The High Court has ordered the release of a prisoner from Arbour Hill after finding that his detention could no longer be lawful once the Supreme Court struck down the only statutory offence for which he had been convicted.
The man, identified as A., had pleaded guilty in the Circuit Criminal Court in June 2004 to unlawful carnal knowledge under section 1(1) of the Criminal Law (Amendment) Act 1935. He was sentenced in November 2004 to three years in prison, backdated to 8 November 2004.
His position changed after the Supreme Court ruled on 23 May 2006 in C.C. v Ireland that section 1(1) was inconsistent with the Constitution in its entirety.
A. then applied under Article 40.4 of the Constitution, the procedure requiring the High Court to inquire urgently into an allegation of unlawful detention.
Ms Justice Laffoy held that because the 1935 provision predated the Constitution, the effect of the Supreme Court declaration was that the section had ceased to have legislative existence when the Constitution came into force in 1937. It followed that the offence for which A. had been charged, convicted and sentenced did not legally exist at the relevant times.
The judge said this was a fundamental defect. Although A. had been convicted and sentenced by a court of competent jurisdiction, the conviction related to conduct which was not an offence in criminal law. The conviction and sentence were therefore nullities and the prison warrant could not provide a lawful basis for detention.
The court emphasised that it was deciding only A.’s present entitlement to liberty. It did not decide whether he could later maintain a civil claim for wrongful imprisonment or what consequences the Supreme Court ruling might have for other cases.
Ms Justice Laffoy said she was not satisfied that A. was being detained in accordance with law and directed his release from Arbour Hill Prison.