Commission Exercised Amicus Curiae Role in Supreme Court Case
The Irish Human Rights and Equality Commission (the “Commission”) welcomes an important Supreme Court judgment in a criminal case on whether the reversal of the burden of proof onto an accused person is permissible on the “balance of probabilities” having regard to the constitutional guarantee of a right to a fair trial.
The man in this case was convicted of an offence of defilement of a child under the age of 17, under s.3 of the Criminal Law (Sexual Offences) Act 2006 (as substituted by s.17 of the Criminal Law (Sexual Offences) Act 2017) (the “legislation”). The legislation provides for a defence of reasonable mistake to a charge of defilement, where an accused person can prove that they were reasonably mistaken that the child had in fact reached the age of 17. According to s.3(5) of the legislation, an accused person who claimed to have been mistaken about the fact that the child was under 17 years, had to prove that claim on the balance of probabilities, meaning an accused person would have to prove that their defence was more likely to be true than not. The High Court in this case found that s. 3(5) of the legislation was unconstitutional. The State had appealed that decision to the Supreme Court.
In its role as amicus curiae, the Commission had argued that a law that reverses the burden of proof onto an accused person is potentially legitimate. However, compelling justification is required for a reversal of the burden of proof. The Commission argued that the Court must be satisfied that it does not interfere with an accused person’s right to a fair trial as protected by the Constitution. The Commission went on to say that justification for the reversal of the burden of proof is not simply demonstrated by reference to social policy or the gravity of an offence, rather the justification required is that without it the prosecution of the offence would otherwise be rendered “unworkable”.
In its judgment in CW v Minister for Justice, Ireland and the Attorney General, the Supreme Court dismissed the State’s appeal and affirmed the decision of the High Court that s.3(5) of the Criminal Law (Sexual Offences) Act 2006 (as substituted by s.17 of the Criminal Law (Sexual Offences) Act 2017) is unconstitutional.
The Supreme Court held that “while the objective of the legislation is certainly a legitimate one, and justifies both the imposition of a burden of proof on the defence and the requirement that the mistake be reasonable, the pitching of that burden at the level of proof on the balance of probabilities either impairs the right to be presumed innocent to the point where it would be considered disproportionate and contrary to the constitutional presumption of innocence or fails to guarantee a trial in due course of law as required by Article 38 of the Constitution.”
The Court unanimously agreed that the defence burden carrying a standard of proof on the balance of probabilities cannot be justified and it created an unnecessarily high risk of conviction of a person who was so mistaken.
The Commission’s Director, Deirdre Malone, stated:
“The Court’s judgment highlights the importance of the constitutional guarantee of a right to a fair trial. The judgment confirms that any measure placing a burden on an accused person to disprove an offence cannot interfere with their right to a fair trial other than in due course of law.”
ENDS/
For further information, please contact:
Karen Joynt
0851746883
karen.joynt@ihrec.ie
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Editor’s Note
The Commission’s written submissions to the Supreme Court in the proceedings are available at the following link:
https://www.ihrec.ie/documents/cw-v-minister-for-justice-ireland-and-the-attorney-general/
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act 2014 to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. It is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.