Supreme Court allows appeal, holding retrospective invalidity does not automatically void prior criminal convictions.

THE SUPREME COURT

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

205/06

IN THE MATTER OF ARTICLE 40, SECTION 4, SUBSECTION 2 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

A. APPLICANT

-v-

THE GOVERNOR OF ARBOUR HILL PRISON

RESPONDENT

JUDGMENT delivered the 10th day of July 2006, by Murray C.J.

“… [T]he fact that a provision was held to be no longer in force since 1937 does not automatically carry the corollary that

what has been done under and in pursuance of that provision after the Constitution came into force will necessarily be

condemned for lack of validity”, Griffin J. in Murphy –v- Attorney General [1982] I.R. 241.

“… [I]t does not necessarily follow that Court Orders lack binding force because they were made in proceedings based on an

unconstitutional statute.” Henchy J. in The State (Byrne) –v- Frawley [1978] I.R. 326 at p. 349.

1. While I will return later to the context in which these judicial dicta were pronounced I mention them at the outset so as to highlight

the fact that the issue which arises in this case, the retrospective effect on cases already decided of a finding that the provision of

an Act is unconstitutional, is not a novel one although it does arise in this case in a novel manner and amplitude for reasons which I

will refer to later.

Background

2. The background to this case commences, in the first instance, with the conviction of the applicant before the Dublin Circuit Court

on the 15th June, 2004 of the offence of unlawful carnal knowledge of a girl under the age of consent contrary to s. 1(1) of the

Criminal Law Act, 1935 following a plea of guilty on his behalf. On 24th November, 2004 he was sentenced to 3 years imprisonment to

date from 8th November, 2004.

3. In a judgment in another case, C.C. –v Ireland & Ors, delivered on the 23rd May, 2006, this Court declared that s. 1(1) of the

Criminal Law (Amendment) Act, 1935 was inconsistent with the provisions of the Constitution.

4. This decision followed an earlier determination by this Court, in judgments delivered on 12th July, 2005, in which s. 1(1) of the Act

of 1935 was interpreted as precluding a defence being raised by a person charged with an offence under the section to the effect

that he had reasonable grounds for believing that the girl in question was over the age of consent to sexual intercourse. Consequent

upon that decision the issue as to the constitutionality of the section was heard on a subsequent date leading to the judgment

concerning the section’s unconstitutionality on 23rd May, 2006.

5. That section was one which did not apply to rape offences generally against adults or minors but to a specific statutory offence

prohibiting consensual sexual intercourse with girls under the age of consent.

6. On 26th May, 2006 the applicant applied for an Order pursuant to Article 40.4.1 of the Constitution directing his release from

custody on the grounds that his detention in accordance with the term of imprisonment imposed upon him following his conviction was

unlawful since the section, s. 1(1) of the Act of 1935 had been declared inconsistent with the Constitution pursuant to Article 50.

7. By Order dated 30th May, 2006 the High Court decided that the applicant’s further detention was unlawful and ordered his release.

8. The respondent appealed to this Court against the Order of the High Court which appeal was heard on 2nd June. At the conclusion

of the hearing of that appeal this Court decided that the applicant’s detention on foot of his conviction was lawful, the appeal was

accordingly allowed and a warrant issued for the arrest of the applicant for the purpose of completing the sentence which he was

serving.

9. When the decision of the Court was announced on that date it was stated that the reasons for the decision would be given

subsequently.

The issue in the present case – Absolute retrospectivity

10. As counsel for the applicant said, his argument in this case is quite simple and he put it in the following terms: his client was

convicted of an offence under s. 1(1) of the Act of 1935. That section has been declared unconstitutional pursuant to Article 50 of

the Constitution.

11. That means, because of its inconsistency with the Constitution, the provision was never the law in the State after the adoption

of the Constitution in 1937. That in turn means it is deemed not to have been the law at the time of his conviction and sentence for

the offence. For that reason alone the final judicial verdict convicting him and sentencing him to imprisonment was null and of no

effect. Therefore he is not detained in accordance with law.

12. It is analogous to the consequence which also flows from a finding that a post-1937 Act of the Oireachtas is incompatible with

the Constitution which has the consequence of such an Act being deemed invalid ab initio, that is to say that from the date of its

enactment, and never to have entered into force.

13. He rests his case on the principle of void ab initio exclusively without regard to any other principles deriving from the Constitution.

14. It is an argument for complete or absolute retrospective effect of such a finding of unconstitutionality on cases previously and

finally decided on foot of an impugned statute, so that those judicial decisions are void and of no effect. For the sake of convenience

reference to the principle of void ab initio includes a reference to a pre-1937 Act not having force and effect from the coming into

operation of the Constitution in 1937. Also for the sake of convenience, except where the context otherwise indicates, I will refer to

a finding of unconstitutionality of an Act as including a finding under Article 50.1 that a pre-1937 Act is inconsistent with the

Constitution and a finding under Article 15.4 that an Act is repugnant to the Constitution.

General Observations

15. On the 2nd day of June, 2006 this Court handed down its decision in this case allowing the appeal of the respondent and setting

aside the Order of the High Court.

16. The reasons why I agreed with that decision are set out in this judgment. I do not accept that it is a principle of our

constitutional law that cases which have been finally decided and determined before our Courts on foot of a statute which is later

found to be unconstitutional must invariably be set aside as null and of no affect.

17. When this Court, in de Burca –v- Attorney General, struck down as unconstitutional the provisions of a statute governing the

selection of juries in criminal cases it did not mean that the tens of thousands of jury decisions previously decided by juries that were

selected under a law that was unconstitutional should be set aside. When this Court found in McMahon –v- The Attorney General that

certain provisions of the Electoral Acts were unconstitutional it did not mean that all elections which took place on foot of the

impugned statute were void and of no effect, that there was no valid Oireachtas in being and none which could validly remedy the

situation.

18. The Constitution like others, is holistic and provides a full and complete framework for the functioning of a democratic State and

an ordered society in accordance with the rule of law, the due administration of justice and the interests of the common good. In

providing for the common good and seeking “to attain true social order”, in the words of the preamble, the application of the

Constitution cannot be distorted by focusing on one principle or tenet to the exclusion of all others.

19. For reasons which I will go on to explain, the abstract notion of absolute retroactivity of the effects of a judicial decision

invalidating a statute is incompatible with the administration of justice which the Constitution envisages, as many of the dicta of this

Court indicates in cases which it has already decided.

20. It is also a notion which other legal and constitutional systems have, in comparable circumstances, found incompatible with a due

and ordered administration of justice.

21. However attractive the argument of the applicant, when taken in isolation, would at first superficially appear, and however

complex the issue in practice may appear to be, it is not one which has been shown compatible with any ordered constitutional

system and in my view is not compatible with ours.

22. At the outset I drew attention to the fact that issues concerning the extent to which a judicial adjudication has retrospective

effect, in particular one which involves a finding that a law is inconsistent with or invalid having regard to the Constitution, is not in

itself novel. What is novel about this case is that such a judicial finding is invoked by another party for the purpose of impugning an

earlier judicial decision which has been finally determined. The issue in earlier proceedings with which this case is concerned is a final

verdict of guilty following a criminal prosecution.

23. A.’s case was finally decided in 2004, he was found guilty, after a plea, and sentenced to prison. The case is over and the

decision final. There is no appeal outstanding. In these proceedings he seeks to mount a collateral attack on that final verdict. At no

stage prior to or in the course of his prosecution proceedings did he seek to impugn the lawfulness of his prosecution or conviction by

reason of any constitutional frailty. A collateral attack arises where a party, outside the ambit of the original proceedings seeks to set

aside the decision in a case which has already been finally decided, all legal avenues, including appeal, having been exhausted, for

reasons that were not raised in the original proceedings but for reasons arising from a later court decision on the constitutionality of a

statute.

24. I accept that this application is not based on the assertion of a jus tertii. It is not a general assertion of unconstitutionality

without regard to the applicant’s circumstances or a claim based on the infringement of rights of another person or persons. The

applicant claims to be directly affected by the decision in C.C. because he was convicted pursuant to the section of the 1935 Act

which in C.C. was subsequently found unconstitutional.

25. No constitutional frailty was found as to the right of the State to criminalise sexual intercourse with girls underage even if it takes

place consensually rather then against their overt will. It cannot be said, and the applicant does not contend, that there was any

inherent injustice in convicting a person of having sexual intercourse with an underage girl, something which has been forbidden by

law for a very long time and was contrary to the law as applied at the time.

26. Moreover, apart from the fact that the applicant, having been charged with an offence under s. 1(1) of the Act of 1935, did not

at any stage challenge its constitutionality, his position is also underscored by the fact that he acknowledges that he was at all times

aware that the girl with whom he was convicted of having sexual intercourse was under the age of consent.

27. In the circumstances, while it might be said to be somewhat analogous to the assertion of a claim based on jus tertii, it is

nonetheless in the nature of a collateral attack on the status of his conviction for the offence in accordance with law, at least as it

then stood. That is to say that he cannot, and does not, complain of any inherent constitutional injustice or unfairness in the process

by which he was convicted.

28. Counsel for the applicant could not point to any case in which such a collateral challenge to a final decision of a court had been

brought before the courts based on a subsequent judicial decision. Neither have I been able to discover any such case. Before

addressing the specifics of this application I wish to make some reference to the question of the retroactive effect of judicial

decisions in our legal system generally and then some consideration to the position in other legal systems.

Retroactivity generally in the common law system

29. The Constitution may in a certain sense fall to be viewed from the perspective of the common lawyer since the Constitution was

superimposed on, and indeed presumes the existence of, the common law system at least insofar as it is not inconsistent or

incompatible with the Constitution itself. I think it would be useful to look at the common law position on the retroactive effects of

judicial decisions previously decided cases.

30. A primary judicial function is to interpret the law that is to say the Constitution, legislation and the common law. As I observed in

Crilly –v- T.J. Farrington [2001] 3 I.R. 251 at p. 286: “… [F]irst, there is the law; then there is interpretation. Then interpretation is

the law. This simplified reference to the judicial process emphasises that when courts apply a statute the interpretation which they

give it has ultimate authority.” One of the consequences of this judicial process is obvious. The meaning or import of law is

interpreted and defined incrementally.

31. It is also important to bear in mind, as in the present application, that the courts cannot and do not choose the legal issues, of

interpretation or otherwise, which they have to decide. They can only decide such issues when they are raised in the context of

judicial proceedings brought before them.

32. Thus, the conventional manner in which the law has been applied in a particular area for many decades may be greatly altered

even turned on its head as a result of a particular issue being raised in a particular case at a particular point in time leading to an

extension of the law by reference to general principles, the overriding of precedent or the specific interpretation of a provision of a

statute which gives it a meaning different from that which had been commonly held. The decision of this Court which decided that

failure to wear a seatbelt could constitute contributory negligence did not entitle already decided cases to be reopened. One could

give many other examples and I will just mention two seminal cases. First is Donoghue –v- Stevenson [1932] A.C. 562, as adopted

and followed by this Court, which extended the duty owed by manufacturers of unsafe goods beyond the ambit of those with whom

the manufacturer had privity of contract to ultimate consumers who were entitled to sue on the grounds of the manufacturer’s

negligence. This did not lead, no more than other leading decisions in the field of contract or tort and so on, to the reopening or

setting aside of finally decided cases. The law did not permit other parties to challenge the finality of already decided cases

concerning manufacturers’ liability. The second example is Byrne –v- Ireland [1972] I.R. 241 which determined, for the first time, that

the State, Ireland, was vicariously liable for the negligent or tortious acts of public servants and did not benefit from any so-called

prerogative of immunity from suit claimed to be attached to the State in its sovereign status. That was the meaning given to the

Constitution and a fortiori since its enactment in 1937. Mrs. Byrne was therefore entitled to recover damages from Ireland for any

injuries which she suffered as a result of falling on a footpath which had subsided due to excavation works carried out by the

Department of Post and Telegraphs.

33. It did not mean in law, and no one has, or was ever likely to suggest, that any persons who had previously brought a similar

unsuccessful case against a Minister or the State or indeed who had confined themselves to suing the only person it was thought

they could sue, the actual public servant who committed the tort (with a risk or likelihood that he or she would not have means to

pay any damages awarded or at best only partially to do so) could in the light of the ruling set aside any previously decided cases or

reopen them.

34. The common law has never conceived as consistent with any ordered administration of justice that previously decided and finally

determined cases could necessarily be set aside or reopened in the light of a new precedent notwithstanding the historical view of

the common law, expressed by Blackstone in his Commentaries, that Judges “discover” the law as it truly is and that overruled

precedents were misrepresentations of the law and were never law. “For if it be found that the former decision is manifestly absurd

or unjust, it is declared, not that such a sentence was bad law, but that it was not law” (Blackstone’s Commentaries 1, 69). In

modern constitutional systems we have moved on from that perception of the law, at least in its purest form, but even when viewed

through Blackstone’s prism the common law did not envisage absolute retroactivity of judicial decisions and did not permit previous

cases, even though finally determined on principles that were ‘never law’ to be reopened. As Judge Richard Posner, writing ex-

judicially, observed, “Pure retroactivity is rare” (The Problems of Jurisprudence, 1993).

35. Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies

it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A

decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a

result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the

remedy in accordance with the ordinary rules of law such as a statute of limitations. It will also apply to cases pending before the

courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective

effect of a judicial decision is excluded from cases already finally determined. This is the common law position.

36. Only a narrow approach based on absolute and abstract formalism could suggest that all previous cases should be capable of

being reopened or relitigated (even if subject to a statute of limitations). If that absolute formalism was applied to the criminal law it

would in principle suggest that every final verdict of a trial or decision of a court of appeal should be set aside or, where possible,

retried in the light of subsequent decisions where such subsequent decision could be claimed to provide a potential advantage to a

party in such a retrial. In principle both acquittals and convictions could be open to retrial. But one has only to pose the question to

see the answer. No one has ever suggested that every time there is a judicial adjudication clarifying or interpreting the law in a

particular manner which could have had some bearing on previous and finally decided cases, civil or criminal, that such cases be

reopened or the decisions set aside.

37. It has not been suggested because no legal system comprehends such an absolute or complete retroactive effect of judicial

decisions. To do so would render a legal system uncertain, incoherent and dysfunctional. Such consequences would cause widespread

injustices.

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

unconstitutional ab initio:

“Over the centuries the law has come to recognise, in one degree or another, that factors such as prescription (negative or

positive), waiver, estoppel, laches, a statute of limitations, res judicata, or other matters (most of which may be grouped

under the heading of public policy) may debar a person from obtaining redress in the Courts for injury, pecuniary or otherwise,

which would be justiciable and redressable if such considerations had not intervened. To take but two examples, both from a

non-constitutional context, where a judicial decision is overruled by a later one as being bad law, the overruling operates

retrospectively, but not so as to effect matters that in the interval between the two decisions became res judicatae in the

course of operating the bad law …”

39. The words of Henchy J., and I will be referring more fully to this passage later, reflect the reality of what the law discovered long

ago. There are, as he also stated in this judgment, “transcendent considerations” which militate against complete or absolute

retrospectivity. Fundamental interests of public policy requires limitations on the retroactive effect of judicial decisions. The legal

order and the administration of justice is not one of perfect symmetry. As Justice Benjamin Cardozo observed at p. 161 in his seminal

work The Nature of the Judicial Process (Yale University Press, 1921) “We like to picture to ourselves the field of the law as

accurately mapped and plotted. We draw our little lines, and they are hardly down before we blur them.” Although judicial

adjudications do have retroactive effect there are important exceptions and restrictions to that effect. A line must be drawn in the

interests of justice.

40. Speaking of a rule limiting retroactive effect of judicial decisions once again Justice Cardozo observed “It may be hard to square

such a ruling with abstract dogmas and definitions. When so much else that a Court does is done with retroactive force, why draw

the line here? The answer is, I think, that the line is drawn here, because the injustice and oppression of a refusal to draw it would

be so great as to be intolerable.”

41. The law is too old and too wise to be applied according to a rigid abstract logic or a beguiling symmetry. As Henchy J. pointed out

above for centuries the law has known general principles and transcendent considerations, such as the public interest, which is

another way of saying the common good, restricting retrospectivity, especially the setting aside of judicial decisions already finally

decided, even though the law on which they are founded is later held to be invalid.

42. It has never been held, and as far as I am aware never been argued, the matter might well be considered beyond argument, that

the common law rule that judicial decisions do not retrospectively apply to cases already decided is in any way inconsistent with the

Constitution.

43. The argument of counsel for the applicant was is simple as it is stark. A. stands convicted and sentenced on a law that does not

exist. Although counsel elaborated on this argument that is its fundamental essence. If it is correct it is one which is out of kilter with

its underlying common law system. It may come as no surprise to find that it is also out of kilter with other constitutional systems and

in particular with our own.

Other legal systems and retrospectivity

44. In his judgments in the Byrne and Murphy cases Henchy J. found it helpful to refer to the law of the United States and the

European Communities as evidence of the principle “that what has been done or left undone under a constitutionally invalid law may

… be impossible, or unjust or contrary to the common good … to reverse or undo …” (See Murphy at p. 324)

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

J. European Union

46. In successful proceedings before the Court of Justice of the European Communities challenging the validity of Community

Regulations pursuant to Article 230 of the EC Treaty the Court is required under Article 231 to declare the measure concerned void. In

principle this means that the measure never entered into effect but the latter Article also provides that the Court of Justice shall, if it

considers this necessary, state which of the effects of the Regulation which it has declared void shall be considered as definitive. On

the direct basis of that provision the Court has limited the retrospective effect of a declaration that a measure is void including by

maintaining the provision in effect until a new, valid measure has been adopted – sometimes specifying that this must be done within

a reasonable period (see for example case C-178/03 Commission –v- Parliament [2006] ECR 1-0).

47. But the Court may also review the validity of a community legal measure, outside the ambit of Article 231, in response to a

request for a preliminary ruling by a national court. In order to maintain legal certainty and consistency the Court as found it

necessary to apply, by way of analogy, a similar approach to declarations of annulment in such cases.

48. Moreover, as the Court of Justice has repeatedly stated, when it gives a decision on the meaning and scope of community law it

is that which “it must be or ought to have been understood and applied from the time of its coming into force” (See Denkavit

Italiana (Case 61/79) [1980] E.C.R. 1205.) In that case is also repeated at para. 17 its oft stated principle which acknowledges that

exceptionally “… [T]he Court may, in application of the general principle of legal certainty inherent in the community legal order and

in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in

good faith, be moved to restrict for any person concerned the opportunity of relying upon the provisions as thus interpreted with a

view to calling in question those legal relationships”. (Emphasis added)

49. In exercising such a general discretion the Court of Justice, as Advocate General Stix-Hackl recalled in her opinion delivered on

14th March, 2006 in Banca Popolare di Cremona –v- Agenzia Entrate Ufficio Cremona (Case C-475/03, unreported) “… has taken

various approaches. In some cases, it is specified that the finding of invalidity has no retroactive effect whatever. In other, it has

stated that the effect is in general not retroactive but has allowed retroactive effect for those who have before the date of the

judgment brought proceedings based on the invalidity”.

50. In its case-law the Court of Justice has clearly considered that limitations on retrospective effect of its decisions were necessary

in the interest of legal certainty and the coherence of the community legal system.

51. In Murphy –v- The Attorney General Henchy J. viewed specifically that approach of the Court of Justice, as a “cogent example”

of the general principle of limiting the retrospective effect of decisions in such circumstances notwithstanding the particular features

of the community legal system.

European Convention on Human Rights

52. The European Court of Human Rights in exercising its jurisdiction to protect fundamental rights under a Convention reflecting the

“common heritage of … freedom and the rule of law” of now 46 European countries found it appropriate and necessary to limit the

retrospective effect of its judgments on fundamental issues of human rights in the interests of legal certainty and the due

administration of justice. This approach was also prompted, at least in part, by the fact that it interprets the Convention in the light

of present-day conditions which is analogous to one aspect of the interpretive approach of this Court to the Constitution of Ireland

(to which I refer later). In Marckx –v- Belgium [1979] 2 EHRR 330 para. 58 (a case which condemned a Belgian law because it wrongly

deprived children born out of wedlock of inheritance rights) the Court, having cited the case-law of the Court of Justice of the

European Communities stated:

“The European Court of Human Rights interprets the Convention in the light of present-day conditions but it is not unaware

that differences of treatment between “illegitimate” and “legitimate” children, for example in the matter of patrimonial rights,

were for many years regarded as permissible and normal in a large number of Contracting States (see, mutatis mutandis,

paragraph 41 above). Evolution towards equality has been slow and reliance on the Convention to accelerate this evolution

was apparently contemplated at a rather late stage. ... Having regard to all these circumstances, the principle of legal

certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from

reopening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in

certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that

court that annul legislation.” (Emphasis added)

53. Even though the European Court of Human Rights condemned the Belgian law because it breached the fundamental rights of

Alexandra Marckx because of a restriction on her inheritance rights as a child born outside of wedlock, it found it not only acceptable

but necessary to limit the retrospective effect of its decision in the interests of a fair and coherent administration of justice rather

than permit it to be distorted by the abstract concept of absolute retrospectivity. In doing so it followed the norms of constitutional

adjudication in other European countries.

India

54. The Supreme Court of India, in addressing a similar issue after having declared a statute invalid, stated in Orissa Cement Ltd. –v-

State of Orissa [1991] Supp. (1.) SCC 430:

“The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in

consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain

amount of discretion. Once the principle that the Court has a discretion to grant or decline a refund is recognised, the ground

of which such a discretion should be exercised is a matter of consideration for the Court having regard to all the

circumstances of the case. The Court can grant or restrict the relief in a manner most appropriate to the situation before it

in such a way as to advance the interests of justice.” (Emphasis added)

55. It is worth noting that the Supreme Court of India deduced its inherent power to restrict the retrospective effect of its judgments

declaring a statute to be unconstitutional in circumstances where Article 13 paragraph I of the Constitution of India, under the

heading of “Laws inconsistent with or in derogation of the fundamental rights”, provides that laws in force “immediately before the

commencement of this Constitution, insofar as they are inconsistent with the provisions of this part, shall, to the extent of such

inconsistency be void” and goes on in para. 2 of that Article to state that “The State shall not make any law which takes away or

abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention,

be void”.

56. It is interesting to note a substantial correspondence between the provisions of Article 13.1 and 2 of the Indian Constitution and

Article 15.4 and 50.1 of the Irish Constitution and that the Indian Constitution is more explicit as to the void nature of the legislation

in question.

57. It is also of interest that the Indian Supreme Court, in exercising its constitutional jurisdiction, like other jurisdictions,

differentiated between the notions of void ab initio and the judicial effects, in particular retrospective effect, of its judgments on such

issues. It is true that the Indian Supreme Court, in adopting this approach, called in aid the otherwise unrelated Article 142 of the

Indian Constitution which enables the Court to “make such order as is necessary for doing complete justice in any Court or matter

pending before it”. Nonetheless it is clear that the Indian Supreme Court felt it necessary to derive from this Article an implied power

to limit retrospective effect in order to bring certainty and coherence to the administration of justice notwithstanding that its

Constitution expressly provided that unconstitutional enactments were void and not just voidable.

United States

58. In the United States the Supreme Court in addressing both the retrospective and prospective effects of its judgments on such

issues was not, as Henchy J. pointed out in Murphy –v- Attorney General [1982] I.R. 241 encumbered by the kind of provisions to be

found in Articles 15.4 and 50.1. Nonetheless, as regards the general principle, he went on to cite with approval from the opinion of

the United States Supreme Court in Chicot County Drainage District –v- Baxter State Bank [1940] 308 U.S. 371 at p. 374 the

following passage:

“The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not

a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged

decree. Norton v. Shelby County (1886) 118 U.S. 425 at p. 442; Chicago, I & L. Rly. Co. v. Hackett (1931) 228 U.S. 559 at p.

566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be

taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have

consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of

the subsequent ruling as to invalidity may have to be considered in various aspects – with respect to particular relations,

individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of

status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature

both of the statute and of its previous application, demand examination. These questions are among the most difficult of

those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-

inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” (Emphases added)

59. Although the United States Supreme Court was not governed or encumbered by the provisions of Articles 15 or 50 it recognised

that even where in principle a statute was unconstitutional and not law, it nonetheless was compelled, in the interests of legal

certainty, to engage in the complex exercise of balancing the competing considerations of a law being void and limitations on absolute

retrospectivity.

60. The case-law of the U.S. Supreme Court in relation to criminal cases was developed in Linkletter –v- Walker 381 U.S. 618 (1965)

in which the Court drew the line or limit on retrospectivity to cases in which judgments of conviction were not yet final so that only

persons in those situations could rely, retrospectively, on the subsequent decision. In Tehan –v- Shott 382 US 406 (1966) the U.S.

Supreme Court reaffirmed the fundamental principle set out in Linkletter that the application of a rule against absolute retrospectivity

in the constitutional area “where the exigencies of the situation require such an application” posed “no impediment – constitutional

or philosophical”. Insofar as there has been judicial debate on this issue in the U.S. Supreme Court it has focused not so much on the

existence of such a rule but rather to what extent there may be exceptions, if any, to it in particular circumstances. The U.S.

jurisprudence was further developed in subsequent case-law including Stovall –v- Denno [1967] 338 U.S. 293 but the current position

is summed up in the Annotated Constitution prepared by the Congressional Research Service at the Library of Congress which states

at p. 685:

“The Court has now drawn a sharp distinction between criminal cases pending on direct review and cases pending on collateral

review. For cases on direct review, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all

cases, State or Federal, pending on direct review or not yet final” (Griffith –v- Kentucky [1987] 479 U.S. 314) … Thus, for

collateral review in federal Courts of state courts criminal convictions, the general rule is that “new rules” of constitutional

interpretation, … announced after a defendant’s conviction has become final will not be applied”. Thus applications for habeas

corpus based on a judicial decision subsequent to a conviction becoming final and not otherwise under direct appeal or review

fall into the category of collateral review and therefore not entitled to rely on “new rules” of constitutional interpretation.

According to the Annotated Constitution “The only exceptions are for decisions placing certain conduct for defendants beyond

the reach of the criminal law, and for decisions recognising a fundamental procedural right “without which the likelihood of an

accurate conviction is seriously diminished. [Tague –v- Laine [1989] 489 U.S. 288.”

Canada

61. In Canada s. 52(1) of the Canadian Constitution Act, 1982 has a substantial correspondence to Article 50 of our Constitution in

that it provides that any law: “… that is inconsistent with those provisions is, to the extent of such inconsistency, of no force or

effect”.

62. As counsel for the respondent has pointed out the Canadian Supreme Court has, notwithstanding those provisions, asserted a

jurisdiction to suspend a declaration of unconstitutionality and apply temporal limitations limiting or restricting altogether its

retrospective effect. In R. –v- Bain [1992] 1 S.C.R 91 which condemned aspects of the jury selection system the Court suspended its

declaration for some six months.

63. In R. –v- Wigman [1987] 1 S.C.R 246 the Canadian Supreme Court held that a decision determining the invalidity of a statute on

unconstitutional grounds could not be relied upon in criminal cases previously decided which were not still pending before the Courts

and which had been finally decided. In that case the Court stated:

“Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal

operation of res judicata; a matter once finally decided cannot be relitigated. Thus a person convicted … will not be able to

reopen his or her case, unless of course the conviction is not final. In the Reference Re. Manitoba language rights … the Court

observed that res judicata would even preclude the reopening of cases decided by the Courts on the basis of constitutionally

invalid laws. This res judicata principle would apply with at least as much force to cases decided on the basis of subsequently

overruled case-law”.

Comment

64. The foregoing case-law highlights the fact that other constitutional courts with similar or analogous powers to review the

constitutionality or validity of legislation, including where the judicial decision in principle means that the legislative act was void ab

initio, have found that the notion of complete or absolute retrospectivity is inherently incompatible with the broader notions of legal

certainty and justice in an ordered society. In short, even allowing for sui generis aspects of each countries system the cases

demonstrate that limitations on retrospectivity in such circumstances is generally consistent with the norms of constitutional

adjudication.

65. Some other legal systems ensure, in different ways, that such an eventuality could not arise such as where a constitutional

interpretation is binding only inter partes and does not have ergo omnes, or general effect. Others make express provision which

permit courts, having regard to all the circumstances of the case, to make prospective rulings only (ex nunc) or to postpone to a

later date the effects of a finding of invalidity on constitutional grounds (e.g. Germany, South Africa).

66. The question of retrospectivity in the form raised here is one which is material to all legal systems. The fact is that at no stage

during the course of the hearing of this case was the Court’s attention drawn to any system of justice in which a finding that a law is

unconstitutional, even where this is deemed to be so ab initio, meant that previous and final judicial decisions based on such a law

must inevitably be considered unlawful and of no effect in law. I am not aware of any legal system that does so.

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

The Constitution and Retrospectivity

68. Before addressing the case-law of this Court that is relevant to the issue in this case I would like to make some broader

observations which relate to the constitutional context in which the issue falls to be decided.

69. There are two substantive provisions of the Constitution according to which a statute may be adjudged unconstitutional. Firstly,

there is Article 15.4 which provides that the Oireachtas should not enact any law which is in any respect repugnant to the

Constitution or any of its provisions and goes on to provide, in sub-paragraph 2, that “Every law enacted by the Oireachtas which is

in any respect repugnant to this Constitution … shall … be invalid”. It is under this provision that an Act enacted by the Oireachtas

after the coming into operation of the Constitution may be declared invalid.

70. Secondly, there is Article 50 of the Constitution which is the provision pursuant to which a law enacted prior to the coming into

operation of the Constitution may be declared not to have continued in force after that date because that Act, or some provision of

the Act, is inconsistent with the terms of the Constitution.

71. This Article provides:

“50.1. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát

Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and

effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.” (Emphasis added)

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

coming into effect of the Constitution.

73. It is relevant to note that the continued force in effect of all such laws is subject to two elements:

(a) The Constitution itself, and

(b) The extent to which they are not inconsistent with that Constitution.

74. The Irish language version is expressed in the same terms.

75. The arguments advanced on behalf of the applicant would seem to take account of one of these elements only as if the provision

read ‘Subject to the extent to which they are not inconsistent with the Constitution’ – the laws in force shall continue to have effect.

76. It is a well-established precept that when this Court is interpreting any provision of the Constitution it interprets that provision in

the context of the Constitution as a whole. The Constitution does not of course expressly say that but it is the logic of judicial

interpretation which has consistently been applied by this Court. It is the teleological approach – a universally recognised method of

interpreting constitutional and other legal norms.

77. In any event, the established interpretive approach of this Court means that the ambit and effect of the provisions of Article

50.1, like any other Article, fall to be considered within the rubric and scheme of the Constitution as a whole. This involves

considering the objectives, principles and provisions of the Constitution and not just those found exclusively within the ambit of

Article 50.1 (or Article 15.4).

78. For present purposes, we are concerned with a pre-1937 statute, the Criminal Law (Amendment) Act, 1935. In Murphy –v-

Attorney General (supra) Henchy J. stated that “Such a declaration under Article 50, s. 1, amounts to a judicial death certificate,

with the date of death stated as the date when the Constitution came into operation.” It is a colourful statement, and I do not

depart from its import so far as it goes and will later point to the distinction, by way of qualification to its import, which, inter alia,

Henchy J. himself made as regards the effects of such a declaration. In a certain sense it is an abstract statement because the point

was not relevant to the point being decided in the case which concerned a post-1937 statute. However, it is of course a correct

statement of the law that a pre-1937 statute found inconsistent with the Constitution is deemed not to have entered into effect on

the coming into operation of the Constitution. It is to be so deemed since in a certain sense it is a form of legal fiction, a well-known

drafting device, because the statute in question may have been alive and kicking for 50 or more years as society generally and

hundreds or even thousands of individuals relied upon it had their affairs and circumstances ordered in accordance with it. Again as

Henchy J. at p. 315, pointed out, relying on a quotation, “The statue has taken its shape and can never go back into the quarry.”

79. It is important, therefore, to bear in mind that there are judicial dicta, of Henchy J. and others, which distinguish the

retrospective effects of a decision from a declaration as such that an Act is unconstitutional ab initio (or inapplicable as and from the

coming into force of the Constitution in 1937). I leave these aside for later detailed consideration in order to first consider the

implications for the constitutional order if one were to give effect to the approach adopted by counsel for the applicant namely that

any case previously decided on foot of an Act found to be unconstitutional is itself void and of no effect.

80. Because the courts may only address interpretive issues as they arise in cases before them (as a consequence of which the

Constitution is interpreted incrementally over time) it means that the unconstitutionality of an Act may for the first time be decided

many decades after its enactment. The Act will be deemed to have been void from the date of its enactment, or a pre-1937 Act to

be ineffective from 1937, even though all actors in society may have presumed or assumed that the Act was lawful and effective and

acted accordingly, including those disadvantaged by its operation. Citizens and State institutions will have ordered their affairs and

established relationships and rights based on the law in force.

81. The applicant’s submission that decisions in cases finally determined in the meantime pursuant to the impugned Act be considered

to be null and void is not a static proposition. If valid, it applies equally, if and when, a pre-1937 Act is found in 10 or 30 or more

years time to be inconsistent with the Constitution. Then everything done under that Act over a span of 100 years would have to be

treated as void and unlawful.

82. Such an absolute logic of pure retroactivity would lead to all the vicissitudes which the common law system and the other

systems referred to above eschewed by identifying doctrines and rules limiting the retrospective effect of new precedent in respect

of cases already finally decided including where a law is declared invalid ab initio.

83. In Murphy –v- The Attorney General (supra) O’Higgins C.J., although he was in a minority as to his specific conclusions, correctly

painted the effects of unlimited or absolute retroactivity observed at p. 297:

“This in turn would mean that all actions and conduct directed or permitted by such a law would be deprived of all legal

authority. Such actions and conduct may have involved an interference with constitutional rights, the prosecution, conviction

and punishment of citizens for offences created by the law in question, the expenditure of public monies or the

encouragement of innocent people to enter into obligations and to accept liabilities of a permanent nature. All of these various

activities and the people involved in them would lose all legal protection and authority – the various actions taken emerging

suddenly as serious wrongs against individuals and society and the persons who took them stand inculpable and amenable

before the law.”

84. Certainly, issues concerning the constitutionality of statutes are on a plane higher than the mere common law, they concern

questions fundamental to the rule of law, the protection of rights and the very framework within which, in the words of the preamble

to the Constitution, “true social order is attained”. Normally those fundamental constitutional concepts, such as the rule of law,

individual rights, justice and a social order based on that rule of law blend together so that the principles of constitutional justice to

be applied to resolve issues may be readily deduced. On other occasions some of those considerations may be competing or even

conflicting ones, where the Courts have to balance those different interests so as to do justice within the framework of the

Constitution.

85. This is the task conferred on constitutional courts.

86. In this instance one may say in broad terms that there is a competing interest between the claim by the applicant that he stands

convicted under a law which has subsequently been found to be inconsistent with the Constitution as from 1937, and the interests of

justice, including the rights of the victim, where he was otherwise lawfully convicted of unlawful carnal knowledge of a 15 year old

girl, in circumstances where, as his counsel acknowledges, the conviction and sentence were not tainted by any want of fairness or

injustice.

87. Thus the effect of absolute retroactivity for which the applicant argues in a sense raises competing considerations which the

Court has to address having regard to the provisions generally of the Constitution and what Henchy J. alluded to as transcendent

constitutional considerations, the public interest, the common good and social order.

88. In McMahon –v- Attorney General [1972] I.R. 69 this Court found that certain provisions of the Electoral Act, 1923 were

inconsistent with the Constitution guaranteeing a secret ballot in Oireachtas elections were inconsistent with the Constitution

because of the manner in which the ballot paper and its counterfoil were numbered. In so finding Ó Dálaigh C.J., who delivered the

majority judgment, observed at p. 111:

“In doing so I should note that it has been no part of the plaintiff’s case, either in this Court or in the High Court, that the

validity of the last or any previous election has been, or can be, affected by the irregularity of which he has complained in

these proceedings.”

89. Although neutral on that question the statement could be said, as the authors of J.M. Kelly’s The Irish Constitution have said, to

contain some implicit assurance that this would not be the case. In any event no proceedings were ever brought challenging the

legality of the previous or earlier elections. One could envisage a range of hypothetical counter-arguments to such a contention but

assuming, for the sake of argument, that the electoral law provisions were to be considered to be of no effect since 1937 then as a

matter of abstract logic there would be no Oireachtas validly in being to propose a curative amendment to the Constitution or to call

a new election in a manner consistent with the provisions of the Constitution. Suffice it to say for the moment that a Court

addressing such an issue would perforce have to look at the Constitution as a whole in order to consider whether, in its terms, it

intended such an effect or whether it permitted or required some exception or restriction on absolute retrospectivity. (Later in the de

Burca case O’Higgins C.J. was, in an obiter dictum, dismissive of any retrospective consequences deriving from that case in the

overriding interests of an ordered society.)

90. There is another aspect of the Constitution and constitutional interpretation which highlights the amplitude of the issue raised in

this case. In Sinnott –v- Minister for Education [2001] 2 I.R. 545 I refer to the view that the Constitution may be viewed as a living

document “which falls to be interpreted in accordance with contemporary circumstances including prevailing ideas and mores”. This

was a reference to those provisions of the Constitution which might be said to have a dynamic quality of their own where they refer

to concepts involving standards and values such as ‘personal rights’, ‘the common good’ and ‘social justice’, I cited Walsh J. in McGee

–v- The Attorney General [1974] I.R. 284 at p. 319 where he stated: “It is but natural that from time to time the prevailing ideas of

[prudence, justice and charity] may be conditioned by the passage of time; no interpretation of the Constitution is intended to be

final for all times”. Similarly in The State (Healy) –v- Donoghue [1976] I.R. 325 O’Higgins C.J. observed that “… rights given by the

Constitution must be considered in accordance with the concepts of prudence, justice and charity which may gradually change and

develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas”. It

is entirely conceivable therefore that an Act found to be unconstitutional in this the 21st century might well have passed

constitutional muster in the 1940’s or 50’s. It would be impossible and absurd for the Court to enquire into and identify the point in

time when society could have been deemed to have evolved so as to call in question the constitutionality of an Act. The Court can

only decide the issue on the basis of the facts as it finds them when a case is decided. It would be equally absurd to consider in such

circumstances, a constitutional invalidity referable to present day mores, irrespective of whether the Act was pre- or post-1937, that

all cases finally decided pursuant to it were nothing and of no effect because of the statute being deemed void ab initio, when

conceivably it might have been considered valid in the 1950’s or later.

91. Absolute retroactivity based solely on the notion of an Act being void ab initio so as to render any previous final judicial decisions

null would lead the Constitution to have dysfunctional effects in the administration of justice. In the area of civil law it would cause

injustice to those who had accepted and acted upon the finality of judicial decisions. Rights which had become vested in third parties

as a consequence of such decisions would be put in jeopardy. The application of a principle of absolute retroactivity consequent upon

a declaration of unconstitutionality of an Act in the field of criminal law would render null and of no effect final verdicts or decisions

affected by an Act which at the time had been presumed or acknowledged to be constitutional and otherwise had been fairly tried.

Such unqualified retroactivity would be a denial of justice to the victims of crime and offend against fundamental and just interests of

society.

92. In addition to causing injustice it would undermine one of the fundamental objectives of the administration of justice, finality and

certainty in justiciable disputes. As Hamilton C.J. observed in Re. Greendale Developments Ltd. (In Liquidation) (No. 3) [2000] I.R. 514

at p. 527: “The finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of

fundamental importance to the certainty of the administration of the law, and should not lightly be breached”.

93. In my view when an Act is declared unconstitutional a distinction must be made between the making of such a declaration and its

retrospective effects on cases which have already been determined by the courts. This is necessary in the interests of legal

certainty, the avoidance of injustice and the overriding interests of the common good in an ordered society.

94. Such a distinction is consistent in my view with the basic norms of constitutional adjudication and is supported by judgments and

judicial dicta in the case-law of this Court, to which I will now turn.

Irish case-law

95. The judicial dicta and conclusions in cases which have come before this Court and which touch on the question of retrospective

effect of judicial decisions condemning a law for unconstitutionality in my view, support the principle of limited rather then complete or

absolute retrospectivity.

96. It is true that the Court has not had to address the issue in the stark and direct terms in which it has been presented in this

case. As the authors of J.M. Kelly: The Irish Constitution (4th Edition) perceptively observe at p. 895: “The question of the time from

which a law, which has been declared inconsistent with or invalid under the Constitution, is to be declared a nullity and the closely

related question of retroactive potential of such a declaration, are matters which for many years escaped scrutiny altogether and in

the last 30 years or so have only been partially explored”.

97. I note in passing that the authors themselves identify the distinction between the question of time from which a law is to be

considered a nullity and the other, closely related, question of retroactive effect. I would also recall that the Court can only deal with

questions as they are posed and the issue in this case has not heretofore arisen in such a direct form as in this case notwithstanding

the range of Acts which have over the decades been declared unconstitutional. Indeed counsel could not refer to any case in the

nature of a later collateral attack on a finally decided case ever having been brought. Perhaps the fact that no such issue in that

form has arisen reflects the professional foresight of lawyers as to the prospects of success in the light of their perception of the

meaning and effect which the Court was likely to give to the Constitution as a whole.

98. Nonetheless, it is not I think without significance that in those cases in which retrospectivity did arise there was never a finding

of unrestricted retrospectivity of the kind argued for by the appellant in this case. On the contrary in each of the cases, for one

reason or another, retrospectivity was considered to be limited.

de Burca –v- The Attorney General

99. In de Burca –v- The Attorney General [1976] I.R. 38 the plaintiff sought and obtained a declaration that certain provisions of the

Juries Act, 1927 were inconsistent with the provisions of the Constitution, essentially on the ground that they effectively excluded

women from sitting on juries in criminal trials and that that exclusion was based on sex alone. Towards the end of his judgment in that

case, O’Higgins C.J., acknowledged that the implications of such a finding of unconstitutionality for the validity of the thousands of

criminal jury trials which had been held since the enactment of the Constitution in 1937 caused him some concern. He pointed out

that each jury had been fairly drawn from a panel all of whose members were eligible to be on the panel so that there could be no

constitutional frailty. He acknowledged the fact may have been that the panel was wrongly restricted, or could have been challenged,

but went on to state at p. 63:

“However, this does not alter the fact that the trial was a trial by jury and no person served on such juries who was not

eligible. In my view, an irregularity has taken place in the manner in which citizens have been called to jury service – in the

same way as an irregularity took place in the manner in which ballot papers were numbered for parliamentary elections up to

the decision in McMahon –v- Attorney General. In McMahon’s case the Courts were not asked to entertain any suggestion that

such irregularity invalidated previous elections nor, in my view, could such a submission have been successfully made. The

overriding requirements of an ordered society would invalidate such an argument. In this instance, the same considerations

apply”. (Emphasis added)

100. Although that view was obiter since an issue of retroactivity did not really arise in that case, I think O’Higgins C.J. was entirely

correct in saying that the problem nonetheless had to be analysed from the point of view of a coherent system of justice in an

ordered society. In those observations O’Higgins C.J. made two points concerning retrospective effect. The first was peculiar to the

particular case, namely, that whatever constitutional frailty attached to the manner of composing the jury panel, those who actually

were on it were lawfully eligible to be on it. Walsh J. made largely the same point in his judgment, in a perhaps more direct way, when

he said at p. 72:

“If all the juries that were empanelled in the past and tried cases and gave verdicts were empanelled in accordance with the

provisions of the Act, it means that nobody served on any of these juries who was not entitled by law to do so.”

101. Walsh J. certainly did not take the view that the Court’s declaration that the Act of 1927 was not law since 1937 retrospectively

undermined its application to the selection of juries in the meantime. Jurors empanelled under an Act were nonetheless lawfully

entitled to act as jurors. Clearly, he did not view the application of the Act in previous cases as null and of no effect.

102. The second point of O’Higgins C.J. was of more general application, that is to say the need to subject the question of

retroactivity to broader constitutional considerations such as the overriding requirements of an ordered society. This he saw as being

relevant not only to the de Burca case but more generally, such as in a case like the McMahon case, where the tenet of absolute

retrospectivity would not be a valid basis for calling in question the validity of all previous Oireachtas elections consequent upon the

finding in that case.

The State (Byrne) –v- Frawley

103. The other members of the Court in the de Burca case were silent as to the question of retrospectivity but that issue was to be

explicitly raised in the case which followed on from de Burca that is to say The State (Byrne) –v- Frawley [1978] I.R. 326.

104. Henchy J., who delivered the majority judgment of the Court was quite critical of and disagreed with the point made by O’Higgins

C.J. and Walsh J. in the de Burca case, to the effect that juries selected from a jury panel composed of persons who were lawfully

eligible under the Act of 1927 to be on the panel escaped constitutional frailty notwithstanding that the exclusion of women meant

the relevant provisions of the Act were inconsistent with the Constitution. He also described the dicta of O’Higgins C.J. and Walsh J.

as obiter, as indeed they were, which explains the silence of the other judges on the question of retrospectivity in de Burca.

105. There may be some significance in the fact that despite his pointed criticism of the first point of O’Higgins C.J. in the de Burca

case he made no criticism of the second point namely that in considering retrospective effect of such judgments the overriding

requirements of an ordered society must enter into the equation.

106. The Byrne case was one in which applicant there sought an Order of habeas corpus pursuant to Article 40 of the Constitution on

the grounds that his conviction in a criminal trial which took place in the immediate aftermath of the de Burca decision was invalid and

of no effect since the jury had been selected under the Act of 1927 declared to have been inconsistent with the Constitution and

therefore consequently there was no such law in being at the time of his trial. This argument was rejected by the Court, as it had

been by Walsh J. and O’Higgins C.J., for different reasons in their obiter dicta in de Burca itself.

107. I think counsel for the applicant is correct in submitting that the particular ratio upon which the Court based its decision to

dismiss the application in the Byrne case does not apply to the circumstances of this particular case. As Henchy J. pointed out the

applicant’s position in that case was “uniquely different from that of other persons convicted by a jury selected under the provisions

of the Act of 1927”. Without going into the particular facts of the applicant’s position suffice it to say that Henchy J. in dismissing the

application concluded “[h]aving by his conduct led the Courts, the prosecution (who were acting for the public at large) and the

prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now

entitled to assert the contrary”. Three other members of the Court concurred with Henchy J.

108. Although the Court, in the majority judgment, clearly considered that it was not necessary to address the general question of

retrospectivity given the particular facts of the case it nonetheless thought it important enough to state, even by way of obiter

dicta, that there may be limitations on the retrospective effect of a declaration that an Act is unconstitutional, particularly as

concerns previous decided cases. At p. 349 Henchy J. had this to say:

“As the United States Supreme Court has held in a number of cases, it does not necessarily follow that court orders lack

binding force because they were made in proceedings based on an unconstitutional statute.”

109. Notwithstanding the allusion to a similar approach in the United States it is clearly intended to be a statement, albeit obiter, of

the position in Irish law. I have no doubt it is a correct one.

110. That statement is underscored in the concluding paragraph of the judgment of the majority which states at p. 350:

“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.”

111. I think these dicta can only have been intended as a shot across the bow of anyone contemplating challenging the “thousands”

of jury criminal trial verdicts which were finally determined prior to the decision in the de Burca case. If it was, it was an effective

one. As the historical record shows, however tempting it might superficially have seemed, there is no report of a single challenge to a

jury verdict in a criminal trial which took place prior to the de Burca decision notwithstanding that provisions of the Act of 1927 under

which they were constituted was deemed never to have continued as law after 1937 by virtue of the Court’s declaration in de Burca.

Murphy –v- Attorney General

112. In this case the Court declared that certain taxation provisions of the Income Tax Act, 1967 were void ab initio and therefore

never had the effect of law. Even though this case did not involve the retrospective effect of that declaration on a case already

decided, the Court nonetheless restricted the retrospective effect of its declaration so as to deny to the plaintiffs the right to

recover the income tax levied under an Act, deemed never to have had the effect in law, in respect of the years prior to the tax year

1978-9, the year in which they initiated their proceedings challenging the constitutionality of the provisions. They were confined to

recovering the unconstitutionally levied taxes in respect of two tax years only, 1978-9 and 1979-80. It was also held by the Court

that the decision could not have retrospective effect for the benefit of any other taxpayer except for those, if any, who had

proceedings pending before the courts with a similar claim. As Henchy J. mentioned, it was understood that there were no such claims

pending. The decision had of course prospective effect because the taxes in question could no longer be levied as and from the date

of the decision.

113. Henchy J. was at pains to reiterate what he stated in his majority judgment in Byrne when he came to give judgment in Murphy

–v- Attorney General. Having made the statement, so relied upon by counsel for the applicant, that a declaration under Article 50, s.

1 “amounts to a judicial death certificate” from the date when the Constitution came into operation, he immediately qualified the

effect of such a declaration in the following terms:

“While a declaration under Article 50, s. 1, does not arise in this case, it is important to note 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 of nullification or for

other legal redress: see the decision of this Court in The State (Byrne) –v- Frawley. In other words, a declaration under Article

50, s. 1, that a law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that

what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity. Once a

finding is made under Article 50, s. 1, that, for want of consistency with the Constitution, a law ceased in 1937 to have the

force of law, a declaration of such invalidity is a constitutional imperative. Whereas, the consequences arising from having

acted on foot of or in pursuance of the statutory provision which is thus retrospectively been found to have lost the force of

law in 1937 may, in certain circumstances, be held to be beyond the reach of legal action based on that invalidity.” (Emphasis

added)

114. What Henchy J. clearly had in mind was a distinction to be drawn between the objective rule according to which a pre-1937

found to be inconsistent with the Constitution must be deemed not to have had effect after its coming into operation and the

retrospective consequences of such a finding as concerns matters previously done over the years when the statute was de facto in

force. This distinction has, in my view, even greater force where it concerns cases previously finally determined before the courts.

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

“In my opinion, however, reliance cannot be placed on these cases for the purpose of interpreting the relevant provisions of

our Constitution insofar as the time from which a statute, held by our Courts to be invalid, is to be construed (as distinct from

the question as to what has been the effect of what may have been done under and in pursuance of the condemned

statute).” (Emphasis added)

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

“The effect of a declaration under Article 50 is not that the condemned provision has ceased to be in force but that, as of the

date when the Constitution came into operation, it was no time thereafter in force. But, as Mr. Justice Henchy has pointed out

in his judgment, the fact that a provision was held to be no longer in force since 1937 does not automatically carry the

corollary that what has been done under and in pursuance of that provision after the Constitution came into force will

necessarily be condemned for lack of validity.”

117. This reflects the view of this Court in that case and runs directly counter to any notion of complete or absolute retrospectivity

of decisions argued for by the appellant.

118. Henchy J. was to return to this theme at p. 314 of his judgment in Murphy. After an erudite exposition as to why the

Constitution must be interpreted as requiring that an Act of the Oireachtas found to be incompatible with it pursuant to Article 15

must be treated as void ab initio he went on to state:

“But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for

constitutional or other reasons will necessarily give a good cause of action: see, for example, the decision of this Court in The

State (Byrne) –v- Frawley. While it is central to the due administration of justice in an ordered society that one of the primary

concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, while

legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that

there may be transcendent considerations which make such a course undesirable, impracticable or impossible.

Over the centuries the law has come to recognise, in one degree or another that factors such as prescription (negative or

positive), waiver, estoppel, laches, a statute of limitations, res judicata, or other matters (most of which may be grouped

under the heading of public policy) may debar a person from obtaining a redress in the courts for injury, pecuniary or

otherwise, which would be justiciable and redressable if such considerations have not intervened …

For a variety of reasons, the law recognizes that in certain circumstances, no matter how unfounded in law certain conduct

may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot,

or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and of the

common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality –

even irreversibility – that tends to attach to what has become inveterate or has been widely accepted or acted upon, the

recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and

other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of

the corpus juris.

…In this judgment I deliberately avoid any general consideration of the broad question as to when, and to what extent, acts

done on foot of an unconstitutional law may be immune from suit in the Courts; … I think experience has shown that such

constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the

concrete facts of a specific case.” (Emphasis added)

119. Although these dicta of Henchy J. in his majority judgment may be considered as obiter notwithstanding their contextual

relevance to the nature of the issues arising in the Murphy case he has, in those dicta, emphatically rejected the notion that things

done or decided under a statute which has been subsequently found to have been void and no effect at the time necessarily means

that all that what was done or decided previously must be considered invalid, null or of no effect.

120. Having expressed the foregoing views he then went on to deal with the precise question raised in the Murphy case which he

expressed to be “Notwithstanding the invalidity ab initio of the condemned sections, are taxes collected under them recoverable?”

121. He answered this question by stating “In this case, whether the claim be treated as one in quasi contract or as one in equity, I

would consider the enforceable cause of action to have arisen at the beginning of the tax year 1978-9”. In doing so he limited their

right to recoupment to two years only and held they had no right to recoup unconstitutionally collected taxes of any previous years.

122. Among the reasons which led him to exclude complete or absolute retrospectivity of a judicial decision on the constitutionality of

a statute were ‘the compulsion of public order’, ‘the common good’, ‘the quality of legality – even irreversibility’ that attaches to that

which has become inveterate or has been widely accepted and acted upon. He did not purport to set out all relevant factors but

those which he did echo the sentiments of O’Higgins C.J. in the de Burca case when the latter spoke of “the overriding requirements

of an ordered society”.

123. The Court in the Murphy case limited the plaintiffs to recovering the income as and from the year 1978-9, and not prior to that,

because that was the first year for which they effectively objected to the flow of those taxes into the central fund. Henchy J.

reasoned at p. 318: “Up to that year the State was entitled, in the absence of any claim of unconstitutionality, to act in the

assumption that the taxes in question were validly imposed and … were liable to be expended … for the multiplicity of purposes for

which drawings are made on the central fund of the State”. He concluded that any taxpayer who allowed his PAYE tax contribution

to be deducted every week for the whole tax year “without bringing proceedings to assert the unconstitutionality of such deductions,

should (in the absence of exceptional and excusing circumstances) be held barred from recovering the sums unwarrantedly

collected during that tax year”. In preventing the plaintiffs recovering some of the unconstitutionally imposed taxes he acknowledged

that “The primary purpose of an order of restitution is to restore the status quo, insofar as the repayment of money can do so”.

That is, certainly the primary redress in a direct action, which this was. However, he pointed out at p. 320: “But when, as happened

here, the State was led to believe, by the protracted absence of a claim to the contrary, that it was legally and constitutionally

proper to spend the money thus collected, the position had become so altered, the logistics of reparation so weighted and distorted

by factors … that it would be inequitable, unjust and unreal to expect the State to make full restitution”. I would add in passing that

this general approach was approved by Keane J. (as he then was) in McDonnell –v- Ireland [1998] 1 I.R 134 (in a case in which a

claim based on a subsequent finding of unconstitutionality of a statute was dismissed) “I would also agree that, in any event, as was

made clear in Murphy –v- the Attorney General … the fact that the provisions struck down were invalid ab initio does not have, as a

necessary consequence, the vesting of a cause of action in the plaintiff”.

124. The most relevant point is that this Court in that case limited the plaintiffs’ rights to recover for past years, notwithstanding the

unconstitutionality of the statute, for public policy reasons and to avoid the inequity and injustice which a decision based solely on

the single tenet of absolute retrospectivity would bring about.

125. I think it is also important to note that Henchy J. found support for his conclusion in that case by comparable decisions from the

United States and the Court of Justice of the European Communities. This was in support of the ratio of his decision which was the

majority view of the Court. It was for that purpose that he quoted with approval the passage, which I have cited earlier in this

judgment, from the decision of the Supreme Court of the United States in Chicot County Drainage District –v- Baxter State Bank

(supra). That supports the principle of a clear distinction between a finding that a statute is void ab initio by reason of its

unconstitutionality and the retrospective effects of such a decision on other matters done and cases finally decided before such a

finding.

126. The Court also saw in the case-law of the European Court of Justice “a cogent example of the principle that what has been

done or left undone under a constitutionally invalid law may, in certain events, such as the evolution of a set of circumstances

which it would be impossible, or unjust, or contrary to the common good, to attempt to reverse or undo, have to be left beyond the

reach of full redressive legal proceedings …” (Emphasis added)

127. This was again an explicit acknowledgment by this Court that a judgment condemning a statute for being inconsistent with or

contrary to the Constitution does not mean that all which was done or decided under that statute prior to the decision on

constitutionality is in all circumstances void and of no effect. It is a principle which is, for the reasons indicated in the various judicial

dicta which I have cited, consistent with the Constitution as a whole, the common law dimension of our legal system and the legal

systems of many other countries in which the courts have the same or an analogous power of judicial review of the validity of laws.

McDonnell –v- Ireland

128. McDonnell –v- Ireland (supra) was the case in which the plaintiff forfeited his position in the Civil Service under s. 34 of the

Offences Against the State Act, 1939 with effect from 30th May, 1974 as a result of being convicted of membership of the IRA. In

July 1991, in Cox –v- Ireland [1992] 2 I.R. 503 this Court decided that s. 34 of the Offences Against the State Act, 1939 was

unconstitutional. As a result, Mr McDonnell brought proceedings claiming that his purported dismissal was unconstitutional and of no

legal effect since the statute was void ab initio and that he was entitled to damages for breach of his constitutional rights including

loss of income, pension and gratuity entitlements. His claim was dismissed in the High Court and dismissed unanimously on appeal to

this Court. I have already cited

129. Keane J.’s (as he then was) expression of agreement in his judgment of the approach of Henchy J. in the Murphy case. Although

most, if not all, of the Judges expressed doubts concerning the nature and import of his cause of action (and indeed whether he had

one at all), the Court in general found that it could dispose of the appeal by applying the statute of limitations. However, it is the

judgment of O’Flaherty J. in that case which I think is of particular relevance to the issue in this case.

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

at p. 143:

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

Constitution provides that:

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

and that, unless the contrary is expressed, that law is effective from that day forth. Following signature by the President, a

public notice is published in Iris Oifigiúil stating that the Bill has become law; (Article 25.4.2°).

From that date, all citizens are required to tailor their conduct in such a way as to conform with the obligations of the

particular statute. Members of society are given no discretion to disobey such law on the ground that it might later transpire

that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold “the

Constitution and the laws”; the judge cannot have a mental reservation that he or she will uphold only those laws that will not

someday be struck down as unconstitutional. We speak of something as having “the force of law”. As such, the law forms a

cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of

constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the

requirements of an ordered society and by “the reality of situation” (to adopt Griffin J.’s phrase), should have the effect that

laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise

in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy –v- The

Attorney General [1982] I.R. 241 as well as in Cox –v- Ireland [1992] 2 I.R. 503.”

131. This statement of the law I am quite satisfied is correct. It is the logical and ineluctable application of the principles and

considerations set out in the judgment of this Court in Murphy and indeed other judicial dicta which I have cited.

132. It follows from the principles and considerations set out in the cases, which I have cited, that final decisions in judicial

proceedings, civil or criminal, which have been decided on foot of an Act of the Oireachtas which has been relied upon by parties

because of its status as a law considered or presumed to be constitutional, should not be set aside by reason solely of a subsequent

decision declaring the Act constitutionally invalid.

133. The parties have been before the Courts, they have, in accordance with due process, had their opportunity to rely on the law

and the Constitution and the matter has been decided. Once finality has been reached and the parties have in the context of each

case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful.

134. Save in exceptional circumstances, any other approach would render the Constitution dysfunctional and ignore that it contains a

complete set of rules and principles designed to ensure “an ordered society under the rule of law” in the words of O’Flaherty J.

135. I am quite satisfied that the Constitution never intended to visit on that ordered society the potential unravelling of judicial

decisions over many decades when a particular Act is found unconstitutional solely on the consideration of the ab initio principle to

the exclusion of all others.

136. Before coming to the general principle, which in my view should apply, I should perhaps say, although it hardly needs saying,

that this could not affect the “primary redress”, referred to by Henchy J. in Murphy, whereby the Courts must, in a direct challenge

to an Act, declare it to be unconstitutional where it so finds irrespective of the consequences. As Walsh J. stated in de Burca –v-

Attorney General (at p. 72) “if an infringement of the Constitution were to continue long enough, the cost of correcting it might be

great, but that is not a reason for perpetuating it”. That is the primary redress. In a primary or direct action the question of

retrospective effect on a previous and finally decided case does not arise.

137. As I have made clear we are addressing here the question of absolute or automatic retrospectivity on previously decided cases

since that is the essential premise of the applicant’s argument. If one is to qualify such retrospective effect it goes without saying

that it must be done in a manner and to an extent which is consistent with constitutional justice including the fundamental rights of

individuals. There is no doubt that where to draw the line in limiting retrospective effect is a difficult question for Courts. One will not

find a simple formula for all circumstances or all classes of cases, even in those countries such as those which I have mentioned,

which make express provision for limiting retrospectivity or in other words the temporal affects of judgments. It is a complex question

often resolved on a case-by-case basis, as has been also pointed in a number of the cases of this Court which have been referred to.

138. Justice Cardozo having raised a question as far back as 1921 as to where a line, limiting retrospectivity, might be located

expressed the view that such location would be governed, inter alia, not “by the fetish of some implacable tenet”, but by

considerations of “the deepest sentiments of justice”. I would agree and certainly not solely by an implacable application of a tenet

such as absolute retrospectivity.

139. This is not just a modern approach. Cicero reports the maxim “Summum ius summa iniuria” – variously translated but classically:

‘the strictest application of the law is the greatest injustice’.

Conclusion

140. In the light of the considerations outlined above, the judgments and dicta of this Court to which I have referred, I am satisfied

that the Constitution permits, if not requires, a distinction to be made between a declaration of invalidity of an Act and the

retrospective effects of such a declaration on previous and finally decided cases.

141. There are transcendent constitutional reasons why a declaration of constitutional invalidity as regards a statute should not in

principle have retrospective effect so as to necessarily render void cases previously and finally decided and determined by the courts,

which reasons include the interests of the common good in an ordered society, legal certainty and the need to avoid the incoherence

and injustice which would be brought to the system of justice envisaged by the Constitution if the approach argued for were adopted.

142. I am reinforced in that view by the fact that such a principled approach is consonant with the general principles of constitutional

adjudication and interpretation in other legal systems generally but particularly in those where a judicial declaration of invalidity of a

law also applies ab initio.

The General Principle

143. In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to

impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the

constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be

deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional.

That is the general principle.

144. 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.

145. I do not consider that there are any grounds for considering this case to be an exception to the general principle. Mr. A., like all

persons who pleaded guilty to or were convicted of an offence contrary to s. 1.1 of the 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.

146. Before concluding I should make some brief observations on the essentials of the decision the High Court in this case.

The Judgment of the High Court

147. In her decision in this case the learned High Court Judge focused on the principle that any pre-1937 statutory provision

inconsistent with the Constitution shall not have force and effect as and from the coming into operation of the Constitution in 1937.

She referred in particular to the obiter dictum of Henchy J. that a declaration under Article 50.1 “amounts to a judicial death

certificate” as and from the coming into operation of the Constitution.

148. She however then went on to observe “Apparently, there is no decided case on the effect of a declaration that a pre-

Constitution is inconsistent with the Constitution”. In doing she acknowledged the distinction between a declaration that a pre-1937

Act is inconsistent with the Constitution and the effect of such a declaration. As she pointed out the issue was considered by this

Court in Murphy –v- The Attorney General. However I do not feel that she gave sufficient consideration or weight to the words of

Henchy J. which, at the expense of repeating previous citations, immediately followed his phrase just quoted above he went on to

state at p. 307:

“While a declaration under Article 50, s. 1, does not arise in this case, it is of importance to note that, notwithstanding the

judicial declaration of the demise in 1937 of a statute or a statutory provision, it may be that, because of a person’s conduct

or because of the irreversible course events have taken, or for any one of a number of other reasons, what was done on foot

of the condemned statute or statutory provision may not necessarily be relied on as a ground for a claim for a nullification or

for other legal redress: see the decision of this Court in The State (Byrne) –v- Frawley.”

149. The Byrne case, it will be recalled, was one in which Mr. Byrne, the applicant, also sought an order for habeas corpus on the

grounds that his trial and conviction had been fundamentally flawed because of a previous declaration by this Court that certain

provisions of a pre-1937 Act had been found to be inconsistent with the Constitution. It is true, as I have already pointed out, that

Mr. Byrne was refused relief in circumstances based on the facts of that case but Henchy J. also pointed out, in the context of an

application to set aside the criminal conviction in that case that “… it does not necessarily follow that court orders lack binding force

because they were made in proceedings based on an unconstitutional statute”.

150. Having referred to The State (Byrne) –v- Frawley in the Murphy case Henchy J. then went on to say at p. 307:

“In other words, a declaration under Article 50, s. 1, that a law had lost validity in 1937 on constitutional grounds does not

necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally

be condemned for lack of validity. Once a finding is made under Article 50, s. 1, that, for want of consistency with the

Constitution, a law ceased in 1937 to have the force of law, a declaration of such invalidity is a constitutional imperative.

Whereas, the consequences arising from having acted on foot of or in pursuance of the statutory provision which has thus

retrospectively been found to have lost the force of law in 1937, may in certain circumstances, be held to be beyond the

reach of legal action based on that invalidity.”

151. The learned trial judge sought to distinguish the views expressed by Henchy J. on limitations on the retrospective effect of a

declaration of invalidity by observing that in this case she was not concerned with a civil form of legal redress such as for wrongful

imprisonment. It appears that it was for this reason that she did not consider or analyse the broader constitutional considerations

which may affect the question of retrospective effect on cases already finally decided, criminal as well as civil. Many of these

considerations have already been referred to in judicial dicta cited elsewhere in this judgment. In adopting this approach it appears to

me that the learned High Court Judge conflated the questions of declaration of inconsistency and the effect of such a declaration, in

particular as regards cases already finally decided by the courts. It would appear that these considerations may not have been

addressed with the same depth and breadth as they were by counsel in the appeal before this Court. For the reasons set out in this

judgment I am of the view that the approach adopted by the learned trial judge was not the correct approach.

152. The above are the reasons for the Order of this Court made on 2nd June, 2006 in this case, namely that the appeal be allowed

on the grounds that A.’s detention must be considered to be lawful and accordingly the he be re-arrested to serve the remainder of

his sentence.