Thursday 19 September 2019

Convicted rapist entitled to unpaid pension arrears, court finds

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The Supreme Court has ruled that a rapist who successfully challenged the constitutionality of a law stopping payment of the State's old age pension to prisoners is entitled to €10,000 in damages.

The five-judge court unanimously concluded last July the State may not operate a disqualification regime that applies only to convicted persons because it constitutes an additional punishment not imposed by a court dealing with an offender.

The case was brought by a 76-year-old prisoner jailed after he was convicted on 14 counts of rape and 60 counts of sexual assault against a family member. 

Following its decision, the court adjourned the matter to consider further legal argument as to the precise form of order which should be made and to determine if the man, who was jailed for 12 years for his crime and cannot be named, was entitled to substantial damages.

The matter returned today when the court formally declared the relevant section of the 2005 Social Welfare Consolidation Act to be invalid and in breach of the Constitution. 

Mr Justice Donal O'Donnell said he hoped the Oireachtas would address the question in a comprehensive and humane way and would produce an outcome consistent with the constitution.

The judge also said the man would have had an entitlement to the old age pension had it not been for the existence of section 249.1.b of the 2005 Act.

While the man's capacity to recover damages was significantly limited he was entitled to recover arrears for unpaid pension and should receive €10,000 in compensation.

The court noted that some €7,500 of that sum has already been paid on account.

The Chief Justice, Mr Justice Liam McKechnie and Ms Justice Iseult O'Malley concurred with Judge O'Donnell's findings.

Mr Justice John MacMenamin expressed a different view on that issue after holding that the man had no entitlement to damages on the basis that the section was invalid only from today's date.

In addition, the judges were unanimous in finding the Supreme Court does have a jurisdiction to delay the making of a declaration of invalidity or to make a deferred order.

All judges emphasised this jurisdiction should be exercised sparingly.

During his working life, the man made PRSI contributions and, when he retired in 2005, got the State contributory pension. After his conviction in 2011, that payment stopped.

He took High Court proceedings over that, seeking a declaration Section 249.1 is incompatible with the Constitution and European Convention on Human Rights and sought damages.

After the High Court rejected his challenge, he was given permission to appeal to the Supreme Court.

The core issue was whether a prisoner has a constitutional right to payment of the State contributory pension.

The State opposed the challenge.

The man's weekly prison allowance is €11.90, less than the normal weekly allowance of €18.90 due to his inability to engage in work activities in prison.

He claimed he had insufficient funds to buy items in the prison tuck shop and relied on clothes provided by the prison service or St Vincent de Paul.

He also argued some other prisoners had access to non-State pensions.

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