Court reportA High Court decision yesterday to set free a 41-year-old man serving a three-year sentence for the statutory rape of a 12- year-old girl is expected to lead to several similar applications.
The case of the man, who cannot be named to protect his victim and who is referred to as Mr A, is the first of seven such cases expected to come back to the courts after the Supreme Court last week struck down the law on statutory rape.
In a packed courtroom yesterday, Ms Justice Mary Laffoy directed the release of the man, who had served 2½ years. She also refused an application by the State for a stay on her order for release, saying she had no jurisdiction to grant such a stay.
The case arose after the Supreme Court last week granted a declaration that section 1.1 of the Criminal Law (Amendment) Act 1935 was unconstitutional. It provided that any man is automatically guilty of a crime if he has sex with a girl under 15 years of age.
In her reserved judgment on Mr A's application for release, which she heard on Monday, Ms Justice Laffoy said the fact that the Supreme Court declaration rendered Mr A's detention unlawful might appear as a "windfall bonus" for him.
"Be that as it may, in my view, his detention was rendered unlawful by the declaration and cannot continue," she said.
Because she was not satisfied he was being detained in accordance with the law, she directed his release from detention in Arbour Hill prison.
Mr A was jailed for three years at the Dublin Circuit Criminal Court in November 2004 after pleading guilty to the unlawful carnal knowledge of a 12-year-old girl on May 18th, 2003.
The Circuit Criminal Court heard he had earlier bought her four Bacardi Breezers and two vodkas. The girl, a friend of a daughter of Mr A, went to bed about midnight and woke up in the early hours of the morning to get sick. It was then he had full sexual intercourse with her.
Ms Justice Laffoy noted in her judgment that the man was charged with one offence under section 1.1 of the 1935 Act. It was significant, she said, that in last week's case the Supreme Court had declared section 1.1 to be inconsistent with the Constitution in toto. Her task was to decide whether she was satisfied that the applicant was being detained at Arbour Hill Prison in accordance with the law having regard to the circumstances that now prevailed, the judge said.
As the Supreme Court had struck down section 1.1 in its entirety, that section ceased to have legislative existence in 1937. This meant that, since 1937, there was no statutory offence of unlawful carnal knowledge of a girl under 15 years of age to which there attached the punishment prescribed by the Act of 1935, she ruled.
To put it another way, the offence with which the applicant was charged did not exist in law when it was purported to charge him and also did not exist at the respective dates of his purported conviction and sentencing, the judge said.
The next question to be considered was the consequences of the demise of section 1.1 in 1937, long before the applicant was charged with the offence of which he was convicted and detained, she said.
Within the narrow confines of the proceedings before her - in an inquiry under Article 40 of the Constitution into the legality of the man's detention - the judge said that as a matter of law, she had only to consider whether one specific consequence now prevailed: whether the man's detention was lawful as of now.
In this case, Mr A was detained following a conviction for an action that was accepted by both him and the relevant State authorities, including the DPP, to be an offence on June 15th, 2004. However, it was now known, because of the declaration of the Supreme Court last week, that it was not an offence either when the action occurred or when the applicant was convicted or sentenced.
"The defect here could not be more basic," the judge said. "It is that the purported conviction relates to something which is not an offence in criminal law. In my view, the conviction is a nullity as is the sentence and the detention is not in accordance with law."
On the basis of the application before her, the judge said she was not concerned whether the applicant may be in a position to maintain a civil action for wrongful imprisonment in the future. "I am not concerned where there are other persons in custody having been convicted on a plea of guilty of an offence under section 1.1 in circumstances where the DPP entered a nolle prosequi in relation to other charges."
In light of the Supreme Court declaration, the conviction of Mr A was "a nullity" and the warrant grounding his detention was "bad on its face".
Paul Anthony McDermott, for the State, asked for a stay on the release order to allow the State to bring an appeal to the Supreme Court. Ms Justice Laffoy said she had no jurisdiction to put a stay on the release order.
Afterwards, Mr A initially refused to comment as he walked from the courtroom but later said: "I regret what I did."