Underage Consent

detective · 16-07-2011 8:27pm #1

Can a juvenile give consent for sexual activity? Or is every sexual act, no matter how mild, deemed to be a sexual assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act 1990 when juveniles are involved?

I know the laws in relation to the 2006 act and I am only pondering this question relating to a sexual or indecent assault contrary to Section 2.

I believe if there is consent there then it is not an offence. Any case law on the matter of juvenile's consent? By the way I am talking about acts between juveniles only and not adults/juveniles.

johnnyskeleton · 17-07-2011 9:47am

It's always an offence, except that under section 5 of the 2006 Act, a female under 17 cannot be prosecuted if she engaged in consensual sexual intercourse (but no other kind of sexual activity) but the under 17 male who engages in sexual intercourse with her can be prosecuted.

This section is being challenged at present. It lost in the High Court and is awaiting judgement AFAIK from the Supreme Court.

detective · 17-07-2011 12:48pm

johnnyskeleton wrote: »

It's always an offence, except that under section 5 of the 2006 Act, a female under 17 cannot be prosecuted if she engaged in consensual sexual intercourse (but no other kind of sexual activity) but the under 17 male who engages in sexual intercourse with her can be prosecuted.

This section is being challenged at present. It lost in the High Court and is awaiting judgement AFAIK from the Supreme Court.

But the 2006 act makes no reference to sexual assault. So is every pair of 16 year olds who kiss one another guilty of an offence cause the other can't give consent?

johnnyskeleton · 17-07-2011 5:53pm

detective wrote: »

But the 2006 act makes no reference to sexual assault. So is every pair of 16 year olds who kiss one another guilty of an offence cause the other can't give consent?

Well it refers to aggravated sexual assault, but in the example of kissing it would probably come down to actual capacity to consent in the circumstances. The prosecution has to prove lack of consent and given that disproving capacity to consent is very difficult, in practical terms it will not be pursued.

In any event, it would be impossible to prosecute both people because they would both have to give evidence of lack of consent, but neither would be competent as a witness for the prosecution if they were both charged.

MagicSean · 17-07-2011 5:57pm

johnnyskeleton wrote: »

In any event, it would be impossible to prosecute both people because they would both have to give evidence of lack of consent, but neither would be competent as a witness for the prosecution if they were both charged.

Why not?

NoQuarter · 17-07-2011 6:13pm

Seanbeag1 wrote: »

Why not?

Co accused are generally not capable of testifying against another accused, its just the rules of evidence.

sparkling sea · 17-07-2011 7:04pm

As you know Sec 2 of the 2006 Act, provides that any person who engages or attempts to engage in a sexual act with a child under 15 shall be guilty of an offence.

A sexual act includes intercourse, buggary sexual assault and rape under Sec 4

The K case, where a jury found a 20-year-old not guilty under the 2006 Act due to his mistaken belief that a 13-year-old with whom he had sex was over 17, in my opinion highlights the need to reform our law. A defendant's subjective claim of such belief constitutes the defence.

As juries can only convict if guilt is established beyond reasonable doubt, I feel that using the honest belief defence can virtually guarantee a not guilty verdict. The law against sex with underage teenage children is largely unenforceable unless the prosecution can prove that this defence is totally unbelievable.

sparkling sea · 17-07-2011 7:13pm

johnnyskeleton wrote: »

In any event, it would be impossible to prosecute both people because they would both have to give evidence of lack of consent, but neither would be competent as a witness for the prosecution if they were both charged.

Why wouldn't they be competent witnesses ? Sometimes a witness may refuse to answer on the grounds of privilege which is allowed, but I can't see how they would not be competent?

A young teenage couple kissing would not be seen as an assult, I am nearly sure that social policy issues would deal with this.

johnnyskeleton · 17-07-2011 8:58pm

sparkling sea wrote: »

The K case, where a jury found a 20-year-old not guilty under the 2006 Act due to his mistaken belief that a 13-year-old with whom he had sex was over 17, in my opinion highlights the need to reform our law. A defendant's subjective claim of such belief constitutes the defence.

As juries can only convict if guilt is established beyond reasonable doubt, I feel that using the honest belief defence can virtually guarantee a not guilty verdict. The law against sex with underage teenage children is largely unenforceable unless the prosecution can prove that this defence is totally unbelievable.

I don't agree. The issue of the honest belief will go to the jury who will decide, in the circumstances whether it is true and whether it was reasonable in the circumstances. A jury would obviously be less likely to believe a 9 year old looks 18 than a 16 year old. Likewise a child in a school uniform is a completely different scenario than a child who has snuck into a nightclub on fake ID.

The thing that worries me is that you seem to believe that where a person honestly believes that the other person is of age they should still be prosecuted and punished for it.

sparkling sea wrote: »

Why wouldn't they be competent witnesses ? Sometimes a witness may refuse to answer on the grounds of privilege which is allowed, but I can't see how they would not be competent?

A person is not competent as a prosecution in a case where they are the accused and they are only competent as a defence witness. Where there are co-accused, neither is competent for the prosecution, only for their respective defence cases.

sparkling sea · 18-07-2011 10:33am

johnnyskeleton wrote: »

I don't agree. The issue of the honest belief will go to the jury who will decide, in the circumstances whether it is true and whether it was reasonable in the circumstances. A jury would obviously be less likely to believe a 9 year old looks 18 than a 16 year old. Likewise a child in a school uniform is a completely different scenario than a child who has snuck into a nightclub on fake ID.

The thing that worries me is that you seem to believe that where a person honestly believes that the other person is of age they should still be prosecuted and punished for it.

A person is not competent as a prosecution in a case where they are the accused and they are only competent as a defence witness. Where there are co-accused, neither is competent for the prosecution, only for their respective defence cases.

Your jumping to conclusions here, I think there is gapping holes in the law regarding consensual teenage sex- I dont feel it is a legal matter but a social policy matter and should never fall under the remit of the criminal courts.
It is IMO natural but the consequnces should a very young girl fall pregnant are huge, particularly for her.
The 2006 Act was the result of media hype and moral panic IMO.

I think you are missing my point and the huge problem with the defence of honest belief, it is the defendants subjective belief which is what the jury decides upon and it is always hard to disprove a persons subjective belief .
If a 20 year old peadophile rapes a 9 year old girl the defence of honest belief will not be used because a belief that she may be of legal age, no matter how subjective will not sucessed as a defence; but if the same guy rapes a 14 year old it is likely to be used and could easily be accepted as his subjective belief - I think even if an objective test was used it would be helpful, but I would still have a problem with it.

However if a twenty year old is dating a 14 year old, then IMO his or her older years places certain resonsiblities on them because they have more life experience in most cases. They need to be sure their sexual partner is of age and if they know their partner is underage they have to wait - its the consequence of having a very young partner - not wrong, just life.

If its a 50 year old peadophile and a 12 year old girl still not likely to sucessed as a defence but with a 15 year girl it is very hard to to say beyond a reasonable doubt what the defendants subjective belief was as to the girls age. You have to remember that alot peadophiles lure children without the need of force, however fear is the terrifying factor. Their are so many factors to consider in cases like this.

On your other point the rules of evidence allow that a co-accused cannot be compelled to testify but they are seen as a competent witness, the judge can offer a caveat to the jury. If you are found to be innocent, you can and most likely will be compelled to give evidence against a co-accussed should their trial continue or be held at a later date or go forward to a higher court.

MagicSean · 18-07-2011 11:18am

sparkling sea wrote: »

Your jumping to conclusions here, I think there is gapping holes in the law regarding consensual teenage sex- I dont feel it is a legal matter but a social policy matter and should never fall under the remit of the criminal courts.
It is IMO natural but the consequnces should a very young girl fall pregnant are huge, particularly for her.
The 2006 Act was the result of media hype and moral panic IMO.

I think you are missing my point and the huge problem with the defence of honest belief, it is the defendants subjective belief which is what the jury decides upon and it is always hard to disprove a persons subjective belief .
If a 20 year old peadophile rapes a 9 year old girl the defence of honest belief will not be used because a belief that she may be of legal age, no matter how subjective will not sucessed as a defence; but if the same guy rapes a 14 year old it is likely to be used and could easily be accepted as his subjective belief - I think even if an objective test was used it would be helpful, but I would still have a problem with it.

Would subjective belief come into it if there was no actual consent from the other party, underage or not? Would this not be a case of simple rape?

sparkling sea wrote: »

If its a 50 year old peadophile and a 12 year old girl still not likely to sucessed as a defence but with a 15 year girl it is very hard to to say beyond a reasonable doubt what the defendants subjective belief was as to the girls age. You have to remember that alot peadophiles lure children without the need of force, however fear is the terrifying factor. Their are so many factors to consider in cases like this.

Again, if fear is used to obtain consent does it matter what age he thought she was as there would be no consent possible either way.

sparkling sea · 18-07-2011 12:46pm

Seanbeag1 wrote: »

Would subjective belief come into it if there was no actual consent from the other party, underage or not? Would this not be a case of simple rape?

Again, if fear is used to obtain consent does it matter what age he thought she was as there would be no consent possible either way.

THe defence is honest belief as to age, not to consent.

Its a s. 2 or s.3 rape, the defence of honest belief as to age is not applicable to a s.4 - is this what you mean by a case of simple rape?

The test for the jury to consider is a subjective one, not the ordinary man test when considering the case (what the defendant believed) thats the law. Unless it changed relatively recently?

Its not the offence of s2 or s3 rape but defence of honest belief of age, I am a bit lost on what your point is - sorry.

johnnyskeleton · 18-07-2011 7:26pm

sparkling sea wrote: »

Your jumping to conclusions here, I think there is gapping holes in the law regarding consensual teenage sex- I dont feel it is a legal matter but a social policy matter and should never fall under the remit of the criminal courts.

So you're saying that they should decriminalise underage sexual intercourse?

sparkling sea wrote: »

I think you are missing my point and the huge problem with the defence of honest belief, it is the defendants subjective belief which is what the jury decides upon and it is always hard to disprove a persons subjective belief .

What's the alternative, a complete and utter disregard for their honest belief?

sparkling sea wrote: »

If a 20 year old peadophile rapes a 9 year old girl the defence of honest belief will not be used because a belief that she may be of legal age, no matter how subjective will not sucessed as a defence; but if the same guy rapes a 14 year old it is likely to be used and could easily be accepted as his subjective belief - I think even if an objective test was used it would be helpful, but I would still have a problem with it.

First of all, if it is rape i.e. no consent then the age of consent has nothing to do with it.

Second, surely you are here recognising that a subjective belief must be based on a jury's assessment of whether that belief was reasonable in the circumstances?

sparkling sea wrote: »

However if a twenty year old is dating a 14 year old, then IMO his or her older years places certain resonsiblities on them because they have more life experience in most cases. They need to be sure their sexual partner is of age and if they know their partner is underage they have to wait - its the consequence of having a very young partner - not wrong, just life.

Well it is wrong under the law as it stands.

sparkling sea wrote: »

On your other point the rules of evidence allow that a co-accused cannot be compelled to testify but they are seen as a competent witness, the judge can offer a caveat to the jury. If you are found to be innocent, you can and most likely will be compelled to give evidence against a co-accussed should their trial continue or be held at a later date or go forward to a higher court.

No, an accused person is not competent as a witness for the prosecution. They are only competent for the defence. But if there is no way to prove lack of consent then it won't get to a defence case. A co-accused likewise is not a competent witness for the prosecution of his or her co-accused. You are perhaps confusing accomplices with co-accused.

sparkling sea · 19-07-2011 11:30am

johnnyskeleton wrote: »

So you're saying that they should decriminalise underage sexual intercourse?

What's the alternative, a complete and utter disregard for their honest belief?

First of all, if it is rape i.e. no consent then the age of consent has nothing to do with it.

Second, surely you are here recognising that a subjective belief must be based on a jury's assessment of whether that belief was reasonable in the circumstances?

Well it is wrong under the law as it stands.

No, an accused person is not competent as a witness for the prosecution. They are only competent for the defence. But if there is no way to prove lack of consent then it won't get to a defence case. A co-accused likewise is not a competent witness for the prosecution of his or her co-accused. You are perhaps confusing accomplices with co-accused.

You could be right there re co-accused and prosecution.

What I am saying and the answers you are giving or conclusions you draw are fairly confusing to me. I don't think the 2006 Act addresses the offences properly and it is very problematic. Its not black or white and there are many grey areas.

The defacto law in this country treats under age sex as if it is dicriminalised in the main but every now and again some unfortunate boy is prosecuted, to me thats wrong.IMO it is wrong to unnecessarily criminalise children of similar age for sexual experimentation.

As for age of consent and the application of the law - the state has a duty to all children under 18, so how should the HSE have been dealing with this all along. There is and always have been many young girls having babies in hospitals. As the law stands all of these girls have been raped, but yet there are very few prosecutions (thankfully in most cases IMO) but this is a prime example of problem with the act.

I would rather they whole area was revisited and dealt with properly.

detective · 19-07-2011 6:51pm

What's the rules in relation to accomplices giving evidence? I know I'm going off topic on my own thread but its very interesting. Any good literature online or in text on the matter?

detective · 19-07-2011 6:58pm

Also, in a situation where A and B commit a crime and are arrested and questioned. B makes admissions and A does not. Can B's statement/memo after caution be used to convict A?

I know the procedure whilst they are in custody but I am unsure of the courtroom scenario?

johnnyskeleton · 20-07-2011 6:36pm

detective wrote: »

What's the rules in relation to accomplices giving evidence? I know I'm going off topic on my own thread but its very interesting. Any good literature online or in text on the matter?

Accomplices are entitled to give evidence but a trial judge must give the jury a warning in relation to their evidence.

detective wrote: »

Also, in a situation where A and B commit a crime and are arrested and questioned. B makes admissions and A does not. Can B's statement/memo after caution be used to convict A?

I know the procedure whilst they are in custody but I am unsure of the courtroom scenario?

No, but insofar as B's admissions also implicate A, B can be invited to make a voluntary witness statement against A which can be used against A, again subject to the judge's warning.

That's also with the caveat that confession evidence is cheating.

detective · 20-07-2011 7:03pm

johnnyskeleton wrote: »

That's also with the caveat that confession evidence is cheating.

You've lost me here; can you explain please?

sparkling sea · 20-07-2011 8:36pm

The rule against finality of collateral questions had been the subject of controversy in rape cases.

There are several exceptions to the Collateral Issue Rule including

Evidence can be called as to the witnesses reputation for untruthfulness. A party may call a witness to testify that in his opinion a witness for the other party is not to be believed. The witness is merely allowed to state his belief and cannot give evidence of any facts which form that belief.

Evidence may be adduced at common law to contradict a witnesses denial of a bias or partiality and to show that he is prejudiced.

johnnyskeleton · 20-07-2011 10:13pm

detective wrote: »

johnnyskeleton wrote: »

That's also with the caveat that confession evidence is cheating.

You've lost me here; can you explain please?

Getting the accused to confess is cheating and a conviction based soely on confession evidence is a hollow victory.

detective · 20-07-2011 10:21pm

johnnyskeleton wrote: »

Getting the accused to confess is cheating and a conviction based soely on confession evidence is a hollow victory.

If a confession is obtained within the rules laid down by statute and other sources then I can't see how this could be regarded as cheating. This is a forum of opinions and you are, of course, entitled to yours. However, I have never heard any member of the law society or kings inn say such a thing?

sparkling sea · 20-07-2011 10:36pm

johnnyskeleton wrote: »

Getting the accused to confess is cheating and a conviction based soely on confession evidence is a hollow victory.

How so - the accused is not compellable and the prosecution can never comment in the accuseds failure to testify.

johnnyskeleton · 21-07-2011 3:18pm

detective wrote: »

If a confession is obtained within the rules laid down by statute and other sources then I can't see how this could be regarded as cheating. This is a forum of opinions and you are, of course, entitled to yours. However, I have never heard any member of the law society or kings inn say such a thing?

I don't know why a member of the law society or the kings inns might or might not say such a thing, but I think it is cheating.

sparkling sea wrote: »

How so - the accused is not compellable and the prosecution can never comment in the accuseds failure to testify.

That is precicely why dragging them into an interview room and getting them to fess up should not be permitted - because it would not be permitted inside court, it should not be permitted outside court.

MagicSean · 21-07-2011 3:58pm

johnnyskeleton wrote: »

Getting the accused to confess is cheating and a conviction based soely on confession evidence is a hollow victory.

How is it cheating exactly?

detective · 21-07-2011 5:07pm

johnnyskeleton wrote: »

1. I don't know why a member of the law society or the kings inns might or might not say such a thing, but I think it is cheating.

2. That is precicely why dragging them into an interview room and getting them to fess up should not be permitted - because it would not be permitted inside court, it should not be permitted outside court.

1. I am presuming you are a member of one. Apologies if this is not the case.

2. So are you saying that suspects should not be arrested for purpose of questioning but only for the purpose of charge? If so, can you point to any nation or society in the world where this is the case or is this just a solo run by your good self?

It is not the Garda's role to convict anyone, or get them to fess up as you put it, but merely to find out and get to the bottom of the truth. Questioning suspects is integral to this. Not all suspects are guilty. Sometimes questioning them shows their innocence.

Can you elaborate on how you think the system should work? I have read numerous posts by you and you are a very learned person so I am eager to hear your opinion. I just find it very novel.

johnnyskeleton · 21-07-2011 7:26pm

detective wrote: »

Questioning suspects is integral to this. Not all suspects are guilty. Sometimes questioning them shows their innocence.

Can you elaborate on how you think the system should work? I have read numerous posts by you and you are a very learned person so I am eager to hear your opinion. I just find it very novel.

Cases should be made based on direct evidence, forensic science evidence, CCTV footage and other real evidence. The rules of evidence dictate that all evidence must be direct evidence of observations or physical items that can be shown to the jury (provided they can be sufficiently proved to be genuine). A number of exceptions arise in certain circumstances, one of which is the rule that a voluntary confession is admissable as an exception to the rule against hearsay. The rationale is that it is highly unlikely that someone voluntarily admit their guilt unless they were genuinely guilty i.e. it could then be relied upon as being true.

If someone wants to make a voluntary statement admitting guilt that is fine. Equally if they spontaneous admissions at the scene of the crime etc there is no problem. In both of these situations, a jury can see the circumstances of the admission and accept the truth of it.

But putting them in a small room, telling them that they will be detained until they give the right answers, and indeed invoking statutory powers that if they don't explain themselves a jury will be invited to draw inferences from their silence is so far removed from the original basis for the exception to the hearsay rule (i.e. voluntary admissions) that it is monstrous.

Far from the logical and idealistic premise upon which the original rule was based i.e. that it was good common sense, society has found that it is expedient to put suspects through this process. Those that crack under pressure are classified as genuinely guilty, and those that persist are held up as inherently unreliable because of a few minor holes in their story.

Furthermore, the old chestnut of "sure we just want to get your side of the story" is equally untrue. Take an assault case. Typically, the complainant will make a statement in a relatively safe environment where they are allowed to make their statement freely and any questions are directed towards filling in the gaps. They then give their evidence in court and there only then subject to tough questioning by way of cross examination. Meanwhile, the accused is cross examined twice - once by the gardai and a second time when (if) they give evidence in Court by the prosecuting lawyers. The complainant gives their statement freely and while in some cases an accused will make a voluntary statement, the reality is that the voluntary statement will be followed up by a Q&A session and the "attending voluntarily" at the garda station will be a choice exercised on penalty of being arrested "at your home or at work".

detective wrote: »

It is not the Garda's role to convict anyone, or get them to fess up as you put it,

Yet we have many examples of people making false confessions due to garda pressure, indeed in some instances we have seen gardai actually fabricate admissions. This is the very core of the rule against hearsay - a jury cannot really know what was, or was not, said outside of court.

People have far too much trust in institutions such as the gardai. Juries and even judges often forget this. Many gardai say that if you are innocent then you have nothing to hide. It seems to me that good Gardai would surely have no objection to having to prove their case the hard way in order to secure a just result. This often involves painstaking police work but it is worth it in the end. But sure why bother when you can just slap a likely lad, strung out on heroin, into a cell and he'll crack just to get to the comfort of his cell so that he can sleep it off.

detective wrote: »

but merely to find out and get to the bottom of the truth.

You are right that it is not a garda's job to convict someone. That is the court's job. But you must also accept that it is not the garda's job to get to the truth - that is also the court's job. The garda's roll is merely to investigate and gather evidence impartially. Deciding the truth of the matter is the jury's function, and the jury's function alone (except in summary trials, but don't get me started on summary trials).

detective · 21-07-2011 7:51pm

johnnyskeleton wrote: »

But putting them in a small room, telling them that they will be detained until they give the right answers...

the reality is that the voluntary statement will be followed up by a Q&A session...

But sure why bother when you can just slap a likely lad, strung out on heroin, into a cell and he'll crack just to get to the comfort of his cell so that he can sleep it off...

people making false admissions due to Garda pressure

But all of these things are illegal as it is. A Garda cannot tell a suspect he will be detained until he gives the right answers, ask questions at any stage of a voluntary statement, not afford a sick person (in this case a strung out heroin addict) medical attention or pressure someone into confessing or fabricating same. Although I will admit the courts appear to accept that being in a Garda station is not a nice experience and so a certain amount of pressure is allowed but not as far as to amount to an inducement etc.

When you say that it's not a Garda's job's to find the truth I disagree. While a Garda is not there to determine the truth, and that is the role of the Judge/Jury, I do believe that through investigation and gathering evidence impartially a Garda is seeking to find the truth as best he/she can.

Plus questioning a suspect affords them a chance to benefit from extra mitigation if they do confess. I've seen convicted people escape prison sentences due to this mitigation alone when there was heaps of evidence to convict them albeit in summary court lol.

As an investigator I always advise younger Gardai to always seek out a confession, no matter how strong a case is already. It's the best evidence and I can't remember a case where somebody confessed and didn't plead guilty. Witnesses forget sh1t, CCTV disappears but a confession never goes away.

johnnyskeleton · 23-07-2011 4:05pm

detective wrote: »

But all of these things are illegal as it is. A Garda cannot tell a suspect he will be detained until he gives the right answers, ask questions at any stage of a voluntary statement, not afford a sick person (in this case a strung out heroin addict) medical attention or pressure someone into confessing or fabricating same. Although I will admit the courts appear to accept that being in a Garda station is not a nice experience and so a certain amount of pressure is allowed but not as far as to amount to an inducement etc.

The amount of times someone in what are described as relatively minor oppressive circumstances which are then ruled admissible by the courts is shocking. Especially when the person starts the interview with "on the advice of my solicitor I want to make no comment" only for them to descend into making admissions. We would do well to go back to the basic idea that a confession must be voluntary, and if that means curtailing garda powers of arrest, detention and interview, so be it. Instead, we are giving greater powers that have even less to do with voluntariness (e.g. inferences) and the whole thing has become a bit of a farce.

detective wrote: »

Plus questioning a suspect affords them a chance to benefit from extra mitigation if they do confess. I've seen convicted people escape prison sentences due to this mitigation alone when there was heaps of evidence to convict them albeit in summary court lol.

Sure, but most people would agree that people should get most credit for genuine remorse i.e. a truly voluntary admission rather than a cajoled one. Plus, don't pretend that where someone who would otherwise walk instead pleads guilty and gets a suspended sentence that that is somehow a positive for them. They still have the conviction, they still have the suspended sentence.

detective wrote: »

As an investigator I always advise younger Gardai to always seek out a confession, no matter how strong a case is already. It's the best evidence and I can't remember a case where somebody confessed and didn't plead guilty. Witnesses forget sh1t, CCTV disappears but a confession never goes away.

Exactly, cheating. Instead of making sure that witnesses, exhibits etc remain in place i.e. doing it right, the prosecution will rely heavily on admissions to try to get the conviction anyway.

detective · 23-07-2011 5:09pm

johnnyskeleton wrote: »

1. We would do well to go back to the basic idea that a confession must be voluntary, and if that means curtailing garda powers of arrest, detention and interview, so be it.

2. Instead, we are giving greater powers that have even less to do with voluntariness (e.g. inferences) and the whole thing has become a bit of a farce.

3. Plus, don't pretend that where someone who would otherwise walk instead pleads guilty and gets a suspended sentence that that is somehow a positive for them. They still have the conviction, they still have the suspended sentence.

4. Exactly, cheating. Instead of making sure that witnesses, exhibits etc remain in place i.e. doing it right, the prosecution will rely heavily on admissions to try to get the conviction anyway.

1. What do you mean by go back? When was that ever the way things have worked? When have police never been allowed to question suspects? Is there any judicial system in the world that operates like this? I'm not saying there isn't but I haven't heard of one.

2. Inferences are something that would concern me if I was "on the other side" for want of a better phrase. Have they been sufficiently tested in the higher courts re: their "kosherness"? If they are legally fine, which the attorney general obviously thinks they are, then can someone explain to me why solicitors advise their clients to be silent when they are obviously just adding to the circumstantial evidence against their client.

3. Agreed, I was referring earlier to situations where your man is caught round and square.

4. Perhaps cheating in a defense solicitor/counsel's utopia of what the rules should be, but it is not cheating as the rules stand. BTW how do I ensure witnesses remain in place?

johnnyskeleton · 23-07-2011 6:21pm

detective wrote: »

1. What do you mean by go back? When was that ever the way things have worked? When have police never been allowed to question suspects? Is there any judicial system in the world that operates like this? I'm not saying there isn't but I haven't heard of one.

Up until 1984, other than for offences against the state, the power to detain a person for the purposes of interview was not given to gardai. Instead, they unofficially asked questions while the person was arrested and waiting to go before a judge. Go further back and police had no special powers whatsoever, and had to go about gathering evidence with the same powers as anyone else.

detective wrote: »

2. Inferences are something that would concern me if I was "on the other side" for want of a better phrase. Have they been sufficiently tested in the higher courts re: their "kosherness"? If they are legally fine, which the attorney general obviously thinks they are, then can someone explain to me why solicitors advise their clients to be silent when they are obviously just adding to the circumstantial evidence against their client.

If the sole test of whether something is right or just is that it hasn't been struck down in your eyes, then this debate is pointless. The reason why confessions are admissible is that someone wouldn't voluntarily incriminate themselves. Extending this to allowing silence to be admissible is to flaunt the rules of evidence.

detective wrote: »

4. Perhaps cheating in a defense solicitor/counsel's utopia of what the rules should be, but it is not cheating as the rules stand. BTW how do I ensure witnesses remain in place?

I think it is a very poor system indeed if we simply create these arbitrary and unjust laws (but expedient from the point of view of securing convictions) and no one ever questions them. You ensure that witnesses remain in place by contacting them and ensuring that they are available for the trial. If they were never going to come into court and swear up, but the person is convicted based on a confession based on their witness statements, that is even more unfair, as the trial has essentially been run and lost in the garda station not by an impartial judge and jury, but by gardai whose job (whether you admit it or not) requires them to try to secure convictions.

sparkling sea · 23-07-2011 6:40pm

johnnyskeleton wrote: »

Up until 1984, other than for offences against the state, the power to detain a person for the purposes of interview was not given to gardai. Instead, they unofficially asked questions while the person was arrested and waiting to go before a judge. Go further back and police had no special powers whatsoever, and had to go about gathering evidence with the same powers as anyone else.

I think it is a very poor system indeed if we simply create these arbitrary and unjust laws (but expedient from the point of view of securing convictions) and no one ever questions them. You ensure that witnesses remain in place by contacting them and ensuring that they are available for the trial. If they were never going to come into court and swear up, but the person is convicted based on a confession based on their witness statements, that is even more unfair, as the trial has essentially been run and lost in the garda station not by an impartial judge and jury, but by gardai whose job (whether you admit it or not) requires them to try to secure convictions.

The system is very poor for lots of reasons, justice is not the end aim, surely that goes without saying?

ResearchWill · 11-08-2011 2:15am

detective wrote: »

Can a juvenile give consent for sexual activity? Or is every sexual act, no matter how mild, deemed to be a sexual assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act 1990 when juveniles are involved?

I know the laws in relation to the 2006 act and I am only pondering this question relating to a sexual or indecent assault contrary to Section 2.

I believe if there is consent there then it is not an offence. Any case law on the matter of juvenile's consent? By the way I am talking about acts between juveniles only and not adults/juveniles.

I'm going to try and keep answer to your question brief, if the matter is sex that is penetrative sex then no person under 17 can validly consent, but of course defence of honest mistake can be raised.

Now sexual assault or what used to be indecent assault is any assault of a sexual nature, of course any person can consent to such an assault which can be a kiss to a lot more but not full sex. Then any person 15 or over may consent.

Now the final part of your question 2 persons under 17 have sex the male commits the offence. If 2 children under 14 commit a sexual assault? I must check that one out. As the 2006 Act only leave a girl off the hook so to speak only in relation to intercourse, I'm not really sure how 2 14 year olds who feel each other up would be treated. Both are criminally responsible, but neither can consent, I will have to research this.

S 15 Criminal Law Amendment Act 1935.
Defence of consent by person under fifteen years of age.

14.—It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault.

Underage Consent

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