The State has opposed the release from jail of a man convicted of the statutory rape of a 12-year-old girl, as the Government moves to deal with the Supreme Court's ruling that parts of existing law in this area are unconstitutional, write Mary Carolan and Mark Hennessy
In the High Court yesterday Gerard Hogan SC, for the State, argued that the man was in lawful detention in Arbour Hill, that the case was of "critical importance" and urged the judge not to free him.
It would be an appalling vista if those who had pleaded guilty to very serious offences involving pre-teen children were to get a "windfall bonus" from the Supreme Court judgment, he said.
Judge Mary Laffoy will announce her decision at 2pm on whether the man should remain in jail or be set free. The man, then aged 38, bought the girl four Bacardi Breezer drinks and two vodkas in May 2002 before he had sexual intercourse with her after she woke up to get sick.
He pleaded guilty in 2004 and was jailed for three years in Arbour Hill Prison, though he yesterday sought release before the High Court in light of last week's Supreme Court ruling.
The Supreme Court unanimously declared unconstitutional the law under which a man is automatically guilty if he has sex with a girl aged under 15, partly because it made no allowance for a genuine mistake about the girl's age.
The Supreme Court's ruling, the convicted man's counsel, Conor Devally SC, argued yesterday, meant he was in unlawful detention and must be released.
The State had not acted wrongfully in detaining him but he was now being held on foot of a warrant that was based on a non-existent law.
There was no continuing legal authority to hold his client, counsel argued. At one stage during yesterday's hearing, Mr Hogan asked the judge to hear more detailed evidence from a garda about the nature of the man's offence, but she ruled that such evidence was not relevant to the decision she had to make.
Minister for Justice, Equality and Law Reform Michael McDowell will today brief the Cabinet on new legislation to cope with the fall-out from the Supreme Court's decision.
The legislation could be ready for publication within two weeks, though the Minister is ready to accommodate opinions from Cabinet colleagues at this morning's meeting.
Taoiseach Bertie Ahern has said changing the law is "complicated".
Besides creating a new single age of consent of 16 for both sexes, Mr McDowell plans to make it illegal for anyone to have intercourse with a 14-to-16-year-old, if they are more than two years older.
An accused person could not make a defence claiming there was consent if the person with whom they had sex was under 14, while adult women could be prosecuted for having sexual relations with under-age boys.