Supreme Court dismisses prisoner's attempt to apply a prior constitutional declaration to his completed conviction.

[2006] IESC 45

THE SUPREME COURT

205/06

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

IN THE MATTER OF ARTICLE 40, SECTION 4, SUBSECTION (2) OF THE CONSTITUTION

Between:

A. Applicant/Respondent

and

THE GOVERNOR OF ARBOUR HILL PRISON

Respondent/Appellant

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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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?

8. 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.

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

Procedural background.

10. 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”.

11. 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”.

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

above”.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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]

22. 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.”

23. 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.”.

24. 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”.

25. 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.

26. 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”.

27. 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”.

28. 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”.

29. 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.

30. 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.

31. 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”.

32. 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.

33. 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.

34. 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.

35. 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”.

36. 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”.

37. 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.

38. 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.

39. 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”.

40. 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.

41. 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.

42. 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)

43. 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”.

44. 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.

45. 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)

46. 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.

47. 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.

48. 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”.

49. 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)

50. 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)

51. 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)

52. 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)

53. 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”.

54. 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.

55. 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”.

56. 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.

57. 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.

58. 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”.

59. 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”.

60. 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.

61. 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”.

62. 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.

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

this case.

Piggybacking.

64. 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.

65. 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.

66. 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.

67. 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”.

68. 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.”

69. 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.

70. 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.

71. 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.

72. 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.

73. 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.

74. 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.

75. 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.

76. 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.

77. 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.

78. 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.

79. 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.

80. 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”.

81. 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.

82. 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.

83. 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.

84. 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.

85. 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.

86. 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.

87. 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.