McDowell live in the Seanad

Michael McDowell is making a statement to the Seanad (live) on the Supreme Court’s judgement last week and that has led to one previously convicted rapist Mr A potentially to be freed under a subsidiary judgement from the High Court. Session to continue to 8.15.

  • Keith M

    “Another fine mess”, the government in general and McDowell in particular is coming out of this with no credit whatsoever. How long more are we going to have these “Irish solutions to Irish problems” when it comes to personal morality. We should be looking to our neighbours and proactivly finding solution rather than continuing to react far too late.

  • Mick Fealty

    Doesn’t the judiciary have some responsibility for creating this mess? Striking down statuary rape has blindingly obvious consequences, unintended or otherwise. Was this not obvious to the supreme court judges when they made their judgement?

  • McGrath

    The amazing part is Mr A initially only got three years. Three years for raping a 12 year old! Where is the deterrent?

  • Brian Boru

    McDowell is getting far too much stick over this. The decision to release Mr.A was made by the High Court not Minister McDowell. I accept there was a lack of vigilance regarding updating the 1935 Act but being 71 years ago, there were also 5 govts that did not contain FF or the PD’s so surely they too shoulder some of the blame too? Also recall that it being claimed that the LRC report of 1990 somehow warned of problems with the 1935 Act, that from late 94-97 FG and Labour were in power. Next year we will be asked to return FG and Labour from the Opposition benches – including individuals that were part of that govt such as Kenny, Rabbitte and likely many others. Why should McDowell be considered more culpable for this mess than them?

    I think that much of the furore – while justified – is being directed where it isn’t due – or in so far as the flak for McDowell is due – it should also be shared by an army of previous ministers too. McDowell has many critics in the Irish Left and they are using this issue to try and bring him down but I hope they fail.

  • George

    Firstly, it is a convention of the separation of powers that neither side criticises the other so legislature or executive can’t blame the judiciary, even if they want to.

    Secondly, the judiciary has do what the judiciary has to do, namely interpret the law. The Supreme Court did not strike down statutory rape, it struck down a law it found to be unconstitutional.

    This is what happens when you rely on a 1935 Act which was written before the base law that is the Irish Constitution came into being to control something like statutory rape.

    Don’t shoot the messanger.

  • George

    Messenger even.

    Also Law Reform Commission flagged the need for change 16 years ago.
    If his department was told this could happen while under his watch, then McDowell could be in trouble.

  • That’s a fair point as far as it goes George. And I take your point about the arcane nature of the law. I guess what we are witnessing is one of the drawbacks of a written consititution, or perhaps the most literal interpretation of it.

    It’s interesting that McDowell posed two views of the situation that now opens up:

    Classical view: “once struck down it must now be considered as never having been part of our law”. (Thus the unseemly rush to appeal by Mr A. There is a worrying possibility too that that section 2 of the same law might similarly struck down).

    The Minister’s alternative view: even though that offence has been struck down, that past actions taken under it were not unlawful.

    It is clearly a matter of great delicacy for the Minister. He has no authority re the Supreme Courts, but it seems that the Supreme Court has no responsibility (in this case at least) other than the protection of the Constitution, regardless of harmful outcomes for the state’s citizenry.

  • Mick Fealty

    Worth reading tomorrow’s record of tonight’s session to see if that was specifically mentioned during the debate George. If it was I don’t think the Minister mentioned it in his summing up.

  • Bemused

    Interesting report on RTE1 last night that McDowell had “denied that the Law Reform Commission had ever highlighted concerns with the legislation”. If he sticks to this line he’s goosed. Everyone in legal circles knew that the legislation on this one was draconian at best and wholly unconstitutional at worst. The LRC DID raise these issues in a fairly lengthy report back in the early 90’s – I remember reading the report while studying Law at college!

  • Ciaran Irvine

    There is a Commission at the moment wading through all the pre-1937 laws to see which ones need updating/deleting, but that’s the kind of job will take years and years – with little thanks from the electorate, so it’s not a priority for the politicians.

    Governments of all stripes need to be far more pro-active on this. If a report raises questions on the Constitutionality of an old law, that law should immediately be sent to the Supreme Court to clarify the situation. And new laws should automatically go to a permanent sitting of the Supreme Court as soon as they pass the Oireachtas for a test of Constitutionality – before they go to the President for signing.

    How many times has this happened now? Laws get passed and it’s only years later when someone has the gumption to bring a challenge that the Supreme Court says “Well, these 2 sections are actually unconstitutional…”

    Not much point in a Constitution if we don’t actually use it…

    All recent Ministers for Justice have been far too busy passing silly new laws to pander to the “something must be done” crowd – when their time would have been much better spent cleaning up the mess of archaic laws and reforming the courts and Gardaí so that the laws we have are actually enforced.

    If McDowell specifically can be criticised, it is on the grounds that when appointed we got a load of guff about he was the brightest legal mind of his generation and would fix everything that was lacking in the entire legislation/courts/Gardaí/prisons sector. Instead he’s spent 4 years sitting on his thumbs, occassionally yelling about Provos to distract the media from the fact he’s bloody useless in the job.

  • kensei

    “I guess what we are witnessing is one of the drawbacks of a written consititution, or perhaps the most literal interpretation of it.”

    This really isn’t a draw back. The whole point of a written constitution is that the Supreme Court has no other responsibility than to interpret the law, and ensure that the law is in accordance with the basic provisions guarenteed in the constitution. The systemn worked as intended. In the long run, bad law, and worse the capacity to avoid removing bad law will lead to worse abuses and worse problems for citzens than any number of controversal decisions.

    The responsibility for drafting and maintaining law lies with the executive / legislature. As has been said, don’t shoot the messenger.

  • Pete Baker

    “I guess what we are witnessing is one of the drawbacks of a written consititution, or perhaps the most literal interpretation of it.”


    Surely it’s a drawback of not ensuring, at the earliest possible opportunity, that existing laws are compliant with that written constitution.. and acting accordingly?

  • Mick Fealty

    Before we get down that man play road too far Ciaran, I’m still trying to get my head around what actually happened last Tuesday. It seems there is two routes to conviction of juvenile rape: simplicter and statutary. The latter has become more common in the last four to five years and thereby came more to prominence. Some argue this is why the unconstitutionality of this law came to the notice of the courts. Can anyone help further on this?

    It seems the judgement revolves around articles 36 – a guarantee of due process – and 40.1.3 – the state’s undertaking to vindicate the personal rights of the citizenry. This perhaps unavoidable attention to detail seems to have blinded the judges to the political outworking of their actions.

    In effect surely it brings the law into disrepute?

  • Bemused

    “This perhaps unavoidable attention to detail seems to have blinded the judges to the political outworking of their actions.” That’s the whole point Mick – the judiciary are not meant to be in any way swayed or influenced by the ‘political outworking of their actions’. If a statutory provision is unconstitutional then it is unconstitutional full stop, no matter what sort of clearly foreseeable practical, political or social ramifications this may have. In essence the Supreme Court simply, coldly and dispassionately examines the constitutionality of a particular legislative provision – if they find it to be unconstitutional then it becomes a matter for the legislature to sort out.

  • Pete Baker


    Could that due process question have been influenced by the Human Rights Commission Bill becoming law in the Republic of Ireland in June 2000?

    Just a thought..

  • joeCanuck

    Not sure how the constitutional law is written in Ireland (in fact not even sure how it is precisely written here in Canada), but in a few cases before the Supreme Court in Canada where they have said that something is unconstitutional, they have ruled, or given, the government up to a two years grace period to draft and pass a new law before their ruling takes effect.
    Such a provision would, at least temporarily, stop a flurry of appeals.
    I know, I know, the purists will argue that the law is the law and you can’t do that. I think, however, that public safety needs some leeway.

  • joeCanuck

    Ah, now it’s coming back.
    When we repatriated our right to have our own constitution from the British Crown back in the early 80’s, we needed a large percentage of the Provinces (populationwise) to agree to the new constitution. This was difficult, so Trudeau (reluctantly) agree to a “Notwithstanding” clause in the constitution. That allowed the provincial governments and the Federal government to essentially overturn a decision of the Supreme Court by declaring that, notwithstanding that a measure is unconstitutional, public safety (or language in the case of Quebec)trumps.
    That gives the Supreme Court the wishy – washy ability to say, well, either change the law or invoke the notwithstanding clause.
    Apart from Quebec (over the language) no level of government has ever invoked the clause. They have always taken the “advice” of the Supreme Court and changed the law. Or else, let the law lapse.

  • Ciaran Irvine

    In effect surely it brings the law into disrepute?

    The law? Not at all. The system worked….eventually…

    It brings the politicians in the legislature into disrepute perhaps, for passing bad laws and then ignoring numerous sugestions over 16 years that the law was dodgy.

    And if that is the case then I’d say again, the system worked. Eventually. That’s what written Constitutions and the Seperation of Powers are all about. Protection from bad laws and the potential tyranny/malice/incompetence of the legislature. Politicians getting the occassional smack and being forced to do their jobs properly is surely infintely preferable to the politicians just doing what they like and passing whatever mad laws take their fancy this week…

    The law was Unconstitutional. End of story. It might mean that some very unsavoury characters get released from prison, but the fault lies firmly with the Oireachtas and every Government since 1990 for a) passing a bad law without due care and diligence and b) not doing their jobs by referring the matter to the Supreme Court as a matter of course (and urgency) as soon as questions were raised.

    We should have a referendum to insert automatic testing of all new laws between leaving the Oireachtas and arriving at the President into the Constitution. Otherwise this kind of thing will keep happening. It is only natural that politicians might sometimes lose the run of themselves and pass a bad law. We need to tighten up the system so that such laws are caught and trapped immediately, not years or decades later.

  • George

    “And new laws should automatically go to a permanent sitting of the Supreme Court as soon as they pass the Oireachtas for a test of Constitutionality – before they go to the President for signing.”

    This can be done at present. The President can refer Acts she feels may be unconstitutional under Article 26 but the problem is that their constitutionality cannot be questioned afterwards if this is done regardless of a future situation that the legislators never considered. A recipe for disaster in my view, leaving no room for interpretation.

  • joeCanuck


    not sure how it would work.
    Some (most?) Supreme Court cases here in Canada take over a year to pass through the system. So what do you do if there’s an urgent need for a new law ( the case right now over there with the statutory rape)?
    Having said that, we had a case here last year where the government posed a few questions to the Supreme Court for an opinion as to the constitutionality of a proposed law to redefine the definition of marriage ( to allow same sex marriages).

    As a matter of interest, the Court tried to duck giving an exact answer.
    Nevertheless, same sex marriages are now permitted. although our new Conservative government have announced that they will do everything in their power to repeal the Act allowing it.

  • Good stuff all. Now the question arises of the position of Minister McDowell. Is he really between a rock and hard place, or is this crisis around him and his role here as he described tonight, purely mythical?

    He said in the Seanad (if I recall correctly) that not even the Attorney General knew before last Tuesday that this judgement was going to happen (although apparently someone in the AG’s officce did).

    His line of defence was that the government could not justify tying down resources on the chances that an old law might or might not get struck down by the Supreme Court, which apparently does so almost on a daily basis.

    Although the common law principle does hold considerable sway in the lower end of the Republic’s courts, under the UK system, it pretty much is part of the law making process.

    This shuddering jolt may be desireable in terms of maintaining the integrity of the law, but it is hard to imagine it happening in the UK, where judges are freed by the system to consider the consequences of their judgement in setting precident.

  • Ciaran Irvine

    George – yes, the President can refer laws for testing, but this provision is very rarely used. I think only once in the last 10 years that I can remember. It should be automatic.

    And I’m not sure how a law could be constitutional one week and unconstitutional a few years later. The Constitution is a set of basic principles, rights of citizens, delimitations on the power of the State, and responsibilities against which laws are measured. “New circumstances unforseen by legislators” doesn’t really some into it. In that scenario they have to amend the law anyway.

    JoeCanuck: Canada doesn’t have a written Constitution, but a set of constitutional laws, so the circumstances aren’t really comparable. Ireland’s system is akin to the US one as far as constitutions are concerned, not the British “flexible Constitutional law” model that Canada follows.

    And no law is so urgently required that you can’t afford to take a couple of weeks to put it through the Supreme Court. Besides, the necessity would stop the legislature producing reams of silly laws that are destined to be ignored anyway, which is what happens at present, just because they want to be seen “doing something”. Fewer, better laws that we actually need and will enforce, that’s what the attitude of the legislature should be.

  • kensei

    “This shuddering jolt may be desireable in terms of maintaining the integrity of the law, but it is hard to imagine it happening in the UK, where judges are freed by the system to consider the consequences of their judgement in setting precident.”

    No, but UK Law produces farces like this:,3604,1375545,00.html

    Where the law courts can rule some truly terrible law inlawful, and it effectively mean squat until Parliament does something.

    Either the rights laid own in the Constitution are inviolate, or they are not. And if they are not, they shouldn’t be in the bloody constitution.

  • joeCanuck


    You are wrong.
    Canada does have a written constitution.
    I haven’t time to research the link, since i am about to leave the house to go to a board meeting.
    However, if you insist, i will provide the link tomorrow.

  • Ciaran Irvine

    Mick – I’m not sure you “get” the fundamental difference between the two systems. In Ireland the Constitution is supreme. In Britain, an Act of Parliament is supreme. The Constitution exists solely as a document to enshrine the fundamental rights and duties of citizens, and to explicitly delimit the powers of Government. In Britain, the State has all the power it wants to have or can get away with appropriating. In Ireland, the State only has the powers that the Constitution says it does, and that can only be changed by the people in referendum. The two systems might look superficially similar, but when you get down to it they have radically different- and opposed – views on the nature of the State and the relationship between the State and the People.

    Though that’s drifting off topic slightly 🙂

    In cases like this one, the role of the Supreme Court is just to dispassionately look at each provision of a law, compare it to the Constitution, and see if a) any fundamental rights of citizens are being trampled on or b) if the Government is appropriating powers to itself that it isn’t supposed to have. If either is true, the law is struck down.

    Politics or “what happens next” just doesn’t come into it and forms no part of their deliberations in Constitutionality cases. And that is as it should be. The primary purpose of the Supreme Court is just to protect and enforce the provisions of the Constitution. It is now the responsibility of the legislature to consider the needs of society and of their electorates – that’s their job after all.

    It wouldn’t happen like this in the UK because the Uk has a completely different system.

  • kensei

    Joe – your not quite correct. According to Wiki, while it focuses on a few acts, Canada’s constitution has unwritten parts, which would make it uncodified.

  • Occasional Commentator

    Referring every new Act to the Supreme Court would be impractical. Governments nowadays churn out massive amounts of legislation. It’d be pretty difficult to read all the new laws, never mind study their constitutionality.

    Also, it’s very difficult to rule that something is definitely constitutional. Who knows what some future lawyer might spot? Much better to wait until somebody (like the President) has actually spotted a potential problem and then let the Supreme Court deal with it then.

  • Mick-

    “Doesn’t the judiciary have some responsibility for creating this mess? Striking down statuary rape has blindingly obvious consequences, unintended or otherwise. Was this not obvious to the supreme court judges when they made their judgement?”

    It’s probably already been covered, but the SC judges must follow the letter of the Constitution as they see it. If a law is incompatible with the Constitution, they must strike it down, no matter how distasteful the outcome therefrom may be. Therefore, it is the job of the legislators to draft legislation which brings about the desired outcome, ensuring that in so doing, they also stay within the boundaries of the Constitution.

    Ultimately, it’s fair to comment on SC judges’ interpretation of legislation in terms of constitutionality, but as far as taking into consideration the outcome of striking-down a law alas they have no choice if they feel it is incompatible.

  • joeCanuck


    You’re nitpicking. while not acknowledging in any way that Wiki is the “supreme” word on anything, go back to Wiki and read what it says.
    If the Constitutional Act of 1982 and the accompanying Charter of Rights and Freedoms is not a Constitution, then I don’t know what is.

  • kensei

    “You’re nitpicking. while not acknowledging in any way that Wiki is the “supreme” word on anything, go back to Wiki and read what it says.”

    I’m not. It’s an absolutely fundamental point. If the constitution can be overriden by a simple piece of legislation due to it’s unwritten parts, then whatever acts you have are woorthless as a guarentee of freedoms. the Human Rights ACt may provide many of the features of a Eritten Constitution in the UK, but it can be amended by a single Act of Parliament. Can those Acts?

  • Brian Boru

    “I guess what we are witnessing is one of the drawbacks of a written consititution, or perhaps the most literal interpretation of it.”

    I think it’s more a drawback of the original legislation and the failure of successive govts to ensure it complied with the Constitution of 1937. Not just this one. Perhaps they feared that if they changed the rules, that the knowledge that the previous legislation was unconstitutional would have led to a flurry of what is going on now, with the abusers claiming “we were jailed under the old unconstitutional law”. Perhaps the politicians felt that the best way to avoid that appalling vista was to keep their heads down and hope no-one noticed the unconstitutionality of the 1935 Act.

    “George – yes, the President can refer laws for testing, but this provision is very rarely used. I think only once in the last 10 years that I can remember. It should be automatic.”

    Wrong Ciaran it has been probably the most used discretionary presidential power. President McAleese used it a number of times in her presidency, including:

    (a) Referred Planning and Development Bill, 1999 to Supreme Court.
    (b) Referred Illegal Immigrants (Trafficking) Bill, 1999
    (c) 2002 Referral of bill to the Supreme Court Housing (Miscellaneous Provisions) (No. 2) Bill, 2001 Bill not referred
    4. 2004 meeting Referral of bill to the Supreme Court Health (Amendment) (No. 2) Bill, 2004

  • joeCanuck


    yes indeed, at least here in Canada.
    As I stated earlier, Acts of Parliament here in Canada have been ruled unconstitutional by the Supreme Court.
    Unfortunately, we have do have the weasel out (notwithstanding) clause. But since 1982, neither the Federal government nor any of the 10 provinces, except Quebec, have had the gall to use that clause. Quebec used it in their povincial laws to promote the use of French after the Supreme Court ruled that their attempts to supress the English language were unconstitutional ( BTW, Quebec has a special Languge force who go around looking for infractions. For example you can’t say “Pierre’s cafe”, you must advertise it as ” Cafe de pierre”)

  • kensei

    “As I stated earlier, Acts of Parliament here in Canada have been ruled unconstitutional by the Supreme Court. ”

    That’s not quite the same thing. For example laws in the UK and be ruled incompatiable with the Human Rights Act.

    The two ke questions would be:

    1. Can the “Constitution” Acts be amende dby simple Act of Parliament or does it need referendum?

    2. What happens when it is illegal. Is the law struck down, or still there until Executive/Legislature Acts?

  • Ciaran Irvine

    Brian – thanks for that. I could only remember one occassion when they talked about using it, and that was the 2001 bill. I had a vague notion it had something to do with Travellers alright…

    Still though. Talking about referring 4 bills, and actually referring 3 of them, in 7 years. Out of what, probably a couple of hundred bills throughout that time. How do we know there aren’t quite a few other laws out there that will be found unconstitutional some time in the future when somebody bothers to take a case?

    It just seems unsatisfactorily loose to me.

  • joeCanuck


    No to both.
    The Constitution (and human Rights act) in Canada can not be amended by an Act of parliament nor by a referendum in Canada. It requires that 7 of the 10 provincial legislatures representing at least 70% (I think) of the population agree to the change. When changes were proposed, some provinces and once, the feds, held referenda. I can get you precise details tomorrow if you want.

  • joeCanuck

    [i]”The Constitution (and human Rights act) in Canada can not be amended by an Act of parliament nor by a referendum in Canada.”[/i]

    Yes and no which, I agree, doesn’t make much sense but Section 33 of the Constitution or Charter reads:

    [i]”33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter.

    (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

    (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

    (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

    (5) Subsection (3) applies in respect of re-enactment made under subsection (4).”[/i]

    But, either the federal or a Provincial Parliament may declare that any given Act will operate independently of the provisions of section 2 or sections 7-15 which define the basic human and legal rights of Canadian Citizens..

    So, the power of the Parliaments — federal and provincial — in this area are NOT subject to the guarantees in section 2 and sections 7-15.

    Now, that’s not really an amendment, but it is repealing those sections by a federal or provincial parliament in a given case.

    So, the Canadian Constitutuion is NOT a constitution, at least in the sense of the US and Irish Constitutions which can be amended or restrictred only by a referendunm in the RoI or by approval of 3/4 of the States (38) here in the US.

    Niether in the US nor in the RoI can a legislature — federal or state — declare that any act is not subject to the restrictions or guarantees of the Constitution.

  • joeCanuck


    Your interpretation is interesting, but hasn’t yet be put to the test.
    wait and we will see if you’re the expert.

  • [i]”Your interpretation is interesting, but hasn’t yet be put to the test.
    wait and we will see if you’re the expert.”[/i]

    Not claiming to be an expert but I am quoting directly from the document. No interpretation, at all.

    And, the commentary indicates that the section has been tested by the Province of Quebec with Bill 178.

  • Nevin
  • George

    “I think only once in the last 10 years that I can remember. It should be automatic.”

    I know it is not used very much but as I said, the problem is that once it goes through the Article 26 process then the law can never be questioned in a court again.
    I’ll give you an example to try and explain what this could mean.

    You put in a law saying conviction of a scheduled offence such as possession of an illegal firearm automatically gives you 10 years in prison (this would fall under Art. 40.3.1 but let’s for argument’s sake ignore this) and it is found not to be unconstitutional. An elderly farmer forgets to renew his gun licence so appears in court and will have to sit 10 years. No ifs, no buts. The Supreme Court cannot strike down a law that has passed the Article 26 referral test.

    You cannot remove the power of interpretation from the courts in order to cover up the sloppiness and incompetence of the executive and legislature.

    “Could that due process question have been influenced by the Human Rights Commission Bill becoming law in the Republic of Ireland in June 2000?”

    The Constitution is the base law of Ireland. It rules supreme. No bill of the Oireachtas changes or influences it. Bills are presumed to be constitutional until the courts decide otherwise. The due process question arises out of Article 38, dovetailing with the fundamental rights, enumerated and unemurated, enshrined in Article 40.

  • Occasional Commentator

    I think the Westminster Parliament tried to scrap the Rule of law recently but the courts just struck the law down. The ‘Rule of law’ is a technical term in law which doesn’t really mean the same as ‘rule of law’ as used in common speech – see the article. It’s one of the few things that probably couldn’t ever be scrapped by Parliament or anything else in the UK.

    The struck-down law was to have the effect that decisions made by immigration tribunals were to be outside the jurisdication of the courts. Even if, for example, the tribunal was driven by racism in its decision the decision couldn’t be struck down under the Human Rights Act or anything like that.

    Instead the courts ruled, rather sensibly, that no matter what the laws are it’s up to the courts to decide if they apply and how they should be applied. i.e. A bunch of civil servants can’t just avoid the courts, no matter what Act is passed by Parliament.

    I’m no expert, but I think that’s how it turned out. I can’t find any good reference to it now though.

  • Occasional Commentator

    If the 1935 statutory rape law is unconstitutional could these people be tried again under a different law? I would assume there are other (constitutional) laws that were in effect at the time.

    Does double jeopardy apply when the second trial is actually for a different crime? For example, if you beat somebody to death, and the murder conviction is lost on some technicality, can you be retried for assault?

  • J McConnell

    One thing I find amusing about the yet another fiasco caused by constitution is that no one seems to have worked out that the problem is the constitution and not the laws that are found to be in contradiction.

    A badly drafted constitution (it reads like it was drafted by a few small town solicitors and some not very bright undergrads who once did a course in constitutional law) that has more in common with the christen fascist constitutions of Franco and Salazar than with the constitutions of a liberal pluralist democracy. Lots of examples of the constitutions of modern liberal pluralist democracies at to compare and contrast with.

    If it were not for the Swedish constitution (you have a constitutional right to free assembly as long as it does not interfere with the traffic..) the 1937 constitution would win the prize as the silliest and most incoherent constitution of a modern western state. Banana republic style legal scandals will keep happening as long as you have a banana republic style constitution.

  • kensei

    “.. The courts just struck the law down”

    But in the UK, a law “struck down” is not automaticaly nulled, as in Ireland or the US. A populist government who thought it had support against the the ruling could effectively ignore it. All power resides in Parliament in the UK.

  • George

    J McConnell,
    an archaic statute that was written before the idea of equality before the law and basic fundamental rights were as well protected as they are today is the problem, not the Irish Constitution which guarantees these rights.

    For example, basically the Entire European Convention on Human Rights is covered by the Irish Constitution, which was written before the horrors of World War II. A document ahead of its time.

    And strange that legal academics consider it to be of the liberal democratic tradition, based mainly on the constitution of the United States of America, but then again what would they know compared to your good knowledgeable self.

    After all, they have just studied jurisprudence for decades.

  • Occasional Commentator

    The law was ruled a “nullity” because it violated the rule of law. The rule of law is one thing that the Westminster Parliament cannot avoid, even temporarily.

    It’s true that the Human Rights Acts and even the Parliament Acts are no more important than any other Act, but the rule of law was not created by Parliament and Parliament has already failed twice to remove it.

    I hope to get back later with a reference.

  • Occasional Commentator

    Here’s the original article where I first heard of some of the limits on Parliament. Some of the legal details are beyond my knowledge, but basically the courts already threw out a law in 1968 because ‘Parliament can’t do that, so there!’.

  • joeCanuck


    Don’t know about the UK but, in Canada and the USA, double jeapordy includes any lesser offence associated with the offence tried.
    So, no, if you beat someone to death and are found not guilty, you can’t then be charged with assault.

  • J McConnell


    I’m not familiar with all the finer details of the current fiasco but I can tell you how it works in the only fully codified common law state in the U.S.

    In the state of California a person under 18 years of age cannot legally consent to sex. Period. Anyone engaging in sexual relations with a minor is guilty of statutory rape. Period. The only special case is when both parties are between the age of 16 and 18. If either party are less than 16 or more than 18 then the only discretion left to the court to take circumstances into consideration is during the penalty phase. Period. All very straight forward.

    One thing I have noticed about all these scandals is that the Irish legal system seems to have a soft spot for people who rape children, and for people who aid, abet, encourage and cover up for the sexual exploitation and abuse of children. Just an observation..

  • kensei

    “Does double jeopardy apply when the second trial is actually for a different crime?”

    More pressingly, does double jeopardy apply when tried under a law declared to be null (and therefore non existant)?

  • Occasional Commentator

    J McConnell,
    There is no reason to think ‘the Irish legal system seems to have a soft spot for people who rape children’.

    Laws are challenged on their constitutionality quite often, but it only becomes a media scandal when there are children and/or sex involved.

  • J McConnell

    Occasional Commentator

    Do I need to make a list of all the legal scandals of the last ten years? Why do so many of them involve raping children? Its not that these are the only ones that grab the medias attention, its that these are the ones that show must brutally the nasty cynicism of the ‘an Irish solution for an Irish problem’. An Irish solution for an Irish problem means either shunting the problems onto someone else, blaiming other for self-inflicted problems, or pretending there is no problem and doing nothing.

    But with child rape these contemptable evasion of reponsibly reaches it utter depravity. The whole system is set up to punish the victim and grasp at any excuse to exonerate the guilty. You may look no further than the Judge Curtin case to see the utter moral bankrupcy of the Irish legal system, and the polical system that created and contols it.

  • Occasional Commentator

    J McConnell,
    The rules that freed Judge Curtin would be the same in any country with a proper justice system. The police breached the terms of the search warrant, therefore the evidence is quite rightly inadmissable. That’d be the same in pretty much any English speaking country and many more besides.

    The problem was incompetent police, not the legal system.

  • Mick Fealty

    J McC,

    It helps greatly if you can chart your argument, rather than bundling apparently unrelated misdemeanours and then making a single overarching statement that (invisibly) links them together.

    Clearly there are obvious moral concerns about the outcomes of this recent judgement. But if you’re making a point about the comparative merits/de-merits of the British and Irish legal systems, let us have the detail up front. It will take us a long way.

  • Occasional Commentator

    The British, Irish, and other legal systems let people off on technicalities all the time. Obviously it can be controversial, but the reality is that life would be worse if it wasn’t for the technicalities.

    For example, if the police could still use evidence which was gathered illegally by them then they would simply spy on everyone all the time secretly and only bring it into the open when they feel like locking somebody up.

  • George

    J McConnell,
    You speak of California but I believe in Kansas you can marry a girl as young as 12 or a 14-year-old boy (with parental consent), at the moment anyway but the Matthew Koso case will change this.

    One state’s statutory rape is another state’s wedding night.

    I am far from an expert on US law but I would assume that this situation is not unconstitutional as otherwise the US Supreme Court would have intervened.

    This is a complicated issue and the problem is that Ireland was using an old and inadequate law to deal with an issue that is constantly changing and facing new challenges. It is not alone in this.

    As for your comments on the Irish constitution and legal system, they are as inaccurate as they are unconstructive to the debate.

  • George

    J McConnell,
    for comparison, which might be of assistance. You can only be charged with statutory rape in the UK if you have sex with a minor under the age of 13. There is no defence.

    In the UK, the courts in many cases simply don’t prosecute cases involving those older than this age. They have this discretion

    What brought all this up in Ireland was that a 17-year-old was prosecuted for statutory rape for having sex with a 15-year-old who told him she was 16. There was no discretion and the defendant had no right to defence under the law, which the Supreme Court ruled was unconstitutional.

    By the way, the UK only updated its laws in this area in recent years.

  • Miss Fitz

    I dont want to interfere in this debate, but I think that this article by David Quinn in last Sundays’ Time deserves to be read in regard to this affair.,,176-2200077,00.html

    He sets out the scenario from both sides in a sensbile manner, and asks us to consider some difficult questions.

    Nothing is ever clear cut, and this is possibly less so than other issues.

  • J McConnell

    Mick Fealty

    I was pointing out a pattern of behavior in the Irish legal system – and I do see a very strong pattern of which the current crises is one in a long line. The current crises, in my opinion, is evidence of a systemic failure rather than just one of the inevitable hiccups in a common law system.

    Like to discuss the politics of how judges are selected in the ROI? The system in the UK is a model of transparency compared to the system in the ROI. Or how about the legal qualifications of judges in the ROI? Or how it is almost impossible to become a judge, or even a S.C, without the proper political ‘sponsorship’? Or how about the fact there are no J.P’s in the ROI, the bedrock of the UK legal system?

    None of the shambles of the ROI legal system (and you will know it is a shambles if you have ever had to deal with it) makes sense unless you know of the insidious political cronyism that animates the whole system. These terrible situations will keep arising with a sickening regularity until the legal system in the ROI is taken away from the political parties as a prized area for political patronage and put under the control of an apolitical body.

    I made the original comparison with California because it is the only common law state I am familiar with that has fully codified it laws. This is very important when dealing with people are making excuses for the inevitable messy situations that arise in common law. Codification simplifies enormously the integration of statute and case law, and simplifies the analysis when contradictions arise. The principal in law as codified in California is very simple, minors cannot give consent to a sexual act, just like they cannot sign a legally binding contract. End of story. There are no great legal principals to finesse here.

    And as the rule of law is the foundation of a civil society, what does the rule of law, as it is formulated and executed in the ROI, say about civil society in the ROI?

  • J McConnell


    The Kansas story you are referring to came out of a loop hole in the state law that has since been fixed.

    All states have the same marriage rules, under 18 you need written consent of both parents, and quite often permisssion from a judge, which is not often given.

    The age of consent in Kansas is 16, just like the majority of states, its 18 in the rest.

  • J McConnell

    Occasional Commentator

    > The rules that freed Judge Curtin would be the same in any country with a proper justice system.

    I disagee completely. If that particlar wheeze had been tried in Califonia with a child pornography charge the county procecuter would have nailed his ass on half a dozen other charges.

  • unbelievable

    J McConnell,

    If you think Ireland is bad. What about this party Charity, Freedom and Diversity Party, in the Netherlands, who advocate free train travel for all, as long as they can abuse your children and use the law to do it. Sometimes the law is wrong, and these people should not be protected by the law.

  • George

    J McConnell,
    if that is all you have to say about Kansas, why didn’ you just write that the current situation in Ireland is a loophole too which will soon be fixed. As I said, this area of law is constantly moving and the UK only updated its laws in recent years.

    Anyway, you have moved on in your most recent post so I shall too. Care to enlighten us all as to how you believe judges are appointed under the Irish legal system and in what areas of the process you see possibilities for improvement?

    Perhaps you could cite a judgment to back up your extremely serious claims that the Irish judiciary contrary to the opinion of legal experts are in fact not independent of the executive and legislature?

    Would you care to comment on why you disagree with what the Australian Solicitor General in the Valente case outlined as the requirements of an independent judiciary, requirements clearly met by Articles 34 and 35 of the Irish Constitution and the Courts and Courts Services Act?

    Or if you won’t do that, maybe you could tell me what you consider to be the requirements for an independent judiciary and how you see Ireland adjusting accordingly?

    You’ve already dismissed conventional legal wisdom by stating the Irish Constitution isn’t from the Liberal tradition and say it was poorly written when South Africa, Australia and India have all looked to it when looking into possible constitutions of their own. But what would their legal experts know?

    Maybe you could also explain all this in the light of the recent Supreme Court verdict?

    On judicial appointments, I would be interested to hear what you advise for the Judicial Appointments Advisory Board? Where do you see its limitations?

    Also, what in your view are the advantages of a Justice of the Peace model for dealing with summary justice and why do you feel Ireland has a deficit in this area?

    How would you adjust Articles 34 and 35 to ensure that whatever changes you advocated would be constitutionally feasible?

  • [i]”The rules that freed Judge Curtin would be the same in any country with a proper justice system. The police breached the terms of the search warrant, therefore the evidence is quite rightly inadmissable. That’d be the same in pretty much any English speaking country and many more besides.[/i]

    So writes the Occasional Commentator. Mr. McConnell rather vigorously disagrees, citing California law.

    Here in the US, most criminal law is written and enforced by the States, subject to varying State laws and Federal review for consitency with the US Constitution. This particular area, i.e. the use of evidence obtained with some sort of illegality, is particularly difficult.

    Basically, it depends on the illegal behavior and the Federal courts have become increasingly critical in recent years in this area. So the situation is not quite as cut and dried as Mr. McConnell says.

    There is, however, one jurisdiction where the evidence obtained by any illegality would be unusable in a trial, and that is the Federal Court system. The “fruit of the poisoned tree” is NOT admissable in the Federal courts.

  • J McConnell

    Bob McGowan

    > There is, however, one jurisdiction where the evidence obtained by any illegality would be
    > unusable in a trial, and that is the Federal Court system. The “fruit of the poisoned tree” is NOT admissible in the Federal courts.

    Note I said the county prosecutor in my posting. A case like the Judge Curtin case would usually be tried at the county court level, or less often in state court.

    Often, for very high profile cases where the Fed prosecutor gets first crack at the defendant, if the Feds get tripped up, then the state and county prosecutor have their chance to have a go.

    I dont think a Fed case even in a very liberal district like the 9’th would have treated the Curtin search warrant evidence as inadmissible. It was the sort of technicality that might get a dismissal in a moving-violation ticket case but not for a child pornography case.

  • J McConnell


    I must gather from your rather pedantic reply that you do not have any direct experience of the workings of the Irish legal system, or any other legal system for that matter, and that your knowledge of the workings of the Irish legal system is based purely on what you read in the newspapers.

    Let me enlighten you, like I was first enlightened myself by an acquaintance many years ago, on how the system really works. This particular acquaintance is now a very successful S.C. so he obviously knew what he was talking about…

    How to become a judge in the ROI…

    First you need to be born into the nationalist / soft-republican oligarch that has ruled the ROI since 1932. Having a father/grandfather/uncle who was a judge or S.C, or senior FF politician or big FF political donor gets you extra points. Then you must be educated at one of the six top RC public schools in the ROI. Not going to any these schools means almost certain elimination before the race has really started.

    Next a B.A at T.C.D to better position yourself for the Kings Inn scrum later on. At university join young FF and become an officer no matter what your true political beliefs are. FF is the de-facto party of power in the ROI and therefor has been responsible for making 80% plus of judicial appointments over the last 70 years. If you dont join FF you may get lucky later on, but the odds will now be heavily stacked against you.

    Next you clamber up the greasy pole of the legal profession choosing your enemies as carefully as your clients. Success on the way up is often as much having the right enemies as having the right clients and having the right cases. By the time you are a successful S.C, if you have also been carefully cultivating your low-profile political career in the party, you are ready to make the final step. The government makes you a judge because you are a ‘sound’ man , because you are one of them.

    Of course there are exceptions to this story, the smattering of FG and Labour judges and the occasion political agnostic, but they are there mainly for ornament.

    The other exception to this story is the payback judge – judges who get their position purely because someone called in some very big political favor owed. One particular district court judge in the news a few years ago comes to mind. He did not get the job because of his legal brilliance, let alone legal competence. Lets just say daddy had a word with friends in high places and suddenly a not terribly successful lawyer is a judge.

    And the point to the above story? The rule of law is only as strong as the quality of the people who are appointed to interpret and enforce it. And in my opinion, the quality of the majority of the officers of the judiciary in the ROI and the manner in which are selected leaves a lot to be desired.

    In the real world the law is not what the legal textbooks say it is, the law is what the courts say it is. And bad judges equals bad law.

  • J McConnell
    1. Thank you for telling us about California, the state that freed O J. Thank you also for your simplistic take on Irish constitutional law and pointing out George’s “if it don’t fit” pedantry, which is what the law is all about.
    2. Case law and JPs are a hangover of the Medieval times and the Code Napoleon/Roman law is probably a better and leaner system for locking up the guilty. But we all imagine, thanks to our British friends, the “appalling vista” that can give rise to.
    On statutory rape, I tried to get up but it seems to be off line. Please settle with this:
    Although the age of consent in Japan, for example, seems low, there are additional laws, such as corrupting a minor that have to be taken into account and that are used to lock up pervs.
    The Irish Constitution was a good document when first written but the stresses around Article 40 et seq seem to be not so suited for today. While it is true that Rent a Crowd are jumping on the bandwagon here, and the politicians should have closed this loophole years ago, perhaps a more fundamental analysis of whither Ireland is needed.
    Dev had that in his much mocked 1930’s vision. But Ireland has come a good way, both for good and bad, since. The old FF/FG divisions that obsess JoeMcC are much more blurred now. Perhaps a basic overhaul is needed. But the politicians will play political football with it: they are more worried about the damage the statutory rape laws will do to their re election chances than to the rapes themselves.

  • J McConnell


    And my question to you is the same one I had for George, do you have any direct real world experience of the shambles of the Irish legal system, or do you have any direct real world experience of the workings of the legal systems of other countries to compare the Irish system with?

    Of are you just parading opinions that are little more than ill-informed commonplaces bolstered by what you read in the newspapers?

    I have personally heard lots of horror stories of the US and UK legal systems, both of which are far from perfect. I am also familiar with horror stories from the French and Italian legal systems. So much for the superiority of civil law. I have also heard the stunned incredulity of very experienced UK and US lawyers as they familiarized themselves with the details of some fairly typical decisions by Irish courts, the law as it is practiced in Ireland, and by what is considered normal behavior by the average Irish lawyer.

    If you have had much dealings with lawyers you will know that it takes a lot to reduce lawyers to a thoughtful silence. I have found in the past that there is nothing like introducing competent and experienced lawyers from other legal systems to the workings and decisions of the Irish legal system to leave them utterly speechless and shaking there heads. Lawyers are a pretty cynical lot and think they have heard everything but a few quick stories about some of the past glories of the Irish legal system, let alone the effects this utterly callous system has on innocent lives, is guaranteed to trump any story of injustice or incompetence they may have. If you know any lawyers you will know that they always have a large fund of these type of horror stories.

    So I see from todays papers that it is now legal to rape 15 year old boys in the ROI under the new law. I suppose what can you expect from a government of not terribly impressive solicitors, book-keepers, and secondary school teachers, and an AG that I would not hire to contest a parking ticket in city-court.

  • J McConnell: As it happens, I have direct experience of the Irish legal system and of some others. However, your posts are too subjective, too much of a bitter rant, if you wish, to be bothered with. The appalling vista I mentioned referred to the comment by a senior British judge who refused to countenance how unjust the British judicial system was.

  • Brian Boru

    In a poll in the Sunday Independent today, 61% either blame the Attorney-General or the Supreme Court (45% and 16%) with 39% blaming the Minister.

  • J McConnell


    Well your posting does not indicate much evidence of any direct experience of any legal system. People who actually know what they are talking about would not have answered my points the way you did.

    Here is the rule of thumb I’ve discovered over many years of dealing with different legal jurisdictions. If you are in California a quick look at the relevant uniform code and you will not have any nasty surprises if you have to go to litigation. What you read is what you get. Same goes for the states of Washington and Oregon. When in the UK or France a quick look at the relevant standard law reference books and statutes and again, not too many surprises if you have to go to litigation. In the case of the ROI what you read in the standard legal ref books and even the statutes themselves bears only the vaguest and most impressionistic resemblance to what you actually find in a court of law once you gets entangled with the Irish legal system..

    If you want the protection of the law in Ireland make sure you hire a very well connected barrister or SC and that you have very serious amount of money to spend. Justice is very very expensive in Ireland. Otherwise you are just wasting your time.

    Due to the utterly callous lottery of the Irish legal system, especially the lower courts, one will quickly rue the day one ever thought of seeking protection, justice or redress through the Irish legal system.

    If its any consolation its exactly the same story in Italy….

    I never had the slightest illusion about the Irish legal system and how it works but I have friends who naively believed that the Irish legal system was there to protect them when they needed protection and was there to enforce the law. They discovered in the nastiest and most gruesome fashion just how utterly corrupted the system is, and that they only have as much legal protection as they can buy with very expensively legal representation.

    No legal system is pleasant, they cannot be otherwise by their very nature, but in my personal experience the utterly depraved cynicism of the Irish system takes some beating.

    Oh I see they are talking today about another constitutional amendment…What a farce…

    At least the editorial writers at the Indo have started to notice that maybe the real problem is the constitution after all..