Court of Appeal dismisses appeals against prison detention orders following Supreme Court precedent on retrospective liberty deprivation.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 259

Birmingham J

Sheehan J.

Edwards J.

2015/42

Anthony Murphy

Applicant/Appellant

And

Governor of Mountjoy Prison (The Training Unit)

Respondent

And

Keith Willis

Applicant/Appellant

And

Governor of Wheatfield Prison

Respondent

And

Joseph Carberry

Applicant/Appellant

And

Governor of Wheatfield Prison

Respondent

Judgment of the Court delivered on the 16th day of November 2015 by Mr. Justice Birmingham

1. These three cases have, by agreement, been heard together. Each involves an appeal by the appellants/applicants Mr. Willis, Mr.

Murphy and Mr. Carberry against the judgment and order of Kearns P. of the 24th April, 2015, which declined to made orders pursuant

to Article 40.4.2 of the Constitution directing their release from prison. The background to these appeals is that each

applicant/appellant was convicted in the Circuit Court, on pleas of guilty, of offences contrary to s. 15A of the Misuse of Drugs Act

1977 or, in common parlance, possession of a controlled drug, the value of which exceeded €13,000.

2. The particulars of these convictions are as follows.

Keith Willis

3. Keith Willis was charged with offences contrary to s.3, s.15 and s.15A of the Misuse of Drugs Act 1977. He appeared at Sligo

Circuit Court on the 1st October, 2013 and pleaded guilty to one charge on the Indictment being, at Count 3,: unlawful possession of

controlled drug with an aggregate value of €13,000 or more for the purpose of sale or supply, contrary to s. 15(A)(1) of the Misuse of

Drugs Act 1977, (as inserted by s. 4 of the Criminal Justice Act 1999) and s. 27 of the Misuse of Drugs Act 1977 (as inserted by s. 33

of the Criminal Justice Act 2007) and contrary to Article 4(1)(b) of the Misuse of Drugs Regulations 1988 and 1993, as made under s.

5 of the Misuse of Drugs Act 1977.

4. The particulars of the offence were that the Appellant, on the 16th April, 2013, at Sligo garda station, Pearse Road, was in

possession of a controlled drug, to wit methylenedioxymethylamphetamine (MDMA), for the purpose of sale or supply and at the time

when the controlled drug was in his possession, the outlet market value of the controlled drug amounted to €13,000 or more.

5. On the 10th October, 2013 the appellant was sentenced to a term of five years imprisonment, with the final two years suspended

for a period of three years. In addition, provision was made for a twelve month post release probation service supervision order on his

entering into a bond which was duly entered into. A warrant for the committal of Mr. Willis issued on the 10th October, 2013.

Anthony Murphy

6. Anthony Murphy was charged with offences contrary to s.3 and s.15 of the Misuse of Drugs Act 1977 on the 7th February 2011,

and was subsequently charged on the 27th May, 2011 with a further offence contrary to s.15A of the Misuse of Drugs Act 1977, as

amended. The Appellant pleaded guilty on the 24th June, 2013 at Dublin Circuit Criminal Court to Count 5 on the indictment, being as

follows: possession of a controlled drug for the purpose of selling or otherwise supplying to another, contrary to s. 15A (as inserted

by s. 4 of the Criminal Justice Act 1999) CJA and s. 27 (as amended by s. 5 of the Criminal Justice Act 1999 (of the Misuse of Drugs

Act 1977 and the Misuse of Drugs Regulations 1988 and 1993, made under s. 5 of the Misuse of Drugs Act 1977). A nolle prosequi was

entered in respect of the remaining charges.

7. The particulars of the offence were that Anthony Murphy, on the 6th of February, 2011, at Carnlough Road, Cabra, in the County

of the City of Dublin, had in his possession one or more controlled drugs, namely 1-butyl-3-(1-naphthoy) indole (jwh-073) and 1-

pentyll-3-(1-naphthoy) indole (jwh-018), for the purpose of selling or otherwise supplying it to another in contravention of the Misuse

of Drugs Regulations, 1988 and 1993, and at the time while the drugs were in his possession, the market value of the controlled drugs

amounted to €13,000 or more. The drug referred to in the particulars of offence is a synthetic cannabinoid.

8. On the 25th October, 2013, the appellant was sentenced by the Circuit Court to a term of eight years imprisonment, with the final

three years suspended on certain conditions. The warrant for his committal was issued on the 25th October, 2013.

Joseph Carberry

9. Joseph Carberry was charged with offences contrary to the Misuse of Drugs Act 1977 and appeared at Dublin Circuit Court on the

6th December, 2013 where he pleaded guilty to Count 6 on the Indictment, that being: possession of a controlled drug for the

purpose of selling or otherwise supplying to another, contrary to s. 15A (as inserted by s. 4 of the Criminal Justice Act 1999) and s.

27 (as amended by s. 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977 and the Misuse of Drugs Regulations 1988

and 1993, made under s. 5 of the Misuse of Drugs Act 1977.

10. The particulars of the offence were that the allegation was one of possession of Pentedrone, with a value exceeding €13,000 with

the intention to sell or supply on the 24th July, 2013, at properties located at the junction of Sillogue Road and Balcurris Road and on

the R132, on the Swords Road.

11. On the 25th February, 2014, the applicant/appellant was sentenced to a term of eleven years imprisonment with the final twelve

months suspended. The sentence was backdated to the 14th July, 2013. Pentedrone, was chemically identified as (2-methylamino) -

1-phenyl-1-pentin-1. Pentedrone is a so called designer drug with stimulant effects. In the context of the sentence of eleven years

imprisonment with one year suspended that was imposed on Mr. Carberry, it should be noted that he came before the court as a

person with a previous conviction under s. 15A of the Misuse of Drugs Act 1977. Therefore, ten years was the actual, as distinct from

presumptive, minimum that could be imposed.

Discussion

12. On the 10th March, 2015, the Court of Appeal gave judgment in the case of Bederev v. Ireland [2015] IECA 38. In that case, Mr.

Bederev challenged the constitutionality of s. 2(2) of the Act of 1977, the section that permitted the Government, as opposed to the

Oireachtas, to declare a substance to be a controlled drug for the purpose of the Misuse of Drugs legislation. Mr. Bederev was

unsuccessful in the High Court, but the Court of Appeal allowed his appeal, declaring s. 2(2) of the Misuse of Drugs Act 1977, to be

repugnant to the Constitution, in that it permitted the Government to have law making authority in violation of Article 15.2.1 of the

Constitution. This in circumstances where the principles and policies test first enunciated in Cityview Press Limited v. AnCO [1980]

I.R. 381, provided a basis for valid delegated legislation had not been met. Briefly put, the case for the applicants/appellants is that

the substances that they were convicted of being in possession of, were not in fact controlled drugs, not controlled at the time that

they were in the possession of the applicants nor at the time when the applicants were convicted or when sentenced. Accordingly, it

is the case of each applicant that he is serving a term of imprisonment for something that was not in fact unlawful and therefore that

he is entitled to be released forthwith.

13. It is appropriate to refer to the fact that on the 29th September, 2014, ie. some five months prior to the delivery of the decision

in Bederev, the applicant, Mr. Carberry, personally lodged an enlargement of time application purporting to appeal both conviction and

sentence. The application for an extension of time which was completed by Mr. Carberry in person states that the grounds on which

he is applying for an enlargement of time are that Pentedrone is not classed as a s. 15A drug, but a mixing agent.

14. It is not disputed by the respondent that if Bederev was correctly decided and attention is drawn to the fact that a certificate

for leave to appeal to the Supreme Court is being sought, that the statutory instruments that purported to designate the substances

in question as controlled drugs were not valid. The respondents, however, argue, and argued before the High Court that, because of

the decision of the Supreme Court in A. v. Governor of Arbour Hill Prison [2006] 4 I.R. 88, the detention of the three appellants is

lawful and that they should be refused orders directing their release. Detailed written submissions have been made by each of the

appellants. The Court has also heard oral submissions on behalf of each appellant. In large measure the written submissions are

directed to an argument that the case of A. v. Governor of Arbour Hill Prison was wrongly decided and should be overturned.

However, very responsibly and realistically, counsel for each of the appellants has accepted that the argument that A. v. Governor of

Arbour Hill Prison was wrongly decided is not one that can succeed before this Court, the Court of Appeal.

15. In these circumstances, the arguments before this Court have turned on the question of whether the cases of the appellants can

be distinguished from the case of A. v. Governor of Arbour Hill Prison or whether the appellants or any of them can bring themselves

within the category of exceptional cases that was contemplated by the Supreme Court.

16. In contending that the position of the appellants is to be distinguished from that of Mr. A and that the appellants fall into the

exceptional category, the appellants make a number of points. In particular, they say that the apparent offences that they were

convicted of and pleaded guilty to were “malum prohibitum” as distinct from “malum in se” ie. wrong because prohibited as distinct

from wrong in itself.

17. They argue that here the question of moral turpitude is absent. What was in issue in A, sexual activity with an underage minor

was obviously and clearly wrong and was very widely, and indeed all but universally, recognised as such. However, they say that is

not the case here, where different views in relation to the various substances might be taken by different authorities at different

times.

18. It is also said that the nature of unconstitutionality has to be considered and that the nature of unconstitutionality at issue here

is more fundamental than was the case in A. Here, the laws under which the appellants were purportedly convicted were made not by

the Oireachtas, but by the Government which never had the power to so legislate. The result of this was that the appellants were

never in possession of a “controlled” drug and it is the possession of “controlled drugs” which is criminalised.

19. In support of the argument that what is in issue is activity that is merely malum prohibitum, they say that the substances which

were the subject of the charges were substances which were legal and which could have been possessed or traded legally up to a

point shortly before the incidents leading to the charges. While these arguments were common to all appellants, and addressed to all

the substances which were the subject of charges, it was pointed out by the respondents in written submissions and accepted during

the course of oral argument that MDMA, more commonly known as ecstasy, the substance that Mr. Willis was in possession of, has

long been regarded as illegal. Ecstasy has ostensibly been a controlled drug for almost eighteen years.

20. A further argument was advanced on behalf of Mr. Carberry based on the fact that he had taken the initiative in seeking an

enlargement of time to appeal some months before the decision in Bederev and that therefore, it could not be said that he was “a

piggy backer” or engaged in “piggy backing”.

21. The appellants say that it is the combination of the matters identified that bring their situation into the exceptional category.

22. In order to address the issue raised on the appeals, it is necessary to consider in some detail the decision in Bederev, the case

that precipitated the applications and A, the case which everyone agrees is central to determining how the appeals should be

determined.

23. In Bederev, the Court, in a judgment delivered by Hogan J. with which Finlay Geoghegan J. and Peart J. concurred, was

considering the question as to whether the Misuse of Drugs Act 1977 set out with sufficient clarity principles and policies so as to

permit delegated legislation by a Minister or the Government as distinct from the Oireachtas enacting primary legislation.

24. In the course of his judgment, Hogan J. stated as follows:-

“56. We may now turn to the central question in this appeal, namely, does the 1977 Act contain sufficient principles and

policies, such that, reverting to the test of Hanna J. in Pigs Marketing Board, in making the s. 2(2) order the Government

is simply executing a policy standard so as to bring about, not its own views on these policy questions, but the result

directed by the Oireachtas in enacting the legislation.

57. It may be accepted that there is nothing in s. 2 of the 1977 Act itself which provides the necessary principles and

policies. It is true that the long title does provide some greater guidance which, as we have seen, must be taken to

inform the scope and breadth of the s. 2(2) power. The fundamental difficulty here is that the 1977 Act determined that

only ‘certain’ dangerous or harmful drugs would be controlled, thus leaving important policy judgments to be made by the

Government rather than by the Oireachtas.

58. One may immediately ask: how is to be determined which of these dangerous or harmful drugs are to be controlled

and which are not? How can it be determined which drugs are ‘dangerous’? Again, one might ask: dangerous to whom? Is

this standard to be measured by reference to the general public? Or would it suffice that the drug in question would be

dangerous if consumed or used by certain sectors of society such as children or young adults? By what standards are the

questions of whether particular drugs are ‘harmful’ and liable to be ‘misused’ to be assessed and determined?

59. Virtually every drug is potentially harmful and liable to be misused. Would it suffice for this statutory purpose if, for

example, some common pharmaceutical product had been misused for time to time in the community, possibly with

unfortunate and serious side-effects for those who did abuse the drug? Could the product be the subject of a s. 2(2)

order if it caused serious medical problems in a minority of cases, even though the product itself was regarded as

beneficial and wholesome by the medical community? What levels of ‘harm’ and ‘misuse’ need to be established before an

order could properly be made under s. 2(2) of the 1977 Act? Could a particular drug be properly made the subject of an

order under s. 2(2) of the 1977 Act where there was a respectable body of scientific and medical evidence to the effect

that the drug in question should not be controlled or that its beneficial properties strongly outweighed the risk of abuse

by a minority of patients?”

25. Later, at para. 63 of the judgment, Hogan J. commented:-

“. . . by what standards, for example, could a court, faced with a challenge to the vires of any order made by the

Government under s. 2(2), measure undefined and somewhat abstract concepts referred to in the long title such as

‘misuse’, ‘harmful’ and ‘dangerous’ in the absence of any further guidance by way of principles and policies contained in

the operative part of the 1977 Act itself? All of this, perhaps, is to say that it is rather asking too much of a long title to

contain the guidance needed to meet the test set out by Murphy J. in O’Neill, since, to recall again the words of Murray

C.J. in BUPA Ireland, one cannot realistically expect that the long title will contain the type of specific detail which is

invariably only to be found in the substantive provisions of an Act itself.

64. One might also ask whether it would be open to the Government to employ s. 2(2) of the 1977 Act to ban other types

of drugs which are in everyday use and which are potentially both harmful and liable to be misused? Alcohol and tobacco

are the most common cases in point. Alcohol is a major factor in range of serious anti-social activities, including road

traffic fatalities and accidents, domestic violence and other serious crimes such as assault and public order offences.

Alcohol is addictive and the abuse of alcohol in Irish society is regrettably so prevalent that it presents major public

health challenges, of which alcoholism and cirrhosis of the liver are among only the most prominent. Tobacco consumption

is highly addictive and greatly increases the risk of lung cancer, heart disease and a range of other serious illnesses. On

any view, both drugs are harmful and are liable to be misused.”

26. A reading of the Bederev case shows that the appellants are correct in their contention that the Court of Appeal was very clear

in its view that the Misuse of Drugs Act failed the principles and policies test, with the result that the substances in question were

being deemed to be controlled, and by extension to be unlawful, by an entity without lawmaking powers. However, the judgment does

not offer support for the proposition that the substances possessed were not inherently harmful. Insofar as the appellants seek to

draw a distinction between what is malum prohibitum and malum in se they do not find support in this judgment. Moreover, the

response of the Oireachtas to the judgment of the Court of Appeal which was to immediately introduce amending legislation designed

to restore the status quo ante is suggestive of the fact that the Oireachtas viewed possession of all these substances as injurious to

the public good. The legislative response to the judgment of the Court of Appeal would suggest that, contrary to what was submitted

by the appellants, the legislature was of the view that possession of the substances in question involved a high degree of moral

turpitude.

27. Turning then to the case of A. v. Governor of Arbour Hill Prison. The facts of this case are so well known that they do not require

to be rehearsed at any great length. Suffice to say that in the case of C. C. v. Ireland [2006] 4 I.R. 1, the Supreme Court had

declared s. 1(1) of the Criminal Law Amendment Act 1935, to be inconsistent with the Constitution. Mr. A, who had been convicted

some two years earlier, following a plea of guilty of an offence of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law

Amendment Act, sought to be released from custody. His point was a simple one. He argued that the offence in respect of which he

was convicted was not on the statute books at the time of the conviction, not having been carried forward in 1937. This argument

found favour in the High Court, but the Supreme Court unanimously allowed the respondent’s appeal. The judgments of the court

established that it is necessary to draw a distinction between the fact of the invalidity of an enactment and the effect of a

declaration of invalidity on decided matters. Murray C.J. dealt with the issue in these terms:-

“87. 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. 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.”

28. Later in this judgment Murray C.J. elaborated upon the general principles that apply in such cases:-

“125. 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.

126. 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 case be not allowed to stand.”

29. The other members of the court also addressed the identification of the general principles and the question of the extent to which

there were exceptions thereto. Denham J., (as she then was), did so in these terms:

“179. In conclusion, the general principle is that a declaration of invalidity of a law applies to the parties in the litigation

or related litigation in which the declaration is made, and prospectively, but that it does not apply retrospectively, unless

there are wholly exceptional circumstances. The applicant in this case was not a party in C.C. v. Ireland [2006] IESC 33,

[2006] 4 I.R. 1, nor had he commenced related litigation, or any form of group action, nor are there any wholly

exceptional circumstances. Consequently, the applicant is not entitled to the retrospective application of the declaration

of unconstitutionality.”

30. McGuinness J. dealt with the issue in these terms:-

“A consideration of the case law as a whole demonstrates that, while the principle that the impugned statute or section is

void ab initio is generally if not invariably set out, the actual outcomes of the cases show that what might be described

as blanket retrospectivity has not in fact been applied. The facts of the cases differ and the reasoning for the

conclusions may vary but it is impossible to establish either an express or an implied principle of unqualified

retrospectivity. In common with Geoghegan J., I agree with the statement of Denham J. that a court is required to

differentiate between the declaration of unconstitutionality and retrospective application of such a decision and that as a

consequence it is a matter of construing the Constitution to determine how such a decision should be applied in a manner

consistent with the principles of the Constitution. I also agree that when a law has been treated as a valid law for

decades it is impossible, unjust, and contrary to the common good, to reverse the many situations which have been

affected over the decades. I concur with the view of Geoghegan J. that concluded proceedings based on an enactment

subsequently found to be unconstitutional cannot normally be reopened. This approach is in accordance with common law

principles of finality in legal proceedings.

I would not exclude exceptions to this normal rule but any such exception should be based on the clear demands of

justice in the particular case.”

31. Hardiman J. in a powerful judgment where he chose not to consider foreign law or judgments of the courts of any foreign state or

entity concluded the judgment by saying:-

“I have read what the learned Chief Justice has said with regard to the general principles mentioned above, and with

regard to the nature of any exceptions to it. I very respectfully agree with him and, like him and for the reasons given

above, do not consider that the present case could possibly qualify as an exception. On the contrary, the requirements of

justice strongly demand that force and effect be given to the sentence justly imposed on the applicant here. The

‘compulsion of public order and the common good’ (Murphy, p. 314) require no less.”

32. Geoghegan J. in his opening paragraph commented:-

“In short, I believe that on any reasonable interpretation of Bunreacht na hÉireann, convictions and sentences pursuant

to enactments not declared unconstitutional, are at the very least deemed to be lawful at the time of the relevant court

orders and must be treated as remaining lawful following on a declaration of unconstitutionality.”

33. Later in his judgment Geoghegan J. commented as follows:-

“It cannot have been the intention of the draftsmen of the Constitution and more properly of the Oireachtas and perhaps

more properly still of the people that if a statutory provision creating an offence was found to be unconstitutional, every

past conviction and sentence, perhaps going back a large number of years were ipso facto nullities. In interpreting any

particular provision of the Constitution it is always necessary to have regard to the general intent of the Constitution as a

whole. If such was the devastating effect of a declaration of unconstitutionality in all cases, it would fly in the face of

common sense, would be manifestly unjust and would be contrary to any good order in a civilised society. As suggested

by O'Flaherty J. in McDonnell v. Ireland [1998] 1 I.R. 134, the Constitution must be interpreted as deeming orders in

completed proceedings prior to a declaration of unconstitutionality to be lawful. A provision that must be deemed lawful is

by definition unlawful. It remains the position, therefore, that s. 1(1) of the Criminal Law (Amendment) Act 1935, was

notionally never in force from and after the coming into being of the present Constitution but orders made in proceedings

completed under it must as a matter of reasonable and orderly interpretation of the Constitution be deemed lawful.

In dealing with consequences from declarations of unconstitutionality of statutory provisions there cannot be absolute

rules. What I have expressed as my view of the law may not itself be absolute any more than the obiter dicta of Henchy

J. [in Murphy v. Attorney General]. Individual cases throw up particular and unanticipated facts which in justice may lead

to a different kind of solution. It is impossible for me to speculate now but I do not rule out the possibility that there

might be circumstances where it would be manifestly unjust or oppressive to uphold a completed proceeding having regard

to a declaration of unconstitutionality. In that situation, if it ever arose, an Article 40 order might be appropriate. Such a

circumstance would be exceptional.”

34. The A case was received with surprise in some quarters and indeed was the subject of some vigorous criticism. (See, in that

regard, Fanning, “Hard Case; Bad Law?” the Supreme Court Decision in A. v The Governor of Arbour Hill Prison, 40 Irish Jurist (2005)

188, an article referred to by the President of the High Court in his judgment.) On the other hand it has been quoted with approval in

other jurisdictions. (See, by way of example, the judgment of the UK Supreme Court in Cadder v. Her Majesty’s Advocate [2010]

UKSC 43.) In general, those who have criticised the approach in A have not quarrelled with the rejection by the Supreme Court of the

notion of blanket retrospectivity which would have permitted anyone convicted of the offence since 1935 to reopen the matter and

perhaps, to bring an action claiming damages for false imprisonment, but they say that retrospectivity is not what is in issue when

someone is actually detained on an ongoing basis at the time of the application and where it is intended to continue to detain that

individual into the future. This they say is inconsistent with the emphatic direction in the Constitution that no person shall be deprived

of liberty save in accordance with law and is in contravention of the age old maxim nulla poena sine lege. However, be that as it may,

it undoubtedly represents an authoritative statement of Irish law, which is binding on this Court unless, for some reason, the present

applicants’ situation is to be distinguished.

35. Possible areas for distinguishing are that A concerned a pre 1937 statute, whilst Bederev was dealing with a post 1937 statute.

However, there is nothing in the judgments to suggest that this is a point of significance. Rather, it is a distinction without a

difference. Another possible basis for distinguishing the present case is by reference to the fact that all three appellants now before

the Court could have launched a challenge on the same basis that Mr. Bederev did, while Mr. A, as a 38 year old, having sexual

intercourse with the twelve year old friend of his daughter would never have been in a position to make the arguments that were

advanced successfully by C.C. However, a careful reading of the five judgments in the A case does not indicate that this provides a

basis for distinguishing the present case from A. Neither, as I have already indicated, do I believe that the distinction between malum

prohibitum and malum in se has any relevance in the present case.

36. On the other side of the coin, the similarities between the situation of the three applicants and Mr. A are striking indeed. All four

had entered pleas of guilty when arraigned. In all cases the criminal proceedings had reached finality and the Article 40 inquiries

launched amounted to a collateral attack on the outcome of the proceedings.

37. It is true that in the case of Mr. Carberry he lodged a notice of appeal out of time which was addressed to a quite separate issue

to the point that succeeded in Bederev. Like the President of the High Court, this Court is of the view that it cannot truly be said in

the Carberry case that there was an appeal in existence at the time of the first application. An appeal is not brought by means of an

application for an extension of time within which to appeal. Like the President, I am of the view that to conclude otherwise would be

to eliminate the distinction between valid appeals and invalid appeals.

38. In conclusion, I am of the view that the situation of all three applicants cannot be distinguished from A and that this Court is

bound by the decision in A. v. the Governor of Arbour Hill Prison and that no basis from departing from it has been established.

Accordingly, I would dismiss the three appeals and refuse to make an order directing the release of the three applicants.