Derek McDowell (Labour)

I acknowledge, in the words of the editorial in this morning's edition of The Irish Times, that there is "widespread outrage and dismay" at yesterday's release of a 41 year old man serving a sentence for unlawful carnal knowledge of a 12 year old girl. That release derived from last week's Supreme Court decision that section 1 of the Criminal Law Amendment Act 1935 was unconstitutional. The section was struck down because it excluded the possibility of an accused person's invoking the defence of honest mistake as to the age of a person with whom they had sexual intercourse.

Over the previous 70 years many hundreds of persons were convicted under this legislative provision. At no time between 1935 and 2006 was a successful challenge mounted to the denial of the right to the honest mistake defence. Cases as celebrated as the X case, which were considered at huge length in our courts on a number of occasions, were the subject of prosecutions under this section. As a barrister who has both prosecuted and defended these cases, at no time did I hear it suggested that there was a constitutional infirmity with that legislation. We can analyse the process of legal review and how the case was handled until the crack of doom but the electorate looks to us as legislators to put the situation right without delay. The electorate now looks to the legislators to correct the situation without delay, a view supported by my soundings of all parties in the Dáil. I believe it is also supported in this House.

The Government proposes to pass emergency legislation before the weekend to restore the protection of young persons under 17 years of age through statutory prohibition on the offence of unlawful carnal knowledge. We propose to meet the Supreme Court concerns about admitting arguments as to mistaken belief as to age by accused persons. These can be tested and adjudicated upon by the trial courts.

This assembly does not have the right to make retrospective legislation to make right the convictions of persons in custody for this offence. No legislation could have been passed in the past few days, weeks or months to correct the situation of Mr. A or others in that position.

Many people believe that there should be no defence of honest mistake. The Ombudsman for Children wrote to me this week, arguing against such a change in the law, but the Supreme Court has decided it must be part of the law. A small number of people in custody are held in prison solely on foot of convictions for unlawful carnal knowledge. The State has argued against their release on the grounds of habeas corpus. One prisoner was released by the High Court but the case is being appealed to the Supreme Court and will be heard on Friday. The appeal is being vigorously pursued, just as the proceedings in this matter were vigorously pursued in the High Court and in the original Supreme Court case.

I wish to reject misinformation being suggested at present, namely, that there is no protection for our children from sex predators. This is completely untrue — strong legislation remains in place to protect our children. It is important to reassure the public. The striking down of section 1(1) of the 1935 Act does not leave a gaping hole in our laws. Our criminal code still provides for sexual offences against young people. Rape remains part of our law and carries a life sentence; sexual assault against a young person carries a penalty of 14 years; aggravated sexual assault carries a life sentence penalty; and rape of a young person contrary to section 4 of the 1990 Act carries a life sentence. To get a child drunk and to have sex with that child is an offence that carries a life sentence.

While the Government intends to publish legislation in this area, many other offences under criminal law protect our children. I spoke to the Garda Commissioner who confirmed that any offences of the type publicised in the newspapers remain serious sexual offences and will be the subject of vigorous investigation by the Garda Síochána.

The second falsehood is that the Government could have introduced emergency legislation to stop sex offenders affected by the Supreme Court judgment from being released. There is not a shred of truth in this suggestion. The High Court originally upheld the State's defence of the 1935 Act. The Director of Public Prosecutions, the independent prosecutor in Irish law, continued to lay charges for offences under the 1935 Act as late as 12 May. The Dáil was incorrectly informed that the DPP placed a moratorium on these prosecutions at some point in the past.

No legislation can retrospectively convict someone and nobody can draft a Bill that will bring about that outcome. Another falsehood that has been continually articulated by some quarters of the media is that the Law Reform Commission warned the State in 1990 that sections of the 1935 Act were unconstitutional. One newspaper wrote that the Law Reform Commission suggested there should be a constitutional referendum to deal with this issue. Nothing could be further from the truth. It stated that Irish law, in respect of the absence of a defence of honest mistake as to age, was unduly harsh and wholly out of step with law in other jurisdictions. Over the past 16 years, this was never interpreted as being unconstitutional. Countless cases have gone unchallenged on this aspect since the Law Reform Commission issued that report in 1990. The great majority of lawyers did not believe that there was a constitutional flaw, otherwise they would have raised it.

I have not checked the record of the Seanad but I am unaware of any Member of the Oireachtas tabling an amendment to make Irish law less stern in this regard. Any Member doing so would have faced stern opposition, not least from the viewpoint articulated by the Ombudsman for Children. Nothing could be further from the truth than to state that Governments since 1990 have done nothing with regard to the Law Reform Commission report. A series of Acts dealing with sexual law, homosexuality, child sexual abuse and the constituents of rape were based on the recommendations of the Law Reform Commission. None of the Governments, including that which included Deputies Rabbitte and Kenny, sought to change the law as a result of the report. Stern as the law was, successive Ministers with responsibility for justice judged it more effective than allowing the defence of honest mistake. No one in the Dáil or, I imagine, in the Seanad suggested we should have a less stern law to protect our children from sexual abuse.

Five Acts dealing with sexual offences have been passed since the 1990 report, including landmark legislation proposed by Máire Geoghegan-Quinn decriminalising homosexuality and dealing with prostitution. Many Acts have dealt with international agreements on child sexual offences. On no occasion has a Member of the Oireachtas, as far as I know, tabled an amendment to allow the defence of honest mistake. The Law Reform Commission report did not impugn the constitutionality of the Act. The Department of Justice, Equality and Law Reform published a discussion paper on this issue in 1998 and received a significant number of submissions. Subject to correction, 11 dealt with this subject and seven favoured it. There was no great appetite to water down stern laws on the abuse of the defence of honest belief.

I wish to say a few words about what has happened since. It has been suggested that somehow if the Minister for Justice, Equality and Law Reform, the Attorney General and the Director of Public Prosecutions had conferred and decided that it was likely or possible that the Supreme Court would decide the case as it did, we would have been able to do something to stop Mr. A from contesting his liberty on foot of it. Nothing could be further from the truth.

While it is true that I personally was unaware of the Supreme Court action and had no inkling of it until I heard about the result last Tuesday, even had I seen it happen in the Supreme Court, I could not have introduced legislation in advance its decision, and I would not have done so. First, to publish and introduce legislation while defending in the Supreme Court a case that one has won in the High Court would have been regarded by one's counsel as pulling the rug out from under him or her entirely. Second, it is not the practice of the Department of Justice, Equality and Law Reform, when it has won in the High Court, to prepare emergency legislation against the contingency that it might lose a case in the Supreme Court, especially when that legislation could not reconvict or keep in custody any person who would be affected by a successful outcome there.

That is another myth. However, the fact that it is a myth and sounds credible does not in any way inhibit some people from saying that somehow someone could have stopped this decision. That is not the case.

As far as the legislation soon to be put before the Houses of the Oireachtas is concerned, the Government is very clear regarding its intentions. It wishes to introduce a measure that will restore protection for children under the age of 15 by reintroducing an offence of statutory rape for them. Any statutory rape amounts to sexual assault, so the effect of reintroducing that protection will be to increase the maximum sentence for that offence from 14 years, as it is currently, to life in respect of that category.

Regarding 15 and 16 year olds, the legislation will reintroduce what in the 1935 Act was described as the protection of an offence by misdemeanour, which made it a lesser punishable offence to have sexual intercourse with a girl in that age category. In that respect, it is the Government's intention to reform the law and modernise it in accordance with the Law Reform Commission's suggestion regarding persons in authority and so on. However, it is absolutely wrong to suggest that these measures will by themselves suddenly make wholly illegal something that is wholly legal now.

I will deal with the question of the conduct of the court cases. The case heard in the High Court and Supreme Court started off on the basis of counsel being jointly instructed by the Director of Public Prosecutions and the Office of the Attorney General, which is quite usual, since it was a mixed case of criminal law and potential constitutional issues, depending on the interpretation of that law. It was thought, as is frequently the case, that one team of counsel would suffice to represent both interests. That team won the case in the High Court. I emphasise that fact, since very few people are doing so at present. Counsel for the Director of Public Prosecutions, who was in the driving seat in that joint team, won the case in the High Court, after which the case went to the Supreme Court.

My second point is that the case was vigorously defended, both in the High Court and in the Supreme Court. The result in the latter case has been a decision by the Supreme Court that section 1(1) of the 1935 Act was not brought forward into law in 1937 owing to the fact that the Legislature in 1935 had shorn it of a defence by expressly removing the defence of honest mistake from the pre-existing law. It did not come forward. Curiously, the same decision of the Supreme Court stated that the offence of sexual assault, then known as indecent assault, was not infirm, since there had not been any specific amendment to remove a defence in that case, and it came forward into the Constitution with the gloss that the defence of reasonable mistake must attach to it.

If one had asked a legal practitioner five years ago whether he or she thought that the defence might avail itself of that argument, that practitioner would have said "No". If one had asked a Member of the Oireachtas in 1937 whether he or she thought that the law was being amended to allow the defence of reasonable mistake in indecent assault cases — now sexual assault cases — that Member would have replied in the negative. However, owing to the peculiar legislative history of section 1(1), the Supreme Court held that it could have only one meaning, namely, that it could not be a defence under that section to show honest belief, whereas there was sufficient ambiguity about indecent assault to allow the court to hold that such a defence attached to that offence.

What is happening now in the Supreme Court is that the Government, through the governor of Arbour Hill Prison, is contesting the decision made by Ms Justice Laffoy in the High Court. Is this some scramble to save face? No, it is not. There are two views of the law in this matter. One is the classical view that, if it was not brought forward, section 1(1) must now be regarded as never having been part of our law, and as a consequence persons have never been properly convicted, imprisoned or registered as sex offenders, since the offence simply does not exist.

There is another view that I wish this House to hear, since it is important that it be articulated. It is as follows. Although that offence has now been struck down as inconsistent with the Constitution, things done under it are not retrospectively made unlawful. It was not unlawful to imprison the man in the X case or those others who pleaded guilty and were sentenced, to place them on the sex offenders' register, or to regard them as having been convicted of a very serious offence carrying the penalty of life imprisonment.

Members may ask, if it did not come forward in 1937, how it could possibly be that someone could be regarded as not being detained unlawfully. The State's argument is that, while something stands part of our law, in the sense that it is accepted as a general part thereof without being challenged, and is generally operated, it should attract the protection of the courts, at least to the extent that acts carried out under that Act should not be regarded retrospectively as unlawful and having no meaning in law.

The nub of the State's case is that Article 40 is not the appropriate way to secure one's liberty if one claims that one has been held in custody unlawfully under section 1(1) of the 1935 Act. What one should do is seek to have the warrant committing one to prison quashed by way of judicial review. In the context of such a review, issues such as whether one pleaded guilty to that offence when charged with another offence, thereby securing one's acquittal from the former and trading a plea, would be examined. Whether the prosecution was prejudiced by one's pleading to an offence subsequently found invalid would be examined. Issues as to whether the offence committed also constituted a different, valid offence at law could be canvassed. Every statutory rape of a child of ten, 12 or however many years, also amounts, as a matter of law, logic and fact to an indecent assault or a sexual assault on that child. Every person who has either pleaded guilty to an offence of statutory rape or been convicted of it has, on the particulars of his or her indictment, sufficient facts also to convict him or her of the offence of sexual assault attracting a maximum sentence of fourteen years in prison.

It is not a threadbare statement to suggest that when somebody goes to court, advised by lawyers, and pleads formally before a judge appointed under the Constitution that they are guilty of the offence on the indictment, and the particulars of the offence also constitute a very grave offence under Irish law, justice demands that the plea be given effect to as a matter of common sense and to uphold the constitutional rights of the children involved. It is not a threadbare position.

I am not an advocate in the courts now. The appeal the State has taken, which will be pursued vigorously, is not being done to save face. It is the result of a conviction that justice demands that if somebody gets four life sentences for assaults on young children on a plea of guilty to statutory rape when indicted for rape, as in one of the cases at issue, and secures, by that plea of statutory rape, an automatic acquittal of the greater offence of rape, and acknowledges himself guilty on the facts of sexual assault, that person should serve his or her sentence. That is not a threadbare, outlandish or unreasonable argument which flies in the face of commonsense.

It is for the courts to decide, for the first time, what the consequence for a criminal conviction will be if somebody is the subject of a conviction and a sentence on a pre-1937 statute which was struck down post-1937. This matter has never been decided before, but the case is immensely strengthened when the particular ground of objection relied on in the CC case, that there could be doubt about the age of the victim and that the person was entitled to argue that point, was wholly unavailable, inapplicable and inappropriate given the facts of the case that are subject of the other conviction.

It is wrong, bogus and untrue to suggest that somehow the 1990 report of the Law Reform Commission went unacted upon. It is wrong to suggest that, after the CC case commenced, some piece of legislation or some action by the Government or Legislature could have affected the outcome of that case. It is wrong to suggest that as a result of the striking down of section 1(1) of the 1935 Act our children are defenceless and that serious acts of sexual predation against them are now made lawful. It is wrong to suggest that any Government ignored successive warnings, or even any warnings of substance, that this legislation was unconstitutional. It is wrong to suggest that these propositions were obvious to the minds of reflective lawyers who observed the situation, when many hundreds of lawyers have conducted cases under this section without ever impugning the validity of the section, not least the Supreme Court in considering the X case and the cases that resulted from it.

People can work up incandescent, white heats of fury but let us consider this realistically and truthfully. No legislative intervention could have altered the outcome of this case. The Government is determined to introduce legislative reform proposals which will adequately address it. It is right to take a few days to get this right and not introduce a second Bill with some constitutional flaw. This Government is determined to fight its appeal in the Supreme Court and to legislate in these Houses to bring about justice for children who need protection.

It is wholly and completely wrong to suggest that public servants or public office holders were indifferent to a threat to the safety and welfare of our children that they lazily decided to ignore or fob off. That did not happen. These Houses have legislated extensively in relation to sexual offences. No Member of either House, in the 16 years since the Law Reform Commission canvassed the view that we should allow this particular defence, tabled an amendment to any of the legislation or any Private Members' Bill suggesting the protection of children should be less stern than was provided for in the 1935 Act.

I welcome the opportunity to come before the House to tell the truth about these matters. I did not know about it personally and I would have said so if I did. However, this is not relevant. My knowledge or lack thereof could not have made me do anything that I would otherwise have done. We would not have prepared legislation on a contingency. We would not have introduced legislation and pulled the rug from under our own team in the Supreme Court had we apprehended any threat. The Director of Public Prosecutions did not believe he was going to lose the case, did not warn me he was going to lose the case and kept on using section 1(1) until 12 May, contrary to what was said in the other House this morning.

Let us deal with the truth of this matter, not myths. Let us deal honestly with what unites us on this matter instead of pointless point scoring. We all stand together by our children and no one Member of either House is more devoted to the protection of children than another. No Member of this House has a better record than another, when in power or out of power, on this issue. The people look to all of us to be respectful of the truth in this matter, to legislate to protect our children in response to the Supreme Court decision and, in so far as we believe the High Court decision is mistaken, to vigorously prosecute an appeal to the Supreme Court. This is being done with a view to upholding what we believe is a commonsense and fair approach, as opposed to the mythical approach that what happened in the X case so many years ago was all a nullity at law.