Supreme Court of Ireland Decisions

Judgment Title: A. -v- The Governor of Arbour Hill Prison

Neutral Citation: [2006] IESC 45

Supreme Court Record Number: 205/06

High Court Record Number: 2006 No. 694SS

Date of Delivery: 10 July 2006

Court: Supreme Court

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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“… [T]he fact that a provision was held to be no longer in force since 1937 does not automatically carry the corollary that what has been done under and in pursuance of that provision after the Constitution came into force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 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.
Background
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 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, 2006, 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 cases generally of 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 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 affect. 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, except where the context otherwise indicates, I will refer to a finding of unconstitutionality of an Act as including a finding under s. 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. Also 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.)

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 affect, that there was no valid Oireachtas in being and none which could validly remedy the situation.

The Constitution like others, is holistic, 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 proceeding 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 was convicted pursuant to the section of the 1935 Act which in C.C. was subsequently found unconstitutional.

No constitutional frailty was found as to the right of the State to criminalise sexual intercourse with girls underage even if it takes place consensually rather then against their overt will. It cannot be said, and the applicant does not contend, that there was any inherent injustice in convicting a person of having sexual intercourse with an underage girl, something which has been forbidden by law for a very long time and was contrary to the law as applied at the time.

Moreover, apart from the fact that the applicant, having been charged with an offence under s. 1.1 of the Act of 1935, did not at any stage challenge its constitutionality, his position is also underscored by the fact that he acknowledges that he was at all times aware that the girl with whom he was convicted of having sexual intercourse was under the age of consent.

In the circumstances, while it might be said to be somewhat analogous to the assertion of a claim based on jus tertii it is nonetheless in the nature of a collateral attack on the status of his conviction for the offence in accordance with law, at least as it then stood. That is to say that he cannot, and does not, complain of any inherent constitutional injustice or unfairness in the process by which he was convicted.

Counsel for the applicant could not point to any case in which such a collateral challenge to a final decision of a Court had been brought before the Courts based on a subsequent judicial decision. Neither have I been able to discover any such case. Before addressing the specifics of this application I wish to make some reference to the question of the retroactive effect of judicial decisions in our legal system generally and then some consideration to the position in other legal systems.

Retroactivity generally in the common law system
The Constitution may in a certain sense fall to be viewed from the perspective of the common lawyer since the Constitution was superimposed on, and indeed presumes the existence of, the common law system at least insofar as it is not inconsistent or incompatible with the Constitution itself. I think it would be useful to look at the common law position on the retroactive effects of judicial decisions previously decided cases.

A primary judicial function is to interpret the law that is to say the Constitution, legislation and the common law. As I observed in Crilly –v- Farrington “… First, there is the law; then there is interpretation. Then interpretation is the law. This simplified reference to the judicial process emphasises that when Courts apply a statute the interpretation which they give it has ultimate authority”. One of the consequences of this judicial process is obvious. The meaning or import of law is interpreted and defined incrementally.

It is also important to bear in mind, as in the present application, that the Courts cannot and do not choose the legal issues, of interpretation or otherwise, which they have to decide. They can only decide such issues when they are raised in the context of judicial proceedings brought before them.

Thus, the conventional manner in which the law has been applied in a particular area for many decades may be greatly altered even turned on its head as a result of a particular issue being raised in a particular case at a particular point in time leading to an extension of the law by reference to general principles, the overriding of precedent or the specific interpretation of a provision of a statute which gives it a meaning different from that which had been commonly held. The decision of this Court which decided that failure to wear a seatbelt could constitute contributory negligence did not entitle already decided cases to be reopened. One could give many other examples and I will just mention two seminal cases. First is Donoghue –v- Stevenson [1932] AC 562, as adopted and followed by this Court, which extended the duty owed by manufacturers of unsafe goods beyond the ambit of those with whom the manufacturer had privity of contract to ultimate consumers who were entitled to sue on the grounds of the manufacturer’s negligence. This did not lead, no more than other leading decisions in the field of contract or tort and so on, to the reopening or setting aside of finally decided cases. The law did not permit other parties to challenge the finality of already decided cases concerning manufacturers’ liability. The second example is Byrne –v- Ireland [1972] I.R. 241 which determined, for the first time, that the State, Ireland, was vicariously liable for the negligent or tortious acts of public servants and did not benefit from any so-called prerogative of immunity from suit claimed to be attached to the State in its sovereign status. That was the meaning given to the Constitution and which a fortiori it meant since its enactment in 1937. As a result Mrs. Byrne was entitled to recover damages from Ireland for any injuries which she suffered as a result of falling on a footpath which had subsided due to excavation works carried out by the Department of Post and Telegraphs.

It did not mean in law, and no one has, or was ever likely to suggest, that any persons who had previously brought a similar unsuccessful case against a Minister or the State or indeed who had confined themselves to suing the only person it was thought they could sue, the actual public servant who committed the tort (with a risk or likelihood that he or she would not have means to pay any damages awarded or at best only partially to do so) could in the light of the ruling set aside any previously decided cases or reopen them.

The common law has never conceived as consistent with any ordered administration of justice that previously decided and finally determined cases could necessarily be set aside or reopened in the light of a new precedent notwithstanding the historical view of the common law, expressed by Blackstone in his Commentaries, that Judges “discover” the law as it truly is and that overruled precedents were misrepresentations of the law and were never law. “For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law” (Blackstones’ Commentaries 1, 69). In modern constitutional systems we have moved on from that perception of the law, at least in its purest form, but even when viewed through Blackstones’ prism the common law did not envisage absolute retroactivity of judicial decisions and did not permit previous cases, even though finally determined on principles that were ‘never law’ to be reopened. As Judge Richard Posner, writing ex-judicially, observed, “Pure retroactivity is rare” (The Problems of Jurisprudence, 1993).

Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same wrong or a wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position.

Only a narrow approach based on absolute and abstract formalism could suggest that all previous cases should be capable of being reopened or relitigated (even if subject to a statute of limitations). If that absolute formalism was applied to the criminal law it would in principle suggest that every final verdict of a trial or decision of a court of appeal should be set aside or, where possible, retried in the light of subsequent decisions where such subsequent decision could be claimed to provide a potential advantage to a party in such a retrial. In principle both acquittals and convictions could be open to retrial. But one has only to pose the question to see the answer. No one has ever suggested that every time there is a judicial adjudication clarifying or interpreting the law in a particular manner which could have had some bearing on previous and finally decided cases, civil or criminal, that such cases be reopened or the decisions set aside.

It has not been suggested because no legal system comprehends such an absolute or complete retroactive effect of judicial decisions. To do so would render a legal system uncertain, incoherent and dysfunctional. Such consequences would cause widespread injustices.

As Henchy J. stated in Murphy –v- Attorney General (at 314), incidentally, when addressing the effects of a law declared unconstitutional ab initio:

“Over the centuries the law has come to recognise, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitations, res judicata, or other matters (most of which may be grouped under the heading of public policy) may debar a person from obtaining redress in the Courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations had not intervened. To take but two examples, both from a non-constitutional context, where a judicial decision is overruled by a later one as being bad law, the overruling operates retrospectively, but not so as to effect matters that in the interval between the two decisions became res judicatae in the course of operating the bad law … “

The words of Henchy J., and I will be referring more fully to this passage later, reflect the reality of what the law discovered long ago. There are, as he also stated in this judgment “transcendent considerations” which militate against complete or absolute retrospectivity. Fundamental interests of public policy requires limitations on the retroactive effect of judicial decisions. The legal order and the administration of justice is not one of perfect symmetry. As Justice Benjamin Cardozo observed in his seminal work The Nature of the Judicial Process (Yale University Press, 1921) “We like to picture to ourselves the field of the law as accurately mapped and plotted. We draw our little lines, and they are hardly down before we blur them”. Although judicial adjudications do have retroactive effect there are important exceptions and restrictions to that effect. A line must be drawn in the interests of justice.

Speaking of a rule limiting retroactive effect of judicial decisions once again Justice Cardozo observed “It may be hard to square such a ruling with abstract governance and definition. When so much else that a Court does is done with retroactive force, why draw the line here? The answer is, I think, that the line is drawn here, because the injustice and oppression of a refusal to draw it would be so great as to be intolerable”.

The law is too old and too wise to be applied according to a rigid abstract logic or a beguiling symmetry. As Henchy J. pointed out above for centuries the law has known general principles and transcendent considerations, such as the public interest, which is another way of saying the common good, restricting retrospectivity, especially the setting aside of judicial decisions already finally decided, even though the law on which they are founded is later held to be invalid.

It has never been held, and as far as I am aware never been argued, the matter might well be considered beyond argument, that the common law rule that judicial decisions do not retrospectively apply to cases already decided is in any way inconsistent with the Constitution.

The argument of counsel for the applicant was is simple as it is stark. A. stands convicted and sentenced on a law that does not exist. Although counsel elaborated on this argument that is its fundamental essence. If it is correct it is one which is out of kilter with its underlying common law system. It may come as no surprise to find that it is also out of kilter with other constitutional systems and in particular our own.

Other legal systems and retrospectivity
In his judgments in the Byrne and Murphy cases Henchy J. found it helpful to refer to the law of the United States and the European Communities as evidence of the principle “that what has been done or left undone under a constitutionally invalid law may … be impossible, or unjust or contrary to the common good … to reverse or undo …”

I would like to refer to the position in a number of legal systems which are cogent examples of the principle referred to by Henchy J.

European Union
In proceedings before the Court of Justice of the European Communities pursuant to Article 231 of the EC Treaty the Court is required to declare the measure concerned void. In principle this means that the measure never entered into effect but the Article also provides that the Court of Justice shall, if it considers this necessary, state which of the effects of the Regulation which it has declared void shall be considered as definitive. On the direct basis of that provision the Court has limited the retrospective effect of a declaration that a measure is void including by maintaining the provision in effect until a new, valid measure has been adopted – sometimes specifying that this must be done within a reasonable period (see for example case C-178/03 Commission –v- Parliament [2006] ECR 1-0).

But the Court may also review the validity of a community legal measure, outside the ambit of Article 231, in response to a request for a preliminary ruling by a national court. In order to maintain legal certainty and consistency the Court as found it necessary to apply, by way of analogy, a similar approach to declarations of annulment in such cases.

Moreover, as the Court of Justice has repeatedly stated, when it gives a decision on the meaning and scope of community law it is that which “it must be or ought to have been understood and applied from the time of its coming into force” (Denkavit Italiana [1980] ECR 1205). In that case is also repeated its oft stated principle by acknowledging that exceptionally “… [T]he Court may, in application of the general principle of legal certainty inherent in the community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provisions as thus interpreted with a view to calling in question those legal relationships”. (Emphasis added)

In exercising such a general discretion the Court of Justice, as Advocate General Stix-Hakl recalled in her opinion delivered on 14th March, 2006 (case C-475/03, unreported) “… has taken various approaches. In some cases, it is specified that the finding of invalidity has no retroactive effect whatever. In other, it has stated that the effect is in general not retroactive but has allowed retroactive effect for those who have before the date of the judgment brought proceedings based on the invalidity”.

In its case-law the Court of Justice has clearly considered that limitations on retrospective effect of its decisions were necessary in the interest of legal certainty and the coherence of the community legal system.

In Murphy –v- The Attorney General Henchy J. viewed specifically that approach of the Court of Justice, as a “cogent example” of the general principle of limiting the retrospective effect of decisions in such circumstances notwithstanding the particular features of the community legal system.

European Convention on Human Rights
The European Court of Human Rights in exercising its jurisdiction to protect fundamental rights under a Convention which reflects the “common heritage of … freedom and the rule of law” of European countries found it appropriate and necessary to limit the retrospective effect of its judgments on such fundamental issues in the interests of legal certainty and the due administration of justice. This approach was also prompted, at least in part, by the fact that it interprets the Convention in the light of present-day conditions which is analogous to one aspect of the interpretive approach of this Court to the Constitution of Ireland (to which I refer later). In Marckx –v- Belgium [1979] 2 EHRR 330 para. 58 (a case which condemned a Belgian law because it wrongly deprived children born out of wedlock of inheritance rights) the Court, having cited the case-law of the Court of Justice of the European Communities stated:

“The European Court of Human Rights interprets the Convention in the light of present-day conditions but it is not unaware that differences of treatment between “illegitimate” and “legitimate” children, for example in the matter of patrimonial rights, were for many years regarded as permissible and normal in a large number of Contracting States (see, mutatis mutandis, paragraph 41 above). Evolution towards equality has been slow and reliance on the Convention to accelerate this evolution was apparently contemplated at a rather late stage. ... Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from reopening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that court that annul legislation.” (Emphasis added)

Even though the European Court of Human Rights condemned the Belgian law because it breached the fundamental rights of Alexandra Marckx because of a restriction on her inheritance rights as a child born outside of wedlock, it found it not only acceptable but necessary to limit the retrospective effect of its decision in the interests of a fair and coherent administration of justice rather than permit it to be distorted by the abstract concept of absolute retrospectivity. In doing so it followed the norms of constitutional adjudication in other European countries.

India
The Supreme Court of India, in addressing a similar issue after having declared a statute invalid, stated in Orissa Cement Ltd. –v- State of Orissa [1991] Supp. (1.) SCC 4330:

“The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion. Once the principle that the Court has a discretion to grant or decline a refund is recognised, the ground of which such a discretion should be exercised is a matter of consideration for the Court having regard to all the circumstances of the case. The Court can grant or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interests of justice.” (Emphasis added)

It is worth noting that the Supreme Court of Indian deduced its inherent power to restrict the retrospective effect of its judgments declaring a statute to be unconstitutional in circumstances where Article 13 paragraph I of the Constitution of India, under the heading of “Laws inconsistent with or in derogation of the fundamental rights”, provides that laws in force “immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency be void” and goes on in para. 2 of that Article to state that “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void”. (Emphasis added)

It is interesting to note a substantial correspondence between the provisions of Article 13.1 and 2 of the Indian Constitution and Article 15.4 and 50.1 of the Irish Constitution and that the Indian Constitution is more explicit as to the void nature of the legislation in question.

It is also of interest that the Indian Supreme Court, in exercising its constitutional jurisdiction, like other jurisdictions, differentiated between the notions of void ab initio and the judicial effects, in particular retrospective effect, of its judgments on such issues. It is true that the Indian Supreme Court, in adopting this approach, called in aid the otherwise unrelated Article 142 of the Indian Constitution which enables the Court to “make such order as is necessary for doing complete justice in any Court or matter pending before it”. Nonetheless it is clear that the Indian Supreme Court felt it necessary to derive from this Article an implied power to limit retrospective effect in order to bring certainty and coherence to the administration of justice notwithstanding that its Constitution expressly provided that unconstitutional enactments were void and not just voidable.

United States
In the United States the Supreme Court in addressing both the retrospective and prospective effects of its judgments on such issues was not, as Henchy J. pointed out in Murphy –v- Attorney General [1982] I.R. 241 encumbered by the kind of provisions to be found in Articles 15.4 and 50.1. Nonetheless, as regards the general principle, he went on to cite with approval from the opinion of the United States Supreme Court in Chicot County Drainage District –v- Baxter State Bank [1940] 308 U.S. 371 at 374 the following passage:

“The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County (1886) 118 U.S. 425 at p. 442; Chicago, I & L. Rly. Co. v. Hackett (1931) 228 U.S. 559 at p. 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects – with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” (Emphases added)

Although the United States Supreme Court was not governed or encumbered by the provisions of Articles 15 or 50 it recognised that even where in principle a statute was unconstitutional and not law, it nonetheless was compelled, in the interests of legal certainty, to engage in the complex exercise of balancing the competing considerations of a law being void and limitations on absolute retrospectivity.

The case-law of the U.S. Supreme Court in relation to criminal cases was developed in Linkletter –v- Walker [1965] 381 U.S. 618 in which the Court drew the line or limit on retrospectivity to cases in which judgments of conviction were not yet final so that only persons in those situations could rely, retrospectively, on the subsequent decision. In Tehan –v- Shott (382 US 406 1966) the U.S. Supreme Court reaffirmed the fundamental approach set out in Linkletter that the application of a rule against retrospectivity in the constitutional area “where the exigencies of the situation require such an application” posed “no impediment – constitutional or philosophical”. Insofar as there has been judicial debate on this issue in the U.S. Supreme Court it has focused not on the existence of such a rule but to what extent there may be exceptions, if any, to it in particular circumstances. The U.S. jurisprudence was further developed in subsequent case-law including Stovall –v- Denno [1967] 338 U.S. 293 but the current position is summed up in the Annotated Constitution prepared by the Congressional Research Service at the Library of Congress which states:

“The Court has now drawn a sharp distinction between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, State or Federal, pending on direct review or not yet final” (Griffith –v- Kentucky [1987] 479 U.S. 314) … Thus, for collateral review in federal Courts of state courts criminal convictions, the general rule is that “new rules” of constitutional interpretation, … announced after a defendant’s conviction has become final will not be applied”. Thus applications for habeas corpus based on a judicial decision subsequent to a conviction becoming final and not otherwise under direct appeal or review fall into the category of collateral review and therefore not entitled to rely on “new rules” of constitutional interpretation. [According to the Annotated Constitution “The only exceptions are for decisions placing certain conduct for defendants beyond the reach of the criminal law, and for decisions recognising a fundamental procedural right “without which the likelihood of an accurate conviction is seriously diminished. [Tague –v- Laine [1989] 489 U.S. 288].”

Canada
In Canada s. 52(1) of the Canadian Constitution Act, 1982 has a substantial correspondence to Article 50 of our Constitution in that it provides that any law: “… that is inconsistent with those provisions is, to the extent of such inconsistency, of no force or effect”.

As counsel for the respondent has pointed out the Canadian Supreme Court has, notwithstanding those provisions, asserted a jurisdiction to suspend a declaration of unconstitutionality and apply temporal limitations limiting or restricting altogether its retrospective effect. In R. –v- Bain [1992] 2 SER 679 which condemned aspects of the jury selection system the Court suspended its declaration for some six months.

In R. –v- Wigmarr [1987] I SER 246 the Canadian Supreme Court held that a decision determining the invalidity of a statute on unconstitutional grounds could not be relied upon in criminal cases previously decided which were not still pending before the Courts and which had been finally decided. In that case the Court stated:

“Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata; a matter once finally decided cannot be relitigated. Thus a person convicted … will not be able to reopen his or her case, unless of course the conviction is not final. In the Reference Re. Manitoba language rights … the Court observed that res judicata would even preclude the reopening of cases decided by the Courts on the basis of constitutionally invalid laws. This res judicata principle would apply with at least as much force to cases decided on the basis of subsequently overruled case-law”. (Emphasis added)

Comment
The foregoing case-law highlights the fact that other constitutional courts with similar or analogous powers to review the constitutionality or validity of legislation, including where the judicial decision in principle means that the legislative act was void ab initio, have found that the notion of complete or absolute retrospectivity is inherently incompatible with the broader notions of legal certainty and justice in an ordered society. In short, even allowing for sui generis aspects of each countries system the cases demonstrate that limitations on retrospectivity in such circumstances is generally consistent with the norms of constitutional adjudication.

Some other legal systems ensure, in different ways, that such an eventuality could not arise such as where a constitutional interpretation is binding only inter partes and does not have ergo omnes, or general effect. Others make express provision which permit courts, having regard to all the circumstances of the case, to make prospective rulings only (ex nunc) or to postpone to a later date the effects of a finding of invalidity on constitutional grounds (e.g. Germany, South Africa).

The question of retrospectivity in the form raised here is one which is material to all legal systems. The fact is that at no stage during the course of the hearing of this case was the Court’s attention drawn to any system of justice in which a finding that a law is unconstitutional, even where this is deemed to be so ab initio, meant that previous and final judicial decisions based on such a law must inevitably be considered unlawful and of no effect in law. I am not aware of any legal system that does so.

I will now turn to the particular constitutional aspects of this case.

The Constitution and Retrospectivity
Before addressing the case-law of this Court that is relevant to the issue in this case I would like to make some broader observations which relate to the constitutional context in which the issue falls to be decided.

There are two substantive provisions of the Constitution according to which a statute may be adjudged unconstitutional. Firstly, there is Article 15.4 which provides that the Oireachtas should not enact any law which is in any respect repugnant to the Constitution or any of its provisions and goes on to provide, in sub-paragraph 2, that “Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution … shall … be invalid”. It is under this provision that an Act enacted by the Oireachtas after the coming into operation of the Constitution may be declared invalid.

Secondly, there is Article 50 of the Constitution which is the provision pursuant to which a law enacted prior to the coming into operation of the Constitution may be declared not to have continued in force after that date because that Act, or some provision of the Act, is inconsistent with the terms of the Constitution.

This Article provides:

“50.1. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.” [Emphasis added]

Manifestly this Article was directed at maintaining continuity with regard to the laws of the State which were in force prior to the coming into effect of the Constitution.

It is relevant to note that the continued force in effect of all such laws is subject to two elements:
(a) The Constitution itself, and
(b) The extent to which they are not inconsistent with that Constitution.

The Irish language version is expressed in the same terms.

The arguments advanced on behalf of the applicant would seem to take account of one of these elements only as if the provision read ‘Subject to the extent to which they are not inconsistent with the Constitution’ – the laws in force shall continue to have effect.

It is a well-established precept that when this Court is interpreting any provision of the Constitution it interprets that provision in the context of the Constitution as a whole. The Constitution does not of course expressly say that but it is the logic of judicial interpretation which has consistently been applied for this Court. It is the teleological approach – a universally recognised method of interpreting constitutional and other legal norms.

In any event, the established interpretive approach of this Court means that the ambit and effect of the provisions of Article 50.1, like any other Article, fall to be considered within the rubric and scheme of the Constitution as a whole. This involves considering the objectives, principles and provisions of the Constitution and not just those found exclusively within the ambit of Article 50.1 (or Article 15.4).

For present purposes we are concerned with a pre-1937 statute, the Criminal Law (Amendment) Act, 1935. In Murphy –v- Attorney General (Supra) Henchy J. stated that “Such a declaration under Article 50.1 amounts to a judicial death certificate, with the date of death stated as the date when the Constitution came into operation”. It is a colourful statement, and I do not depart from its import so far as it goes and will later point to the distinction, by way of qualification to its import, which, inter alia, Henchy J. made as regards the effects of such a declaration. In a certain sense it is an abstract statement because the point was not relevant to the point being decided in the case which concerned a post-1937 statute. However, it is of course a correct statement of the law that a pre-1937 statute found inconsistent with the Constitution is deemed not to have entered into effect on the coming into operation of the Constitution. It is to be so deemed since in a certain sense it is a form of legal fiction, a well-known drafting device, because the statute in question may have been alive and kicking for 50 or more years as society generally and hundreds or even thousands of individuals relied upon it had their affairs and circumstances ordered in accordance with it. Again as Henchy J. at 315, pointed out, relying on a quotation, “The statue has taken its shape and can never go back into the quarry”.

It is important, therefore, to bear in mind that there are judicial dicta, of Henchy J. and others, which distinguish the retrospective effects of a decision from a declaration as such that an Act is unconstitutional ab initio (or inapplicable as and from the coming into force of the Constitution in 1937). I leave these aside for the moment in order to consider the implications for the constitutional order if one were to give effect to the approach adopted by counsel for the applicant namely that any case previously decided on foot of an Act found to be unconstitutional is itself void and of no effect.

Because the Courts may only address interpretive issues as they arise in cases before them (as a consequence of which the Constitution is interpreted incrementally over time) it means that the unconstitutionality of an Act may for the first time be decided many decades after its enactment. The Act will be deemed to have been void from the date of its enactment, or a pre-1937 Act to be ineffective from 1937, even though all actors in society may have presumed or assumed that the Act was lawful and effective and acted accordingly, including those disadvantaged by its operation. Citizens and State institutions will have ordered their affairs and established relationships and rights based on the law in force.

In accordance with the applicant’s submission everything done in the meantime pursuant to the impugned Act must be considered itself to be null and void. This is not a static proposition and of course, if valid, it applies equally, if and when, a pre-1937 Act is found in 10 or 30 or more years time to be inconsistent with the Constitution. Then everything done under that Act over a span of 100 years would have to be treated as void and unlawful.

Such an absolute logic of pure retroactivity would lead to all the vicissitudes which the common law system and the other systems referred to above eschewed by developing doctrines and rules limiting the retrospective effect of new precedent in respect of cases already finally decided including where a law was declared invalid ab initio.

In Murphy –v- The Attorney General (Supra) O’Higgins C.J., although he was in a minority as to his specific conclusions, correctly painted the effects of unlimited or absolute retroactivity observed:

“This in turn would mean that all actions and conduct directed or permitted by such a law would be deprived of all legal authority. Such actions and conduct may have involved an interference with constitutional rights, the prosecution, conviction and punishment of citizens for offences created by the law in question, the expenditure of public monies or the encouragement of innocent people to enter into obligations and to accept liabilities of a permanent nature. All of these various activities and the people involved in them would lose all legal protection and authority – the various actions taken emerging suddenly as serious wrongs against individuals and society and the persons who took them stand inculpable and amenable before the law”.

Certainly, issues concerning the constitutionality of statutes are on a plane higher than the mere common law, they concern questions fundamental to the rule of law, the protection of rights and the very framework within which, in the words of the preamble to the Constitution, “true social order is attained”. Normally those fundamental constitutional concepts, such as the rule of law, individual rights, justice and a social order based on that rule of law blend together so that the principles of constitutional justice to be applied to resolve issues can be readily deduced. On other occasions some of those considerations may be competing or even conflicting ones, where the Courts have to balance those different interests so as to do justice within the framework of the Constitution.

This is the task conferred on constitutional courts.

In this instance one may say in broad terms that there is a competing interest between the claim by the applicant that he stands convicted under a law which has subsequently been found to be inconsistent with the Constitution as from 1937, and the interest of justice, including the rights of the victim, where he was otherwise lawfully convicted of unlawful carnal knowledge of a 15 year old girl, in circumstances where, as his counsel acknowledges, the conviction and sentence were not tainted by any want of fairness or injustice.

Thus the effect of absolute retroactivity of such a judicial decision for which the applicant argues in a sense raises competing considerations which the Court has to address having regard to the provisions generally of the Constitution and what Henchy J. alluded to as transcendent constitutional considerations, the public interest, the common good and social order.

In McMahon –v- Attorney General [1972] I.R. 69 this Court found that certain provisions of the Electoral Act, 1923 were inconsistent with the Constitution guaranteeing a secret ballot in Oireachtas elections were inconsistent with the Constitution because of the manner in which the ballot paper and its counterfoil were numbered. In so finding Ó Dálaigh C.J., who delivered the majority judgment, observed

“In doing so I should note that it has been no part of the plaintiff’s case, either in this Court or in the High Court, that the validity of the last or any previous election has been, or can be, affected by the irregularity of which he has complained in these proceedings.”

Although neutral on that question the statement could be said, as the authors of JM Kelly’s The Irish Constitution have said, to contain some implicit assurance that this would not be the case. In any event no proceedings were ever brought challenging the legality of the previous or earlier elections. One could envisage a range of hypothetical counter-arguments to such a contention but assuming, for the sake of argument, that the electoral law was to be considered to be of no effect since 1937 then as a matter of abstract logic there would be no Oireachtas validly in being to propose a curative amendment to the Constitution or to call a new election in a manner consistent with the provisions of the Constitution. Suffice it to say for the moment that a Court addressing such an issue would perforce have to look at the Constitution as a whole in order to consider whether, in its terms, it intended such an effect or whether it permitted or required some exception or restriction on absolute retrospectivity. (Later in the de Burca case O’Higgins C.J. was, in an obiter dictum, dismissive of any retrospective consequences deriving from that case in the overriding interests of an ordered society.)

There is another aspect of the Constitution and constitutional interpretation which highlights the amplitude of the issue raised in this case. In Sinnott –v- Minister for Education [2001] 2 IR 545 I refer to the view that the Constitution may be viewed as a living document “which falls to be interpreted in accordance with contemporary circumstances including prevailing ideas and mores”. This was a reference to those provisions of the Constitution which might be said to have a dynamic quality of their own where they refer to concepts involving standards and values such as ‘personal rights’, ‘the common good’ and ‘social justice’, I cited Walsh J. in McGee –v- The Attorney General [1974] I.R. 287 where he stated “It is but natural that from time to time the prevailing ideas of [prudence, justice and charity] may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all times”. Similarly in The State (Healy) –v- Donoghue [1976] I.R. 325 O’Higgins C.J. observed that “… rights given by the Constitution must be considered in accordance with the concepts of prudence, justice and charity which may gradually change and develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas”. It is entirely conceivable therefore that an Act found to be unconstitutional in this the 21st century might well have passed constitutional muster in the 1940’s or 50’s. It would be impossible and absurd for the Court to enquire in and to identify the point in time when society could have been deemed to have evolved so as to call in question the constitutionality of an Act. The Court can only decide the issue on the basis of the facts as it finds them when a case is decided. It would be equally absurd to consider in such circumstances, a constitutional invalidity referable to present day circumstances, irrespective of whether the Act was pre- or post-1937, that all cases finally decided pursuant to it were nothing and of no effect because of the statute being deemed void ab initio, when conceivably it might have been considered valid in the 1950’s or later.

Absolute retroactivity based solely on the notion of an Act being void ab initio so as to render any previous final judicial decisions null would lead the Constitution to have dysfunctional effects in the administration of justice. In the area of civil law it would cause injustice to those who had accepted and acted upon the finality of judicial decisions. Rights which had become vested in third parties as a consequence of such decisions would be put in jeopardy. The application of a principle of absolute retroactivity consequent upon the unconstitutionality of an Act in the field of criminal law would render null and of no effect final verdicts or decisions affected by an Act which at the time had been presumed or acknowledged to be constitutional and otherwise had been fairly tried. Such unqualified retroactivity would be a denial of justice to the victims of crime and offend against fundamental and just interests of society.

[In addition to causing injustice it would undermine one of the fundamental objectives of the administration of justice, finality and certainty in justiciable disputes. As Hamilton C.J. observed in Re. Greendale Developments Ltd. (In Liquidation) (No. 3) [2000] I.R. 514 “… The finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of the law, and should not lightly be breached”.]

At no stage during the hearing of the appeal was it shown that any legal system in any modern democracy recognises or applies an unqualified retrospective effect of a judicial decision declaring a legislative measure to be unconstitutional where the measure is deemed invalid ab initio. Any such approach would lead to incoherence in terms of justice under the Constitution which the Courts, by virtue of Article 34, are under a duty to administer.

In my view when an Act is declared unconstitutional a distinction must be made between the making of such a declaration and its retrospective effects on cases which have already been determined by the courts. This is necessary in the interests of legal certainty, the avoidance of injustice and the overriding interests of the common good in an ordered society.

Such a distinction is consistent in my view with the basic norms of constitutional adjudication and is supported by judgments and judicial dicta in the case-law of this Court, to which I will now turn.

Irish case-law
The judicial dicta and conclusions in cases which have come before this Court and which touch on the question of retrospective effect of judicial decisions condemning a law for unconstitutionality in my view, support the principle of limited rather then complete or absolute retrospectivity.

It is true that the Court has not had to address the issue in the stark and direct terms in which it has been presented in this case. As the authors of J.M. Kelly: The Irish Constitution (4th Edition) perceptively observe “The question of the time from which a law, which has been declared inconsistent with or invalid under the Constitution, is to be declared a nullity and the closely related question of retroactive potential of such a declaration, are matters which for many years escaped scrutiny altogether and in the last 30 years or so have only been partially explored”.

I note in passing that the authors themselves make a distinction between the question of time from which a law is to be considered a nullity and the other, closely related, question of retroactive effect. I would also recall that the Court can only deal with questions as they are posed and the issue in this case has not heretofore arisen in such a direct form as in this case notwithstanding the range of Acts which have over the decades been declared unconstitutional. Indeed counsel could not refer to any case in the nature of a later collateral attack on a finally decided case ever having been brought. Perhaps the fact that no such issue in that form has arisen reflects the professional foresight of lawyers as to the prospects of success in the light of their perception of the meaning and effect which the Court was likely to give to the Constitution as a whole.

Nonetheless, it is not I think without significance that in those cases in which retrospectivity did arise there was never a finding of unrestricted retrospectivity of the kind argued for by the appellant in this case. On the contrary in each of the cases, for one reason or another, retrospectivity was limited.

de Burca –v- The Attorney General
In de Burca –v- The Attorney General [1972] I.R. 38 the plaintiff sought and obtained a declaration that certain provisions of the Juries Act, 1927 were inconsistent with the provisions of the Constitution, essentially on the ground that they effectively excluded women from sitting on juries in criminal trials and that that exclusion was based on sex alone. Towards the end of his judgment in that case, O’Higgins C.J., acknowledged that the implications of such a finding of unconstitutionality for the validity of the thousands of criminal jury trials which had been held since the enactment of the Constitution in 1937 caused him some concern. He pointed out that each jury had been fairly drawn from a panel all of whose members were eligible to be on the panel so that there could be no constitutional frailty. He acknowledged the fact may have been that the panel was wrongly restricted, or could have been challenged, but went on to state:

“However, this does not alter the fact that the trial was a trial by jury and no person served on such juries who was not eligible. In my view, an irregularity has taken place in the manner in which citizens have been called to jury service – in the same way as an irregularity took place in the manner in which ballot papers were numbered for parliamentary elections up to the decision in McMahon –v- Attorney General. In McMahon’s case the courts were not asked to entertain any suggestion that such irregularity invalidated previous elections nor, in my view, could such a submission have been successfully made. The overriding requirements of an ordered society would invalidate such an argument. In this instance, the same considerations apply”. (Emphasis added)

Although that view was obiter since an issue of retroactivity did not really arise in that case I think O’Higgins C.J. was entirely correct in saying that the problem nonetheless had to be analysed from the point of view of a coherent system of justice in an ordered society. In those observations O’Higgins C.J. made two points concerning retrospective effect. The first was peculiar to the particular case, namely, that whatever constitutional frailty attached to the manner of composing the jury panel, those who actually were on it were lawfully eligible to be on it. Walsh J. made largely the same point in his judgment, in a perhaps more direct way, when he said:

“If all the juries that were empanelled in the past and tried cases and gave verdicts were empanelled in accordance with the provisions of the Act, it means that nobody served on any of these juries who was not entitled by law to do so.”

Walsh J. certainly did not take the view that the Court’s declaration that the 1927 Act was not law since 1937 retrospectively undermined its application to the selection of juries in the meantime. Jurors empanelled under an Act were nonetheless lawfully entitled to act as jurors. Clearly he did not consider the application of the Act in previous cases null and of no effect.

The second point of O’Higgins C.J. was of more general application that is to say the need to subject the question of retroactivity to broader constitutional considerations such as the overriding requirements of an ordered society. This he saw as being relevant not only to the de Burca case but more generally such as in a case like the McMahon case where the tenet of absolute retrospectivity would not be a valid basis for calling in question the validity of all previous Oireachtas elections consequent upon the finding in that case.

The State (Byrne) –v- Frawley
The other members of the Court in the de Burca case were silent as to the question of retrospectivity but that issue was to be explicitly raised in the case which followed on from de Burca that is to say The State (Byrne) –v- Frawley (Supra).

Henchy J., who delivered the majority judgment of the Court was quite critical of and disagreed with the point made by O’Higgins C.J. and Walsh J. in the de Burca case to the effect that juries selected from a jury panel composed of persons who were lawfully eligible to be on the panel escaped constitutional frailty even though the exclusion of women meant they were composed in a manner inconsistent with the Constitution. He also described the dicta of O’Higgins C.J. and Walsh J. as obiter, which they indeed were, and which explains the silence of the other Judges on the question of retrospectivity in de Burca.

There may be some significance in the fact that despite his pointed criticism of the first point of O’Higgins C.J. in the de Burca case he made no criticism of the second point namely that in considering retrospective effect of such judgments the overriding requirements of an ordered society must enter into the equation.

The Byrne case was one in which applicant there sought an Order of habeas corpus pursuant to Article 40 of the Constitution on the grounds that his conviction in a criminal trial which took place in the immediate aftermath of the de Burca decision was invalid and of no effect since the jury had been selected under the 1927 Act declared to have been inconsistent with the Constitution and therefore consequently there was no such law in being at the time of his trial. This argument was rejected by the Court, as it had been by Walsh J. and O’Higgins C.J., for different reasons in their obiter dicta in de Burca itself.

I think counsel for the applicant is correct in submitting that the particular ratio upon which the Court based its decision to dismiss the application in the Byrne case does not apply to the circumstances of this particular case. As Henchy J. pointed out the applicant’s position in that case was “uniquely different from that of other persons convicted by a jury selected under the provisions of the Act of 1927”. Without going into the particular facts of the applicant’s position suffice it to say that Henchy J. in dismissing the application in concluded “Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary”. Three other members of the Court concurred with Henchy J.
Although the Court, in the majority judgment, clearly considered that it was not necessary to address the general question of retrospectivity given the particular facts of the case it nonetheless thought it important enough to state, even by way of obiter dicta, that there may be limitations on the retrospective effect of a declaration that an Act is unconstitutional, particularly as concerns previous decided cases. At p. 349 Henchy J. had this to say:

“As the United States Supreme Court has held in a number of cases, it does not necessarily follow that Court Orders lack binding force because they were made in proceedings based on an unconstitutional statute.”

Notwithstanding the allusion to a similar approach in the United States it is clearly intended to be a statement, albeit obiter, of the position in Irish law. I have no doubt it is a correct one.

That statement is underscored in the concluding paragraph of the judgment of the majority which states:

“In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist.”

I think these dicta can only have been intended as a shot across the bow of anyone contemplating challenging the “thousands” of jury criminal trial verdicts which were finally determined prior to the decision in the de Burca case. If it was, it was an effective one. As the historical record shows, however tempting it might superficially have seemed, there is no report of a single challenge to a jury verdict in a criminal trial which took place prior to the de Burca decision notwithstanding that provisions of the 1927 Act under which they were constituted was deemed never to have continued as law after 1937 by virtue of the Court’s declaration in de Burca.

Murphy –v- Attorney General
In this case the Court declared that certain taxation provisions of the Income Tax Act, 1967 were void ab initio and therefore never had the effect of law. Even though this case did not involve the retrospective effect of that declaration on a case already decided the Court nonetheless restricted the retrospective effect of its declaration so as to deny to the plaintiffs to the right to recover the income tax levied under an Act, deemed never to have had the effect in law, in respect of the years prior to the tax year 1978-9, the year in which they initiated their proceedings challenging the constitutionality of the provisions. They were confined to recovering the unconstitutionally levied taxes in respect of two tax years only, 1978-9 and 1979-80. It was also held by the Court that the decision could not have retrospective effect for the benefit of any other taxpayer except for those, if any, who had proceedings pending before the courts with a similar claim. As Henchy J. mentioned, it was understood that there were no such claims pending. The decision had of course prospective effect because the taxes in question could no longer be levied as and from the date of the decision.

Henchy J. was at pains to reiterate what he stated in his majority judgment in Byrne when he came to give judgment in Murphy –v- Attorney General. Having made the statement, so relied upon by counsel for the applicant, that a declaration under Article 50, s. 1 “amounts to a judicial death certificate” from the date when the Constitution came into operation, he immediately qualified the effect of such a declaration in the following terms:

“While a declaration under Article 50, s. 1, does not arise in this case, it is important to note, notwithstanding a judicial declaration of the demise in 1937 of a statute or statutory provision, it may be that, because of a person’s conduct, or because of the irreversible course events have taken, or for any one of a number of other reasons, what was done on foot of the condemned statute or statutory provision may not necessarily be relied on as a ground for a claim of nullification or for other legal redress: see the decision of this Court in The State (Byrne) –v- Frawley. In other words, a declaration under Article 50, s. 1, that a law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity. Once a finding is made under Article 50, s. 1, that, for want of consistency with the Constitution, a law ceased in 1937 to have the force of law, a declaration of such invalidity is a constitutional imperative. Whereas, the consequences arising from having acted on foot of or in pursuance of the statutory provision which is thus retrospectively been found to have lost the force of law in 1937 may, in certain circumstances, be held to be beyond the reach of legal action based on that invalidity.” (Emphasis added)

What Henchy J. clearly had in mind was a distinction to be drawn between the objective rule according to which a pre-1937 found to be inconsistent with the Constitution must be deemed not to have had effect after its coming into operation and the retrospective consequences of such a finding as concerns matters previously done over the years when the statute was de facto in force. This distinction has, in my view, even greater force where it concerns cases previously finally determined before the courts.

This distinction is also made by Griffin J. in his judgment in the same case when he stated, at 327:

“In my opinion, however, reliance cannot be placed on these cases for the purpose of interpreting the relevant provisions of our Constitution insofar as the time from which a statute, held by our Courts to be invalid, is to be construed (as distinct from the question as to what has been the effect of what may have been done under and in pursuance of the condemned statute).” (Emphasis added)

At p. 328 Griffin J. went on to state:

“The effect of a declaration under Article 50 is not that the condemned provision has ceased to be in force but that, as of the date when the Constitution came into operation, it was no time thereafter in force. But, as Mr. Justice Henchy has pointed out in his judgment, the 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.”

This reflects the view of this Court in that case and runs directly counter to any notion of complete or absolute retrospectivity of decisions argued for by the appellant.

Henchy J. was to return to this theme at p. 314 of his judgment in Murphy. After an erudite exposition as to why the Constitution must be interpreted as requiring that an Act of the Oireachtas found to be incompatible with it pursuant to Article 15 must be treated as void ab initio he went on to state:

“But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action: see for example the decision of this Court in The State (Byrne) –v- Frawley. While it is central to the due administration of justice in an ordered society that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, while legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there may be transcendent considerations which make such a course undesirable, impracticable or impossible.

Over the centuries the law has come to recognise, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitations, res judicata, or other matters (most of which may be grouped under the heading of public policy) may debar a person from obtaining a redress in the Courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations have not intervened …

For a variety of reasons, the law recognizes that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris.

…In this judgment I deliberately avoid any general consideration of the broad question as to when, and to what extent, acts done on foot of an unconstitutional law may be immune from suit in the Courts; … I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case.” (Emphasis added)

Although these dicta of Henchy J. in his majority judgment may be considered as obiter notwithstanding their contextual relevance to the nature of the issues arising in the Murphy case he has, in those dicta, emphatically rejected the notion that things done or decided under a statute which has been subsequently found to have been void and no effect at the time necessarily means that all that what was done or decided previously must be considered invalid, null or of no effect.

Having expressed the foregoing views he then went on to deal with the precise question raised in the Murphy case which he expressed to be “Notwithstanding the invalidity ab initio of the condemned sections, are taxes collected under then recoverable?”

He answered this question by stating “In this case, whether the claim be treated as one in quasi contract or as one in equity, I would consider the enforceable cause of action to have arisen at the beginning of the tax year 1978-9”. In doing so he limited their right to recoupment to two years only and held they had no right to recoup unconstitutionally collected taxes of any previous years.

Among the reasons which led him to exclude complete or absolute retrospectivity of a judicial decision on the constitutionality of a statute were ‘the compulsion of public order’, ‘the common good’, ‘the quality of legality – even irreversibility’ that attaches to that which has become inveterate or has been widely accepted and acted upon. He did not purport to set out all relevant factors but those which he did echo the sentiments of O’Higgins C.J. in the Byrne case when he spoke of “the overriding requirements of an ordered society”.

The Court in the Murphy case limited the plaintiffs to recovering the income as and from the year 1978-9, and not prior to that, because that was the first year for which they effectively objected to the flow of those taxes into the central fund. Henchy J. reasoned “Up to that year the State was entitled, in the absence of any claim of unconstitutionality, to act in the assumption that the taxes in question were validly imposed and … were liable to be expended … for the multiplicity of purposes for which drawings are made on the central fund of the State”. He concluded that any taxpayer who allowed his PAYE tax contribution to be deducted every week for the whole tax year “without bringing proceedings to assert the unconstitutionality of such deductions, should (in the absence of exceptional and excusing circumstances) be held barred from recovering the sums unwarrantedly collected during that tax year”. In preventing the plaintiffs recovering some of the unconstitutionally imposed taxes he acknowledged that “The primary purpose of an order of restitution is to restore the status quo, insofar as the repayment of money can do so”. That is certainly the primary redress in a direct action, which this was. However, he pointed out “But when, as happened here, the State was led to believe, by the protracted absence of a claim to the contrary, that it was legally and constitutionally proper to spend the money that is collected, the position had become so altered, the logistics of reparation so weighted and distorted by factors … that it would be inequitable, unjust and unreal to expect the State to make full restitution”. I would add in passing that this approach was approved by Keane J. in McDonnell –v- Ireland [1998] 1 I.R (in a case in which a claim based on a subsequent finding of unconstitutionality of a statute was dismissed) “I would also agree that, in any event, as was made clear in Murphy –v- the Attorney General … the fact that the provisions struck down were invalid ab initio does not have, as a necessary consequence, the vesting of a cause of action in the plaintiff”.

The most relevant point is that this Court in that case limited the plaintiffs’ rights to recover for past years, notwithstanding the unconstitutionality of the statute, for public policy reasons and to avoid the inequity and injustice which a decision based solely on the single tenet of absolute retrospectivity would bring about.

I think it is also important to note that Henchy J. found support for his conclusion in that case by comparable decisions from the United States and the Court of Justice of the European Communities. This was in support of the ratio of his decision which was the majority view of the Court. It was for that purpose that he quoted with approval the passage, which I have cited earlier in this judgment, from the decision of the Supreme Court of the United States in Chicot County Drainage District –v- Baxter State Bank (Supra). That supports the principle of a clear distinction between a finding that a statute is void ab initio by reason of its unconstitutionality and the retrospective effects of such a decision on other matters done and cases finally decided before such a finding.

The Court also saw in the case-law of the European Court of Justice “a cogent example of the principle that what has been done or left undone under a constitutionally invalid law may, in certain events, such as the evolution of a set of circumstances which it would be impossible, or unjust, or contrary to the common good, to attempt to reverse or undo, to have left beyond the reach of full redressive legal proceedings …” (Emphasis added)

This was again an explicit acknowledgment by this Court that a judgment condemning a statute for being inconsistent with or contrary to the Constitution does not mean that all which was done or decided under that statute prior to the decision on constitutionality is in all circumstances void and of no effect. It is a principle which is, for the reasons indicated in the various judicial dicta which I have cited, consistent with the Constitution as a whole, the common law dimension of our legal system and the legal systems of many other countries in which the courts have the same or an analogous power of judicial review of the validity of laws.

McDonnell –v- Ireland
McDonnell –v- Ireland (Supra) was the case in which the plaintiff forfeited his position in the Civil Service under s. 34 of the Offences Against the State Act, 1939 with effect from 30th May, 1974 as a result of being convicted of membership of the IRA. In July 1991, in Cox –v- Ireland [1992] 2 I.R. 503 this Court decided that s. 34 of the Offences Against the State Act, 1939 was unconstitutional. As a result, Mr McDonnell brought proceedings claiming that his purported dismissal was unconstitutional and of no legal effect since the statute was void ab initio and that he was entitled to damages for breach of his constitutional rights including loss of income, pension and gratuity entitlements. His claim was dismissed in the High Court and dismissed unanimously on appeal to this Court. I have already cited
Keane J.’s (as he then was) expression of agreement in his judgment of a dictum of Henchy J. in the Murphy case. Although most, if not all, of the Judges expressed doubts concerning the nature and import of his cause of action (and indeed whether he had one at all), the Court in general found that it could dispose of the appeal by applying the statute of limitations. However, it is the judgment of O’Flaherty J. in that case which I think is of particular relevance to the issue in this case.

O’Flaherty J., having cited from the judgments of Henchy J. and Griffin J. in Murphy –v- The Attorney General, went on to state:

“The correct rule must be that laws should be observed until they are struck down as unconstitutional. Article 25.4.1° of the Constitution provides that:

“Every Bill shall become and be law as on and from the day on which it is signed by the President …”

and that, unless the contrary is expressed, that law is effective from that day forth. Following signature by the President, a public notice is published in Iris Oifigiúil stating that the Bill has become law; (Article 25.4.2°).

From that date, all citizens are required to tailor their conduct in such a way as to conform with the obligations of the particular statute. Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold “the Constitution and the laws”; the judge cannot have a mental reservation that he or she will uphold only those laws that will not someday be struck down as unconstitutional. We speak of something as having “the force of law”. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by “the reality of situation” (to adopt Griffin J.’s phrase), should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy –v- The Attorney General [1982] I.R. 241 as well as in Cox –v- Ireland [1992] 2 I.R. 503.”

This statement of the law I am quite satisfied is correct. It is the logical and ineluctable application of the principles and considerations set out in the judgment of this Court in Murphy and indeed other judicial dicta which I have cited.

It follows from the principles and considerations set out in the cases which I have cited that final decisions in judicial proceedings, civil or criminal, which have been decided on foot of an Act of the Oireachtas which has been relied upon by parties because of its status as a law considered or presumed to be constitutional, should not be set aside by reason solely of a subsequent decision declaring the Act constitutionally invalid.

The parties have been before the Courts, they have, in accordance with due process, had their opportunity to rely on the law and the Constitution and the matter has been decided. Once finality has been reached and the parties have in the context of each case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful.

Save in exceptional circumstances, any other approach would render the Constitution dysfunctional and ignore that it contains a complete set of rules and principles designed to ensure “an ordered society under the rule of law” in the words of O’Flaherty J.

I am quite satisfied that the Constitution never intended to visit on that ordered society the potential unravelling of judicial decisions over many decades when a particular Act is found unconstitutional solely on the consideration of the ab initio principle to the exclusion of all others.

Before coming to the general rule which in my view should apply I should perhaps say, although it hardly needs saying, that this could not affect the “primary redress”, referred to by Henchy J. in Murphy, whereby the Courts must, in a direct challenge to an Act, declare it to be unconstitutional where it so finds irrespective of the consequences. As Walsh J. stated in de Burca –v- Attorney General (at 72) “if an infringement of the Constitution were to continue long enough, the cost of correcting it might be great, but that is not a reason for perpetuating it” (Emphasis added). That is the primary redress. In a primary or direct action the question of retrospective effect on a previous and finally decided case does not arise.

As I have made clear we are addressing here the question of absolute or automatic retrospectivity on previously decided cases since that is the essential premise of the applicant’s argument. If one is to qualify such retrospective effect it goes without saying that it must be done in a manner and to an extent which is consistent with constitutional justice including the fundamental rights of individuals. There is no doubt that where to draw the line in limiting retrospective effect is a difficult question for Courts. One will not find a simple formula for all circumstances or all classes of cases, even in those countries such as those which I have mentioned, which make express provision for limiting retrospectivity or in other words the temporal affects of judgments. It is a complex question often resolved on a case-by-case basis, as has been also pointed in a number of the cases of this Court which have been referred to.

Justice Cardozo having raised a question as far back as 1921 as to where a line, limiting retrospectivity, might be located expressed the view that such location would be governed, inter alia, not “by the fetish of some implacable tenet”, but by considerations of “the deepest sentiments of justice”. I would agree and certainly not solely by an implacable application of a tenet such as absolute retrospectivity.

This is not just a modern approach. Cicero reports the maxim “Summum ius summa iniuria” – ‘the strictest application of the law is the greatest injustice’.

Conclusion
In the light of the considerations outlined above, the judgments and dicta of this Court to which I have referred, I am satisfied that the Constitution permits, if not requires, a distinction to be made between a declaration of invalidity and the retrospective effects of such a declaration on previous and finally decided cases.

There are transcendent constitutional reasons why a declaration of constitutional invalidity as regards a statute should not in principle have retrospective effect so as to necessarily render void cases previously and finally decided and determined by the courts, which reasons include the interests of the common good in an ordered society, legal certainty and the need to avoid the incoherence which would be brought to the system of justice envisaged by the Constitution if any other approach were adopted.

I am reinforced in that view by the fact that such a principled approach is consonant with the general principles of constitutional adjudication and interpretation in other legal systems generally but particularly in those where a judicial declaration of invalidity of a law also applies ab initio.

The General Principle
In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.

I do not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court declares a statute to be unconstitutional, or some extreme feature of an individual case, might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice, that verdicts in particular cases or a particular class of cases be not allowed to stand.

I do not consider that there are any grounds for considering this case to be an exception to the general principle. Mr. A., like all persons who pleaded guilty to or were convicted of an offence contrary to s. 1.1 of the 1935 Act had available a full range of remedies under the law. They could have sought to prohibit the prosecution on several grounds including that the section was inconsistent with the Constitution. Not having done so they were tried and either convicted or acquitted under due process of law. Once finality is reached in those circumstances the general principle should apply.
Before concluding I should make some brief observations on the essentials of the decision the High Court in this case.

The Judgment of the High Court
In her decision in this case the learned High Court Judge focused on the principle that any pre-1937 statutory provision inconsistent with the Constitution shall not have force and effect as and from the coming into operation of the Constitution in 1937. She referred in particular to the obiter dictum of Henchy J. that a declaration under Article 50.1 “amounts to a judicial death certificate” as and from the coming into operation of the Constitution.

She however then went on to observe “Apparently, there is no decided case on the effect of a declaration that a pre-Constitution is inconsistent with the Constitution”. In doing she acknowledged the distinction between a declaration that a pre-1937 Act is inconsistent with the Constitution and the effect of such a declaration. As she pointed out the issue was considered by this Court in Murphy –v- The Attorney General. However I do not feel that she gave sufficient consideration or weight to the words of Henchy J. which, at the expense of repeating previous citations, immediately followed his phrase just quoted above he went on to state:

“While a declaration under Article 50, s. 1, does not arise in this case, it is of importance to note that, notwithstanding the judicial declaration of the demise in 1937 of a statute or a statutory provision, it may be that, because of a person’s conduct or because of the irreversible course events have taken, or for any one of a number of other reasons, what was done on foot of the condemned statute or statutory provision may not necessarily be relied on as a ground for a claim for a nullification or for other legal redress: see the decision of this Court in The State (Byrne) –v- Frawley.”
The Byrne case, it will be recalled, was one in which Mr. Byrne, the applicant, also sought an order for habeas corpus on the grounds that his trial and conviction had been fundamentally flawed because of a previous declaration by this Court that certain provisions of a pre-1937 Act had been found to be inconsistent with the Constitution. It is true, as I have already pointed out, that Mr. Byrne was refused relief in circumstances based on the facts of that case but Henchy J. also pointed out, in the context of an application to set aside the criminal conviction in that case that “… it does not necessarily follow that court orders lack binding force because they were made in proceedings based on an unconstitutional statute”.

Having referred to The State (Byrne) –v- Frawley in the Murphy case Henchy J. then went on to say:

“In other words, a declaration under Article 50, s. 1, that a law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity. Once a finding is made under Article 50, s. 1, that, for want of consistency with the Constitution, a law ceased in 1937 to have the force of law, a declaration of such invalidity is a constitutional imperative. Whereas, the consequences arising from having acted on foot of or in pursuance of the statutory provision which has thus retrospectively been found to have lost the force of law in 1937, may in certain circumstances, be held to be beyond the reach of legal action based on that invalidity.”

The learned trial judge sought to distinguish the views expressed by Henchy J. on limitations on the retrospective effect of a declaration of invalidity by observing that in this case she was not concerned with a civil form of legal redress such as for wrongful imprisonment. It appears that it was for this reason that she did not consider or analyse the broader constitutional considerations which may affect the question of retrospective effect on cases already finally decided, criminal as well as civil. Many of these considerations have already been referred to in judicial dicta cited elsewhere in this judgment. In adopting this approach it appears to me that the learned High Court Judge conflated the questions of declaration of inconsistency and the effect of such a declaration, in particular as regards cases already finally decided by the courts. It would appear that these considerations may not have been addressed with the same depth and breadth as they were by counsel in the appeal before this Court. For the reasons set out in this judgment I am of the view that the approach adopted by the learned trial judge was not the correct approach.

The above are the reasons for the Order of this Court made on 2nd June, 2006 in this case, namely that the appeal be allowed on the grounds that A.’s detention must be considered to be lawful and accordingly the he be re-arrested to serve the remainder of his sentence.

Reasons delivered on the 10th day of July, 2006 by Denham J.


This case raises the issue of the general application retrospectively of a judicial decision declaring that a law is invalid having regard to the provisions of the Constitution. I am satisfied that there is no principle of retrospective application generally of a declaration of unconstitutionality in our jurisprudence. On the contrary, outside the litigation which sought the declaration, declarations of unconstitutionality have not been applied retrospectively. While this has been the practice, the principle of law has not to date been the subject of an express decision of the Supreme Court.
The Constitution of the Irish Free State "was something different . . . it derived from another line of thought", as Kennedy C.J. wrote in the foreword to The Constitution of the Irish Free State by Leo Kohn. The Constitution of the Irish Free State, 1922 was a step toward the independent State of Ireland. Subsequently, in the Constitution of Ireland, 1937, further new constitutional foundations were laid. While the common law was retained, in 1937 the organs of State were established and new fundamental principles stated in the Constitution.
Many of the principles set out in the Constitution of 1937 were ahead of their time. It was a prescient Constitution. Thus, the Constitution protected fundamental rights, fair procedures, and gave to the Superior Courts the role of guarding the Constitution to the extent of expressly enabling the courts to determine the validity of a law having regard to the provisions of the Constitution. Over the succeeding decades international instruments, such as the United Nations Charter and the Universal Declaration of Human Rights, proclaimed fundamental rights and fair procedures, and it became established that in a democratic state constitutional courts should have the power to protect fundamental rights, including due process, even to the extent of declaring legislation to be inconsistent with the Constitution and to be null and void.
Ireland lead the common law world in 1937 by expressly stating in the Constitution that the jurisdiction of the Superior Courts shall extend to the question of the validity of any law having regard to the provisions of the Constitution. This, perhaps more than any other aspect of the Constitution, signalled the nature of the State, its divergence from the system of government in the United Kingdom, and the parallels which may be drawn with the Constitution of the United States of America.
The power to review the constitutionality of legislation expressly given by the Constitution to the Superior Courts was a novel aspect of the Constitution in 1937. No such power existed expressly elsewhere in common law jurisdictions, such as the United Kingdom, Australia, or Canada. While such a power existed in the United States of America it was not expressly stated in the Constitution of the United States, but rather it was found to be inherent by the Supreme Court of the United States: Marbury v. Madison (1803) 5 U.S. 137. Consequently, Ireland, in 1937, led the common law countries by giving such a power expressly to the Superior Courts.
This power of review of the constitutionality of law by the Superior Courts is an aspect of the separation of powers. In this design of government the three great organs of State (the legislature, the executive and the judiciary) were each given constitutional powers and duties. There are checks and balances upon the powers of each branch of government which create a healthy tension between the three great organs of State, so as to achieve a balanced government which is to the advantage of the people.
One of the important powers given to the Superior Courts is that of review of the constitutionality of law. The judicial power of constitutional review is exercised carefully by the courts, as may be seen from the jurisprudence which has emerged in this State. Constitutional principles have been developed which relate to the exercise of this power and duty. Thus the presumption of constitutionality was recognised. In Pig Marketing Board v. Donnelly (Dublin) Ltd [1939] I.R. 413 at p. 417 Hanna J. stated:
"When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representative of the people, is presumed to be constitutional unless the contrary is clearly established."

This principle was explained by O'Byrne J. in Buckley & Ors v. The Attorney General [1950] I.R. 67 at p. 80:
". . . [it] springs from, and is necessitated by, that respect which one great organ of State owes to another."

Further, the concept was developed that a court should not enter upon the question of the constitutionality of a law unless it is necessary for the determination of the case before it: The State (Woods) v. Attorney General [1969] I.R. 385 at p. 390.
Also, it is an established principle that law remains constitutional until it is declared to be unconstitutional. Law is relied upon as valid and is the foundation upon which society proceeds. Personal decisions and circumstances proceed on that basis, institutional planning is organised on that basis, and the Government, including the Revenue Commissioners, and the State, advance on the acceptance that the law is valid.
In exercising the jurisdiction of determining the validity of a law the date of the legislation is relevant. If it is a statutory law post 1937 then Article 15 governs and any declaration of unconstitutionality renders it null and void ab initio, from the date of the purported legislation. If it is statutory law prior to the Constitution of Ireland, 1937 then Article 50 is applicable and the law may be declared to be inconsistent with the Constitution and not to have been continued in force by the Constitution and, consequently, no matter what the date of such legislation, it is deemed unconstitutional as of 1937. Thus, in relation to both pre and post 1937 legislation, a law may be declared void which has been acted upon for many years.
In relation to both types of legislation, both pre and post 1937, no principle of retrospective application of unconstitutionality has been developed. The precise detail of the application of the judgment may be addressed in the judgment itself, or by subsequent queries raised by a party in relation to the judgment, or by subsequent cases.
There have been decisions which have touched upon the issue of the application of a declaration of unconstitutionality outside the case itself or related litigation. In de Búrca v. Attorney General [1976] I.R. 38 the Supreme Court, on the 12th December, 1975, declared that the provisions of the Juries Act, 1927, to the extent that they required a property qualification, were not consistent with the Constitution and were not continued by Article 50 of the Constitution. Further, that the provisions of the Juries Act, 1927, to the extent that they extended exemptions from jury service to all women, were not consistent with the Constitution and were not continued by Article 50 of the Constitution. However, this did not create an avalanche of applications in respect of previous jury decisions. There was no releasing of prisoners who had been found guilty and convicted by such juries since 1937.
Nor was there a general retrospective application of unconstitutionality in Murphy v. The Attorney General [1982] I.R. 241. In Murphy this Court held that the provisions of sections 192 - 197 of the Income Tax Act, 1967, by providing for the aggregation of earned incomes of married couples, and thus imposing upon them tax at a higher rate, were repugnant to the Constitution and invalid. On behalf of the Government this Court was asked: (a) whether the impugned sections were invalid ab initio or had only become invalid as and from the date of the pronouncement of their invalidity by the High Court or by the Supreme Court, and, (b) the extent of the relief to which the plaintiffs were entitled in respect of tax overpaid by them pursuant to the impugned sections. This Court held that (a) the effect of the decision of the Court was that the sections were invalid ab initio and had never had the force of law; (b) that the date from which the plaintiffs were entitled to be repaid the sums collected from them by way of tax invalidly imposed (which had been years) was the first day of the financial year immediately succeeding that in which they had challenged the validity of the imposition of the tax in question, namely the 6th April, 1978; (c) that, as until that date the State had been entitled to act and to expend the revenue which it had acquired from the tax in question on the bone fide assumption, contributed to by the absence of objections on the part of any taxpayer, that such tax had been validly imposed and such revenue properly acquired. The plaintiffs were the only tax payers entitled to maintain a claim for restitution of tax in pursuance of the Court's decision, unless proceedings had already been instituted by any other taxpayer challenging the validity of the sections impugned in the proceedings. Thus, this decision on unconstitutionality did not render the State liable to repay all excess monies gathered, bone fide, by the State, since 1967, to the plaintiffs, or to the many effected married couples. There was no retrospective application of unconstitutionality.
The issue of the retrospective application of declarations of unconstitutionality was the subject matter of obiter dicta in several of the judgments. Having considered the judgment of the E.E.C. Court in Defrenne v. Sabena [1976] 2 CMLR 98. Henchy J. stated, at p. 324:
". . . it stands as a cogent example of the principle that what has been done or left undone under a constitutionally invalid law may, in certain events, such as the evolution of a set of circumstances which it would be impossible, or unjust or contrary to the common good, to attempt to reverse or undo, have to be left beyond the reach of full redressive legal proceedings and have to be treated as an exemplification of the maxim communis error facit ius."

Griffin J., at p. 328, pointed out:

"The effect of a declaration under Article 50 is not that the condemned provision has ceased to be in force but that, as of the date when the Constitution came into operation, it was at no time thereafter in force. But, as Mr. Justice Henchy has pointed out in his judgment, the 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."

and at p. 331:
"When a statute has been declared to be void ab initio, it does not necessarily follow that what was done under and in pursuance of the condemned law will give to a person, who has in consequence suffered loss, a good cause of action in respect thereof. Notwithstanding the invalidity of the statute under which such act was done, the Courts recognise the reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the invalid statute, . . . the egg cannot be unscrambled."

Thus while a law may be void ab initio, the application of that decision retrospectively is a different and additional matter for consideration. No principle of the general retrospective application of declarations of unconstitutionality has been developed in our jurisdiction. Instead the Courts in practice have excluded such situations and queried any other possible approach.
Not only is there no principle of retrospective application of unconstitutionality, there have been precedents expressly limiting the temporal effect of a court ruling. For example in People v Finn [2001] 2 IR 25, this Court held that the system of having review dates in sentences violated Article 13.6 of the Constitution. However, Keane C.J. stated that this should not be taken as impugning the validity of such sentences imposed by trial judges in cases which had already come before the courts. The court, in other words, held that there was no general application retrospectively of the declaration of unconstitutionality.
Thus we see emerging a principle that declarations of unconstitutionality apply to the party in the litigation in which the decision is made, and prospectively, but that it does not apply retrospectively. The cases to date have inherently applied the principle that there is no application retrospectively of a declaration of unconstitutionality outside the litigation, or related litigation, which raised the issue of the validity of the law. This case is the first time that the Court has been requested to state the principle expressly. However, the principle has been a matter of legal practice for decades.
At the core of the jurisprudence is the duty of the courts to administer justice. The courts do not apply a cold logic in a rule making vacuum. Rather, the courts administer justice to promote the common good. Thus, for example, in Blake v. The Attorney General [1982] IR 117 this Court held that parts II and IV of the Rent Restrictions Act, 1960 were repugnant to the provisions of the Constitution. In giving the judgment of the Court O'Higgins C.J. pointed out that the effect of declaring the law to be unconstitutional meant that many thousands of families, who had relied upon the protection of their tenancies by the legislation, no longer had that protection. He stated that he assumed that the matter would receive the immediate attention of the Oireachtas, that new legislation would be enacted speedily, and that pending new legislation it might be possible for some landlords and tenants to reach agreement. While not wishing to pre-empt litigation he stated at p. 142 that the Court:
". . . desires to emphasise, however, that it is the duty of the Courts to have regard to the basic requirements of justice when exercising their jurisdiction. In this regard, in the reasonable expectation of new legislation, when a decree for possession is sought, the court should, where justice so warrants, in a case where the now condemned provisions of Part IV would have given a defence against the recovery of possession, either adjourn the case or grant a decree of possession with such stay as appears proper in the circumstances."

Thus while the law was declared void, the Court went on to address the application of that decision. The Court did not suspend the application of the decision, however it made suggestions which, in effect, addressed the time pending new legislation.
The concept of justice is at the core of our organised society. This was referred to by O'Higgins C.J. in The State (Byrne) v. Frawley [1978] I.R. 326 where a jury had been selected under provisions of the Juries Act, 1927 which sections were subsequently declared to be inconsistent with the Constitution. However, the applicant had not objected to the jury. O'Higgins C.J., at p. 341, drew attention to the situation which would exist if the applicant succeeded. He stated:
"It seems to me proper to add that if the contrary be the case and by reason of the wrongful exclusion of qualified persons from the panel, every jury then selected is to be regarded as unconstitutional and invalid, then certain very serious consequences would follow. In the first place it would seem to me to follow with inexorable logic that each trial held with such a jury would have been a nullity and that sentences imposed and carried out, including sentences of death, would have been imposed and carried out without legal authority. In addition, even those who won acquittals from such juries could find that they were still in jeopardy because their trials were regarded as a nullity. Could organised society accept such a conclusion?"

This question was rhetorical, of course organised society could not accept such a conclusion. Nor could or have the Courts.
The Constitution established the power of constitutional review by the Superior Courts which, as with all powers and duties, is required to be performed constitutionally. Thus, it must be exercised in a manner consistent with the Constitution, harmoniously with other (and sometimes conflicting) rights and principles, and "seeking to promote the common good": as the Preamble states.
In this case, and in most cases, the issue of the validity of a law arises in relation to a law which has been treated as valid for years. The Court may determine that the law is invalid either from 1937 or from the date of the purported legislation, depending on the date of the statute in issue. Either way a law which has been applied as a valid law for many years may be declared to be null and void. This power of the Superior Courts is exercised in the context that neither the law nor the Constitution is frozen in 1937. The Constitution is a living instrument. Concepts are before the courts today in forms not envisaged in 1937. Principles and rights have developed over the last seventy years, from roots in national society, the European Community, and international documents.
Consequently, Acts passed by the legislature many decades ago may be, as with the Juries Act, 1927, the subject of a declaration that it was not carried over by Article 50 of the Constitution. It is a declaration of our time. It is a declaration achieved by a party or parties after litigation. While the declaration is that the law is void ab initio, or not carried forward by Article 50 of the Constitution, that declaration itself does not address the issue of its application.
The issue, the retrospective application of a declaration that a law is inconsistent with the Constitution to litigants other than the party who sought such a declaration, has been the subject of judicial decisions in other common law States and a sophisticated jurisprudence is developing in several jurisdictions. Such a jurisprudence is appropriate for government in a modern democracy. Of particular relevance to our analysis is the law in Canada where the Constitution is similar to the Constitution of Ireland.
In Canada section 52(1) of the Constitution Act, 1982, provides:
"The Constitution of Canada is the supreme law of Canada, and any law that is inconstant with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

Article 50 (1) of the Constitution of Ireland, 1937 provides:
"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall contrive to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

Thus there is a significant similarity between the words in the two Constitutions. Both refer to laws inconsistent with the Constitution; and both give the power expressly to the relevant courts to declare a law to be consistent or inconsistent with the Constitution. Thereafter the issue of the application of such an order arises in both States. While this has been a matter dealt with in practice by our courts and inherently in certain cases it has been the subject of express judicial decisions in Canada.
This has been so especially in relation to the Canadian Charter. On many occasions the Supreme Court of Canada has expressly addressed the issue of the application, the temporality, of a declaration. In R. v. Bain [1992] 1 S.C.R. 91 the majority of the Supreme Court of Canada struck down a portion of the Criminal Code which allowed the prosecutor, but not an accused, to 'stand by' prospective jurors. The provisions were held to be contrary to the guarantee of a fair trial because they gave the prosecutor more influence than an accused in the selection of a jury. However, the declaration of invalidity by the Canadian Supreme Court was suspended by that Court for six months in order to 'provide an opportunity for Parliament to remedy the situation if it considers it appropriate to do so'. Thus, not only was there no retrospective application of unconstitutionality but the application was postponed prospectively for six months. However, no reasons were given. This was remedied in a later case.
In Schachter v. Canada [1992] 2 S.C.R. 679 the Supreme Court of Canada proceeded on foot of a concession by the Government of Canada and held that a provision of the federal Unemployment Insurance Act, 1971 offended the guarantee of equality because the provision allowed more generous child care benefits to adoptive parents than to natural parents. Lamer C.J., for the majority, pointed out that striking down the act would have the result of denying the statutory benefit to adoptive parents and grant no rights to natural parents. He stated:
"The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits".

In other words Canada is developing a jurisprudence of suspended declarations. This is not an issue before the Court in this case. But the rationale for such an approach is fundamental and arises out of the constitutional exercise of the constitutional power and duty. It assists in the analysis of the power. It raises for consideration the argument that a Court may consider it appropriate in certain extreme circumstances to suspend a declaration that a law is unconstitutional so that the Oireachtas might address the issue if it wished.
Obviously such a suspended declaration is in aid of organised society as it enables the legislature address the issue. It also enables dialogue in the community as to the best way to proceed. In Corbiere v.Canada (Minister of Indian and Northern Affairs) [1999] 2 S.C.R. 203 L'Heureux-Dubé J. pointed out that there were a number of ways in which the residence requirement at issue could be corrected and that the best solution would be that determined by Parliament after consultation with the Aboriginal people affected by the decision. In her view the principle of democracy should guide the court, that principle 'encourages remedies that allow the democratic process of consultation and dialogue to occur'. The eighteen months suspension of the declaration of invalidity in that case enabled Parliament have the time to develop and enact a new voting regime, should it choose to do so.
This rationale strikes a familiar note in this jurisdiction. Ireland is a democratic State: Article 5. The terms of the Constitution giving to the Superior Courts the power to review legislation gives rise to the single remedy of a declaration of invalidity. While the Irish Constitution and the Canadian Constitution expressly contemplate as a remedy an order of invalidly and thus that the law was void, to exercise such a power constitutionally the Court has inherent power to administer justice. The jurisprudence which has been developed in Canada in relation to the Charter has addressed the issue of the application of such power.
I have referred to Canadian jurisprudence relating to their Charter, and accept that such case law may not be referable or persuasive to our Constitution, however it illustrates a developing jurisprudence and highlights Constitutional law consistent with a modern functioning democracy. In accordance with Article 15.4, a declaration of unconstitutionality of an Act of the Oireachtas renders the Act void ab initio. Pursuant to Article 50.1, a declaration that a statute is inconsistent with the Constitution means that it was not carried over by the Constitution and is null and void since 1937. However, the declaration of invalidly of a law and any order relating to the application of that declaration are two quite separate matters, two different issues. The inherent jurisdiction of the Superior Courts to administer justice is applicable to the decision on both issues. Consequently, the appropriate application of an order may be considered by a court in all the circumstances of the case, for the purpose of doing justice. While it has never been so decided, and it would require a full argument, it appears to me that the issue of additional remedies in relation to the application of such a declaration, for example the suspension of an application of a declaration of invalidity, could be raised in our courts.
The principle of law is that a declaration that a law is unconstitutional applies in the litigation in which the issue arose, and prospectively, there is no general retrospective application of such an order. However, I do not exclude the possibility that an exception may arise where in wholly exceptional circumstances the interests of justice so require.
The issue of the retrospective application of a declaration of unconstitutionality has arisen as a consequence of C.C. v. Ireland and Ors., (Unreported, Supreme Court, 23rd May, 2006). C.C. was charged with four offences contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935, which states:
"Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years."

The penalty aspect of the clause was amended by the First Schedule of the Criminal Law Act, 1997, but this was not a relevant factor.
C.C. wished to raise the defence of mistaken belief as to the age of the person with whom he was charged of having carnal knowledge and he brought judicial review proceedings seeking:
(a) A declaration that a reasonable belief on the part of a defendant that the alleged injured party was over the statutory age constituted a defence to a charge under s. 1(1) of the Act of 1935.
(b) A declaration, in the alternative, that the exclusion of the defence of mistake as to age is repugnant to the Constitution and that if the offence created by s. 1(1) of the Act of 1935 is an offence of strict liability, that provision is inconsistent with the Constitution.

On the 12th of July, 2005, this Court, by a majority, held that the defence of mistake as to age was not open to C.C. on s 1(1) of the Act of 1935. On 23rd May, 2006, this Court held that as the defence of mistake as to age was not open to C.C., as it was held to be an offence of strict liability, it was inconsistent with the provisions of the Constitution.
Subsequently this applicant brought habeas corpus proceedings seeking his release on the basis that he was in custody in respect of an offence not known to law.
The facts of the applicant's case are that on the 24th November, 2004, he was sentenced to a term of imprisonment of three years to date from the 8th November, 2004, at the Dublin Circuit Criminal Court for the offence of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935. The decision of C.C. v. Ireland and Ors., which declared that s. 1(1) of the Act of 1935 was inconsistent with the Constitution, was relied upon. It was submitted that the applicant was in custody in respect of an offence not known in law. The High Court ordered his release stating that in accordance with the decision of this Court s. 1(1) of the Act of 1935 ceased to have legislative existence in 1937. The High Court then considered the consequences, stating:
"In this case, the applicant is detained on foot of a conviction for an action which was accepted by the applicant and by the People through the relevant State authorities, including the Director of Public Prosecutions, to be an offence on 15th June, 2004 but which we now know, by reasons of the declaration made by the Supreme Court last week, was not an offence either when the action occurred or when the applicant was convicted or sentenced.
. . . the only consequence of the declaration of the inconsistency of s. 1(1) with the Constitution with which I am concerned on this application is whether it has rendered the detention of the applicant unlawful as of now."

For the purpose of the application the following facts were agreed: (a) that the date of the alleged offence was 18th May, 2003, (b) that the applicant's date of birth is 25th April, 1965, so that he was 38 years of age at the date of the alleged offence; (c) that the complainant's date of birth is 21st August, 1990, so that she was 12 years of age at the date of the alleged offence; and (d) that at the date of the alleged offence the applicant knew that the complainant was under the age of 15 years.
It was conceded that the applicant would not have had locus standi to challenge the constitutionality of s. 1(1) of the Act of 1935 before the C.C. decision. The High Court concluded:
"The fact that the declaration rendered the applicant's detention unlawful may have the appearance of a "windfall bonus" for the applicant. Be that as it may, in my view, his detention was rendered unlawful by the declaration and cannot continue. Not being satisfied that the applicant is being detained in accordance with the law, I direct his release from detention in Arbour Hill Prison."

The Governor appealed against the judgment and order of the High Court and consequently the issue of the retrospective application of a declaration of unconstitutionality has arisen before this Court.
Conclusion
The principle of judicial review of the constitutionality of a law by the Superior Courts was a novel aspect of the Constitution of Ireland, 1937. Ireland led the common law world by expressly incorporating this power into the Constitution. Such a power carries duties. Over the years the courts have developed constitutional principles and presumptions relevant to the exercise of such a constitutional power and duty. No principle of retrospective application of a declaration of unconstitutionality has been developed. To the contrary, the application of declarations of unconstitutionality has been limited to the parties, or identified litigants, and prospectively.
There is no express principle of retrospective application of unconstitutionality in the Constitution. I am satisfied that no such principle may be implied into the Constitution. Such a principle would bring disorder into society disproportionate to the benefit to be achieved. Such a principle would render the express power given to the Superior Courts a tool of chaos.
The issue of the general retrospective application of the declaration of unconstitutionality was not dealt with in C.C. v. Ireland. Nor was there any query raised subsequently, by any party, about the application of the judgment. Instead this issue has been raised in subsequent, unrelated, litigation, this case.
Prior to the declaration of its unconstitutionality last May s.1 (1) of the Criminal Law (Amendment) Act, 1935 was treated as the law of the land. While the court order is to the effect that the section was not continued in force by Article 50(1) of the Constitution, and so it is deemed invalid since 1937, this does not reflect the reality of the situation since 1937. The reality is that it was assumed that the law was constitutional. It has been acted upon for seventy years. Over the decades people have been prosecuted, convicted and acquitted, under this legislation. The section of law has been relied upon. People have altered their positions detrimentally because of the section. The State, via many instruments, has acted upon the section. It occupied the position of a law which must be observed - until it was struck down as unconstitutional.
While it has been declared that the section is inconsistent with the Constitution and thus not carried over in 1937, that decision does not address its application outside the case in which it arose. There is no principle of the retrospective application of a declaration of unconstitutionality outside the particular parties of a case, or litigants specifically named by the court. This has long been the practice in this jurisdiction, which practice is based upon sound constitutional principle.
Organised society and the common good are protected by the Constitution. This includes the orderly administration of justice. Justice is not served, nor is the reality of the situation in our community served, by applying retrospectively an invalidity in circumstances where a law has been relied upon by all for many years. Such a principle of retrospective application would be the antithesis of law and order. Contemplate a situation in 1976 if a retrospective application of de Búrca had resulted in all the prisoners tried by such juries released? Contemplate a situation in 1982 if retrospective application of Murphy applied and the Revenue Commissioners were required to return all the invalid taxation collected from all married couples over the years? To borrow from O'Higgins C.J., organised society could not accept such a conclusion. The Constitution does not require such a conclusion, and nor have the courts.
A court is required to differentiate between the declaration of unconstitutionality and the retrospective application of such a decision. While in cold logic all such declarations are null and void since 1937, or the date of a post 1937 purported legislation, application of such a ruling is a further issue for consideration. Consequently it is a matter of construing the Constitution to determine how such a decision should be applied in a manner consistent with the principles of the Constitution. The fact that there is no principle of retrospective application of a declaration of unconstitutionality, outside the case or cases in which the issue was decided, has, quite remarkably, not been the subject to date of express judicial decision in Ireland, although it has underpinned the practice and application of the law for many years.
When a law has been treated as valid law for decades it is impossible, unjust, and contrary to the common good, to reverse the many situations which have arisen and been affected, in all their myriad forms, over the decades. In fact, even if a law has been presumed valid for only a few short years it will have affected people and institutions in ways not reversible. The community accepted the law, the way it was assumed or presumed it to be, and acted accordingly. The clock cannot be put back. The egg cannot be unscrambled. Indeed this fact is one of the reasons why consideration may be given by the President of Ireland to sending a bill to the Supreme Court under Article 26 of the Constitution. Such an action by the President, if the bill is found to be unconstitutional, prevents irreversible consequences. Once a law is applied in a community it has ripple effects which are irreversible.
The issue of the application of declarations of unconstitutionality has been the subject of sophisticated jurisprudence elsewhere. The law of Canada appears to be of particular interest. For example, in Charter cases the Supreme Court of Canada has developed the concept of suspending a declaration of invalidity so that Parliament may have time to address the issue.
In conclusion, the general principle is that a declaration of invalidly of a law applies to the parties in the litigation or related litigation in which the declaration is made, and prospectively, but that it does not apply retrospectively, unless there are wholly exceptional circumstances. The applicant in this case was not a party in C.C. v. Ireland and Ors., nor had he commenced related litigation, or any form of group action, nor are there any wholly exceptional circumstances. Consequently, the applicant is not entitled to the retrospective application of the declaration of unconstitutionality.
For these reasons I allowed the appeal in this case.


JUDGMENT DELIVERED ON THE 10TH DAY OF JULY 2006 BY McGUINNESS J.



I have had the advantage of reading in draft the judgments of my learned colleagues giving reasons for allowing this appeal. I am in general agreement with the reasons given. I propose to add some brief comments.
The facts of the case and the course of the proceedings have been set out in detail by Hardiman J. and there is no need to repeat them here. I gratefully accept his account of the history of this appeal.
For the reasons briefly set out below I am in agreement with the conclusion of Denham J. that there is neither an express nor an implied principle of retrospective application of unconstitutionality in the Constitution. This conclusion is borne out by the case law relevant to the issue which has been analysed by the Chief Justice and my other learned colleagues. This case law includes in particular O’Donovan v Attorney General [1961] I.R. 114, McMahon v Attorney General [1972] I.R. 69, de Burca v Attorney General [1976] I.R. 38, The State (Byrne) v Frawley [1978] I.R. 326, Murphy v Attorney General [1982] I.R. 241, and McDonnell v Ireland 1 I.R. 134.
The learned trial judge in her judgment (at page 3) considered the effect of a declaration that a pre-constitutional statute was inconsistent with the Constitution. She went on to adopt and rely on a passage from the judgment of Henchy J. in Murphy v Attorney General [1982] I.R. 241:
“If it is a pre-constitutional enactment, article 50, s. 1, provides in effect that the statutory provision in question shall, subject to the Constitution and to the extent that it is not inconsistent therewith, continue in full force and effect until it is repealed or amended by enactment of the Oireachtas, i.e. the Parliament established by the Constitution. The issue to be determined in such case is whether, when the impugned provision is set beside the Constitution, or some particular part of it, there is disclosed an inconsistency. If the impugned provision is shown to suffer from such inconsistency, it may still be deemed to have survived in part the coming into operation of the Constitution, provided the part found not inconsistent can be said to have had, the time of that event, a separate and self-contained existence as a legislative enactment. Otherwise, the impugned provision in its entirety will be declared to have ceased to have a legislative existence upon the coming into operation of the Constitution in 1937.

Such a declaration under article 50, s.1, amounts to a judicial death certificate, with the date of death stated as the date when the Constitution came into operation.”

The learned judge went on to apply these principles as she saw them to the case of the applicant.
The passage on which the learned trial judge relied is well known and much quoted. It is a striking and memorable statement of the law, albeit obiter. Having, as it were, signed the death certificate of a statute found to be unconstitutional, Henchy J., however, went on to say (at page 307):
“While a declaration under article 50, s.1, does not arise in this case, it is of importance to note that, notwithstanding a judicial declaration of the demise in 1937 of a statute or a statutory provision it may be that, because of a person’s conduct, or because of the irreversible course events have taken, or for any one of a number of other reasons, what was done on foot of the condemned statute or statutory provision may not necessarily be relied on as a ground for claim for nullification or for other legal redress: see the decision of this court in The State (Byrne) v Frawley. In other words, a declaration under Article 50, s.1 that a law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity. Once a finding is made under article 50, s.1 that, for want of consistency with the Constitution, a law ceased in 1937 to have the force of law, a declaration of such invalidity is a constitutional imperative. Whereas, the consequences arising from having acted on foot of or in pursuance of the statutory provision which has thus retrospectively been found to have lost the force of law in 1937 may, in certain circumstances, be held to be beyond the reach of legal action based on that invalidity.”

It is notable that this passage follows immediately after the passage quoted by the learned trial judge. Henchy J. went on to refer to previous decisions of this court, in particular to The State (Byrne) v Frawley [1978] I.R. 326 and McMahon v Attorney General [1972] I.R. 69. At page 314 of the report Henchy J. referred to The State (Byrne) v Frawley. He stated:
“But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action: see, for example, the decision of this court in The State (Byrne) v Frawley. While it is central to the due administration of justice in an ordered society that one of the primary concerns of the court should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there may be transcendent considerations which make such a course undesirable, impractical, or impossible…

For a variety of reasons, the law recognises that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and by-products of time, the compulsion of public order and of the common good, the aversion of the law from giving hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise, void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking of the pointlessness of seeking to undo or reshape the facts of history: ‘The statue has taken its shape and can never back to the quarry’.”

It appears to me that, without any further addition, this passage outlines the general approach which must be taken to the application of retrospectivity in these circumstances and in particular represents the proper approach which should be taken to the present case. Can it seriously be said on the facts of the present case that the compulsion of public order and the common good would allow the application of the present applicant, Mr A, to succeed?
In the same case (Murphy v The Attorney General) Griffin J. dealt with the same considerations more briefly. At page 331 of the report Griffin J. stated:
“When a statute has been declared to be void ab initio, it does not necessarily follow that what was done under and in pursuance of the condemned law will give to a person, who has in consequence suffered loss, a good cause of action in respect thereof. Notwithstanding the invalidity of the statute under which such Act was done, the courts recognise the reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the invalid statute – as it was put so succinctly during the argument ‘the egg cannot be unscrambled’.”

This qualified approach to retrospectivity is evident in the decisions of this court in the cases listed earlier. I would also draw particular attention to the judgment of O’Flaherty J. in McDonnell v Ireland and Others [1998] 1 I.R. 134 (the facts of this case have been set out by Hardiman J. in his judgment). While somewhat different reasons were given in the judgments in the case this court was unanimous in dismissing the applicant’s appeal. O’Flaherty J. gave the fullest consideration to the effect of this court’s judgment in Murphy v The Attorney General. At page 142 of the report he stated:
“In any event, since the provision was in place when the plaintiff was prosecuted on the 30th May, 1974, he cannot now avail of its extirpation as giving him the cause of action. This is established in both the majority judgments as well as in the minority judgment, of the court in Murphy v The Attorney General [1982] I.R. 241.
It will be recalled that in that case O’Higgins C.J., in his minority judgment, concluded that under the Constitution a declaration as to the invalidity of a law or any provision thereof can only operate from the moment such invalidity is declared in the High Court or in the Supreme Court. He went on to hold that the requirement of an ordered society would have inclined his mind to such a conclusion aside altogether from his interpretation of the express provisions of the Constitution. The idea that a declaration of invalidity operated to say that the provision was void ab initio ‘would provide…the very antithesis of a true social order – an uneasy existence fraught with legal and constructional uncertainty’.
The approach of the majority in Murphy v The Attorney General while holding that declarations of invalidity of legislation worked to make the impugned legislation void ab initio, produced more or less the same results…

The correct rule must be that laws should be observed until they are struck down as unconstitutional. Article 25.4.1 of the Constitution provides that:
‘every bill shall become and be law as of and from the day on which it is signed by the President…’
and that, unless the contrary is expressed, that law is effective from that day forth. Following signature by the President, a public notice is published in Iris Oifigiúil stating the Bill has become law; (Article 25.4.2).
From that date, all citizens are required to tailor their conduct in such a way as to conform with the obligations of the particular statute. Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold ‘the Constitution and the laws’; the judge cannot have a mental reservation that he or she will uphold only those laws that will not some day be struck down as unconstitutional. We speak of something as having ‘the force of law’. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by ‘the reality of situation’ (to adopt Griffin J’s phrase), should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy v The Attorney General [1982] I.R. 241 as well as in Cox v Ireland 2 I.R. 503.”

I have said earlier that the dictum of Henchy J. that a declaration of unconstitutionality amounts to a judicial death certificate is well known and much quoted. It is couched in striking language which readily remains in the mind. Perhaps these very qualities have militated against the giving of full consideration to the careful qualifications and fuller explanations of the effect of a applying this “death certificate” to a statute contained both in Henchy J’s own judgment and in the other judgments of this court over the years. It is in this context that I am in agreement with the Chief Justice in his analysis of the judgment of the learned High Court judge.
A consideration of the case law as a whole demonstrates that, while the principle that the impugned statute or section is void ab initio is generally if not invariably set out, the actual outcome of the cases show that what might be described as blanket retrospectivity has not in fact been applied. The facts of the cases differ and the reasoning for the conclusions may vary but it is impossible to establish either an express or an implied principle of unqualified retrospectivity. In common with Geoghegan J. I agree with the statement of Denham J. that a court is required to differentiate between the declaration of unconstitutionality and retrospective application of such a decision and that as a consequence it is a matter of construing the Constitution to determine how such a decision should be applied in a manner consistent with the principles of the Constitution. I also agree that when a law has been treated as valid law for decades it is impossible, unjust, and contrary to the common good, to reverse the many situations which have been affected over the decades. I concur with the view of Geoghegan J. that concluded proceedings based on an enactment subsequently found to be unconstitutional cannot normally be reopened. This approach is in accordance with common law principles of finality in legal proceedings.
I would not exclude exceptions to this normal rule but any such exception should be based on the clear demands of justice in the particular case. I do not consider that the present case on its facts is in any way such an exception. The applicant was convicted of an offence which consisted of sexual intercourse with a girl under the age of consent. At no stage has he denied that the act of sexual intercourse with this girl took place. There is no suggestion that he was denied due process in the course of his trial. He did not at the time challenge the constitutionality of the relevant section or take any of the other steps which might in law have been open to him. The case was decided in accordance with the law applicable at the time and is not now open to attack. I agree with the Chief Justice in what he has stated concerning the general principle governing criminal prosecutions where the State has relied in good faith on a statute in force at the time and concerning the application of those principles.
For these reasons I allowed the appeal in this case.



JUDGMENT of Mr. Justice Hardiman delivered the 10th day of July, 2006.
The applicant in this case, A., pleaded guilty to an offence contrary to s.1(1) of the Criminal Law Amendment Act, 1935, unlawfully and carnally knowing a girl under the age of 15 years. He received a sentence of three years imprisonment. He had served about half this period when, in another case and at the suit of another person, C.C., the subsection creating the offence to which A. had pleaded guilty was found inconsistent with the Constitution. A declaration to that effect was made under Article 50.1. This case is about A’s attempt to get the benefit of the C.C. decision for himself; to piggyback on that declaration. No-one has ever succeeded in doing this (and only a few have made the attempt) in respect of a trial or transaction completed before the declaration.

The first and salient distinction between C.C’s case and this one is that C.C. raised his ultimately successful challenge to the constitutionality of s.1(1) of the 1935 Act before his trial. Neither the present applicant nor any other person up to the time of C.C.’s case did this. For reasons discussed at length below, this is a huge obstacle in the way of any attempt to piggyback on the declaration granted in C.C’s case, all the more so for an applicant who pleaded guilty in the Court of trial. But the present applicant, for reasons arising from the specific facts of his case, meets a still greater obstacle first: he is relying on a declaration itself based on a jus tertii, a right which he himself never possessed. To explain this, I take as my starting point the enormous factual differences between this case and C.C’s. Before doing so, I wish to reiterate what Henchy J. said in State (Byrne) v. Frawley [1978] IR 326, a case much discussed below, “In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist”. And indeed, though none of the third parties in the cases discussed below were afflicted with A’s additional difficulty, none succeeded in piggybacking on another person’s success in constitutional litigation.

C.C. put forward his case on a factual basis which was in stark contrast with the facts of the case against A. He (C.C.) was a teenager charged with unlawful carnal knowledge of another teenager. He said he had met the girl in question at a dog racing track. No sexual intercourse had taken place on that occasion but some little time later she had texted him and re-established contact. This led to their having consensual intercourse on several occasions over the next month or so. The girl had told him that she was 16 years of age and he had believed this. He claimed the Section was unconstitutional in that it precluded him from advancing those facts as a defence at his trial before a jury. They showed, he said, that he had acted under a mistake of fact which was both honest and reasonable, and induced by the girl herself. Some of these central statements were contradicted by prosecution witnesses. This Court was, however, in no way concerned with the resolution of the factual conflict: if the defence were available, the factual issues would be for a jury. The sole issue for this Court in the end was the constitutionality of a law which had been found to prevent C.C. putting his version of the facts before the jury at all.

A., on the other hand, was a 38 year old man and the father of a daughter who was a class mate and friend of his 12 year old victim. He positively knew the age of the victim and did not deny this. He could never himself have impugned the subsection on the basis that C.C. did because of the operation of the jus tertii rule: a person who seeks to invalidate a statutory provision must do so by reference to the effect of the provision on his own rights. He cannot seek to attack the Section on a general or hypothetical basis and specifically may not rely on its effect on the rights of a third party: see Cahill v. Sutton [1980] IR 269. In other words, he is confined to the actual facts of his case and cannot make up others which would suit him better.

Because of this rule, A. could not have attacked the Section on the basis that it excluded a defence of reasonable mistake as to age since that defence would not have been open to him on the admitted facts, even if it had been available in law. He had, accordingly, no locus standi on which to challenge the subsection. C.C. had this standing.

As it happens, A. was represented by the same solicitor who had successfully acted for C.C. in his constitutional proceedings: he was thus very much aware of the latter’s case. On the third day after delivery of the judgment in C.C., A. commenced his own proceedings, under Article 40.4.2 of the Constitution. He claimed to be set at liberty despite his sentence because the subsection creating the offence to which he had pleaded guilty, and in respect of which he was serving the sentence, had been declared to be inconsistent with the Constitution. Accordingly, he says, the offence no longer exists and indeed never had any existence after the adoption of the Constitution in December, 1937: it cannot therefore justify his detention.

The central legal point arising on the hearing of this application emerges clearly from the foregoing facts. Can a person (in this case, A.) who has pleaded guilty to an offence, and received an appropriate sentence on the foot of that plea, demand to be released from the sentence once the provision creating the offence has been found unconstitutional at the suit of a third party (C.C.) who was asserting that a right of his was unconstitutionally infringed by the subsection? In this particular case a further question arises: is it relevant to the question just stated that the right asserted by the third party was one not infringed in the case of the applicant himself simply because, on the facts, it never attached to him?

The task of the applicant in addressing these questions seems a difficult one: his counsel was unable to point to any case, Irish or foreign, in which a declaration of unconstitutionality was applied retrospectively to invalidate a past proceeding at the suit of a third party such as A. here. This fact seems to have escaped attention during much of the rather breathless, often intentionally alarmist, discussion and coverage this case has engendered. But A. says this case is unique in that he is held in custody on the basis of his conviction of an offence that no longer exists and therefore (he says) can have no legally cognisable consequence: in particular it cannot justify his continuing detention.

I shall first consider the procedural background to A’s case in some detail.

Procedural background.
In June, 2004, the applicant in these proceedings pleaded guilty in the Dublin Circuit Criminal Court to a count of unlawful carnal knowledge contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935. In November, 2004, he was sentenced to three years imprisonment. On the 26th May, 2006, he applied to the High Court (Laffoy J.) for an order pursuant to Article 40.4.2 of the Constitution directing an inquiry forthwith into the lawfulness of his detention. By order of the 26th May, 2006, the High Court directed the Governor of the Prison where he was held to produce him before the Court on the 29th May, 2006, and to certify in writing the grounds of his detention. The Governor certified:
“I hold the applicant in custody in Arbour Hill Prison pursuant to warrant dated the 24th November, 2004”.


He exhibited the warrant. From this it appears that the applicant had pleaded guilty to the offence mentioned above and had been sentenced by His Honour Judge O’Donnell “to be imprisoned for a period of three years. Said sentence to date from the 8th November, 2004”.

The warrant ordered the governor to receive the applicant and “cause said person so convicted to undergo the sentence set out above”.

On the 23rd May, 2006, this Court had delivered judgment in a case entitled C.C. v. Ireland, The Attorney General and the Director of Public Prosecutions. The Court granted a declaration that s.1(1) of the Criminal Law (Amendment) Act, 1935, was inconsistent with the provisions of the Constitution. This was the point on which the present applicant relied. He said that the effect of the declaration granted to C.C. was to render his, A’s, continued detention unlawful because this detention was in respect of an offence not known to the law. His argument was, as his counsel said, simple and clear; indeed counsel presented his principal contention almost as an axiom. No Irish precedent for this alleged entitlement to release was, or could have been, referred to.

The applicant was produced before the High Court on the 29th May, 2006, and legal argument took place. Judgment was reserved overnight and on the 30th May, 2006, Ms. Justice Laffoy delivered a written judgment. She directed the release of the applicant on the basis that she was not satisfied that he was being detained in accordance with the law.

The respondent’s appeal was heard in this Court on the 2nd June, 2006. After the conclusion of the hearing the Chief Justice for the Court indicated that the appeal would be allowed. A brief statement of reasons was given and it was said that the judgment or judgments of the Court would be delivered at a later date.

C.C.’s case on the meaning of the Act.
C.C. was an eighteen year old who was accused of having had unlawful carnal knowledge of a girl under the age of fifteen years. When approached by the Gardaí he admitted having had consensual intercourse with the girl. He described the interaction between them in some detail and specifically stated that the girl had informed him that she was sixteen years of age and that he had believed this. After he was charged, he instituted High Court proceedings claiming certain declarations to the general effect that, on the true construction of the subsection, he was entitled to advance the defence of mistake in answer to the charge under s.1(1) of the Act of 1935. In the alternative, he claimed, that the subsection was inconsistent with the Constitution.

On the 12th July, 2005, this Court delivered judgment in that part of the case which related to the interpretation of s.1(1) of the 1935 Act. For the reasons set out in the judgments of Mr. Justice Geoghegan and Mr. Justice Fennelly, the Court (Mrs. Justice Denham dissenting) held that it was not possible to imply a requirement of mens rea as to age into the subsection. Specifically, the legislative history of the provision made it clear that the Oireachtas “… as a matter of deliberate policy deprived accused persons of the defence of the mistake as to age made on reasonable grounds…”, by the enactment of s.1(1), in respect of an offence contrary to that subsection. The judgments referred to, as is proper in a judicial exercise in statutory construction, reached this conclusion solely from a consideration of the wording of the statute and its legislative history and context. All judicial implication of material, (in this case a requirement for mens rea), into a statute operates on the basis of attributing an intention to the legislature on one of a number of well established grounds. It cannot be done otherwise. Naturally this cannot be done at all where there is positive and admissible evidence that the legislature of 1935 affirmatively intended to make the defence of mistake unavailable.

After the Courts finding on this point, the constitutional aspect of C.C.’s claim was adjourned for further argument and was eventually resolved by the judgment of the 23rd May, 2006, with the result stated above. The judgment proceeds entirely on the basis of the Constitution but a strict liability stigmatic offence with the possibility of a prison sentence would, very likely, engage European Convention points as well: see Simester, Ed., Appraising Strict Liability (Oxford U.P., 2005) and especially Chapter 8, G.R. Sullivan Strict Liability for Criminal Offences in England following incorporation of the E.C.H.R.

The case of Mr. A. presents a number of features of sharp contrast. C.C. had asserted his innocence and made his case, and in particular his constitutional claim, before his trial, having already indicated to the Gardaí the factual basis which gave him locus standi to raise it. He said the girl herself had misled him as to her age, that he had honestly and reasonably believed her, and that s.1(1) of the Act of 1935 unconstitutionally prevented him from relying on these facts as a defence.

Mr. A. had raised no such claim but had simply pleaded guilty to the offence. He could not have raised the constitutional point relied upon by C.C. because he admitted that he had positive knowledge of the age of the complainant, which was twelve years at the time of the offence. At that time Mr. A. was a man of 38 years who had administered alcohol to his victim. On these facts he lacked the locus standi to raise the constitutionality of the absence of a defence of reasonable or genuine mistake. The applicant did not conceal, on the hearing of this appeal, that he regarded the order in the case of C.C. as conferring on him an undeserved windfall, albeit one to which he was legally and constitutionally entitled, the right to be immediately released from a sentence justly imposed on him for an offence to which he had pleaded guilty and in respect of which he continues to acknowledge his guilt.

The applicant’s case.
The applicant’s case was advanced with ingenuity and moderation by Mr. Conor Devally S.C. It was a clear and simple one:
“… that the warrant is bad on its face and is put forward as justification for the detention of the applicant, a provision that was not carried forward pursuant to Article 50 of the Constitution and is known by the respondent to have been declared inconsistent with the Constitution. There being no other lawful or any lawful justification for his continued detention, his release is mandated pursuant to the terms of Article 40 of the Constitution”. [sic: p.2 of written submissions]

Mr. Devally relied on the entire of the judgment of the learned High Court Judge and in particular the passages:
(a) “In this case, the applicant is detained on foot of a conviction for an action which was accepted by the applicant and by the people through the relevant State authorities, including the Director of Public Prosecutions, to be an offence on the 15th June, 2004, but which we now know, by reason of the declaration made by the Supreme Court last week, was not an offence either when the action occurred or when the applicant was convicted or sentenced”.


(b) “… The only consequence of the declaration of inconsistency of s.1(1) with the Constitution with which I am concerned on this application is whether it has rendered the detention of the applicant void as of now”.
(c) “The defect here could not be more basic. It is that the purported conviction relates to something which is not an offence in criminal law. In my view, the conviction is a nullity, as is the sentence.”


An essential part of the chain of reasoning which led the learned trial judge to that conclusion was a dictum of the judgment of Henchy J. in Murphy v. The Attorney General [1982] IR 241. This passage, at p.306 of the report, addressed the effect of a declaration of inconsistency with the Constitution of a pre-1937 statute. Henchy J. concluded that:
“Such a declaration under Article 50.1 of the Constitution amounts to a judicial death certificate, with the date of death stated as the date when the Constitution came into operation.”.

The learned trial judge adopted this passage (which was obiter) and continued:
“Applying the foregoing principles, the Supreme Court having struck down s.1(1) in its entirety, that Section ceased to have legislative existence in 1937. Thereafter, there was no statutory offence of unlawful carnal knowledge of a girl under the age of 15 to which there attached a punishment prescribed in the Act of 1935. To put it another way, the offence of which the applicant was charged did not exist in law when it was purported to charge him with it, nor at the respective dates of his purported conviction and sentencing”.


The central question in this case might also take the form: are the consequences of a declaration of inconsistency quite as straightforward as that? It is to that question I now turn.

Effect of a declaration of inconsistency or invalidity.
Over the years since 1937 a considerable number of statutes, statutory instruments or common law rules have been found to be inconsistent with the Constitution or (in the case of post 1937 statute) invalid having regard to its provisions. In the course of argument it was estimated that there had been perhaps 87 such instances. Despite this level of judicial activity, the learned editors of J.M. Kelly The Irish Constitution (Fourth Edition), 2003, conclude (at page 895):
“The question of the time from which a law, which has been declared inconsistent with or invalid under the Constitution, is to be considered a nullity, and the closely related question of the retroactive potential of such a declaration, are matters which for many years escaped scrutiny altogether and in the last thirty years or so have only been partially explored”.

I am satisfied that this comment is a sound one. That state of affairs is, as the learned editors say, a puzzling one especially since, in relation to post-Constitution statutes at least, the Murphy case cited above makes it clear that “the date of enactment [is] the date from which invalidity is to attach to the measure which has been struck down because of its unconstitutionality”.

Moreover, at p.313 of the report in Murphy, Henchy J. stated a general principle of relief following a finding of invalidity as follows:
“Once it has been judicially established that a statutory provision is invalid, the condemned provision will normally provide no legal justification for any acts done or left undone or for transactions undertaken in pursuance of it; and that persons damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress”.

These passages contain two of the principles which are central to the applicant’s case: firstly, invalidity is not merely a prospective finding but one which has effect from the time the invalid statute was enacted. Secondly, a finding of invalidity “normally” involves redress: in the case of an imprisoned applicant the most obvious redress is release. The applicant acknowledges that the statute at issue in Murphy was a post-Constitution one, but he says, by analogy with the findings about such statutes, a pre-Constitution statute which is inconsistent with any provision of the Constitution should be regarded as having been without force ever since the date of adoption of the Constitution.

The State’s answer.
These are far-reaching arguments which led the State to ask this Court, if necessary, to depart from the finding in Murphy as to the time when invalidity or (at least) inconsistency attaches to a measure which is struck down. The respondent further asked the Court to find that it has an inherent power, when declaring the inconsistency of a statute with the Constitution, to impose a temporal limitation on the effect of such judgment, perhaps by making a prospective only or perhaps by laying down an intervening period, perhaps of six months, before such declaration would have effect.

A considerable body of legal argument relying on principle and on powerful and suggestive analogies with similar constitutional regimes was deployed in support of these submissions. Counsel for the State, Mr. Gerard Hogan S.C., did not underestimate the difficulties in the way of these arguments, if it were necessary for him to rely upon them. They would involve the reversal of significant parts of the findings of this Court in Murphy. Moreover, they were deployed, here, in response to an application under Article 40 of the Constitution: I would see a greater difficulty in assenting to them on such an application than on a substantive hearing of a plenary action, by reason of the fundamental nature of the Article 40 jurisdiction and the celerity with which it is generally required to be exercised. Moreover, it must be said that, no doubt for good reason, no such arguments were even hinted at on the hearing of C.C.’s case. Before embarking on a consideration of these novel answers to the applicant’s claim to be set at liberty, then, it is necessary first to consider the State’s primary contention that our existing jurisprudence suggests a more obvious answer to that claim. In this regard, the respondent contends that, on the existing jurisprudence, the learned trial judge erred in law in concluding that “the conviction is a nullity as is the sentence”.


“Normally”.
The last cited passage from Henchy J. expresses what was called by that learned judge “the primary rule” of redress. It will be noted that that primary rule is twice qualified by the word “normally”. It is now necessary to discuss the nature of the limitation on the primary rule suggested by that word. For the authorities cited below establish that, despite a finding of unconstitutionality, Equity or public policy “may require that force and effect be given… to transactions carried out under the void statute”. The circumstances in which the law requires this to be done will shortly be considered but before embarking on this topic, it is important to recall that Henchy J. spoke the words quoted above in an action which was, as most constitutional actions are, a direct attack on a statute by a person whose factual circumstances were such as to give him locus standi to mount that direct attack. The words quoted refer to the entitlement of such a person “normally” to relief, and to the limitations of that entitlement in certain circumstances. But a person such as the present applicant who is mounting an oblique or collateral attack on a prison sentence, on the basis of another person’s successful attack on the statute under which it was imposed, is clearly in a weaker position. His position is weaker again if he himself could never have lodged the initial attack, since the statute offended no right of his. He is not a person “damnified by the operation of the invalid provision” and thus not a person “normally” entitled to relief, within Henchy J’s categories. Such a person’s claim to redress is entirely technical: the applicant here has not sought to conceal this. But his failure in the present application is not dependent on this fact.

Any pre-Constitution statute (and many post-Constitution statutes) now declared to be inconsistent with the Constitution or invalid having regard to it, will have been in operation for a considerable period, either without constitutional challenge or having survived a previous constitutional challenge. Depending on the nature of the statute, many things of great public or private significance may have taken place by virtue of an impugned measure. The law has not been indifferent to this obvious fact, or to the injustice, difficulty and disorder which could follow from overturning at a stroke the assumptions, the vested rights and the solemn determinations, perhaps of decades. A consideration of certain cases where statutory provisions were found inconsistent or invalid illustrates these propositions.

In de Burca v. Attorney General [1976] IR 38, those portions of the Juries Act, 1927 which excluded from jury service persons other than ratepayers who held land above a certain minimum rateable valuation (and “exempted” from jury service all women other than those who made specific application), were found to be inconsistent with the Constitution. This case is generally regarded as one of the monuments of our modern inclusive and non-discriminatory jurisprudence. In O’Donovan v. Attorney General [1961] IR 114 and in McMahon v. Attorney General [1972] IR 69, certain aspects of the electoral system were successfully challenged on constitutional grounds. In the latter case, those grounds related to the existence, pursuant to a statute of 1923, of a number on a counterfoil to a ballot paper which might lead to the identification of a voter.

If the primary rule of redress were indeed a rigid one of axiomatic simplicity, it is evident that the result in the cases mentioned might have enabled a third party, unconcerned with the original litigation, to attack any conviction (or, for that matter, any acquittal) which had taken place before an unconstitutionally selected jury since 1927, or to attack any election held since 1923. This “appalling vista” was indeed a ground on which one of the dissenting judges in McMahon would have refused relief. Fitzgerald J. (as he then was) said at p.13 of the report:
“The plaintiff has not advanced any argument on the possible consequences of a finding of the procedure being unconstitutional. It appears to me that such a finding raises or could raise the issue as to whether all elections and bi-elections since 1923 were unconstitutional. It certainly creates the situation in which a citizen might be encouraged to raise such an issue”.
A similar apprehension troubled O’Higgins C.J. in the de Burca case, at p.62:
“If, then, the property qualification is not in accordance with Article 40.1, and is not saved by any inference to be drawn from Article 38.5, what is to be said of the thousand of criminal jury trials which have been held since the enactment of the Constitution and which have resulted in convictions? Were these trials invalid? I confess that this matter did cause me some concern during the hearing”.


It must be obvious that concerns such as those expressed in the two passages just cited, if there were no clear answer to them, would have a chilling effect on the development of constitutional jurisprudence. Judges might be confronted with a situation where, in order to grant deserved relief to an individual litigant they would have to cause a state of grave social, legal or political uncertainty, by potentially invalidating things, perhaps as important as elections or serious criminal trials, which took place in good faith prior to the declaration. This might occur when a person who had taken no part in the litigation leading to the declaration sought to take advantage of the declaration afterwards by claiming for example that a past general election, or a past conviction or acquittal by a jury, had been invalidated by the declaration granted.



A groundless fear.
But the apprehensions voiced by Fitzgerald J. (as he then was) and O’Higgins C.J. were never borne out, as the historical record shows. No litigant ever attempted to invalidate a general election, on foot of the declarations in the cases mentioned, and an attempt to invalidate a past jury trial was unsuccessful for reasons which are suggestive for the purposes of the present case, and are considered later in this judgment. Other cases where retrospective third party effect was denied are also surveyed.

The married persons tax case, Murphy v. The Attorney General, already cited several times, is the best known case in which the effect of a declaration of invalidity of a statute on the rights of third parties in relation to past transactions is discussed. McDonnell v. Ireland [1998] 1 IR 134 is the most recent case to address this topic as a central issue. There, O’Flaherty J. made the suggestive statement that:
“The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy v. The Attorney General, as well as in Cox v. Ireland [1992] 2 IR 503”.

The reasoning behind that statement, and others to a similar effect, as expounded in McDonnell’s case and others, is the theme of the next section of this judgment.

Unconstitutionality and Nullity.
In State (Byrne) v. Frawley [1978] IR 326, Michael Byrne had been tried by a jury selected under the provisions of the Juries Act, 1927. He was convicted of receiving stolen goods and sentenced to seven years penal servitude. This occurred in December 1975, and by coincidence the decision of the Supreme Court in de Burca was given during the course of the trial. But Mr. Byrne made no point based on this decision and went on with the jury that he had. He appealed to the Court of Criminal Appeal but again took no point about the unconstitutional composition of the jury. Some months after this appeal was unsuccessful he instituted proceedings under Article 40.4.2 of the Constitution on the grounds that he was not being detained in accordance with law. He thus asserted a right arising from the declaration of inconsistency made in de Burca. He failed, and without any U turn on the fundamental issue of inconsistency.

The majority judgment in this Court was delivered by Henchy J. He held, at page 350:
“Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to try him, I consider that he is now precluded by that election from claiming that the jury lacked constitutionality… the prisoner’s approbation of the jury was affirmed by his failure to question its validity when he formulated grounds of appeal against his conviction and sentence, and when his application for leave to appeal was argued in the Court of Criminal Appeal. It was not until some five months after his trial that he first put forward the complaint that the jury had been formed unconstitutionally. Such a volte face is impermissible. Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary… what has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case”. (Emphasis added)


Significantly, Henchy J. added to the foregoing:

“In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist”.



It will be seen that this decision proceeded on the basis of preclusion or estoppel. It is significant to note that, like the present proceedings, Byrne’s proceedings were under Article 40.4.2.

In December, 1975, there must have been many people who had been convicted in the then relatively recent past, but before the decision in de Burca, by an unconstitutionally selected jury. Because of the particular circumstances of Michael Byrne - he knew the jury was unconstitutionally selected before it convicted him - it was unnecessary for the Court to address the position of such persons. At p.349 of the report, however, the following is said;
“As the United States Supreme Court has held in a number of cases, it does not necessarily follow that Court orders lack binding force because they are made in proceedings based on an unconstitutional statute. So far as the present case is concerned, because of its particular circumstances it is not necessary to decide whether a person who is convicted by a jury recruited under the Act of 1927 and who did not raise the unconstitutionality of the jury, either at the trial or collaterally in the High Court before conviction, could have later successfully impugned his conviction on that ground. Whether he could have done so or not it would seem that he would now be debarred from doing so. It is now over two years since the widely reported decision of this Court in the de Burca case made it common knowledge that juries in criminal cases tried prior thereto were recruited under unconstitutional provisions. Yet, since then, no such convicted person (other than the prisoner in this case) has instituted proceedings to have his conviction or sentence set aside on that ground. Such retrospective acquiescence in the mode of trial and in the conviction and its legal consequences would appear to raise an insuperable barrier against a successful challenge at this stage to the validity of such a conviction or sentence.” (First emphasis added, second in original)

That passage is of interest for two reasons. It plainly envisages “retrospective acquiescence” as a barrier to an attack on a conviction or sentence, including an application under Article 40.4.2. Secondly, the Court simply declined to express a view on the position of a person who was not guilty of such acquiescence since the date of the finding of unconstitutionality because that question did not arise on the facts. But I would observe that any such person tried by an unconstitutionally selected jury would have had standing to challenge the relevant provisions of the Act of 1927 whereas the applicant here never had standing to challenge the relevant provisions of the Act of 1935 on the only ground on which it was struck down.

The question of the effect on third parties rights of a declaration of invalidity arose in an acute form in Murphy v. The Attorney General, cited above. There, the plaintiffs were a married couple who, under the terms of the tax legislation then in force, paid more by way of income tax than two unmarried persons in their position would have done. They claimed that the relevant provisions of the tax code were unconstitutional and were successful in this claim. After this had happened, the State caused the matter to be re-entered to “speak to the minutes of the order” in particular on the question of “whether the judgment ought to be held to operate prospectively only or retrospectively and, if retrospectively, relative to what precise period of time and to what tax payers, if any, other than the plaintiffs”. It is the latter question which is of most relevance here.

O’Higgins C.J. dealt with this aspect briefly, saying, at p.302 of the report:
“Here we are concerned about a finance or taxation statute. A particular duty lies on the government and on the Oireachtas under the Constitution to provide each year for the financial requirements of the State. This must be taken as a matter of general knowledge. Any citizen who accepts such taxation laws as are in operation and who pays his taxes without protest does so in the full knowledge that as a member of the community he will share the expenditure and arrive at benefit from the central fund. Such a citizen can scarcely have merits if after invalidity is established he seeks to recover back what has already been collected and appropriated with his knowledge and implied approval for the common good”.


Henchy J. stoutly expounded the view that a declaration of inconsistency operated with effect from 1937. But he went on to say at p.307, immediately after the “judicial death certificate” passage quoted by the learned trial judge:
“While a declaration under Article 50.1 does not arise in this case, it is of importance to note that, notwithstanding a judicial declaration of the demise in 1937 of a statute or a statutory provision, it may be that, because of a person’s conduct, or because of the irreversible course events have taken, or for any one of a number of other reasons, what was done on foot of the condemned statute or statutory provision may not necessarily be relied on as a ground for a claim for nullification or for other legal redress: see the decision of this Court in The State (Byrne) v. Frawley. In other words, a declaration under Article 50.1 that the law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity. Once a finding is made under Article 50.1 that, for want of consistency with the Constitution, a law ceased in 1937 to have the force of law, a declaration of such invalidity is a constitutional imperative . Whereas, the consequences arising from having acted on foot of or in pursuance of the statutory provision which has thus retrospectively been found to have lost the force of law in 1937 may, in certain circumstances, be held to be beyond the reach of legal action based on that invalidity”. (Emphasis added)

At p.314-5 the learned judge said:

“But it is not the universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action. [He referred to State Byrne v. Frawley]. While it is central to the due administration of justice in an ordered society that one of the concerns of the Court should be to see that prejudice suffered at the hand of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there maybe transcendent considerations which make such a course undesirable impractical or impossible.
…. For a variety of reasons the law recognises that in certain circumstances… what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality - even irreversibility - that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking of the pointlessness of seeking to do or undo or reshape the facts of history: ‘the statute taken its shape and can never go back to the quarry’.
In this judgment I deliberately avoid any general consideration of the broad question as to when, and to what extent, acts done on foot of an unconstitutional law may be immune from suit in the Courts, for I think any conclusion I might express would in the main be obiter. In any event I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case”. (Emphasis added)


At p.321 of the report, having fully acknowledged the different context in which this question falls to be addressed in the United States, Henchy J. quoted from a judgment of the United States Supreme Court (Hughes C.J.), in Chicot County Drainage District v. Baxter State Bank [1940] 308 U.S. 371. The learned Chief Justice said:
“The Courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; and hence afforded no basis for the challenge decree. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects - with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality, and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are amongst the most difficult of those which have engaged the attention of the Courts, State and Federal, and it is manifest from numerous decisions that an all inclusive statement of a principle of absolute retroactive invalidity cannot be justified”. (Emphasis added)
It is important to restate that the conclusions quoted from the judgment of Henchy J. are in the context of his having firmly upheld the concept of invalidity attaching from the date of enactment, in the case of a post-Constitution statute found invalid. Nonetheless, having set out the extract just given from the judgment of Hughes C.J., Henchy J. commented:
“In other words, it has been found that considerations of economic necessity, practical convenience, public policy,
the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute”. (Emphasis added)


A similar question arose in a quite different context in McDonnell v. Ireland and Ors. [1998] 1 IR 134. Section 34 of the Offences against the State Act, 1939, had provided that where a civil servant was convicted by a Special Criminal Court of a scheduled offence, he would immediately forfeit his office in the public service. In Cox v. Ireland [1992] IR 53 that Section was found to be unconstitutional. McDonnell had lost his job in the postal service on his conviction of a membership offence in May 1974. His application for reinstatement was rejected. However, having noted the decision in Cox, he instituted proceedings claiming that his dismissal had been unconstitutional and had no legal effect. He also sought back money, pension rights and damages. His claim was dismissed by this Court. O’Flaherty J. said at p.142:
“In any event, since the provision was in place when the plaintiff was prosecuted on the 30th May, 1974, he cannot thus now avail of its extirpation as giving him cause of action. This is established in both the majority judgments, as well as in the minority judgment, of the Court in Murphy v. The Attorney General…”.

O’Flaherty J. cited from the judgments of Henchy J. and Griffin J. in Murphy and continued:
“The correct rule must be that laws should be observed until they are struck down as unconstitutional. [He referred to the process whereby bills are promulgated as laws and continued] From that date, all citizens are required to tailor their conduct in such a way as to conform with the obligations of the particular statute. Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold ‘the Constitution and the laws’; the judge cannot have a mental reservation that he or she will only uphold those laws that will not some day be struck down as unconstitutional. We speak of something as having ‘the force of law’. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation which preserves the distinct status of statute law which, as such, as necessitated by the requirements of an ordered society and by ‘the reality of the situation’ (to adopt Griffin J’s phrase) should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy as well as in Cox. (Emphasis added)






Consequences of the foregoing.

The cases just discussed appear to me to establish a number of propositions:
(1) The Courts have consistently asserted that post-Constitution statutes found invalid having regard to the Constitution are deemed to be invalid from the date of their enactment. That has been authoritatively decided. There are obiter statements, the best known of which was adopted by the learned trial judge in this case, to the effect that a pre-Constitution statute found inconsistent with the Constitution was afflicted with that inconsistency from 1937 and not from any later date. That proposition might be resisted (by reason of the terms of Article 50.1 of the Constitution). I do not propose to address that possibility here for reasons given above, principally a reluctance to decide an issue in an Article 40.4.2 application adversely to a prisoner on so novel a point.

(2) There is a well established line of authority for the proposition that “… it does not necessarily follow that Court orders lack binding force because they are made in proceedings based on an unconstitutional statute”; that “… it is not the universal rule that what has been done in pursuance of the law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action… the law has to recognise that there may be transcendent considerations which make such a course undesirable impracticable or impossible”; that “… a declaration under Article 50.1 that a law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity”; that “The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity”.


(3) In applying the considerations mentioned in the preceding paragraph, “… it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute”.

(4) Such force and effect may have to be given “… because of a person’s conduct or because of the irreversible course events have taken, or for any one of a number of other reasons…”; because “The irreversible progressions and by-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality - even irreversibility - that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional law, or otherwise void, into an acceptable part of the corpus juris”; because “Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality, and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination”.

(5) There is also authority for the proposition that the Court should not attempt to lay down a rigid general rule as to what proceedings under an invalid statute will be given force and effect and what proceedings may be struck down by litigation:
“I deliberately avoid any general consideration of the broad question as to when… acts done on foot of an unconstitutional law may be immune from suit in the Courts… I think experience has shown that such constitutional problems are best brought to solution step by step, precedent after precedent, and when set against the concrete facts of a specific case”.

All these citations are taken from the cases mentioned above, are of long standing as statements of Irish law and have not been contradicted by any authority to which we have been referred.



The High Court judgment.
The sentence quoted above at reference (3) epitomises the basis of two disagreements I must very respectfully express with the judgment of the learned trial judge. The existing case law clearly demonstrates that there are circumstances in which things that have been done under and by virtue of a statute which has been declared inconsistent or invalid must nevertheless continue to be given force and effect. To that extent such things - a conviction before an unconstitutionally constituted tribunal, a series of general Elections with numbers on the ballot paper, a payment of tax computed under an unconstitutional provision; a dismissal from public service under an unconstitutional provision - cannot be described as nullities insofar as their continuing force and effect are concerned. The distinction at the heart of the judicial approach in all the cases cited is one between the statute itself , void ab initio or since 1937, and “transactions carried out under the void statute” which may not themselves be void, or nullities, at all. The learned trial judge does not appear to address this distinction, but proceeds directly from the established unconstitutionality of the statute to a finding of nullity of everything done under it as though one followed inexorably from the other. But Henchy J. envisages a declaration of inconsistency not being always available as the basis of a “claim for nullification”: such a claim would be redundant if what had occurred was already a “nullity” by operation of law. That, however, is how the learned trial judge described the conviction and sentence here, as nullities, and that view (set out in a passage cited earlier in this judgment) seems central to the logic of the judgment. It does not appear consistent with the cases discussed above. In my view the High Court erred in failing to address the question of whether the conviction and sentence in A’s case are matters that require to be given continuing force and effect. This question clearly arises for consideration on the well established authorities.

The fact is that in the cases cited the conviction, the payment of tax, the long series of general Elections, and the dismissal all occurred in reality, just as the Sections impugned in those cases had nevertheless commended themselves to the Oireachtas or its predecessor and had in reality been acted upon, no doubt in good faith, for periods up to half a century or (as in this case) considerably more. Indeed, the learned trial judge herself acknowledged that:
“It is undoubtedly the case that the consequences of a declaration under Article 50.1 may be determined by a variety of factors, for example, the conduct of the person relying on the declaration or the fact that an irreversible course of events has taken place, so that what was done on foot of the condemned statutory provision may not necessarily be regarded as a ground for a claim for nullification or other legal redress, as Henchy J. noted in Murphy, citing the decision of the Supreme Court in State (Byrne) v. Frawley”.

But immediately after these words the learned trial judge went on to say, in a passage which is the basis of my second respectful difference with her:
“However, on this application I am not concerned with whether the applicant may be in a position to maintain a civil action for wrongful imprisonment in the future. I am not concerned whether there are other persons in custody having been convicted of a plea of guilty of an offence under s.1(1), in circumstances where the Director of Public Prosecutions entered a nolle prosequi in relation to other charges. I am not concerned when the aggregate effect of the declaration of unconstitutionality may reveal an appalling vista, nor whether that possibility is mitigated by the authorities relied on by the respondent. None of these considerations are relevant to the determination I have to make”.

I am in agreement with the great bulk of what the learned trial judge said in the paragraph just quoted. In particular it is distasteful and often illogical to deploy a “floodgates” argument of the type she mentions against the enforcement of a clear individual right. This judgment ignores any such argument. But I cannot agree with the first sentence in the quotation, insofar as I cannot see why, in principle, the legal significance of the individual circumstances of a case should be confined to a rebutting a claim for wrongful imprisonment or other civil action. That is the only role specifically envisaged by the learned judge.

The reference in the judgment of the learned trial judge to that cause of action, and to the possibility that notwithstanding the unconstitutionality of the statute leading to imprisonment, the prisoner’s own conduct might be a bar to recovering damages, probably derives from Henchy J’s remarks at p.307 and pp.314-15 of the report in Murphy. Henchy J. certainly referred to factors which “may debar a person from obtaining redress in the Courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations had not intervened”. He also declined to consider “the broad question as to when, and to what extent, acts done on foot of an unconstitutional law may be immune from suit in the Courts…”.

I do not accept that in making these references Henchy J. was limiting the “force and effect” which might be given to “transactions carried out under the void statute”, exclusively to the provision of a possible answer to a civil action for damages. The passages quoted appear in part VII of the judgment, the salient portion of which begins “But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action: see, for example, the decision of this Court in The State (Byrne) v. Frawley”. Byrne was an Article 40.4.2 application: this seems to me necessarily to involve the proposition that an application under Article 40.4.2 cannot be excluded from the general terms “cause of action”, “redress” and “suit” as they are used by Henchy J. in this part of the judgment. Accordingly I cannot agree with the learned trial judge that “the conduct of the person relying on the declaration or the fact that an irreversible course of events has taken place” is in all circumstances unavailable as an answer to an application under Article 40.4.2. Indeed, if such factors were unavailable in answer to such an application it is difficult to see how Byrne’s case could have been decided as it was.

I should like, additionally, to express my agreement with the learned Chief Justice’s observations on the High Court judgment in this case.

Piggybacking.
The cases cited above all relate to attempts by a third party to piggy back on a declaration of invalidity or inconsistency obtained by another person; in more formal language, to assert a right to a benefit based on a declaration obtained by another and (in this case) on the basis of a jus tertii which is unavailable to A. In each case, these attempts were unsuccessful on the basis of something in the nature of preclusion arising on the individual facts of the cases. Counsel for the applicant was unable to point to any instance of the successful invocation of a declaration based on a jus tertii with regard to a past or closed legal dealing, process or transaction.

Furthermore it is clear, on the basis of State (Byrne) v. Frawley, that this preclusion (or prohibition of a volte face, as Henchy J. also put it) could apply in an Article 40 application in respect of a person whose detention was a continuing one, notwithstanding the unconstitutionality in the process leading to the imprisonment that had emerged in another person’s case.

The discussion just concluded coercively demonstrates that a relief, including relief under Article 40.4.2, in relation to acts done under or in consequence of an unconstitutional statute, may be resisted on grounds arising from “the concrete facts of a specific case”. These facts may exhibit one or other of the grounds on which relief has been refused in the cases to date, described in the reports as (inter alia) preclusion, estoppel, acquiescence, delay, public policy, equity, impracticability and the impermissibility of a volte face by a litigant, all of which (perhaps with more) might also be described as abuse of process.

All of these things are widely recognised in the general law as factors which may prevent success in litigation or may even affect a person’s ability to pursue a claim for legal redress. Accordingly, I do not regard their availability as an answer to an application under Article 40.4.2 as in any way qualifying or diluting the Court’s fundamental obligation on such an application to enquire as to whether it can be satisfied that the applicant is being detained “in accordance with the law”.

All of the cases cited appear clearly to establish that the phrase “In accordance with law” requires to be construed having regard to the law generally and the Constitution as a whole, as I propose to do here. This, in turn, is consistent with the significance to be given to the term “justice” as it appears in the Constitution. In C.C., I cited a passage from O’Higgins C.J. in The State (Healy) v. Donoghue [1976] IR 325 which also seems relevant here:
“In the first place the concept of justice, which is specifically referred to in the preamble in relation to the freedom and dignity of the individual appears again in the provisions of Article 34 which deals with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness and fair procedures, but also regard to the dignity of the individual. No court under the Constitution has jurisdiction to act contrary to justice.”


The “individual” referred to in the penultimate sentence of this quotation includes the applicant here or a person in his position but not is limited to such person. The phrase certainly includes others who have become involved in the facts which give rise to this case and in particular the victim, whom A. does not deny that he knowingly treated unlawfully.

Accordingly, each of the factors enumerated may, in an appropriate case, be central in the protection of the rights of others, or of the community as a whole, as well as those of the applicant. To put this another way, they may in an appropriate case be central to the achievement of the common good and of that Justice and true social order prominently mentioned in the Preamble to the Constitution, relied upon Mr. Hogan in his argument on this appeal. Whether this is so in the case of this applicant is the subject of the next section of this judgment.

The facts of this case in their legal context.
The question in this case is not whether s.1(1) is inconsistent with the Constitution - it plainly is in view of the judgment of this Court of the 23rd May - but whether this applicant has competence to lay claim to the relief he seeks in the circumstances of this case or whether force and effect must continue to be given to the order of November, 2004. The phrase is an adaptation of the words of Henchy J. in State (Byrne) v. Frawley. Many though not all of the factors enumerated in that judgment which deprived Michael Byrne of this competence appear to be replicated here. No point about the constitutionality or constitutional construction of the Section was taken at or before the trial; no appeal was brought on that basis; the point was not raised until some eighteen months after his trial, as opposed to five months in Byrne’s case. Like Michael Byrne, this applicant has “by his conduct led the Courts, the prosecution (who were acting for the public at large) and the Prison Authorities” to proceed on the footing that he accepted the validity of the charge against him. One might add that the victim and her family were led to this view as well. As in Byrne’s case, his present attitude is a volte face. Moreover, by comparison with Byrne’s case the position of the present applicant is much weaker. He pleaded guilty, whereas Byrne was convicted by the jury and he had no locus standi to raise the point about the absence of a defence of mistake: it simply did not arise on the facts of his case. By contrast, Byrne undoubtedly had locus standi to challenge the composition of the jury that tried him. All these considerations suggest a lack of competence in A. to claim this relief.

There are also considerations of a more public and general nature. These are the “transcendent considerations”, referred to in the extract from the judgment of Henchy J. in Murphy, above which may make the granting of relief in circumstances such as these “undesirable impractical or impossible… [why] in certain circumstances… what has happened has happened and cannot, or should not, be undone”. These suggest the need to give continued force and effect to the order for A’s imprisonment.

The State repeatedly emphasised on the hearing of this appeal that A. was, in effect, asserting a right not his own: the right of C.C., a very young man who claimed to have been misled as to the girl’s age to be allowed to put the defence of honest or reasonable mistake before the jury as a defence. It was on that basis and no other that C.C. was successful in his action, leading to the declaration on which A. now relies. Accordingly the State say that the present case is a back door method of allowing A. to gain the benefit of the facts of C.C’s case. If the jus tertii rule would have prevented him appropriating or inventing such facts for a constitutional challenge of his own, the same rule (the State says) should preclude this indirect method of achieving the same result.

To this A. retorts that he does not seek to rely on the facts of C.C’s case, which are specific to C.C., but only on the judicial declaration that was the result of the case. This declaration - that the subsection was inconsistent with the Constitution - is in A’s contention a public declaration in rem and has force and effect independent of the arguments and the facts that gave rise to it.

The jus tertii rule is a very necessary regulation of locus standi - standing to sue. It prevents the proliferation of litigation and the expense and uncertainty it causes by requiring that each litigant must show that on the facts of his situation he is personally affected by the law he challenges. It prevents necessary and important laws from being struck down on a purely hypothetical supposition which may never arise in real life and avoids the tax payer having to fund the holding of pointless moots. Once a declaration of inconsistency or invalidity is made, however, its effect appears to me to be, necessarily, universal.

But when one comes to discuss the circumstances in which “force and effect” may require to be given to things done, prior to the declaration, under the struck down provision, one must approach the issue on a case by case basis (see Murphy, at p.315). On the facts of A’s case it appears to me highly relevant that A., who fully accepted the facts alleged against him and the validity of the law which criminalised those facts, now seeks his release on the basis of a declaration to which he himself could never have been entitled. His release would be a “windfall” to which he has no entitlement in justice while at the same time being a negation of the closure, solace and vindication already accorded to a victim of a grave crime, and an affront to true social order. Having regard to the terms of the Preamble to the Constitution and of Article 40.3.1 and 2 these appear to me to be constitutional interests requiring, like the rights of the applicant, vindication by the Courts in an appropriate case. They were so vindicated by the sentence imposed in November 2004, by an order requiring the detention of the applicant for a term of years. But this order must fall unless it is one of those things done under the void statute to which force and effect may still be given.

The factors tending to preserve the “force and effect” of the sentence are especially obvious in the case of a crime of an aggravated nature against an individual person. The defendant here, the present applicant, was the father of a friend and classmate of the victim. That is how he affirmatively knew her age. It was on that basis that the girl was in his house and, undoubtedly, under his care. The decision to involve the authorities and to pursue the case to trial must have been a difficult and traumatic one. The resolution of the criminal proceedings by a plea of guilty must equally have been a great relief. Apart from these personal considerations there was a public interest in resolving these grave allegations, if appropriate, by a finding of guilt. These considerations involve “the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality - even irreversibility - that tends to attach to what… has become widely accepted and acted upon”, and “questions of right claimed to have become vested… or prior determinations claimed to have finality and acted upon accordingly, of public policy in the light of both the statute and of its previous application…”. In the circumstances of the present case they clearly involved the State’s obligation to vindicate, in the case of injustice done, the “life person and good name” (Article 40.3.2) of the citizen who was the applicant’s victim and of her family. This, indeed, is a matter of high public policy, which is one of the factors regarded in the cases as permitting “force and effect” to be given, “in accordance with the law” (Article 40.4.1) to acts done under void statute.

If, therefore, one considers this case along the lines suggested by the language quoted above, one considers it “… with respect to particular relations, individual and corporate, and particular conduct, private and official”, and with regard to the other factor mentioned by Henchy J. I must on the authorities avoid any general consideration of when acts done on foot of an unconstitutional law may be immune from legal challenge. But the concrete facts of this case present a strong resistance to setting aside the conviction on foot of a plea of guilty and the sentence which followed it on the basis of an unconstitutionality in a long established statute established in an action by an other person, who had what this applicant lacks, locus standi to raise the point on the basis of which the relevant subsection was found inconsistent with the Constitution. It is scarcely possible to think of a less meritorious applicant. I would not grant relief unless obliged to do so.

The principles upon which relief was refused in Byrne and McDonnell and limited in Murphy to those who had first asserted their rights seem to me to provide a more than adequate basis in the long established jurisprudence for refusing relief in the present case. A. is, indeed, a singularly inappropriate candidate for relief. Apart from the loathsome nature of his crime (which is relevant only insofar as it engages competing constitutional considerations, specifically the need to vindicate the victim) there is the fact that all of the persons denied relief in the cases mentioned would have had locus standi to rely on the point giving rise to the finding of invalidity or inconsistency with the Constitution. The applicant here has not: no right of his has at any time been breached, even theoretically. The facts of his case are the diametric opposite of what would have been required to confer such locus standi on him. The facts of his case fit almost every rationale on which relief has, in the decided cases, been refused: indeed the concrete facts of this case suggest that the respondent’s position here is a fortiori, compared to those of the respondents in the cases mentioned. These considerations might themselves be outweighed if there were any plausible suggestion that the applicant here had suffered any actual injustice or oppression: in fact, there is not a scintilla of evidence for that proposition. The contrary was not argued.

The particular difficulties affecting an applicant for Article 40.4.2 relief who is a convicted prisoner have been well epitomised in this Court in the judgment in The State (Aherne) v. Cotter [1982] IR 1 88 as follows:
“Before a convicted person who is serving his sentence may be released under our constitutional provisions relating to habeas corpus, it has to be shown not that that detention resulted from an illegality or a mere lapse from jurisdictional propriety, but that it derives from a departure from the fundamental rules of natural justice, according as those rules require to be recognised under the Constitution in the fullness of their evolution at a given time and in relation to the particular circumstances of the case. Deviations from legality short of that are outside the range of habeas corpus”.


That passage puts part of the applicant’s difficulties squarely. He has not been able to allege any departure from natural justice in the way he has been treated. He acknowledges his guilt and that his claimed release would be a “windfall”. On the other hand, it must be manifest that his release would be a great injustice to others. But it is not necessary to decide the case on that basis. A. is here attempting to do what no-one has done before: to set up a declaration based on the right of a third party in order to invalidate a past and closed transaction, his criminal trial. This cannot be done because, on the long established and unchallenged jurisprudence the trial and sentence are things which require to be given continued force and effect. A’s release would require a departure from that line of authority which I am satisfied there is no warrant for doing. I am satisfied, in other words, that A. is now and always has been detained in accordance with law.

Points not considered.
It will be seen that I have not found it necessary to deal with some of the more fundamental submissions made, in the alternative, on behalf of the State authorities. These include a suggestion that the findings, notably in Murphy, as to the time at which the quality of inconsistency or invalidity attaches to a struck down statute or part thereof should be revisited. Nor have I considered the suggestion that the Court has a jurisdiction to delay the effect of a declaration of inconsistency or invalidity. It was not necessary to deal with these points since the issues raised by the present case were capable of resolution on the existing jurisprudence. I also believe that the points raised, supported as they were by elaborate scholarly argument, are in any event more suitable to be entertained at or immediately after the hearing of a plenary action in which a declaration of invalidity or inconsistency is claimed. In this regard I think Mr. Devally S.C. was correct in his forceful submission that these points, interesting and important as they undoubtedly are, do not properly arise on the hearing of this application.

I have not found it necessary, either, to consider foreign law or any judgment of the Courts of any foreign State or entity, apart from the opinion of Chief Justice Hughes cited in the judgment of Henchy J. in Murphy. Counsel for the applicant was unable to point to the law or Constitution of any foreign State as exhibiting the principle of absolute retrospectivity for which he contended. While that is an interesting fact, and not a surprising one, my judgment is based wholly on established Irish law and Irish precedent. The legal position based on these sources is so clear and so well established that I have not found it necessary to travel further afield. I prefer to ground myself on what Henchy J. called “the concrete facts of a specific case”, and to apply to them the well established legal principles to be found in the authorities. This approach emphasises why, as Denham J.correctly puts it “The issue of retrospective application is not dealt with in C.C… instead this issue has been raised in a subsequent, unrelated litigation, this case”. C.C.’s claim did not involve retrospection: this claim does. The Court must deal with the cases which come before them, and take the facts of those cases as they find them. This case involved retrospection as a central feature so that it is not only proper but necessary to address it.
A Principle.
This judgment recalls that no-one has yet succeeded in impeaching a conviction or sentence arising under a statutory provision which, later, another person succeeds in having declared unconstitutional; the principles giving rise to the established power to continue to give force and effect to such an order of the Court; the very great imperative, especially in a grave case of crime against an individual person, to preserve such an order, and the totally exceptional circumstances, involving injustice, oppression or departure from natural justice, which might prevent that being done in a particular case.

These propositions, and the constitutional provisions and decided cases on which they are based, enable one to derive a principle of non-retrospectivity in the effect of a declaration of inconsistency or invalidity of a statutory provision on concluded cases (other than that in relation to which the declaration is granted) save in exceptional individual cases of the sort mentioned. This is wholly consistent with the decisions of the Courts for more than three decades, prior to which the issue does not appear to have arisen. During that period no exception to which the researches of counsel can point has been found.

I have read what the learned Chief Justice has said with regard to the general principle mentioned above, and with regard to the nature of any exceptions to it. I very respectfully agree with him and, like him and for the reasons given above, do not consider that the present case could possibly qualify as an exception. On the contrary, the requirements of justice strongly demand that force and effect be given to the sentence justly imposed on the applicant here. The “compulsion of public order and the common good” (Murphy p.314) require no less.

Conclusion.
It was for the above reasons that I concurred in the order of the Court pronounced by the Chief Justice on the 2nd June, 2006.










A. v. Governor of Arbour Hill Prison.

JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of July 2006


The crucial issue in this case is whether in the event of a declaration of unconstitutionality of a pre-1937 statutory enactment creating an offence, all previous convictions and sentences for such offence must be treated as nullities. The learned High Court judge, Laffoy J., has taken the view that that is the position in law. I beg to differ, for reasons which I will elaborate upon in this judgment. In short, I believe that on any reasonable interpretation of Bunreacht na hÉireann, convictions and sentences pursuant to enactments not declared unconstitutional, are at the very least deemed to be lawful at the time of the relevant court orders and must be treated as remaining lawful following on a declaration of unconstitutionality.

Before I consider these questions in any depth, I think it important that the background to and context in which this case came to a hearing should be fully set out in one judgment. I propose to do so as briefly as I can.

Originally, two separate applications for judicial review relating to sex with a girl under 15 came on for hearing before Smyth J. in the High Court. There was similarity between the issues in each case but they were not identical. In each case, however, the respective applicant was seeking to establish in advance of a criminal trial that a genuine mistake as to age would be a good defence but the circumstances were slightly different. In one of them C.C. v. Ireland which is the case ultimately relevant here, the suggestion was that section 1(1) of the Criminal Law (Amendment) Act, 1935 which created the offence of unlawful carnal knowledge with a girl under the age of fifteen implicitly incorporated mens rea so that genuine mistake of age would be a good defence. In the other case, P.G. v. Ireland, the offence was the common law offence of sexual assault but under the provisions of section 14 of the same 1935 Act, consent was no defence if the girl was under fifteen years of age. The issue therefore of whether mistake as to age could be a defence or not arose also in relation to that offence. Each applicant had a fallback position. Each, if necessary, was claiming to have the relevant statutory provision declared unconstitutional if the court took the view that the mens rea element could not be read into it.

Smyth J. correctly considered that these issues were not appropriate to be dealt with by way of preliminary judicial review but should be left to the trial judge. However, he nevertheless went on to express views on the issue in favour of the Director of Public Prosecutions and against the applicants. In these circumstances on appeal to this court, this court reluctantly, decided that as a matter of justice it would have to decide the issue of a defence of mistake as to age though it left to the trial court issues about onus of proof and burden of proof. The court took that view because once a High Court judge had expressed an opinion on the issue albeit obiter, it was inconceivable that a trial judge in the Circuit Court would rule otherwise.

Largely influenced by a body of modern English case law in the House of Lords and, indeed, the Court of Appeal also, this court unanimously held that mistake as to age was certainly a good defence in the case of the sexual assault charge. The court, however, by a majority of four judges to one took a different view in relation to the C.C. case which was dealing with the statutory carnal knowledge offence. The majority judgments were delivered by myself and Fennelly J. These were concurred in by Hardiman J. and McCracken J. with Denham J. delivering a dissenting judgment. Fennelly J. and I reluctantly came to the view for the reasons set out in our respective judgments, delivered the 12th July, 2005, that having regard to the structure of the 1935 Act and the express wording in some other sections and its statutory antecedents it was impossible to incorporate by implication the defence of mistake as to age or in other words a mens rea element.

Because this view was taken by the majority of this court, it then became necessary to consider the constitutionality of section 1(1) of the 1935 Act. A court consisting of Murray C.J., Hardiman, Geoghegan, Fennelly and McCracken JJ and, therefore, slightly differently composed, unanimously held by concurrence with a single judgment delivered by Hardiman J. that the subsection was not consistent with the Constitution and had, therefore, not been carried over.

I should mention at this stage that the facts in the C.C. case gave rise to a genuine possibility at least that the defence of mistake as to age, if it existed, might be sustained. C.C. was eighteen years of age and was charged with having had unlawful carnal knowledge of a girl under the age of fifteen years. At all times he admitted having sexual intercourse with the girl but claimed that it was with consent. He alleged that the girl had told him she was sixteen years of age. Mr. A. the respondent on this appeal, following on the judgment of the Supreme Court on the constitutionality issue, applied for an Article 40 Inquiry in the High Court. The basis of the habeas corpus application was that the respondent pleaded guilty in the Dublin Circuit Criminal Court to a count of unlawful carnal knowledge with a girl under 15 contrary to section 1(1) of the Criminal Law (Amendment) Act, 1935 and was sentenced to three years imprisonment by Judge O’Donnell. The respondent at the material time was aged 38 and the girl 12 a fact which he then knew. Nevertheless he has claimed that as a consequence of the declaration of unconstitutionality he had effectively pleaded guilty to an offence that did not exist and that, since the warrant referred to this offence, it was itself bad on its face and that his detention was, therefore, unlawful. That submission was upheld in a closely reasoned judgment of Laffoy J. In my view, the conclusion arrived at by the learned judge is incorrect.

It is a fallacy to assume that once it is declared that a pre-1937 statutory provision creating an offence is inconsistent with the Constitution and was, therefore, not carried over, prior court orders made pursuant to proceedings under it must be treated as nullities.

Other members of the court have reviewed in some detail the Irish case law relevant to the issue including Murphy v. The Attorney General [1982] I.R. 241, de Burca v. Attorney General [1976] I.R. 38, O’Donovan v. Attorney General I.R. 114, McMahon v. Attorney General [1972] I.R. 69, McDonnell v. Ireland [1998] 1 I.R. 134 and particularly, The State (Byrne) v. Frawley [1978] I.R. 326. It is important to emphasize that while there are passages in and aspects of all these cases which have relevance to and are helpful in determining the issue which this court has had to consider, none of them in my opinion can be relied on as decisive authorities either in favour of the view which this court has taken or the view which Laffoy J. took in the High Court. There are, however, important dicta in them which indicate that, for reasons of good order, “inexorable logic” does not necessarily determine legal consequences.

At this point, it is useful to refer to a comment made by the learned editors of the fourth edition of Kelly on the Irish Constitution at p. 895. This comment is already cited in the judgment of Hardiman J. It reads as follows:

“The question of the time from which a law, which has been declared inconsistent with or invalid under the Constitution, is to be considered a nullity and the closely related question of the retroactive potential of such a declaration, are matters which for many years escaped scrutiny altogether and in the last thirty years or so have only been partially explored.”


Hardiman J. has expressed agreement with that comment and so do I. The obiter dicta of Henchy J. in Murphy v. The Attorney General have always been treated with the greatest respect as was done by the learned trial judge in this case. But in so far as they fall outside the context of that particular case referring to the recovery of back tax by the party to the action they must be treated with caution. I am not suggesting in any way that the statements of principle by Henchy J. are incorrect. But he himself has used qualifying words such as, for instance, the word “normally”. More importantly, in my view is his implied approval of the dicta of Hughes C.J. in the judgment of the United States Supreme Court in Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371 at 374. That passage expressly cited by Henchy J. reads as follows:

“The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County (1886) 118 U.S. 425 at p. 442; Chicago, I & L. Rly. Co. v. Hackett (1931) 228 U.S. 559 at p. 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects – with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”


Henchy J. goes on to comment as follows:

“In other words, it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case, and suchlike matters, may require that the force and effect be given in certain cases to transactions carried out under the void statute.”


In introducing the Chicot case, Henchy J. at p. 321 does refer to the fact that the United States Supreme Court is unencumbered “by any constitutional imperative such as is contained in Article 50 or Article 15, s. 4, sub-s. 1, of our Constitution”. It is clear in my view that Henchy J. did not consider this qualification to be relevant to the point he was making and in particular to his reliance on the dicta of Hughes C.J. I say this because he goes on to point out that the approach enunciated by Hughes C.J. has been adopted by the United States Supreme Court “even in cases where the statute has been declared to have been invalid ab initio.”

The part of that passage of Hughes C.J. to which I would draw particular attention is his reference to “prior determinations deemed to have finality and acted upon accordingly”. The use of the word “deemed” brings in a concept which, as will emerge later on in this judgment, is to my mind highly relevant.

Before I reach that stage however, I would like to refer in greater particularity to the judgment of O’Flaherty J. in McDonnell v. Ireland cited above. As I have already indicated, I believe that the precise issue which arises in this case has to be decided by this court for the first time because I do not think that there is any authority directly in point one way or the other. In attempting that exercise, I find assistance from the judgment of O’Flaherty J. It reinforces my own thinking as to how the lawfulness or otherwise of previous proceedings and therefore of the respondent’s detention should be considered. O’Flaherty J. recalled that O’Higgins C.J. in his minority judgment in Murphy v. The Attorney General, had concluded that a declaration as to the invalidity of a law having regard to the Constitution could only operate from the moment such invalidity was declared. The former Chief Justice had based that view both on the wording of the Constitution and on the “requirement of an ordered society”. As O’Flaherty J. points out, O’Higgins C.J. had opined that the idea that a declaration of invalidity operated to say that the provision was void ab initio “would provide … the very antithesis of a true social order – an uneasy existence fraught with legal and constitutional uncertainty.”

I entirely agree, however, with the view then expressed by O’Flaherty J. that the approach of the majority in Murphy v. The Attorney General while holding that the declarations of invalidity operated ab initio “produced more or less the same result.” There were severe limitations on the right to recover back tax. I also agree with the conclusion of O’Flaherty J. at p. 143 of the report stated as follows:

“The correct rule must be that laws should be observed until they are struck down as unconstitutional.”


In this connection, I see no difference between post-1937 legislation and pre-1937 legislation. A judge bound under his declaration on taking office to uphold the laws would not be entitled of his own volition to disregard a pre-1937 statute on the basis of his or her own theory that the enactment was inconsistent with the Constitution. Unless and until there is a formal declaration to that effect those laws are binding. They are binding because they must be deemed to be valid and constitutional. Thus in the case of a prosecution under section 1(1) of the Criminal Law (Amendment) Act, 1935 instituted and completed before any declaration of inconsistency has been made by this court, a “good order” interpretation of the Constitution must clearly require that orders and warrants made in a completed criminal case under the impugned provision must continue to be deemed valid. As the Chief Justice points out in his judgment, in this respect the position is no different than the common law practice which has never been constitutionally challenged, that a decision which effectively changes the law does not confer any right to reopen previous court decisions.

The Director of Public Prosecutions was acting lawfully when he commenced the prosecution against the respondent. It is not correct in my view to say that the Director of Public Prosecutions bona fide believed that he was acting lawfully and cannot be faulted on that account but that he was in fact acting unlawfully. Quite simply, he was acting lawfully. I assume that there was a return for trial. That return for trial was itself lawful. The District Court judge making the return for trial was bound under his declaration of office to assume jurisdiction in the preliminary inquiry and properly to consider whether there should be a return for trial or not. Once the respondent was returned for trial it was proper for the Director of Public Prosecutions to prefer an indictment against him. Equally, it was proper for the learned Circuit Court judge, Judge O’Donnell, to have the respondent duly arraigned and to accept the consequent plea of guilty. The learned Circuit Court judge was then not merely entitled but was obliged to impose an appropriate sentence. This he did and that was a custodial sentence. The appropriate warrant to the Governor of Arbour Hill Prison duly issued and thereafter the detention was lawful. It did not become unlawful by reason of the subsequent declaration of unconstitutionality or more accurately, its deemed legality remained.

In case there should be any misunderstanding about this and particularly having regard to one of the major submissions made in the High Court by counsel for the Director of Public Prosecutions, I want to make it absolutely clear that in expressing the view that the detention was lawful pursuant to the warrant, I am not invoking any technical point. Actually, I would reject the argument put forward by the Director of Public Prosecutions that there was prima facie a lawful warrant and that a judicial review quashing it would be necessary first before an Article 40 order could be made. In that respect, I am in agreement with the learned High Court judge. It has never been the law that in a clear case where the detention is unlawful, the courts have insisted on a judicial review application first which, after all, could take some considerable time and would obviously involve the usual procedures of application for leave, statement grounding it, statement in opposition and a full hearing etc. If, therefore, the only basis on which the appellant could claim lawful detention was a purely technical one based on the absence of a judicial review order first, I would have no hesitation in granting the Article 40 order. That, however, is not the basis on which I consider that the detention was lawful. It cannot have been the intention of the draftsmen of the Constitution and more properly of the Oireachtas and perhaps more properly still of the people that if a statutory provision creating an offence was found to be unconstitutional, every past conviction and sentence, perhaps going back a large number of years were ipso facto nullities. In interpreting any particular provision of the Constitution it is always necessary to have regard to the general intent of the Constitution as a whole. If such was the devastating effect of a declaration of unconstitutionality in all cases, it would fly in the face of common sense, would be manifestly unjust and would be contrary to any good order in a civilised society. As suggested by O’Flaherty J., the Constitution must be interpreted as deeming orders in completed proceedings prior to a declaration of unconstitutionality to be lawful. A provision that must be deemed lawful is by definition unlawful. It remains the position, therefore, that section 1(1) of the Criminal Law (Amendment) Act, 1935 was notionally never in force from and after the coming into being of the present Constitution but orders made in proceedings completed under it must as a matter of reasonable and orderly interpretation of the Constitution be deemed lawful.

In dealing with consequences from declarations of unconstitutionality of statutory provisions there cannot be absolute rules. What I have expressed as my view of the law may not itself be absolute any more than the obiter dicta of Henchy J. Individual cases throw up particular and unanticipated facts which in justice may lead to a different kind of solution. It is impossible for me to speculate now but I do not rule out the possibility that there might be circumstances where it would be manifestly unjust or oppressive to uphold a completed proceeding having regard to a declaration of unconstitutionality. In that situation, if it ever arose, an Article 40 order might be appropriate. Such a circumstance would be exceptional.

In the ex tempore decision of this court delivered on the 2nd June, 2006 by the Chief Justice, reference is made to the The State (Byrne) v. Frawley cited above. That case has an important bearing on this case but as I have already indicated, I would not go so far as suggesting that it has a decisive relevance. For reasons upon which I will be elaborating, that case has been of assistance to me and other members of the court in considering the interaction between concepts such as “nullity” and the consequences of a so called nullity. I have already pointed out that what happens happens and such event can never be a nullity in the sense that it must be regarded as never having happened.

I think it important to embark on a detailed analysis of the judgments in both the High Court and the Supreme Court in The State (Byrne) v. Frawley. For a proper understanding of the Supreme Court judgments and of the context in which various significant obiter dicta were expressed, it is important to consider first the judgment of Finlay P. (as he then was) presiding over a divisional court of the High Court and with which the other members of the court Murnaghan and McMahon JJ concurred. Hardiman J. has explained the facts of this case in his judgment and I do not think it necessary to go into them in any detail. It was a follow-on from the decision of this court in de Burca v. Attorney General cited above and was a habeas corpus application. The applicant, Mr. Byrne, was claiming that his detention was unlawful although it purported to be pursuant to a conviction and sentence. What had happened was that the de Burca case was decided while a criminal trial of Mr. Byrne before judge and jury was in process. In the de Burca case, this court had held that it was unconstitutional to confine juries to rated occupiers and to exclude women unless they specially applied. As the trial was proceeding, the jury, of course, had already been empanelled. The attention of the trial judge was not drawn to the Supreme Court decision and there was no evidence that the trial judge had any personal knowledge of the details of it. Nor was any application made by counsel for either the prosecution or the defence to have the empanelled jury discharged. Furthermore, the conviction and sentence were appealed to the Court of Criminal Appeal and the alleged invalidity of the jury was not raised as a ground of appeal before that court. There was even a further appeal under section 29 of the Courts of Justice Act, 1924 to the Supreme Court where again the issue never arose.

In the de Burca case, five separate judgments had been delivered. In two of them, those of O’Higgins C.J. and Walsh J., the issue of the validity of trials which had already taken place by juries empanelled under the provisions of the Act of 1927 was at least aired. Presumably, it had been an in terrorem argument put forward by the State. Finlay P. at p. 331 of the report in The State (Byrne) v. Frawley cites the respective passages of O’Higgins C.J. and Walsh J. touching on this perceived problem. What O’Higgins C.J. said was as follows:

“If, then, the property qualification is not in accordance with Article 40, s. 1, and is not saved by any inference to be drawn from Article 38, s. 5, what is to be said of the thousands of criminal jury trials which have been held since the enactment of the Constitution and which have resulted in convictions? Were these trials invalid? I confess that this matter did cause me some concern during the hearing. I have come to the conclusion that, in so far as these trials were held before juries and each jury was fairly drawn from a panel, there could be no infringement of s. 5 of Article 38. The fact may have been that the panel was wrongly restricted, or could have been challenged. However, this does not alter the fact that the trial was a trial by jury and that no person served on such juries who was not eligible. In my view, an irregularity has taken place in the manner in which citizens have been called to jury service – in the same way as an irregularity took place in the manner in which ballot papers were numbered for parliamentary elections up to the decision in McMahon v. The Attorney General. In McMahon’s case the courts were not asked to entertain any suggestion that such irregularity invalidated previous elections nor, in my view, could such a submission have been successfully made. The overriding requirements of an ordered society would invalidate such an argument. In this instance, the same considerations apply.”


The citation from Walsh J. reads as follows:


“There remains the subject that was raised in the course of the submissions to this Court concerning the validity of all the verdicts and acts of juries empanelled and acting under the provisions of the Act of 1927. It was suggested that the verdicts of all such juries could be impugned because the juries were not empanelled in accordance with the law as I believe the law to be, in that persons who were not within the designated valuation figures and women were not empanelled as jurors because they were not called for jury service. The implications of this might be thought to be frightening; but whether they are frightening or not has nothing to do with the task of interpreting the Constitution which falls upon this Court. If an infringement of the Constitution were to continue long enough, the cost of correcting it might be great but that is not a reason for perpetuating it.

However, I think that these frightening prospects, which the Court has been invited to view, need not trouble us. If all the juries that were empanelled in the past and tried cases and gave verdicts were empanelled in accordance with the provisions of the Act, it means that nobody served on any of these juries who was not entitled by law to do so. Therefore, no verdict was rendered by any jury composed wholly or in part of persons who were not entitled to be on the jury. The fact that persons who were entitled to be called for jury service were not called might well have been the ground for successful challenge to the way in which the jury panel was drawn up. It did not affect the lawfulness of the presence upon the panel of those who were by law and by the Constitution entitled to be on it. That being so, the acts and verdicts of these juries were those of juries composed of properly qualified jurors.”


It was urged on the Divisional Court by counsel for Mr. Byrne that those expressions of opinion by the Chief Justice and by Walsh J. were strictly obiter dicta and, of course, no view had been expressed by any of the other three judges. In the event, Finlay P., in his judgment, accepted the views of O’Higgins C.J. and Walsh J. and in the light of that held with the concurrence of the other members of the court that there had been a waiver of any right Mr. Byrne might have had and that such waiver would have been valid.

Before leaving that judgment and moving to the judgments of the Supreme Court on appeal, certain comments would seem apposite. Walsh J., rightly, if I may respectfully say so, rejects any idea that the court in interpreting a statutory provision and considering whether it is in conformity with the Constitution or not should have any regard to consequences. That does not mean, however, that in considering what are in fact the consequences of any declaration of either invalidity or inconsistency, the court may not have to fashion special rules relating to consequences especially when to use the words of O’Higgins C.J. “the overriding requirements of an ordered society” would dictate that this be done. That does not mean, as Walsh J. points out, that retrospective invalidity or inconsistency as found by the courts may not result in financial consequences to the State. Each situation may have somewhat different consequences. I am satisfied, however, that it would be wholly against good order if convictions and sentences which were deemed to be lawful at the time they were decided had to be reopened.

As was pointed out by counsel for Mr. Byrne in The State (Byrne) v. Frawley, the retrospectivity issue did not strictly arise. Without any intended disrespect to either the High Court or this court a patchwork solution to the problem of how to determine an application which was in reality without merits was available in that case. The importance of the case and its relevance to this case is in the observations made by judges in it and not in the actual decision itself.

The appeal to the Supreme Court produced judgments of considerable interest. It was unanimously held that the appeal should be dismissed. The majority of the court consisting of Henchy, Griffin and Parke JJ rejected the reasoning of the Divisional Court but held against Mr. Byrne on a narrower ground. The minority consisting of O’Higgins C.J. and Kenny J. more or less upheld the reasoning of the High Court.

The leading judgment for the majority was delivered by Henchy J. In strident terms, he rejected a view which he thought might have been implied in the judgment of the Divisional Court that even if the trial judge had personal knowledge of the de Burca case, he was not obliged to deal with the jury issue unless it was raised before him by counsel and he also strongly rejected the view that the empanelled jury could be considered a valid jury on the grounds that each of them was eligible to be a juror. Henchy J. came to the conclusion, however, that he should assume that the Circuit Court judge did not know about the de Burca case or at least did not know about it in any sufficient detail. He concluded, partly on the basis that the same counsel had been for the defence in each case, that a deliberate and informed decision was made to allow the trial to proceed before a jury in circumstances where the defence knew of the de Burca case. Henchy J. considered that Mr. Byrne was precluded by that election from claiming that the jury lacked constitutionality. In arriving at that view, his opinion was reinforced by the lack of complaint in the Court of Criminal Appeal. It was not until some five months after the trial that Mr. Byrne first complained that the jury had been formed unconstitutionally. This was impermissible in the view of Henchy J. and at p. 350 he observed as follows:

“Having knowingly elected not to claim that right, it would be contrary to the due administration of justice under the Constitution if he were to be allowed to raise that claim in the present proceedings when, by deliberate choice, it was left unasserted at the trial and subsequently in the Court of Criminal Appeal. What has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case.”


The succeeding words in the judgment are also important. They read:

“In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist.”


That last observation should be read in the light of an important passage in the judgment at p. 349. Henchy J. had been discussing a United States Supreme Court case of Taylor v. Louisiana (1975) 419 U.S. 522 where a particular jury system had likewise been condemned as unconstitutional. The passage in question reads as follows:

“As the United States Supreme Court has held in a number of cases, it does not necessarily follow that court orders lack binding force because they were made in proceedings based on an unconstitutional statute. So far as the present case is concerned, because of its particular circumstances it is not necessary to decide whether a person who was convicted by a jury recruited under the Act of 1927 and who did not raise the unconstitutionality of the jury, either at the trial or collaterally in the High Court before conviction, could have later successfully impugned his conviction on that ground. Whether he could have done so or not, it would seem that he would now be debarred from doing so. …”


The particular importance of that passage as far as this case is concerned lies in the reference to it not necessarily following that court orders lack binding force because they were made in proceedings based on an unconstitutional statute. As is by now clear that is firmly my view and I am convinced that good order requires it to be so.

It is highly relevant to consider also obiter dicta contained in the judgment of O’Higgins C.J. in The State (Byrne) v. Frawley. As I have already indicated, contrary to the majority view the former Chief Justice considered that the jury was, at any rate, properly constituted for the reasons which I have explained. But at p. 341 of the report, he had this to say:

“It seems to me proper to add that if the contrary be the case and, by reason of the wrongful exclusion of qualified persons from the panel, every jury then selected is to be regarded as unconstitutional and invalid, then certainly very serious consequences would follow. In the first place it would seem to me to follow with inexorable logic that each trial held with such a jury would have been a nullity and that sentences imposed and carried out, including sentences of death, would have been imposed and carried out without legal authority. In addition, even those who had won acquittals from such juries could find that they were still in jeopardy because their trial was regarded as a nullity. Could organised society accept such a conclusion? There being a supposed unconstitutionality in the trial jury itself, neither consent or lack of objection or passage of time could remedy the situation. As a further consequence, this would seem to mean that all those who have been convicted by such juries and are serving sentences would be entitled to orders similar to the order sought by the prosecutor in the present case. It does not seem to me that it could be urged as an answer to such proceedings that the person convicted had acquiesced in his trial by the jury selected. Acquiescence depends on knowledge; if the person convicted did not know of the suggested invalidity, he cannot be said to have acquiesced. In any event acquiescence cannot confer validity, just as consent cannot confer jurisdiction. I do not think it is necessary for me to examine further the implications of a proposition which I hold to be erroneous.”


Given that the former Chief Justice expressly agreed with the view of Walsh J. that consequences could not affect the issue of whether an enactment conformed with the Constitution or not, it would seem to me that the proposition which he considered to be erroneous must be the proposition that those consequences would in fact flow particularly having regard to the rhetorical question in the passage “could organised society accept such a conclusion?” I agree with Denham J. that “a court is required to differentiate between the declaration of unconstitutionality and retrospective application of such a decision”.

In conclusion, I am of the view that concluded proceedings whether they be criminal or civil based on an enactment subsequently found to be unconstitutional cannot normally be reopened. As I have already indicated, I am prepared to accept that there may possibly be exceptions. But in general it cannot be done. Nor as the Chief Justice and Hardiman J. have pointed out is there any precedent for a collateral challenge of this kind. I am also firmly of the opinion that if the law were otherwise there would be a grave danger that judges considering the constitutionality or otherwise of enactments would be consciously or unconsciously affected by the consequences, something which in the view of Walsh J. and endorsed by O’Higgins C.J. should not happen.

I have based my opinion in the main on Irish case and constitutional law. It is reinforced by the decisions of European and foreign courts referred to in the judgment of the Chief Justice.

These are the reasons why I favoured the appeal being allowed and supported the order made by the court.







Article 40 of Constitution v. Govr. Arbour Hill