The Human Rights Issues in the Ian Horgan Case.

by C Murray Fri Apr 20, 2007 11:23

Was the DPP's case brought to appeal under the emergency legislation
introduced and moved through both houses of the Oireachtas on June the second 2006?

The Criminal Law (Sexual Offences) Bill 2006 has within in an
unconstitutional section which was not excised though the
Ombudsman for Children requested the excision.

Section 5 in unconstitutional because it is not gender neutral.

The DPP has had to review all cases of Sexual offence over the last few months as a result of the
hastily introduced legislation which was a response to the 'CC' and "A" cases.

(The Sexual Offences Bill of 1935 was overturned by Justice Laffoy in the week preceeding
the emergency legislation)

Under what legislation was Mr Horgan's case reviewed and the sentence increased?

by Normal guy Fri Apr 20, 2007 11:38

My heart bleeds for this "Poor child." If at 16 he was prepared to rape and kill someone then I shudder to think what the adult version could be capable of. But hey shit happens, I don't presume he'll get what he deserves. Either way his victim didn't deserve what he handed out, so let's not lose too much sleep over his treatment.

by C Murray Fri Apr 20, 2007 11:46

However, we do not know this as the attending pathologist did not give
evidence at the trial due to illness- this happened in the Brian Murphy
trial too.

There is a human rights issue with regard to the legislation in this case
especially if it was taken under the flawed Sexual Offences legislation
of June 2nd 2006.

Nice soubriquet- how does one measure normality?

Did the DPP request a review of the Case against Ian Horgan under
the flawed legislation introduced in emergency session on June the
second 2006- simple question. (?)

Ian Horgan was 16 years old at the time of the murder of Rachel Kiely.
He is currently on the Sexual Offences register.
His sentence has been increased to twelve years incarceration for
rape and 12 years for manslaughter.(to run concurrently)
He has expressed remorse.
He has effectively been tried as an adult.

by jennifer Thu Sep 13, 2007 21:48

Had Horgan showed any true remorse, the Kiely's would not have been put through the trauma of the first trial where he denied all involvement in Rachel's death. Lies and deceit and refusal to accept responsibility for his actions hardly sound like remorse to me!
Far from being the poor young boy that he's made out to be above, he was a callous killer and a deliberate sex-offender.
Would any one of ye be happy for him to be near your daughters knowing what he is capable of?

by C Murray Thu Sep 13, 2007 22:22

The Human rights issues in the Horgan case remain unchanged:-

1. The State Pathologist did not give evidence as to the cause of death of Ms Kiely (RIP)
because he did not attend the court, this was a referral to the absence of the attending
pathologist. This was also a feature of the Brian Murphy Case. (Dr John Harbison)

2. Ian Horgan, at sixteen was tried for murder and rape. He was then retried
for manslaughter. The details are in the article.

3. Significantly the leniency of the manslaughter term of imprisonment was appealed sucessfully
by the DPP which led to the sentence being increased, at time of writing , April 2007, I wondered if
he was re-tried under the amended legislation, because of the retrials of sex-offenders
that occured as a resut of the Laffoy judgement on 'A' and 'CC', or if the appealed verdict was
a matter of course in sentencing review by the DPP.

4.Utilising the media to bay for blood based on a supposition of the remorse or not of
someone whom has not the right of reply , does no favours regarding the obvious problems
in the case.

5. He mitigated his crime by agreeing to go for treatment, going on the sex offenders register
and expressing remorse.

The contrast with the men who sought release for the serious sexual assault of
minors after the Laffoy decision could not be starker, each had to be re-tried under
Legislation that breaches the gender neutrality of the constitution and the flawed
legislation that remains on the statute-

There are, like it or not, serious issues in the case pertaining to the first trial for murder
and the second trial for manslaughter- the first mis-trial occuring when he was:-
at the age of criminal responsibility, and the second in the absence of the report
from the attending pathologist.

by Jacqueline Fallon Thu Sep 13, 2007 23:31

I have zero fucking sympathy for rapists of whatever age, and I find it very hard to read this sympathetic nonsense. He can stay incarcerated for an eternity for all I care!!!

by C Murray Fri Sep 14, 2007 09:50

Suggest however that anger is directed at the people who put more money into sport than
adequately funding abuse and trauma centres for victims of domestic and sexual violence.
There are to be massive cutbacks in health but this morning's Times reports that the head
of the HSE has received a huge one off bonus. Salaries that are not part of the PPP negotiation
have a habit of 'jumping'.

The Sligo area has particular problems with the Trauma unit for sexual assault being grossly
underfunded by the Dept of Health and the sexual assault treatment unit in the Rotunda
stretched to breaking point. Whilst the private boys schools have largely dropped the
RSE (Relationships/Sexuality/Eduction) programme in favour of targetting academic
achevement. The statutory laws are unconstitutional and the case against Horgan was
flawed because of the non-attendance of the Pathologist. Having zero tolerance on rape
without addressing why a governmnent runs down services to victims of the
crime and shows no evidence of dealing with the issue of why the illness of the
pathologist ,has created a situation where the person who admitted the rape has incurred
further sentencing when the human rights of the trial are at issue.

Why then get angry at the situation when you are not on the streets demanding
equality of treatment for the victim?

The Dublin Rape Crisis Centre reports on how a victim is treated with regard to:-
1. Trauma and evidence collection.
2. lack of segregation in the courts.
3. lenient sentencing.
4.lack of victim supports.
5.Lack of trained forensic nurses.

http://www.drcc.ie

by Jacqueline Fallon Fri Sep 14, 2007 21:14

C. Murray‘s quote: “5. He mitigated his crime by agreeing to go for treatment, going on the sex offenders register and expressing remorse.”

I’m outraged at the above statement. He did not mitigate his crime by agreeing to go on the Sex Offenders’ Register - there is no such register in existence anyway. Convicted sex offenders certainly do not agree to go on this mythical ‘Sex Offenders’ Register, instead, when sex offenders are convicted and imprisoned they are automatically subject to the conditions in the Sex Offenders Act, 2001 upon release, and as a result of the conditions specified in this Act, details of their sexual offence and where the pervert will be residing are notified automatically to the Gardaí via a certificate issued from the court. There is no Sex Offenders’ Register neither for the general public to view or for the ‘helpful’ sex offender to agree to be put on!

All sexual perverts express remorse and agree to treatment in order to get a successful outcome for them an appeal - this is nothing to be applauded - suddenly, remorse & treatment are fantastic ideas to sex offenders when an appeal of their case is imminent.

My sympathy rests solely and always will with the victims of sexual assaults and, sadly, there are more of them than people think due to the reluctance of victims to press charges for a whole variety of reasons - lenient sentencing for rapists being one of them. I’ve met quite a few girls/women in the past who have been victims of sexual assaults and, unfortunately, none of them could face the further trauma of being compelled to explain in detail embarrassing intimate details of the rape to a court room full of strangers - while the accused could sit back and sneer at the details and not be compelled to face the embarrassment of explaining his criminal actions!

Anyway, no rapist can ever mitigate his heinous sex crime and especially in this case - as the young lady he brutally raped is dead!

by stunned speechless (almost) Fri Sep 14, 2007 22:54

C. Murray,

With all the real miscarriages of justice in the world to pick from, you manage to come up with this. Pathetic. He pleaded guilty to manslaughter for fucks sake. G.U.I.L.T.Y. Got it? That means he did it. And admits he did it. A particularly nasty manslaughter too. Plus he lied and initially denied the killing and the rape. Personally, I think 12 years (in reality 9 years with automatic remission) is too low for the rape alone, without even considering the manslaughter as well. What do you think is an appropriate sentence to serve for a violent rape plus the manslaughter of a young woman?

And what the fuck is your obsession with the 2006 Sexual Offences Act and how does it relate to this case? The crime was committed years before the 2006 Act became law. Neither his original trial, appeal, retrial or second appeal was heard under the 2006 Act. Nor could it be. The 2006 Act has nothing whatsoever to do with this case. You make some valid points about the appaling lack of SATU facilities and the inconsistencies in the 2006 Act but nobody's going to take it seriously if you mix it all up with this sort of shite.

by C Murray Sat Sep 15, 2007 08:51

Really- apart from descending into replying to insult, the text of the article quite clearly
says he admitted manslaughter, he went on the sex offenders register and he expressed
remorse. which is a lot more than the list of men who committed serial sex offences
against minors did when the Criminal Justice act collapsed as a result of the Laffoy
decision whcih led to the Criminal Law(Sexual Offences) bill 2006 (amended 2007).
He was initially (aged 16) charged with murder, he then had to be re-tried for manslaughter
in the absence of the attending pathologist who was ill at the time.
as to the 2006-2007 law- it is on the statute.
It allows for the incarceration of teenage boys for up to five years.
It allows for the criminalisation of girls for any sex act other than full penetrative sex.
it returns the the allowance for cross examination of victims of rape.
It is unconstitutional.

The link to Ian Horgan was quite simple- was his sentence review under the flawed
act, or was it normal DPP procedure.

As to Miscarriages of Justice- there will be more of them if people cannot realise that
framing bad laws based on media- led speculation, which occured in May and
June of 2006 is allowed to inform emergency legislation which the Ombudsman
for children objected to and Mary Harney admitted was all that could be achieved
within the constitutional framework. If the state had gone half way to understanding
the issues of funding for victims and addressing the court system which is
weighted against the victim, maybe convictions would be up and the amount of
women reporting and getting treatment for serious sexual offence would be lessened.

The reports on the Criminal Law 2006-2007 Bill are on the newswire,
the national dailies and the responses by the parties and the ombudsman are
in the public domain.

by C Murray Sat Sep 15, 2007 09:12

Read the subtitle of the article:

The basis of the opinion and analysis is this:-(April 2007)
The two trials and the appeals have nothing to do with his his sentence review which was
increased by the DPP on the basis of 'undue leniency'.

I ask again:- we accept the age of criminal responsibility, Horgan accepted guilt
not in murder but in manslaughter- the trial was based on the incomplete evidence of
a non-attending state pathologist. An initial mis-trial of a 16 year old for the crime of
murder was flawed and the second trial was of manslaughter. Was the sentence review
by the DPP ordered under the new legislation or was it a general review which came
under the heading 'undue leniency'
as to language chosen: ring-fencing a human being into a categorisation based
on what looks like a incomplete evidence in the second trial is hardly fair.

Horgan admitted rape and manslaughter. That is quite clear from the first opinion and
analysis, he never said that it did not happen or that he was not there. The article was
quite clearly based at time of writing in the subtitle of the piece which asked
about the process of sentence increase under the charge of 'undue leniency'

by still stunned Sat Sep 15, 2007 16:04

C. Murray says: The basis of the opinion and analysis is this:-(April 2007)
The two trials and the appeals have nothing to do with his his sentence review which was
increased by the DPP on the basis of 'undue leniency'.

Fact: His sentence was increased by the Court of Criminal Appeal NOT by the DPP. The DPP can't increase a sentence. The CCA can increase or decrease sentences imposed by the lower courts. The only function the DPP has in the process is to initiate the appeal. The DPP can appeal against leniency of sentence. The defendant can appeal against severity of sentence (or against conviction.)

C. Murray says: - the trial was based on the incomplete evidence of a non-attending state pathologist.

Fact: The second trial obviously didn't have Harbison's evidence available to it because the man was suffering from a degenerative disease. The trial judge described the unavailability of this evidence as advantageous to the defence because his evidence was clearly unfavourable to Horgan. Obviously the jury in the second trial felt that, even without Harbison's testimony, they had ample evidence to return a guilty verdict on the rape charge. Without Harbison's evidence, they must have felt they didn't have enough to convict Horgan of murder. Quite how this is unfair to Horgan escapes me. Perhaps you can enlighten....

C. Murray says: An initial mis-trial of a 16 year old for the crime of murder was flawed and the second trial was of manslaughter.
Fact: He was tried for murder and rape at the second trial and convicted of manslaughter and rape.
Fact: The "flaw" in the first trial was highly technical and involved a failure by the trial judge to put a particularly ridiculous theory of DNA contamination to the jury in his summing up. Nevertheless, it earned him a retrial at which he was fortunate to benefit from the absence of a key prosecution witness. Such is justice.

C. Murray says: Was the sentence review by the DPP ordered under the new legislation or was it a general review which came under the heading 'undue leniency'?

Fact: The sentence review (by the CCA not the DPP) wasn't and couldn't be ordered under the new legislation and had nothing to do with the new legislation. The appeal against sentence is a standard part of the criminal law and is available to both prosecution and defence.

C. Murray says: ring-fencing a human being into a categorisation based on what looks like a incomplete evidence in the second trial is hardly fair.
Fact: The jury returned a verdict based on all evidence available. That was sufficient to establish his guilt as a rapist and killer. If that's "ring-fencing" so be it. If evidence favourable to him was unavailable due to the absence of a witness, this could have been raised by his legal team at the original trial or appeal. It wasn't.

C. Murray says: Horgan admitted rape and manslaughter. That is quite clear from the first opinion and analysis, he never said that it did not happen or that he was not there.

Fact: C. Murray is wrong again. He never admitted the rape. He could hardly argue the killing didn't happen - the poor girl was dead. He did deny he had anything to do with it. In fact, Horgan denied the rape and killing all the way through his first trial which lasted 7 weeks. This included testimony under oath to that effect - ie perjury. Even in his second trial where he finally (in February 2006 - 6 years later) admitted to manslaughter, he still denied the rape. This was despite the fact that his semen was found inside the dead girl. Imagine the additional trauma this caused for the girls family. Nice chap, eh?

C. Murray says: The article was quite clearly based at time of writing in the subtitle of the piece which asked about the process of sentence increase under the charge of 'undue leniency'

Fact: The article is a mish mash of inaccuracies, irrelevancies and is one of the most badly constructed pieces I've ever seen on a topic about which C. Murray clearly knows very little.

Must try harder.

Suggested homework: http://www.courts.ie/Judgments.nsf/597645521f07ac9a8025...ument

by C Murray Sat Sep 15, 2007 16:25

I am stunned that an opinion and analysis is subject to forensic investigation. The DPP
ordered the review of Mr Horgan's case on the basis of the leniency of the manslaughter verdict.
The first trial was on a murder charge and it fell, that would technically make it a mis-trial.

So again, we have a mistrial of a 16 year old faced with the charge of murder- what would
you say if faced with the technical apparatus of the judicial system when faced with those
charges- did he have a lawyer present during the inital charge of murder?

The second trial was on the manslaughter charge for which he:-
Pleaded guilty.
expressed remorse.
went on the sex offenders register.

This trial took place in the absence of the State Pathologist Dr John Harbison.The pathological
evidence being necessary in defining the crime.

The DPP indeed ordered a review of the sentencing and I asked if that review was ordered
under the Criminal Laws (2006-2007), the review led to the sentence increase.
as to doing the homework, the article is entitled:- The Human Rights Issues in the Ian Horgan
Case. which in O+A amounts to this:-

Were his human rights met as a 16 year old facing a murder charge?
Were his human rights met when the attending pathologist did not address the trial?
Were his human rights met when his name was added to the adults sex offender's register?

The references to the Bill, which is flawed, is contextual, many have escaped that register
and challenged serious sexual offences of minors under the morass of the constitutional
crisis which happened in June 2006. each one of them have had to be re-prosecuted
under the current emergency legislation which (as Mary harney stated at the time) is
restricted in terms of protections by the constitutional framework and flawed in its
international obligation to protection (stated by the ombudsman for children).

In reference to the whole issue of human rights, I also queried the lack of adequate
SATU in the state, refuges for victims of sexual and domestic violence, and the
provisions by the DOHC for adequate provision of trained forensic nurses.

http://ww.drcc.ie

[and that is what opinon and analyisi is about-the title and subtitle of the piece
suggest that there are questions around the two trials and the DPP's actions]

by Jacqueline Fallon Sat Sep 15, 2007 18:25

C. Murray’s quote: “The link to Ian Horgan was quite simple- was his sentence review under the flawed act, or was it normal DPP procedure.”

I am confused. I see no link between the Ian Horgan case and the Criminal Law (Sexual Offences) Act 2006. Although, I agree wholeheartedly with your comments on the 2006 Act itself and the inequalities contained in it, which will inevitably lead to further problems down the road. If you had just wrote an article condemning the inequalities contained in the Criminal Law (Sexual Offences) Act 2006 (which is inconsistent with the 26 counties’ Constitution) and left Ian Horgan out of equation, I would have applauded you.

With regard to what power the DPP relied on to initiate his application for a sentence review, the DPP availed of the power available in Section 2(1) of the Criminal Justice Act, 1993 and it was with that power that he could make an application to the Court of Criminal Appeal for a review of the sentence due to undue leniency. The powers contained in that section of the 1993 Act (not the 2006 Act) provides, inter alia:

“If it appears to the Director of Public Prosecutions that a sentence imposed by a court… on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence”

The test to be applied on the hearing of such an application was laid down in Director of Public Prosecutions v Byrne [1995] 1 I.L.R.M. 279, where the following passage occurs at p.287:-

“…. since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.”

With regard to the absence of Dr. Harbison in the second trial, I believe this worked to Ian Horgan’s favour, as a jury may be reluctant to deliver a verdict of guilty of murder solely on the basis of photographic evidence - unlike the jury in the first trial who had no problem returning a verdict of murder when Dr. Harbison delivered in person his findings to the court

I don’t think much of Ian Horgan’s efforts at rehabilitation given that when he was out on bail in December 2005 he was convicted of: assault, burglary and possession of stolen property - which makes me ponder what sort of ‘educational achievements’ his barrister was rambling on about - good barrister though, always looking on the bright side of his client!.

I attach a link to the judgment reached by the Court of Criminal Appeal in this case. D.P.P. v Ian Horgan [2007] IECCA 29.

by C Murray Sat Sep 15, 2007 18:56

I do still wonder about the Criminal Law (2006-2007) act and the review of sentencing within
the act from its writing and the passage of the emergency legislation through the
Oireachtas-

And maybe the presentation of the April 2007 opinion and analysis was flawed because it tried to
deal with too much, but the emphasis was on the youth of Mr Horgan and the charge of
murder against him, the mistrial and the subsequent review by the DPP,if it had been written as
a report and not an opinion and analysis, then maybe the emphasis would have been
different and would not have included the paucity of structural supports in the legal
and medical system with regard to victims of the crime of rape. The serious convictions
against 'A' through 'G' have all been reviewed under that legislation, which did not deal
with the issues of statutory rape but criminalised the victim and though the COSC
system was introduced in the run up to the general election, it has been subject to
query by the Violence Against Women campaign. all these issues can be traced
in small articles throughout the newswire which dealt with the issues on an individual basis.

info on COSC:- http://www.justice.ie
There is a link to the Violence Against Women Campaign on the newswire, will add in
link.

by nel Mon Sep 17, 2007 18:48

it has happened many times in this state whee 16 yr olds where held in custody till they turned 17 and suffered the same faith as an adult.
this ian horgan or who ever should just get on with is jail and stop wingeing as someone has pionted out.
he denied everything in the first trial his crime was horrfic
no girl deserves that what about her?
this fella will be out someday all he's tring to do is get out early.
theres much more important isues to be adressed on this forum.
it is my opinion that this fella is a waste of space.
my heart goes out to the girl's family who have to think about the evil she endured befor being murdered.
sex case are the lowest of the low.