‘The Government has been floundering around since the Supreme Court decision’

Enda Kenny, Fine Gael leader.

“Go tell that to the thousands of parents of Confession-age children, one of whom was filled by drink and raped by this individual. ... He walked free. (The Taoiseach) knew it was coming down the tracks. The Attorney General knew it was coming down the tracks. The Minister for Justice knew it was coming down the tracks.”

Pat Rabbitte, Labour Party leader.

“The Government has been floundering around since the Supreme Court decision. It seems to have been totally unprepared for the decision ... “Surely, the prudent approach would have been for the Government to have had draft legislation ready to bring into the Dáil if the State had lost the case.”

Bertie Ahern, Taoiseach.

“Deputy Kenny raised an important point that I want to address; that is, the fear and concern of parents, teenagers and children. It is important that some reassurance is given in respect of this issue. The striking down of section 1(1) of the 1935 Act does not leave a gaping hole in our laws.

“Our criminal code still prohibits sexual offences against young persons, the crime of rape remains part of our law and the Garda and Director of Public Prosecutions are duty bound to uphold and enforce these laws.”

Michael McDowell, Minister for Justice.

“We had no knowledge prior to the handing down of the decision by the Supreme Court ...

“I believe the Attorney General, personally, was not aware. His office may have been aware ...

“It is strange perhaps that the Department of Justice, which has channels of communication, was not aware of this. That’s the point, they weren’t. There’s no point in me pretending that they were.”

Aengus Ó Snodaigh, Sinn Féin

“I am calling on the Government to abandon plans to adjourn the Dáil next week, so that Mr McDowell can bring forward emergency legislation.”

Ciarán Cuffe, Green Party

“The Law Reform Commission recommended that this legislation be reformed back in 1990. It beggars belief that 16 years on, a man can walk free from a rape charge, because the reform was never undertaken.”

Q&A

By Harry McGee, Political Editor

Q: What occurred in the High Court yesterday?

A: Yesterday’s hearing followed last week’s Supreme Court decision that the 1935 law making it illegal to have sex with a girl under 15 was inconsistent with the Constitution.

The case decided yesterday was taken by a man known as Mr A, now aged 41, who had sex with a 12-year-old girl in 2002 after buying her four Bacardi Breezers and two vodkas. Judge Mary Laffoy ruled last week’s Supreme Court ruling had meant that the offence of defiling a girl under the age of 15 did not exist in law. Mr A could therefore be freed.

Q: What are the implications of the ruling?

A: Six other prisoners are currently serving sentences under the impugned section of the act.

The Government said it would appeal yesterday’s ruling to the Supreme Court. It also conceded other sections of the 1935 act could also be flawed.

While the Government said that it will not order the release of the six other men, there is nothing preventing any of them making a Habeas Corpus application to be released, as Mr A did.

There are also reportedly 20 cases where people have been charged under this act but whose cases have yet to come before the courts. Legal opinion is divided on whether these cases can proceed.

Lawyers also expressed doubts yesterday that Mr A could be charged under new offences. NUI Galway law lecturer Tom O’Malley said that the principle of double jeopardy whereby somebody cannot be punished twice for the same offence is strongly established in Irish law.

Q: What was the reaction in the Dáil?

A: Taoiseach Bertie Ahern and Justice Minister Michael McDowell came under furious attack. Fine Gael leader Enda Kenny, seldom so outraged, said the Government had been unable to give protection to “thousands of parents of confirmation-age children, one of whom was filled up with drink and then raped“.

Pat Rabbitte of the Labour Party said what had happened would leave children vulnerable to predators.

This was denied by the Taoiseach who said that children would be protected under other sexual offences legislation.

Q: What is the basis of the political criticism?

A: The Government was condemned for not having been aware that this case was coming and the law was vulnerable.

Mr Kenny and Mr Rabbitte also accused Mr Ahern and Mr McDowell of complacency following the Supreme Court decision last week. Mr Ahern told the Dáil last Wednesday that nobody would walk free. In fact, Mr A walked free yesterday. In addition, Mr McDowell said that after the case “there was not the gaping void that some people are arguing“. However, Mr Rabbitte yesterday said that Mr A being freed showed that there was indeed a gaping void.

Moreover, Mr McDowell admitted he only became aware of the case on Tuesday last week — the day when it was decided by the Supreme Court.

Mr Kenny asked why Mr McDowell was not informed by the Attorney General’s (AG) office (who nominally defended the State’s case), or why no early warning system was in place to address an adverse decision speedily.

Q: Should he have known?

A: Michael McDowell’s admission that the first he knew of it was Tuesday of last week will have serious political repercussions and may have implications for the offices of the Director of Public Prosecutions and of the Attorney General.

It was not a new case. It had been heard in the High Court in 2004, when the defendant claimed that the defence of “mistake as to age” should have been open to him. Last year, the Supreme Court rejected his appeal, saying the defence was not open to him under the act.

But the court then expressed its wish to hear arguments of whether Section 1 (1) of the 1935 Act was inconsistent with the Constitution. The Court ruled on this aspect last week.

The case was widely reported in the media last July, including the decision to adjourn this issue to a later stage. In addition, an article examining the issues and the “substantial changes in Irish law” appeared in the Law Society Gazette in October.

Yesterday, Mr McDowell said he had no knowledge or notification prior to Tuesday of last week that a judgment was pending.

He said the DPP and not the AG had “carriage of the defence of this case“.

He said he believed the AG was not personally aware, but conceded that officials in his office may have been aware because they have to be notified that a case was pending.

He admitted it was “strange” his department, which has “channels of communication” with the DPP and AG’s office, was unaware. He further said that the DPP continued to lay charges under Section 1 (1) of the 1935 Act until recent weeks and didn’t seem to be aware of any impending danger. That will raise thorny questions for the DPP’s office.

Q: How has the Government moved to fill the loophole?

A: The Government has found itself very much on the back foot, accused of complacency and failing to understand the consequences of the decision. Yesterday, it stuck to the defence that there were other laws in place to protect young people from sexual predators.

However, clearly under intense pressure yesterday, it began to respond as the situation developed.

On Monday, the Government said legislation would be ready within two weeks. However, it gave no indication that the Dáil (on holiday next week) would be recalled to fast-track the legislation. Yesterday, Mr McDowell briefed ministers about the legislation required. The two aspects were that there would be no discrimination on gender (the 1935 Act referred only to girls) and that it would reflect last week’s Supreme Court decision.

However, the sense of urgency changed in the afternoon, after Mr A walked free. Yesterday afternoon, the Taoiseach said they may have the legislation prepared by the weekend. Last night, the Government chief whip Tom Kitt announced the Dáil would be recalled next Wednesday.

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