Different section of Act challenged

New challengeA man who is serving an 18-month sentence for having sex with a girl between the age of 15 and 17 has brought a High Court challenge to the constitutionality of another section of the Criminal Law Amendment Act, 1935, the law at the centre of the legal storm over statutory rape.

The man (30) will today apply for bail until the High Court decides his case.

He has issued proceedings seeking a declaration that section 2 (1) of the 1935 Act, which provides that a man is automatically guilty if he has sex with a girl aged between 15 and 17, is unconstitutional as it does not allow for a defence of reasonable mistake about the girl's age.

The challenge comes just days after the Supreme Court struck down as unconstitutional section 1 (1) of the same Act which provides that a man is automatically guilty of an offence if he has sex with a girl under 15. The court made its decision on several grounds including the failure to allow the defence of genuine mistake about the girl's age.

The president of the High Court, Mr Justice Joseph Finnegan, yesterday gave the man's lawyers liberty to apply for bail today pending a full hearing. The man is seeking declarations that the charge on which he was convicted discloses an error of law, that the court of trial has no jurisdiction over such an offence and that the exclusion of the defence of reasonable mistake as to age breached his constitutional rights.

In the proceedings against the DPP and the Attorney General, the man wants the High Court to declare that the DPP violated his constitutional rights by opposing his reasonable requests for an adjournment pending delivery of the recent Supreme Court judgment striking down section 1 (1).

He is also claiming damages for false imprisonment as well as a declaration that he is entitled to advance the defence of reasonable mistake and to have that defence considered by a jury.

His counsel, Martin Giblin SC, said he wanted to bring a bail application at short notice. He could not bring an Article 40 application - a challenge to the legality of detention - as others had during the day.

His client had been sentenced to 18 months in March at Galway Circuit Court under section 2(1) of the Criminal Law (Amendment) Act, 1935.