A CONSTITUTIONAL referendum on children's rights should be considered a "last resort" which is unlikely to be necessary to establish a system of child protection, a criminal law expert told an Oireachtas committee yesterday
Dr Tom O'Malley, senior law lecturer at NUI Galway, advised the Joint Committee on the Constitutional Amendment on Children to avoid the temptation to turn the Constitution into a "criminal code" and instead to introduce legislation.
Changes to the Constitution may have unintended consequences which could be difficult to remove or change but legislation can be flexible, he argued.
Legislation which would give "strict" rather than "absolute" liability in cases of children in a younger age group (such as under 13) was suggested by Dr O'Malley.
Thus an accused person would be found guilty when it was established they had sex with the child but they could raise a defence of due diligence to show they had taken steps to establish the child's age but remained genuinely mistaken.
He suggested that for cases involving older children (such as between 13 and 17), there would be a defence of honest and reasonable mistake in which, for example, the jury could take into account the surrounding circumstances of the accused to establish the reasonableness of the mistake.
