Information breakdown a ‘communications issue’

THE Government has described the breakdown in communication that led to Justice Minister Michael McDowell and the Attorney General (AG) both being completely unaware of the Supreme Court decision that plunged the Government into free-fall as a “communications issue”.

However, in the drip-drip of information, it compounded the error by making statements that — 24 hours later — had to be qualified, or contradicted.

In the immediate aftermath of Mr A being released on Tuesday, the Taoiseach Bertie Ahern told the Dáil it was the DPP who had sole carriage of the so-called CC case heard in the High Court and twice in the Supreme Court. That implied the AG and his office had not been involved.

That error was repeated later that evening by Mr McDowell, though he did say while the AG was not personally aware, officials in his office must have been aware, as they would have had to have been on notice of the upcoming hearings.

He said the first he or senior officials had heard of the Supreme Court case was on the day of the judgment.

Twenty-four hours later, that statement was partly retracted, as it emerged the Chief State Solicitor’s office informed then department secretary-general Tim Dalton, in November and December 2002.

The sequence of events was not straightforward. CC was a 19-year-old man who had sex with a 13-year-old girl in the summer of 2002. He was charged with having unlawful carnal knowledge of a girl under the age of 14 contrary to Section 1 (1) of the Criminal Law Amendment Act 1935.

During the trial, he tried to put forward a defence he honestly believed the girl to be over the age of 15.

The case was stated to the High Court. When this process got underway later that year, an official in the Chief State Solicitor’s office informed the secretary general’s office in the Department of Justice about the development in November and December 2002.

The fullest version of what happened was given by Mr McDowell in the Seanad on Wednesday. A Department of Justice official had contacted the Chief State Solicitor’s office and asked was it required to take any action on foot of it. The official was told no, and told it would be updated. But it heard nothing more between then and Tuesday of last week.

That is the first major issue. Why was there no follow-up by the Chief State Solicitor’s Office? Should the Department of Justice have kept tabs on the case?

The case was heard in the High Court and appealed to the Supreme Court. The appeal was rejected in July 2005 but crucially, the Supreme Court decided it wanted to hear further argument on the constitutional question, whether or not the absence of a defence of an honest mistake was inconsistent with the 1937 Constitution. The court at that stage was indicating its intention to test a significant constitutional matter.

That is the second major issue. Why was this not conveyed to senior levels of the AG or the minister’s office?

Mr McDowell later accepted that the DPP’s office had kept the AG’s office fully briefed on developments. Somehow this information was never passed on to the AG. That is the third major issue. It has been described as a “communications issue” by Rory Brady but goes deeper than that. It was a failure that ultimately led to Albert Reynolds’s government falling in 1994. A full review afterwards recommended new safeguards.

Specifically, the review referred to the need for important and sensitive cases (including cases involving minors) to be brought to the AG’s immediate attention. Why was this not done?