Summary of Judgment by Judge [Last Name] (27 March 2026)

Factual and Procedural Background

The Accused (a pseudonym used in the proceedings) was charged with sexual offences said to have occurred in January 2023. At the time of the alleged offences the Accused was aged fifteen years and four months and the Complainant fourteen years and nine months; both are now adults. The indictment ultimately charged the Accused under section 3 of the Criminal Law (Sexual Offences) Act 2006 (as amended), which carries a lesser maximum sentence than an alternative section 2 charge and contains a "peer consent" defence applicable where the complainant had attained the age of fifteen years. The Accused sought judicial review challenging the constitutional validity of certain provisions of the Act on two principal grounds: (1) that criminal liability cannot arise without a core of criminal culpability and that a reasonable mistake as to the complainant's age should negate mens rea; and (2) that excluding a reasonable-mistake accommodation from the "peer consent" defence breaches the equality guarantee in Article 40.1 of the Constitution. The criminal prosecution was adjourned pending determination of these judicial review proceedings. The court heard affidavit evidence and refused to reopen the hearing to plenary proceedings.

Legal Issues Presented

1. Whether the omission of a defence of reasonable mistake as to age from the "peer consent" defence (section 3(8) of the Act) is constitutionally invalid because it permits conviction in the absence of the requisite mens rea.
2. Whether the failure to make allowance for a reasonable mistake as to age within the "peer consent" defence constitutes an unconstitutional breach of the equality guarantee in Article 40.1.

Arguments of the Parties

Accused's Arguments

• The Accused argued that conviction should not follow where he made a reasonable mistake that the Complainant was fifteen, because such a mistake negates the requisite mental element for criminal liability.
• The Accused argued that excluding reasonable mistake from the "peer consent" defence differentiates unlawfully between accused persons and breaches Article 40.1 equality rights.

Respondents' Arguments

• The Respondents relied on existing authorities (including the Court of Appeal decision in Oscar v. Director of Public Prosecutions) as establishing the proper interpretation of section 3(8): the "peer consent" defence requires that the child in fact be fifteen or older and does not admit a reasonable-mistake defence as to that fifteen-year threshold.
• The Respondents initially contended the judicial review might be premature pending trial findings (citing Galvin v. Director of Public Prosecutions), but that objection was not pursued at hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in two principal strands: mens rea and equality under Article 40.1.

On mens rea, the court explained that the statutory structure of the 2006 Act, as amended, expressly provides a reasonable-mistake defence in respect of section 3 where the accused reasonably believed the child was seventeen or older (sub-section 3(3)). The court treated the omission of a similar express provision from the "peer consent" defence in sub-section 3(8) as deliberate and significant (applying expressio unius). It relied on the Court of Appeal in Oscar as determining that sub-section 3(8) requires the child to have in fact attained the age of fifteen years and does not admit a reasonable-mistake defence as to that threshold. The court distinguished the present challenge from C.C. v. Ireland (No. 2) on the ground that the 2006 Act's core offence still permits a reasonable-mistake defence (in a different context), so the mental element has not been wholly abrogated.

On equality (Article 40.1), the court applied the Donnelly rationality framework. It identified the legislative purpose as protecting children from inappropriate sexual activity by reason of immaturity and vulnerability while recognising limited capacity for older children to consent to peers. The court held that the age threshold is a legitimate legislative proxy for maturity. It rejected the Accused's comparator-based framing that focused solely on the accused's subjective belief and instead emphasised that the statutory classification is driven by the complainant's actual age and legal capacity to consent. The court concluded that the differentiation is rationally connected to the legislative purpose, that no internal inconsistency rendered the classification arbitrary, and that expanding the "peer consent" defence to rely on an accused's reasonable belief as to a sub-fifteen child's age would defeat the legislative choice to use age as a proxy for capacity.

Holding and Implications

APPLICATION DISMISSED

Direct effect: the judicial review application is dismissed in its entirety; the section 3(8) "peer consent" defence remains limited to cases where the child in fact had attained fifteen years and does not admit a reasonable-mistake defence as to that fifteen-year threshold. The court provisionally proposed that no costs order be made in favour of the respondents and that a recommendation be made under the Legal Aid (Custody Issues) Scheme in respect of the applicant's costs; parties were given an opportunity to seek a different costs order by notifying the registrar by a specified date. The ruling leaves the statutory scheme intact and proceeds on established principles of deference to legislative choices on social policy and on constitutional mens rea requirements.

Appearances (Anonymised)

Attorney Condon SC, Attorney Storan and Attorney Osborne for the Accused, instructed by Company A.

Attorney O'Neill for the Respondents (first respondent) instructed by Attorney Farrell and Attorney Holt for the other respondents, instructed by Company B.