A v Governor of Arbour Hill Prison

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 30 May 2006
• Neutral Citation: [2006] IEHC 169
• Court: High Court
• Date: 30 May 2006

[2006] IEHC 169

THE HIGH COURT

NO. 694 SS/2006

A v GOVERNOR OF ARBOUR HILL PRISON

IN THE MATTER OF ARTICLE 40, SECTION 4, SUB-SECTION (2)

OF BUNREACHT NA hÉIREANN

A.

APPLICANT

AND

THE GOVERNOR OF ARBOUR HILL PRISON

RESPONDENT

CONSTITUTION ART 40.4.1

CONSTITUTION ART 40.4.2

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

C (C) v IRELAND UNREP SUPREME 23.5.2006

MURPHY v AG 1982 IR 241

CONSTITUTION ART 40

ROYLE, STATE v KELLY 1974 IR 259

MCDONAGH v GOVERNOR OF CLOVERHILL PRISON 2005 1 ILRM 340

MCDONAGH, STATE v FRAWLEY 1978 IR 131

CONSTITUTION ART 50.1

BYRNE, STATE v FRAWLEY 1978 IR 326

CONSTITUTIONAL LAW

Statute

Validity - Retroactivity - Effect of declaration of inconsistency - Pre-1937statute - Criminal offence - Unlawful carnal knowledge of minor - Acquiescence - Locus standi - Whether provision continuing in force on enactment of Constitution - Whether declaration of unconstitutionality affected decisions already finally determined -Whether declaration of unconstitutionality operated with retroactive effect - Whether

applicant by reason of his conduct was debarred from benefit of declaration - Whether declaration of unconstitutionality resulted in unlawful detention of applicant - Whether lack of locus standi resulted in failure to obtain benefit of declaration of unconstitutionality - Murphy v Attorney General [1982] IR 241; The State (McDonagh) v Frawley [1978] IR 131; The State (Royle) v Kelly [1974] IR 259considered - Constitution of Ireland 1937,Articles 15.4, 40, 50, - Criminal Law Amendment Act 1935 (No 6) - Release of applicant ordered (2006/694SS - Laffoy J -30/5/2006) [2006] IEHC 169, [2006] 4 IR 88

A v Governor of Arbour Hill Prison

Facts: the applicant was convicted in 2004 on a plea of guilty of unlawful carnal knowledge contrary to section 1(1) of the Criminal Law (Amendment) Act 1935 and was sentenced therefor for three years. Following, the declaration by the Supreme Court on the 23rd May, 2006, that section 1(1) was unconstitutional, the applicant applied for a production order and that the respondent certify the grounds of his detention, pursuant to Article 40.4.2 of the Constitution. The respondent certified that he was being detained pursuant to a warrant which stated that he be imprisoned for unlawful carnal knowledge pursuant to section 1(1) of the Act of 1935.

Held by Laffoy J in ordering the release of the applicant that where a pre-Constitution statute was declared invalid, that statute was invalid ab initio. As the Supreme Court declared that section 1(1) of the Criminal Law (Amendment) Act 1935 was unconstitutional, the offence with which the applicant was charged was a nullity, as was his conviction and sentence therefor. His detention was therefore not in accordance with law.

Reporter: P.C.

1 Judgment of Miss Justice Laffoydelivered on 30th May, 2006.

2 Sub-section 1 of Article 40, s. 4 of the Constitution provides that no citizen shall be deprived of his personal liberty save in accordance with law. Sub-section 2 mandates a judge of the High Court to whom a complaint is made that a person is being unlawfully detained to forthwith enquire into the complaint. The judge is empowered to order the production of the person detained before the court and that the person in whose custody he is detained certify in writing the grounds of detention. On production of the person, the court is mandated to —

"… after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."

3 On 26th May, 2006, on the application of the applicant, I ordered that in accordance with sub-s. 2 of Article 40.4 the applicant be produced before the court yesterday, 29th May, 2006, and that the respondent certify in writing the grounds of his detention. The respondent complied with that order and certified that he held the applicant in custody in Arbour Hill Prison pursuant to a warrant dated 24th November, 2004, a copy of which he exhibited.

4 The warrant discloses that the applicant was convicted in the Circuit (Criminal) Court on 15th June, 2004 on a plea of guilty of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935 and that, subsequently, on 24th November, 2004 he was sentenced to be imprisoned for a period of three years, the sentence to date from 8th November, 2004. It is common case that the indictment on foot of which the applicant was charged was a one-count indictment.

5 The basis on which the applicant contends that his detention is unlawful is that on 23rd May, 2006 the Supreme Court declared that s. 1(1) of the Act of 1935 is inconsistent with the provisions of the Constitution in C.C. v. Ireland, The Attorney General and The Director of Public Prosecutions. It is of significance that in that case the Supreme Court declared s. 1(1) to be inconsistent with the Constitution in toto, rejecting an argument made on behalf of the State parties that a declaration of inconsistency should be couched in terms that s. 1(1) "cease to have force and effect to the extent that it precluded an accused from advancing a defence of reasonable mistake …" ( per Hardiman J. at p. 38).

6 What I have to decide on this application, having heard submissions on behalf of the applicant and the respondent yesterday, is whether I am satisfied that the applicant is being detained in Arbour Hill Prison in accordance with the law, having regard to the circumstances which now prevail, that s. 1(1) has been declared by the Supreme Court to be inconsistent with the Constitution. If I am not so satisfied I must order the release of the applicant.

7 The first question I have to consider, in determining whether the applicant is being detained in accordance with the law, is what is the effect of the inconsistency of s. 1(1) with the Constitution. It is well settled that in the case of a post-Constitution statute a declaration of invalidity means that the statute was invalid ab initio. Apparently, there is no decided case on the effect of a declaration that a pre-Constitution statute is inconsistent with the Constitution. That issue was considered by the Supreme Court in Murphy v. The Attorney General [1982] I.R. 241 by Henchy J., but his comments were clearly obiter,...