Advise the Minister

mountainyman

A new minister for Justice is appointed.
She is from Donegal.

In her first week a scandal breaks.

A twelve year old girl is abducted and raped by two men in their thirties after a school disco in Burtonport. She is badly injured.

The judge invoved (Justice Terence O'Foole) suspends their sentences on the grounds that 'she was no angel'.

You are legally qualified civil servant working in the department of justice --advise the minister.

MM

templetonpeck

mountainyman wrote:

A new minister for Justice is appointed.
She is from Donegal.

In her first week a scandal breaks.

A twelve year old girl is abducted and raped by two men in their thirties after a school disco in Burtonport. She is badly injured.

The judge invoved (Justice Terence O'Foole) suspends their sentences on the grounds that 'she was no angel'.

You are legally qualified civil servant working in the department of justice --advise the minister.

MM

I'd tell him 'isn't this an unfortunate case Minister, however given that we're the executive and this is the Judiciary we can have absolutely no in put into it whatsoever.'

Tom Young

Following on from templeton, who is correct:

One would have ones civil servants and indeed advisors review the transcript of the case in open court. Seeking to clarify if the trial judge was suspending on the basis of evidence or indeed an appealed decision.

...for when I have to answer to Judge Miriam O'Callaghan on Prime Time this evening.

[By the way Jeeves how's my hair dye?]

This would be owing only to the trial by media culture that has arisen in Ireland in recent years.

I would also request permission to place the AGs officials on notice in order to avoid political pressure in the Dail chamber.

The Presumption of Doli Incapax also arises here, so we may actually have an erred decision. See Childrens Act 2001 Ss. 52 and 54.


52.—(1) It shall be conclusively presumed that no child under the age of 12 years is capable of committing an offence.

(2) There is a rebuttable presumption that a child who is not less than 12 but under 14 years of age is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong.

54.—Where a child under the age of 14 years is responsible for an act or omission which, but for section 52 , would constitute an offence, any person who aids, abets, counsels or procures the child in or in relation to that act or omission shall be guilty of that offence and be liable to be indicted, tried and punished as a principal offender.

mountainyman

templetonpeck wrote:

I'd tell him 'isn't this an unfortunate case Minister, however given that we're the executive and this is the Judiciary we can have absolutely no in put into it whatsoever.'

Revise 'you are a legally qualified civil servant' to 'you are a legally qualified and ambitious principal officer who would like to be an assistant seceratry one day'

MM

dats_right

Presumably this is an exam question of some sort? Probably Constitutional law? If so, then it is a straightforward question relating to the seperation of powers as templetonpeck has already pointed out. Cite the relevant articles and some case law, but the conclusion is that the courts and only the courts have any role or function in respect of criminal matters. A few other observations:

Firstly, I would especially think it wholly irrelevant and unecessary to start discussing the rules relating to doli incapax, as; a) the trial involved two men in their thirties against a child victim, not the other way around and, b) the fact that the judge said 'she is no angel' is not sufficient to draw any conclusions regarding any criminal charges/convictions/allegations against the child victim, and a discussion of same in such a question would be totally superfluous to the main issue, viz the seperation of powers. So there really is no need and indeed it would be unwise to go down this road.

Secondly, if this is indeed a law exam question then you are only expected to confine yourself to the law. There is absolutely no need to consider the issue from a realistic viewpoint or adopt a pragmatic approach i.e. what would I or the Minister actually do in that situation? (e.g. you aren't expected to start talking about the PR and media offensive that a Minister would probably go on in such circumstances, or the plethora of tougher legislation and mandatory sentences that the Minister would promise to introduce, or indeed the underhand and covert Ministerial attempts to try and have the DPP appeal the leniency of the sentence notwithstanding the DPP's independence from Government). And it might be no harm mentioning that under the Prosecution of Offences Act 1974 that the DPP is independent from Government and any decision to appeal the Sentence is at the sole discretion of the DPP.

mikemac

Am I the only one to think the Minister should secretly order the Donegal Gardai to harrass and force a confession from the two suspects

mountainyman

Not an exam question. The legal issues are fairly straightforward I would have thought. The minister can do nothing. Though exploring the nature of that nothing might be interesting.
Maybe it would be a good seperation of powers question.

It is based on an English case the name of which escapes me. Except there I think it was in the summing up.
MM

templetonpeck

mountainyman wrote:

Not an exam question. The legal issues are fairly straightforward I would have thought. The minister can do nothing. Though exploring the nature of that nothing might be interesting.
Maybe it would be a good seperation of powers question.

It is based on an English case the name of which escapes me. Except there I think it was in the summing up.
MM

I'm glad the minister can do nothing and it certainly does echo the problems of the latest deportation case, ie people wanting ministerial intervention.

I love our constitution I think it's one of the fairest and clearly thought out (for it's time) piece of legislation any country could hope for. I would hate for a minister to be able to exert any power over the judiciary.

templetonpeck

mountainyman wrote:

Revise 'you are a legally qualified civil servant' to 'you are a legally qualified and ambitious principal officer who would like to be an assistant seceratry one day'

MM

I'd ask her if she wanted another coffee while she still moans over the fact that she cannot interfere, and grab a chocolate biscuit for myself

dermot_sheehan

Tom Young wrote:

Presumption of Doli Incapax also arises here, so we may actually have an erred decision. See Childrens Act 2001 Ss. 52 and 54.


52.—(1) It shall be conclusively presumed that no child under the age of 12 years is capable of committing an offence.

(2) There is a rebuttable presumption that a child who is not less than 12 but under 14 years of age is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong.

54.—Where a child under the age of 14 years is responsible for an act or omission which, but for section 52 , would constitute an offence, any person who aids, abets, counsels or procures the child in or in relation to that act or omission shall be guilty of that offence and be liable to be indicted, tried and punished as a principal offender.

Amended by section 129 of Criminal Justice Act 2006:

52.—(1) Subject to subsection (2), a child under
12 years of age shall not be charged with an
offence.
(2) Subsection (1) does not apply to a child
aged 10 or 11 years who is charged with murder,
manslaughter, rape, rape under section 4 of the
Criminal Law (Rape) (Amendment) Act 1990 or
aggravated sexual assault.
(3) The rebuttable presumption under any rule
of law, namely, that a child who is not less than 7
but under 14 years of age is incapable of committing
an offence because the child did not have the
capacity to know that the act or omission concerned
was wrong, is abolished.
(4) Where a child under 14 years of age is
charged with an offence, no further proceedings in
the matter (other than any remand in custody or
on bail) shall be taken except by or with the consent
of the Director of Public Prosecutions.”.


In any case doli incapax only arises if the defendents were children, in this case the victim is.


I would advise minister to make a statement that it is for the independent DPP to decide whether to appeal the sentence to the Court of Criminal Appeal on the grounds of being too lenient.

Tom Young

Guess I'm well behind the times. Thanks for this. Will amend my notes.