The more pressure on McDowell the better. This article appeared in The Sunday Times (Ireland) :
So will drug dealers also be set free?
LEGAL experts claim last week’s Supreme Court ruling on the defence of “mistake” could now be raised in some drug- related and riot offences, writes Kate Butler.
On May 23, the Supreme Court struck down section 1(1) of the Criminal Law (Amendment) Act 1935, deciding that the absolute “strict liability” nature of unlawful carnal knowledge was contrary to the constitution, because it didn’t allow a defence of honest mistake about the age of a girl.
NI_MPU('middle');Barristers are now considering whether other offences of strict liability — where a person is legally responsible even if they were not at fault or negligent — could be struck down as unconstitutional.
Section 15(a) of the Misuse of Drugs Act 1977, amended in 1999, says that if a person is caught with drugs worth more than €13,000 they will receive a mandatory minimum sentence of 10 years.
Despite the harsh sentence, the accused is unable to argue they mistakenly believed the drugs to be worth less.
Counsel are now considering having the constitutionality of this section referred to the Supreme Court.
“People had been muttering about it for some time, but the unlawful carnal knowledge decision might give it a bit of steam,” said Sean Gillane, a barrister.
“I think, as matters stand, the Court of Criminal Appeal is going to be asked to certify a question of law to the Supreme Court as to whether it is constitutional or whether they can read in a defence of mistake as to the street value of drugs.”
Even if the Supreme Court does find the section repugnant, however, it is unlikely drug dealers will have their convictions quashed.
Section 15 governs the possession of drugs for supply, which is not an offence of strict liability. It is only if the drugs are worth more than €13,000 that 15(a) applies.
Offences such as having no motor insurance are also of a strict liability nature, but because they don’t attract a punitive sentence it is felt the Supreme Court’s decision will not apply to them. Claire Hamilton, a lecturer in criminology, believes the Supreme Court ruling could, though, apply to the offence of riot. “The offence of riot attracts a penalty of 10 years. It’s a very serious thing and there’s no fault element whatsoever, so it’s an offence of absolute strict liability.”