Michael McDowell (Dublin South East, Progressive Democrats)

The DPP has very wide discretion. I asked him whether a provision taking into account age, which was analogous to taking into account the interests of the child, would be a good or bad idea. His view was that his discretion should be left untouched by legislative measures. If we start legislating for how discretion is exercised, it will end up becoming the subject of judicial review, which is not the case at the moment, and will develop into a rigid, court-bound set of guidelines which will not enable him to do his work.

I will make an interesting point which I would have made this morning if I had been given a fair opportunity to be heard. In 1968, the presiding judge of the Court of Criminal Appeal, dealing with the question of statutory rape and ordinary rape, said the following:

Because the rape count was laid the prosecution took on the onus of establishing that the carnal knowledge of the prosecutrix was had by force and without her consent. This involved calling the prosecutrix as witness. This court is of the opinion that prosecutors in cases involving the carnal knowledge of young girls should seriously consider the possibility of being able to sustain a conviction without the necessity of calling such young girls as witnesses, and thereby exposing them to the ordeal of having to recount in court what must have been for them a terrifying experience.

That shows that as far back as 1968, on this very issue of forcing young girls to testify, a judge of the Court of Criminal Appeal, which consisted of Supreme Court and High Court judges, thought it a great advantage of the charge of statutory rape that young girls avoided the ordeal of cross-examination.

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