High Court urged not to free sex offender

The High Court was warned today that it is wholly inconceivable to set free a convicted sex offender following the Supreme Court ruling that men 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 Hugh 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.

He went on to say that to continue Mr A’s incarceration would be to perpetuate a known unconstitutionality.

The court was told that in November 2004 the man, who is in Arbour Hill Prison, was jailed for three years at the Dublin Circuit Criminal Court after being convicted of unlawful carnal knowledge of an underage girl.

Mr A was 26 years older than the victim at the time of the offence.

His application to the High Court came less than a week after the Supreme Court declared unconstitutional the 1935 law under which any man is automatically guilty of a crime if he has sex with a girl under 15.

But Mr Hogan SC told the court that granting the convict freedom would in effect give him a windfall bonus following the Supreme Court ruling.

“These are matters that can only be properly ventilated in judicial review proceedings,” Mr Hogan said.

“There is a large stone in the road which he is now challenging and the stone in the road is his conviction.”

Mr Hogan told the court that due to the large age difference between the victim and her attacker it was difficult to see how he could use the ruling from the Supreme Court to secure an order for his freedom.

“Given the disparity of ages between the victim and Mr A, 12 and 36, it’s very hard to see how under any possible circumstances he could have raised that argument,” Mr Hogan said.

“Why should he be allowed to get that benefit after. Why should he... be allowed to march through the resulting gap in the statute.”

Ms Justice Laffoy will give judgement in the case at the High Court tomorrow.