Oscar (A Pseudonym) v The Director of Public Prosecutions [2025] IECA 278

Summary by Aoife Doheny

Date of judgment: 16th December 2025

Judgment delivered by Kennedy J.

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Facts

The appellant (aged 15 at the time of the offence) and complainant (aged 12) met and engaged in sexual intercourse after communicating online via Snapchat. The appellant made several video recordings on his phone during the act. 

The complainant’s family reported the incident to An Garda Síochána, leading the appellant to be charged under section 3 of the Criminal Law (Sexual Offences) Act 2006 (defilement of a child under 17) and s 3 of the Child Trafficking and Pornography Act.

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Issues

The  appellant contended that the 2006 Act should be interpreted to mean that a 15-year-old who reasonably believes that the person with whom he has sexual intercourse is 15 years old is not guilty of an offence. The appellant contended that the Act would be unconstitutional if no such interpretation were made, as it necessarily criminalises the appellant’s conduct in making his belief as to the complainant’s age irrelevant.

There was also a separate issue on the grounds of culpable prosecutorial delay.

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Findings

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Delay

The Court of Appeal rejected the appellant’s arguments on the grounds of delay. In judicial review proceedings, the High Court had found that 2 years and 2 months elapsed between the date of complaint and the charge, which amounted to culpable prosecutorial delay. However, it reiterated the long-established principle that while authorities must make special efforts to ensure speedy trials for young people, culpable prosecutorial delay of itself is insufficient to prohibit a trial.

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The Court of Appeal noted that there is very high public interest in the prosecution of sexual offences against a child due to the ‘seriousness’ of the crime. Furthermore, this seriousness is not mitigated by the appellant’s belief that the complainant was 15 years old. This belief is entirely subjective, while a determination of seriousness is necessarily an objective examination.

The court emphasised the fact that the child complainant was 12 years old, holding that it is an intrinsically serious offence to have sexual intercourse with a 12-year-old, and also to film the act. In terms of prejudice, it noted that the appellant will retain his anonymity during the proceedings, so the contention of potential prejudice does not apply.

 

Reasonable mistake

The appellant argued that he should be allowed to avail of the defence of reasonable mistake so as to bring  him within the provisions of section 3(8) of the 2006 Act, which in turn provides the defence of consent. The Court rejected this argument.

The defence of reasonable mistake can only be invoked where the complainant was at least 15 years old and was within two years of age of the appellant. Similarly, the defence of consent is only available where the complainant is at least 15 years of age, and actually consented to the sexual activity.

On the facts of this case, neither defence could apply, since the complainant was 12 years old and thus three years younger than the appellant. She legally could not consent to sexual intercourse. The Court noted: “These are conditions precedent to the invocation of the defence [of consent] and are factual matters unrelated to any mental element on the part of an accused person.” [Para 96]

 

Fresh evidence

Finally, the Court held that no new neuropsychiatric and neuropsychological reports could be introduced on appeal, since judicial review proceedings should be confined to grounds upon which leave was granted. The appellant could not avail of the special grounds outlined in Lynagh v. Mackin [1970] IR 180, since the report could have been obtained with due diligence prior to the High Court hearing.