Anyone know how to impeach government members? (Sex abuse laws)

lifegamer

http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/5029772.stm

pretty much speaks for itself and disguists me. Its basically saying raping children is ok. I am sick of this incompetent governments failures and now they have failed our children,our future.

If its "un-constitutional" to hold a rapist in jail does that mean its constitutional to be a rapist????

Anyone know how to impeach the minister for justice, who clearly should have moved in before this happened and is now responsible for letting this evil man back on our streets?

I will start an online petition, but until then, what can we do?

dermot_sheehan

You can't impeach a minister, they can be removed from office by the Dail voting a resolution of no confidence in them.

And explain to me exactly how this was McDowell's fault. The statute was on the book since 1935. He was not responsible for passing it.

And how it's unconstituitonal, well the Supreme Court explained in the recent challenge to imprison someone for potentially life for doing something which they assume honestly to be lawful is not constitutional. They held strict liability in an offence of this seriousness to be contrary to the right to a fair trial under article 38.

Victor

I'm wondering if ruling that section unconstitutional was the right thing to do.* Rather than strike down the section, could the SC simply have said in a general way that the accused's rights were compromised excessively and simply struck out that one case (well allow the appeal), leave the law stand, but require all such cases to allow some sort of defence?

I wonder if the accused was charged with providing alcohol to a minor, etc.?


*Admittedly, the alternative could have been to rule the entire act unconstitutional.

popebenny16

There are usualy two options open. One is to aquit on the basis on unconsitutionality (it's late) the other is to order a retrial. AFAIK this was an application to the High Court that the conviction itself, being based on an unconsitutional provision, was untenable and must be quashed.

this raises some interesting points. Firstly, Mr A must have been convicted under the exact same section of the act, which is probable. Secondly, i would have thought that he must have fully defendeed his case and brought the same arguments up at trial, which would have resulted in a direction by the trial judge to the jury that they must ignore a defence that he thought the girl was under-age (am I right in thinking the girl in Mr A's case was 12 and he plied her with drink?) there may have been a transcript available to the High Court. If he had pleaded guilty it would have been more interesting, he would hahve to showne that he pleaded guilty only because he had been advised to do so on an interpretation of the law by his defence team.

I have personal experiance in these cases, having actually had a nolle entered by the DPP in Nass years back as the matter was brought to the court too late (there is, or was, strict time limits under the act) and i knew yonder client was in big trouble if it went to trial.

The question raised by the OP has been resolved, of course not. However, the AG must face some serious questions. The Law Reform Commission addressed this issue 16 years ago (admittedly they have addressed thing much further back which have also been ignored) and the AG's office must face up to ther debacle it has created here.

Expect knee jerk legislation which will be full of holes.

dermot_sheehan

popebenny16 wrote:

There are usualy two options open. One is to aquit on the basis on unconsitutionality (it's late) the other is to order a retrial. AFAIK this was an application to the High Court that the conviction itself, being based on an unconsitutional provision, was untenable and must be quashed.

this raises some interesting points. Firstly, Mr A must have been convicted under the exact same section of the act, which is probable. Secondly, i would have thought that he must have fully defendeed his case and brought the same arguments up at trial, which would have resulted in a direction by the trial judge to the jury that they must ignore a defence that he thought the girl was under-age (am I right in thinking the girl in Mr A's case was 12 and he plied her with drink?) there may have been a transcript available to the High Court. If he had pleaded guilty it would have been more interesting, he would hahve to showne that he pleaded guilty only because he had been advised to do so on an interpretation of the law by his defence team.

I have personal experiance in these cases, having actually had a nolle entered by the DPP in Nass years back as the matter was brought to the court too late (there is, or was, strict time limits under the act) and i knew yonder client was in big trouble if it went to trial.

The question raised by the OP has been resolved, of course not. However, the AG must face some serious questions. The Law Reform Commission addressed this issue 16 years ago (admittedly they have addressed thing much further back which have also been ignored) and the AG's office must face up to ther debacle it has created here.

Expect knee jerk legislation which will be full of holes.

As far as I know he pled guilty at trial. Today was an article 40 habeas corpus petition. He alleges the state is not holding him in due course of law, state responds that they are holding him due to a warrant issued for his detention for 3 years after being found guilty by the circuit court, he responds Supreme Court declared offence he was accused of was unconstitutional.

Since the carryover provisions of the constitution only carry over statutes not inconsistent with the constitution (Art. 50 i think), if the provision is unconstitutional, it is unconstitutional since 1937 when the constitution was passed. Therefore the circuit court had no jurisdiction to order his detention since the statute in question was not in force and what he did was not a crime.

Our man in Havana

Could this trigger a compensation case against the state for unlawful imprisonment?

maidhc

Bond-007 wrote:

Could this trigger a compensation case against the state for unlawful imprisonment?

I doubt it very much, the Murphy and Frawley cases seem to have limited the options for people trying to this, especially those who did not bring the consitituional challenge in the first place.

The argument in those cases was that by acquiescence you had forfeited your rights to claim compensation. The reasoning is dodgy, but the result understandable.

lifegamer wrote:

Its basically saying raping children is ok. I am sick of this incompetent governments failures and now they have failed our children,our future.

It isn't saying anything remotely like that, and the fact the law was never fixed between 1935 and now is the fault of every minister for justice, every AG and every DPP since then.

We have a consitution that protections certain liberties, one of those is the right to a fair trial, the other is the right to a trial in accordance with the law. That is that the Courts are pointing out.

Sparks

gabhain7 wrote:

And explain to me exactly how this was McDowell's fault. The statute was on the book since 1935. He was not responsible for passing it.

The reason he bears responsibility is that he's had since summer of 2002 to rectify the law before this happened and failed to do so. Now there are six men who could ask for a section 40 petition and go free today, all of whom committed an act most people find heinous and unacceptable. One of whom did so with a six-year-old, an eight-year-old and a ten-year-old, was serving four consecutive life sentences and was described as the worst case the trial and appeals courts had ever seen - and he pled guilty to the section 1-1 charges and not guilty to the rape charges and the DPP accepted the plea on the grounds of expediency. So frankly, the Minister, the AG and the head of the DPP all should be sumbitting their resignations today if they had any sense of professional pride, social responsibility or even ordinary concience.

Victor wrote:

Rather than strike down the section, could the SC simply have said in a general way that the accused's rights were compromised excessively and simply struck out that one case (well allow the appeal), leave the law stand, but require all such cases to allow some sort of defence?

They were asked about this and pointed out that that would have been the court writing the law, and they weren't prepared to violate the seperation of powers.

dermot_sheehan

Sparks wrote:

The reason he bears responsibility is that he's had since summer of 2002 to rectify the law before this happened and failed to do so. Now there are six men who could ask for a section 40 petition and go free today, all of whom committed an act most people find heinous and unacceptable. One of whom did so with a six-year-old, an eight-year-old and a ten-year-old, was serving four consecutive life sentences and was described as the worst case the trial and appeals courts had ever seen - and he pled guilty to the section 1-1 charges and not guilty to the rape charges and the DPP accepted the plea on the grounds of expediency. So frankly, the Minister, the AG and the head of the DPP all should be sumbitting their resignations today if they had any sense of professional pride, social responsibility or even ordinary concience.



They were asked about this and pointed out that that would have been the court writing the law, and they weren't prepared to violate the seperation of powers.

The problem is of course s. 1 wasn't recognised as an issue. I think everyon recognised it as unfair and potentially a problem (including the LRC), but I don't think anyone knew it would definitly be struck down. Previous cases have upheld the constitutionality of strict liability legislation (Shannon Regional Fisheries Board v. Cavan Co. Co. I believe?), but in the recent case the Surpreme Court distinguished between crimes of a regulatory nature (with a minimal punishment), and a serious criminal offence that carries up to life.

What I'm saying is that s.1 wasn't obviously unconstitutional that a minister for justice would seek to amend it upon taking office, and there was no program for reform of sexual offences law, and the oireachtas legislative time is limited.


People are looking for someone to blame for this current mess, I don't think it lies with McDowell. It's mostly one of those blameless events that happens. If blame is to at all be with someone, it should be with whoever was in charge of justice/law reform last time the sexual offences laws were being reviewed (early 90's I believe).

dermot_sheehan

Victor wrote:

I'm wondering if ruling that section unconstitutional was the right thing to do.* Rather than strike down the section, could the SC simply have said in a general way that the accused's rights were compromised excessively and simply struck out that one case (well allow the appeal), leave the law stand, but require all such cases to allow some sort of defence?

I wonder if the accused was charged with providing alcohol to a minor, etc.?


*Admittedly, the alternative could have been to rule the entire act unconstitutional.

State tried to actually argue that in defence, that the court should uphold the section but read in the defence of honest mistake. The court refused as it would be contrary to the express meaning of the legislation adn the court would be legislating.

It's a pitty this was a common law offence rather then a statutory one, McKinley v. Minister for Defence says the courts can amend the common law to take into account the constituion, so if this was the crime of rape at common law, the court could create a new defence for it. Unofrtunatly in was a statutory offence.

Sparks

there was no program for reform of sexual offences law

In a country where you have somewhere on the order of 3 custodial sentences for every 100 reported rapes (and for every reported case, there's an estimate of 3 that go unreported according to the rape crisis centre), that statement alone warrants a resignation.

Maybe if McDowell's child wasn't a 16-year-old boy, but instead was that 16-year-old boy's 15-year-old girlfriend, we'd have a better body of legislation against sexual violence?

dermot_sheehan

Sparks wrote:

In a country where you have somewhere on the order of 3 custodial sentences for every 100 reported rapes (and for every reported case, there's an estimate of 3 that go unreported according to the rape crisis centre), that statement alone warrants a resignation.

Maybe if McDowell's child wasn't a 16-year-old boy, but instead was that 16-year-old boy's 15-year-old girlfriend, we'd have a better body of legislation against sexual violence?

Explain how he could amend the law to secure more convictions? Should we risk more miscarriages of justice?

It seems the low conviction rate is due to current problems with prosecutions. When a case goes to court, and a girl says she's been raped, and the guy says it was consensual, and the case goes to the jury, they have to assess who's lying. Not only must they do that, but they have to be so certain that the sex was not consensual that they must not have a reasonable doubt in their minds that he wasn't guilty. That's a very hard standard to reach, especially in a case of he says, she says. The judge explains the required standard of proof to the jury, and they acquit.


The law was reformed in the early 90's, for example the complainant's previous sexual history can not be brought up by the defence without leave of the trial court (incidently in the UK the House of Lords held a similar provision over here violated the right to a fair trial under the European Convention on Human Rights).

How would you reform the law? And what bearing does the gender of the minister for justice's children have on the issue whatsoever. People are very quick to unfairly lay into McDowell because they dislike him politically, but what reforms of sexual offences legislation do you think he should have done (other then the obvious making honest mistake a defence to statutory rape).

Sparks

gabhain7 wrote:

Explain how he could amend the law to secure more convictions? Should we risk more miscarriages of justice?

You think the current state of affairs isn't a miscarriage of justice?

How would you reform the law?

I'm not a barrister with years of experience in the AG's office and the title of Minister for Justice. It's not my job to draft proposed legislation. But I can point out that the current situation is unacceptable, and so can anyone else. The task is quite clear, the actual solution requires expertise and that's his job. If anyone could say how to do it, why would we bother paying him to do it?

And what bearing does the gender of the minister for justice's children have on the issue whatsoever.

Because the incidence for rape for boys is lower than that for girls or women. I'm suggesting that if the Minister had more personal investment in the situation, he might have acted sooner.

dermot_sheehan

Sparks wrote:

You think the current state of affairs isn't a miscarriage of justice?


I'm not a barrister with years of experience in the AG's office and the title of Minister for Justice. It's not my job to draft proposed legislation. But I can point out that the current situation is unacceptable, and so can anyone else. The task is quite clear, the actual solution requires expertise and that's his job. If anyone could say how to do it, why would we bother paying him to do it?


Because the incidence for rape for boys is lower than that for girls or women. I'm suggesting that if the Minister had more personal investment in the situation, he might have acted sooner.

Ok, you provided no examples of how the law might be reformed, would you be willing to accept more people wrongly in jail if it secured more rape convictions?

You also lay the blame at McDowell despite the fact the people with the most influence on who goes to jail or not are independent judges and juries. Juries aren't believing complainant's testimony beyond a reasonable doubt. Do you think it should be reduced to 50:50, if it's more probable that the girls wasn't lying then the boy, the lad should be sent to prison for 10 years? You seem to gripe and complain without constructive criticism or suggestions and lay the blame at the foot of someone who doesn't have much control over criminal trials anyway (idea of seperate judiciary and juries)

maidhc

gabhain7 wrote:

Ok, you provided no examples of how the law might be reformed, would you be willing to accept more people wrongly in jail if it secured more rape convictions?

You also lay the blame at McDowell despite the fact the people with the most influence on who goes to jail or not are independent judges and juries. Juries aren't believing complainant's testimony beyond a reasonable doubt. Do you think it should be reduced to 50:50, if it's more probable that the girls wasn't lying then the boy, the lad should be sent to prison for 10 years? You seem to gripe and complain without constructive criticism or suggestions and lay the blame at the foot of someone who doesn't have much control over criminal trials anyway (idea of seperate judiciary and juries)

Too busy to add anything other than my concurring opinion.

thebaz

Firstly , i am not involved in law, nor studied it to any length, but it seems to me the legal system in Ireland has gone mad and there is no justice . Can someone explain to me in lay mans terms, why the 41 year old man who raped a 12 year old was released yesterday , without completing his sentence. If i was related to the 12 year old , i would be incensed with anger. Please explain to me where is the justice for this poor unfortunate girl , who has gone through such a traumatic experience at 12 ?

Zambia

Shocking , I believe he is out under the auspices that the first case did. That he thought the girl was over age.
He got her drunk at his daughters sleep over!!!!! How could that stand

Never a gun weilding thug when you need one ...

EdgarAllenPoo

The defence of a mistake wasn't open to him and he was convicted under a law which was unconstitutional. If the loophole had been fixed he would more than likely still be in prison. ( I actually brought this up in a lecture in college last year, the lecturer said it was a good point but that given that I was not directly affected buy this law(luckily), I would have no locus standi to even bring it to the attention of anyone who could do a thing about it.

maidhc

Discussion here, no need to replicate it lest we start to sound like the Joe Duffy show: http://www.boards.ie/vbulletin/showthread.php?t=2054939490

dermot_sheehan

Bond-007 wrote:

Could this trigger a compensation case against the state for unlawful imprisonment?

Interesting question, Murphy case related to sections of the tax code being held unconstitutional, the court applied relief only retrospectively to those who didn't file for refund before case was heard. The court had valid policy reasons for doing this (the fiscal problems of refunding all the people who had paid the unconstituional tax would have been great).

The state's defence would be that they were detained in a good faith reliance on a conviction upon a statute that was presumed constitutional. The courts have held that for malicious prosecution, you need to establish bad faith. For example, if you are arrested, detained for trial, but later found not guilty of the offence, you can't turn around and sue your jailor then. You have to prove an element of mala fides. Hopefully the courts would impose a similar standard here. I'm sure there's case law in the past apon people being detained under an unconstituional, if nothing else State (Burke) v. Lennon.

thebaz

I know this a legal BB , and as stated i have no legal training, but as a lay person reading the news, it seams to me that there is no justice for victims. To explain and justify , legal loopholes that free the accused or guilty, old Latin terms are sprouted out , that mean nothing to the average layman , while rapists , paedophiles , and sin ome cases murderers walk free . As an averge citizen of Ireland it baffles me, and feal victims do not get justice , due to the secret and not understood legal lingo and rules of the legal profession.

maidhc

thebaz wrote:

I know this a legal BB , and as stated i have no legal training, but as a lay person reading the news, it seams to me that there is no justice for victims.

The criminal law isn't really concerned about justice for victims, instead it is concerned with the Irish people versus the accused. When the DPP brings a prosecution, he is doing it on behalf of the state, not the victims. Although you might say this is unfair, it avoids the lynch mob mentality that would otherwise be present.

You must understand the context of which this person was released. The person in the original "C" case appears to have had a legitimate complaint, he was imprisoned for something while not having a "guilty mind". He slept with a girl, but honestly believed her to be older than she was. The court held that such a law, where all that needed to be proven was that a fact occured (i.e. a girl under x age was slept with) was unconstitutional, and a violation of that mans right to a fair trial. I think this is reasonable.

The case decided yesterday followed on from this. The section, having being declared unconstitutional in the "C" case could no longer be used to justify keeping a person locked up, as it ceased to exist in 1937. The law was essentially not a law. Again while the result was distasteful, the principle makes perfect sense.

thebaz wrote:

To explain and justify , legal loopholes that free the accused or guilty, old Latin terms are sprouted out , that mean nothing to the average layman , while rapists , paedophiles , and sin ome cases murderers walk free . As an averge citizen of Ireland it baffles me, and feal victims do not get justice , due to the secret and not understood legal lingo and rules of the legal profession.

There are no secret rules, lingo or anything else. The principles upon which both cases were decided can be found in a very cheap book found in practically every bookshop: The Irish Consitution.

You must look at the wider picture. Do you want due process rights so you can be protected against corrupt politicians, gardaí or lying accusers, or do you want a police state where people can be thrown in jail without getting a fair hearing?

thebaz

maidhc wrote:

The person in the original "C" case appears to have had a legitimate complaint, he was imprisoned for something while not having a "guilty mind". He slept with a girl, but honestly believed her to be older than she was. ?

The Case i am refering to is Mr. A , who plied a 12 year old , freind of his daughter with drink at a sleepover, then forced intercourse on her when she was asleep/unconscious/drunk . .. He admits his guilt, i hope we are refering to different cases , because in this instance he for sure new what he was doing, and if this act is not illegal , then our legal system is in tatters as stated in title. She was 12 years of age. Surely the act of giving alcohol to a minor, where she becomes near unconsciuos is illegal . Sorrry this case make me sick , and if the legal profession can not administer adequate justice there will be lnych mobs . If it was your 12 year daughter or sister , being treated like this by our state and legal profession, how would you feal . annoyed.

dermot_sheehan

thebaz wrote:

The Case i am refering to is Mr. A , who plied a 12 year old , freind of his daughter with drink at a sleepover, then forced intercourse on her when she was asleep/unconscious/drunk . .. He admits his guilt, i hope we are refering to different cases , because in this instance he for sure new what he was doing, and if this act is not illegal , then our legal system is in tatters as stated in title. She was 12 years of age. Surely the act of giving alcohol to a minor, where she becomes near unconsciuos is illegal . Sorrry this case make me sick , and if the legal profession can not administer adequate justice there will be lnych mobs . If it was your 12 year daughter or sister , being treated like this by our state and legal profession, how would you feal . annoyed.

The state could still try the perpretrator for ordinary rape in this scenario, the only differance being they have to prove lack of consent beyond a reasonable doubt.


Speaking of which, I wonder if the DPP will seek to retry any of the persons seeking release on a charge of rape. If the original conviction was a nullity as the High Court said today, then double jeapodary would not apply. The accused could perhaps argue however they would not receive a fair trial due to the pre-trial publicity, delay since the original offence, and if jury finds out they pled guilty to a charge of statutory rape. It might be an option worth pursuing however as proving lack of consent in a case like the A case (if someone is too intoxicated to give consent, consent is not given and it's rape) might be straightforward enough.



Just emailed Jim O'Keefe (FG Justice spokesman) to ask McDowell if the DPP is going to consider bringing (non-statutory) rape charges, I'll let you know if I get a response.

maidhc

thebaz wrote:

The Case i am refering to is Mr. A , who plied a 12 year old , freind of his daughter with drink at a sleepover, then forced intercourse on her when she was asleep/unconscious/drunk . .. He admits his guilt, i hope we are refering to different cases , because in this instance he for sure new what he was doing, and if this act is not illegal , then our legal system is in tatters as stated in title. She was 12 years of age. Surely the act of giving alcohol to a minor, where she becomes near unconsciuos is illegal . Sorrry this case make me sick , and if the legal profession can not administer adequate justice there will be lnych mobs . If it was your 12 year daughter or sister , being treated like this by our state and legal profession, how would you feal . annoyed.

You have to look at it from the broader perspective though. I know it is distasteful case, but the reality is the perpetrator was being detained under a piece of legislation that was deemed not to have had effect since 1937. That is the law, and if you start changing the law to deal with each individual circumstance you might well end up with an even greater mess than what exists at present.

The Judge in the A case had no decision to make really, it was cut and dried.

Having said that there may well be grounds for reviewing the whole "consequences of invalidity" framework, however I suspect any review would still find that people imprisoned under legislation struck down as unconstitutional should still be released.

thebaz

Im sorry , your defending the indefensible by technicalities .
Put simply if a 39 year old grown man plies a 12 year old in his care with alcohol , eneogh to make her physicaly sick , and then goes ahead and rapes her, then admits his guilt . That in my mind and the majority of citizens in Ireland , or the world for that matter , is an illegal act by any decent cultural standards . If we can not defend her ,and other vulnerable minors , we are in a sorry state and the legal system in Ireland is in tatters ... you did not answer my question how you would feal if the 12 year old was your daughter or sister , would you feal justice is alive and well in Ireland.

Princess Consuela Bananahammock

Another lay question:

Did Mr A admit to having sex with the girl, or was he forced to plead guilty because of the law stating he had no right to defense...?

Taking the specific crime out of it, I see the point: you can not imprison someone with allowing them a defense.

dermot_sheehan

We can protect them prospectivly by passsing a new statutory rape law that allows for the defence of honest mistake, and we might have a slim chance of charging the people released with (non-statutory) rape, and bringing them to trial again.

Hagar

maidhc wrote:

The Judge in the A case had no decision to make really, it was cut and dried.

I'm just a layman so please bear with me.

Is there any obligation on Judges to refer to a "higher power" a law which they have reason to believe to be unsound?
Surely the Judge must have been aware of the flaw in the particular piece of legislation?
Can't Judges set precedents thereby changing or setting legal standards?

maidhc

thebaz wrote:

Im sorry , your defending the indefensible by technicalities .

But the alternative is to make up laws as we go along. That in my view is worse and would ultimately lead to even greater injustices.

thebaz wrote:

how you would feal if the 12 year old was your daughter or sister , would you feal justice is alive and well in Ireland.

The honest answer is yes. I would be angry, sure, but the reality is in this situation there is no one person or group of people who can be blamed.

The judiciary: Did their job admirably of interpreting the law.
The legal profession: represented their clients to the best of their ability
Present government: Act came in 1935 so that isnt their fault, should have had a replacment ready to be enacted (christ if they can prepare a press release for the eurovision...), but that would make no odds to Mr A.

While the law produces the *wrong* results sometimes, those wrong results are the price of
a) Having a predictable legal system
b) Protecting the rights of the accused so we dont get the likes of Donegal, Birmingham 6 and Guildford 4 all over the place.

mountainyman

gabhain7 wrote:

If the original conviction was a nullity as the High Court said today, then double jeapodary would not apply.

Double jeopardy is not a stated constitutional principle at any rate so it could be interpreted narrowly by the supreme court in the way you describe. ItWhat if there were an agreement between the DPP and Mr A not to prosecute for rape if he pleaded guilty to Unlawful Carnal Knowledge.

One might think that giving a 12 year old alcohol vitiates her consent but courts in this jurisdiction are not symapthetic to women who put themselves into the position where they cannot consent.

honesty

Can young people who consent to sex or drink or drugs be said to be able to give that consent. Do they fully understand what they are consenting to? Isn't it our responsibility in society to protect these young people so that if they are persuaded by people intent on their own ends there is redress which is automatic so as a society we are saying 'lay off'
Politicians are only interested in re election, there have been so many dishonest politicans that the ones who are not dishonest must know what's going on, yet they keep quiet so they are all tarred with the one brush. Maybe it's time for honest non-political people to go up for election.

thebaz

maidhc wrote:

But the alternative is to make up laws as we go along. That in my view is worse and would ultimately lead to even greater injustices.



The honest answer is yes. I would be angry, sure, but the reality is in this situation there is no one person or group of people who can be blamed.

The judiciary: Did their job admirably of interpreting the law.
The legal profession: represented their clients to the best of their ability
.

I find that fairly shocking .
I can only think, either you don't have children , or you can't imagine the pain that such an act would inflict , or you are just plain uncaring .
The 39 year old man that raped this girl is out free in our society, free to re-offend , and the girl and her family are in fear .
Society is sure being protected by our legal system , if we can not secure adequate sentencing for vile acts on minors.

maidhc

Hagar wrote:

Is there any obligation on Judges to refer to a "higher power" a law which they have reason to believe to be unsound?

Not at high court level, the lowly district judge can seek an opinion from the High court though. A High Court case can be appealed to the SC. If the legislature are unhappy with the SC decision, then subject to the constitution they can legislate around it.

Hagar wrote:

Surely the Judge must have been aware of the flaw in the particular piece of legislation?

I dont get you exactly.

Hagar wrote:

Can't Judges set precedents thereby changing or setting legal standards?

They can, but not to the degree of changing legislation (they are unelected, and would be changing the will of the people unilaterally), nor can they ignore the constitution (basic law of the state). Their "law making" powers are very very restricted.

maidhc

thebaz wrote:

I find that fairly shocking .

It is the reality. I prefer an ordered legal system to summary justice and lynch mobs.

I dont condone the perpetrator, I never want to meet such a person, and wouldn't feel sorry if the local heavies gave him a once over, but you still can't have judges, the prosecution and the legal profession making up the law as they go along to remedy what they percieve as injustices.

Hagar

maidhc wrote:

I dont get you exactly.

I'd imagine that a High Court Judge would have a better understanding of the Law than any of the counsel arguing before his Bench. I would expect that he would have to have a total and complete understanding of the Act pertinent to the trial. The flaw in the Act should be have obvious to a person with enough in-depth knowledge and experience to be appointed to the High Court and the case should have been put aside, mis-trial declared or whatever at the time and new proceedings could have been initiated there and then.

maidhc

Hagar wrote:

I'd imagine that a High Court Judge would have a better understanding of the Law than any of the counsel arguing before his Bench.

Definately not. In most situations the Counsel will be the expert in the area. e.g. Constance Cassidy on licencing. They will also have the benefit of studying the area of law in question for a considerable period of time before the trial. The judge on other hand wont.

Hagar wrote:

I would expect that he would have to have a total and complete understanding of the Act pertinent to the trial. The flaw in the Act should be have obvious to a person with enough in-depth knowledge and experience to be appointed to the High Court and the case should have been put aside, mis-trial declared or whatever at the time and new proceedings could have been initiated there and then.

Except for a few judges, like Ronan Keane or Brian Walsh most don't. In fact some have an embarrasingly bad understading of the law!

I'm not sure about the rule of the court in this regard, but my understadning is if a point isn't argued, it isn't decided. Thus if both cousel forget a glaring loophole it will go unexplored.

edanto

When the new legislation gets brought in, PLEASE tell me that these sick ****s can be arrested and tried again under the new law?

Hagar

Thanks for the answers. I was only worried before, now I'm scared.

Crash

Actually thats an interesting point - while they could be possibly tried under different sections of the law now, could it be left until the revised version of the law (my father was a barrister and commented on just how many times the law reform commission had noted the problem with that law) was brought in to prosecute under it, or were they to try and prosecute them again is there a time limit?

dermot_sheehan

&#231 wrote: »

Actually thats an interesting point - while they could be possibly tried under different sections of the law now, could it be left until the revised version of the law (my father was a barrister and commented on just how many times the law reform commission had noted the problem with that law) was brought in to prosecute under it, or were they to try and prosecute them again is there a time limit?

There is no time limit for indictable offences, though the Supreme Court has said that excess delay may violate the accused rights to a fair trial (DPP v. P I think, over 20 years since the offence in question).

You can not charge someone with a crime that didn't exist at the time the actions were committed as this would violate article 15 of the constitution (The Oireachtas shall not declare acts to be infringements of the law that were not so at the date of their commission).

hullaballoo

I think the point Hagar is getting at is that if a judge spotted a flaw (such as s 1 (1) being unconstitutional), is he not under a duty to do something about it. The answer, Hagar, is no. It is up to someone else (with locus standii) to challenge the law, and that is what happened in this case.

Legislation is supposed to be drafted properly, and then once it's drafted, it's vetted by the President (who can make an Article 26 reference to the SC to discover the constitutionality of a draft). Once it's enacted, it's presumed to be constitutional until it's challenged. Then, if the challenge is successful, the legislation is said to never have been constitutional, which means that the decision has retrospective effect, and people can apply to the criminal courts to have their conviction nullified (I hate that word. It should be annulled!)

thebaz, this forum is for discussing the legal matters arising out of laws. If you want to rant about the state of the legal system, your cries will fall on deaf ears in here. We lawyers have a tendency to be clinical as a result of our work, so we do not tend to comment on right and wrong. That is to say that personal feelings tend to remain outside our work for the most part (our thought processes are corrupted by legal logic and the sheer volume of disgusting things we see and hear.)

Personally, I think that natural justice (or justice in the layman's eyes) has not been served here. That, of course, is purely conjecture, because I am not familiar enough with the ins and outs of the case to propound a view. However, I do believe that natural justice has no place in the courts, and justice should be served cold.

edanto

But I thought the flaw in the old legislation was that ignorance of the age was no excuse - surely we have strong legislation to say that sex with a child is illegal??!

If we do, then that legislation was in place when the crime was committed and then they could be retried.

hullaballoo

Right, no need for two threads, I'm merging this one with the other one. Sorry about the confusion lads!

dermot_sheehan

hullaballoo wrote:

I think the point Hagar is getting at is that if a judge spotted a flaw (such as s 1 (1) being unconstitutional), is he not under a duty to do something about it. The answer, Hagar, is no. It is up to someone else (with locus standii) to challenge the law, and that is what happened in this case.

Legislation is supposed to be drafted properly, and then once it's drafted, it's vetted by the President (who can make an Article 26 reference to the SC to discover the constitutionality of a draft). Once it's enacted, it's presumed to be constitutional until it's challenged. Then, if the challenge is successful, the legislation is said to never have been constitutional, which means that the decision has retrospective effect, and people can apply to the criminal courts to have their conviction nullified (I hate that word. It should be annulled!)

Of course this legislation is not presumed to be constitutional and did not get the scrutiny of the President before signing (not that that means much IMO, I suspect the Presidents signs most legislation unless there are major concerns about its constitutionality generally brought to this attention by opposition parties), since it was passed by the Oireachtas of the Irish Free State.

hullaballoo

Oh right yeah, pre-1935. Well, I think legislation enacted in this state is always presumed to be constitutional anyway.

kiffer

so ... you can't be charged with a crime that didn't exist when you committed it... and the law covering Stat-Rape has been removed retroactively so that it in fact never existed... so at the moment there is no law agaisnt sex with people who are underage?
and if there isn't a law against it when it happens it's not a crime... so... There's going to be a lot of sickos on the town tonight.


Mr.A knew that his victim was underage ... she was a friend of his child who , I'm assuming, was off about the same age...

Victor

gabhain7 wrote:

If the original conviction was a nullity as the High Court said today,

Can you explain this bit? I understand re-trial doesn't invoke double jeopardy.

hullaballoo wrote:

Legislation is supposed to be drafted properly, and then once it's drafted, it's vetted by the President (who can make an Article 26 reference to the SC to discover the constitutionality of a draft). Once it's enacted, it's presumed to be constitutional until it's challenged.

If a piece of legislation has been referred under Article 26, do I ahve it right that nobody can ever challenge it's constitutionality? Whatever about challenging it under international rights legislation.

hullaballoo wrote:

However, I do believe that natural justice has no place in the courts

So if I murder you in Antartica ...

I think that one has to be careful in forbidding natural justice. After all a lot of court rules (e.g. right not to self-incriminate) are drawn directly from natural justice and have no constitutional or statutory basis.

dermot_sheehan

Victor wrote:

Can you explain this bit? I understand re-trial doesn't invoke double jeopardy.

If a piece of legislation has been referred under Article 26, do I ahve it right that nobody can ever challenge it's constitutionality? Whatever about challenging it under international rights legislation.

So if I murder you in Antartica ...

I think that one has to be careful in forbidding natural justice. After all a lot of court rules (e.g. right not to self-incriminate) are drawn directly from natural justice and have no constitutional or statutory basis.

In the article 40 petition the High Court judge referred to the original trial as a nullity since the offence in question did not exist. If it did not exist, then it wasn't a trial, then someone is not being retried for the same offence if they were to be prosecuted now for rape.


The importance of Article 26 is often overstated. If the Supreme Court approves a bill on an article 26 reference it can never be challenged again. Most bills however simply go through normally, they can be challenged by any citizen, but the oireachtas knows what its doing and passes constitutional laws.


Incidently if you were to murder someone in antartica you could be tried in Ireland since homicide (murder or manslaughter) are extraterritorial offences

Our man in Havana

Under an Article 26 enquiry by the SC, is the whole bill refered to the SC or only sections that the President considers may be unconstiutional?

Thirdfox

kiffer wrote:

so ... you can't be charged with a crime that didn't exist when you committed it... and the law covering Stat-Rape has been removed retroactively so that it in fact never existed... so at the moment there is no law agaisnt sex with people who are underage?
and if there isn't a law against it when it happens it's not a crime... so... There's going to be a lot of sickos on the town tonight.


Mr.A knew that his victim was underage ... she was a friend of his child who , I'm assuming, was off about the same age...

They are still protected by section 4 rape in the Criminal Law (Rape) Act 1990 and also common law rape.

I would like to add that I totally agree with Hullabaloo that rants about justice not being served will most likely fall on deaf ears here. The "sickos" normal people hear about are not even the half of it! And I do believe the media can stir up strong feelings against (or for) anyone, no matter what the law is (although in this case I do find the result distasteful, but from a legal point of view not releasing the person would be a much greater injustice - we are not talking about one case, but about every subsequent case that will rely on this case's principles.)