Brian Lenihan Jnr (Dublin West, Fianna Fail)

Absolutely. That is the position. All valid offences on the existing Statute Book are available to the prosecuting authorities. The exercise we are engaged upon in the Oireachtas today is to increase the armoury of the prosecuting authorities from the time the President signs this Bill. A substantial amount of legislation and a number of designated offences can be availed of. As the discussion in both Houses has illustrated, some of these offences involve far greater evidential difficulties because the issue of consent can be raised. The judgment of the Oireachtas both in 1935 and today is that it is highly inappropriate in the case of a child to have to raise the question of consent. That is the fundamental policy issue we are trying to address. It is interesting that seven decades have not altered our consciousness on this issue.

Senator Brian Hayes was rightly concerned that what we do today would have a prejudicial effect on the litigation currently working its way through the courts. For the reason I explained to Senator Maurice Hayes, it will not do so. What we do today is prospective in effect. The court must consider the retrospective picture of the consequences of the invalidity declared by the Supreme Court last Tuesday week. That issue does not arise. I assure the Senator that whatever we do in terms of the defence of honest mistake will not have any implication for existing cases which fall to be determined.

I have not had an opportunity, as I am sure Senator Brian Hayes will appreciate, of studying the detail of the Supreme Court judgment this afternoon. From the limited information I obtained, my understanding is that it is, as the lawyers state, a decision turning on its own facts. Hence, other decisions must be arrived at in other cases which may arrive before the courts. I assure the Senator that anything we do this evening will not have implications for the litigation which will, and can, take place as a result of the Supreme Court decision.

The question was canvassed by Senators Walsh and Brian Hayes on the precise meaning of section 2(4) and its implications for the nature of the confrontation which a child will face in giving evidence in any subsequent criminal proceedings. In drawing up the text of section 2(4), the Government had regard to a number of factors.

This section analyses the nature of the mental capacity which an offender must have to commit an offence. Lawyers escape into the refuge of Latin to describe it as mens rea. In fact, it is a simple issue of what mental capacity and degree of intention the offender has to substantiate all of the constituent elements of the offence. The decision arrived at and reflected in the legislation is that the defence of honest mistake as to age should have both a subjective and objective element. The subjective element is essential because it flows from the Supreme Court decision. The person must have, in his or her own mind, the subjective belief that he or she was honestly mistaken as to the age.

The Government was convinced that it was also essential to insert an objective requirement that the court "shall have regard to the presence or absence of reasonable grounds for the defendant's so believing and all other relevant circumstances". The court is obliged to take that into account. That is inserted to ensure a degree of objectivity regarding the state of mind of the accused as well as subjectivity. Some will argue that the test should be purely objective. Having examined this issue, the Government, acting on the advice of the Attorney General, was satisfied that the subjective element must be part of that determination by the court.