A. -v- The Governor of Arbour Hill Prison, [2006] IESC 45 (2006)

Docket Number:205/06
Party Name:A., The Governor of Arbour Hill Prison
Judge:Murray C.J.


Murray C.J. 205/06

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.





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"… [T]he fact that a provision was held to be no longer in force since 1937 does not automatically carry the corollary that what has been done under and in pursuance of that provision after the Constitution came into force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.

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.


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.

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.

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.

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.

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.

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

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.

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

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.

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.

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.

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

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 not having force and effect from the coming into operation of the Constitution in 1937. Also for the sake of convenience, except where the context otherwise indicates, I will refer to a finding of unconstitutionality of an Act as including a finding under Article 50.1 that a pre-1937 Act is inconsistent with the Constitution and a finding under Article 15.4 that an Act is repugnant to the Constitution.

General Observations

On the 2nd day of June, 2006 this Court handed down its decision in this case allowing the appeal of the respondent and setting aside the Order of the High Court.

The reasons why I agreed with that decision are set out in this judgment. I do not accept that it is a principle of our constitutional law that cases which have been finally decided and determined before our Courts on foot of a statute which is later found to be unconstitutional must invariably be set aside as null and of no affect.

When this Court, in de Burca -v- Attorney General, struck down as unconstitutional the provisions of a statute governing the selection of juries in criminal cases it did not mean that the tens of thousands of jury decisions previously decided by juries that were selected under a law that was unconstitutional should be set aside. When this Court found in McMahon -v- The Attorney General that certain provisions of the Electoral Acts were unconstitutional it did not mean that all elections which took place on foot of the impugned statute were void and of no effect, that there was no valid Oireachtas in being and none which could validly remedy the situation.

The Constitution like others, is holistic and provides a full and complete framework for the functioning of a democratic State and an ordered society in accordance with the rule of law, the due administration of justice and the interests of the common good. In providing for the common good and seeking "to attain true social order", in the words of the preamble, the application of the Constitution cannot be distorted by focusing on one principle or tenet to the exclusion of all others.

For reasons which I will go on to explain, the abstract notion of absolute retroactivity of the effects of a judicial decision invalidating a statute is incompatible with the administration of justice which the Constitution envisages, as many of the dicta of this Court indicates in cases which it has already decided.

It is also a notion which other legal and constitutional systems have, in comparable circumstances, found incompatible with a due and ordered administration of justice.

However attractive the argument of the applicant, when taken in isolation, would at first superficially appear, and however complex the issue in practice may appear to be, it is not one which has been shown compatible with any ordered constitutional system and in my view is not compatible with ours.

At the outset I drew attention to the fact that issues concerning the extent to which a judicial adjudication has retrospective effect, in particular one which involves a finding that a law is inconsistent with or invalid having regard to the Constitution, is not in itself novel. What is novel about this case is that such a judicial finding is invoked by another party for the purpose of impugning an earlier judicial decision which has been finally determined. The issue in earlier proceedings with which this case is concerned is a final verdict of guilty following a criminal prosecution.

A.'s case was finally decided in 2004, he was found guilty, after a plea, and sentenced to prison. The case is over and the decision final. There is no appeal outstanding. In these proceedings he seeks to mount a collateral attack on that final verdict. At no stage prior to or in the course of his prosecution proceedings did he seek to impugn the lawfulness of his prosecution or conviction by reason of any constitutional frailty. A collateral attack arises where a party, outside the ambit of the original proceedings seeks to set aside the decision in a case which has already been finally decided, all legal avenues, including appeal, having been exhausted, for reasons that were not raised in the original proceedings but for reasons arising from a later court decision on the constitutionality of a statute.

I accept that this application is not based on the assertion of a jus tertii. It is not a general assertion of unconstitutionality without regard to the applicant's circumstances or a claim based on the infringement of rights of another person or persons. The applicant claims to be directly affected by the decision in C.C. because he...

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