This week's Supreme Court judgments on sex with under-age children vindicate the stance I took during the controversy, writes Michael McDowell
Shortly after the delivery by the Supreme Court of its decision in the "CC" case which rules that section 1 (1) of the Criminal Law (Amendment) Act 1935 was inconsistent with the Constitution, I went on radio to make two points:
1) That there was no black hole in our law as every sexual act prohibited by the impugned section was also a sexual assault that attracted a 14-year maximum jail sentence.
2) That I intended over the following weeks to draft a new law to deal with the protection of children from sexual abuse.
Over the following days I started the drafting process for the new law. I also planned out a legal strategy to prevent any convicted prisoner from seeking to reopen his conviction for an offence under the impugned section and unjustly walk free.
Both were complex tasks. Both tasks were tackled competently and diligently by the team consisting of senior officials in my department and myself, with the assistance of the Attorney General's office.
In relation to the issues which were subsequently raised in the "A" case, I gave instructions that any such case should be vigorously contested on the basis that the "CC" case was not retrospective in the sense of rendering convictions and sentences void, and that persons who were convicted under the 1935 Act of heinous offences could not at this point simply assert that they were unlawfully in prison for a "non-offence".
In the rising media-driven and Opposition-led clamour for emergency legislation, no media coverage of any kind was given to the points I made in the Seanad in relation to the State's appeal which was then still awaiting its hearing in the Supreme Court on the following Friday. On Wednesday, May 31st, which was the first opportunity that I was given to address either House of the Oireachtas, I told the Seanad: "What is happening now in the Supreme Court is that the Government, through the governor of Arbour Hill Prison, is contesting the decision made by Ms Justice Laffoy in the High Court. Is this some scramble to save face? No, it is not.
"There are two views of the law in this matter. One is the classical view that, if it was not 'brought forward', section 1 (1) must now be regarded as never having been part of our law, and as a consequence persons have never been properly convicted, imprisoned or registered as sex offenders, since the offence simply does not exist.
"There is another view that I wish this House to hear, since it is important that it be articulated. It is as follows. Although that offence has now been struck down as inconsistent with the Constitution, things done under it are not retrospectively made unlawful.
"It was not unlawful to imprison the man in the 'X' case or those others who pleaded guilty and were sentenced, to place them on the sex offenders' register, or to regard them as having been convicted of a very serious offence carrying the penalty of life imprisonment.
"Members may ask, if it did not come forward in 1937, how it could possibly be that someone could be regarded as not being detained unlawfully? The State's argument is that, while something stands part of our law, in the sense that it is accepted as a general part thereof without being challenged, and is generally operated, it should attract the protection of the courts, at least to the extent that acts done under that Act should not be regarded retrospectively as unlawful and having no meaning in law."
I also told the Seanad: "It is not a threadbare statement to suggest that when somebody goes to court, advised by lawyers, and pleads formally before a judge appointed on the Irish Constitution that they are guilty of the offence on the indictment, and the particulars of the offence also constitute a very grave offence under Irish law, justice demands that the plea be given effect to as a matter of common sense and to uphold the constitutional rights of the children involved. It is not a threadbare position.
"I am not an advocate in the courts now. The appeal the State has taken, which will be pursued vigorously, is not being done to save face. It is the result of a conviction that justice demands that if somebody gets four life sentences for assaults on young children on a plea of guilty to statutory rape when indicted for rape, as in one of the cases at issue, and secures, by that plea of statutory rape, an automatic acquittal of the greater offence of rape, and acknowledges himself guilty on the facts of sexual assault, that person should serve his or her sentence. That is not a threadbare, outlandish or unreasonable argument which flies in the face of common sense.
"It is for the courts to decide, for the first time, what the consequence for a criminal conviction will be if somebody is the subject of a conviction and a sentence on a pre-1937 statute which was struck down post-1937. This matter has never been decided before, but the case is immensely strengthened when the particular ground of objection relied on in the 'CC' case, that there could be doubt about the age of the victim and that the person was entitled to argue that point, was wholly unavailable, inapplicable and inappropriate given the facts of the case that are subject of the other conviction."
That view of the matter has largely been borne out. But none of that was conveyed to the public at that time by the media in any shape or form.
Instead, the general impression was given that the State's appeal was a last throw of the dice - some sort of desperate plea to the Supreme Court for a lifeline involving tearing up the law reports in an act of cynical and unprincipled legal pragmatism. Not only was that impression repeatedly given to the public at the time; it has been repeatedly stated in varying degrees of explicitness since.
Anyone who now reads the five Supreme Court judgments will see that the view taken and argued by the State was not simply correct; it had overwhelming logic, it had ample international precedent, and it had deep foundations in Irish constitutional jurisprudence, in justice, and in common sense.
The Supreme Court did not, as predicted, tear up its own jurisprudence to "square a circle", but carefully and consistently applied it in a manner that the Constitution demanded, that common sense and justice demanded, and that foreign Supreme Courts faced with comparable problems have consistently done.
The alternative view, if upheld in the Supreme Court, would have produced grotesque results unprecedented in our own law and unknown in any comparable system of law.
There are some some legal and factual myths which now deserve to be dispatched:
That the Law Reform Commission warned of the unconstitutionality of the law in 1991. Not true.
That its report was ignored. Not true.
That emergency legislation could have prevented the "CC" case or the "A" case. Not true.
That emergency legislation could have kept perpetrators in jail. Not true.
Finally, I did not say in the Dáil that the law enacted recently by the Oireachtas was "bad law".
I did point out that in reflecting the Supreme Court's considered judgment, the Statute had to reflect a tilting of the scales of justice from the child victim towards the accused who could no longer be on a strict liability from a criminal law perspective for having intercourse with an under-aged child. I pointed out that the defence of honest mistake will make much more difficult the protection of children.
I warned the Houses about the likely effects of the defence on future disclosures, investigations and prosecutions of child sexual abuse. Until I raised that matter, by the way, virtually nobody in (the more frenzied quarters of) the media had even adverted to it.
Those who demanded "emergency legislation" loudest are now pointing out some of the implications of legislating in a hurry.
Two issues inparticular have been raised. In relation to the age of consent, Labour argues for change while Fine Gael threatened non-co-operation if there was any change.
In the matter of consensual under-age sex, Labour tendered an emergency Bill which would have criminalised the boy, but not the girl - just as was done in 1935. So did Fine Gael in its separate Bill. But Labour later objected to the same outcome in the Government Bill, even though the Government Bill introduced a prosecutorial veto for the DPP.
Doubtless these are issues where the all-party committee will bring slightly more clarity and consistency.
Michael McDowell is Minister for Justice, Equality and Law Reform