Sentencing Aged Offenders

On Monday of this week, Patrick O’Brien, Old Court Avenue, Bray, Co. Wicklow, was sentenced to twelve years imprisonment for raping and sexually assaulting his daughter over the course of ten years of her childhood. He can be named here, and in the media, because the victim of his abominable crimes, his own daughter, Fiona Doyle, bravely waived her right to anonymity in order to expose him and his actions to the public. She also braved the glare of public and media interest to highlight the fact that this man, who had finally admitted his crimes and pleaded guilty, walked free from the sentencing court. Although Carney J. in the Central Criminal Court found that the crimes committed by Ms Doyle’s father warranted a sentence of twelve years imprisonment, he suspended nine of those years, leaving a custodial sentence of three years. Carney J., however, considered that there might be an appeal to the Court of Criminal Appeal by the convicted man against the severity of this sentence and, pending that appeal, he released Mr O’Brien on bail. Continue reading “Sentencing Aged Offenders”

Sentencing Aged Offenders

Damache and Constitutional Retrospectivity

In February of this year a most significant decision was handed down by the Supreme Court in the area of criminal procedure. This decision, Damache v DPP [2012] IESC 11 (discussed here), found that s.29(1) of the Offences Against the State Act 1939, which had been in operation for the past 36 years having been inserted by s.5 of the Criminal Law Act 1976, was contrary to the Constitution. The provision allowed for a member of the Garda Síochana not below the rank of superintendent, to issue a search warrant in certain specified circumstances. It did not, however, specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. It was with this omission that the Supreme Court found fault. Indeed, this omission, and the Garda practice of having superintendents who were directly involved in an investigation issue warrants under s.29(1) had previously been criticised by Justice Morris in the “Burnfoot Module” of the Morris Tribunal Report (2008). In para 6.22 of that Module the learned Chairperson of the Tribunal observed that

The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.

The Supreme Court in Damache held that the issuing of search warrants is an administrative act but it must be exercised judicially. Accordingly, independence is necessary in the exercise of the act. This, along with the importance of the constitutional protection of the inviolability of the dwelling, under Art 40.5, led the Court to find that s.29(1) was repugnant to the Constitution given that it did not insist on independence in the garda issuing of the relevant search warrants.

An obvious question which arose in the aftermath of the Damache decision is what impact this finding would have on other previously-decided cases. Is a finding of unconstitutionality retrospective or not? Continue reading “Damache and Constitutional Retrospectivity”

Damache and Constitutional Retrospectivity