The High Court was warned today that it is wholly inconceivable to set free a convicted sex offender following the Supreme Court ruling that people who have sex with a minor should not automatically be deemed guilty of rape.
Turning the rules of the age of consent on their head, the five-judge court ruled last Tuesday it is unconstitutional to convict a man who admits to having sex with a child if he does not know their true age.
But counsel for the Attorney General and the Governor of Arbour Hill Prison Gerard Hogan SC told the High Court that it should reject an application to free a 41-year-old man who admitted the unlawful carnal knowledge of a 12-year-old girl.
The man, who cannot be named, pleaded guilty in November 2004 to one count of sexual assault. At the time he revealed that he knew the girl's true age.
His lawyer Connor Devally SC made an application to the High Curt to have him freed.
Mr Devally said the man's incarceration was unconstitutional as the law he was convicted under no longer existed.
Ms Justice Mary Laffoy made an order that the man only be referred to as Mr A.
"This is an application that is simply saying I am being held on foot of a warrant founded solely on a provision that is not law," Mr Devally told the court.
"I think it is ludicrous or absurd to suggest that Mr A while being held under a statute that is not law cannot complain about it."
Mr Devally told the court there was no issue of compensation and that the court should not concern itself with the consequences of releasing the convicted sex offender.
He insisted the only issue at stake was Mr A's liberty. "I do not stand here and say the conviction is invalid nor do I stand here and say the sentence is invalid.
I am saying simply that there is no longer a lawful mechanism for the respondent to hold Mr A," Mr Devally told the court.