High Court of Ireland Decisions

Judgment Title: J. Q. -V- Presiding Judge of Dublin Circuit Court & Ors

Neutral Citation: [2007] IEHC 155


High Court Record Number: 2006 615 JR

Date of Delivery: 15 May 2007

Court: High Court

“1. The relief at D(1) – (5) is sought on the ground that:
(a) On 23rd May, 2006 in proceedings entitled C.C. v. The Director of Public Prosecutions Ireland and the Attorney General (Record No. 357/04, by order of the Supreme Court, s. 1(1) of the Criminal Law (Amendment) Act, 1935 was declared inconsistent with the provisions of the Constitution of Ireland and accordingly the offence with which the applicant was convicted is unknown to law.
2. The relief that D(6) is sought on the ground that:
(a) the applicant was imprisoned on remand in the criminal proceedings the subject matter of this application on 29th June, 2005 and was sentenced (without leaving custody) to four years imprisonment on 15th December, 2005 and remains there to date and so was unlawfully detained in breach of his constitutional right to liberty in that he was at times deprived of his liberty solely on foot of criminal proceedings for the sole offence of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935, the said statutory provision being null and void and of no effect”.

“(1) A: The applicant honestly believed, at the time of the sexual intercourse with the injured party, Ms. S.J.H., which intercourse is the subject matter of the within proceedings that the said Ms. H. was 17 years of age.

18. “I say that I had a consultation with my then solicitors, Frank Buttimer and Co. of C. prior to the month of July 2004 in respect of the charge the subject matter of these proceedings. Junior and senior counsel also attended that consultation. It was explained to me by my solicitor in the presence of counsel that admitting intercourse with the alleged injured party, which I did, that there was no defence in law open to me. I was advised that my honest belief as to her age was of no legal relevance to the question of pleading guilty or not guilty. As a result, my honest belief as to her age, was not really discussed as it was not considered relevant.
19. I pleaded guilty as a result of that legal advice which I received, which was, there was no defence open to me.
20. Even in mitigation in sentence my honest belief was not considered highly relevant given that I had also admitted that I thought the injured party looked 14 or 15 years of age.”

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

“The General Principle
In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.
I do not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court declares a statute to be unconstitutional, or some extreme feature of an individual case, might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice, that verdicts in particular cases or a particular class of cases be not allowed to stand.
I do not consider that there are any grounds for considering this case to be exceptional to the general principle. Mr. A., like all persons who pleaded guilty to or were convicted of an offence contrary to s. 1(1) of the Act of 1935 had available a full range of remedies under the law. They could have sought to prohibit the prosecution on several grounds including that the section was inconsistent with the Constitution. Not having done so they were tried and either convicted or acquitted under due process of law. Once finality is reached in those circumstances the general principle should apply …”.

“In conclusion the general principle is that a declaration of invalidity of a law applies to the parties in the litigation or related litigation in which the declaration is made, and prospectively, but that it does not apply retrospectively, unless there are wholly exceptional circumstances. The applicant in this case was not a party in C.C. v. Ireland and Others (nor has he commenced related litigation, or any form of group action, nor are there wholly exceptional circumstances. Consequently, the applicant is not entitled to the retrospective application of the declaration of unconstitutionality”. From the judgment of McGuinness J. at p. 9:-
“In common with Geoghegan J. I agree with the statement of Denham J. that a court is required to differentiate between the declaration of unconstitutionality and retrospective application of such a decision and that as a consequence it is as a matter of construing the Constitution to determine how such decision should be applied in a manner consistent with the principles of the Constitution. I also agree that when a law has been treated as a valid law, for decades it is impossible, unjust, and contrary to the common good, to reverse the many situations which have been affected over the decades. I concur with the view of Geoghegan J. that concluded proceedings based on an enactment subsequently found to be unconstitutional cannot normally be reopened. This approach is in accordance with common law principles of finality and legal proceedings.
I would not exclude exceptions to this normal rule but any such exception should be based on the clear demands of justice in the particular case. I do not consider that the present case on its facts is in any way such an exception. The applicant was convicted of an offence which consisted of sexual intercourse with a girl under the age of consent. At no stage has he denied that the act of sexual intercourse with this girl took place. There is no suggestion that he was denied due process in the course of his trial. He did not at the time challenge the constitutionality of the relevant section or take any of the other steps which might in law have been open to him. The case was decided in accordance with the law applicable at the time and it is not now open to attack. I agree with the Chief Justice in what he has stated concerning the general principle governing criminal prosecutions where the State has relied in good faith on a statute in force at the time and concerning the application of those principles.”

“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 piggy back 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 that is based on a Jus Tertii, a right which he himself never possessed …”
At p. 43:-
“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 issues 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 an 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 interest 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.

“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”.

“A principle
This judgment recalls that no one has yet succeeding 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 justice, oppression or departure from natural justice, which might prevent that being done in a particular case.
These propositions, and the constitutional provisions and decided cases on which they are based enable one to derive a principle of non retrospectively in the effect of a declaration of inconsistency or invalidity of a statutory provision on concluded cases (other than in relation to which the declaration is granted) save in exceptional individual cases of the sort mentioned. This is wholly consistent with the decisions of the courts for more than three decades, prior to which the issue does not appear to have arisen. During that period no exception to which the researches of counsel can point has been found.
I have read what the learned Chief Justice has said with regard to the general principle mentioned above, and with regard to the nature of any exceptions to it. I very respectfully agree with him and like him 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”.
From the judgment of Geoghegan J.:
“At p. 1;
“I believe that on any reasonable interpretation of Bunreacht na hEireann, convictions and sentences pursuant to enactments not declared unconstitutional, are at the very least deemed to be lawful at the time of the relevant court orders and must be treated as remaining lawful following on a declaration of unconstitutionality …”

“I entirely agree, however, with the view then expressed by O’Flaherty J. that the approach of the majority in Murphy v. The Attorney General while holding that the declarations of invalidity operated ab initio, produced more or less the same result. There were severe limitations on the right to recover back tax. I also agree with the conclusion of O’Flaherty J. at p. 143 of the reports stated as follows:-
“The correct rule must be that laws should be observed until they are struck down as unconstitutional”.
In this connection I see no difference post 1937 legislation and pre 1937 legislation. A judge bound under his declaration on taking office to uphold the laws would not be entitled of his volition to disregard a pre 1937 statute on the basis of his or her own theory that the enactment was inconsistent with the Constitution. Unless and until there is a formal declaration to that effect those laws are binding. They are binding because they must be deemed to be valid and constitutional. Thus in the case of a prosecution under s. 1(1) of the Criminal Law (Amendment) Act, 1935 instituted and completed before any declaration of inconsistency had been made by this court, a “good order” interpretation of the Constitution must clearly require that orders and warrants made in a completed criminal case under the impugned provision must continue to be deemed valid. As the Chief Justice points out in his judgment, in this respect the position is no different than the common law practice which has never been constitutionally challenged, that a decision which effectively changes the law does not confer any right to reopen previous court decisions …”.

“As suggested by O’Flaherty J. the Constitution must be interpreted as deeming orders in completed proceedings prior to a declaration of unconstitutionality to be lawful. A provision that must be deemed lawful is by definition unlawful. It remains the position therefore, that s. 1(1) of the Criminal Law (Amendment), Act 1935 was notionally never in force from and after the coming into being of the present Constitution, but orders made in proceedings completed under it must as a matter of reasonable and orderly interpretation of the Constitution be deemed lawful…”

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

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

“The correct rule must be that laws should be observed until they are struck down as unconstitutional. …from that date all citizens are required to tailor their conduct in such a way as to conform with the obligation of the particular statute. Members of society are given no discretion to disobey such laws on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge in 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 corner stone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by “the reality of the situation” (to adopt Griffin’s 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.”