Z.S. v DPP [2011] IESC 49 (21 December 2011)

Z.S. v DPP [2011] IESC 49 (21 December 2011)

Section 2(1) of the Criminal Law (Amendment) Act, 1935, as originally enacted, was inconsistent with the Constitution for the same reasons as section 1, as it excluded any defence of honest mistake as to age. The 1997 amendment did not amount to a re-enactment or confer post-1937 status, as section 2(1) was not in force at the time due to its inconsistency with the Constitution. Therefore, the amendment had no legal effect, and section 2(1) remained unconstitutional and void.

Citation
[2011] IESC 49
Parties
Plaintiff/appellant: Z. S.; Defendants/respondents: Director of Public Prosecutions, Ireland and the Attorney General
Jurisdiction
Ireland
Judgment Date
21 December 2011
Procedural Posture
Constitutional Challenge (appeal) / Supreme Court Appeal From High Court
Outcome
Appeal allowed; High Court order set aside; declaration granted that section 2(1) is and was inconsistent with the Constitution.
Legal Topics
Strict Liability Offences, Defence of Mistake of Age, Presumption of Constitutionality, Statutory Interpretation, Sexual Offences, Mens Rea, Retrospective Application of Constitutional Standards
Criminal Law Constitutional Law Strict Liability Offences Defence of Mistake of Age Presumption of Constitutionality Statutory Interpretation Sexual Offences Mens Rea +1 more

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Parties

Z. S.

Plaintiff/appellant

Director of Public Prosecutions, Ireland and the Attorney General

Defendants/respondents

Procedural Posture

Constitutional Challenge (appeal) / Supreme Court Appeal From High Court

Legal Issues

  1. 1 Whether section 2(1) of the Criminal Law (Amendment) Act, 1935, as amended, is inconsistent with the Constitution for failing to provide a defence of honest mistake as to age
  2. 2 Whether the 1997 amendment to section 2(1) conferred post-1937 status and presumption of constitutionality on the provision
  3. 3 Whether the section could be interpreted to include a mental element or defence of mistake

Ratio Decidendi

Section 2(1) of the Criminal Law (Amendment) Act, 1935, as originally enacted, was inconsistent with the Constitution for the same reasons as section 1, as it excluded any defence of honest mistake as to age. The 1997 amendment did not amount to a re-enactment or confer post-1937 status, as section 2(1) was not in force at the time due to its inconsistency with the Constitution. Therefore, the amendment had no legal effect, and section 2(1) remained unconstitutional and void.

Court Disposition

Appeal allowed; High Court order set aside; declaration granted that section 2(1) is and was inconsistent with the Constitution.

Orders

  • Set aside the order of the High Court.
  • Declare that section 2(1) of the Criminal Law (Amendment) Act, 1935 is and was at all material times inconsistent with the Constitution.