The futures of Michael McDowell and the AG hinge on the defence that this crisis came out of the blue The statutory rape crisis could so easily have been avoided, writes Mark Brennock, Chief Political Correspondent Political analysis
The Government's defence against charges of gross negligence in relation to the crisis over the law concerning sex offences against young girls is: "Nobody told us, we didn't know."
It became clear yesterday after Mary Harney was questioned in the Dáil that this has the narrow meaning that the Minister for Justice and the Attorney General knew nothing personally in advance about the case that has seen one convicted child rapist walk free - so far - because of a gap in the law. But their departments did.
Michael McDowell has stressed repeatedly that it was the Director of Public Prosecutions who was responsible for handling the seismic Supreme Court case on behalf of the State; that he must have been confident of winning as he expressed no concern to the Department of Justice; and that he never told him or his office or the Attorney General or his office that there could be a problem.
Mr McDowell's remarks in relation to the lack of communication from the DPP lays the blame politely but firmly on his office, which is independent of Government. This suggests knowledge of the legal uncertainty never got to a political level but stayed with the DPP.
In the current mood of public anger, any information showing that either the Attorney General or the Minister for Justice had known of the potential problem and done nothing would be politically catastrophic. But in fact, the State was represented in the Supreme Court case by the DPP's office and that of the Attorney General.
While Mr McDowell told reporters on Tuesday night that the DPP had "carriage" of the case, Ms Harney told the Dáil yesterday that in fact the Attorney General had joint "carriage" of it with the DPP. A spokeswoman at the office of the DPP confirmed yesterday that the Attorney General was involved in the case.
Mr McDowell told reporters on Tuesday night that the DPP "never notified us of last July's outcome".
However the Attorney General's office is the normal channel of communication between the DPP and the Government. So why should it be seen as remiss of the DPP not to call the Department of Justice? It seems it would have been reasonable of the DPP to accept that the Government knew about the case, seeing as it was involved in defending it.
We know that the Chief State Solicitor had notified the department that the case was coming up in the first place. The Department of Justice never inquired as to the outcome.
Ms Harney told the Dáil yesterday that "neither the Minister nor the Attorney General had any personal knowledge of this case". So the Attorney General's office was involved in the case, but the Attorney General himself didn't know about it.
Accepting this, one would wonder if officials in either department spotted the report of the case in this newspaper on July 13th, 2005.
This reported in effect that the Supreme Court had indicated that it saw the law in this area as shaky.
The court ruled unanimously that a man charged with sexual assault of a 13-year-old girl could claim at his trial that he was mistaken as to the age of the girl. The High Court had refused to allow him and another man to enter a defence that they honestly believed the girl was older.
In the case of serious criminal offences, a defendant can generally claim that he or she made a genuine mistake and did not intentionally commit a crime. In legalese this means they are claiming that they did not have mens rea - a guilty mind.
However, the 1935 law in relation to sexual offences involving minors, which was struck down last week, did not allow this principle to apply.
In the July 2005 case, Mr Justice Hugh Geoghegan said he accepted that mens rea was indeed applicable to the offence of sexual assault with which the first man was charged.
In the case of the second man, who was charged with the different offence of carnal knowledge of a girl under 15, he said that in drafting the 1935 law, the legislature had not intended this defence to be applicable. He gave a clear signpost to what ultimately happened. He said he would dismiss the appeal of this second man - unless the court was to hold that section 1 (1) of the 1935 Act was inconsistent with the Constitution. He indicated that the court would hear arguments on this point.
He therefore pointed to the prospect that this section could be ruled unconstitutional - which is precisely what happened last week.
In last October's Law Society Gazette, a trainee solicitor, Edel Kennedy, was able to write that this decision involved "a substantial change in Irish law". She wrote that the decision "states that mens rea is applicable to the offence of sexual assault".
An 1875 judgment, R vs Prince, had the impact of making a man strictly liable when the girl is under the age of consent, but the Supreme Court judgment, particularly the judgment of Ms Justice Susan Denham, said this case was bad law and could not be sustained.
If the legal profession - from Supreme Court judges to a trainee solicitor - had spotted this, should the Attorney General and the Minister for Justice not have spotted it too? Might they not have scanned this newspaper on July 13th last, which reported the Supreme Court decision? Might they not have read the Law Society Gazette? The Government position remains that neither the Minister for Justice nor the Attorney General knew anything "personally" about this decision at all.
Mr McDowell admitted to reporters on Tuesday evening that this was "strange". And indeed it is. The Attorney General is the legal adviser to the Government. The Minister for Justice is responsible for law reform.
Mr McDowell said on Tuesday that he believed officials in the Attorney General's department may have known about the case that was decided in the Supreme Court last week, but the Attorney General himself did not.
The Tánaiste said yesterday that the Department of Justice was informed in late 2002 that this action was being taken. "No information arose thereafter," she said. It is clear no information was sought either.
According to the Department of Justice, there is no system through which the department is notified of Supreme Court decisions which may require a Government response. "Law reform officials talk regularly to officials in the DPP's office and the Attorney General's office," a spokeswoman said yesterday. "It was never flagged that there was a risk in relation to this legislation."