Analysis News that the AG wasn't told of another sensitive case is breathtaking, writes Mark Brennock
"All important and sensitive cases (including every extradition case and cases involving minors) should be brought to the immediate personal attention of the Attorney General." -
Review of the Office of the Attorney General, January 1995.
"There was a communications issue whereby the Attorney General was not personally informed about the fact that the CC case was being appealed to the Supreme Court. The Attorney General is taking steps to ensure that such communications issues do not arise in the future."
- Government spokesman,
May 31st, 2006.
The Fianna Fáil/Labour administration collapsed in late 1994 after a political crisis arising from the Government's handling of the case of paedophile Fr Brendan Smyth. Poor communications within the Office of the Attorney General (AG), and between his office and the rest of the government, played a crucial role in the debacle.
So the Government set up the Review Group on the Office of the Attorney General. In February 1995 it published a report recommending among other things that in the future, "all important and sensitive cases" should be brought to the personal attention of the Attorney General. After the trauma of the Brendan Smyth extradition case, in which his extradition to the North on child sex abuse charges was delayed for months in the Office of the Attorney General, the review group specifically stated that cases involving minors should be among those of which the AG would be personally informed.
In February 1997, the then taoiseach John Bruton told the Dáil of the progress that has been made in implementing this: "All legal assistants are obliged to operate an early warning system, the purpose of which is to bring sensitive matters to the notice of the Attorney General. The development of IT systems when fully operational will simplify the procedures for doing this." The case concerning the law on sex crimes against young girls was a perfect example of the type of case that should be covered by this early warning system.
But now it has emerged that this early warning system failed spectacularly.
The Attorney General's officials were involved in a case whose outcome could - and did - result in the striking down of the law on sexual offences against young girls. The State won the case in the High Court but when the accused appealed to the Supreme Court, the current Attorney General, Rory Brady, has said he wasn't told about it.
The Attorney General is the legal adviser to the Government and to all Government departments. But he can only advise them of what he knows. So the blame for the fact that neither the Minister for Justice nor anybody else in Government was told of the imminent threat to the law lies in the office of the Attorney General, a member of the Government. Just last Tuesday Michael McDowell sought to suggest that no blame for the lack of advance knowledge of the case could be laid at his or the AG's door.
He told reporters in Leinster House that it was the Office of the Director of Public Prosecutions, rather than the Attorney General or the Minister for Justice, who conducted the State's case against the application to have the law on sex offences against children declared unconstitutional.
He noted that the DPP had never contacted the Department of Justice to warn of any possible danger. He suggested that the DPP must have been so confident of winning that he didn't tell anyone else about it.
The impression created was that the DPP dealt with this matter entirely independent of Government, which was in total ignorance of the possibility of the resulting legal mayhem.
But on Wednesday night, in response to earlier queries from The Irish Times, the Attorney General issued a statement showing that the suggestion that a silent DPP did his own thing beneath the radar was totally wrong.
"The CC case was dealt with by officials in the Office of the Attorney General and the office of the Chief State Solicitor, jointly with officials in the office of the Director of Public Prosecutions and the Chief Prosecution Solicitor," the statement said.
He then went on to reveal the existence of a "communications issue" which resulted in his not being personally informed of the appeal to the Supreme Court.
Mr McDowell's version invited the belief that the DPP may have been remiss in not telling anyone what was going on. But there was no reason for the DPP to think he had to ring anyone to ensure the Government knew: The Government's representatives - officials of the AG's office - were among the officials who "vigorously defended" the action side by side with the DPP.
Mr McDowell accepted last night that he had been incorrect to say that the DPP had conducted the case alone. The AG's office had indeed been involved, he said, andhe maintained the case had been "led" by the DPP.
Both the AG and Mr McDowell have pointed out correctly that even had they known months in advance that this case was coming up, the outcome would almost certainly have been the same.
There appears to have been no action they could have taken in advance to prevent the release from jail of those convicted under the struck down legislation. They say the communications failure did not result in people walking free who might otherwise have been successfully kept in jail.
But it did result in the Government being taken by complete surprise.