The failure by a legal official to inform Attorney General Rory Brady of an important Supreme Court challenge to the constitutionality of the State's statutory rape laws was a mistake and not a cover-up, an official inquiry has found.
According to the report of the inquiry by Department of Finance official Eddie Sullivan, the unnamed official in the Attorney General's office was first told of the case, which was taken by a man charged with having sex with a girl under the age of 15, by the Chief State Solicitor's Office in November 2002.
The case was sent at that time to the Attorney General, Rory Brady, who nominated senior and junior counsel to act jointly for his office and the Director of Public Prosecutions.
Mr Brady's officials approved of the State's plans to fight the High Court case in June 2004, and a subsequent appeal to the Supreme Court in 2005, although Mr Brady was not informed.
Delivering its judgment, the Supreme Court asked lawyers for "Mr CC" and the State to prepare submissions on the constitutional implications raised. This case was heard in January 2006 and judgment followed on May 23rd, 2006.
"It is clear that although there was no further submission to the Attorney General on the matter there was an amount of interaction and communication, eg, e-mails and correspondence between the Chief State Solicitor's Office and one official in the Attorney General's office," said Mr Sullivan.
The official was entirely aware of the case's constitutional implications, said Mr Sullivan, as was evidenced by a minute sent by that official to the DPP in August 2004.
Everyone interviewed during the inquiry accepted that it was an "important and sensitive" case that should have been notified to the Attorney General at all important points during its progress through the courts, Mr Sullivan said.
He found that all of the recommendations made after the Fr Brendan Smyth crisis in 1994 - when a UK extradition request for Fr Smith was not acted upon - have been "largely implemented" since, including the creation of an early-warning system. Nearly 1,500 files were brought to the Attorney General's personal attention in 2005 alone.
However, he said, this system has a flaw in that while it gives warning of the arrival of possibly sensitive cases, it does not offer specific alerts for each new stage of the case's progression through the courts.
Mr Sullivan said he had received access to all documentation and files that he had sought from the Attorney General's office, while staff were "forthright with their views and analysis".
The landmark stages identified by Mr Sullivan were the nomination of counsel; the approval of counsels' submissions; the High Court judgment; the advice of lawyers for the appeal; the draft submissions for the appeal; the Supreme Court's judgment; and the submissions prepared for the Supreme Court's examination of the constitutional issues raised.
"Apart from the initial stage, this did not happen either before or after any other milestone," Mr Sullivan reported in a 44-page document released by the Government yesterday.
A report was prepared by the official for the Attorney General in October 2005, but this was "never finalised or submitted either to the Attorney General or to any other official". This lapse did not emerge until late May after the controversy about the possible release of sex offenders had erupted.
The legal issues involved in the case were discussed briefly by officials on "two to three occasions", but the issue of informing the Attorney General himself did not arise.
However, Mr Sullivan went on: "I am satisfied that the case and associate cases were otherwise processed in an expeditious, timely and conscientious manner. In particular, it is clear to me that there was no conscious or deliberate decision to withhold notification or information from the Attorney General, nor was there any suggestion of cover-up or concealment either ex ante or post factum [ before or after the fact]. The simple but regrettable fact of the matter is that the case should have been brought to the attention of the Attorney General on a number of different occasions in accordance with stated and well-known office policy and procedures but it was not.
"It is my considered view that what happened in this case was an administrative error. It is extremely difficult to devise systems and procedures that would mitigate fully the possibility of this recurring," Mr Sullivan reported.
He went on: "There has never been a system devised that can eliminate entirely the risk of administrative error even amongst the most dedicated and conscientious staff."
However, he was confident that improvements under way and further ones proposed by both the Attorney General and by his own report would "further enhance" the operation of the Attorney General's office and "reduce the risk of an event such as this recurring".
