Warrant Issued For Mr A

jhegarty

RT&#233 wrote: »

The State's appeal against the High Court ruling which released the convicted sex offender Mr A has been successful.

A warrant has been issued for the re-arrest of the 41-year-old man who had admitted to the statutory rape of a 12-year-old girl.

The Supreme Court decision comes as an enormous relief to the Government as it pilots emergency legislation dealing with the Supreme Court ruling through the Oireachtas.


The man, known as Mr A, was released by the High Court on Tuesday after last week's Supreme Court decision struck down the law on statutory rape.

The decision will affect a number of other cases currently before the High Court, where offenders are seeking release from prison on similar grounds.

Mr A was the first sex offender to be released from prison following the ruling on the 1935 law on statutory rape.

Good thing I say. If it had gone the other way I could see people taking the law into their own hands..

Our man in Havana

Has the SC given its reasons for allowing the appeal, or will we have to wait a few weeks for a written judgment?

jhegarty

Bond-007 wrote:

Has the SC given its reasons for allowing the appeal, or will we have to wait a few weeks for a written judgment?

todayfm say no news on a written judgment yet...

Thirdfox

I was there at the court today... I can't believe that the appeal succeeded.

This lays down a worrying precedent for the future. Perhaps there'll be an appeal to the ECHR?

Does it say what was the majority/minority number?

And perhaps it'll be distinguished on its own facts for the other cases (A had pleaded guilty etc.) Talking to law lecturers they had said that today's appeal was just for show, obviously not

Case argued by the state was that like the Murphy case you can limit the retrospective effect of a finding of unconstitutionality. Backed up by caselaw from America and Canada. Also he did not raise this point himself and shouldn't be allowed to profit from another's fortune.

Didn't stay for the other side's presentation.

I really am lost for words right now...

Good thing I say. If it had gone the other way I could see people taking the law into their own hands

But in essence the court has seised extra power into its own hands and can determine who walks and who remains in prison, after the crime that they were convicted of has been nullified (by fixing arbitrary time constraints on when constitutional appeal must be made).

Our man in Havana

This is the SC reacting to overwhelming public unrest. I wonder if Mr. A will now go further with a ECHR appeal? If Mr. A doesn't I suspect many others might.

Would the govt be bound by a decision of the ECHR?

Thirdfox

I think so. But R v. Lyons (and subsequent Lyons v. UK) showed that the ECHR is strangely indifferent to present plight and only requires prospective changes.

Mr. A may get damages from Europe but probably not freedom. (By the time his case is over the sentence will have probably been served anyway).

This is like the X case all over again - all life is equal, but some life is more equal than others :mad: (I'm pro-choice (well personally anti-abortion but the choice should be there) btw but the reasoning for that judgment seemed crazy and just a way of appeasing a mob.)

dermot_sheehan

Supreme Court probably took a similar view to the house of lords in Re: Spectrum Ltd [2005] UKHL 41 in which the house said they had the power to limit the effects of their judgement to have prospective effect only.

Our man in Havana

I would expect that will be the main reason for their decision to uphold the states appeal.

Thirdfox

Or to look domestically the De Burca case did not end in all criminals convicted under the unconstitutional jury system being set free.

Don't think that English case was used to support the State's argument.

They mentioned something called a "temporal (effect?)" as a reason why this appeal should be upheld.

dermot_sheehan

Thirdfox wrote:

Or to look domestically the De Burca case did not end in all criminals convicted under the unconstitutional jury system being set free.

Don't think that English case was used to support the State's argument.

They mentioned something called a "temporal (effect?)" as a reason why this appeal should be upheld.

That's what the House of Lords referred to, the "sunburst doctrine" from a U.S. Supreme Court precedent. They also referred to the Irish Murphy case, and various ECJ and ECHR jurisprudence to indicate that not only can a court give it's judgement only prospective effect, but can also suspend the imposition of prospective effect until the legislature has a chance to amend the law (as per recent ECJ decision on transfer of passenger information to US)

Thirdfox

But we were taught in Constitutional law (by the State's counsel today Dr. Hogan himself ) that a finding of unconstitutionality was ab initio. It just doesn't seem to fit in with today's ruling.

gilroyb

Isn't there a possibility that the SC ruling seemed more expansive than intended due to the nature of the case the ruling was handed down in, i.e. the case before it was more of an abstract judgment than a review of a lower courts judgment. The fact that the case came before it asking if a defense based on age would be possible in theory, (rather than in fact like a normal case) made it appear to cover a larger range of cases than it was intended to. It appears that the SC believed the act to be unconstitutional because it was lacking completeness, not that what was written was repugnant to the constitution. The few cases where there could have been a genuine belief that the girls was over age, are going to result in the guy being let off without issue, but where there was no chance of this defense is the only situation in which the act is unconstitutional. They may well have intended locus standi to be extremely limited, but this was not evident enough in the original ruling.

It's a stretch, but I don't think the court could have made a decision on a 1935 law which would be entirely accepted whatever the judgement was.

Victor

I'm saying this incorrectly, but anyway.

Perhaps (and I think a large number of people will agree with me) the rightful position is that the rights of the accused in the original case were compromised (by not allowing a defence of mistake by deception) and that that section of the act should stand.

Getting a 12 year old drunk and raping her (it can't in anyway be consensual) is not something that can be tolerated in law, even if there is an error in statute.

In a case about withholding tax, the government was able to introduce legislation to rectify an unconstitutional position, albeit it was favourable to everyone except the Revenue. I suspect awards in similar cases were restricted to plaintiffs and subsequent actions weren't allowed.

Thirdfox

That was the Murphy case, also in ECHR with the National Provincial Building Society v. UK case.

I know exactly why everyone was hoping to see Mr. A back in jail - our sense of natural justice dictates that. But I had thought that looking at the bigger picture - the fact that you can be put in jail over an imaginary crime (imaginary as in non-existant) seems to be a huge blow for civil liberties.

As I have said before, hopefully the ratio from this case will be limited to those who pleaded guilty to rape anyway (as in this case).

gilroyb

Does anyone know when the written judgement will be available? Is there anywhere to read what was said yesterday?

Thirdfox

Wait till next week.

I don't know if transcripts are available online (or even if it's available as a hardcopy). Suffice to say Dr. Hogan made a pretty good argument for the State - backed up by Canadian (and American) caselaw.

I didn't hear the defendant's counsel - would have been the basic "no crime, set him free" argument.

Victor

Thirdfox wrote:

the fact that you can be put in jail over an imaginary crime (imaginary as in non-existant)

Real crime, abberrant statute.

mountainyman

Laffoy's decision to let him out was bizarre; Mr A lacked the locus standi to bring the case.

has anyone read Deirdre Murphy's submission to the SC? Brilliant.

dermot_sheehan

Locus standi? He was being detained by virtue of the statute in question, if he didn't have locus standi no one would.

Plus the requirements of locus standi would be ireelevant as it wasn't a judicial review application but rather an application for a writ of habeas corpus.

dermot_sheehan

If anyone cares High Court judgement for A case is now online:

http://www.courts.ie/judgments.nsf/09859e7a3f34669680256ef3004a27de/b1ce9fee022ff2ac80257188004ac1d2?OpenDocument

TalkISCheap

If the original trial was a nullity, and the statute under which he was imprisoned no longer exists, what is the statute under which he is now being held? In essence (barring emergency powers, and even they come under provisions of the Offences Against The State Acts, or the emergency provisions of the Constitution) doesn't every person imprisoned need a statute or decree under which they are being held?

Surely

Bunreacht na h&#201 wrote: »

Art.15
4. 1° The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

2° Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

5. 1° The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

is this case in a nutshell? The law was invalid since the enactment of the Constitution, he therefore could not have violated it, and the Oireachtas are unable to declare it illegal retrospectively?

I can't wait to hear the reasoning behind this, I agree that unless they can differentiate the A case (and even then to an extent) massively, it is very worrying. Whatever about natural justice, hard cases do make bad law...

Victor

Any news on a SC judgement?

Schuhart

Do we take that there is still no sign of a judgement?

Thirdfox

The judgment was given out weeks ago (I think Victor was talking about a published judgment... haven't seen it yet...)

check www.courts.ie for updates

Schuhart

I also mean the published judgement. I'm fascinated to see what tortuous line they use to square this particular circle.