Curious morality of justice

Here is an A-Z of Irish justice in the past fortnight

Here is an A-Z of Irish justice in the past fortnight. The week before last the High Court released two men in differing circumstances whose subsequent treatments shed an interesting light on the freedoms we are reputed to enjoy under the Constitution.

On Tuesday, May 30th, the court released Mr A, a convicted child-rapist, in circumstances that require no elaboration. For three days, until the Supreme Court turned its own logic inside out, Mr A strolled in the sun, enjoying the benefits of a literal legalism undiluted by morality or common sense, immune from restraint or interference by agencies of the State.

Two days later, another man, whose case I had written about here on the previous Monday, was released by the High Court.

Because he cannot be named for legal reasons, I will call him Mr Z. Two weeks before, Mr Z had been jailed by a Circuit Court judge sitting in camera. Having been deserted by his wife, he had refused to engage in legal proceedings he believed to be illegally pursuing the termination of his marriage and the splitting up of his children.

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As a devout Catholic, he believed himself to be married for life. On being notified of judicial separation proceedings, he had asked the court to provide evidence of jurisdiction, but received no response.

A number of orders were issued in his absence, including one requiring the division of his four children between his wife and himself. He ignored these and continued caring for his children. Presently, he was arrested and jailed for contempt.

On the day Mr A was released, Mr Z appeared before the High Court on his own application under Article 40 of the Constitution.

Mr Justice Smyth said that there were "worrying features" about his detention, including that his request for clarification about the source of the Circuit Court's jurisdiction had been, as the judge put it, "swept aside".

The judge said that the case raised "serious issues" and indicated his intention to order a judicial review.

Because Mr Z was due to appear again before the Circuit Court on Wednesday, the judge, "with the greatest reluctance", ordered that he spend another night in jail.

Next morning Mr Z was taken to the Circuit Court, where - the court having been cleared of everyone except the judge, Mr Z and a prison officer - he was sentenced to a further two weeks for contempt.

That afternoon, in the parallel universe of the High Court, Mr Justice Hanna in effect reiterated the view expressed the previous day by Mr Justice Smyth and ordered the man's release on his own recognisance to initiate a judicial review.

Mr Z went home to his two older children who had been waiting in some distress for their father's release. He also arranged to see his two younger children, now in his wife's custody. His wife proposed that he visit them in the house of a neighbour.

Believing that the Circuit Court orders were no longer valid, Mr Z took his children home, where they spent the night with their father and siblings.

The following morning, two gardaí arrived and said they would arrest Mr Z unless he handed the children over. Mr Z asked them if they had a warrant. They did not.

He asked them on what authority they were threatening to arrest him and they replied that they had been contacted by his wife's solicitor.

They were unaware of any High Court proceedings.

To avoid traumatising his children, Mr Z agreed that his wife could come and take the two younger children away.

Mr Z is proceeding with his judicial review, which may have implications for the Irish family law system analogous to the recent Supreme Court decision for the legal context of statutory rape.

Meanwhile, he has attracted the increased attention of the authorities. Last week he received a letter from the childcare manager of his local Health Service Executive.

"Following concerns that have been expressed about your child," this chilling missive outlines, "I have decided to convene a meeting, which is called a child protection conference. I hope you will be able to attend this meeting . . . The purpose of this meeting is to discuss matters that affect you and your children and to look at how we may assist you."

The moral of these stories of Mr A and Mr Z is that, if a man wishes to enjoy the protection of the law and its agencies, he is better off being a child rapist than a loving parent.

Notwithstanding the fact that Mr A is now back in prison, it appears that the agencies of the State will move mountains to ensure that he enjoys the protection of the unmitigated letter of the law.