Statutory rape - Judges to be commended for ruling

YESTERDAY’S landmark ruling of the Supreme Court, outlining the reasons for the re-arrest and continued detention of the sex offender known as Mr A, will be welcomed by a worried public.

An appalling vista unfolded following the sensational release of the convicted criminal by the High Court after the law on statutory rape was struck down as null and void by the Supreme Court.

The nation was convulsed by a deep sense of moral and political outrage when the 41-year-old, who had raped the 12-year-old friend of his daughter after plying her with alcohol, was set free last month following the striking down of the law under which he was jailed.

The law was struck down following an application by a man, known as CC, who was convicted of having sex with a 14-year-old girl when he was 18. He claimed the 1935 Criminal Law (Amendment) Act, which made it an offence to have sex with a girl under 15, was unconstitutional because it did not allow him to plead that he was mistaken about the girl’s age.

Since the 71-year-old statutory rape law does not exist, more than 50 other cases of sex with underage girls are being examined with a view to bringing prosecutions under alternative legislation.

With the Government under immense pressure to take remedial action, the State appealed against the High Court verdict that Mr A’s continued detention was unlawful.

Spelling out detailed reasons for granting the appeal, and thus triggering the immediate re-arrest of Mr A, the Supreme Court says his continued detention is valid because he did not challenge legislation under which he was convicted at the time of his trial.

It is the first time such an issue has been addressed by the highest court in the land and the judges are to be commended, both for their expeditious handling of the State’s appeal, which saw Mr A back behind bars within two days, and for the forthright terms of their separate written judgments. They have brought clarity to a complex and difficult area of law.

Citing the ‘general principle’ rule, Chief Justice John L Murray argued that the state relied in good faith on the legislation at the time of Mr A’s conviction and the court’s decision must therefore be deemed lawful despite any future challenges.

In reaching this watershed verdict, he did not accept that it was a principle of Ireland’s constitutional law that cases already decided, on foot of a law later declared unconstitutional, must invariably be set aside as null and of no effect.

As he succinctly put it, no legal system could comprehend such an absolute or complete retroactive effect of judicial decisions.

To do so would render the law uncertain, incoherent and dysfunctional. Such consequences would cause widespread injustices.

Describing the Constitution as a living and evolving document, he pointed out that it has never been suggested that every time there was a judicial decision, clarifying or interpreting legislation which could have some bearing on previous and finally decided cases, that such cases should automatically be reopened or the decisions set aside.

From now on, as a result of this verdict, the fact that a statute is deemed unconstitutional does not mean that anybody, apart from the person who makes the challenge, can benefit.

As there can be no windfall bonus, other cases will have to be appealed on their merits.

By clearing up this tortuous legal situation once and for all, the Supreme Court has averted a truly appalling vista.