A v Governor of Arbour Hill Prison

• Jurisdiction: Ireland
• Judge: Murray C.J.,Denham J.,McGUINNESS J.,Mr. Justice Hardiman,Mr. Justice Geoghegan
• Judgment Date: 10 July 2006
• Neutral Citation: [2006] IESC 45
• Court: Supreme Court
• Docket Number: [S.C. No. 205 of
• Date: 10 July 2006

A v GOVERNOR OF ARBOUR HILL PRISON

IN THE MATTER OF ARTICLE 40, SECTION 4, SUBSECTION 2

OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

A.

APPLICANT

-v-

THE GOVERNOR OF ARBOUR HILL PRISON

RESPONDENT

[2006] IESC 45

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

205/06

THE SUPREME COURT

CONSTITUTIONAL LAW

Statute

Validity - Retroactivity - Effect of declaration of inconsistency - Pre-1937statute - Criminal offence - Unlawful carnal knowledge of minor - Acquiescence - Locus standi - Jus tertii - 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] IR131; The State (Royle) v Kelly [1974] IR 259;O'Donovan v Attorney General [1961] IR114; McMahon v Attorney General [1972] IR69; de Burca v Attorney General [1976] IR38; The State (Byrne) v Frawley [1978] IR326; McDonnell v Ireland [1998] 1 IR 134;Cox v Ireland [1992] 2 IR 503 and Chicot County Drainage District v Baxter State Bank(1939) 308 US 371 considered - Constitution of Ireland 1937, Articles 15.4, 40, 50, -Criminal Law Amendment Act 1935 (No 6) -Respondent's appeal allowed (205/2006 - SC - 10/7/2006) [2006] IESC 45, [2006] 4 IR99; [2006] 2 ILRM 481

A v Governor of Arbour Hill Prison

MURPHY v AG 1982 241

BYRNE, STATE v FRAWLEY 1978 IR 326

CRIMINAL LAW ACT 1935 S1(1)

C (C) v IRELAND 2006 2 ILRM 161

CONSTITUTION ART 40.4.1

CONSTITUTION ART 50

CONSTITUTION ART 50.1

CONSTITUTION ART 15.4

DE BURCA v AG 1976 IR 38

MCMAHON v AG 1972 IR 69

CRILLY v FARRINGTON 2001 3 IR 251

DONOGHUE v STEVENSON 1932 AC 562

BYRNE v IRELAND 1972 IR 241

BLACKSTONES COMMENTARIES ON THE LAWS OF ENGLAND (1809) BOOK I 69

POSNER THE PROBLEMS OF JURISPRUDENCE 1993

CARDOZO THE NATURE OF THE JUDICIAL PROCESS 1921

EC TREATY ART 230

CMSN v PARLIAMENT C-178/03

DENKAVIT INTERNATIONAL v BUNDESAMT FUZ FINANZEN EX PARTE BRITISH TELECOM 1996 ECR 5063

BANCA POPOLARE DI CREMONA v AGENZIA ENTRATE UFFICIO CREMONA C-475/03

MARCKX v BELGIUM 1979 2 EHRR 330

ORISSA CEMENT LTD v STATE OF ORISSA 1991 SUPP (1) SCC 430

CONSTITUTION OF INDIA ART 13 PAR 1

CONSTITUTION OF INDIA ART 13 PAR 2 CONSTITUTION OF INDIA ART 142

CHICOT CO DRAINAGE DISTRICT v BAXTER STATE BANK 1940 308 US 371

CONSTITUTION OF INDIA ART 15 CONSTITUTION OF INDIA ART 50

LINKLETTER v WALKER 1965 381 US 618

TEHAN v SHOTT 1966 382 US 406

STOVALL v DENNO 1967 338 US 293

CANADIAN CONSTITUTION ACT 1982 S52(1)

R v BAIN 1992 1 SCR91 R v WIGMAN 1987 1 SCR 246

ELECTORAL ACT 1923 K

ELLY THE IRISH CONSTITUTION

SINNOTT v MIN EDUCATION 2001 2 IR 545

MCGEE v AG 1974 IR 284

HEALY, STATE v DONOGHUE 1976 IR 325

GREENDALE DEVELOPMENTS LTD (NO 3), RE 2000 2 IR 514

CONSTITUTION ART 40

INCOME TAX ACT 1967

MCDONNELL v IRELAND 1998 1 IR 134

COX v IRELAND 1992 2 IR 503

OFFENCES AGAINST THE STATE ACT 1939 S34

KOHN THE CONSTITUTION OF THE IRISH FREE STATE

UNITED NATIONS CHARTER

UNIVERSAL DECLARATON OF HUMAN RIGHTS

MARBURY v MADISON 1803 5 US 137

PIG MARKETING BOARD v DONNELLY (DUBLIN) LTD 1939 IR 413

BUCKLEY & ORS v AG 1950 IR 67

WOODS v AG 1969 IR 385

INCOME TAX ACT 1967 S192

INCOME TAX ACT 1967 S193

INCOME TAX ACT 1967 S194 INCOME TAX ACT 1967 S195

INCOME TAX ACT 1967 S196

INCOME TAX ACT 1967 S197

DEFRENNE v SABENA 1976 2 CMLR 98

DPP v FINN 2001 2 IR 25

CONSTITUTION ART 13.6

BLAKE v AG 1982 IR 117

RENT RESTRICTIONS ACT 1960 PART II

RENT RESTRICTIONS ACT 1960 PART IV

SCHACHTER v CANADA 1992 2 SCR 679

UNEMPLOYMENT INSURANCE ACT 1971

CORBIERE v CANADA (MIN OF INDIAN & NORTHERN AFFAIRS) 1999 2 SCR 203

CONSTITUTION ART 5

CRIMINAL LAW ACT 19971997 SCH 1

CONSTITUTION ART 26

O'DONOVAN v AG 1961 IR 114

CAHILL v SUTTON 1980 IR 269

SIMESTER (ED) APPRAISING STRICT LIABILITY 2005

SULLIVAN STRICT LIABILITY FOR CRIMINAL OFFENCES IN ENGLAND FOLLOWING INCORPORATION OF THE ECHR CH 8

CONSTITUTION PREAMBLE

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

AHERNE, STATE v COTTER 1982 IR 188

CRIMINAL LAW (AMDT) ACT 1935 S14

COURTS OF JUSTICE ACT 1924 S29

TAYLOR v LOUISIANA 1975 419 US 522

1 JUDGMENT delivered the 10th day of July 2006 , by Murray C.J.

"... [T]he fact that a provision was held to be no longer in force since 1937 does not automatically carry the corollary that what has been done under and in pursuance of that provision after the Constitution came into force will necessarily be condemned for lack of validity", Griffin J. in Murphy —v- Attorney General [1982] I.R. 241.

"... [I]t does not necessarily follow that Court Orders lack binding force because they were made in proceedings based on an unconstitutional statute." Henchy J. in The State (Byrne) —v- Frawley [1978] I.R. 326 at p. 349.

2 While I will return later to the context in which these judicial dicta were pronounced I mention them at the outset so as to highlight the fact that the issue which arises in this case, the retrospective effect on cases already decided of a finding that the provision of an Act is unconstitutional, is not a novel one although it does arise in this case in a novel manner and amplitude for reasons which I will refer to later.

Background

3 The background to this case commences, in the first instance, with the conviction of the applicant before the Dublin Circuit Court on the 15th June, 2004 of the offence of unlawful carnal knowledge of a girl under the age of consent contrary to s. 1(1) of the Criminal Law Act, 1935 following a plea of guilty on his behalf. On 24th November, 2004 he was sentenced to 3 years imprisonment to date from 8th November, 2004.

4 In a judgment in another case, C.C. —v Ireland & Ors, delivered on the 23rd May, 2006 , this Court declared that s. 1(1) of the Criminal Law (Amendment) Act, 1935 was inconsistent with the provisions of the Constitution.

5 This decision followed an earlier determination by this Court, in judgments delivered on 12th July, 2005, in which s. 1(1) of the Act of 1935 was interpreted as precluding a defence being raised by a person charged with an offence under the section to the effect that he had reasonable grounds for believing that the girl in question was over the age of consent to sexual intercourse. Consequent upon that decision the issue as to the constitutionality of the section was heard on a subsequent date leading to the judgment concerning the section's unconstitutionality on 23rd May, 2006.

6 That section was one which did not apply to rape offences generally against adults or minors but to a specific statutory offence prohibiting consensual sexual intercourse with girls under the age of consent.

7 On 26th May, 2006 the applicant applied for an Order pursuant to Article 40.4.1 of the Constitution directing his release from custody on the grounds that his detention in accordance with the term of imprisonment imposed upon him following his conviction was unlawful since the section, s. 1(1) of the Act of 1935 had been declared inconsistent with the Constitution pursuant to Article 50.

8 By Order dated 30th May, 2006 the High Court decided that the applicant's further detention was unlawful and ordered his release.

9 The respondent appealed to this Court against the Order of the High Court which appeal was heard on 2nd June. At the conclusion of the hearing of that appeal this Court decided that the applicant's detention on foot of his conviction was lawful, the appeal was accordingly allowed and a warrant issued for the arrest of the applicant for the purpose of completing the sentence which he was serving.

10 When the decision of the Court was announced on that date it was stated that the reasons for the decision would be given subsequently.

The issue in the present case — Absolute retrospectivity

11 As counsel for the applicant said, his argument in this case is quite simple and he put it in the following terms: his client was convicted of an offence under s. 1(1) of the Act of 1935. That section has been declared unconstitutional pursuant to Article 50 of the Constitution.

12 That means, because of its inconsistency with the Constitution, the provision was never the law in the State after the adoption of the Constitution in 1937. That in turn means it is deemed not to have been the law at the time of his conviction and sentence for the offence. For that reason alone the final judicial verdict convicting him and sentencing him to imprisonment was null and of no effect. Therefore he is not detained in accordance with law.

13 It is analogous to the consequence which also flows from a finding that a post-1937 Act of the Oireachtas is incompatible with the Constitution which has the consequence of such an Act being deemed invalid ab initio, that is to say that from the date of its enactment, and never to have entered into force.

14 He rests his case on the principle of void ab initio exclusively without regard to any other principles deriving from the Constitution.

15 It is an argument for complete or absolute retrospective effect of such a finding of unconstitutionality on cases previously and finally decided on foot of an impugned statute, so that those judicial decisions are void and of no effect. For the sake of convenience reference to the principle of void ab initio includes a reference to a pre-1937 Act...