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Strict Liability and the Presumption of Mens Rea after CC v Ireland

David Prendergast
School of Law, Trinity College Dublin

Final version published as David Prendergast, ‘Strict Liability and the Presumption of
Mens Rea after CC v Ireland’ (2011) 46 Irish Jurist 211

(1) Introduction
The superior court decisions of half a decade ago on the offence of unlawful carnal
knowledge are among the Irish courts’ most controversial.1 The Supreme Court striking down
the offence,2 and the High Court’s subsequent order3 that a prisoner serving sentence for it
was to be released, was subject to an exceptional level of public concern and debate.4 This
note is concerned with the impact on substantive criminal law of the two Supreme Court
decisions reported as CC v Ireland. 5 The offence of unlawful carnal knowledge was
committed by a man engaging in sexual intercourse with a girl under 15 years of age. 6
Whether the girl in any sense consented was irrelevant to liability 7 and, in its first CC
decision, delivered in 2005, the Supreme Court held by a four-to-one majority that a
defendant’s belief that the victim was 15 or older would not be a defence. The second CC
decision was delivered a year later. The Court found the offence, as it had interpreted it in its
first decision, to be repugnant to the Constitution. In the first CC decision both the majority
and Denham J. in dissent applied the presumption of mens rea. The majority considered the
presumption to be rebutted, while Denham J. did not. In sum, the first CC decision, as a
matter of interpretation, found the offence to be one of strict liability and the second decision
struck it down because it constituted an unjustifiable use of strict liability in an offence
carrying a possible life sentence.8 The CC decisions addressed two important questions: what
it takes to rebut the presumption of mens rea and the constitutional permissibility of strict
liability in criminal offences. This note will show that subsequent case law somewhat departs
from the certainty of the Court’s conclusion in its second CC decision, that strict liability in

1
CC v Ireland [2005] I.E.S.C. 48; [2006] I.E.S.C. 33; [2006] 4 I.R. 1; A v Governor of Arbour Hill
Prison [2006] I.E.H.C. 169; [2006] I.E.S.C. 45; [2006] 4 I.R. 88. The offence was also known as
statutory rape and as defilement of a girl.
2
CC v Ireland [2006] I.E.S.C. 33.
3
A v Governor of Arbour Hill Prison [2006] I.E.H.C. 169.
4
See “Dealing with statutory rape”, The Irish Times, May 25, 2006. The Supreme Court subsequently
reversed the High Court’s order for the prisoner’s release: A v Governor of Arbour Hill Prison [2006]
I.E.S.C. 45.
5
[2006] 4 I.R. 1.
6
S.1(1) of the Criminal Law (Amendment) Act 1935. S.2(1) of the 1935 Act, as amended, applied
where the girl was under 17.
7
Attorney General (Shaughnessy) v Ryan [1960] I.R. 181.
8
[2006] 4 I.R. 1 at 80.

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serious offences, without more, is prima facie unconstitutional. Before that, the note will
identify the implications of differing understandings of the presumption of mens rea in the
first CC decision.

(2) Strict liability and the presumption of mens rea

The presumption of mens rea is the common law principle that, when interpreting statutory
offences, courts must presume that they contain mental fault elements. Unless, in light of the
words of the statute and subject matter of the offence, it is unambiguously clear that the
legislature intended mens rea to be absent, the courts are to find it present.9 The presumption
of mens rea is, in effect, a presumption against strict liability. There is a need for precision in
using the terms mens rea and strict liability. Many judicial references to the presumption of
mens rea, especially older ones, follow the practice of describing offences, following the
singular Latin terms, actus reus and mens rea, as containing a single act and a single culpable
mental state or fault element. This tends to obscure the fact that offences often contain
multiple objective elements and different minimum culpability states—intention, knowledge,
recklessness, or negligence—may be appropriate in respect of different objective elements
within an individual offence.10 Appreciating the multiplicity of elements in offences11 in the
context of strict liability and the presumption of mens rea helps reveal that, in some instances,
the courts have inaccurately described offences as completely lacking mens rea. Rarely is an
offence completely devoid of mens rea, but frequently offences may lack a corresponding
mens rea for each of their objective elements. In the second CC decision, Hardiman J.
described the unlawful carnal knowledge offence as if it had no mens rea whatsoever.12 This
missed the possibility that while there was no corresponding specific mens rea for the
objective element of the victim’s age, there may well have been an implicit fault requirement
in respect of another objective element of the offence, namely the conduct of sexual
intercourse. To be guilty of unlawful carnal knowledge, an offender would at least have to
knowingly engage in sexual intercourse.13
Strict liability can be said to feature in an offence where, in respect of at least one
objective element, no corresponding mens rea is required for guilt and a mistaken belief as to

9
Sherras v de Rutzen [1895] 1 Q.B. 918 D.C.; Sweet v Parsley [1970] 1 A.C. 132 (H.L.); People
(DPP) v Murray [1977] I.R. 360 (C.C.A.) (S.C.).
10
See Paul H. Robinson and Jane A. Grall, “Element Analysis in Defining Criminal Liability: The
Model Penal Code and Beyond” (1983) 35 Stanford Law Review 681 at 683, 688–689.
11
Robinson and Grall, fn.10 above, at 687, 691–697.
12
[2006] 4 I.R. 1 at 74: “the offence… affords absolutely no defence once the actus reus is established,
no matter how extreme the circumstances”, and [2006] 4 I.R. 1 at 77: “it wholly removes the mental
element and expressly criminalises the mentally innocent”.
13
As pointed out by Baroness Hale in R v G [2008] U.K.H.L. 37; [2009] 1 A.C. 92 at 108, when
speaking about a similarly structured statutory rape offence in the UK: “there is not strict liability in
relation to the conduct involved. The perpetrator has to intend to penetrate.”

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that objective element cannot potentially exculpate. 14 This is the strict liability that the
presumption of mens rea presumes against because it is a presumption not just that mens rea
will feature somewhere in an offence, but that it will feature where the court expects it to
feature, and that is in relation to each objective element. The following Supreme Court
statement from 2007 indicates both a presumption of mens rea at the level of the offence as a
whole and also at the level of offence elements:

“It is thus settled Irish law that where a criminal offence is created by statute, and the
statute is silent as to mens rea, there is a presumption that mens rea is required in
relation to the offence as a whole and in relation to each constituent part of the
offence. The presumption can only be displaced by clear words or by necessary
implication.”15

A further note of clarification is that while strict liability can be understood as the
absence of any mens rea, where mens rea includes any of the culpability states of intention,
knowledge or belief, subjective or objective recklessness, or negligence, the mens rea that the
UK and Irish courts presumes to be present is usually limited to intention, knowledge or
belief, or subjective recklessness.16 Consequently, when the presumption of mens rea is used
by a court to effectively read mens rea into an offence of uncertain definition, subjective
recklessness is typically the minimum culpability state it will require.

(3) The rationale of the presumption of mens rea

I suggest there are two main ways of rationalising the presumption of mens rea that explain it
as a presumption 17 First, it can be viewed as a presumption—that is, an advance
assumption—that helps lead to the true answer to a question. On this view, it is an interpretive

14
See Stuart P. Green, “Six Senses of Strict Liability: A Plea for Formalism” in A.P. Simester (ed.),
Appraising Strict Liability (Oxford: Oxford University Press, 2005), pp. 2 and Andrew Ashworth,
“Should Strict Criminal Liability be Removed from all Imprisonable Offences?” (2010) 45 Ir. Jur. 1 at
4: “an offence should be treated as a crime of strict liability if it provides for conviction without
requiring fault as to at least one material element.”
15
People (DPP) v Power [2007] I.E.S.C. 31. This statement of the law in Ireland was principally based
on People (DPP) v. Murray [1977] I.R. 360 (C.C.A.) (S.C.).
16
A.P. Simester, J.R. Spencer, G.R. Sullivan, G.J. Virgo, Simester & Sullivan’s Criminal Law: Theory
and Practice, 4th edn (Oxford: Hart Publishing, 2010), p.179. The Canadian Supreme Court in R v City
of Sault Ste Marie [1978] 2 S.C.R. 1299 effectively introduced negligence, by means of reading in a
due diligence defence, into an apparently strict water pollution offence. This approach was sought to be
followed by Keane J. in dissent in Shannon Regional Fisheries v Cavan County Council [1996] 3 I.R.
267 (S.C.) but has not been applied in an Irish court despite persistent favourable judicial and academic
comment on Keane J.’s dissent. See Mark Coen, “Whither Strict Liability” (2007) 25 I.L.T. 77 and
Reilly v Patwell [2008] I.E.H.C. 446.
17
What follows is informed by the analysis of a so-called presumption of liberty in Joseph Raz, The
Morality of Freedom (Oxford: Clarendon, 1986), pp.8–12.

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principle aimed at helping the court to accurately identify the elements of an offence intended
by the legislature. As Lord Reid explained in Sweet v Parsley:

“Sometimes the words of the section which creates a particular offence make it clear
that mens rea is required in one form or another. Such cases are quite frequent. But in
a very large number of cases there is no clear indication either way. In such cases
there has for centuries been a presumption that Parliament did not intend to make
criminals of persons who were in no way blameworthy in what they did. That means
that whenever a section is silent as to mens rea there is a presumption that, in order to
give effect to the will of Parliament, we must read in words appropriate to require
mens rea.”18

The presumption of mens rea in this guise preserves judicial recognition of a reality of
legislative drafting that mens rea is not always expressly set out in statutes despite being
intended; it helps prevent an incorrect conclusion that an offence features strict liability based
on the absence of explicit mens rea terms.

Second, the presumption of mens rea can be viewed as a protection or a concession

for criminal defendants. Expressed via the maxim actus non facit reum nisi mens sit rea (the
act does not make a person guilty unless the mind be also guilty),19 is the idea that as a matter
of principle persons should not be found criminally liable in the absence of their mental fault
being proved. There is a strong hint of this in Lord Reid’s words above and in what he went
on to say in Sweet v Parsley:

“[I]t is firmly established by a host of authorities that mens rea is an essential

ingredient of every offence unless some reason can be found for holding that that is
not necessary.”20

This goes beyond preserving awareness that mens rea may have been intended despite not
being explicit. In speaking of essential ingredients of offences it suggests judicial insistence
on the form of offences: mens rea must be present and the courts will only very reluctantly
construe an offence otherwise.

18
[1970] A.C. 132 at 148. Emphasis added.
19
The Canadian Supreme Court effectively made actus non facit reum nisi mens sit rea a constitutional
imperative under the Canadian Charter in Re BC Motor Vehicle Act [1985] 2 S.C.R. 486 and R v
Vaillancourt [1987] 2 S.C.R. 636.
20
[1970] A.C. 132 at 149. This view has been repeated, for example, by Lord Nicolls in B v DPP
[2000] 2 A.C. 428 at 460, and in Ireland by Henchy J. in People (DPP) v Murray [1977] I.R. 360 at
397.

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These two views of the presumption of mens rea are in tension: the first view understands the
presumption of mens rea as helping courts apply the legislature’s true intention; the second
view wants the presumption to enable courts to possibly depart from the legislature’s
intention if such intention is for strict liability rather than mens rea. Though the two views are
in tension, they are not incompatible. It is coherent to understand the presumption of mens
rea, as Lord Reid did in Sweet v Parsley, as serving both rationales at the same time. It is a
single principle with a compound rationale. However, when it comes to deciding whether the
presumption of mens rea is rebutted in a particular case, the judge’s decision can turn on
which of the two views takes precedence. The second view results in a more robust
presumption of mens rea than the first and we can detect which view is dominant by
observing differing judicial opinion on what standard of evidence it takes to rebut the
presumption of mens rea.

As noted above, in the first CC decision, on the interpretation of the unlawful carnal
knowledge offence in s.1(1) of the Criminal Law (Amendment) Act 1935, the presumption of
mens rea was applied, but considered to be rebutted, by four of the five Supreme Court
judges. The 1935 Act’s predecessor, the Criminal Law (Amendment) Act 1885, had two
unlawful carnal knowledge offences: where the victim was aged under 1321 and where the
victim was aged over 13 and under 16.22 For the second offence (where the victim was aged
over 13 and under 16) there was a clause providing that it would be a defence to convince the
tribunal of fact of a reasonable cause for the defendant to believe the victim was aged 16 or
older. There was no equivalent clause for the first offence (where the victim was aged under
13) in the 1885 Act. The 1935 Act did not contain any such mistake-as-to-age clause in
respect of either of its two unlawful carnal knowledge offences, which applied where the
victim was aged under 1523 and where the victim was aged 15 or 16.24 Moreover, s.4 of the
1935 Act, prohibiting sexual intercourse with a mentally impaired girl, expressly required an
offender to have known the girl was mentally impaired and thus contained mens rea as to the
girl’s mental impairment. For the majority judges,25 applying the maxim expressio unius est
exclusio alterius,26 this indicated that the legislature’s intention was for strict liability as to the
victim’s age in the offence at issue.

21
S.4, Criminal Law (Amendment) Act 1885.
22
S.5, Criminal Law (Amendment) Act 1885.
23
S.1(1), Criminal Law (Amendment) Act 1935.
24
S.2(1), Criminal Law (Amendment) Act 1935. This provision had been amended by s.13(7) of the
Criminal Law Act 1997 so that it applied where the victim was simply under 17.
25
Geoghegan and Fennelly JJ. provided judgments with which Hardiman and McCracken JJ. agreed.
26
The express mention of one thing excludes others.

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Denham J. in dissent saw the presumption of mens rea as holding firm in the face of
this evidence (the legislative antecedents) tending to rebut it. She endorsed27 the decisions of
the House of Lords in B v DPP28 and R v K.29 In both of these cases there were reasonably
strong reasons suggesting that sexual assault offences against children were intended by
Parliament to be strict as to the victim’s age. Yet the House of Lords considered the
presumption of mens rea to be unrebutted because the implication—characterised by Lord
Hutton in B as a “reasonable” implication30—that Parliament’s intent was for strict liability
was not quite “compellingly clear”.31 Under this approach a reasonable implication or a clear
indication that the legislature intended strict liability to apply will not serve to rebut the
presumption of mens rea; it must be compellingly clear that mens rea was intended to be
jettisoned.

(4) The presumption of mens rea after CC

The High Court cases of Reilly v Patwell32 and Minister for the Environment v Leneghan33
involved the presumption of mens rea being applied and rebutted in interpreting offences
committed via, respectively, litter being present in front of a premises34 and sheep grazing
within a forbidden zone.35 In Reilly, McCarthy J. distilled from a number of authorities a non-
exhaustive list of factors to help ascertain whether the presumption of mens rea is rebutted.36
Hedigan J. in Leneghan adopted this list.37 The enumeration of these factors is an attempt to
work out in detail how the subject matter of the offence bears on the question of whether the
presumption of mens rea is rebutted. The factors are:

“1. The moral gravity of the offence.

2. The social stigma attached to the offence.
3. The penalty.
4. The ease (or difficulty) with which a duty is discharged or the law obeyed.
5. Whether or not absolute liability would encourage obedience.
6. The ease or difficulty with which the law might be enforced.
7. The social consequences of non-compliance.

27
CC v Ireland [2005] I.E.S.C. 48; [2006] 4 I.R. 1 at 28–29.
28
[2000] 2 A.C. 428.
29
[2001] U.K.H.L. 41; [2002] 1 A.C. 462.
30
B v DPP [2000] 2 A.C. 428 at 481.
31
B v DPP [2000] 2 A.C. 428 at 464 and R v K [2001] U.K.H.L. 41; [2002] 1 A.C. 462 at 477.
32
[2008] I.E.H.C. 446.
33
[2009] I.E.H.C. 226; [2009] 3 I.R. 727.
34
Contrary to s.6 of the Litter Pollution Act 1997.
35
An offence contrary to Reg.4(3) of the European Communities (Conservation of Wild Birds)
(Owenduff/Nephin SPA004098) Regulations 2005 (S.I. No.715 of 2005).
36
[2008] I.E.H.C. 446, para.52.
37
[2009] 3 I.R. 727 at 733–734.

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8. The desideratum to be achieved when considering the statutes.”38

McCarthy J.’s list of factors is helpful because, as pointed out in academic commentary,39
previous judicial reference to “public welfare” and “social concern” as labels for offences
where strict liability is apt did not provide clear distinguishing criteria.

Noteworthy about the approach in Leneghan, the case concerning prohibited sheep
grazing, is the extent to which the subject matter of the offence is significantly more
important than general methods of working out the legislature’s intention (by applying
relevant canons of interpretation—including the one that penal statutes be construed strictly—
to the words in the statute) when it comes to the Court deciding whether the presumption of
mens rea has been rebutted.40 There is an implication in Leneghan that if the subject matter
was different—if it was not in the regulatory sphere of environmental protection, broadly
conceived, and instead in the truly criminal sphere such as an offence against the person—
then the presumption of mens rea would not have been rebutted, other things being equal.

The second CC decision may have been influential in this regard since the
rhetorically powerful judgment of Hardiman J. promotes the idea that strict liability simply
cannot feature in truly criminal offences as distinct from regulatory offences. However, more
clearly influential—quoted in both Reilly41 and Leneghan42 —was the following passage of
Lord Scarman in the Privy Council in Gammon (Hong Kong) Limited v Attorney General:

“In their Lordships’ opinion, the law relevant to this appeal may be stated in the
following propositions (the formulation of which follows closely the written
submission of the appellants’ counsel, which their Lordships gratefully
acknowledge): (1) there is a presumption of law that mens rea is required before a
person can be held guilty of a criminal offence; (2) the presumption is particularly
strong where the offence is ‘truly criminal’ in character; (3) the presumption applies
to statutory offences, and can be displaced only if this is clearly or by necessary

38
Reilly v Patwell [2008] I.E.H.C. 446, para.52.
39
Andrew Ashworth, “Should Strict Criminal Liability be Removed from all Imprisonable Offences?”
(2010) 45 Ir. Jur. 1 at 9; McAuley and McCutcheon, Criminal Liability (Dublin: Round Hall, 2000),
pp.319–320.
40
See Minister for the Environment v Leneghan [2009] I.E.H.C. 226; [2009] 3 I.R. 727 at 734, where
the consideration of the subject matter of the offence seems to be exhaustively determinative of the
case. In contrast, in Reilly v Patwell the starting point is the words of the statute: [2008] I.E.H.C. 446,
para.44.
41
[2008] I.E.H.C. 446, para.30. The Gammon passage appears in Reilly v Patwell via its quotation in
the influential judgment of Lynch J. in Maguire v Shannon Regional Fisheries Board [1994] 3 I.R.
580.
42
[2009] I.E.H.C. 226; [2009] 3 I.R. 727 at 732.

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implication the effect of the statute; (4) the only situation in which the presumption
can be displaced is where the statute is concerned with an issue of social concern, and
public safety is such an issue; (5) even where a statute is concerned with such an
issue, the presumption of mens rea stands unless it can also be shown that the creation
of strict liability will be effective to promote the objects of the statute by encouraging
greater vigilance to prevent the commission of the prohibited act.”43

The fourth proposition above is problematic.44 It states that only in respect of a mala prohibita
or regulatory offences can the presumption of mens rea be rebutted. The corollary is that for
truly criminal or mala in se offences, strict liability cannot survive the court’s interpretive
process no matter how clearly the words of the statute indicate liability is to be strict in a
certain respect. The implication is that courts will always read mens rea into mala in se
offences with the result that strict liability will never feature in truly criminal offences. This is
untenable as a description of the law in England and Wales before45 and after46 Gammon. It is
also at odds with Irish law before47 and after48 CC. Furthermore, it is in clear tension with the
first proposition in the same passage from Gammon above, which says the “presumption is
particularly strong where the offence is ‘truly criminal’ in character”—this would be a
redundant statement if the fourth proposition were true.

That the subject matter of the offence informs the question of whether the
presumption of mens rea is rebutted has undoubtedly been an indispensable part of the test
since the nineteenth century. The Divisional Court in the foundational case of Sherras v de
Rutzen said that both the statute’s words and the subject matter must be considered when
assessing whether the presumption is rebutted.49 This implies that the subject matter by itself,
without consideration of the words of the statute, cannot rebut the presumption of mens rea.

43
[1985] A.C. 1 at 14. See McAuley and McCutcheon, fn.39 above, at 319-320, criticising this passage
from Gammon and describing its mixed reception in various common law jurisdictions.
44
One problem is that “concerned with an issue of social concern” fails to differentiate among criminal
offences. See fn.39 above on the weakness of this terminology.
45
R v Prince (1875) L.R. 2 C.C.R. 154, concerning an offence of taking a girl under 16 out of the
possession of her father. Prince was subsequently overruled in B v DPP [2000] 2 A.C. 428.
46
R v G [2008] U.K.H.L. 37; [2009] 1 A.C. 92 (H.L.) concerning a statutory rape offence of a child
under 13 and recognised by the House of Lords to feature strict liability as to the victim’s age.
47
Obiter dictum of Walsh J. in People (DPP) v Murray [1977] I.R. 360 (C.C.A.) (S.C.) at 383 referred
to strict liability in unlawful carnal knowledge in a manner consistent with a view of it as
constitutionally acceptable. Prior to CC, the High Court had rejected a constitutional challenge to the
unlawful carnal knowledge offence in the 1935 Act: Coleman v Ireland [2004] I.E.H.C. 288. See
Finbarr McAuley, Report of the Criminal Law Rapporteur for the Legal Protection of Children
(Dublin: Government Publications, 2007), paras.3.19–3.24, pointing out offences apart from unlawful
carnal knowledge featuring strict liability.
48
See cases discussed below such as People (DPP) v Power [2007] I.E.S.C. 31, which concerned a
serious offence in the Misuse of Drugs legislation.
49
Sherras v de Rutzen [1895] 1 Q.B. 918 at 921.

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Even if the subject matter could, by itself, rebut the presumption of mens rea, this does not
mean the presumption can be rebutted only where the subject matter is in the regulatory, mala
prohibita sphere. For consideration of the subject matter of the offence to be decisive, with
the words of the statute and methods of interpretation of statutory words dropping out of the
picture, as was implicitly the case in Leneghan, raises the question of the courts exercising an
unwarranted degree of control over criminal liability. It is accordingly important to note the
potential for Lord Scarman’s passage in Gammon to mislead.

(5) Strict liability after CC

The Supreme Court’s second CC decision, where it held the strict liability unlawful carnal
knowledge offence to be unconstitutional, was the subject of strong critique in the Report of
the Criminal Law Rapporteur for the Legal Protection of Children.50 The Report noted how
the CC decision may have been over-determined by a mischaracterisation of the applicant—
an 18-year-old man who had sexual intercourse with a 13-year-old girl on several occasions,
believing she was aged 16—as “mentally innocent” in the sense that he lacked any degree of
moral blameworthiness.51 Significantly, the Report pointed out the existence in Irish law of
strict liability similar to that in the invalidated unlawful carnal knowledge offence; it exists
not just among regulatory offences, but indeed in serious offences such as manslaughter and
dangerous driving.52 Hardiman J.’s judgment may give the impression that strict liability in
serious offences, as distinct from regulatory offences, is to be regarded as prima facie
unconstitutional and requiring strong justification in order to survive constitutional scrutiny.
Doubt about this is raised not just by the absence of constitutional challenges to offences such
as causing death by dangerous driving53 but also by cases since CC where the superior courts
have countenanced strict liability in serious offences outside of the area of statutory rape.54
People (DPP) v Power55 concerned the offence of possession of a controlled drug
with a market value of €13,000 or more for the purposes of sale or supply contrary to s.15A

50
Finbarr McAuley, Report of the Criminal Law Rapporteur for the Legal Protection of Children
(Dublin: Government Publications, 2007).
51
Report of the Criminal Law Rapporteur for the Legal Protection of Children (2007), para.3.46. See
also David Prendergast, “The Constitutionality of Strict Liability in Criminal Law” [2011] 33 D.U.L.J.
285 at 289–292 for further critique of this aspect of the judgment in CC.
52
Report of the Criminal Law Rapporteur for the Legal Protection of Children (2007), paras.3.19–
3.24. Manslaughter contains an objective element of causing death but it need not be proved that an
offender in any way intended or contemplated death being caused by his or her actions.
53
S.53 of the Road Traffic Act 1961.
54
In S v DPP [2008] IEHC 427 Murphy J took CC as unequivocally indicating that the unlawful carnal
knowledge offence in s.2(1) of the Criminal Law (Amendment) Act 1935, as amended, which applied
where the victim was under 17 years of age, would be unconstitutional if liability was strict as to the
victim’s age.
55
[2007] I.E.S.C. 31.

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of the Misuse of Drugs Act 1977.56 Life imprisonment can be imposed for this offence and it
is meant to carry a mandatory minimum sentence of 10 years.57 The Supreme Court58 held
that there was no mens rea required to be proved in respect of the objective element of the
value of the drugs and thus liability in this respect was strict.
In Minister for Justice v Dolny, 59 Peart J. in the High Court, for the purposes of
ascertaining the requisite corresponding offence in Irish law to an offence in Poland specified
in an extradition warrant, interpreted the assault causing harm offence in s.3 of the Non Fatal
Offences Against the Person Act 1997 with the implication that it is a strict liability offence.
Peart J.’s interpretation of the offence was approved by the Supreme Court.60
Finally, O’Connor v O’Neill 61 is another recent case where strict liability was
countenanced in the High Court. Hanna J., applying a 2003 High Court judgment,62 identified
s.13 of the Road Traffic Act 1994 as containing a strict liability offence of refusing or failing
to provide breath specimens and held it to be constitutionally sound. It is evident that CC has
not served to change the view in the High Court about strict liability in this drink-driving-
related offence.

(6) Conclusion
While it has likely inhibited the enactment of strict liability offences since 2006, 63 the
Supreme Court’s second CC decision has, as the cases above demonstrate, not led the judges
in Ireland to significantly alter their approach to strict liability in criminal offences. As for the
presumption of mens rea, attention should be paid to the test for rebutting it. Given that the
superior courts have declared as unconstitutional offences that fail to meet minimum
standards of legality64 and that use strict liability to an unjustifiable extent,65 and given the
availability of the interpretive power, known as the double construction rule,66 to give statutes
constitutional readings where possible,67 it is not clear why the Irish courts would need to

56
As inserted by s.4 of the Criminal Justice Act 1999.
57
S.27(3A)–(3C), Misuse of Drugs Act 1977, inserted by s.5 of the Criminal Justice Act 1999.
58
Finnegan J. provided the court’s judgment in July 2007, one year after the second CC decision; the
other judges on the court for this case were Murray C.J., Denham, Fennelly, and Macken JJ.
59
[2008] I.E.H.C. 326; [2009] I.E.S.C. 48.
60
Peart J.’s statutory interpretation in Dolny has been strongly criticised. See Catherine O’Sullivan,
“The Importance of Correct Statutory Interpretation Technique: the Case of Minister for Justice,
Equality and Law Reform v Dolny” [2010] 45 Ir. Jur. 146.
61
[2011] I.E.H.C. 118.
62
People (DPP) v Behan, High Court, Ó Caoimh J., 3 March 2003.
63
See Criminal Law (Sexual Offences) Act 2006 and Report of Joint Oireachtas Committee on Child
Protection (Dublin: Government Publications, 2006).
64
King v Attorney General [1981] I.R. 233; Dokie v DPP [2010] I.E.H.C. 110.
65
CC v Ireland [2006] I.E.S.C. 33.
66
East Donegal Co-op v Attorney General [1970] 1 IR 317 (S.C.). See Doyle, Constitutional Law:
Text, Cases, and Materials (Dublin: Clarus Press, 2008), p. 441.
67
As applied by Murphy J to the unlawful carnal knowledge offence in s.2(1) of the Criminal Law
(Amendment) Act 1935, as amended, in S v DPP [2008] I.E.H.C. 427.

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follow the courts in England and Wales in rewriting offences via a highly robust presumption
of mens rea.

David Prendergast
Lecturer in Law, Trinity College Dublin

Electronic copy available at: https://ssrn.com/abstract=2389444