The Supreme Court has granted an appeal by the State against a High Court decision to free Mr A (41), who was serving a sentence for the statutory rape of a 12- year-old girl, and has ordered his immediate rearrest.
Mr A's claim he was entitled to release on the basis of the Supreme Court decision striking down the law on statutory rape, which was made in another case on the ground it did not allow a defence of mistake as to age, was, in the circumstances of A's case, a "novel assertion" and not well-founded, the court ruled.
On the application of Gerard Hogan SC, for the State, the court directed that the order for arrest of Mr A should be directed to the superintendent at the Bridewell, Dublin, and to all gardaí.
In the High Court on Tuesday, Ms Justice Mary Laffoy had ordered Mr A's release after finding his continued detention at Arbour Hill prison, where he had served 18 months of a three-year sentence, was unlawful in light of a Supreme Court decision of May 23rd striking down the law on statutory rape.
Mr A was jailed for three years at the Dublin Circuit Criminal Court on November 24th, 2004. He pleaded guilty to the unlawful carnal knowledge of a 12-year-old girl on May 18th, 2003.
The trial court heard he had bought the girl four Bacardi Breezers and two vodkas that evening.
She went to bed about midnight and woke up in the early morning to get sick. It was then Mr A had full sexual intercourse with her.
The application for Mr A's release came after the Supreme Court ruling in the case of CC that unanimously declared as unconstitutional the law - section 1 (1) of the 1935 Criminal Law Amendment Act - under which any man is automatically guilty of a crime if he has sex with a girl under 15 years of age.
The court made its decision on several grounds, including the failure in section 1 (1) to allow a defence that a genuine mistake had been made about a girl's age.
In the CC case, the man was 18 at the time he alleged he had consensual sex with a girl whom, he claimed, had told him she was older than she was.
The release of Mr A led to a number of other applications, brought under Article 40 of the Constitution, for release by men serving sentences under the section 1 (1) law.
Those applications were adjourned pending the outcome of the Supreme Court appeal. One application, initially adjourned to yesterday, has been further adjourned to June 19th while another application has been adjourned to Wednesday next.
The State appeal against the release of Mr A was heard over three hours yesterday by a five-judge Supreme Court comprising the Chief Justice, Mr Justice John Murray; Ms Justice Susan Denham; Ms Justice Catherine McGuinness; Mr Justice Adrian Hardiman and Mr Justice Hugh Geoghegan.
Having allowed the appeal, the court also made an order Mr A should be rearrested on foot of the original warrant for his detention.
Giving the court's judgment, the Chief Justice said that the application for the release of Mr A had been made following the decision of the Supreme Court in the CC case.
In that case, the court had decided that section 1 (1) of the Criminal Law Amendment Act of 1935 was inconsistent with the Constitution because the applicant had been denied the opportunity of pleading that he had reasonable grounds for believing the girl was over the age of 15.
In Mr A's case, it was never asserted that Mr A was denied any constitutional right to advance a defence relating to mistake about age since he had never asserted that he had reasonable grounds for believing that the girl in his case was over 15.
His counsel had never asserted that he had suffered any denial of justice or of procedural fairness.
For reasons that would be elaborated on at a later date, the court was satisfied that the warrant for Mr A's detention must still be considered as lawful and the court was therefore satisfied that his detention on foot of that warrant was in accordance with law, the Chief Justice said.
