Analysis: The Supreme Court ruling on child sex abusers departs from the retrospectivity previously applied, writes Carol Coulter, Legal Affairs Correspondent.
The Supreme Court has decided that convicted child sex abusers cannot benefit from the striking down of Section 1 (1) of the 1935 Criminal Law (Amendment) Act. It has therefore limited the consequences of its own earlier decision.
The consequences of the Supreme Court's decision in the C case, heard last week, were potentially far-reaching. Based on past decisions of the court, once a law was found to be unconstitutional, an unconstitutionality dating from the enactment of the Constitution in 1937, then effectively it never existed. If previous decisions were followed, this meant that all decisions taken under it were now void.
If this logic was followed, convictions for the unlawful carnal knowledge of a girl under the age of 15 were no longer valid, and those imprisoned as a result could, like Mr A, seek their release. This line of argument followed a number of previous judgments relating to the striking down of various pieces of legislation in the past, in particular the Murphy case, where the constitutionality of the taxation regime for married couples was successfully challenged and found to be retrospectively inoperative.
The reasons for the Supreme Court rejecting it on this occasion have yet to be given, and are likely to vary among the five judges of the court. Nonetheless, its decision marks a departure from the stark retrospectivity that previously applied in such cases, and this has implications for future constitutional challenges to legislation.
Two threads of argument were put forward by Gerard Hogan SC on the part of the State. The first centred on the specific case put forward by Mr A.
He was not entitled to benefit from last week's judgment, according to Mr Hogan, because his circumstances were entirely different from those of Mr CC. Mr CC had sought to put forward a defence of reasonable mistake about the age of the girl in his case, which had yet to come to trial.When he was not allowed do so he sought a declaration that the Act, because it did not allow for such a defence, was unconstitutional. This was accepted by the court.
In contrast, Mr A never sought to claim he thought the girl he raped was more than 12. He pleaded guilty to the rape. He probably benefited from his guilty plea in receiving a lighter sentence. He never raised any constitutional issue about the jurisdiction of the court or the validity of the law. He neither appealed against his conviction nor pursued the matter through judicial review. For all these reasons he was not entitled to the benefit of the striking down of the relevant section of the law.
Acceptance of this line of argument does not throw out the principle that a law found to be unconstitutional is retrospectively invalid, but it limits its application to those who might have succeeded had they brought the constitutional challenge themselves.
This is likely to prevent most, if not all, of the other sex offenders who might have hoped to benefit from the ruling from doing so.
Mr Hogan's second line of argument was that the Supreme Court should reconsider its previous position on when unconstitutionality began to have practical effect on an impugned law, and whether this should be fully retrospective.
He cited a number of cases in other jurisdictions where there was a time limit on the application of unconstitutionality to a law struck down by the Supreme Court.
In particular, he pointed out, the Canadian constitution, which borrowed heavily from the Irish Constitution, was used to strike down certain laws in similar circumstances to this one, but this did not bring about the abolition of the convictions of those charged under the law. Supreme Courts in the United States and in Canada had imposed temporal restrictions on the unconstitutionality of challenged law, he said.
He asked the court to reconsider or modify its 1980 decision, made in the Murphy case challenging the constitutionality of the regime for taxing married couples, that this regime had been unconstitutional from the beginning, and people were entitled to claim refunds of the tax paid under it.
Mr Hogan also invoked other provisions of the Constitution, particularly its preamble guaranteeing freedom, liberty, justice and order, and said this included the State's duty to protect the person.
It included maintaining an adequate system of criminal justice where the rights of victims were vindicated. To release Mr A would be "a triumph of abstract logic over justice".
Clearly, the Supreme Court agreed.