The Supreme Court has got off lightly in the recent spate of outrage over sex offenders. The decision of the court which gave rise to all this controversy has not been examined, writes Vincent Browne.
Nor has there been any comment on the failure of the judgment of May 23rd of Adrian Hardiman (and agreed to by the other four male judges of the court, Messrs Murray, Geoghegan, Fennelly and McCracken) to deal with a judgment of one of their fellow judges on the court, Susan Denham, in judicial review proceedings in the very same case last July.
A central issue at stake in the case of CC was whether the 1935 Act implied a criminal intent in the commission of the crime of sexual intercourse with a person under the age of 15. On the face of it Section 1.1. of the Act is silent on the issue. It reads: "Any person who unlawfully and carnally knows any girl under the age of 15 years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years."
Susan Denham noted that the words in this section do not exclude the requirement of a criminal intent. She quoted a celebrated judgment of the House of Lords in a case known as Sweet v Parsley (which Adrian Hardiman also relied on) which held: "There has for centuries been a presumption that parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea (criminal intent) there is a presumption that in order to give effect to the will of parliament, we must read the words appropriate to require mens rea".
She quoted from a 1977 judgment of a celebrated Supreme Court judge of the time, Séamus Henchy, in a case known as The People v Murray. This case arose from the murder of a garda in Fairview Park by Noel and Marie Murray, following a robbery. The garda was in plain clothes and the issue arose whether the Criminal Justice Act 1964, which created the offence of capital murder (ie the murder of a garda and which carried the mandatory penalty of hanging), required an intention to murder a garda, in other words whether mens rea was required. Séamus Henchy found categorically that it did, although the Act was silent on the issue. He quoted with approval the House of Lords judgment in Sweet v Parsley. Another celebrated judge of that Supreme Court, Brian Walsh (father-in-law of the current chief justice, John Murray) agreed with Séamus Henchy, in itself a noteworthy occurrence.
Susan Denham said: "Sweet v Parsley has become an established part of the common law of this jurisdiction, it has been recognised to be consistent with constitutional principles (that arise in the Irish Constitution)." She said: "Whenever a section of a statute is silent as to mens rea there is a presumption that we must read in words appropriate to require mens rea."
For these reasons she said the contention of the defence in the CC case that a criminal intent was required by the 1935 Act was correct and that therefore the Act was not unconstitutional.
This was a substantive and an important judgment. The issues raised were serious and central to the CC case and the constitutionality of the 1935 Act. It would have meant that the CC case could have gone ahead, Mr A would not have been released and there would have been no crisis.
Neither would the judges have had to bend their minds to find a rationale for ordering the re-imprisonment of somebody for a crime that does not exist.
And because the issue raised by Susan Denham in her judgment in this very same case last July was so central to the issues to be decided by the court on May 23rd, would you not have thought that the learned males of the Supreme Court would have thought they should deal with that judgment of their female colleague, even if they were to disagree with it? Out of politeness? But not a bit of it.
Adrian Hardiman's judgment runs to 9,269 words. He dealt with the issue of whether it was correct to read into the 1935 Act the requirement of criminal intent. He did so in a single paragraph of 166 words. And in doing so did not even refer to the judgment of his colleague, Susan Denham, nor deal with any of the issues she raised to do with the common law tradition that criminal intent is inferred in Acts of Parliament when such Acts are silent on the issue of intent.
He said merely to make such inference would be improper for the court because it would be legislating and that is the prerogative of the Oireachtas. This even though previous Supreme Court judgments said it was not just fine but necessary to make such inferences. It was obvious from last July that the constitutionality of the 1935 Act was in doubt - actually Adrian Hardiman, best friend of Michael McDowell, said it was in doubt since 1970, so this lets no one off the hook.