A. v the Governor of Clover Hill prisonConstitutional law - Declaration of - Applicant seeking release from custody - Unconstitutionality of statutory provision on a claim of unlawful detention - Constitutional inquiry into legality of detention - Whether conviction should stand - Whether applicant detained in accordance with law - Criminal Law (Amendment) Act 1935, section 1(1) - Bunreacht na hÉireann, Article 40.4.2.
The Supreme Court; judgment delivered July 10th, 2006.
A court was required to differentiate between a declaration of unconstitutionality and retrospective application of such a decision, of which there was no principle in Irish law. There was neither an express nor an implied principle of retrospective appliation of unconstitutionality in Bunreacht na hÉireann. The overriding requirements of an ordered society required that convictions and sentences which were lawful at the time they were decided not be reopened. The general principle was that a declaration of invalidity of a law pursuant to the Constitution applied to the parties in the litigation or related litigation in which the declaration was made, and prospectively, but did not apply retrospectively unless there were exceptional circumstances.
The Supreme Court so held in allowing an appeal from a decision of the High Court that the applicant was unlawfully detained by the respondent and should be released pursuant to Article 40.4.2º of the Constitution.
Conor Devally, SC, and Justin McQuaid, BL, for the applicant; Gerard Hogan SC and Paul A. McDermott BL for the respondent.
The Chief Justice said that the background to the case commenced with the conviction of the applicant of the offence of unlawful carnal knowledge contrary to s. 1(1) 1935 Act, following a plea of guilty. In C.C. v. Ireland, delivered on May 23rd, 2006, the Supreme Court declared that s. 1(1) of the Act of 1935 was inconsistent with the provisions of the Constitution. That decision followed an earlier determination by the court 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.
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 was unlawful since s. 1(1) of the Act of 1935 had been declared inconsistent with the Constitution. The High Court decided that the applicant's further detention was unlawful and ordered his release. The respondent appealed against the order of the High Court.
The applicant rested his case on the principle of a provision being void ab initio exclusively without regard to any other principles deriving from the Constitution. It was 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. The Chief Justice did not accept that it was a principle of our constitutional law that cases which had been finally decided and determined on foot of a statute which was later found to be unconstitutional must invariably be set aside as null and void.
The Chief Justice stated that when de Burca v. Attorney General IR 114, struck down as unconstitutional the provisions of a statute governing the selection of juries in criminal cases it did not mean that the thousands of decisions previously decided by juries that were selected under a law that was unconstitutional should be set aside. The Constitution like others, was holistic and provided a 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 could not be distorted by focusing on one principle or tenet to the exclusion of all others.
The abstract notion of absolute retroactivity of the effects of a judicial decision invalidating a statute was incompatible with the administration of justice which the Constitution envisaged, as many of the dicta of the Supreme Court indicated in cases which it had already decided. It was also a notion which other legal and constitutional systems had, in comparable circumstances, found incompatible with a due and ordered administration of justice. 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 was also underscored by the fact that he acknowledged 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, it was 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 could not, and did not, complain of any inherent constitutional injustice or unfairness in the process by which he was convicted.
The Chief Justice said that the Constitution could be viewed from the perspective of the common lawyer since it was superimposed on, and presumed the existence of, the common law system at least insofar as it was not inconsistent or incompatible with the Constitution itself. He therefore considered the common law position on the retroactive effects of judicial decisions, which had 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 was and that overruled precedents were misrepresentations of the law and were never law. He said that no legal system comprehended an absolute or complete retroactive effect of judicial decisions and to do so would render a legal system uncertain, incoherent and dysfunctional. Fundamental interests of public policy required limitations on the retroactive effect of judicial decisions. It had never been held that the common law rule that judicial decisions did not retrospectively apply to cases already decided was inconsistent with the Constitution.
In The State (Byrne) v. Frawley IR 326 and Murphy v. Attorney General IR 241 the law of the United States and the European Communities was referred to 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 . . ." In its case law, the Court of Justice 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. The Chief Justice said that the case law from other common law jurisdictions highlighted the fact that other constitutional courts with similar powers to review the constitutionality or validity of legislation, including where the judicial decision in principle meant that the legislative act was void ab initio, had found that the notion of complete or absolute retrospectivity was inherently incompatible with the broader notions of legal certainty and justice in an ordered society.
The Chief Justice noted that, under Article 50.1, the continued force in effect of all laws was subject to two elements: (a) the Constitution itself, and (b) the extent to which they were not inconsistent with that Constitution. The arguments advanced on behalf of the applicant seemed 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, whereas it was a well-established precept that when any provision of the Constitution had to be interpreted in the context of the Constitution as a whole. Because the courts could only address interpretive issues as they arose in cases before them it meant that the unconstitutionality of an Act could for the first time be decided many decades after its enactment. The Act would 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. Accordingly, an absolute logic of pure retroactivity would lead to all the vicissitudes which the common law system and the other systems referred to eschewed by identifying 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 this instance there was a competing interest between the claim by the applicant that he stood convicted under a law which had subsequently been found to be inconsistent with the Constitution, and the interests of justice, including the rights of the victim, where he was otherwise lawfully convicted, in circumstances where, as he acknowledged, the conviction and sentence were not tainted by any want of fairness or injustice.
In The State (Healy) v. Donoghue IR 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 was conceivable therefore that an Act found to be unconstitutional in the 21st century might well have passed constitutional muster in the 1940s or 1950s. It would be impossible for the court to enquire into and 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 application of a principle of absolute retroactivity consequent upon a declaration of unconstitutionality of an Act in the field of criminal law would render null 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. The judicial dicta and conclusions in cases which touched on the question of retrospective effect of judicial decisions condemning a law for unconstitutionality supported the principle of limited rather then complete or absolute retrospectivity. For example, in de Burca v. Attorney General the Supreme Court made a general point concerning retrospective effect, that was to say the need to subject the question of retroactivity to broader constitutional considerations such as the overriding requirements of an ordered society. Although the court in The State (Byrne) v. Frawley 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, by way of obiter dicta, that there could be limitations on the retrospective effect of a declaration that an Act was unconstitutional, particularly as concerned previous decided cases.
It followed from the principles and considerations set out in the cases cited that final decisions in judicial proceedings, civil or criminal, which had been decided on foot of an Act of the Oireachtas which had 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. Save in exceptional circumstances, any other approach would render the Constitution dysfunctional and ignore that it contained a complete set of rules and principles designed to ensure "an ordered society under the rule of law".
The Chief Justice was 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 was found unconstitutional solely on the consideration of the ab initio principle to the exclusion of all others.
There were 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 determined by the courts, which reasons included the interests of the common good in an ordered society, legal certainty and the need to avoid the incoherence and injustice which would be brought to the system of justice envisaged by the Constitution if the approach argued for were adopted.
In a criminal prosecution where the State relied in good faith on a statute in force at the time and the accused did not seek to impugn the bringing or conduct of the prosecution, on any grounds that could in law be open to him, including the constitutionality of the statute, before the case reached finality, then the final decision in the case had to be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, was unconstitutional.
The Chief Justice did not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court declared a statute to be unconstitutional, or some extreme feature of an individual case, might require, for 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. He did not consider that there were any grounds for considering this case to be an exception to the general principle. The applicant had available a full range of remedies under the law. Once finality was reached in those circumstances the general principle should apply.
Ms Justice Denham was satisfied that there was no principle of retrospective application generally of a declaration of unconstitutionality in Irish jurisprudence. This was the first time the court was requested to state the principle expressly. The clock could not be put back. Consequently, the applicant was not entitled to the retrospective application of the declaration of unconstitutionality.
Ms Justice McGuinness agreed with the judgments of her colleagues in allowing the appeal setting out some observations on the isues.
Mr Justice Hardiman said that the applicant had pleaded guilty to an offence contrary to s.1(1) of the Criminal Law Amendment Act 1935. He received a sentence of three years imprisonment. He had served about half this period when, at the suit of another person, the subsection creating the offence was declared to be inconsistent with the Constitution. This case was about his attempt to get the benefit of that decision for himself. No-one had ever succeeded in doing this in respect of a trial or transaction completed before the declaration.
The first and salient distinction between C.C. v. Ireland and the applicant's case was that C.C. had raised his successful challenge to the constitutionality of s.1(1) of the Act of 1935 before his trial. Neither the present applicant nor any other person up to the time of C.C. v. Ireland did that. That was a huge obstacle in the way of any attempt to piggyback on the declaration granted in C.C v. Ireland, all the more so for an applicant who pleaded guilty in the court of trial. The applicant 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 sought to invalidate a statutory provision had to do so by reference to the effect of the provision on his own rights. He could not seek to attack the section on a general or hypothetical basis and specifically could not rely on its effect on the rights of a third party (Cahill v. Sutton IR 269). Because of that rule, the applicant 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 whereas C.C. had that standing.
The central point on the application was whether a person who had pleaded guilty to an offence, and received an appropriate sentence on the foot of that plea, could demand to be released from the sentence once the provision creating it had been found unconstitutional at the suit of a third party who was asserting that a right of his was unconstitutionally infringed by the subsection?
The applicant 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. But the applicant said his case was unique in that he was held in custody on the basis of his conviction of an offence that no longer existed and therefore could have no legally cognisable consequence: in particular, it could not justify his continuing detention. An essential part of the chain of reasoning which led the trial judge to that conclusion was a dictum of Mr. Justice Henchy in Murphy v. Attorney General which 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 central question in this case could also take the form: are the consequences of a declaration of inconsistency quite as straightforward as that? It was to that question Mr Justice Hardiman then turned.
Two principles were central to the applicant's case: firstly, invalidity was not merely a prospective finding but one which had effect from the time the invalid statute was enacted. Secondly, a finding of invalidity "normally" involved redress: in the case of an imprisoned applicant the most obvious redress was release.
Those were far-reaching arguments which led the State to ask to depart from the finding in Murphy v. Attorney General as to the time when invalidity attached to a measure which was struck down. The respondent further asked the court to find that it had 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 it prospective only or by laying down an intervening period before such declaration would have effect.
Mr Justice Hardiman could not agree with the trial judge that "the conduct of the person relying on the declaration or the fact that an irreversible course of events has taken place" was 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 was difficult to see how The State (Byrne) v. Frawley could have been decided as it was.
A relief, including relief under Article 40.4.2, in relation to acts done under or in consequence of an unconstitutional statute, could be resisted on grounds arising from "the concrete facts of a specific case". Those facts could exhibit one or other of the grounds on which relief had been refused in the cases to date, described in the reports as preclusion, estoppel, acquiescence, delay, public policy, equity, impracticability and the impermissibility of a volte face by a litigant.
All of the cases cited established that the phrase "in accordance with law" required to be construed having regard to the law generally and the Constitution as a whole. That, in turn, was consistent with the significance to be given to the term "justice" as it appeared in the Constitution. Accordingly, each of the factors enumerated could, 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.
As in The State (Byrne) v. Frawley, the applicant had "by his conduct led the courts, the prosecution and the prison authorities" to proceed on the footing that he accepted the validity of the charge against him. Moreover, by comparison with that case the position of the applicant was 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. All those considerations suggested a lack of competence in the applicant to claim the relief.
The jus tertii rule was a necessary regulation of locus standi. It prevented the proliferation of litigation and the expense and uncertainty it caused by requiring that each litigant had to show that on the facts of his situation he was personally affected by the law he challenged. On the facts of the applicant's case it was relevant that he, who accepted the facts alleged against him and the validity of the law which criminalised those facts, now sought 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 had 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 social order. Having regard to the terms of the Preamble to the Constitution and of Article 40.3.1 and 2 those appeared to Mr Justice Hardiman 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 on the applicant.
The particular difficulties affecting an applicant for Article 40.4.2 relief who was a convicted prisoner had been epitomised in The State (Aherne) v. Cotter 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".
The existing case law demonstrated that there were circumstances in which things that had been done under and by virtue of a statute which had been declared inconsistent or invalid must nevertheless continue to be given force and effect. The distinction at the heart of the judicial approach in all the cases cited was one between the statute itself, void ab initio and "transactions carried out under the void statute" which may not themselves be void, or nullities, at all. The trial judge did not appear to address that distinction, but proceeded 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.
The applicant's difficulty was that he had not been able to allege any departure from natural justice in the way he had been treated. He acknowledged his guilt and that his claimed release would be a "windfall". On the other hand, it would be manifest that his release would be a great injustice to others. But it was not necessary to decide the case on that basis. The applicant was attempting to do what no-one had 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. That could not be done because, on the jurisprudence, the trial and sentence were things which required to be given continued force and effect. Mr Justice Hardiman was satisfied that the applicant was now and always had been detained in accordance with law. The propositions enabled 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 save in exceptional cases. Mr Justice Hardiman read what the Chief Justice said with regard to that general principle, and with regard to the nature of any exceptions to it and agreed that the present case could qualify as an exception. It was for the above reasons that he concurred in the order pronounced by the Chief Justice.
Mr Justice Geoghegan said that the crucial issue in this case was 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 had to be treated as nullities. The High Court took the view that that was the position in law. He differed as he believed that on any reasonable interpretation of Bunreacht na hÉireann, convictions and sentences pursuant to enactments not declared unconstitutional, were deemed to be lawful at the time of the relevant court orders and had to be treated as remaining lawful following a declaration of unconstitutionality.
It was a fallacy to assume that once it was declared that a pre-1937 statutory provision creating an offence was inconsistent with the Constitution and was, therefore, not carried over, prior court orders made pursuant to proceedings under it had to be treated as nullities.
Mr Justice Geoghegan referred to the important dicta in The State (Byrne) v. Frawley which indicated that, for reasons of good order, "inexorable logic" did not necessarily determine legal consequences.
Mr Justice Geoghegan said it could not have been the intention of the draftsmen of the Constitution and more properly of the people that if a statutory provision creating an offence was found to be unconstitutional, every past conviction and sentence, going back a number of years were ipso facto nullities. In interpreting any particular provision of the Constitution it was 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 Mr Justice O'Flaherty in The State (Byrne) v. Frawley, the Constitution had to be interpreted as deeming orders in completed proceedings prior to a declaration of unconstitutionality to be lawful. It remained the position that section 1(1) of the Act of 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 had to, as a matter of reasonable and orderly interpretation of the Constitution, be deemed lawful.
As the Chief Justice and Mr Justice Hardiman pointed out there was no precedent for a collateral challenge of this kind. Mr Justice Geoghegan was also of the opinion that if the law were otherwise there would be a danger that judges considering the constitutionality or otherwise of enactments would be consciously or unconsciously affected by the consequences. Mr Justice Geoghegan based his opinion in the main on Irish case and constitutional law. It was reinforced by the decisions of European and foreign courts referred to in the judgment of the Chief Justice.
Solicitors: Agents at Law (Dublin) for the applicant; Chief Prosecution Solicitor for the respondent.
Paul Christopher, barrister