Sherwood caseA call by the mother of a victim of statutory rape for judges to adjourn release applications by convicted offenders to allow the State to enact retrospective laws "to legitimise matters" was "repugnant" to his oath to uphold the Constitution, a High Court judge said yesterday.
Mr Justice Barry White made the remark when dealing with an application for the immediate release of a man serving an 11-month sentence for the unlawful carnal knowledge of a 15-year-old girl.
Joseph Sherwood (19), Grange, Edenderry, Co Offaly, was jailed last February for the September 2004 offence, under section 1 (1) of the 1935 Criminal Law Amendment Act, and is due for release in late September or October. He contended the intercourse was consensual.
Colm Smyth SC, for Sherwood, had applied for an inquiry, under Article 40 of the Constitution, into the legality of his client's detention in light of the Supreme Court decision of May 23rd last that section 1 (1) is unconstitutional and the consequent decision by Ms Justice Mary Laffoy last Tuesday to free Mr A (41), who was in custody on the same charge, on the grounds that his detention was unlawful.
The judge directed that Sherwood be produced in court later yesterday when George Birmingham SC, for the State, asked that the matter be adjourned to next Wednesday.
Mr Smyth opposed an adjournment, arguing his client was in unlawful detention as of now and should be immediately released. His client was also by no means a major paedophile, counsel added.
Mr Justice White said he certainly would not adjourn the matter to Wednesday but ultimately said he would adjourn it to about 4pm today to allow the Supreme Court to hear the appeal.
He said there was legal authority to the effect that Article 40 applications could be adjourned in certain circumstances. He also commented that temporary release might be a way of dealing with the matter.
The judge said he had listened to a call by the mother of a victim of an offence perpetrated by Simon Murphy (who also sought his release yesterday) made on RTÉ's Liveline programme, for the courts to adjourn such release applications to allow the Oireachtas "introduce legislation to retrospectively legitimise matters".
That was "repugnant to the oath I made in the Supreme Court on my appointment", the judge remarked. He further remarked that the State's defence of the detentions seemed to be on the basis that, although the section 1 (1) law had been struck down, the convictions on foot of it remained valid. That argument "did not seem to follow any understanding of the law", he said.
Mr Birmingham said it was no part of his application that the matter be adjourned to await developments in the Oireachtas. All lawyers knew of the constitutional prohibition on retrospective legislation.
Even if there were no Supreme Court appeal, he would also want an adjournment to allow the State to marshal arguments to advance "a substantial basis" for the continued detention of Sherwood.
He accepted there was no way of knowing when the Supreme Court might give its decision on today's appeal. However, he said there would be an advantage to the court in terms of its ability to address the issues if the adjournment was granted.
Earlier, Paul Anthony McDermott, for the State, said the issue in the Supreme Court appeal was whether, even where a statute was held to be unconstitutional, it followed that every act done under that statute since 1937 must be invalid.
Mr Justice White commented that Mr McDermott seemed to be asking the Supreme Court to change long-established law in relation to statues enacted before the Constitution of 1937.
He said the jurisprudence here was that a post-1937 law and all done under that is presumed constitutional or lawful until that law was declared unconstitutional. No such presumption of constitutionality applied to a pre-1937 statute, he said.
