existence at this point in time of a judgment of this Court declaring inconsistent with the Constitution a materially identical provision. The decision in C.C. v Ireland is crucial. The situation is quite different from the legislative provision at issue in ESB v Gormley, cited above. In that case, there were two provisions in force, which were amended in a way which the Court found to amount to effective re-enactment.

  123. Section 2(1) of the Act of 1935 was, for the same reason as was held in relation to section 1(1) in C.C., inconsistent with the Constitution. It did not survive the entry into force of the Constitution. It was not in force in 1997 and could not be amended by the Criminal Law Act of that year.

  124. The Court will allow the appeal and will set aside the order of the High Court. It will grant a declaration that section 2(1) of the Criminal law (Amendment) Act, 1935 is and was at all material times inconsistent with the Constitution.


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