AnalysisThe way is now clear for others to seek release, writes Carol Coulter, Legal Affairs Correspondent
The judgment of Ms Justice Mary Laffoy in the High Court yesterday was unambiguous. The Supreme Court declaration last week left her with no alternative but to order the release of a man serving a sentence for sex with a 12-year-old girl, contrary to section 1 (1) of the 1935 Criminal Law (Amendment) Act.
This was declared to be incompatible with the Constitution and therefore not to have been translated into law when it came into force in 1937. Thus any conviction under it is invalid.
She drew attention to the fact that the Supreme Court was offered an alternative to rejecting this section of the Act in toto.
She found it significant that the court rejected the State's argument that this section was inconsistent with the Constitution only to the extent that it precluded an accused from advancing a defence of "reasonable mistake."
This would have allowed the opening section of the Act, making it illegal to have sex with a girl under 15, to remain on the statute books, but in future cases an accused would be able to claim he thought the girl was over the age of consent.
The Supreme Court chose not to follow this route and instead declared the whole section unconstitutional. Ms Justice Laffoy said that the offence to which Mr A pleaded guilty in June 2004 therefore "was not an offence either when the action occurred or when the applicant was convicted or sentenced. The defect could not be more basic."
This opened the door for all those convicted under it to have their convictions overturned or their release ordered.
A spokeswoman for the Prison Service confirmed that six prisoners remained in jail serving sentences under this section of the Act and were therefore eligible to make such applications, but could not say whether such proceedings had begun. A further six are serving sentences for sex with underage girls along with sentences for related offences.
If they have served the sentences for the other offences they, too, could be eligible for release.
If applications are made by any of those still serving sentences, there seems to be little doubt that, provided they are still serving sentences for just this offence rather than with a related offence, they will succeed.
The judgment's implications may extend beyond those serving sentences. Dozens of people have been convicted under this section of the Act through the years, who have served their sentences
Since the sex offenders register came into force in 2001, they will have had their names entered on it. Both their conviction and their registration as sex offenders can have serious repercussions.
For example, a criminal conviction will mean a person cannot visit the United States, while registration on the sex offenders list imposes limitations on a person's freedom of movement.
According to Mary Ellen Ring SC, many people may now go to court to have the record of their conviction expunged and their names cleared. They could also either go to the High Court to have their names removed from the register or simply cease signing on, she says. If they had no valid excuse this would make them liable to prosecution, but they could cite the decision of the Supreme Court as an excuse.
All these developments underline the urgency of new legislation, but Ms Ring cautions against over-hasty legislation that did not take on board other recommendations from the Law Reform Commission, including that which would introduce a new offence of child sex abuse.
She points out that at the moment it is not an offence to induce a child to perform a sexual act on an adult, which the LRC report sought to address.