WHAT IF?: Damache and Constitutional Retrospectivity

Thursday, October 17, 2013

Damache and Constitutional Retrospectivity

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?

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keeping us in the dark

Louise O’Keeffe calls on Government to honour pledges on school sex-abuse redress Both Micheál Martin and Leo Varadkar promised to deliver on pledge Louise O’Keeffe who was sexually abused by her teacher in a Co Cork primary school in the 1970s. Photograph: Collins Louise O’Keeffe who was sexually abused by her teacher in a Co Cork primary school in the 1970s. Photograph: Collins Barry Roche Southern Correspondent Updated: Sun, Jul 5, 2020, 13:57 Children’s rights campaigner Louise O’Keeffe has called on both Taoiseach Micheál Martin and Tánaiste Leo Varadkar to deliver on promises to compensate children sexually abused while attending schools. Ms O’Keeffe has called on both men to honour commitments they gave in the Dáil last July that they would re-open an ex-gratia payment scheme for those sexually abused while attending Irish primary and secondary schools pre-1992. “Both Micheál Martin and Leo Varadkar must honour commitments they made in Dáil Éireann a year ago that they would ensure the victims of child sex abuse in Irish schools were no longer wronged,” Ms O’Keeffe told The Irish Times. Ms O’Keeffe was sexually abused by primary school principal Leo Hickey in Dunderrow National School in West Cork in the early 1970s and he was later convicted of abusing her, but the State had denied any civil liability. Ms O’Keeffe brought a case for damages through the Irish courts system but they ruled that the Department of Education was not liable because the school was under the management of the Catholic church even though the State paid Hickey’s salary. It was only when Ms O’Keeffe took her case to the European Court of Human Rights that she was vindicated when the ECHR ruled in January 2014 that Ireland had failed to protect her as a five-year-old from Hickey when at school. But the Government interpreted the ECHR ruling that it was only liable for damages in cases where there had been a prior complaint against an abuser and it was not liable for damages if there had not been a prior complaint. Last year, Mr Justice Iarfhlaith O’Neill reviewed the ECHR judgement and deemed that the State was wrong in its interpretation of the judgement which led it to close off an ex-gratia payment scheme for survivors of child sex abuse. Mr Justice O’Neill found that it was “inherently illogical” for the State to demand evidence of a “prior complaint”, ruling that this was “incompatible” with the ECHR’s judgement in Ms O’Keeffe case. Now Ms O’Keeffe has reminded both Mr Martin and Mr Varadkar of promises they made in a debate on the issue in July 2019 in an email that she sent to them and newly appointed Minister for Education Norma Foley on Friday. Ms O’Keeffe pointed out that Mr Varadkar as Taoiseach had apologised to those who were abused in day schools prior to 1992 for both the abuse itself the State’s delay in acknowledging its responsibility to protect them. And she quoted Mr Varadkar’s own words that “the State failed them at the time, failed them again a second time when it did not own up to its responsibility and we won’t fail them a third time”. But she said such victims of child sex abuse have now been failed a third time by the lack of action in the past 12 months, noting both parties had dropped the issue of ex-gratia payments from the programme for government talks. And she reminded Mr Martin, who was Minister for Education when she began her legal case 22 years ago, that during the same Dáil debate, he said the ex-gratia payment scheme “will be” rather than “may be” re-opened. “I would urge you to reopen the ex-gratia scheme expeditiously and end the continued suffering of those sexually abused in day schools,” said Ms O’Keeffe who was lauded in 2014 by Taoiseach Enda Kenny for her work on the issue Support Ms O’Keeffe was supported in her call on the new Government to re-open the ex-gratia scheme by Dr Conor O’Mahony, Director of the Child Law Clinic at UCC, who assisted Ms O’Keeffe in preparing her case for Europe. “It will be a year this week since Iarfhlaith O’Neill gave his ruling confirming what we have been saying for years - the requirement to show prior complaint before receiving redress was totally incompatible with the ECHR judgement.” “That should have been the end of the matter because they set up the redress scheme with that requirement to show a complaint prior to your abuse and that was impossible to prove, nobody could prove a prior complaint. “The simple solution once Iarfhlaith O’Neill ruled that that requirement was incompatible with the ECHR judgement was that you remove that condition and you re-open the scheme but, 12 months on, that has not happened.” Dr O’Mahony said that re-opening the ex-gratia payments scheme would not prove prohibitively expensive as he estimated that there approximately 360 possible claimants with payments likely to average €84,000 per person. “My calculations is €84,000 per head and based on a the number of cases we are aware of, 360 people, gives a total figure of €25-30 million which on one level is a substantial sum but is small compared to some other payments. “If you compare it, €25-30 million to the €1.2 billion paid out in the Residential Institutions redress - it’s only about 2per cent - and to further put in it context, to avoid paying that out, the State has now spent over €2 million in legal fees.” A Government spokeswoman said the Taoiseach, Mr Martin was acutely aware of the concerns of those who suffered abuse in primary schools and would be engaging with the Department of Education to progress the matter.

WHAT IF?

WHAT IF?

Thursday, October 17, 2013

Damache and Constitutional Retrospectivity

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