Liberty & Criminal Law

Cases

The State (Ryan and Others) v. Lennon and Others.

[1935] IR 175

I will refer only to one other of these provisions of the new Constitution of the Free State, in contrast with the old. An “order” to search any place or premises may be issued by an inspector of the Garda Siochana without reference to any Court or Judge whatever. It will be within common knowledge that an attempt to introduce a similar provision in a neighbouring country failed before a public opinion aroused in defence of a treasured constitutional principle of liberty. We have to decide whether the committal of such principles to a written Constitution has secured them as effectually.
From those provisions which I have summarised it is clear that the new Article 2A is no mere amendment in, but effects a radical alteration of, the basic scheme and principles of the Constitution enacted for the Saorstat by the Constituent Assembly. The Constitution, in Article 2 (which curiously enough is expressly excepted from amendment by the Act under consideration), referring to their source, declares the division of powers, legislative, executive and judicial, for the exercise of which the instrument establishes, or provides for the establishment of, the necessary organisations proper to them respectively. The judicial power of the State is to be exercised in the public Courts, established for that purpose, by Judges appointed in manner thereby carefully prescribed. The Executive authority is conferred on an organisation thereby established to exercise it as thereby prescribed. It has often been said that it falls to the Courts of Justice of the State to stand between the citizen and the Executive and the executive departments, as the only defence of the citizen against encroachments on his rights and liberties, always in danger of such encroachments when watchfulness slackens,e.g., see per Farwell L.J. in Dyson v. Attorney-General (1).
Now let me state the effect on the Constitution of these, the outstanding provisions, which I have just summarised, of the new Article 2A inserted in the Constitution by the Amendment Act, No. 37 of 1931 (if valid).
Power is given permanently to the Executive Council for the time being to put the new Article into operation at any time and to supersede a great part of the Constitution whenever and for so long a time as it finds it expedient to do so.
No conditions are prescribed for the exercise of that power. It is not made a condition precedent to its exercise that there must be a state of war or armed rebellion, or other danger to the public safety, or that there must be a prevalence of disorder, or that there must be circumstances such as to prevent the constitutional Courts of Justice or any of them from sitting or fulfilling their constitutional functions, or such as to interfere effectively with the constitutional right to trial by jury. An Executive Council is thereby empowered to put the Article into operation, if they think it expedient, in time of complete peace and order and of law undisturbed and unembarrassed.
When the Article is put into operation, the Executive Council takes away from the constitutional Courts of Justice the trial of certain specified offences against the ordinary law and of others not specified but to be certified (before trial) by a member of the Executive Council as having been done for a named object, whereupon the persons charged are to be “tried” without a Judge or jury by a group of non-legal persons, appointed and removable at pleasure of the Executive Council, and holding army commissions from the Executive Council. That is to say, the exercise of the judicial power of the State in a large and, to the citizen very important, respect, is in truth and effect transferred from its constitutional depositary, the Courts of Justice of the State, to the Executive Council, for though the Executive Council exercises that judicial power through a group of its own nominees acting at its pleasure and called a “Tribunal,” this “Tribunal” is in truth in like case with the military tribunals to which Lord Halsbury, speaking of courts martial in time of war, referred in these terms:”If there is war, there is the right to repel force by force, but it is found convenient and decorous, from time to time, to authorise what are called ‘courts’ to administer punishments, and to restrain by acts of repression the violence that is committed in time of war . . . But to attempt to make these proceedings of so-called ‘courts-martial,’ administering summary justice under the supervision of a military commander, analogous to the regular proceedings of Courts of Justice is quite illusory”: Tilonko v. Attorney-General for Natal (1).
The Oireachtas, to which alone and exclusively the Constituent Assembly entrusted the legislative power in respect of peace, order and good government, by this Act (if valid) has surrendered to the Executive Council power to declare certain matters to be offences “triable” by the “Tribunal” by a certificate in the individual case of an Executive Minister. The Oireachtas, notwithstanding such exclusive trust, has in like manner surrendered to the Executive Council the authority to declare by the mouth of its nominees and servants at will, what shall be the punishment of any offence “tried” by the “Tribunal,””in lieu of the punishment provided by law” (sect. 7, sub-sect. 1), without check or limit on the choice or quantum of punishment, not even by a general rule governing all cases of a class or type, but by a sentence devised and declared for the individual case.
The net effect, then is that the Oireachtas has taken judicial power from the Judiciary and handed it to the Executive and has surrendered its own trust as a Legislature to the Executive Council, in respect of the extensive area of matters covered by the Appendix to the Article. Remembering that the “Tribunal” is to consist of five persons holding commissions as commandants (or higher ranks) issued to them by, and held at the pleasure of, the Executive Council, and holding membership of the”Tribunal” at the will of the Executive Council, the result of the Article clearly is that whenever any Executive Council thinks it expedient to use the Article, that Council itself prosecutes (in pursuance of its proper executive function) a person charged by it with an offence (which may be an offence brought within the scope of the Article by an Executive Minister’s certificate) and conducts the prosecution before itself, “trying” the charge by its own removable nominees, and itself convicts the accused person, by the same convenient and decorous machinery, and prescribes any sentence for the individual case it chooses through the same convenient and decorous machinery. Every act, from the arrest of the individual and the charging him with an “offence” to the sentence and its execution, is, therefore, in naked reality, the act of the Executive Council.
I am not making any criticism of, or comment upon, this resulting position. I am trying to make clear what the enactment purports to do and to show where and how it conflicts with the Constitution enacted by the Third Dail in 1922, and the vast importance it may have at any time to the life and liberty of every citizen (if it be effective and valid) and, consequently, the awful gravity of the matters before us for determination in this, as I consider, momentous case.
Has then the Oireachtas validly and effectively, not merely amended, but consummated this root and branch alteration in the fundamental principles of the Constitution enacted by the Third Dail Eireann as a Constituent Assembly in 1922? This is a question calling for most anxious, meticulous and (especially as regards our own particular trust, the judicial power of the State, now so rudely to be invaded) most jealous care: Lynham v. Butler (No. 2) (1). Our trust is for the people, our duty and responsibility to the people, and, while bowing inevitably to lawful amendment, when established to have been properly and duly made, we must be watchdogs to protect against unlawful encroachment and to maintain intact, so far as in us lies, the principles and provisions embodied in the Constitution for the protection of the liberties of the citizens in mass and individually.
The Constitution, or Bunreacht, is the fundamental structure upon which the State was set up by the Third Dail Eireann sitting as a Constituent Assembly. The Dail thereby formulated the system or principles, and created the organs, of government of the State. In its second and basic Article, a fundamental division of function was declared, for the exercise of which respectively there were thereby created distinct organs, as, for example, the Oireachtas as the organ of ordinary legislation. The Assembly also laid down in the instrument a few great traditional principles of government (for the most part prohibiting or limiting action of certain kinds, principally on the part of the executive organ), any radical breach of which would, in the common acceptation, involve either tyranny or anarchy.
Now, the first thing I should emphasise is that the Constitution was enacted by the Third Dáil, sitting as a Constituent Assembly, and not by the Oireachtas, which, in fact, it created. It ought not to be necessary to mention thisone cannot imagine such a necessity arising in any other country. A book has, however, been issued within the last few weeks by the Government Stationery Office, called “Index to the Legislation passed by the Oireachtas in the years, 1922 to 1932,” in which at several places the Constitution is stated to have been enacted by the Oireachtas (see pp. 6, 75, and passim), surely an extraordinary blot on an official publication. I regret that it is, therefore, necessary to state that the Constitution was enacted as a Schedule to the Constituent Act, passed on the 25th of October, 1922, by the Third Dail Eireann ,sitting as a Constituent Assembly. It may be also necessary to recall that that Assembly was a single-chamber parliament, membership of which was not restricted by, or conditioned on, any test, oath, or declaration of any kind, and which did not act in combination or association with any other chamber or body or person (Lord Lieutenant or Governor-General), and that it was the Parliament to which the then Executive or administration, including the”Provisional Government” as it was called, was responsible. The Oireachtas did not come into existence until after the Constitution itself had come into operation on the 6th of December, 1922. These historical facts are, as I will show, of no small importance in considering the questions before us.
It may be taken for granted (the contrary has not been suggested) that, if the Constituent Assembly had not conferred upon the Oireachtas, or upon some other assembly or body or bodies of persons, or upon some individual or individuals, power to alter the Constitution, it could not have been altered, whether by amendment, revision, deletion, repeal or otherwise, unless a Constituent Assembly were again convoked for that purpose, a procedure which is required in other countries. The Constituent Assembly did, however, confer on the Oireachtas such a power by Article 50, whereby it was provided that:”Amendments of this Constitution . . . may be made by the Oireachtas”that is the only power to alter the Constitution outside action by the Constituent Assembly itself, but that power is limited and circumscribed by a number of restrictions in respect of the manner and conditions of its exercise and of the substance of the amendments permitted.
In the first place, what I may describe as an over-all limitation arises in this way. The Constituent Assembly declared in the forefront of the Constitution Act (an Act which it is not within the power of the Oireachtas to alter, or amend, or repeal), that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that “all powers of government and all authority, legislative, executive, and judicial, in Ireland are derived from the people of Ireland . . .” It follows that every act, whether legislative, executive or judicial, in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God. From this it seems clear that, if any legislation of the Oireachtas (including any purported amendment of the Constitution) were to offend against that acknowledged ultimate Source from which the legislative authority has come through the people to the Oireachtas, as, for instance, if it were repugnant to the Natural Law, such legislation would be necessarily unconstitutional and invalid, and it would be, therefore, absolutely null and void and inoperative. I find it very difficult to reconcile with the Natural Law actions and conduct which would appear to be within the legalising intendment of the provisions of the new Article 2A relating to interrogation. I find it impossible to reconcile as compatible with the Natural Law the vesting, in three military servants of the Executive, power to impose as punishment for any offence within the indefinite, but certainly extensive, ambit of the Appendix, the penalty of death, whenever these three persons are of opinion that it is expedient. Finally, the judicial power has been acknowledged and declared (and the acknowledgment and declaration remain) to have come from God through the people to its appointed depositary, the Judiciary and Courts of the State. While they can fulfil that trust, dare any one say that the Natural Law permits it, or any part of it, to be transferred to the Executive or their military or other servants?
The second restriction controlling amendment of the Constitution is one imposed in express terms by the Constituent Assembly in the Constitution of the Irish Free State (Saorstat Eireann) Act itself. It is enacted in sect. 2 of that Act that:”if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative . . .” This enactment is followed by the complementary restriction in Article 50 of the Constitution:”Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas.” Now, a Treaty between two countries, negotiated and concluded, whether by authorised envoys or directly by governments, does not constitute part of the municipal law of either country, unless, and only to the extent that, such Treaty, or some part or parts of it, has been given the force of law by the legislative process of the country in question. The Anglo-Irish Treaty of 1921 (called in the Constitution the”Scheduled Treaty”) was given the force of law and became part of the municipal law in Great Britain by the Irish Free State (Agreement) Act, 1922 (passed by the British Parliament on the 31st of March, 1922), and it was given the force of law and became part of the municipal law in Saorstat Eireann by the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922 (passed by the Third Dail Eireann , on the 25th of October, 1922). Such municipal legislation, so long as it remains unrepealed, makes the treaty instrument of legal obligation, within the State so enacting it, upon the Government, the Judiciary, and the individual citizen, to the extent to which they are respectively concerned. That is, of course, an obligation having a sanction quite independently of the political and moral obligation of such Treaty internationally as an international agreement. Courts must have regard to the former obligation but have generally no concern with the latter standing alone and unsupported by municipal legislation. A Treaty, as an international agreement, may by a time limit contained in it, cease to be effective between the contracting parties by the expiry of the time limited, or it may cease to bind the contracting parties by some agreed method of abrogating it or by denunciation or some internationally recognised and accepted process of bringing its obligation to an end, or it may be modified or altered by new agreement or supplemental treaty between the contracting parties. The agreement for such abrogation or modification of a treaty between the contracting parties would not have the effect of repealing or altering the municipal legislation enacted to give the original treaty the effect of municipal law. There must be municipal legislation for that purpose (unless perhaps anticipated and provided for in advance by the original legislation). It being in the nature of things that a treaty being simply an agreement between parties is not something fundamentally immutable in its character as a treaty but is subject to modification or termination in some of the ways I have indicated, the reference to”the Scheduled Treaty” in the Constitution Act and in Article 50 must be taken to have been made in contemplation of that position and to have a certain consequent flexibility.
In In re Reade (1), I pointed out (at p. 49) that “the Treaty itself contains the whole basis and framework of what may be called the external Constitution of the Free State,” that is to say, the constitutional status and relationships assumed by Saorstat Eireann upon entering as a political unit, under the Treaty of 1921, into the Community of Nations known as the British Commonwealth of Nations as one equal member thereof. (See full discussion of this matter at pp. 46 to 49 of the report of that case.) The Treaty also contained agreements between the two countries on particular matters, some of which would be reflected in the Constitution of the Saorstat itself so long as the Treaty and the particular heads of agreement remain in force as an operative instrument between the two contracting parties, and during such time they would limit amendment of the Constitution of the Saorstat in the sense that certain amendments might constitute a breach of agreement between the two countries. But the Treaty does not of itself limit in any other way the power of the Saorstat to amend its own Constitution. The power of amendment is conferred on the Oireachtas, and the limitations on the extent and manner of exercise of that power are imposed, by the Third Dail Eireann , as of its supreme right and authority. I need only refer, for the purposes of this case, to one of the matters made the subject of particular agreement by the Treaty. Article 16 of that instrument contains a specific agreement that the Parliament of the Irish Free State shall not make any law so as to (a) endow any religion, (b) prohibit or restrict the free exercise thereof, (c) give any preference or impose any disability on account of religious belief, or (d) divert from any religious denomination any of its property except as therein mentioned. This Article of the Treaty is reflected in Article 8 of the Constitution, which guarantees freedom of conscience and free profession and practice of religion to every citizen, and prohibits legislation of the nature mentioned in the sixteenth Article of the Treaty (though there is no reason to suppose that such a provision would not have been inserted in the Constitution by the Constituent Assembly of its own volition independently of the stipulation in the Treaty). A considerable part of Mr. Overend’s argument has been addressed to the question whether the power of amendment can be read in such a way as to extend to that clause, as it certainly would if some of the contentions put forward were accepted as sound. His main contention on this matter was that, if a power of amendment of the nature and extent claimed were held to have been conferred by Article 50, then a person who had elected for citizenship of the Saorstat under Article 3, acting on the faith of the protection given to his conscience and religion by Article 8, might find that protection swept away from him some day by an amendment deleting Article 8. The answer to that argument, however, is that his election to accept citizenship of the Saorstat under Article 3 must be taken to have been made in full view of, and subject to, any amendment which can be lawfully made under Article 50, and the question therefore remains or this, as for any other, purpose, whether the particular alteration of the Constitution is an amendment which can be made lawfully under the power of amendment in Article 50, and if it be so, Mr. Overend’s citizen cannot, I fear, rely on the representation in Article 8. He can only rue his folly and bewail his fate. There is, however, another consideration which touches the same point, one relied on very strongly by Mr. Costello in his argument, and with which I now deal. It is the third limitation which, it has been contended, circumscribes and restricts the power of amendment.
In the Constitution, in addition to giving form to the Constitution proper by establishing the organisations for the exercise of the powers of government in its threefold division of authority, the Constituent Assembly also enunciated certain propositions, containing statements of fundamental principle in the constitutional sphere so expressed as to convey clearly the intention that they are to be accepted for the purposes of the Constitution as immutable and absolute, subject only to the specific qualifications expressed in certain cases. For example, Article 2, with regard to the derivation of the powers of government and authority, is enunciated by the Constituent Assembly as a statement of fundamental principle which is not to be questioned by the Oireachtas. It is noticeable that, in the case of Article 2, that position was recognised in the Constitution (Amendment No. 17) Act, whereby that Article was excepted from the general overriding effect given to the new Article 2A over all the subsequent Articles of the Constitution. A similar declaration of principle is contained in Article 6, which lays it down that the liberty of the person is inviolable, flowing from which there follows the concrete case, “no person shall be deprived of his liberty” with the specific qualification”except in accordance with law.” An enactment to the general effect that a citizen may be taken and detained in custody, without being charged with any offence known to the law but just whenever and for as long as a soldier or policeman deems it expedient, would conflict with the principle laid down in Article 6, and, in my opinion, whether purporting to be an ordinary law, or an amendment of the Constitution, would be invalid and void and could not be sustained under the power of amendment. On the other hand, ordinary laws may be enacted validly specifying the cases in which, the causes for which, the times during which, and the persons by whom, a person may in accordance with the ordinary law be deprived of his liberty. The same considerations apply to Article 7, which declares that the dwelling of each citizen is inviolable. Article 8, in which freedom of conscience and the free profession and practice of religion are laid down as rights of the citizen, is in a somewhat different form. It guarantees these liberties to every citizen. So, also, the right of free expression of opinion and the right to assemble peaceably are declared in Article 9, by guaranteeing them, subject to the equally fundamental qualification that their exercise must not be for purposes opposed to public morality.
The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and absolute (except as expressly qualified), and, so, necessarily, immutable. Can the power of amendment given to the Oireachtas be lawfully exercised in such a manner as to violate these principles which, as principles, the Oireachtas has no power to change? In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or conveyed that sense in other words, as by a declaration of inviolability, and at the same time to have conferred upon the Oireachtas power to violate them or to alter them. In my opinion, any amendment of the Constitution, purporting to be made under the power given by the Constituent Assembly, which would be a violation of, or be inconsistent with, any fundamental principle so declared, is necessarily outside the scope of the power and invalid and void.
I have been dealing with limitations of the power of amendment in relation to the kinds of amendment which do not fall within the scope of the power and which are excluded from it always, irrespective of the time when,i.e., within the preliminary period of eight years or after, or the process by which, the amendment is attempted. Such considerations as I have been discussing may affect a particular attempted amendment either in the whole or in part only. I now come to deal with a restriction on the exercise of the power of amendment affecting any attempted amendment as a whole.
The fourth limitation on amendment of the Constitution is that imposed in Article 50 on the method or process of amendment by these words:
“but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment.”
The clause then contained a special power to be exercisable during the before-mentioned period of eight years:
“Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.”
The practical difference between the procedure for exercising these powers is that, after the first period of eight years, the Oireachtas is forbidden to make an amendment of the Constitution without referring it to the people by Referendum for approval; while for an initial period of eight years a Referendum was not required unless demanded in the manner provided by Article 47, thus allowing a time within which drafting of formal or other unimportant amendments could be effected without insisting on the Referendum, which, however, could always, even during such preliminary period, be demanded and insisted upon, so that the check and control of the people could at any time be exerted if a proposed amendment seemed to call for it. A moment’s consideration will demonstrate that this clause was enacted in clear realisation of the relative positions of the Constituent Assembly and the Oireachtas. Membership of the Constituent Assembly, as I have mentioned already, was not restricted by any oath or other test. The Assembly therefore felt itself entitled to speak for all the people in the territory for which it was elected, and it is very clear, on the evidence of the Constitution itself which it enacted, that the Assembly intended, and, so far as it could by constitutional provision, tried to preserve intact the overriding authority of the people. The Assembly established by the Constitution a Legislature (the Oireachtas) upon membership of which the Assembly felt bound for certain reasons (and I am not called on here to discuss these reasons) to impose a test by way of an oath, the possible, even probable, effect of which might be anticipated as the exclusion of some of the people from membership of the Oireachtas. That probable effect, in limiting membership of the Oireachtas and so restricting the voice of opinion in support of or opposition to its acts, was met by making provision for the procedure known as the Referendum to the people for decision (which was no doubt recommended to the Constituent Assembly by other considerations as well as that which I am discussing and which is obvious on the face of the document itself). The Referendum was not limited by any oath or other test. The decision of the matter submitted was to be a decision of the whole people on the basis of universal suffrage (Article 14, for which detailed provision was actually made by statute, the Electoral Act, No. 12 of 1923, Part V). Thus, the Constituent Assembly, endowing the more limited Assembly, the Oireachtas, with a power of amendment of the Constitution, reserved to the people on whose behalf it was enacting that Constitution absolute control of the exercise of that power, so that in every case after the period of eight years the decision of the people must be obtained and, during that period, such control was secured by the right to demand a Referendum.
Nevertheless, the Oireachtas has, it is contended, by means of two amendments of the Constitution within the preliminary period of eight years, namely, the Constitution (Amendment No. 10) Act, No. 8 of 1928 (passed on the 12th of July, 1928), and the Constitution (Amendment No. 16) Act, No. 10 of 1929 (passed on the 14th of May, 1929), succeeded in taking from the people the control so carefully reserved, and endowed the Oireachtas itself with power to amend the Constitution without limit or check of any kind even to the extent of an “amendment”generally over-riding the whole Constitution and depriving the people of their constitutional rights and liberties whenever and during such time as one of the limbs of government, the Executive, thinks it expedient. The first of these two amendments deleted Articles 47 and 48 from the Constitution. Those Articles gave the people a voice in ordinary legislation by means of the “Referendum” and the “Initiative.” I am not concerned with the amendment here in its bearing upon ordinary legislation of the Oireachtas, in which respect it may be an entirely valid exercise of the power of amendment under Article 50. I have not to consider it in that aspect. I am now only concerned with its express, though not too strikingly prominent, extension to remove the condition annexed to the power of amendment during the preliminary period of eight years given by Article 50, namely, that it should be subject to the provisions of Article 47, i.e., the Referendum. Having thus, as it was supposed, removed all power of the people to interfere by the Referendum in amendments made during the preliminary term of eight years, and taken a free hand, the Oireachtas passed the second of these amending Acts extending by a further period of eight years the term for the exercise of the preliminary power, now freed by the previous amending Act of all reference to or control by the people. If this was lawful it can be continued indefinitely in time and scope of amendment, ultimately even to the exclusion of the people from all voice in legislation and administration and the open mockery of Article 2 of the Constitution. As against this, counsel advanced the (rather political) argument that the people were still fully protected, because, as he said, a general election is equally effective with a Referendum, and that in fact the majority which passed the amendment containing Article 2A was immediately afterwards rejected at the polls, though at the same time he admitted the answer, also perhaps political though logical, that the majority which succeeded after a general election did not repeal the statute enacting the amendment, but only suspended the operation of the amendment, and later put it again into full operation. If, however, the result of the election of which counsel spoke was a declaration of the mind of the people on the Amendment No. 17 and the Article No. 2A, thereby inserted in the Constitution, it follows that if submitted to the people by Referendum it could never have reached the Statute Book and we should not have had to consider its validity as an Act of the Oireachtas in operation as we are now engaged in doing.
Was, then, the Amendment No. 16 lawfully enacted by Act No. 10 of 1929? There are two principal grounds for impeaching its validity; the first, the taking away, whether validly or not, in any case the effective removal from use, of the Referendum and the right to demand a Referendum; the second, that the Amendment No. 16 is not within the scope of the power of amendment, and therefore the Oireachtas was incompetent to enact it.
It has not been suggested or even hinted that, if the Constituent Assembly had not conferred a power of amendment of the Constitution, there would have been any such power in the Oireachtas or in any other body. If no such power had been given the only way in which the Constitution could have been altered or amended in any respect would have been by convoking the Constituent Assemblyfor that purpose. The Oireachtas, therefore, which owes its existence to the Constitution, had upon its coming into being such, and only such, power of amendment (if any) as had been given it by the Constituent Assembly in the Constitution, that is to say, the express power set out in Article 50, and amendments of the Constitution could only be validly made within the limits of that power and in the manner prescribed by that power.
Now, the power of amendment is wholly contained in a single Article, but the donee of the power and the mode of its exercise are so varied with regard to a point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other, a wholly different and permanent power, to come into existence after the expiry of that preliminary period and so continue thereafter.
During the preliminary fixed period of eight years, power was given to the Oireachtas to make amendments of the Constitution “by way of ordinary legislation,” which I understand to mean by the ordinary legislative procedure. The Oireachtas had, therefore, under this clause power to enact amendments as law during the specified period of eight years. To this power, however, there was added the condition that it “shall be subject to the provisions of Article 47,” that is to say, the amendment must be submitted by Referendum to the decision of the people, if,but only if, demanded within a specified time by the Senate or by a certain proportion of the people. Thus the Constituent Assembly, even during the preliminary period, would not relax the ultimate authority of the people, and expressly reserved to the people the right to intervene when they considered it necessary to restrain the action of the Oireachtas affecting the Constitution. The frame of this provision makes it clear to my mind that, even if, by amendment of the Constitution under the power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, deliberately, expressly and in a mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years.
Now, on the other hand, the permanent power of amendment, to arise at the expiry of the period of eight years, is a wholly different thing both as to the donee of the power and the manner of its exercise. Power is not given to the Oireachtas to enact amendments of the Constitution into law in any circumstances. On the contrary, there is an express negativing of any such power. There is a prohibition, utterly unambiguous in its terms, forbidding the passing into law of any amendment which shall not have been submitted to a Referendum of the people and been approved by a specified majority of the people. In other words, the only power of amendment of the Constitution, after the 6th of December, 1930, was given by the Constituent Assembly to the two Houses of the Oireachtas and the people together. Under that power it is clearly not lawful for the Governor-General to certify the passing into law, by signifying the King’s Assent, of any Bill purporting to amend the Constitution, passed by the two Houses of the Oireachtas, until the decision of the people thereon by Referendum has been declared. If that clause still confers and defines the power of amendment of the Constitution as from and after the 6th of December, 1930, the Constitution (Amendment No. 17) Act, No. 37 of 1931, stated to have been passed on the 17th of October, 1931, has never become law, and is void and inoperative, because it has admittedly never yet been submitted to a Referendum of the people, and the Oireachtas alone has not power to enact it as law. We find, then, that the only power of amendment of the Constitution given by the Constituent Assembly has not been exercised, inasmuch as it has not been exercised by the people, to whom the ultimate effective act in its exercise was reserved: that, in fact, the purported passing of the Bill into law by its presentation by the Executive Council to the Governor-General for signification of the King’s Assent was in contravention of an express provision in the clause creating the power. We have then to see what authority is invoked for amendment by the Oireachtas alone and the exclusion of the decision of the people as required by the power of amendment given. The answer at the Bar is that the Oireachtas, by the Constitution (Amendment No. 16) Act, No. 10 of 1929, before the 6th of December, 1930, amended the power of amendment and changed the preliminary period of eight years prescribed by the Constituent Assembly to a period of sixteen years, i.e., a period ending the 6th of December, 1938, and thereby gave itself power to make amendments of the Constitution during a new period of eight years ending at the latter date without submission to a Referendum of the people contrary to the express prohibition in, and in defiance of the clear spirit and intention of, the clause. The authority for this far-reaching and (as we see in its fruits) most grave action is a certain interpretation of the words of Article 50 which, upon the most attentive consideration, I am of the clear opinion they do not bear.
We must now focus our attention on the Constitution (Amendment No. 16) Act, No. 10 of 1929, and determine the question of its validity. There are two grounds upon which it is impugned, the first extrinsic, in that, in consequence of the passing of Constitution (Amendment No. 10) Act, No. 8 of 1928, it is a defective execution of the preliminary power of amendment given by Article 50; the second intrinsic, in that it is an excessive execution of that power, an act purporting to do under the power something unauthorised by the power or even forbidden by it.
The Constitution (Amendment No. 10) Act, No. 8 of 1928, was, as stated in its long title, passed to remove Articles 47 and 48 from the Constitution, that is to say, to get rid of the intervention of the people by either procedure in respect of ordinary legislation of the Oireachtas. I do not stop here to discuss whether such amendment is within the express power of amendment or not. I assume for my present purpose that it was as regards ordinary legislation a valid amendment. The Act was, however, expressed to extend to “necessary consequential amendments”and, under cover of this far from correct phrase, it purported to make another amendment in the Constitution far more important and far-reaching than the expressed principal purpose of the Act and not at all consequential thereon, and to confer on the Oireachtas a licence to amend the Constitution without reference to the people during the residue of the fixed preliminary period to the 6th of December, 1930. The Constituent Assembly, when conferring on the Oireachtas a special power of amendment of the Constitution during such fixed period, attached an express requisite for the execution of that power, stipulating that it should be subject to the provisions of Article 47, that is to say, that the proposed amendment must be referred to the decision of the people by Referendum if demanded. The Oireachtas purported by including in the Constitution (Amendment No. 10) Act, No. 8 of 1928, what was quite incorrectly called a”necessary consequential amendment” (which, of course unintentionally, misleading description was certainly calculated to divert attention from what was being done), to remove from the power of amendment itself a requisite imposed on its exercise by the Constituent Assembly. In my opinion, it was not competent to use the power for the purpose of removing from itself the requisites for its exercise attached to it in the very terms of donation of the power. That provision of the statute, No. 8 of 1928, was bad, in my opinion, as being what is called in the general law of powers “an excessive execution.” It was outside the scope of the power. We have not been referred to, nor have I found, any precedent for such a use of a power. I do not believe that there can be a precedent, because it defies logic and reason. It was, therefore, invalid in my opinion. Nevertheless, inasmuch as a Referendum must be carried out in accordance with regulations made by the Oireachtas, the actual practical effect of the Act was to nullify for the future the provision that amendments should be subject to the provisions of Article 47, by making it impossible in practice to carry out those provisions. The consequence of that state of affairs was that future executions of the power of amendment during the fixed period must inevitably suffer from what is called in the general law of powers “defective execution.” Therein lies the first ground of impeachment of the Constitution (Amendment No. 16) Act, No. 10 of 1929.
I pass now to the other, and, in my opinion, conclusive, ground for impeaching that Act as an invalid and ineffective attempt by the Oireachtas to assume sole and unlimited power of amendment of the Constitution. That Act, the Constitution (Amendment No. 16) Act, No. 10 of 1929, passed by the Oireachtas within the preliminary period of eight years, is entitled “An Act to amend the Constitution by extending the period within which amendments of the Constitution may be made by the Oireachtas without submission thereof to a Referendum of the people.” This is effected by deleting from Article 50 the words “eight years” in each of the places where they occur and inserting in each case in lieu thereof the words “sixteen years.”If this amendment is good there is no reason why the Oireachtas should not have inserted, or should not even yet insert, a very much larger term of years or, indeed, delete the whole of Article 50 from the words “by the Oireachtas” in the second line to the end of the Article.
I am dealing now with the permanent power of amendment of the Constitution given in Article 50 and exercisable at any time after the 6th of December, 1930. Most certainly that power is not given to the Oireachtas to exercise at its own will and pleasure. On the contrary, by a mandatory prohibition in the clearest and most explicit terms, it is forbidden to make any amendment of the Constitution after the specified date without the co-operation of the people, to whom alone the effective decision to make or not to make any proposed amendment is explicitly and very definitely given by the plain words of the power and sternly reserved. The attempt to take from the people this right, this exclusive power and authority, and to confer on the Oireachtas a full and uncontrolled power to amend the Constitution without reference to the people (even though for a period of years, whether it be until 1938 or Tibb’s Eve, a matter of indifference in the circumstances) was described by counsel in, I think, accurate language, as a usurpation, for it was done in my opinion without legal authority.
The only argument advanced in support of this position is that the power to amend the Constitution gives power to amend the power itself. It certainly does not say so. One would expect (if it were so intended) that the power would express that intention by the insertion of a provision to that effect by some such words as:”including amendment of this power of amendment,” but no such intention is expressed and there is nothing from which it can be implied. On the contrary, the definite prohibition in the clause shows that no such amendment was contemplated and seems to me conclusive in its terms against implying such a power. It is not, in my opinion, sound to argue from the fact that because the power of amendment, though standing in a separate self-contained Article or clause, is written upon the same paper writing as the Constitution to which it applies, it must therefore come within its own operation. As well might it be said that one who lends another a pruning knife and leaves it, for the cultivator’s convenience, hanging on the tree for the trimming of which it is lent, therefore authorises him to whom it is lent, by some process of inversion, to turn it upon itsef, and use it to prune and amend itself into some other kind of instrument wherewith to back down the tree.
During the argument, an analogy was suggested with a power sometimes contained in documents settling property on trusts, by which the donee of the power is authorised to revoke the trusts declared by the settlement and to declare other trusts of the property, which power, it was said, gives the donee of the power authority to revoke the power itself and substitute another power with a wholly different scope and without the requisites prescribed for the exercise of the original power. I cannot assent to that proposition as a general doctrine or rule of law. It is in every case a matter of the interpretation of the particular document. If the document, read according to the legal principles of interpretation, shows the intention of the document to be that the power of revocation should authorise revocation of the power itself and the substitution of another power, then the proposition stated follows; if however the interpretation leads to a different conclusion as to intention, then the proposition stated cannot be asserted of that case. This argument, therefore, depends upon a petitio principii. The only real analogy between the two matters is that in each case the question is one of the true interpretation of the document under consideration according to the settled rules of interpretation applicable, as for instance the rule admitting consideration of the relevant surrounding circumstances for the purpose of arriving at the true meaning and intention expressed by the written words which are to be construed. Again, in the case of a power, it is a settled rule that we may not extend its scope beyond what is expressed, or to be implied of necessity from what is expressed, in the instrument containing it and also that the requirements prescribed by the instrument for its due execution must be fulfilled.
A power of amendment is not an essential part of, or provision in, or addition to, a Constitution. The Constituent Assembly which creates and grants a Constitution need not grant any power to amend it, in which case amendment can be effected only by re-convoking the Constituent Assembly for that purpose. If it should have granted a power of amendment and an amendment outside the scope of that power should be proposed, that amendment can only be effected by again convoking the Constituent Assembly to enact it, if the Assembly think fit. A power of amending a Constitution is something outside and collateral to the Constitution itself. It may be conferred on a donee other than an authority owing its existence to the Constitution, as, for instance, on the whole body of the people, on a religious or legal hierarchy, or any other person or body that might be selected for the purpose. Again, such a power may be given by the Constituent Assembly by a separate instrument and not in the instrument containing the Constitution. In the present case, Article 50 might have been enacted by the Constituent Assembly as a separate Act or it might have been enacted as a section of the Constitution Act instead of being inserted in the Schedule containing the Constitution. No doubt the Constituent Assembly could, if it had so intended, have given a power of amendment of the power to amend the Constitution, but in that case it would seem far more likely that it would rather have conferred on the Oireachtas a general open and free power of amendment of the Constitution, unlimited in scope and without limiting and restraining requirements for its exercise, than have done the same thing indirectly by giving a strictly limited power with power to remove the limitations. The Constituent Assembly clearly, to my mind, did not so intend. In my opinion, on the true interpretation of the power before us, upon a consideration of the express prohibition, limitations and requirements of the clause containing it, the absence of any express authority, the donation of the effective act in the exercise of the power to the people as a whole, the relevant surrounding circumstances to which I have already referred, and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amendment itself.
For the reasons which I have set forth, I am of opinion that the Constitution (Amendment No. 16) Act, No. 10 of 1929, is invalid and the amendment of the Constitution contained in it inoperative, null and void. It follows that, in my opinion, no amendment of the Constitution passed by both Houses of the Oireachtas after the 6th of December, 1930, could become law unless and until it had been submitted for decision to a Referendum of the people and had received the approval of the people in the manner prescribed.
It follows that, in my opinion, the Constitution (Amendment No. 17) Act, No. 37 of 1931, has never become law, and that the matters of which the applicants here complain, being acts and proceedings under that invalid statute, are all wholly illegal and indefensible in law.
I have just stated my opinion that the Act, No. 37 of 1931, as a whole enactment, has never become law. I have further to add that I am also of opinion that, for the reasons already given, parts of the amendment (the new”Article 2A”) are incapable of being validly enacted under the Constitution, some as repugnant to the Natural Law and therefore repugnant to the Source of power and authority acknowledged and declared by the Constituent Assembly, others as repugnant to some of the principles postulated by the Constituent Assembly as fundamental.
Therefore, after most anxious and grave consideration of this very serious and critical case, I have arrived at the clear and deliberate opinion that the judgment of the High Court should be reversed and that the cause shown should be disallowed and the conditional order of habeas corpus and prohibition made absolute.

 

FITZGIBBON J. :
It is impossible to overestimate the importance of the questions which we have to decide on this appeal, involving as they do, on the one hand, the validity of several Acts already passed by the oireachtas and the powers possessed by that body over future legislation, and, on the other, rights and privileges of the citizens of the Saorstat which are stated by our own Constitution to be “inviolable,”or to be “guaranteed,” and which are alleged by the appellants to be “fundamental,” “immutable,” and incapable of being taken away by any enactment whatsoever.
The detailed analysis which has just been read by the Chief Justice, upon which I cannot hope to improve, makes it unnecessary for me to recapitulate the character and effect of the legislation which we have to consider. It is no part of my duty to express an opinion upon anything connected with that legislation except its validity under the Constitution, and I refrain from any kind of criticism of its merits.
The appellants contend that “The Constitution (Amendment No. 17) Act, 1931,” No. 37 of the Acts of 1931, which I shall refer to as “Amendment No. 17,” is ultra vires,unconstitutional and void, in that it is contrary to Article 72 of the Constitution, which enacts that “No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the cases of charges for offences against military law triable by Court Martial or other Military Tribunal”; to Article 6 of the Constitution which enacts that “The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law . . .”; and to Article 64 of the Constitution which enacts that “The judicial power of the Irish Free State (Saorstat Eireann) shall be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided . . .”
There is no doubt, and it is indeed admitted by the Attorney-General and his colleagues, that Amendment No. 17 expressly contravenes, in these and many other respects, the Constitution as originally enacted by Dail Eireann , sitting as a Constituent Assembly, but they contend that Amendment No. 17 was a valid amendment of the Constitution by the Oireachtas under the powers conferred on the Oireachtas by Article No. 50, as amended by the Constitution (Amendment No. 16) Act, 1929 (No. 10 of 1929), and the Constitution (Amendment No. 10) Act, 1928 (No. 8 of 1928).
To this contention the appellants reply that the Acts by which the Oireachtas purported to amend Article 50 of the Constitution were themselves invalid and ultra viresof the Oireachtas, and, consequently, that any amendment of the Constitution which rests upon them must also be invalid. The validity of Amendment No. 17 is also attacked upon a substantive ground of far-reaching importance, namely, that it violates certain rights of citizenship which are alleged to be fundamental, and “inviolable” or”immutable,” apparently by any legislative authority whatsoever.
It is obvious that if the Oireachtas had no power to amend Article 50 of the Constitution at all, or in the particular way in which it was amended by the Amendments No. 10 and No. 16, it will be unnecessary to consider any of the other objections to Amendment No. 17, and I shall, therefore, endeavour to deal with that objection first.
Article 50 is in these terms:”Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.” Article 47 made provisions for the suspension, in certain events, of any Bill, for a period of ninety days, and for the submission of any Bill so suspended to the decision of the people by Referendum, if a demand should be made within the ninety days either by a resolution of Seanád Eireann, assented to by three-fifths of its members, or by a petition signed by one-twentieth of the voters on the register of voters. This Article was repealed in 1928 by Amendment No. 10, and as consequential upon that repeal the reference to the provisions of Article 47 in the last clause of Article 50 was deleted.

The first contention of the appellants is that the terms”amendments” and “amendment” in Article 50 do not connote “repeal,” and they have referred us to dictionary interpretations of “amend” and “amendment” in the sense of “to improve,” “to make better,” and so on. There are, however, other equally common and authentic interpretations which do include the sense of “repeal,”and “improvement” may quite properly be effected by addition, alteration, or omission. “Amend, v.t. 1. To correct, to rectify by expunging a mistake; as, to amend a law.””Amend 2. To change or alter, as a law, bill, motion or constitutional provision by the will of a legislative body, or by competent authority; as, to amend the Constitution”(Ogilvie’s “Imperial Dictionary”). “Amendment. The act of changing a fundamental law, as of a political constitution, or any change made in it according to a prescribed mode of procedure; as, to alter the law byamendment; an amendment to the Constitution”: “Standard Dictionary,” Funk and Wagnalls (1894).
In legislation, the words “amendment” and “amend”are constantly employed in the sense of “repeal,” especially when reference is made to the amendment of a lengthy document, such as the Constitution or an Act of Parliament, by a repeal, total as to some provisions of the enactment, but partial when considered in relation to the document as a whole. Taking a volume of the statutes of the Imperial Parliament (Statutes, 8 Ed. VII), and opening it at random, I find, within a few pages, the following instances: Chapter 3: “An Act to amend the Prosecution of Offences Acts, 1879 and 1884.” Sect. 3, sub-sect. 1: “The enactments mentioned in the schedule to this Act are hereby repealed to the extent specified in the third column of that schedule,” and the schedule, of”Enactments repealed,” repeals the whole of one section and parts of two others of the Act of 1879 and part of one section of the Act of 1884. Chapter 15 of the same year,”An Act to consolidate and amend the law relating to the payment of costs in criminal cases” repeals by sect. 10, sub-sect. 1, portions of twenty sections and the whole of each of thirty-two sections, in thirty-six different statutes. Chapter 8 of the same year is perhaps the most apt illustration of all: “An Act to amend section eleven of the Savings Banks Act, 1904.” Sect. 1, sub-sect. 2: “Section eleven of the Savings Banks Act, 1904, shall be and is herebyrepealed.” These instances might, I expect, be multiplied by hundreds in English legislation, and they may be paralleled from the comparatively few enactments of our own Legislature. The usage of Parliamentary draughtsmen appears in the promiscuous interchange of the words”amend” and “repeal” in the text and marginal headings of different sections, but that of the Legislature itself may be seen in the Local Elections Postponement (Amendment) Act, 1924: “An Act to amend the Local Elections Post-ponement Acts, 1922 and 1923.” Sect. 1: ” The Local Elections Postponement (Amendment) Act, 1923 (No. 48 of 1923), shall be and is hereby repealed.”
Article V of the Constitution of the United States enables Congress to propose “Amendments to this Constitution”(the very expression used, with the substitution of “of”for “to,” in Article 50 of our own Constitution), and “amendments”and “amendment” are the only terms employed, yet “Amendment No. 22” is in these words: “The Eighteenth Article of Amendment to the Constitution of the United States is hereby repealed. This Article shall be inoperative unless it has been ratified as an Amendmentto the Constitution by Conventions in the several States as provided in the Constitution within seven years from the date of submission hereof to the States by the Congress.”
A further reason, conclusive in my opinion, against the limitation of the meaning of the word “amendment” to”improvement” is to be found in Article 65, which extends the judicial power of the High Court to the”question of the validity of any law, having regard to the provisions of the Constitution.” If the validity of an amendment of the Constitution were to depend upon the decision of the High Court that it was an “improvement,”the Judges and not the Oireachtas would be made the authority to decide upon the advisability of any particular amendment of the Constitution, and this would involve a direct contravention of the principles by which their respective spheres are assigned to the Legislative, the Executive, and the Judicial organisations in the Irish Free State. The Executive decides that the Constitution would be improved by a particular alteration, the Oireachtas, if it approves of the alteration proposed by the Executive, embodies it in the form of an Act, and the Judiciary decides whether that Act can be and has been validly enacted, and then, and not till then, the Executive enforces it as a law upon the people at large.
For all these reasons I am quite satisfied that the power conferred upon the Oireachtas by Article 50 of the Constitution to make amendments of the Constitution includes a power to amend by alteration or repeal, and that the Oireachtas alone has the right to decide whether any particular alteration, addition, or omission, is desirable, and accordingly that neither Amendment No. 10, nor Amendment No. 16, nor Amendment No. 17, is ultra viresof the Oireachtas merely because it involves a partial repeal of the Constitution.
The next objection is that, even if there be a power to amend or repeal portions of the Constitution, this power does not extend to an amendment or repeal of all or any part of Article 50.
However undesirable it may appear to some that the Oireachtas should have power, by merely passing an amendment, to extend, as they have done, the period within which amendments to the Constitution may be made by way of ordinary legislation, or to legalise, as they have done, amendments of the Constitution without submitting them to a Referendum of the people, as contemplated by the Constitution itself, nevertheless, if this be the true construction of Article 50, the Court is bound to give effect to that construction.
It is conceded that there is no express prohibition against amendment of Article 50 to be found in the Constitution. It is not unusual to find that Constitutions or Constituent Acts impose such restrictions upon the legislative bodies set up by them, and the omission of any such restriction in regard to amendments of Article 50 is at least a negative argument that Dail Eireann as a Constituent Assembly did not intend to impose any such restriction upon the oireachtas. This negative argument is supported by the fact that both the Constituent Act and Article 50 itself do Contain an express restriction upon the powers of the Oireachtas to amend the Constitution, and it is a legitimate inference that, when certain restrictions were expressly imposed, it was not intended that other undefined restrictions should be imposed by implication. The Constitution was enacted by Dail Eireann ,sitting as a Constituent Assembly, unfettered by any oath or test, open to all the elected representatives of the constituencies in that Irish Free State whose establishment was therein and thereby proclaimed, and it was the only act of legislation of that Constituent Assembly.
By the Constituent Act it was decreed and enacted as follows:
“1. The Constitution set forth in the First Schedule hereto annexed shall be the Constitution of the Irish Free State (Saorstat Eireann).
2. The said Constitution” (that is “The Constitution set forth in the First Schedule hereto annexed”) “shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referrred to as ‘the Scheduled Treaty’) which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, he absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State (Saorstat Eireann) shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.
3. This Act may be cited for all purposes as the Constitution of the Irish Free State (Saorstat Eireann)Act, 1922.”
Then follows the
“FIRST SCHEDULE ABOVE REFERRED TO.
CONSTITUTION OF THE IRISH FREE STATE.
(SAORSTAT EIREANN)”
which contains eighty-three separate numbered “Articles,”of which those numbered 73 to 83 inclusive are preceded by a descriptive heading “Transitory Provisions,” which is, for what it may be worth, the sole indication of any intended distinction between any one Article or group of Articles and any other.
If there ever was an assembly which could claim to represent the inhabitants of Saorstat Eireann, it was that Dail Eireann , sitting as a Constituent Assembly, which every elected representative of every constituency within the Saorstat was free to attend, unfettered by any test, and in which there wax no nominated or unrepresentative element, and I am not disposed to quarrel with the statement of the Attorney-General that “the framers of the Constitution framed that instrument in accordance with doctrines of popular sovereignty, and the instrument must be construed as indicating the powers conferred upon the Oireachtas,” or, subject to two modifications, with the propositions stated by Mr. Gavan Duffy as the foundation of his argument, that:”1. The Constituent Assembly proclaimed the Constitution by virtue of its own supreme legislative authority. 2. It transmitted that authority to its successor, the Oireachtas, at least for eight years. 3. It gave the Oireachtas complete amending power for eight years, subject to checks which are merely checks voluntarily imposed by the supreme authority and removable at its will,” and “4. That the Constitution was proclaimed in the name of the people by Dail Eireann as an act of supreme authority, which it alone had the right to do, because it was the mouthpiece of the people, requiring and receiving no Royal assent.”
The points in which it seems to me that Mr. Gavan Duffy has overstated the powers conferred by the Constituent Assembly upon the Oireachtas are his assertions (a) that Dail Eireann “transmitted that authority,” i.e.,”supreme legislative authority” to the Oireachtas, and (b) that “it gave the Oireachtas complete amending power for eight years.” An examination of the Constituent Act and of the Constitution will demonstrate that these statements exaggerate the powers of the Oireachtas. Assuming that the legislative authority of the Constituent Assembly was supreme, it expressly decreed and enacted by the Constituent Act that “the said Constitution,” namely,”the Constitution set forth in the First Schedule” to the Constituent Act, “shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed . . . which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty,it shall, to the extent only of such repugnancy, be absolutely void and inoperative.”
Therefore the supreme legislative authority, speaking as the mouthpiece of the people, expressly denied to the Oireachtas the power of enacting any legislation, by way of amendment of the Constitution or otherwise, which might be “in any respect repugnant to any of the provisions of the Scheduled Treaty,” and it reiterated this prohibition in Article 50, which empowered the Oireachtas to make “amendments of this Constitution within the terms of the Scheduled Treaty.”
It is further to be observed that this power to make amendments is limited to “amendments of this Constitution,”and that the Constituent Assembly did not confer upon the Oireachtas any power to amend the Constituent Act itself.
These express limitations, imposed by the mouthpiece of the people upon the legislative powers of the Oireachtas which it set up, support the view that the Oireachtas was intended to have full power of legislation and amendment outside the prohibited area, and, as there was no prohibition against amendment of Article 50, I am of opinion that Amendment No. 10 in 1928, and Amendment No. 16 in 1929, were within the powers conferred upon the Oireachtas by the Constituent Act.
In this connection I may add that in my opinion an amendment of Article 50 by the deletion of the words”within the terms of the Scheduled Treaty” would be totally ineffective, as effect is given to those words by the Constituent Act itself, which the Oireachtas has no power to amend.
In my opinion the object of Article 50 was to prescribe the method by which legislative sanction was to be given to those amendments of the Constitution which the Oireachtas was empowered to make, and the Oireachtas had full power during eight years, in the absence of any express prohibition, to alter, modify or repeal the method prescribed. The extension of the period of eight years to sixteen was, in the absence of any such express prohibition, an amendment within the powers conferred. I can find no sound justification for the exclusion of Article 50 from the powers of amendment, which appear to me to exist in respect of every other Article of the Constitution except those which embody provisions of the Scheduled Treaty, and in respect even of those Articles so far as the amendments made to them are not repugnant to any provision of the Scheduled Treaty.
It is by no means unusual to find in Constitutions, especially in those of States of recent formation, express restrictions upon the power of the Legislature to amend them imposed in respect of particular articles; and, in the case of the Union of South Africa, sect. 152 of the South Africa Act, 1909, which enacts that “Parliament may by law repeal or alter any of the provisions of this Act” (a declaration which appears to me indistinguishable in substance from “Amendments of this Constitution may be made by the Oireachtas within a period of eight years by way of ordinary legislation”), goes on to declare expressly “that no repeal or alteration of the provisions contained in this section . . . shall be valid” unless the Bill embodying such repeal or alteration shall have been passed in a particular way and by a specified majority.
Our Constituent Assembly could in like manner have excepted Article 50 from the amending powers conferred upon the Oireachtas, but it did not do so, and in my opinion the Court has no jurisdiction to read either into the Constituent Act or into Article 50 a proviso excepting it, and it alone, from those powers.

Mr. Overend has endeavoured to support his argument on this point by analogies from the law of principal and agent, master and servant, trustee and cestui que trust,and principal and attorney. “Who,” said he, “ever heard of a power of attorney by which the attorney could extend the term of his own authority?” Perhaps there has never been such an instrument, but I do not see any legal objection to the insertion in a power of attorney, given for a specified period, of a proviso authorising the attorney, by deed poll registered and executed in compliance with the law or in any specified manner, to extend the period of his authority, provided that such extension was made while the power was still in force, and did not offend against any statutory prohibition. The objections that the Oireachtas had no power to amend Article 50, that Amendment No. 17 was made after the period of eight years originally fixed by Article 50 had expired, and that it was not submitted to a Referendum of the people as provided by Article 50, therefore fail.
The next objection is founded upon the provisions of Amendment No. 17 itself.
It has been admitted, as I have already stated, that many of these provisions are directly opposed to the express enactments contained in many Articles of the Constitution, for instance, in Articles 43, 64, 65, 68, 69, 70 and 72, all of which have been abrogated in whole or in part. The most emphatic of these ale probably Article 43:”The oireachtas shall have no power to declare acts to be infringements of the law which were not so at the date of their commission,” and Article 72:”No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the case of charges for offences against military law triable by Court Martial or other Military Tribunal.”
I see no ground for holding that either of these Articles could not have been amended by the Oireachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g.,the deletion of the word “no” in Article 43, could be made “by way of ordinary legislation” within that period, or within sixteen years, after eight had been altered to sixteen.
The same reasoning which applies to the power of the Oireachtas to amend Article 50 applies with at least equal force to amendments of any other Article. Outside the area covered by the provisions of the Scheduled Treaty, no limit was imposed by the Constituent Assembly upon the power of the Oireachtas to amend the Constitution.
In many other Constitutions there are Articles, laws or provisions, which are specifically described as “Fundamental,”e.g., Sweden, or “Constitutional,” e.g., Austria, Czechoslovakia and France, in respect of which the Constitution expressly restricts the power of amendment, but in the Constitution of the Saorstat there is no such segregation, and the power of amendment which applies to any Article appears to me to be equally applicable to all others, subject, of course, to the restriction in respect of the Scheduled Treaty. In Article 6 it is declared that “the liberty of the person is inviolable,” but that is not a law of universal application, for the Article proceeds: “and no person shall be deprived of his liberty except in accordance with law.” The law may, therefore, make provisions in accordance with which a person may be deprived of his liberty. It is for the Legislature to prescribe those provisions, and for the Courts to enforce them, and even if, under Amendment No. 17, a person has been deprived of his liberty by the mere caprice of an Executive Minister (sect. 24, sub-sect. 2, and Appendix, clause 7), or the unfounded suspicion,”incapable of being rebutted or questioned by cross-examination, rebutting evidence, or otherwise,” “of any member of the Gárda Síochána” (sects. 13 and 29), “or of the Defence Forces of Saorstat Éireann” (sect. 13), such a deprivation would be “in accordance with law,”and the prisoner would have no redress.
The particular method of amendment adopted, by enacting that every Article of the Constitution subsequent to Article 2 shall be subject to the provisions of Amendment 17, and that the provisions of that Amendment shall prevail whenever there is any inconsistency between them and any subsequent Article of the Constitution, is unquestionably very inconvenient, and throws almost insuperable obstacles in the way of any citizen or Judge whose duty it is to ascertain the actual law of the Constitution, but an Act of the Legislature is not ultra vires or invalid because it is difficult to construe, and amendments of the Constitution which might be made clearly and one at a time are not invalidated because they have been enacted en masse in a manner calculated to create the utmost uncertainty and inconvenience. It is our duty to ascertain and declare the law to the best of our ability, and we are not concerned with either the wisdom or the propriety of the acts of the Legislature.
Since the argument I have come across a passage in an opinion of Chief Justice John Marshall, who was for thirty-four years Chief Justice of the Supreme Court of the United States during a period when that Court was engaged in settling questions of fundamental importance which arose upon the interpretation of the recently adopted Constitution, which seems to me to have a bearing upon more than one aspect of the present case, Providence Bankv. Billings et al. (1): “The proposition is that a power which is in itself capable of being exerted to the total destruction of the grant is inconsistent with the grant; and is therefore impliedly relinquished by the grantor, though the language of the instrument contains no allusion to the subject. If this be an abstract truth, it may, be supposed universal. But it is not universal, and therefore its truth cannot be admitted, in these broad terms, in any case. We must look for the exemption in the language of the instrument, and if we do not find it there, it would be going very far to insert it by construction. The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. . . . This vital power may be abused, but the Constitution of the United States was not intended to furnish the correction for every abuse of power which may be committed by the State Governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation,as well as against unwise legislation generally.”
In my opinion the repeals, alterations, and modifications of the Constitution enacted by Amendment No. 17, so far as they have been discussed before us upon this appeal, do not exceed the powers of amendment conferred upon the Oireachtas by Article 50, as amended in 1928 and 1929; and, as it has not been suggested that they are in any respect repugnant to the Scheduled Treaty, I hold that they are valid amendments of the Constitution.
There is, however, a broader ground upon which Mr. Costello and Mr. overend have endeavoured to found an argument. They assert that there are certain rights, inherent in every individual, which are so sacred that no Legislature has authority to deprive him of them. It is useless to speculate upon the origin of a doctrine which may be found in the writings of Rousseau, Thomas Paine, William Godwin, and other philosophical writers, but we have not to decide between their theories as those of Delolme and Burke, not to mention Bentham and Locke, upon what Leslie Stephen describes as “a problem which has not yet been solved, nor are even the appropriate methods definitively agreed upon,” as we are concerned, not with the principles which might or ought to have been adopted by the framers of our Constitution, but with the powers which have actually been entrusted by it to the Legislature and Executive which it set up.
“The Declaration of the Rights of Man and of Citizens”by the National Assembly of France on October 5th, 1789, that “liberty, property, security, and resistance of oppression are the natural and imprescriptible rights of man,” cannot be invoked to overrule the provisions of a statute enacted in accordance with the provisions of a written Constitution.
When a written Constitution declares that “the liberty of the person is inviolable,” but goes on to provide that”no person shall be deprived of his liberty except in accordance with law,” then, if a law is passed that a citizen may be imprisoned indefinitely upon a lettre de cachetsigned by a Minister or, as we have seen, even by a Minister’s clerk: The State (Quinlan and Others) v. Kavanagh and Others , post p. 249, the citizen may be deprived of his”inviolable” liberty, but, as the deprivation will have been “in accordance with law,” he will be as devoid of redress as he would have been under the regime of a French or Neapolitan Bourbon.
Nations and Constituent Assemblies are not agreed as to the rights and privileges which have been variously described in different Constitutions as “inalienable,” “inviolable,””fundamental,” “constitutional,” or “guaranteed.”For instance, among the “repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States,” which the signatories of the American Declaration of Independence published as “Facts submitted to a candid world,” in justification of their rebellion, were the following acts of George III (Declaration of Independence, July 4th, 1776):”He has dissolved Representative Houses for opposing with manly firmness his invasions on the rights of the people,” “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” “He has affected to render the Military independent of and superior to the Civil Power.” “He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his Assent to their Acts of pretended Legislation: For quartering large bodies of armed troops among us; For protecting them by a mock Trial from punishment for any Murders which they should commit on the inhabitants of these States; For cutting off our trade with all parts of the World; For depriving us in many cases of the benefits of Trial by Jury; For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the forms of our Governments . . . A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.” These rights, of which “the People of these Colonies” had been deprived, were claimed by them, not as inalienable rights of all mankind, but by virtue of their former status as British Colonists, but when the American Colonists set to work to frame a Democratic and Republican Constitution for themselves they realised the danger of merely substituting the will of a majority for that of a single individual, probably because many of the framers of the Constitution of the United States had suffered from the tyranny of a political or religious majority. The States of Connecticut, Rhode Island, and New Hampshire were founded by refugees driven out from Massachusetts; that of Delaware by refugees from New York; and that of Pennsylvania by Quakers in search of freedom; and they were resolved to impose constitutional restraints upon the power of the majority in the new Legislature of the Confederation. In their Constitution, accordingly, they embodied the English, or Anglo-Saxon, principles of trial by jury, an independent judiciary, habeas corpus, and other safeguards of liberty derived from Magna Charta, the English Bill of Rights and the Act of Settlement, and they imposed severe restrictions upon the power of the Legislature, and placed almost insuperable obstacles in the path of amendments to the Constitution. They sought to bind within the limitations of the Constitution, as framed by them, not only the Executive but the Legislature itself.”An elective Despotism,” said Jefferson, “was not the government for which we fought.” “A group of tyrants would be less manageable than one.” “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” To the same effect is the opinion of the Supreme Court of the United States, delivered a century later in a case in which the Legislature of a State had attempted to appropriate private property under the guise of the imposition of a tax: Loan Association v. Topeka (1):”It must be conceded that there are private rights in every free government beyond the control of the State. A Government which recognised no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our Governments, State and National, is opposed to the deposit of unlimited poweranywhere.”
But that is only the Anglo-Saxon, or American, conception of constitutional liberty. Another view was taken by Rousseau, who declared that:”Each of us puts his person and all his power in common under the supreme direction of the General Will,” that is, of the majority, and this appears to have been adopted by the French Constitution makers. I call find no justification for the inference which the counsel for the appellants ask us to draw from the provisions of the American Declaration of Independence and the Constitution founded thereon, or from the fact that some of these provisions have been embodied in other Constitutions, including our own, that the rights thereby secured are universal and inalienable rights of all citizens in all countries or even in the Saorstát, which, we have been assured, was, or is, or ought to be, Gaelic and Catholic, attributes to either of which few other States can assert a title, while there is no other which can even suggest a claim to both. There is no ground for surprise, therefore, that this State should, as the Chief Justice has said, “point new ways” in its “pioneer Constitution draftsmanship,” or that it should prefer to secure liberty and justice to its citizens by the simple processes of Amendment No. 17 in preference to the complicated British and American machinery of an independent judiciary, trial by jury, and habeas corpus.
I cannot presume, either, that rights and privileges which the inhabitants of England have always enjoyed, either by virtue of their common law (which was only introduced into Ireland bit by bit between the last years of the twelfth century and the beginning of the seventeenth), or under the provisions of special statutes, are also indigenous to the citizens of this Gaelic and Catholic State, in the sense in which the American Colonists claimed them as their birthright by virtue of their status as British subjectsa status which I understand to be repudiated by our legislatorsor that our national conceptions of liberty and justice must necessarily coincide with those of the citizens of any other State.
Two extracts from Fathers of American Independence will suffice to show, if there be any doubt, the source from which the principles embodied in their Constitution were derived. “What is the subject of our controversy with the mother country? It is this: Whether we shall preserve that security in our lives and properties which the law of nature, the genius of the British Constitution, and our charters afford us; or whether we shall resign them into the hands of the British House of Commons, which is no more privileged to dispose of them than the Great Mogul?”(Works of Alexander Hamilton, vol. 2, p. 4.) “No constitution of government has appeared in the world so admirably adapted to these great purposes” (liberty and knowledge, civil and religious) “as that of Great Britain. Every British subject in America is, of common right, entitled to all the essential privileges of Britons.” (James Otis. Hutchinson’s History of Massachusetts , vol. 3, pp. 101-2.)
Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inalienable, and incapable of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framers of our Constitution may have intended “to bind man down from mischief by the chains of the Constitution,” but if they did, they defeated their object by handing him the key of the padlock in Article 50.
Other Constitutions, e.g., that of the Kingdom of Serbs, Croats and Slovenes, and those of the Republics of Austria, Poland, Esthonia and Czechoslovakia, have esteemed all or some of these rights and privileges so highly as to declare them to be “fundamental,” or “constitutional,”or “guaranteed,” and the Republic of Mexico has provided in its Constitution a unique and very remarkable judicial safeguard for affording immediate redress by the decree of an Independent Federal Tribunal when any of the fundamental rights of man secured by its Constitution have been infringed by any authority whatsoever, and for excusing the obedience of a law or decree which is ultra vires of the enacting Legislature or Judiciary. The “personal guarantees”so protected include ten relating to criminal trials; no arrest except upon a previous charge founded upon evidence, or in cases flagranti delicto; no search of private houses except on a warrant issued by a Judge specifying the place to be searched, the persons to be arrested and the objects sought; and an express proviso that “No one shall be tried according to private laws or by special tribunals. Military Tribunals shall in no case and for no reason extend their jurisdiction over persons not belonging to the army.”
But the fact that the Constitutions of other countries prohibit such invasions of the rights of liberty and property, and such extraordinary innovations in the methods of administering justice in criminal cases as have been introduced into our Constitution by Amendment No. 17, affords no ground for condemning as unconstitutional inthis country, or as contrary to any inalienable rights of an Irish citizen, an enactment which appears to have received the almost unanimous support of the Oireachtas, for we have been told that those of our legislators by whom it was opposed most vehemently as unconstitutional and oppressive, when it was first introduced, have since completely changed their opinions, and now accord it their unqualified approval. It is true that even a unanimous vote of the Legislature does not decide the validity of a law, but it is some evidence that none of those whose duty it is to make the laws see anything in it which they regard as exceptionally iniquitous, or as derogating from the standard of civilisation which they deem adequate for Saorstat Eireann. Indeed, it is possible that our Constituent Assembly may have followed too slavishly the constitutional models of other nationalities, and that, just as the constitutional safeguards of Freedom of Speech, Trial by Jury, Security of Person and Property, with others, were only introduced into the Constitution of the United States by way of amendment a year after the original Constitution had been adopted, so the amendments of our Constitution which have been enacted during recent years, whereby these and similar safeguards have been minimised or abrogated, more truly represent our national ideals. If this be so, we find the Briton’s conceptions of liberty and justice set forth in his Magna Charta and his Bill of Rights; those of the American in his Declaration of Independence and his Constitution; while those of the Gael are enshrined in Amendment No. 17 (which is to prevail, in case of inconsistency, over everything in the Constitution except Articles 1 and 2), and subsequent amendments. However this may be, I can find no justification for a declaration that there was some “spirit” embodied in our original Constitution which is so sacrosanct and immutable that nothing antagonistic to it may be enacted by the Oireachtas. This Court has no jurisdiction to express an opinion upon any questions other than the constitutionality of the amendments before us, and their correct interpretation, once the Legislature has thought fit to enact them. Perhaps I may be permitted again to refer to a couple of American decisions upon similar questions.”Courts cannot nullify an Act of the State Legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the Constitution where neither the terms nor the implications of the instrument disclose any such restriction”: Walker v.Cincinnati (1). “Such a power is denied to the Courts, because to concede it would be to make the Courts sovereign over both the Constitution and the people, and convert the government into a judicial despotism”: Goldenv. Prince (2).
The last contention of Mr. Overend, that every person who accepted citizenship of the Irish Free State when it was first established, or at any subsequent date, did so upon the faith of an undertaking, express or implied, on the part of the State, embodied in the Constitution, that no alteration of the Constitution to his detriment would thereafter be made, is so manifestly untenable upon any ground of law or principle, that I mention it only to show that it has not been overlooked.
Equally unfounded is the suggestion that the power of amendment introduced in Article 50 should be treated by analogy to a proviso in small print at the end of a fraudulent prospectus, or to a condition on the back of a railway ticket handed to an illiterate traveller. Such arguments show the desperate straits to which the appellants have been reduced. Article 50 seems to me to occupy its appropriate place, at the end of the group of clauses which deal with the creation, composition, and powers of the Legislature, and every person who became a citizen must be presumed to have been aware of the existence of Article 50, and to have accepted citizenship upon the terms therein set forth.
Fortunately it can never again be suggested that the Saorstat has obtained citizens by false pretences, now that the Oireachtas has promulgated urbi et orbi, to the Czechoslovak and the Mexican, to our kinsmen in the United States of America and throughout the British Commonwealth of Nations, and, above all, to our fellow-countrymen in Northern Ireland, whose co-operation we profess to desire, as well as to all those who seek, or acquire, or have thrust upon them, rights under our new Irish Nationality and Citizenship Act, Amendment No. 17 as an integral part of our Constitution, setting forth in the clearest language, in the forefront of that document, the conditions under which liberty is enjoyed and justice may be administered in “this other Eden demi-Paradise, this precious stone, set in the silver sea, this blessed plot, this earth, this realm, this” Saor Stát.

MURNAGHAN J. :
The appellants before the Court on this appeal contend that they are held in unlawful custody, and state that they are about to be brought to trial before a tribunal which has no legal authority to try them.
On these grounds they seek to obtain orders of habeascorpus and of prohibition.
There is no dispute about the facts, and the legal issues in controversy have, by the arguments, been limited to two matters, which, however, raise considerations of very grave moment.
The appellants are held in custody under the provisions of an Act of the Oireachtas styled “the Constitution (Amendment No. 17) Act” (No. 37 of 1931), and it is not disputed in this case that, if this Act has been validly passed into law, the detention of the appellants is in accordance with law.
The appellants take their stand on the position that the Oireachtas, when it passed this Act in 1931, exceeded the powers given to it by the Constitution, and that it had no power to make the amendment of the Constitution which it purported by that Act to make. This Court has neither the power nor the responsibility of saying whether the circumstances of the time justified the Oireachtas in adopting the provisions of the Act in question, but it is the function and the duty of the Court to determine whether the Oireachtas in passing this Act had power under the Constitution to pass the Act which it did pass.
The extreme rigour of the Act in question is such that its provisions pass far beyond anything having the semblance of legal procedure, and the judicial mind is staggered at the very complete departure from legal methods in use in these Courts. The Oireachtas, which passed this Act in November, 1931, recognised that the provisions of the Act contravened many of the Articles of the Constitution, and the Act itself is professedly declared to be an amendment of the Constitution. Sect. 2 of the Schedule to this Act, setting up the Special Powers Tribunal, enacts as follows:”Article 3 and every subsequent Article of this Constitution shall be read and construed subject to the provisions of this Article, and in the case of any inconsistency between this Article and the said Article 3 or any subsequent Article, this Article shall prevail.” As a matter merely of drafting I do not consider such a method of amending the Constitution an elegant one; and it is highly inconvenient to be obliged to determine what the Constitution really is from the study of conflicting documents. The drafting of the Act in this form was evidently motived by a desire to secure at all cost that none of the provisions should be held to be contrary to the Constitution, but the meaning and intention is quite clear. The Article set forth in the Schedule to the Act of 1931 is declared to be an Article of the Constitution, and Article 3 and all subsequent Articles of the Constitution are declared to be amended in so far as any provisions of the Constitution are inconsistent with those of the said Article set out in the Schedule to the Act of 1931.
When the Constitution of Saorstat Eireann was adopted in 1922 it was a question of great importance to what extent and in what manner this Constitution might be altered. I think that it is not necessary here to recapitulate the steps that led to the adoption of the Constitution. It is sufficient to quote Article 83 of the Constitution itself, which reads:
“The passing and adoption of this Constitution by the Constituent Assembly and the British Parliament shall be announced as soon as may be, and not later than the sixth day of December, Nineteen hundred and twenty-two, by Proclamation of His Majesty, and this Constitution shall come into operation on the issue of such Proclamation.”
It must, therefore, have been foreseen that difficulty in the future would be avoided by a clear statement as to how and to what extent the Constitution might be amended. At all events we find in the Constitution a special Article50which deals with the power of amendment, and which finds its place naturally amongst the powers of the Oireachtas. Article 50 is as follows:

“Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.”
This Article may be summarised as providing that, during the eight years after the coming into operation of the Constitution, amendments of the Constitution under the Article might be made by way of ordinary legislation which were valid without a Referendum unless specially demanded by the persons, and in the manner, specified in Article 47, but that amendments made after that period had in every case to be approved by a Referendum of the people with the prescribed majority.
As I have already stated the amendment of the Constitution with which we are concerned in this case was not made within the period of eight years from 6th December, 1922, the date of coming into operation of the Constitution, but was made in November, 1931, under an amendment of the Constitution made in July, 1929, inside the eight year period, which, if valid, amended Article 50 by substituting a period of sixteen years for the period of eight years mentioned in the original Article 50. Owing to this amendment so made the Act of 1931 (Amendment No. 17) was not submitted to a Referendum.
The appellants on this appeal have put forward two lines of argument against the validity of the Act setting up the Special Powers Tribunal. In one line of argument it is said that the alterations made in the Constitution by the Act of 1931 are outside the scope of the amendments authorised by Article 50 of the Constitution. In this argument it is sought to be established that many Articles of the Constitution are so fundamental as to be incapable of alteration, and that the true meaning of the word “amendment” in Article 50 of the Constitution does not authorise any change in these fundamental Articles or doctrines. It has to be admitted that the Constitution itself does not segregate as fundamental specified Articles or doctrines, nor does it in terms make any distinction between the different classes of Articles. At most, certain Articles such as Article 8, by which freedom of conscience is guaranteed, and Article 9, by which the right of public meeting is guaranteed subject to certain safeguards, may be said to seek to secure what may, in the sphere of ethics and politics, be regarded as fundamental rights. These Articles are not, however, those which have been said to have been weakened; and, in reference to other Articles which are alleged to be fundamental, the only criteria which the appellants can suggest is that the Court should undertake the responsibility of deciding in any set of circumstances which Articles should be held to be fundamental. Before the Court should seek to assume such a power it is, in my opinion, necessary that the Court should find a very stable foundation for such an exercise of jurisdiction. If we regard closely the substance of the matter it is plain that, after the eight years period, proposed amendments of the Constitution were to be submitted to the people for approval, and were to become law only if they had been accepted by the requisite majority of the voters entitled to vote. This direct consultation of the people’s will does indicate that all matters, however fundamental, might be the subject of amendment. On the other hand the view contended for by the appellants must go to this extreme point, viz., that certain Articles or doctrines of the Constitution are utterly incapable of alteration at any time, even if demanded by an absolute majority of the voters.
Much has been said in the argument concerning the nature and special sanctity of the Constituent Act. A Constituent Act is an Act which sets up a new Constitution, and, as such, must be a document of the first importance. But there is no necessary reason why the members of the Constituent Assembly should seek to set bounds to the march of the nation in the future. As a matter of construction of Article 50 I do not see any ground for limiting the meaning of the word “amendment” as used in that Article in the manner suggested by the appellants. They seek to construe this word as being limited to alteration or improvement of details as distinct from principles. This construction would draw a line which must necessarily be a very indefinite one and would lead to difficulties even greater than is caused in some Continental systems by a distinction between partial and general revision of the Constitution. But in truth lawyers are familiar with the use of the word “amendment” as applied to the Legislature. As so used, amendment frequently includes the repeal of sections or groups of sections of an Act as well as modification of the underlying principle of the Act itself. Although the complete abolition of the Constitution without any substituted provision might not properly be called in law an “amendment,” in my opinion the word “amendment” is wide enough to allow of the repeal of a number of Articles, however important in substance they may be. The only limitation specified in the text of Article 50 itself is that the amendment of the Constitution must be within the terms of the Scheduled Treaty. This limitation is emphasized by the Constituent Act itself, which provides that if any amendment of the Constitution is in any respect repugnant to any of the provisions of the Scheduled Treaty it shall to the extent only of such repugnancy be absolutely void and inoperative. This conception of the power of amendment as entertained by the framers of the Constitution does not at all accord with the limitation now attempted to be put forward. As a matter of construction I am satisfied that the power of amendment extends to any limits other than those specified in the Article and in the Constituent Act, and it is not argued that the Act of 1931 is in any way inconsistent with the Scheduled Treaty.
I think it right to add that the view which I have expressed is that stated by O’Connor M.R. in passages relied upon taken from the unreported cases of R. (Cooney)v. Clinton and R. (O’Connell) v. Military Governor of Hare Park Camp (1). The passages in these cases, read by the Attorney-General, state the opinion of the late Master of the Rolls that any part of the Constitution might be altered so long as the alteration should not be contrary to the terms of the Scheduled Treaty. I can find nothing in Article 50, and I know of no rule of construction outside this Article, which would justify this Court in annulling any amendment within the terms of the Scheduled Treaty passed by the Oireachtas and approved of by a Referendum supported by an absolute majority of the voters on the register.
Article V of the Constitution of the United States allows amendments to that Constitution to be made and although the same word “amendment” is used in that Article it has not been shown to have received the limited meaning which the appellants contend for.

During the argument a number of cases decided in the Courts in England have been referred to. I have considered these cases and while some of them are valuable as illustrations of general principles of construction yet they do not require examination as authorities upon the questions involved in this appeal. I shall refer to the case of Attorney-General for New South Wales v. Trethowan (1)only for the purpose of remarking that the decision in that case turned upon the provisions of the Colonial Laws Validity Act, which have no application to the facts of the case before us.
The Constitution has entrusted to the Court the power and duty of seeing that the Legislature shall not exceed its legislative power by passing enactments which are contrary to the Constitution. But the Constitution has also given a power to the Legislature, subject in some cases to a Referendum of the people, to amend the Constitution itself. In cases where the Legislature professes to amend the Constitution itself, the only function of the Court is to see that the proposed amendment is within the scope of the power granted by the Constitution and that the requisite forms insisted upon by the Constitution shall have been duly observed. It has not been disputed that within the period of eight years mentioned the Oireachtas could have made by way of ordinary legislation any amendment which might after the period of eight years be made by the Oireachtas with the approval of the people consulted directly in a Referendum. For the reasons which I have stated in detail I am of opinion that the Amendment No. 17, if made by the Oireachtas within the specified period of eight years, would have been within the power of amendment contained in Article 50 of the Constitution.
The second question which has been the subject of argument is whether the amendment made in 1929, substituting a period of sixteen years for that of eight years mentioned in Article 50 during which amendments of the Constitution might be made by way of ordinary legislation, is in itself a valid amendment. If the Oireachtas had allowed the period of eight years to expire without seeking to alter Article 50 in this respect, amendments of the Constitution would in every case require approval by a Referendum. In the Electoral Act of 1923 provision was made for the holding of a Referendum, and the machinery was available, but the oireachtas appears to have been disinclined to allow this method of consulting the people to be put into practical operation. On 12th July, 1928, the Constitution (Amendment No. 10) Act was passed, deleting from the Constitution Article 47, which provided for a Referendum on certain conditions in respect of ordinary legislation,and Article 50 was amended by the deletion of the words “and as such shall be subject to the provisions of Article 47 hereof.” The result of the Constitution (Amendment No. 10) Act was that ordinary legislation was no longer subject to the conditional Referendum nor was any constitutional amendment, made within the eight years period, subject to the conditional Referendum either. As matters thus stood there would, however, have been a compulsory Referendum in the case of every amendment of the Constitution made after the expiration of the eight years period. But, by the Constitution (Amendment No. 16) Act passed on 14th May, 1929, the Oireachtas, by way of ordinary legislation within the eight year period, made an amendment of Article 50 as already mentioned, and extended the power of amendment by way of ordinary legislation to a period of sixteen years.
Whether this Constitution (Amendment No. 16) Act was validly made is the second question which has been argued, and the question is purely one of juristic construction of Article 50 of the Constitution. Where the result aimed at by the framers of Article 50 appears to be that constitutional amendments made after the eight years period should be confirmed by a Referendum of the people, it may seem a strange result that the power to make amendments by way of ordinary legislation during the specified period should be capable of being utilised to extend the period itself during which such amendments might be made by way of ordinary legislation. It has been forcibly argued that a construction of Article 50 which enables this to be done would put it in the power of the Legislature to extend its own power of constitutional amendment from time to time and thus do away in practice with the control sought to be achieved through a Referendum. But the meaning of Article 50 must be ascertained from the actual words used in the Article. The words are “Amendments of this Constitution within the terms of the Scheduled Treaty may be made . . .” which identical subject-matter is again referred to as “such amendments.” By the Constituent Act the Constitution is defined to be the Constitution set forth in the First Schedule thereto. This First Schedule contains 83 Articles, of which Article 50 is one, and accordingly the words of Article 50 in their natural and ordinary meaning must allow of the amendment of each and every Article of the Constitution provided that the amendment is within the terms of the Scheduled Treaty. It must, therefore, be asked upon what principle of construction the power of amendment so given should not extend to Article 50 itself? It has been sought on behalf of the appellants to limit the power of the Oireachtas during the eight year period by introducing analogies derived from the law of principal and agent. Reference is made to the rule of law by which an agent cannot himself extend the scope of the authority given to him by the principal and it is said that the Oireachtas is in the position of an agent towards the people. I agree that if the analogy could be substantiated it would follow, on similar lines of reasoning, that a limited agency in the Oireachtas to amend the Constitution could not be resorted to in order to extend the limits of the agency. But in legal language the terms of principal and agent have definite legal meanings, and it is not in the sense of this meaning that we can speak of the Oireachtas as the agent of the people. Perhaps a more close analogy might be suggested in the donee of a power of revocation and new appointment. In such a case, if the power is wide enough, the entire settlement can be revoked and new provisions can be substituted even to the extent of a new mode of revocation. But in truth neither of these analogies can safely be applied to the matter before the Court and the case must depend upon the construction of Article 50 of the Constitution.
The consequences of a decision in favour of the extension of the period during which amendments of the Constitution may be made by way of ordinary legislation alone are grave and far reaching hut it is the duty of the Court upon a point of construction to arrive at a conclusion irrespective of the consequences of the decision. I am ready to conjecture that when Article 50 was framed it was not considered probable that any such use of the power would be made as has been made, but the terms in which Article 50 is framed does authorise the amendment made and there is not in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly based. It must also be remembered that in this country the Referendum was an untried political experiment and it cannot be assumed that the Referendum should be incapable of alteration or removal. I feel bound by the words of Article 50, which allows amendment of the Constitution as a whole, of which Article 50 is declared to be a part.
I am, therefore, of opinion that power was given to amend Article 50 and that consequently the period during which the Constitution may be amended by way of ordinary legislation has been validly extended to a period of sixteen years from the date of coming into operation of the Constitution.
In my opinion the appeal should be dismissed.
I have already made some observations upon the manner in which the Constitution has been amended by the Constitution (Amendment No. 17) Act, 1931. The power of amendment is not a power of temporary suspension and as the Act of 1931 has been put into operation the Constitution must, I should imagine, be considered as amended so as not to be inconsistent with the provisions of the Act of 1931. To discover what the provisions of the amended Constitution now are is a matter of no small difficulty; and if the Act of 1931 should in the future cease to remain in force I fear that grave doubts will arise as to what the Constitution really is. It is, therefore, highly desirable that amendments of the Constitution should be made either by way of repeal of specific Articles or by the substitution of amended Articles instead of those which it is desired to alter.

 

 

The State (Burke) v. Lennon and the Attorney-General.

[1940] IR 136

 

Gavan Duffy J. 141

Seamus Burke, a spirit grocer and provision merchant, of Ballinrobe, Co. Mayo, who is an Irish citizen, applies for an order of habeas corpus, on the ground that he is being unlawfully detained by the Governor of Arbour Hill Military Detention Barracks, Dublin, being interned in the Barracks without trial.
The Governor justifies on a warrant emanating from the Minister for Justice under s. 55 (authorising internment under certain circumstances) of the Offences Against the State Act, 1939 (No. 13 of 1939), and the Regulations made under that Act.
I shall speak throughout of Seamus Burke as the applicant; he has made an affidavit and is the applicant in effect, but in form the applicant is his brother; no objection has been made on this score, but I am not to be taken as construing Art. 40 of the Constitution to sanction an application by a third party where the person detained can make the application himself.

Sects. 55 and 54 of the Act, and s. 59, to which I shall refer, appear in Part VI of the Act, headed “Powers of Internment,” and sub-s. 2 of s. 54 enacts that that Part of the Act shall come into force forthwith,
“if and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately.”
The proclamation is thus a condition precedent. The Act was passed on the 14th of June, 1939. and a proclamation in the terms of sub-s. 2 of s. 54 was made and gazetted by the Government on the 22nd of August, 1939. On the same day the Government, under s. 35 of the same Act, made and gazetted a proclamation declaring that they were
“satisfied that the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that Part V”
of the Act should come into force; Part V is headed”Special Criminal Courts” and such Courts are the subject of a special provision in Art. 38 of the Constitution. It is noteworthy that a determination that the ordinary Courts are inadequate to their functions is necessary to bring Part V into force, whereas that condition does not apply to bringing into force Part VI. Any Judge of the High Court must regret interfering with executive action at this time, when in fact the Government, with its special means of knowledge, has officially declared that the ordinary Courts are inadequate to secure the effective administration of justice, but any such consideration is subsidiary to the right of the citizen under the Constitution to an order of habeas corpus, if that right be established.
The applicant has been interned without trial since the 16th of September, 1939, in pursuance of s. 55 of the Act, under a warrant by the Minister of that date, on the ground that the Minister is satisfied that he is engaged in activities calculated to prejudice the preservation of the security of the State. He now challenges the right of the Oireachtas to make a law conferring the power of internment on a Minister. I have thus to determine a matter of high constitutional importance. I am not concerned with policy, for problems of statesmanship belong essentially to the legislative and executive domains, and not to the judicial; I have to decide a question of law.

The Attorney-General is represented on this application in pursuance of the Rules of Court, and he sustains the validity under the Constitution of Part VI of the Offences Against the State Act, 1939. I must look into the material provisions of the Constitution in order to see exactly what place personal liberty finds there, and to see whether the impugned enactment fits into the constitutional framework, and I must do so with special care, since this is the first case in which a claim of this kind has arisen for adjudication under the Constitution.
I wish to place on record the fact that there has been no suggestion on behalf of the State that the Offences Against the State Act, 1939, may be treated as having amended the Constitution by implication. If I may say so, I think counsel for the State were quite right in making no case of that kind under the present Constitution.
The Constitution was enacted by the People of Ireland on the 1st of July, 1937, and came into force on the 29th of December, 1937.
With the greatest solemnity, the People, invoking the Most Holy Trinity, gave to themselves “Dochum Glóire Dé agus onóra na hEireann”: a noble Christian polity; they enshrined the guiding principles in language simple and direct; and they entrusted to the Judiciary the tremendous responsibility of maintaining their constitutional monument against legislative attack.
Art. 9 deals with citizenship and declares fidelity to the nation and loyalty to the State to be fundamental political duties of all citizens. For the rest, the salient features of the Constitution, for the purposes of the present case, are (1), its declaration of the fundamental right of the citizen to personal liberty; (2), its measures for the protection of constitutional rights; (3), its outlook on the criminal law; and (4), its provisions for times of emergency. There is no express authority for internment without trial.
As to personal liberty, it is one of the cardinal principles of the Constitution, proclaimed in the Preamble itself, that the dignity and freedom of the individual may be assured; Arts. 40 to 44 of the Constitution set out the”Fundamental Rights,” comprising personal rights, the imprescriptible rights of the family, the inalienable right and duty of parents to educate their children, the natural right to private property, and freedom of conscience and religion. The fundamental personal rights, which are the personal rights of free men, include (Art. 40) the right to the equal protection of the law, the inviolability of the home, the rights of free speech, peaceable assembly and
association, and, in particular, the liberty of the person, expressed in the words: “No citizen shall be deprived of his personal liberty save in accordance with law”; this right is secured by a strongly worded habeas corpus clause, to protect the citizen against unlawful imprisonment, except as against the Defence Forces during the existence of a state of war or armed rebellion.
These rights are, of course, qualified, because under modern conditions the rights of the citizen must be subjected to legal limitations, and absolute rights are unknown, or virtually unknown, in a democratic State. But in a significant clause of Art. 40 the State guarantees in its laws to respect the personal rights of the citizen and, as far as practicable, to defend and vindicate them; in particular, the State is charged by its laws to protect, as best it may, from unjust attack the person of the citizen as well as his life, good name and rights of property.
The right to personal liberty means much more than mere freedom from incarceration and carries with it necessarily the right of the citizen to enjoy the other fundamental rights, the right to live his life, subject, of course, to the law; and, if a man is confined against his will, he has lost his personal liberty, whether the name given to the restraint be penal servitude, imprisonment, detention or internment; see Dunne v. Clinton (1). Habeas corpus is the direct security for the right to personal liberty, but a constitutional separation of powers and constitutional directions for the administration of justice as an independent function of the State were necessary to make the remedy secure.
The architects of the Constitution were alive to the need for protecting the rights declared in the Constitution; accordingly, in Art. 5, they characterised the State as a democratic State, in which (Art. 6) all powers derive under God from the People and are to be exercised only by or on the authority of the legislative, executive and judicial organs established by the Constitution; effect is given to the division of powers by Arts. 15, 28 and 34 and 35. Laws in any respect repugnant to the Constitution are expressly forbidden and invalidated by Art. 15 and, as a special safeguard, exclusive original jurisdiction in cases raising the constitutionality of any law is assigned to the High Court, together with a veto, a matter of first importance, upon any statutory encroachment on the appellate jurisdiction of the Supreme Court in any such case (Art. 34); the Supreme Court is thus made the ultimate constitutional guardian of constitutional right.

Under Arts. 34 and 35 an independent judiciary is constituted, charged with the administration of justice in public Courts established by law. The High Court is invested with full original jurisdiction to determine all matters and questions, whether of law or fact, civil or criminal; the inference is that there are two categories, and two categories only, of matters and questions of law or fact: (a) the civil and (b) the criminal. The Constitution recognises in Arts. 29 and 13, as exceptions from the general jurisdiction of the High Court, international agreements (unless the Oireachtas otherwise determines) and the exercise of his powers and functions by the President.
Arts. 30 and 38 enjoin that all crimes and offences are to be prosecuted in the name of the People, that no person shall be tried on any criminal charge save in due course of law, minor offences only being tried in Courts of summary jurisdiction, and that no person shall be tried on any criminal charge without a jury, except under the summary jurisdiction for minor offences, or military law for military offenders, or where military tribunals are dealing with a state of war or armed rebellion, or under the jurisdiction of special Courts, established by law when the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. Manifestly these penal jurisdictions are all contemplated as importing lawful restrictions under the Constitution upon personal liberty, and Art. 40 must be read in the light of Art. 38.
The need to provide for times of emergency was clearly foreseen and the emergencies in contemplation were defined. Besides making the declartion of war subject to the assent of Dail Eireann , the Constitution, where express amendment of the Constitution is not involved, facilitates the enactment of a Bill declared by the Government to be urgent and immediately necessary to preserve public peace and security or by reason of a public emergency (Art. 24), sanctions the establishment of special Courts, as I have said, where the ordinary Courts are inadequate (Art. 38), and declares that a law made expressly to secure the public safety and the preservation of the State in time of war or armed rebellion is not to be invalidated by any provision of the Constitution (Art. 28); see now as to “time of war” the First Amendment (1939).
There is no provision enabling the Oireachtas or the Government to disregard the Constitution in any emergency short of war or armed rebellion. And the Constitution contains no express provision for any law endowing the Executive with powers of internment without trial.
I am now in a position to ask myself whether s. 55 of the Offences Against the State Act, 1939, is a valid law under the Constitution. The section purports to authorise a Minister of State (after the necessary proclamation has been made and published under s. 54), to order the arrest and indefinite detention of any person enaged in activities calculated to prejudice the preservation of the peace, order or security of the State, whenever the Minister is satisfied, a condition precedent, that the person is so engaged; the Minister makes his order by a “warrant” under his hand, which entitles any Gárda, without other warrant, to arrest that person; and the section requires the person arrested to be detained in a prescribed place. The detained man may apply in writing to the Government, under s. 59, to have his detention considered by a non-judicial Commission, whereupon the Government must refer the matter to the Commission; its duty is to inquire into the grounds of the detention and with all convenient speed report to the Government; the Minister for Justice must furnish to the Commission all relevant information and documents for which it may call; if it reports that no reasonable grounds exist for the detention, the internee must within one week either be released or charged according to law with an offence. He may be held for a week despite the Commission’s report that no reasonable grounds exist for detaining hima provision hard to defend. Mr. Maguire for the Attorney-General says that it is the plain duty of the Commission to inquire what the internee has to say for himself, either orally or in writing; any such inquiry must, I think, involve divulging the grounds of internment to the internee. Mr. Maguire’s candour, a conspicious feature of his argument, invites the inquiry why, if he is right as to the duty of the Commission, fair play does not impose a similar duty on the Minister; I do not know the answer. But, as neither the prosecutor nor the State has argued that the Minister’s duty under the section involves any hearing of, or statement from, the suspect, I pass on to the specific complaints of the applicant.
Let me say here, in order to avoid recurring to the case, that Mr. Haugh vigorously pressed upon me, in answer to most of those complaints, the decision in O’Connell’s Case (1) whereby a transient Court upheld internment without trial under the Constitution of 1922; in my opinion, that case, if its authority survived the appeal (2), bears only a superficial resemblance to this, because it was decided under a Constitution differing radically from the present Constitution in its provisions to secure personal liberty; and because in that case, unlike this, there was”nothing except the inner consciousness of the Minister expressed in the written order” for interment (per Molony C.J. at p. 112), for the authority to intern was the arbitrary opinion of the Minister that the enlargement of the internee would imperil the public safety: that position is not reproduced in the Act of 1939.
The applicant complains that s. 55 violates the equality of citizens before the law (Art. 40); I cannot so hold without much closer examination of the authorities. It is recognised in America that a similar provision for equal protection of the laws in the 14th Amendment to the Constitution of the United States does not prevent all limited legislation and is not infringed by a law imposing on all citizens the like penalties for the like offences. But I need not decide this point.
I shall now examine the contention that s. 55 of the Act of 1939 is repugnant to the Constitution because it authorises an invasion by the Executive of the judicial domain by requiring a Minister of State to administer justice. In order to determine this question, I shall investigate the duty of a Minister under the section, in order to see its essential character and so to ascertain whether a Minister acting under s. 55 is acting judicially. That is the first of two associated, but distinct, questions. Upon an affirmative answer to the first question, the second inquiry is whether, besides acting judicially, he is administering justice.
The Minister has authority to order arrest and internment only upon condition that he shall first have been “satisfied”that the person concerned is engaged in prejudicial activities of the sort described in the section. The word “satisfied”may or may not imply something in the nature of a judicial inquiry; its implication depends on the context. And, if the section erects the Minister into a tribunal, is he a judicial or a so-called administrative tribunal? A judicial tribunal, besides acting judicially, administers justice, determining rights and liabilities according to law, upon the ascertainment of the relevant facts. An administrative tribunal is sometimes required to act judicially; more often it is not, but, whether or not it acts judicially, it does not administer, and does not claim to administer, justice. Such is not its function; normally its characteristic function is to administer policy as it sees best in the public interest. Its decisions may, therefore, properly be influenced by subjective standards; it generally has the widest discretion, a very much wider power of acting on personal opinion than is involved in the limited judicial discretion familiar to a court of law, administering justice. That is why an appeal to the Courts from an administrative tribunal so frequently fails.
The Minister has to be satisfied. There must be countless occasions in the official life of a Minister of State on which he has to be satisfied as to particular facts before taking a particular course, occasions on which nobody would for a moment expect him to act judicially in order to be satisfied; otherwise the daily routine of administration would become impossible. But under s. 55 the Minister, who may be any Minister of State, is not exercising any normal function of his office; he is exercising a most exceptional statutory power, and a man’s liberty depends on his exercise of it. The nature of the duty imposed on “a Minister of State”by s. 55 is the best guide to the meaning of the word”satisfied” in the section. Part VI of the Act is its own best dictionary, and the grave duty which the section imposes does not suggest any loose use of the word “satisfied,”but, in my opinion, clearly suggests a serious inquiry resulting in a serious finding of “satisfied” or “not satisfied,” as the case may be. Mr. Haugh points out that in the Public Safety Act of 1924 (No. 1 of 1924), there were sections empowering a Minister to act, if “satisfied” that there were grounds of suspicion, but those sections were not considered by the Court in O’Connell’s Case (1).
In examining the duty imposed on the Minister, I have in mind two well-known authorities in particular, The Dublin Corporation Case (2), and Webster’s Case (3). In the earlier case May C.J. says at p. 376:
“It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant”he is, of course, speaking of the purely ministerial warrant “but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term ‘judicial’ does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others;”
and he instances the making of a rate. In the later case FitzGibbon L.J. accepts this statement, as applied to the cases under consideration, with the proviso that the acts must involve the exercise, or assumed exercise, of some jurisdiction (p. 383), while Palles C.B. at p. 373 enunciates this much quoted proposition:
“I have always considered, and still consider, the principle of law to be as stated by the Chief Justice, assuming that there is nothing in the statute constituting the particular tribunal or investing it with the particular power which indicates a contrary intention.” (He is speaking of an intention to exclude certiorari.) “I have always thought that to erect a tribunal into a ‘Court’ or ‘jurisdiction,’ so as to make its determinations judicial, the essential element is that it should have power, by its determinationwithin jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact.”
This passage represents accepted law, save that the words”determine liability” would, it has been suggested, be more accurate than “impose liability,” but for my present purpose the difference is not material. These statements, though directed to certiorari, help to clarify the aims of my present inquiry.
Let me examine the duty of the Minister under the section a little more closely. Before issuing his warrant for arrest with a view to internment, the Minister must make up his mind upon certain matters of fact; the evidence placed before him will generally, I suppose, be contained in the Gárda records; I assume that it is not required by the section to be legal evidence. Often the Minister may be in a better position to reach a correct conclusion than the man in the street, and he is not bound by the view which he thinks a jury would probably take, if on the evidence that view appears to him to be wrong. I recognise all that in favour of the State, but I come back to the need for the Minister to be satisfied, to be satisfied as to facts, and to be satisfied as to facts which will form “the grounds” of detention for the Commission of inquiry, if there be one. First, the Minister, to have the right to intern, must be satisfied that the person concerned is in fact engaged in specific activities; that is the kind of question that one may fairly classify as a “jury question”; if he finds against the man on that issue of fact, the Minister, before he can intern, must consider whether those activities by that person are calculated to prejudice the peace, order or security of the State and be satisfied that they are; the phraseology here is indefinite, but I need not pause to consider whether, on the analogy of American decisions, it is too vague under our Constitution for a penal enactment; this second determination may be said to depend on opinion, because different minds may so easily on the same facts reach different conclusions; but it is emphatically not a matter of discretion, which the Minister is free to determine as he feels inclined in accordance with his view of the public interest; it is essentially a matter of fact to be determined with due regard to the evidence; the Minister has to be satisfied, as a matter of fact, that the activities in question are calculated to prejudice the State, as being hurtful to the public peace, public order or public security. Sometimes a strong opinion may inevitably affect his judgment upon this kind of fact, but it remains matter of fact. Having reached a conclusion adverse to the man concerned on both issues of fact, having been “satisfied” within the meaning of the section, the Minister by his dual determination of fact, be it right or wrong, at once puts the man into the category of persons liable to be arrested and interned. In my opinion, it is clear that, so far as his investigation has now gone, the Minister in this weighing of the evidence has been acting judicially; to give an example illustrating the limits of his power, the Minister could not be satisfied within the terms of the section, merely because he ascertained that the Garda Siochana had the worst opinion of the man by reason of his past activities, and that he was a person whom it would be prudent to lock up; but the Minister must be satisfied on the evidence that his present activities are calculated to prejudice the State. If I am right in holding that the Minister is acting judicially in his essential inquiry, in finding “the grounds” for internment, I cannot hold that the essential character of his duty under the section is altered by his discretion (if any, for it is not clear that he has a discretion) as to proceeding to apply the statutory sanction, if he does not prosecute. Now many civil servants are called upon in divers directions to act judicially, without thereby administering justice; hence this test does not by itself determine whether under the section the Minister is administering justice or acting merely in an administrative capacity, but the test is useful because it goes a long way towards ascertaining the essential character of this particular statutory function.
The border line between the powers that may, and the powers that may not, be exercised by a Minister of State or a Department of Government is not easy to define with accuracy. The solution of the problem is expressed by Professor Willoughby in his Constitution of the United States, 2nd edn., at pp. 1619 and 1620, in the following statement, which, as a general enunciation of principle, I adopt, as applicable under our Constitution, for the purpose of my present inquiry:
“It is not a correct statement of the principle of the separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong to another. Rather, the correct statement is that a department may constitutionally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not so constitutionally granted, which, from their essential nature, do not fall within its division of govermental functions, unless such powers are properly incidental to the performance of its own appropriate functions. . . . Generally speaking, it may be said that, when a power is not peculiarly and distinctly legislative, executive or judicial, it lies within the authority of the Legislature to determine where its exercise shall be vested.”
Before applying the principle, let me record certain relevant conclusions to which I have come on s. 55, remembering that I am dealing with a man whom a Minister has found to be engaged in activities calculated to prejudice the State. First, the Constitution (Art. 9) declares fidelity to the nation and loyalty to the State to be fundamental political duties of all citizens; there is, I think, much to be said for the view that the citizen engaged in activities conflicting with that fidelity and loyalty commits a misdemeanour, for which he is liable to prosecution under the criminal law. Secondly, and quite apart from that consideration, it would be difficult, and I think impossible, for a man to engage in activities calculated to prejudice the preservation of the peace, order or security of the State without offending the ordinary criminal law. Thirdly, I am further of opinion that the activities contemplated by s. 55, if not otherwise unlawful, are made unlawful by this very enactment, authorising internment as their reward; if such activities are not in terms forbidden by our laws, they are at least prohibited by necessary implication in s. 55, under pain of internment; Mr. Maguire agrees with me here. Fourthly, the activities described by the section make the subject-matter of Part VI of the Act one “which, by its very nature, belongs to the domain of criminal jurisprudence”;cp. In re Board of Commerce Act, 1919 (1).Fifthly, I am of opinion that indefinite internment under Part VI of the Act is indistinguishable from punishment for engaging in the activities in question, and I consider that the decision of a Minister of State to order the arrest and internment of a man under s. 55 is equivalent to a judgment pronounced against the internee for his dangerous activities.
These considerations are, indeed any one of them probably is, sufficient to show that the authority conferred on a Minister by s. 55 is an authority, not merely to act judicially, but to administer justice and an authority to administer criminal Justice and condemn an alleged offender without charge or hearing and without the aid of a jury. But, to apply Professor Willoughby’s principle, the administration of justice is a peculiarly and distinctly judicial function, which, from its essential nature, does not fall within the executive power and is not properly incidental to the performance of the appropriate functions of the executive; consequently a law endowing a Minister of State, any Minister, with these powers is an invasion of the judicial domain and as such is repugnant to the Constitution.
My conclusion in favour of the applicant is fortified by Art. 37 of the Constitution, expressly authorising a law to empower an officer who is not a Judge to exercise limited functions and powers of a judicial nature in non-criminal matters; the Article must imply that no such jurisdiction can be conferred by law in a criminal matter, so that criminal justice is exercisable only by a person who is a Judge under the Constitution. The Constitution, no doubt, makes exceptions for military law and for special Courts in specified circumstances of danger, but those exceptions do not apply here and I observe that the Constitution does not contemplate internment without trial even by the special Courts set up in time of emergency.
If my analysis of the Minister’s statutory duty is accurate, the document which the Act calls a warrant is really a combination of a conviction, an order to arrest and a warrant of committal. Its character as a conviction in the case of the present applicant seems to me particularly clear on the evidence. Sergeant Conway deposes that on the 15th of September, 1939, he arrested the applicant at Ballinrobe, because, having searched his house and found “a number of what appeared to me to be seditious and incriminating documents” unspecified, he suspected “that he was concerned in the commission of an offence” under the Offences Against the State Act, 1939, “namely, possession of seditious or incriminating documents”; that is an offence under s. 12 of the Act and “incriminating document” is defined in s. 2; the penalty is a fine or imprisonment (up to three months) or both. As I understand the evidence, a report (I rather think verbal) was then sent to Chief Superintendent Carroll in Dublin, whereupon the Chief Superintendent deposes that on the morning of the 16th he “got into touch with the Department of Justice and a warrant for the arrest and detention” of the applicant under s. 55 of the Act was signed by the Minister. This was done at 11.30 a.m. This rather elusive evidence of the ministerial activity must mean that the warrant was signed by the Minister because the seditious or incriminating documents were found in Mr. Burke’s house. The inescapable conclusion, in my opinion, is that the Executive Authority of the State, having under the Act the right to prosecute for the alleged offence, elected to take the alternative course of directing indefinite imprisonment without trial for the “activity” of possessing seditious or incriminating documents. And I am quite seriously asked to hold that this internment was not punishment at all, but merely “a deterrent.” I shall refrain from painting this lily of speech.
But, if the Minister does act only to deter, I reach the same result. If the Minister’s action was not an act of punitive justice, I should have to classify it, despite the resultant internment, as an act of deterrent or preventive justice. Now, the jurisdiction to bind a man over to be of good behaviour, when his conduct has given ground for anticipating misbehaviour by him, has been a regular feature of the ordinary administration of justice for centuries; it is a venerable part of the most ancient jurisdiction of justices and is perhaps as old as the jurisdiction to try and punish crime; see Bacon’s Abridgement, 7th edn., vol. VII, titles “Surety of the Peace” and”Surety of the Good Behaviour” and the corresponding titles in Burn’s Justice of the Peace, vol. V, and O’Connor’s Justice of the Peace, vol. I, chapter III (2nd edn.); see also the judgments of Lord Fitzgerald in Father Feehan’s Case (1), and of Palles C.B. in Dr. Tanner’s Case (2). If the Minister’s action was preventive justice, it cannot be defended under Art. 37 of the Constitution, because preventive justice, though no offence be charged, is in its nature a criminal matter or proceeding; this characteristic of preventive justice emerges from the terms of the traditional commission of the peace, coupled with the fact that the suspect may be imprisoned in default of finding sureties; from the inclusion of the subject-matter in the Criminal Justice Administration Act, 1914see s. 43, sub-s. 13; and from the decisions in Hilton v. Byron (1), in Father Feehan’s Case (2), per May C.J.; and in Halpin v. Rice (3),per Gibson J. Hence, if the Minister was exercising preventive justice by interning the applicant, he was administering criminal justice. This point is material also on the applicant’s contention that the warrant must show jurisdiction on its face, a matter to which I shall refer at the conclusion of this judgment.
In my opinion, the long title of the “Offences Against the State Act” and indeed its short title, would show that the intention of the Legislature was to punish wrongdoers, if the Act left any doubt on the question; as Mr. Maguire says, the Act was passed to deal with offenders against Art. 9 of the Constitution, which lays down the citizen’s fundamental duty of fidelity and loyalty; that is the setting in which I find s. 55.
The Minister’s action was attacked as unconstitutional by Mr. MacBride, in his very careful and elaborate argument, upon a number of other grounds, with which it is now unnecessary for me to deal. But one contention is too important to pass over in silence, especially as I think it well founded. Mr. MacBride relies very strongly on the constitutional guarantees for the personal rights of the citizen. Sect. 55, he says, infringes those rights and cannot stand. He says that the right to be free is denied. Art. 40, if I understand it, guarantees that no citizen shall be deprived of liberty, save in accordance with a law which respects his fundamental right to personal liberty, and defends and vindicates it, as far as practicable, and protects his person from unjust attack, the Constitution clearly intends that he shall be liable to forfeit that right under the criminal law on being duly tried and found guilty of an offence. In my opinion, a law for the internment of a citizen, without charge or hearing, outside the great protection of our criminal jurisprudence and outside even the special Courts, for activities calculated to prejudice the State, does not respect his right to personal liberty and does unjustly attack his person; in my view, such a law does not defend his right to personal liberty as far as practicable, first, because it does not bring him before a real Court and again because there is no impracticability in telling a suspect, before ordering his internment, what is alleged against him and hearing his answer, a course dictated by elementary justice. I am inclined to think that, if a Minister be properly satisfied under s. 55, he could have the suspect bound over to be of good behaviour under the ordinary law, so that, if the case be not one for prosecution, a law defending his liberty as far as practicable would take his recognisance, with or without sureties, in order to allow him to enjoy all his fundamental rights, to carry on his business and live his life; certainly the Act could have so provided, with the ordinary imprisonment in default.
In my opinion, the saving words in the declaration that”No citizen shall be deprived of his liberty save in accordance with law” cannot be used to validate an enactment conflicting with the constitutional guarantees. The opinion of Mr. Justice FitzGibbon in Ryan’s Case (1) is relied upon by Mr. Maguire, but it does not apply, in my judgment, to a Constitution in which fundamental rights and constitutional guarantees effectively fill the lacunae disclosed in the polity of 1922. The Constitution, with its most impressive Preamble, is the Charter of the Irish People and I will not whittle it away. There is nothing novel in the solemn recognition of the right to personal freedom as an essential basis of the social structure of a society of free men. In my opinion, the Constitution intended, while making all proper provisions for times of emergency, to secure his personal freedom to the citizen as truly as did Magna Charta in England. Whatever abuses were perpetrated in this country, despite the Magna Charta Proclamation for Ireland of 1216, in England Magna Charta was taken to mean what it said. Lord Shaw’s citation in O’Brien’s Case (2), from Hallam’s “penetrating judgment”affirms that from the era of King John’s Charter it must have been a clear principle of the Constitution in England that no man can be detained in prison without trial. The same principle is established in the Constitution of the United States, where a law which may prejudice person or property must be a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty and property, and immunities, under the protection of the general rules which govern society; see the citation from Webster, adopted by the Supreme Court, in Willoughby, 2nd ed., at p. 1691. It would be idle to multiply quotations. In my opinion, the right to personal liberty and the other principles which we are accustomed to summarise as the rule of law were most deliberately enshrined in a national Constitution, drawn up with the utmost care for a free people, and the power to intern on suspicion or without trial is fundamentally inconsistent with the rule of law and with the rule of law as expressed in the terms of our Constitution.
The legal position would be different, were I concerned with a war measure, a law “expressed to be for securing the public safety and the preservation of the State in time of war” under Art. 28, but I am not, for the Offences Against the State Act, 1939, is not such a law.
The Minister’s procedure and his warrant under s. 55 of the Act of 1939 are also attacked. I shall confine myself to the single objection that the warrant is bad on its face because it fails to show jurisdiction, so that it is no authority to the Governor of the Barracks to hold the applicant.
If the warrant were an ordinary act of a civil department administering its functions, it would have to be liberally construed, without regard to technicalities derived from the necessity of surrounding personal liberty with safeguards against errors of inferior Courts administering laws of a penal character. But it is nothing of that kind. I have held that this “warrant” amounts to a conviction, an order to arrest and a warrant of committal; if I am right in that view, the warrant must show jurisdiction. Baron Parke in Gossett v. Howard (1) says:”in the case of special authorities given by statute to justices or others acting out of the ordinary course of the common law, the instruments by which they act, whether warrants to arrest, commitments, or orders, or convictions, or inquisitions, ought, according to the course of decisions, to shew their authority on the face of them by direct averment or reasonable intendment”; this passage is endorsed by Palles C.B. in R. (Boylan) v. Londonderry JJ. (2); and the Chief Baron’s enunciation of the principle is taken to be the true rule by Mr. Justice O’Byrne in Hughes’s Case (3).The warrant here purports to be made by the Minister for Justice “in exercise of the powers conferred on me by s. 55 of the Offences Against the State Act, 1939,” but it contains no statement that the Government has made and published the proclamation necessary to give the Minister any jurisdiction at all in the matter and no reference to s. 54 (authorising such a proclamation), which might justify this Court in reading a reference to an existing proclamation into the warrant. In Hughes’s Case (4) an order, containing better recitals but omitting an averment essential to jurisdiction, was held void, despite very strong validating provisions in the governing enactment, provisions which have no counterpart here. The applicant is, therefore, held under an invalid warrant and I shall, under Art. 40 of the Constitution, order his release accordingly.
I had at one time expected to confine my judgment to the single point on the warrant, but I was able to ascertain the true character of that document only after a laborious investigation of the duty imposed on the Minister, and this involved an examination of the separation of powers in the Constitution to ascertain his lawful powers. Since that examination showed the applicant to be right on both the constitutional and the technical issues, I have felt obliged to deal with both matters.
I have only to add that there is no application before me to quash the Minister’s warrant and I am not doing so; it is well settled in this country that the absence of any such application does not affect the duty of the Court with regard to habeas corpus, when satisfied that the detention is not authorised by law; see Reg. v. Riall (1), and In re Sullivan(2),a case which on this point is good law.

 

Supreme Court.

SULLIVAN C.J. :
By a warrant under his hand, dated the 16th September, 1939, Gerald Boland, a Minister of State, in exercise of the powers conferred upon him by s. 55 of the Offences Against the State Act, 1939, being satisfied that James Burke of Friarsquarter, Ballinrobe, County Mayo, was engaged in activities calculated to prejudice the preservation of the security of the State, ordered the arrest and detention of the said James Burke under that section.
In pursuance of that warrant James Burke was taken in custody from Ballinrobe to the Arbour Hill Detention Barracks in Dublin and there detained by Captain Lennon, the Commandant of the Barracks.
On the 28th November, 1939, Redmond Burke, brother of the said James Burke, alleging that James Burke was illegally detained, applied to Gavan Duffy J. for an order that an order of habeas corpus issue to Captain Lennon commanding him to have the body of James Burke before the Court. At the conclusion of the arguments on that application the learned Judge reserved judgment. On the 1st December he delivered judgment in favour of the applicant, and made an order directing that the said James Burke be forthwith released. In obedience to that order James Burke was released.
From that judgment and order the Attorney-General and Captain Lennon have appealed to this Court, and have asked 1, for an order that the entire order and judgment of Gavan Duffy J. be set aside with costs, ncluding the costs of this appeal; 2, that in lieu thereof it be ordered that the application of the said Redmond Burke on behalf of the said James Burke be dismissed with costs.
When this appeal was called for hearing counsel on behalf of the applicant raised a preliminary objection on the ground that this Court had no juridiction to entertain the appeal, and the validity of that objection is the matter that is now to be determined.
In order to determine that question it is necessary to consider the meaning and effect of certain Articles of the Constitution, and in particular of Art. 40, which deals with the right of personal liberty and the remedy for its infringement, and of Art. 34, which deals with the appellate jurisdiction of this Court.
But it is also necessary to consider what the legal rights were of a person who was unlawfully detained in custody in Ireland 1, prior to the enactment of the Constitution of the Irish Free State, and 2, prior to the enactment of the present Constitution.
As to the rights of such a person prior to the Constitution of the Irish Free State there is no controversy; he could apply to any of the High Courts for a writ of habeas corpus, and if. on the return to that writ, the Court was satisfied that his detention was unlawful, it made an order for his immediate release, and when he had been discharged from custody pursuant to that order the legality of his discharge could never be questioned by an appeal. That was decided in Cox v. Hakes (1). In that case the appellant, who had been in custody, was discharged pursuant to an order of habeas corpus made by the High Court in England. The respondent appealed to the Court of Appeal, relying upon s. 19 of the English Judicature Act, 1873, which provides that “The said Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order . . . of Her Majesty’s High Court of Justice.” On the hearing of that appeal the judgment of the High Court was reversed. On appeal to the House of Lords the decision of the Court of Appeal was reversed, and the decision of the High Court restored on the ground that no appeal lay from an order discharging a prisoner on habeas corpus. Lord Halsbury L.C. in his speech (p. 514) in that case emphasised the exceptional nature of the remedy afforded by the writ of habeas corpus and the peculiar procedure in applications for that writ:
“The right to an instant determination as to the lawfulness of an existing imprisonment, and the twofold quality of such a determination that, if favourable to liberty it was without appeal, and if unfavourable it might be renewed until each jurisdiction had in turn been exhausted, have from time to time been pointed out by Judges as securing in a marked and exceptional manner the personal freedom of the subject. It was not a proceeding in a suit but was a summary application by the person detained, No other party to the proceeding was necessarily before or represented before the Judge except the person detaining, and that person only because he had the custody of the applicant and was bound to bring him before the Judge to explain and justify, if he could, the fact of the imprisonment.”And, having referred at length to the provisions of the Habeas Corpus Acts, he proceeded (p. 517):”I have insisted at some length upon the peculiarities of the procedure, because I think one cannot suppose that the Legislature intended to alter all the procedure by mere general words without any specific provision as to the practice under the writ of habeas corpus as the statutes which from time to time have regulated both its issue and its consequences. My Lords, I do not deny that the words of s. 19 literally construed are sufficient to comprehend the case of an order of discharge made upon an application for discharge upon a writ of habeas corpus; but it is impossible to contend that the mere fact of a general word being used in a statute precludes all inquiry into the object of the statute or the mischief which it was intended to remedy.” And, in a later passage:”This, however, is a proceeding on the part of the Court itself examining the lawfulness of the imprisonment for itself; and though it may, it is not bound to do more than satisfy itself of the lawfulness or unlawfulness of an imprisonment. My Lords, it is upon this part of the case that I think the absence of a proper appellant is important.
I admit at once that if I were to assume an appeal it would be easy to find a person who might appropriately represent the interests of those who authorised the imprisonment. The original complainant, the Judge, or even the gaoler, might properly fill that character; but when the nature of the transaction is such that there is no one whom the Court would be bound ex debito justitiae to hear, I think it reflects some light upon the nature of the proceeding
and upon whether the Court must regard it as a proceeding in which there cannot be a right of appeal.” And, in the concluding passage (p. 522) he said:”It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but it is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last Court of Appeal.”
The decision of the House of Lords in that case was binding upon all the Courts in Ireland prior to the Constitution of the Irish Free State, and, as the section of the Judicature (Ireland) Act, 1877, that conferred appellate jurisdiction upon the Court of Appeal in Ireland was similar in its terms to s. 19 of the English Judicature Act, 1873, it followed from that decision that the Court of Appeal in Ireland had no jurisdiction to entertain an appeal from an order discharging a prisoner on habeas corpus.
Art. 73 of the Irish Free State Constitution provided that, subject to that Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State at the date of the coming into operation of the Constitution shall continue to be of full force and effect until repealed or amended by the Oireachtas. The law as declared in Cox v. Hakes (1) was by that Article continued in force in the Irish Free State unless it was inconsistent with any Article of that Constitution. At no time while that Constitution continued was that law questioned in any Court of the Free State.
It is now contended by counsel for the Attorney-General that that law was inconsistent with Art. 66 of that Constitution, which conferred upon the Supreme Court appellate jurisdiction from all decisions of the High Court with such exceptionsnot including cases which involve questions as to the validity of any lawand subject to such regulations as may be prescribed by law. It is not necessary to discuss that argument now, as it will be considered when dealing with Art. 34, clauses 3 and 4, of the present Constitution: the two Articles are in substance the same and, if the law established by Cox v. Hakes (1)is inconsistent with Art. 34, clauses 3 and 4, of the present Constitution it must necessarily be inconsistent with Art. 66 of the former Constitution.
We have now to consider the relevant Articles of the present Constitution, the Constitution of Éire . Articles 40 to 44 declare certain rights, described as “Fundamental Rights,” and the first of these Articles deals with rights that are described as Personal Rights.” Clause 4 of that Article provides as follows:
“(1). No citizen shall be deprived of his personal liberty save in accordance with law.
(2). Upon complaint being made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every Judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay and to certify in writing as to the cause of the detention, and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law.
(3). Nothing in this section, however, shall be invoked to prohibit, control, or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion.”
It is clear that the application contemplated by clause 4, sub-clause 2, is a summary application by or on behalf of the person detained, and that no other party is necessarily before the Judge except the person detaining, who must bring the applicant before the Court and justify, if he can, the detention, and it is, I think, equally clear that upon the hearing of that application the applicant’s right to release should be summarily determined. That, indeed, is not disputed; what is in dispute here is the finality of such determination in view of the provisions of Art. 34, clause 4, sub-clause 3, of the Constitution. That Article provides:
” The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction from such decisions of other Courts as may be prescribed by law.”
The Supreme Court of the Irish Free State decided that in Art. 66 of the Free State Constitution which conferred appellate jurisdiction upon that Court the words “with such exceptions and subject to such regulations as may be prescribed by law” referred to exceptions and regulations prescribed by laws passed by the Oireachtas after that Constitution came into force, and did not carry on the limitations upon appeals imposed by statutes of the Parliament of the United Kingdom: Warner v. Ministry for Industry and Commerce (1); In re M. M.(2). We should give a similar interpretation to these words in Art. 34, clause 4, sub-clause 3, of the present Constitution, and if we do so we cannot hold that the exception from the jurisdiction of the Court of Appeal established by Cox v. Hakes (3) is an “exception prescribed by law” within the meaning of that Article. Since the enactment of the Constitution no law has been passed by the Oireachtas limiting the appellate jurisdiction of this Court in such a case as the present, and accordingly that Article may be read:”The Supreme Court shall have appellate jurisdiction from all decisions of the High Court.”
Now, it cannot be denied that an order discharging a person from custody made by a Judge of the High Court is prima facie a decision of the High Court within the meaning of that Article. But it cannot be contended that in construing the Article the Court must look at that Article alone and disregard all other considerations. If that was the principle to be applied in construing a statutory provision, then the appeal to the House of Lords in Cox v. Hakes (3) would have been dismissed, as the jurisdiction of the Court of Appeal to make the order appealed from could not have been questioned, and the appeal to the House of Lords in The Secretary of State for Home Affairs v. O’Brien (4) would have been allowed, and not, as it was, dismissed.
In the latter case the appellant appealed to the House of Lords against an order made by the Court of Appeal making absolute a conditional order for a writ of habeas corpus that had been obtained by the respondent. The appellant based his right to appeal to the House of Lords upon s. 3 of the Appellate Jurisdiction Act, 1876, which provides that “an appeal shall lie to the House of Lords from any order or judgment of the Court of Appeal in England.” Notwithstanding the very general terms of that provision the House of Lords dismissed the appeal as incompetent, on the ground that no appeal lay from an order of a competent Court for the issue of a writ of habeas corpus where the Court determines the illegality of the appellant’s detention and his right to liberty, although the order does not direct his discharge. The decision in that case did not bind the Courts of the Free State and does not bind the Courts of Éire , nevertheless the views expressed by Lord Birkenhead in his speech are worthy of our consideration. He referred to the writ of habeas corpus as a writ antecedent to statute and throwing its root deep into the genius of our common law, as perhaps the most important writ known to the constitutional law of England, affording as it did a swift and imperative remedy in all cases of illegal restraint or confinement, and he then referred to certain principles applicable in habeas corpus proceedings:”In the course of time,” he said, “certain rules and principles have been evolved; and many of these have been declared so frequently and by such high authority as to become elementary. Perhaps the most important for our present purpose is that which lays it down that if the writ is once directed to issue and discharge is ordered by a competent Court, no appeal lies to any superior Court. Correlative with this rule, and markedly indicative in itself of the spirit of our law, is that other which establishes that he who applies unsuccessfully for the issue of the writ may appeal from Court to Court until he reaches the highest tribunal in the land.” In a later passage in his speech he dealt with the argument advanced in support of the appeal:”The argument is, of course, founded upon the very wide language of s. 3 of the Appellate Jurisdiction Act, 1876, which is undoubtedly general enough to cover this or almost any other case. It is certainly true that in terms the words are wide enough to give an appeal in such a matter as the present. But I should myself, if I approached the matter without the assistance of authority at all, decline utterly to believe that a section couched in terms so general availed to deprive the subject of an ancient and universally recognised constitutional right.”
In the present case in determining the meaning of Art. 34, clause 4, sub-clause 3, of the Constitution I am entitled to have regard to the provisions of Art. 40, clause 4, and in considering that Article I am entitled to consider the principles formerly applicable in habeas corpus cases. I have already stated my opinion that the latter Article contemplates summary application, upon the hearing of which the right to release will be summarily determined. I think that in accordance with settled principles and established practice that determination is, and was intended to be, final. It follows that in my opinion an appeal does not lie to this Court from an order of the High Court made under Art. 40, clause 4, discharging a person from illegal custody.
In the present case, at the request of counsel for the Attorney-General, the learned Judge included in the order that he made a recital that in his opinion a certain section of the Offences Against the State Act, 1939, was repugnant to the Constitution; and in this Court counsel for the Attorney-General relied upon certain Articles of the Constitution as indicating that an appeal should lie to this Court in any case in which a question as to the validity of any law is involved, having regard to the provisions of the Constitution. But that consideration cannot affect the jurisdiction of this Court to entertain an appeal from an order made under Art. 40, clause 4, discharging a person from custody.

MURNAGHAN J.:
On the 1st day of December, 1939, Mr. Justice Gavan Duffy made an order for the release of James Burke, who was detained in custody under a warrant which was issued under the Offences Against the State Act, 1939 (No. 13 of 1939).
An appeal having been sought to be taken against this order to this Court, counsel for James Burke has appeared, and he has taken a preliminary objection to the hearing of the appeal on the ground that no appeal lies from an order for release made in habeas corpus proceedings.
Counsel on behalf of the Attorney-General states that he does not seek any order which would affect James Burke, who is now at liberty, but he very strongly urges this Court to review the opinion of Mr. Justice Gavan Duffy, who formed the view that the Offences Against the State Act was in certain respects invalid as being contrary to the Constitution. Mr. Justice Gavan Duffy had also held that the warrant under which James Burke was held was bad in form, but at the request of counsel for the Attorney-General he stated in his order his view as to the invalidity of the statute.
It is not suggested that Mr. Justice Gavan Duffy had not jurisdiction to make the order which he did make, but the appeal, if competent, is brought to settle a matter of very great public importance.
In the whole history of Irish law no precedent can be cited of an appeal against an order of release made in proceedings by way of habeas corpus. Appeal is the creature of express enactment and, until the Judicature Act was passed, it was not possible to point to any enactment to support such an appeal even in argument. At that time the situation undoubtedly was that, if a person could obtain an order for release from any of the three Common Law Courts the order could not be called in question. It was an established principle that the applicant could seek the aid of any of these Courts even though the other Court or Courts had refused to grant the application.
After the passing of the Judicature Act in England a case of great authority in the House of Lords, Cox v. Hakes (1), decided that there was no appeal from such an order of release, although an appeal was given in the widest terms from any judgment or order (save as thereinafter mentioned) of the High Court of Justice, or any Judges or Judge thereof. A similar provision is found in our Judicature (Ireland) Act, 1877 (40 & 41 Vict. c. 57). The reasons stated by the Law Lords in their speeches are weighty and varied, one line of argument being that the Courts should not infer an intention to make such a grave constitutional change merely from the use of general words which, divorced from the subject-matter, would appear to cover the case in question; a second line of argument was that after release made by order of the Court there was in fact no machinery to bring again the discharged person into custody, and therefore the Courts could not impute to the Legislature an intention to grant an appeal on a matter where reversal of the order of discharge would be futile. In a more recent case in the House of Lords, Secretary of State for Home Affairs v. O’Brien (2), the greater weight seems to have been found in the first line of argument.
Such was the state of the law in Ireland in the year 1922 when the Constitution of the Irish Free State was promulgated. This Constitution, by Art. 73, adopted the law in force at the date of its coming into operation, if not inconsistent with the Constitution. The law, as so adopted, having regard to the authority of Cox v. Hakes (1),undoubtedly was that no appeal lay against an order for release in habeas corpus proceedings. It was, however, certainly open to the makers of the Constitution to make a different provision if they thought it prudent and desirable. It is not enough, however, to point to purely verbal arguments if the realities of the times lead to a different conclusion. In the struggle for Irish liberty applications for relief by way of habeas corpus had been hampered, and it was thought necessary to embody in the new Constitution an Article securing the right of personal freedom by habeas corpus except in well defined and specially mentioned cases. By incorporating such an Article in the Constitution the legal consequence was that no ordinary legislation could impair the right so secured; such an alteration could only be made by amendment of the Constitution.
Art. 6 reads:”The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon complaint being made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every Judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay, and to certify in writing as to the cause of the detention, and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law.” Read by itself, this Article states in clear and forcible language that it is obligatory on the tribunal to make an order for release unless satisfied that the detention is in accordance with law. There is no statement that the order for release is subject to review by another Court, and it seems to me impossible to say that the High Court can do anything but order release if the cause of detention is held to be not in accordance with law. Art. 64 of this Constitution sets up a new Court of final appeal, to be called the Supreme Court, and Art. 66, as far as material, is:”The Supreme Court of the Irish Free State shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court.” We are now asked to interpret this constitutional enactment in the largest sense of the words used and, so doing, we should, it is argued, hold that there is an appeal from all decisions of the High Court. Certainly no one can point to any exception dealing with the matter in question in any law passed by the Oireachtas. A similar line of reasoning was adopted in Attorney-General for the Colonies v. Ah Sheung (1), a case before the High Court in Australia. In that case, however, the report does not indicate that there was any consideration given to the principles stated by the House of Lords in Cox v. Hakes (2). If merely verbal reasoning is not alone relied upon, arguments in support of the appeal are to be found in the value of finality and certainty while arguments to the contrary rest upon the topics of delay, oppressiveness, and restriction upon freedom.
If there were not in this written Constitution the Article, No. 6, dealing with habeas corpus, I confess that I feel it to be unsafe to hold that the use of general words alone dealing with the question of appealis sufficient to overturn an established constitutional usage. Certain constitutional principles are stated in the Constitution, but many other important constitutional principles have been adopted as existing in the law in force. But if we look carefully at the language used, Art. 66 gives “appellate jurisdiction” from all decisions of the High Court. This language seems to me to refer to a subject-matter which is a suitable matter for appeal. But what subject-matter is there for appeal when an order for release has been made? If the Supreme Court could again bring the person discharged by the high Court before itself and hand him back into custody there certainly would a subject-matter for appellate jurisdiction. But it is not seriously contended that any such order could be made.
Much stress was, during the argument, laid upon the point that it was highly desirable that questions involving the validity of laws should be brought before the Supreme Court. The argument cannot, however, be limited to this class of matter. If this Court accepts the construction asked for by the appellants it must hold that every order of release is subject to appeal no matter how trivial the illegality may be. But Art. 66 does not stand alone. In the forefront of the Constitution of 1922 is Art. 6 which secures the right of personal freedom, and it contains a peremptory direction to the High Court to order release unless satisfied that the person in custody is detained in accordance with law. This Article, which requires in an absolutely unqualified way that the High Court shall make an order for release, affords ample ground for holding that Art. 66 never intended to subject the decision of the High Court ordering release to a further review. Art. 66, which is in general terms, must, in my opinion, be read in a way that should not conflict with the specific provision in Art. 6. The Latin maxim Generalia specialibus non derogantis not an abstruse canon for the interpretation of British statutes aloneit is an ancient statement of the laws of human expression of thought in words. In my opinion anything that would conflict with the provisions of Art. 6 could only be validated by an express amendment of the Constitution.
The Constitution of the Irish Free State has been abrogated and the people of Eire are now governed by the fundamental provisions of Bunreacht na hEireann in force since December, 1937. Art. 40, clause 4, sub-clauses 1 and 2, are, however, textually the same as Art. 6 of the earlier Constitution, and Art. 34, clause 4, sub-clauses 3 and 4, restate in almost identical language the words of the former Art. 66. The same line of reasoning must, in my opinion, apply. The order for release made by the High Court under Art. 40, clause 4, sub-clause 2, is a specific and unqualified provision of Bunreacht na hEireann, and its meaning cannot be altered by general words in Art. 34, clause 4, sub-clause 3, so as to arrive at a sense contrary to that which is expressed.
But in truth there is, in my opinion, no conflict. This Court has appellate jurisdiction over all decisions of the High Court capable of being the subject-matter of appeal. It is not sought in this case to make the order for release the subject-matter of appealit is not contended, I think, that we have authority to deal with this order at all in any effective way. There is no general provision that this Court should give advisory opinions on the question of the validity of laws. It should be possible to frame some action or matter in which the question of the validity of laws could be decided without departing from the established rules of procedure.
In my opinion this Court should yield to the preliminary objection made and refuse to entertain this appeal for want of jurisdiction.

MEREDITH J. :
The Courts have always been very jealous to preserve the dignity and prestige of the law, and, therefore, they have studiously refrained from making any order that would be futile. In pursuance of that policy, even in civil actions, the Courts have declined to give mandatory injunctions in cases where they were not able to supervise the carrying out of their orders and seeing that they were effective. In the present case the order of Mr. Justice Gavan Duffy simply resulted in the release of Mr. Burke. That order was final, absolute and complete, and this Court could not make any effective order on appeal. This Court could not have exercised any jurisdiction whereby the order for release could be effectively interfered with: that jurisdiction is vested solely and exclusively in a Minister. The order on habeas corpus is by its very nature not appealable and is outside the scope of Art. 34.
In expressing in this way my agreement with the main contention put forward by Mr. MacBride, on behalf of Redmond Burke, I wish to make it clear that I do not pass over or reject his argument based on the importance of the liberty of the subject. But I do not accept Mr. MacBride’s contention that the heading placed over certain Articles of the Constitution, describing certain rights as “fundamental,”meant that those Articles were to be interpreted as of more fundamental importance than any other Article of the Constitutionfor instance, that the Articles conferring and preserving the liberty of the subject had any more importance than those Articles which provide for a constitutional change in the law, or for a change in the Constitution, or for the will of the people being carried out by constitutional means and not by unconstitutional means.
The heading in question is perfectly plain in its meaning it is a division and classification, not of Articles, but of the rights conferred by the Constitution. The rights included under the heading of “fundamental” are all such as might be described as private, inherent, determinate, categorical rights, as opposed to certain other rights. The rights in question are those contained in Art. 40 relating to personal liberty, Art. 41 relating to family, Art. 42 relating to education, Art. 43 relating to private property, and Art. 44 relating to religion. Those inherent and private rights are distinguished from rights in relation to social matters in Art. 45, in respect of which only directive principles are stated. [Reads Art. 45.]
It has been suggested that this Court should, on this appeal, make a declaratory order, that Mr. Justice Gavan Duffy’s order was a speaking order and might be treated as declaratory, and that, therefore, it was competent for the Supreme Court to review the statements made in the order and deal with the whole large question of the validity of the law under which Mr. Burke was taken into custody. I dissent entirely from that view, for the reason that when Mr. Justice Gavan Duffy heard the habeas corpus application he heard it as a single and individual Judge, under a special provision of the Constitution which gave the right to apply to the High Court “or any and every Judge thereof”:see Art. 40, clause 4, paragraph 2. It was under that special jurisdiction that the application was heard. Therefore on that application, which was brought under that Article, which was enacted for the express purpose of preserving rights by way of habeas corpus, there was only one question for Mr. Justice Gavan Duffy. Whether Mr. Justice Gavan Duffy, besides giving the reasons for his judgment, made a speaking order or not, the order, so far as effective, dealt
with one point only, that on which the Judge had alone jurisdiction to make the order; anything beyond that was obiter, or rather extra-judicial.
I wish to add only a few more words. I do not rest this case of the liberty of the subject upon previous decisions of British Courts, and I do not think that our Constitution has left the liberties of the subject to be interpreted and defended by decisions of the British Courts, however important. The whole case made by the appellants was that the provision of Art. 34 of the Constitution, relating to appeals from High Court orders, was general, without any limitation, and prima facie included habeas corpus. I do not agree with that view.
In Art. 40, where habeas corpus was being dealt with, a particular jurisdiction was given, not merely to the High Court, but also to “any and every Judge thereof.” Thereby a clear distinction was introduced between a decision of the High Court as such and a decision of any individual Judge thereof. The Constitution having introduced and emphasised that very important distinction for the purposes of habeas corpus, if it had been intended that the appellate jurisdiction should be extended to habeas corpus applications, it should and would have given the right of appeal not merely from any decision of the High Court, but “from any decision of the High Court or any Judge thereof.” As the relevant Article did not say that, it does not, to my mind, prima facie., refer to habeas corpus applications, and the alleged inconsistency between the general words of Art. 34 and other Articles of the Constitution simply does not exist.
In my opinion that was a complete answer to the case made by the appellants.

GEOGHEGAN J.:
In this case the notice of appeal asks this Court to reverse the order of Mr. Justice Gavan Duffy directing the release of Seamus Burke and to dismiss the application made on behalf of Seamus Burke and pursuant to which he has actually been released by the said order.
A preliminary objection has been made that in the circumstances no appeal lies. The preliminary point only has been argued.
At the time the Constitution of the Irish Free State was enacted and for many years previously no appeal lay from any order of the High Court of Justice in Ireland or a Judge thereof by which a person had been discharged from prison under a writ of habeas corpus.
In England the procedure on habeas corpus was a very ancient one, but prior to the year 1890 I cannot find a report of an appeal against, or an application to review, an order granting the writ for the release of a person in custody. In that year the question whether the Court of Appeal in England had jurisdiction to hear such an appeal was raised before the House of Lords in Cox v. Hakes (1).
In that case it was argued that the words of s. 19 of the Judicature Act, 1873, taken literally, were wide enough to give an appeal from an order discharging by writ of habeas corpus a person in custody; at the time the appeal was heard this person had been discharged. The majority of the House of Lords (Lord Halsbury, Lord Watson, Lord Bramwell, Lord Herschell and Lord Macnaghten) resolved that no appeal lay. The history of this remedy, its nature and essential features and the procedure in reference to it were very fully discussed in the speeches delivered. Different reasons were given by the learned Lords who reached this decision. Lord Bramwell expresseed a doubt whether in awarding or disposing of a writ of habeas corpus a Judge of the High Court or the High Court itself is acting as a Court or Judge of a Court of Judicature. Apart from this doubt all five were agreed that the words of s. 19 comprehended an appeal against an order for habeas corpus. Lord Halsbury was of opinion that, as the right to personal freedom had been for centuries determined summarily and finally, express legislation would be necessary to confer the right of appeal claimed. Lord Herschell dwelt on the absence of any provision for procedure to render effective an order of reversal made by the Court of Appeal. His Lordship considered this an indication that the Legislature had not intended to limit in any way the legal right of a person wrongfully detained to instant and final release. The speeches of Lord Halsbury, Lord Bramwell and Lord Herschell show how ancient this right was and how fully it had been recognised.
The decision in Cox v. Hakes (1) was of course binding on the Irish Courts when the Constitution of the Irish Free State Act was passed in 1922. The people of this country at that time had no reason to doubt that in the procedure of habeas corpus there could be determined immediately and finally the prisoner’s right to freedom.
The argument on behalf of the appellants is that this safeguard of the right of personal freedom was swept away in 1922 by the insertion in Art. 66 of the Constitution of that year of the words:
“The Supreme Court shall . . . have appellate jurisdiction from all decisions of the High Court.”
I am not convinced that these words, taken literally and strictly, comprehend a right of appeal from an order by which a prisoner has been discharged by habeas corpus. Art. 6 of that Constitution is really a concise statement of the previously existing rights under the procedure in habeas corpus. It directs that the Court or Judge shall order the release of a person alleged to be unlawfully detained unless satisfied that he is detained in accordance with law. If the order is to be subject to appeal the prisoner can scarcely be said to have been released; he may have a mere respite pending an appeal at the instance of his gaoler. His freedom is conditional on his satisfying a majority of the Judges of the Supreme Court of the truth of his complaint. I am of opinion that Art. 6 contemplated the release of the prisoner as a complete and final act and that Art. 66 does not contain apt words to delay the immediate release secured to the prisoner by Art. 6.
Let me assume for a moment that the words in Art. 66, taken strictly and literally, are sufficient to confer a right of appeal against an order granting the release of a prisoner and inquire if these general words are adequate to introduce into the law such an absolute novelty as the possibility of reversing an order made by a Judge of the High Court under which a prisoner had been set free. The Legislature, when enacting Art. 66, may be assumed to have been aware of the principle stated by Lord Herschell:
“The law of this country has been very jealous of any infringement of personal liberty.”
( Cox v. Hakes (1).)
The manner in which the Courts and Judges exercised jurisdiction to discharge under a writ of habeas corpus had been the great safeguard of liberty. If this safeguard were to go why roll up its repeal in general words in Art. 66 only somewhat remotely associated with Art. 6 which proclaimed that the liberty of the person is inviolable?
Surely a repeal of such importance would not have rested to any extent on implication when it could have been expressed clearly and plainly in Art. 6, which set forth the provisions for ensuring liberty of the person.
The extent to which general words affect an order for the release of a prisoner was (after 1922) considered by the House of Lords in the well-known case of The Secretary of State for Home Affairs v. O’Brien (1). On the 9th May, 1923, an order was made by the Court of Appeal in England for the issue of a writ of habeas corpus in favour of Mr. Art O’Brien, then in custody. Against this order the Home Secretary appealed to the House of Lords. For reasons it is not necessary now to go into Mr. O’Brien had not been released when the appeal was heard by the House of Lords on 14th May, 1923. The case was, therefore, distinguishable from Cox v. Hakes (2) in which the prisoner had been released. If the appeal succeeded no question of re-arrest of Mr. O’Brien would arise. It was not disputed that the words of s. 3 of the Appellate Jurisdiction Act, 1876, are framed in language wide enough, if read literally, to give a right of appeal in that case to the House of Lords.
The House, by a majority (Lord Atkinson being the sole dissentient) held that the principle established in Cox v. Hakes (2) applied.
Lord Birkenhead in the course of his speech (at p. 610) said:
“It is certainly true that in terms the words are wide enough to give an appeal in such a matter as the present. But I should myself, if I approached the matter without the assistance of authority at all, decline utterly to believe that a section couched in terms so general availed to deprive the subject of an ancient and universally recognised constitutional right.”
Lord Shaw (at p. 645) says:
“In the view which I take of this appeal the question at stake transcends an ordinary case of jurisdiction. To sustain jurisdiction would be to claim a right to circumvent or destroy that finality of liberation which has been long affirmed as part of English constitutional law. It would, in short, be a usurpation by this House of a right and power to destroy a liberty already properly affirmed as a matter of right in one of His Majesty’s subjects. Your Lordships are thus determining not merely in the present case to decline a jurisdiction, but to decline a usurpation. That usurpation is forbidden.
And beyond finality, I repeat that the point of urgency, an essential point, would also be violated by our assertion of a power to review a liberating judgment.”

The decision in Cox v. Hakes (1) and the reasoning in the speeches of the majority of the House of Lords in The Secretary of State for Home Affairs v. O’Brien (2) lead me to the conclusion that the general words in Art. 66 of the Constitution of 1922 do not operate to repeal the then existing law as to the release of a prisoner pursuant to an order for habeas corpus, and that the combined effect of Art. 6 and Art. 73 of that Constitution was to continue the law in full force and effect.
I feel that this opinion is not in conflict with the decision in Warner v. Minister for Industry and Commerce (2) or the decisions in the cases based on it. Warner’s Case (2)was civil litigation between parties. The proceedings in the present case are of a criminal nature. The procedure is essentially different. In former times the writ of habeas corpus was always ex parte. Under present practice a conditional order is frequently made, but a Court or Judge may, if they think fit, make an order absolute in the first instance for habeas corpus to issue. Contrasted with the course of civil proceedings between parties the striking characteristic of proceedings by habeas corpus has always been the immediate and final determination of the prisoner’s right to freedom.
It is further contended for the appellants that the general words in Art. 34 of the Constitution of 1937 give jurisdiction to this Court on appeal. The words of Art. 34, clause 4, paragraph 3, of the Constitution of 1937 are substantially the same as the relevant words in Art. 66 of the Constitution of 1922. Art. 40, clause 4, of the Constitution of 1937 contains provisions for securing the release of a person unlawfully detained similar to those in Art. 6 of the Constitution of 1922. The same reasons that have induced me to reject the interpretation of an implied repeal in the Constitution of 1922 apply to that of 1937.
Possibly the implication of a limitation of the personal right of freedom is negatived more strongly by the solemn reference in the preamble of the Constitution of 1937 to the intention to assure the dignity and freedom of the individual.
It has been suggested that questions touching the validity of a statute are involved in this appeal. I feel satisfied that the only point that is material is whether this Court can hear an appeal from the order of Mr. Justice Gavan Duffy directing the release of the prisoner.
In my opinion the Court has no jurisdiction to hear this appeal.

JOHNSTON J.:
I am in the unfortunate position that I cannot concur with the views that have been expressed by my brethren, but I do not think it necessary to state my reasons at length.
During the course of the argument I indicated pretty clearly the opinion that I was inclined to form, and I adhere to that opinion.
In view of the clear views that have been expressed by the other members of the Court, the opinion that I have arrived at becomes a matter of no importance, and I need only say, in a general sort of way, that my view of the matter is that the terms of Arts. 34 and 40 of the new Constitution are clear and comprehensive, and they do not at all suggest that, in regard to cases like the present, an appeal does not lie to the Supreme Court.
The Constitution of 1937 represents a fresh start in respect of the fundamental principles that are to be the guide of this country for the future, and I do not think that a further Constitutionan unwritten onewas intended by the People of Eire to exist side by side with this written Constitution or evenperhaps it would be more correct to sayoutside and beyond the present Constitution.
I think that the practical effect of our decision in this case will be to add to Art. 34, paragraph 4, half a dozen words making a further reservation from the jurisdiction of the Supreme Courtreserving from that Court the right of hearing appeals from the High Court in habeas corpus cases such as we have here to-day.

 

Re Offences Against the State (Amendment) Bill, 1940,

SULLIVAN C.J. :
9. Feb.

In pursuance of the provisions of Art. 26 of the Constitution, the President of Ireland, on the 8th January, 1940, after consultation with the Council of State, referred to this Court a Bill, entitled “Offences Against the State (Amendment) Bill, 1940,” for a decision on the question whether the said Bill is repugnant to the Constitution or to any provision thereof.
The said Article admittedly refers to a Bill such as this, which had been duly passed by both Houses of the Oireachtas. Under the Article it is provided that the Court, consisting of not less than five Judges, shall consider every question referred to it by the President and, having heard arguments by or on behalf of the Attorney-General and by counsel assigned by the Court, shall pronounce its decision in open Court as soon as may be, and in any case not later than sixty days after the date of reference.
The Article further provides that the decision of the majority of the Judges of this Court shall, for the purposes of this Article, be the decision of the Court (clause 2, par. 2).
It is further provided that, in every case in which this Court decides that any provision of a Bill, so referred to the Court, is repugnant to the Constitution or to any provision thereof, the President shall decline to sign such Bill, and that, in every other case, the President shall sign the Bill as soon as may be after the date on which the decision of this Court shall have been pronounced.
In accordance with the provisions of the Article the Court assigned counsel and, subsequently, the Court heard arguments by counsel on behalf of the Attorney-General and by counsel so assigned by the Court, and at the conclusion of the said arguments reserved its decision.
The decision now announced is the decision of the majority of the Judges and is, within the meaning of clause 2, par. 2 of the said Article, the decision of the Court.
The long title of the Bill, so referred to this Court is “An Act to repeal Part VI of the Offences against the State Act, 1939, and to make other provisions in relation to the detention of certain persons.”
Sect. 2, which is contained in Part I of the Act, repeals Part VI of the Offences Against the State Act, 1939. The Part of the Act of 1939 so repealed is substantially to the same effect as Part II of the Bill now before this Court.
Part II of the Bill consists of seven sections.
Sect. 3 provides that Part II of the Act is to come into force when and so often as the Government makes and publishes a Proclamation declaring that the powers conferred by the said Part of the Act are necessary to secure the preservation of public peace and order, and that, if the Government makes and publishes a Proclamation declaring that the said Part of the Act shall cease to be in force, same shall forthwith cease to be in force. It further provides that it shall be lawful for Dail Eireann, at any time while the said Part of the Act is in force, to pass a resolution annulling such first-mentioned Proclamation and thereupon such Proclamation shall be annulled and the said Part of the Act shall cease to be in force, but without prejudice to the validity of anything done after the making of the Proclamation and before the passing of the resolution.
Sect. 4 provides as follows:
“4(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section.
(2) Any member of the Garda Siochana may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section.
(3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens.
(4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act.
(5) Every warrant issued by a Minister of State under this section shall be in the form set out in the Schedule to this Act or in a form to the like effect.”
Sect. 5 confers on any member of the Garda Siochana power, in respect of any person arrested and detained under this Part of the Act:(a) to demand his name and address, (b) to search him or cause him to be searched, (c) to photograph him or cause him to be photographed, and (d) to take or cause to be taken his fingerprints. It also provides that any person who obstructs or impedes a member of the Garda Siochana in the exercise of the said powers, or who refuses to give to a member of the Garda Siochana his correct name and address, shall be guilty of a contravention of the regulations to be made under this Part of the Act and shall be dealt with accordingly.
Sect. 6 provides that a Minister of State may, by writing under his hand, order the release of any person who is being detained and such person shall forthwith be released.
Sect. 7 empowers a Minister of State to make regulations for all or any of the following purposes, that is to say:
(a) Prescribing the prisons, internment camps, and other places in which persons may be detained under this Part of this Act;
(b) providing for the efficient management, sanitation, control, and guarding of such prisons, internment camps, and other places;
(c) providing for the enforcement and preservation of discipline amongst the persons detained in any such prison, internment camp, or other place as aforesaid;
(d) providing for the punishment of persons so detained who contravene the regulations;
(e) prescribing or providing for any other matter or thing incidental or ancillary to the efficient detention of persons detained under this Part of this Act.
Sub-s. 2 of the said section provides that:
“Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such regulation is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such regulation is laid before it, such regulation shall be annulled accordingly, but without prejudice to the validity of any thing previously done under such regulation.”
Sect. 8 provides for the setting-up of a Commission to which any person detained under this Part of the Act may apply in writing to consider the continuation of his detention, and requires the Minister for Justice to furnish to the Commission such relevant information and documents, in the possession or procurement of the Government or of any Minister of State, as shall be called for by the Commission, and further provides that, if the Commission reports that no reasonable grounds exist for the continued detention of such person, he shall, with all convenient speed, be released.
Sect. 9 provides that the Government shall, once at least in every six months, furnish to each House of the Oireachtas certain particulars therein specified with reference to persons detained.

Counsel, so assigned by the Court, contended that the Bill was repugnant to the Constitution and, in particular, they relied upon the Preamble and on Article 34, clause 1, and Articles 38 and 40.
We propose to deal specifically with the aforesaid Articles, but in arriving at our conclusion we have had regard not only to those Articles but also to all such other Articles as seemed to us material to the question which we have to determine.
Before dealing, however, with the said Articles, we desire to point out that several Acts authorising the detention of persons had been passed by the Oireachtas of the Irish Free State prior to the enactment of the Constitution which we are now considering. The existence and effect of these Acts must have been within the knowledge of the framers of the Constitution and, nevertheless, there is no express prohibition in the Constitution against such legislation. This is a matter to which we are bound to attach considerable weight in view of the fact that many Articles of the Constitution prohibit the Oireachtas, in plain and unambiguous language, from passing certain laws therein specified.
Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.
The material portion of the Preamble is that which declares that, in enacting the Constitution, the People of Ireland are
“Seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations.”
In dealing with the Preamble counsel laid great stress on the words “dignity and freedom of the individual” and focussed their attention upon those words exclusively. This does not seem to us to be the correct method of arriving at the true meaning and effect of the Preamble. The main object aimed at is the promotion of the common good, which, it is contemplated, will assure the dignity and freedom of the individual, the attainment of social order, the restoration of the unity of our country and the establishment of concord with other nations. Apart from the grammatical construction of the words of the Preamble, it seems to us difficult to understand how the dignity and freedom of the individual member of a State can be attained unless social
order is maintained in that State. There is nothing in this clause of the Preamble which could be invoked to necessitate the sacrifice of the common good in the interests of the freedom of the individual.
Article 34 deals with the establishment of Courts and the administration of justice therein, and the particular Clause on which reliance was placed, is Clause 1, which provides that justice shall be administered in public Courts established by law by Judges appointed in the manner provided by the Constitution. In order to rely upon this Article it would be necessary to establish that the Minister, in exercising the powers conferred upon him by the Bill, is administering justice within the meaning of the Article. This proposition seems to us to be wholly unsustainable.
Article 38 deals with the trial of offences and provides, in clause 1, that no person shall be tried on any criminal charge save in due course of law. The remaining clauses of the Article prescribe the methods in which criminal charges may be tried and specify various Courts for this purpose. The argument necessarily proceeds upon the basis that the Minister, in performing his functions under the Bill, is engaged in the trial of a criminal charge and that the detention contemplated by the Bill is punishment in respect of a criminal offence.
In the opinion of this Court neither s. 4 nor s. 5 of the Bill creates or purports to create a criminal offence. The only essential preliminary to the exercise by a Minister of the powers contained in s. 4 is that he should have formed opinions on the matters specifically mentioned in the section. The validity of such opinions is not a matter that could be questioned in any Court. Having formed such opinions, the Minister is entitled to make an order for detention; but this Court is of opinion that the detention is not in the nature of punishment, but is a precautionary measure taken for the purpose of preserving the public peace and order and the security of the State. This distinction has been recognised in several cases.
In the case of The King (Zadig) v. Halliday (1), a question arose as to the power of the Home Secretary in England to make an order for detention under the Defence of the Realm (Consolidation) Regulations, 1914, made under s. 1, sub-s. 1, of the Defence of the Realm Consolidation Act, 1914. In the course of his speech in that case Lord Finlay L.C. says at p. 265:
“On the face of it the statute authorises in this sub-section provisions of two kindsfor prevention and for punishment. Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.”
In a later passage he says, at p. 269:
“One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. It is to this that regulation 14B is directed. The measure is not punitive but precautionary. It was strongly urged that no such restraint should be imposed except as the result of a judicial inquiry, and, indeed, counsel for the appellant went so far as to contend that no regulation could be made forbidding access to the seashore by suspected persons. It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a Court of law. No crime is charged. The question is whether there is ground for suspicion that a particular person may be disposed to help the enemy. The duty of deciding this question is by the order thrown upon the Secretary of State, and an advisory Committee, presided over by a Judge of the High Court, is provided to bring before him any grounds for thinking that the order may properly be revoked or varied.”
Lord Atkinson, in the course of his speech in the same case, says at p. 273:
“Preventive justice, as it is styled, which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done, is no new thing in the laws of England.”
Again:
“One of the most effective ways of preventing a man from communicating with the enemy or doing things such as are mentioned in s. 1, sub-s. 1 (a) and (c), of the statute is to imprison or intern him. In that as in almost every case where preventive justice is put in force some suffering and inconvenience may be caused to the suspected person. That is inevitable. But the suffering is, under this statute, inflicted for something much more important than his liberty or convenience, namely, for securing the public safety and defence of the realm.”
The principle underlying the decision in that case was acted upon and applied in this country in the case of The King (O’Connell) v. Military Governor of Hare Park Camp (1).In that case the applicant was detained in custody under an order of an Executive Minister made under s. 4 of the Public Safety (Powers of Arrest and Detention) Temporary Act, 1924, which authorised such Minister to make such an order where he was of opinion that the public safety would be endangered by such person being set at liberty. It was contended that the section was repugnant to the Constitution of the Irish Free State, which, in our opinion, was, in this respect, substantially to the same effect as the Constitution of Ireland. That contention was rejected and an application for habeas corpus was refused.
Article 40 deals with personal rights. Clause 3 thereof provides that the State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen, and to protect from unjust attack and, in case of injustice done, to vindicate, the life, person, good name, and property rights of every citizen.
It is alleged that the provisions of the Bill are repugnant to the guarantee contained in this clause. It seems to us impossible to accede to this argument. The guarantee in the clause is not in respect of any particular citizen, or class of citizens, but extends to all the citizens of the State, and the duty of determining the extent to which the rights of any particular citizen, or class of citizens, can properly be harmonised with the rights of the citizens as a whole seems to us to be a matter which is peculiarly within the province of the Oireachtas, and any attempt by this Court to control the Oireachtas in the exercise of this function, would, in our opinion, be a usurpation of its authority.
The People, by the Constitution, have provided for the setting-up of three great Departments of Statethe Oireachtas, the Executive, and the Judiciaryand it is essential for the harmonious working of the machinery of State that each Department should confine itself to its own constitutional functions. If the Oireachtas enacts a law within the scope of its legal and constitutional powers, it is for the Courts to construe and apply such law. Any criticism by the Courts of the manner in which the Oireachtas exercises the discretion and powers vested in it would be as much open to objection as would any suggestion, in either House of the Oireachtas, that a decision of a Court, within the scope of its authority, was not in accordance with law.

Clause 4 of the said Article provides that no citizen shall be deprived of his liberty save in accordance with law, and makes provision for the release of any person who is being detained otherwise than in accordance with law.
The phrase “in accordance with law” is used in several Articles of the Constitution, and we are of opinion that it means in accordance with the law as it exists at the time when the particular Article is invoked and sought to be applied. In this Article, it means the law as it exists at the time when the legality of the-detention arises for determination. A person in custody is detained in accordance with law if he is detained in accordance with the provisions of a statute duly passed by the Oireachtas; subject always to the qualification that such provisions are not repugnant to the Constitution or to any provision thereof.
Accordingly, in our opinion, this Article cannot be relied upon for the purpose of establishing the proposition that the Bill is repugnant to the Constitutionsuch repugnancy must be established by reference to some other provision of the Constitution.
It was contended that the effect of the Bill is to take away the right to habeas corpus. There is no foundation for this contention. Notwithstanding the provisions of the Bill, a person who is detained is entitled under Article 40, clause 4, par. 2, to have the legality of his detention enquired into and to obtain an order for his release, unless the Court or Judge, enquiring into the matter, is satisfied that all the provisions of the Bill have been complied with and that the detention is legal.
No doubt the Bill, when enacted, will have the effect of altering the law and, to that extent, will justify a detention which might otherwise be unlawful. This, however, cannot rightly be described as taking away the right to habeas corpus.
The arguments based upon ss. 5 and 7 of the Bill can be disposed of very shortly. If, as this Court holds, the arrest and detention contemplated by s. 4 are lawful, it is obviously necessary that provision should be made as to the place and mode of detention and other matters incidental thereto. Sects. 5 and 7 seem to us to be framed with this object in view. The purposes for which regulations may be made are set out in s. 7 and, in framing the regulations, the Minister is bound by the terms of the section. There is nothing in the section to suggest that any regulation made thereunder could contravene any Article of the Constitution. It is not for us to assume that the Minister will exceed the powers conferred upon him by the section and, should he do so, it seems to us that the regulations would, to that extent, be ultra vires and invalid.
It was contended before us that the Bill is unnecessary and oppressive. This is not a matter for our consideration and we express no opinion upon it. The only question before us is whether it is within the power of the Oireachtas, consistently with the Constitution, to enact such legislation. In the opinion of this Court it is, and we shall advise the President accordingly.

The Emergency Powers Bill, 1976

[1977] IR 159

 

O’Higgins C.J.
15th October, 1976

The Facts
On the 1st September, 1976, Dail Eireann resolved in the following terms: “That Dail Eireann hereby resolves, pursuant to subsection 3 of section 3 of Article 28 of the Constitution . . . that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State.” On the same day Seanad Eireann passed a resolution in identical terms.
On the 16th September, 1976, the Emergency Powers Bill, 1976, was passed by both Houses of the Oireachtas. On the 24th September, 1976, the President of Ireland (pursuant to the provisions24 of Article 26 of the Constitution and after consultation with the Council of State) referred the bill to this Court for a decision on the question whether the bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof. Pursuant to the provisions of Article 26, section 2, of the Constitution, this Court has considered this question and has heard arguments by the Attorney General and his counsel and by counsel assigned by this Court.
The Law
The Emergency Powers Bill, 1976, is a bill entitled: “An Act for the purpose of securing the public safety and the preservation of the State in time of an armed conflict in respect of which each of the Houses of the Oireachtas has adopted a resolution on the first day of September, 1976, pursuant to subsection 3 of section 3 of Article 28 of the Constitution.”
The latter sub-section of the Constitution reads as follows:
“Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this sub-section ‘time of war’ includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and ‘time of war or armed rebellion’ includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.”
This sub-section incorporates the First and Second Amendments of the Constitution. Sub-section 3, as originally enacted by the people, made no reference to an armed conflict and the sub-section ended with the words “in time of war or armed rebellion in pursuance of any such law.” The First Amendment incorporated the reference to an armed conflict, and the portion of the sub-section as it now stands beginning with the words “In this sub-section”down to the words “the vital interests of the State” represents the total effect of the First Amendment. The rest of the sub-section as it now stands represents the whole25 of the Second Amendment of the Constitution.
A resolution of both Houses of the Oireachtas is not a condition precedent to the enactment by the Oireachtas of any law which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion. It is, however, a condition precedent to the enactment of any such law in a time when there is taking place an armed conflict in which the State is not a participant that such law must be expressed to be for the purpose of securing the public safety and the preservation of the State in time of such armed conflict. This bill is expressed to be for that purpose. The resolutions26 upon which the bill is grounded are not part of the bill (although they are referred to in its long title and in its s. 3) and are not and could not be the subject of a reference to this Court under Article 26. Each resolution states that there is an armed conflict taking place in Northern Ireland and that a national emergency arising out of that armed conflict exists affecting the vital interests of the State. The only recital of fact contained in the bill is that each of the Houses of the Oireachtas on the 1st September, 1976, adopted a resolution pursuant to sub-s. 3 of s. 3 of Article 28 in respect of an armed conflict. The only resolutions in respect of an armed conflict adopted by the Houses of the Oireachtas on the 1st September, 1976, were those referring to an armed conflict in Northern Ireland and the bill must, therefore, be confined to the armed conflict described in the resolutions.
As to the right of the President to refer the bill to this Court, it is clear that he has power to do so notwithstanding that the bill is one passed by both Houses of the Oireachtas by reference to the provisions of sub-s. 3 of s. 3 of Article 28. The power of the President to do so has not been questioned in these proceedings.
The Submissions
It has been submitted by counsel assigned by the Court that it should be decided that the provisions of the bill are repugnant to the Constitution, or to some of the provisions thereof, and that the President should be so advised by this Court. If the Court were to do so, the President would be obliged by Article 26, s. 3, sub-s. 1, of the Constitution to decline to sign the bill, and so it would not become law.
Essentially, the submissions made by counsel so assigned have been to the effect that the provisions27 of s. 2 of the bill are repugnant to the provisions28 of Article 40 of the Constitution, and that the long title of the bill is not in accordance with the provisions of Article 28, s. 3, sub-s. 3, of the Constitution.
The Attorney General asked the Court to deal with this reference on the basis that s. 2 of the bill would be repugnant if it were not saved by Article 28, s. 3, sub-s. 3, of the Constitution. As the matter has not been discussed further, the Court does not find it necessary to express an opinion on the question whether s. 2 of the bill or any part of it would be repugnant if it were not saved by Article 28, s. 3, sub-s. 3, of the Constitution.
The extent to which the bill, if signed by the President and given constitutional validity as law by Article 28, s. 3, sub-s. 3, would encroach on personal rights which would otherwise be constitutionally guaranteed was canvassed in argument. In this context it is important to point out that when a law is saved from invalidity by Article 28, s. 3, sub-s. 3, the prohibition against invoking the Constitution in reference to it is only if the invocation is for the purpose of invalidating it. For every other purpose the Constitution may be invoked. Thus, a person detained under s. 2 of the bill may not only question the legality of his detention if there has been non-compliance with the express requirements of s. 2, but may also rely on provisions of the Constitution for the purpose of construing that section and of testing the legality of what has been done in purported operation of it. A statutory provision of this nature which makes such inroads upon the liberty of the person must be strictly construed. Any arrest sought to be justified by the section must be in strict conformity with it. No such arrest may be justified by importing into the section incidents or characteristics of an arrest which are not expressly or by necessary implication authorised by the section.
While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the Court, to state that the section is not to be read as an abnegation of the arrested person’s rights (constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the section were used in breach of such rights the High Court might grant an order for release under the provisions for habeas corpus contained in the Constitution. It is not necessary for the Court to attempt to give an exhaustive list of the matters which would render a detention under the section illegal or unconstitutional.
It has been submitted by counsel assigned by the Court that the immunity granted to the type of legislation contemplated by Article 28, s. 3, sub-s. 3, of the Constitution against invalidation by any provision of the Constitution applies only to a law which becomes so on being signed by the President. It is urged that Article 28, s. 3, sub-s. 3, is not to be taken into account by this Court when considering the provisions of a bill referred to it under the provisions of Article 26. If Article 26 stood alone and could be construed without reference to Article 28, s. 3, sub-s. 3, of the Constitution, that submission would be correct and this Court might have to advise the President that the bill would be repugnant to the Constitution because of the provisions of s. 2 of the bill.

Every law enacted by the Oireachtas must initially have been a bill passed by both Houses of the Oireachtas and is, therefore, capable of being referred to this Court by the Presidentunless it is a bill of the kind expressly excluded by Article 26 from reference. The bills which may be referred include bills intended to be enactments in conformity with the provisions of Article 28, s. 3, sub-s. 3, of the Constitution. If such a bill is not referred to this Court it must be signed by the President. Thereupon, it becomes a law enacted by the Oireachtas and has the immunity conferred upon it by the sub-section in question. The Constitution, therefore, contemplates that laws which would otherwise be invalid may be validly enacted provided they conform with the requirements of Article 28, s. 3, sub-s. 3, of the Constitution.
When a bill is validly referred to the Court under Article 26, the test of its repugnancy or invalidity is what its force and effect will be if and when it becomes law. Thus, in regard to a bill which is to take effect as law under Article 28, s. 3, sub-s. 3, if it is shown to the Court that the preliminary and procedural requirements for the passing of the bill by both Houses of the Oireachtas have been complied with, it is ipso facto, because of the exemption granted by Article 28, s. 3, sub-s. 3, incapable of being struck down on the ground of repugnancy to the Constitution or to any provision thereof.
The next submission was that the long title, which is an essential part of the billbecause it is relied on as expressing the bill’s purposefails to conform with the requirements of Article 28, s. 3, sub-s. 3, in that the purpose of the bill is not expressed to be for the preservation of the State”in time of war.” This submission is based upon the provisions of the First Amendment of the Constitution, as incorporated in sub-s. 3, which provides that “time of war” includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that arising out of such armed conflict a national emergency exists affecting the vital interests of the State. The argument is that, even though it is the existence of an armed conflict that is relied upon, nonetheless the expression “time of war” must be used because the latter includes the former.
As against this, the Attorney General has submitted that in the sub-section, particularly as amended by the Second Amendment of the Constitution, it is indicated that a time of war, an armed rebellion, and an armed conflict in which the State is not a participant are to be regarded as separate and distinct events. He relies on the fact that the expression,”termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion,” occurs in the latter portion of the sub-section and is substantially repeated in the words “by such war, armed conflict, or armed rebellion has ceased to exist” which follow a line or two later. Furthermore, he pointed out that the sub-section draws other distinctions between the three types of categories mentioned. Resolutions of both Houses of the Oireachtas are necessary to declare that a national emergency exists which affects the vital interests of the State when the occasion is one of an armed conflict in which the State is not a participant and such armed conflict is actually taking place. This is to be contrasted with what may be done in”time of war or armed rebellion” when such resolutions are not required. The existence of a “time of war or armed rebellion” is sufficient to bring into operation any law which has been enacted by the Oireachtas pursuant to that sub-section and which is expressed to be for the purpose of securing the public safety and the preservation of the State. If such a law had been enacted before the occurrence of such event, it is brought into operation by the occurrence of that event. The Attorney General submitted that the inclusion in “time of war” of “armed conflict” indicates the type of legislation which may be enacted under the sub-section. He submitted that different formalities are required for the enactment of legislation for an armed conflict in which the State is not a participant, as distinct from legislation for a time of war or armed rebellion. In the view of this Court this submission is well founded.
The Court is satisfied that the purpose of the bill, as expressed by reference to a time of an armed conflict instead of by reference to a time of war, complies with the requirements of Article 28, s. 3, sub-s. 3, while at the same time restricting the area of operation of the bill, in that the bill would not be applicable to a “time of war or armed rebellion,” as distinct from “armed conflict,” because it is not expressed to be for that purpose.
The last matter to be considered is the question of the existence of the state of affairs necessary to permit the application of Article 28, s. 3, sub-s. 3, of the Constitution. As pointed out earlier in this judgment, these are the matters or statements of fact which are contained in the resolutions of the two Houses of the Oireachtas. Submissions were made as to the extent, if any, to which the Court could examine the correctness of these statements. It was submitted by the Attorney General that there is a presumption that the facts stated in the resolutions are correct. The Court accepts the existence of that presumption and the corollary that the presumption should be acted upon unless and until it is displaced. In this case it has not been displaced.

The Attorney General submitted the general proposition that when the resolutions referred to in Article 28, s. 3, sub-s. 3, have been passed this Court has no jurisdiction to review the contents of them. When the consequences of this submission were pointed out to him he withdrew it as he said it did not arise in this case. The Court expressly reserves for future consideration the question whether the Courts have jurisdiction to review such resolutions.
The Court has come to the conclusion that the different objections raised to the constitutionality of this bill fail. To summarise, the exemption provided by Article 28, s. 3, sub-s. 3, of the Constitution is the decisive factor in the consideration of any question of repugnancy. The bill’s stated expression of its purpose accords with the requirements of the sub-section; and there is a presumption which has not been displaced that the facts stated in the resolutions are correct. For these reasons the Court decides that the bill is not repugnant in any respect to the Constitution or any provisions thereof and will so advise the President.
The Court would like to express its appreciation of the assistance given to it by counsel and solicitors engaged in these proceedings.

The State (McDonagh) v. Frawley

[1978] IR 131

O’Higgins C.J.
24th July 1978

On the 18th May, 1977, the prosecutor was sentenced by the Central Criminal Court to two years imprisonment for receiving stolen goods. He was committed to Mountjoy Prison to serve a sentence. While in prison he complained of a back-ache and further complained that he was not receiving adequate medical attention. This complaint having been made to the High Court, Mr. Justice D’Arcy, pursuant to the provisions of Article 40 of the Constitution, made an order for an enquiry as to the legality of the prosecutor’s imprisonment having regard to his allegation that his constitutional rights to bodily integrity were being interfered with by reason of a failure to provide adequate medical attention. Cause was shown by the production of the warrant of the Central Criminal Court authorising the imprisonment of the prosecutor, and by an affidavit of Dr. Davis, the prison doctor, who deposed to the medical treatment which was provided for the prosecutor.
Mr. Justice D’Arcy refused to accept the production of the lawful warrant as cause. In his report to this Court the learned judge says: “I refused to accept the production of the lawful warrant as cause. In my opinion, by reason of the decision of the Supreme Court in The Emergency Powers Bill, 1976 3 the production of a warrant alone does not suffice. It merely proves that a prosecutor was taken into lawful custody and is still in lawful custody, but it does not offer any assistance as to whether or not a prisoner’s other constitutional rights may or may not be infringed.”However, on perusal of Dr. Davis’s affidavit, he was satisfied that the prosecutor had received and was receiving adequate medical attention. Accordingly, he allowed the second ground as cause shown and discharged the conditional order.
The prosecutor appealed to this Court against that decision and the Court has already dismissed the appeal. However, it was felt that the appeal might be availed of by this Court to clear up some misunderstandings which obviously exist in matters of this kind. For that reason, this matter is listed to-day so that reasons for the dismissal of the appeal may be stated.
The prosecutor is a convicted person and, as such, he was serving a lawful sentence which had been passed upon him by the court at which he was convicted. As a convicted person under sentence, he is and was deprived of his liberty in accordance with law. In addition, he became subject to the prison rules made by the Minister for Justice in accordance with ss. 12 and 13 of the General Prisons (Ireland) Act, 1877. These rules provide for the prosecutor’s treatment while in prison, including the provision of medical attention. While so held as a prisoner pursuant to a lawful warrant, many of the prosecutor’s normal constitutional rights are abrogated or suspended. He must accept prison discipline and accommodate himself to the reasonable organisation of prison life as laid down in the prison regulations. He cannot demand the medical treatment he thinks he should get, but he will be given such medical treatment as the medical officer of the prison thinks appropriate. In my view, as long as he is treated as a prisoner under sentence and in accordance with the regulations, he cannot be heard to complain.
Quite different from the status and rights of such a convicted person are those of a person arrested and detained under the Emergency Powers Act, 1976. That Act under s. 2 (which, having operated for a period of 12 months, has now expired) gave a power of arrest and detention for a specified period or periods and for reasons which were also specified. A person so arrested was not a convicted person and, of course, had the right to be either released or charged. The power of arrest and detention was given by that Act under the special provisions of Article 28, s. 3, sub-s. 3, of the Constitution. As the Act of 1976 suspended some constitutional rights, the exercise of the powers conferred required to be watched with zealous care and particular concern by the Courts. If it appeared that those powers were used for a purpose which was not permitted, or in defiance of rights which were not suspended or ought not to be affected, then the Courts would interfere and say that the detention was not in accordance with the Act.
As was stated by the Court in The Emergency Powers Bill, 1976 3 at p. 173 of the report: “Any arrest sought to be justified by the section must be in strict conformity with it. No such arrest may be justified by importing into the section incidents or characteristics of an arrest which are not expressly or by necessary implication authorised by the section. While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the Court, to state that the section is not to be read as an abnegation of the arrested person’s rights (constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the section were used in breach of such rights the High Court might grant an order for release under the provisions for habeas corpus contained in the Constitution.” I think it is sufficient to say that these words refer only to the arrest and detention of an unconvicted person under the statutory powers mentioned.
The position of a person duly convicted and properly sentenced is quite different. Where a person such as the prosecutor is detained for execution of sentence after conviction on indictment, he is prima facie detained in accordance with law and, as was held in the High Court by Maguire P. at p. 435 of the report of The State (Cannon) v. Kavanagh 4 , it would require “most exceptional circumstances for this Court to grant even a conditional order ofhabeas corpus to a prisoner so convicted.” To the same effect, see the judgments of Andrews L.C.J. and Black and Brown JJ. in Re Beggs5 and the judgment of the (English) Court of Criminal Appeal (Goddard L.C.J., Parker and Donovan JJ.) in Re Featherstone6 at p. 147 of the report, where the exceptional circumstances justifying the release by habeas corpus of such a person are said to be exemplified by a case where the term of sentence has expired. In a case such as the present, the production of the warrant by the governor of the prison will normally be a sufficient justification of the detention.
The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that a citizen may not be deprived of his liberty save “in accordance with law” does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded. For example, if the judge at a murder trial in which the accused was convicted were to impose a sentence of imprisonment for life, instead of penal servitude for life as required by the statute1, the resulting detention would be imposed technically without jurisdiction. But the prisoner would not be released under Article 40, s. 4, for it could not be said that the detention was not “in accordance with the law” in the sense indicated. In such a case the court would leave the matter of sentence to be rectified by the Court of Criminal Appeal; or it could remit the case to the court of trial for the imposition of the correct sentence: see the unanimous opinion expressed in the House of Lords in Athanassiadis v. Government of Greece 7 at p. 289 of the report which shows that a mere technical defect is not a good ground for release on habeas corpus.
The confinement of orders of release under Article 40, s. 4, to cases where the detention is not “in accordance with the law” in the sense I have indicated means that applications under Article 40, s. 4, are not suitable for the judicial investigation of complaints as to conviction, sentence or conditions of detention which fall short of that requirement. These fall to be investigated, where necessary, under other forms of proceedings. But in cases where it has not been shown to the satisfaction of the court that the detention is “in accordance with the law” in the sense indicated, the release of the detained person must be ordered and, notwithstanding judicial dicta to the contrary, the order of release may not be coupled with an order of rearrest. The protection of personal liberty, which Article 40, s. 4, is intended to ensure, would be hollow and ineffectual if the order of release was not unqualified and unconditional.
The prosecutor is being detained under a valid warrant in execution of a sentence imposed by the Central Criminal Court. That is sufficient to dispose of his application to the High Court. His complaint that he is not being given the medical treatment of his choice for a back-ache could not possibly be a good ground for ordering his release, particularly when his complaint is not supported by any medical opinion. For the foregoing reasons, I considered that the prosecutor’s appeal should be dismissed.

Henchy J.
I agree.

Griffin J.
I agree.

Kenny J.
I agree.

Parke J.
I agree.

 

 

In re Philip Clarke.

[1950] IR 235
Maguire C.J.

 

The Judgment of the Court will be road by Mr. Justice O’Byrne.

O’BYRNE J. :”
Sect. 165 of the Mental Treatment Act, 1945, provides:”
“165.”(1) Where a member of the Garda Siochana is of opinion that it is necessary that a person believed to be of unsound mind should, for the public safety or the safety of the person himself, be placed forthwith under care and control, he may take the person into custody and remove him to a Garda Siochana station.
(2) Where a member of the Garda Siochana removes a person under this section, he shall apply forthwith in the prescribed form to the authorised medical officer for a recommendation (in this Act also referred to as a recommendation for reception) for the reception and detention of the person as a person of unsound mind in the district mental hospital for the mental hospital district in which the person ordinarily resides.
(3) Where application is made under this section to the authorised medical officer for a recommendation for reception, such officer shall forthwith examine the person to whom the application relates and shall thereupon either”
(a) if he is satisfied that it is proper to make the recommendation, make it in the prescribed form, or
(b) in any other case, refuse the application.

(4) Where a recommendation for reception is made under this section in relation to any person, the appropriate assistance officer shall be regarded as the applicant for the recommendation.”
On the 6th July, 1949, William Melly, a member of the Garda Síochána, in purported pursuance of sub-s. 1 of the foregoing section, took the appellant into custody and removed him to a Garda Siochana Station. In his affidavit, sworn in this matter, William Melly says that, when he took the appellant into custody, he believed that he was of unsound mind and that it was necessary to place him under control for his own safety.
On the same day, William Melly brought the appellant before Dr. John F. Falvey, who is admittedly the authorised medical officer, within the meaning of the section, and Dr. Falvey, having examined the appellant, made a recommendation for his reception and detention in Grangegorman Mental Hospital, which is the district mental hospital for the mental hospital district in which the appellant ordinarily resides.
Later on the same day the appellant was brought before Dr. Katherine Keys, an assistant medical officer of the said mental hospital, acting on behalf of Dr. John Dunne, the Medical Superintendent of the said Hospital. Dr. Keys examined the appellant and, being satisfied that he was a person of unsound mind and a proper person to be taken charge of and detained, made an order that he be received and detained in the said district mental hospital as a person of unsound mind. The appellant was received into, and is still detained in, the said mental hospital in pursuance of the said Order.
The first ground of appeal is that Part XIV of the said Act and, in particular, s. 165 thereof, is repugnant to the Constitution.
In support of this ground of appeal, counsel for the appellant relied, in particular, on the following provisions of the Constitution, viz.:”
1. The Preamble in so far as it states that the People, seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, do adopt and enact the Constitution;
2. Article 40, 3, 1, which provides that the State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen;
3. Article 40, 3, 2, which provides that the State shall, in particular, by its laws protect as best it may from unjust
attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.
Counsel also relied upon Article 40, 4, 2, which provides that, on an application such as this, the Court shall order the release of the person detained, unless satisfied that he is being detained in accordance with the law.
It was not suggested that s. 165 contravened any express provision of the Constitution; but counsel contended that a provision, such as that contained in the section, is, impliedly, prohibited by and is repugnant to the provisions of the Constitution, to which I have referred.
It has already been decided by this Court that where a particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, such repugnancy must be clearly established. (See In re Art. 26 of the Constitution and The Offences Against. The State (Amendment) Bill, 1940 (1) and Buckley and Others (Sinn Fein) v. Attorney General and Another (2).)
A passage, at p. 481, in the judgment delivered by Sullivan C.J. in In re Art. 26 of the Constitution and The Offences Against The State (Amendment) Bill, 1940 (1) was relied upon as laying down the proposition that the Court could not consider whether a guarantee contained in the Constitution had been infringed by an Act of the Oireachtas. Such an interpretation of the passage would be inconsistent with the principle already referred to as having been laid down in that judgment. The passage must be read as a rule of prudence in the consideration of the question of express or implied repugnance, especially in matters such as those involved in the said Bill.
It was conceded that the Constitution does not prohibit all interference, by legislation, with the right of the individual to personal liberty. The main argument, on behalf of the appellant, against the validity of the section was based upon the absence of any judicial intervention or determination between the arrest of the person alleged to be of unsound mind and his subsequent detention under a reception order.
The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was, no doubt, present to the minds of the draughtsmen when it was proclaimed in Art. 40, 1, of the Constitution that, though all citizens, as human beings, are to be held equal
before the law, the State may, nevertheless, in its enactments, have due regard to differences of capacity, physical and moral, and of social function. We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others.
The section is carefully drafted so as to ensure that the person, alleged to be of unsound mind, shall be brought before, and examined by, responsible medical officers with the least possible delay. This seems to us to satisfy every reasonable requirement, and we have not been satisfied, and do not consider that the Constitution requires, that there should be a judicial inquiry or determination before such a person can be placed and detained in a mental hospital.
The section cannot, in our opinion, be construed as an attack upon the personal rights of the citizen. On the contrary it seems to us to be designed for the protection of the citizen and for the promotion of the common good.
In our opinion the section in question is not repugnant to either the letter or spirit of the Constitution and, accordingly, we are of opinion that this ground of appeal fails.
It is further contended that the statutory procedure for the reception of patients in a mental hospital was not complied with in this case and that, accordingly, the appellant is not being detained in accordance with law and should be released under Art. 40, 4, 2, of the Constitution.
Sect. 165, sub-s. 1, provides that where a member of the Garda Siochana is of opinion that a person, believed to be of unsound mind, should, for the public safety or the safety of the person himself, be placed forthwith under care and control, he may take the person into custody and remove him to a Garda Siochana station. This sub-section was clearly complied with. It appears from the affidavit of the said William Melly that, on the 6th July, 1949, the said William Melly believed that the appellant was of unsound mind and that it was necessary for his own safety that he should be placed under control. He, thereupon, took the appellant into custody and removed him to the Bridewell Garda Station.
Sub-sect. 2 of the said section provides that, where a member of the Garda Siochana removes a person under the section, he shall apply forthwith in the prescribed form to the authorised medical officer for a recommendation for the reception and detention of the person as a person of unsound mind in the district mental hospital for the mental hospital district in which the person ordinarily resides. It is at this step that it is alleged there was a departure from the legal procedure.
The Act itself does not prescribe the form of application, but s. 8 provides that the Minister for Local Government and Public Health may make regulations in relation to any matter or thing referred to in the Act as prescribed or to be prescribed or as being the subject of regulations.
In pursuance of that power, the Minister made Regulations on the 3rd April, 1946 (Statutory Rules and Orders, 1946, No. 202). The Regulations prescribe the form of application under s. 165 by a member of the Garda Siochana for a Recommendation for Reception (Form No. 6) and Statement of Particulars to accompany application under ss. 162, 165, 166 or 177 of the Act (Form No. 8). These sections contemplate applications by a wide variety of persons with varying degrees of knowledge regarding the patient and his history, and it is strange that one stereotyped form of particulars should have been prescribed for all such cases. That, however, is the form in which the Regulations have been made.
The application of William Melly was accompanied by a Statement of Particulars on Form No. 8 and this Statement of Particulars was duly signed by William Melly. The form requires particulars in respect of twenty-two different matters; but, in the form as signed by William Melly, the particulars required at Nos. 9 to 16 inclusive, 18, 19 and 22, were not furnished. The particulars so omitted deal mainly with the mental history of the patient and were, presumably, omitted because the applicant was not in a position to supply the particulars. No question has been raised as to the validity of the Order made by the Minister and, accordingly, the Order must be read and construed as though it were contained in and formed part of the Statute.
The question then arises whether (to use language which is sanctioned by authority) the furnishing of these particulars is a peremptory and obligatory provision of the Act, so that failure to supply them invalidates the entire proceedings, or whether it is merely directory. On this question very little assistance is to be obtained from authority, except as to the manner in which the question should be approached.
In Liverpool Borough Bank v. Turner (1) Lord Campbell L.C. says, at p. 380:”
“No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of
Justice to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed.”
In Howard v. Bodington (1) Lord Penzance, having cited the foregoing passage from the judgment of Lord Campbell, proceeds as follows, at p. 211:”
“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”
This Act, as shown in the title, was primarily intended to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom. Coming to the particular part of the Act with which this case is concerned, it appears that it was also intended for the safety of the public generally.
Sub-sect. 1 of s. 165 empowers a member of the Garda Síochána, in certain circumstances, which occurred in this case, to take the patient into custody and remove him to a Garda Siochana station. Having done so, the guard was required, forthwith, to apply to the authorised medical officer for a recommendation order. Under the Regulations made by the Minister, the particulars mentioned in Form No. 8 should accompany this application. A glance at the form will show the nature of the particulars which the guard was required to furnish. I take a few at random:”
“9. Whether this is the first attack of mental disorder. 10. Age on first attack of mental disorder. 14. Probable cause of present attack. 15. Whether person is subject to epilepsy. 16. Whether person is suicidal. 19. Particulars of income received by or property belonging to person.”
The patient may be a complete stranger to the guard who takes him into custody; but, nevertheless, the guard is required by the section to make the application for the recommendation order forthwith. The particulars are, as it seems to us, mainly intended for the assistance of the medical officer whose duty it is to examine the patient when the latter is brought before him. Suppose the guard is unable, as is likely to happen in many cases, to furnish some of the required particulars, what is to happen? He cannot retain the patient in custody whilst he is making inquiries, because the section requires that he shall forthwith apply for the recommendation order. Is he then to release him, to the possible danger of the patient himself and the public? This seems to be involved in the argument put before us on behalf of the appellant and must be so if the furnishing of the required particulars is an obligatory provision of the Act. Having regard to the scope and object of the Act, we cannot think that this was the intention of the Legislature. The furnishing of the particulars is undoubtedly a requirement of the Act, but, in our opinion, this requirement is directory only and not obligatory.
For these reasons, we are of opinion that this appeal fails, and should be dismissed.

 

The State (C.) v. Frawley

1976] IR 365

Finlay P.
13th April, 1976

This is an application by the prosecutor for an order of release under Article 40 of the Constitution; pursuant to s. 4, sub-s. 2, of that Article the Supreme Court, on appeal from my decision in the High Court, directed an enquiry into his detention. The facts on which the prosecutor relies are as follows. He is at present detained in Mountjoy Prison on foot of a warrant issued by the Dublin Circuit Criminal Court in respect of a number of counts of breaking and entering and robbery with violence committing him to concurrent sentences of imprisonment of the maximum length of two years commencing on the 28th February, 1975. It is anticipated that on foot of that warrant he would, if not previously released by order of the Court, be discharged from prison in the month of July, 1976. No challenge is made to the validity of this conviction or of the warrant issued pursuant to it. The respondent has supplied the prosecutor with a prison record of his detention on this and on previous committals; its accuracy is accepted and, by agreement, it has been admitted in evidence.
The prosecutor did not give oral evidence before me but Dr. Brian McCaffrey, the clinical director of psychiatry for the Eastern Health Board who examined the prosecutor on his behalf; Dr. Smith, the senior psychiatrist to the Central Mental Hospital, Dundrum; Dr. Davies, the medical officer of Mountjoy Prison and Dr. Daly, the director of the Central Mental Hospital, Dundrum, were also called as witnesses on behalf of the prosecutor. No oral evidence was adduced on behalf of the respondent who showed cause by relying on the conviction and warrant. From this oral evidence, from the previous prison record to which I have referred, and from the prosecutor’s own original complaint I find the facts of this matter to be as follows. The prosecutor is now diagnosed, in the words of Dr. McCaffrey, as suffering from a personality trait disturbance of a sociopathic type and, in the words of Dr. Daly, from a disorder of personality which is sociopathic in nature. Between these two diagnoses there is not, I am satisfied, any substantial conflict. He is not, on the agreed medical evidence, either now or consistently a person who is insane, nor does he suffer from a psychotic disease. He does not come within the ordinary definition of a psychopath. No evidence was adduced before me, nor was any suggestion made on behalf of the respondent, that the prosecutor was feigning any part of this condition. Some minor conflict appears in the medical evidence as to whether the prosecutor has been at any relevant time even temporarily insane or of unsound mind but I have come to the conclusion on the evidence that, at some periods at least, the disturbance of his personality has been so acute that it rendered him for some time of legally unsound mind.
If the history of his childhood given by the prosecutor to Dr. McCaffrey is substantially accurate (and I have no reason to believe otherwise), then the origin of this condition is almost certainly an upbringing largely in institutions after a broken marriage of his parents. Having regard to the prosecutor’s innate personality and intelligence, this upbringing was almost unbelievably cruel. Whatever its origin, the prosecutor’s condition manifests itself in an aggressive and continuous hostility to authority and to the features of society which represent authority. To this is added a higher than average intelligence and an unusually athletic physique and capacity. In the pursuit of this hostility the prosecutor is endowed with a physical courage tantamount to recklessness. As a result, during the periods of his imprisonment (which have now continued with only short interruptions since 1969), he has displayed three main activities.
First, he has repeatedly climbed over the walls and on to the roofs of prisons and hospitals with an agility and skill which is practically unique. Secondly, he has repeatedly swallowed metal objects such as bed springs and handles of spoons and has inserted wire and sharp objects into his body not with a suicidal intent, in the opinion of the doctors, but rather for the reckless purpose of making his continued detention impossible. Of course, this tendency as well as the prosecutor’s climbing activities have seriously endangered his life and health. Thirdly, he militantly resists almost all forms of discipline and repeatedly, either on his own or with others, seeks by various methods to escape from detention.
During the entire period of his imprisonment, including the currency of his present detention, he has been certified as insane on a number of occasions and has been transferred to the Central Mental Hospital, Dundrum, usually for short periods of a month or less: he has then been certified as not insane and has been re-transferred to prison. For most of the time he has been in prison he has been kept in solitary confinement with the interruption of varying but short periods of exercise and association with other prisoners. Whilst out of solitary confinement he is usually kept handcuffed for some period. He is deprived of much of the ordinary equipment of a prisoner such as cutlery, a bed with springs and a transistor radio. The purpose and, I am satisfied, the only purpose of these very severe restrictions is to prevent his escape on the one hand and to prevent him swallowing metal and other objects on the other. He has, for example, at one time swallowed batteries and component parts of a radio.
During the relatively short periods of his detention in the Central Mental Hospital, Dundrum, he has received treatment which consisted only of sedation and custodial care. His hostility to that institution and its staff is apparently even greater than his hostility to prison; and this, apart from any other consideration, has prevented any effective therapy.
There is no doubt that to either the prison or hospital authorities he presents an extraordinarily difficult custodial problem; it is difficult to protect him from himself and to detain him, and he is entirely disruptive of the entire organisation of the prison and hospital. He has a particularly bad effect on the other patients confined to the hospital in Dundrum and, to the extent of his permitted association, on fellow prisoners. The requirements of his physical health originate, almost exclusively, from his self-inflicted injuries and wounds; and I am satisfied that those requirements have been adequately met during his detention largely by repeated visits to general hospitals for surgical treatment. Due to the number of operations he has undergone for the removal of foreign bodies from his stomach, he now represents a marked risk if he has to undergo further abdominal surgery.
It is the view of Dr. McCaffrey, which is not disputed by the other medical witnesses or challenged by the respondent, that the only long-term psychiatric treatment which would have a reasonable chance of success in the prosecutor’s case would be his involuntary detention in a specialised psychiatric unit which was capable of keeping him in custody while being specially equipped to provide outlets for his physical capacity and aggressiveness in harmless activities such as gymnastics and games, and which would provide educational and intellectual interests and companionship which he would find amenable, and specially-trained staff who would acquire his co-operation and confidence.
On the evidence it is agreed that no such institution exists in Ireland and that neither in the Central Mental Hospital, Dundrum, nor in any other psychiatric hospital do facilities for such treatment exist. The number of persons suffering from a similar though not identical condition in Ireland at present was estimated by Dr. McCaffrey at about six, and by Dr. Daly at from six to twenty. Dr. Daly expressed the opinion that, disregarding the finance which might be involved, such a unit could physically be installed in Dundrum and, provided appropriate trained staff could be obtained, put into operation. The building of it would involve not only complete segregation from the other patients now detained there, who are almost all psychotic in one form or another, but also the provision of physical barriers to escape which would have to be far beyond the barriers provided in that institution at the present time. Even if the provision of such a unit were immediately started, it would be a number of years before it could be operative.
On the medical evidence, the prosecutor has shown some improvement in his condition in the last six or seven months, though he remains a genuinely sick person. This improvement is considered as probably arising from his expected release next July and, possibly, it is also derived from the fact that he is reaching an age of maturity at which a spontaneous improvement of his condition might occur.
On these facts, Mr. MacEntee, on behalf of the prosecutor, submitted a number of written submissions which he subsequently developed in an able argument. On the facts as I find them, the submissions which remain relevant may be summarised into two broad contentions.
The first contention is that the right to bodily integrity is an unspecified constitutional right and that, in the context of a detained prisoner who is unable to obtain his own medical attention, it imposes upon the Executive an obligation to protect his health as far as is reasonably possible in all the circumstances. Further, counsel contends that the prosecutor’s present detention and its circumstances fail to secure to him that right and that, therefore, it is unconstitutional and unlawful. The second broad contention is that, even if the European Convention on Human Rights is not part of the substantive law of the State1, the freedom from torture and from inhuman and degrading treatment and punishment which is guaranteed by the Convention is, nevertheless, an unenumerated constitutional right; and it is submitted that the present detention of the prosecutor denies that freedom and, accordingly, is unconstitutional and unlawful.
In support of these contentions, counsel referred to the following cases, which I have considered: Ryan v. The Attorney General 2; In re Haughey 3; O’Brien v. Keogh 4: Byrne v. Ireland 5; and McGee v. The Attorney General. 6
Having regard to these submissions and to my findings of fact, I have come to the following conclusions. The right of bodily integrity as an unspecified constitutional right is clearly established by the decision of the Supreme Court in Ryan v. The Attorney General 7 by which I am bound and which I accept. Even though it was there laid down in the context of a challenge to the constitutional validity of a statute of the Oireachtas which, it was alleged, forced an individual to use water containing an additive hazardous to health, I see no reason why the principle should not also operate to prevent an act or omission of the Executive which, without justification, would expose the health of a person to risk or danger.
When the Executive, in exercise of what I take to be its constitutional right and duty, imprisons an individual in pursuance of a lawful warrant of a court, then it seems to me to be a logical extension of the principle laid down in Ryan’s Case 7 that it may not, without justification or necessity, expose the health of that person to risk or danger. To state, as Mr. MacEntee submits, that the Executive has a duty to protect the health of persons held in custody as well as is reasonably possible in all the circumstances of the case seems to me no more than to state in a positive manner the negative proposition which I have above accepted. Therefore, I am satisfied that such a proposition is sound in law.
The vital question, however, is whether the Executive has failed in that duty in this case on the facts as I find them. I am satisfied that the medical requirements of the prosecutor, as distinct from his psychiatric needs, have at all material times been adequately met by the respondent. The prosecutor has been regularly visited and examined by the medical officer of Mountjoy Prison and, when specialised surgical treatment has been required, that treatment has been afforded in the Mater Hospital by a senior consultant surgeon. In my view, the restraints of which the prosecutor most vehemently complains have been designed and implemented to eliminate or diminish, so far as is reasonably practical, the possibility of the prosecutor harming himself by swallowing foreign bodies, by self injury or by injury arising from his climbing and escaping activities.
The real failure in this duty alleged against the respondent is that he has failed to provide the special type of institution and treatment which was recommended by Dr. McCaffrey as a long-term treatment and that, to an extent, imprisonment in any other form is directly harmful to the progress of the prosecutor’s condition of personality disturbance. A failure on the part of the Executive to provide for the prosecutor treatment of a very special kind in an institution which does not exist in any part of the State does not, in my view, constitute a failure to protect the health of the prosecutor as well as possible in all the circumstances of the case. If one were to accept in full all the assumptions upon which Dr. McCaffrey’s opinion is based, it could be shown that there was a failure of an assumed absolute duty to provide the best medical treatment irrespective of the circumstances. I am satisfied, as a matter of law, that no such absolute duty exists.
It has been urged on behalf of the prosecutor that the respondent cannot be excused from his duty to provide this very specialised type of psychiatric treatment on the grounds of the non-availability of the appropriate facilities since that non-availability flows from an unconstitutional failure on the part of his superiors to provide this specialised type of institution with appropriate staff. Even though the number of persons suffering from a condition even generally akin to that of the prosecutor may be as low as six, not all of whom are in custody, a description of the progress and consequence of the prosecutor’s disturbance and the nature of his life in prison would make the availability of appropriate long-term treatment most desirable as a matter of compassion.
However, it is not the function of the Court to recommend to the Executive what is desirable or to fix the priorities of its health and welfare policy. The function of the Court is confined to identifying and, if necessary, enforcing the legal and constitutional duties of the Executive. I cannot conscientiously hold, no matter where my sympathy might lie, that an obligation to provide for prisoners in general the best medical treatment in all the circumstances can be construed as including a duty to build, equip and staff the very specialised unit which Dr. McCaffrey has recommended and which might be appropriate to the needs of the prosecutor and four or five other persons. Therefore, I am satisfied that the first main contention of the prosecutor fails.
With regard to the second contention, the position in law seems to me to be that the existence of constitutional rights which are not specified in Article 40 of the Constitution8 was first declared by Mr. Justice Kenny in the High Court in Ryan v. The Attorney General 9 and was subsequently confirmed by O’Dalaigh C.J. in the Supreme Court in that case. At p. 313 of the report Mr. Justice Kenny states: “It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at allthe right to free movement within the State and the right to marry are examples of this.” If the unspecified personal rights guaranteed by Article 40 follow in part or in whole from the Christian and democratic nature of the State, it is surely beyond argument that they include freedom from torture, and from inhuman or degrading treatment and punishment. Such a conclusion would appear to me to be inescapable even if there had never been a European Convention on Human Rights, or if Ireland had never been a party to it.
The question which has given me the most trouble in this case is whether the conditions under which the prosecutor has been and is detained in prison constitute a failure to protect him from torture or from inhuman or degrading treatment and punishmentthus making his detention unlawful. Notwithstanding the harshness of the privations which he has undergone and, to a lesser extent, continues to suffer, I have finally come to the conclusion that those conditions do not constitute such failure.
I am quite satisfied that the purpose and intention of the restrictions and privations surrounding the prosecutor’s detention are neither punitive nor malicious. The strongest confirmation of this would appear to be that the restrictions have been somewhat relaxed since the improvement in his condition noted by Dr. McCaffrey in the last six or seven months. There was no evidence before me of any privation or hardship which does not appear related to one or other of the main purposes of keeping the prosecutor from escaping and preventing him from injuring himself. In seeking to achieve these two purposes, the respondent is discharging two duties which appear to me to be constitutional in origin.
I must construe the entire concept of torture, inhuman and degrading treatment and punishment as being not only evil in its consequences but evil in its purpose as well. It is most commonly inspired by revenge. retaliation, the creation of fear or improper interrogation. It is to me inconceivable to associate it with the necessary discharge of a duty to prevent self-injury or self-destruction.
Therefore, I am satisfied that the respondent has justified the detention of the prosecutor and, therefore, I must refuse the prosecutor’s application for an order releasing him pursuant to Article 40, s. 4. sub-s. 2, of the Constitution.

 

The People (D.P.P) v. Quilligan

[1986] IR 495
Walsh J. 502
S.C.

 

Walsh J.
25th July 1986

This is an appeal brought by the Director of Public Prosecutions against the acquittal by a jury in the Central Criminal Court of the two above-named defendants of the charge of murder. The acquittal was directed by the presiding judge Mr. Justice Barr. The defendants had been arraigned and pleaded not guilty to the charge of murder of one James Willis on the night of the 19th/20th November, 1984 at his dwellinghouse at Ballycurreen, Clounthaune, Co. Cork. On the night in question the deceased’s home had been broken into by three men, apparently for the purpose of robbery. Entry was gained to the house by the intruders by bursting or breaking the keeper of a Yale type of lock on the front door and by damaging a bolt on the back door. The house was occupied by the deceased and his brother John Willis. Each of the brothers was severely assaulted by the intruders, and the deceased received fatal injuries. In addition to the damage to the doorways of the house the intruders also damaged items of furniture in the course of the struggle with the occupants and ransacked the house in a search for cash and other valuables. From the outset it appears that the Garda Siochana suspected the two defendants to have been among the intruders and each of them was arrested pursuant to s. 30 of the Offences Against the State Act, 1939. At the time the Garda authorities had no sufficient evidence to justify a charge against either of them for any of the offences committed in the Willis home. The Superintendent in charge of the case stated in evidence that he felt justified in directing an arrest under s. 30 based upon the suspicion that each accused had committed the scheduled offence of malicious damage on the night in question. The object of the arrest, according to the police evidence, was to provide an opportunity to enable the arrested persons to be interrogated during the period of detention authorised by s. 30 on all of the crimes committed at the Willis home and other “related matters”.
The defendants were arrested on the morning of the 12th December, 1984 in purported pursuance of s. 30 of the Offences Against the State Act, 1939. They were then brought to the Bridewell Garda Station in Cork, where each one was detained, and interrogated by Garda officers about the death of the deceased, the assault upon the other brother and other matters which had occurred on the date of the intrusion into the house. Part of the case in the trial against the defendants was that while in detention under s. 30 of the Act of 1939 each of them had made a written statement admitting participation in the events which had taken place in the Willis house on the night in question. In fact the successful prosecution of the accused depended on the admission of those statements in evidence by the trial judge.
It was submitted to the trial judge on behalf of each of the accused that the arrests made under s. 30 were unlawful. If that were so the statements must be rejected for being in breach of the constitutional prohibition upon arrest or detention save in accordance with law. Having heard submissions on the point from both sides and having considered the matter at some length the learned trial judge excluded the statements from evidence and consequently directed the acquittal of both defendants.
The learned trial judge was satisfied that each of the arresting officers and the Superintendent had a bona fide suspicion when making the respective arrests that the defendants “may have been involved in malicious damage at the Willis home on the night of James’s murder”. The issue before the judge, as he saw it, was whether, notwithstanding “the validity of the suspicions held by the arresting officers”, they were entitled to resort to s. 30 of the Act of 1939 to arrest the accused persons, when the primary purpose of the arrest was to enable or to provide an opportunity for the interrogation of the accused persons in respect of an unscheduled offence namely, the murder of James Willis. The latter offence, in the words of the judge, was one “the gravity of which dwarfed into insignificance the minor malicious damage element in the transaction.” As the learned trial judge saw it the question was whether the malicious damage offence alleged to have been committed on the night in question, not having “been committed by or on behalf of any unlawful organisation within the meaning of s. 18 of the Act of 1939, or by a member of any such organisation”, could lawfully justify the arrest, detention and interrogation of the defendants under s. 30 of the Act. After a lengthy consideration of the nature and the purpose of the Offences Against the State Act, 1939, the learned trial judge came to the conclusion that Part V of the Act, by virtue of which malicious damage was made a scheduled offence, was intended to deal only with crimes which he described as being of a “subversive nature” and not intended to deal with crimes which may be classified, as to use his own words “ordinary crimes”,that consequently s. 30 had been wrongly invoked to arrest the defendants because there was no “subversive” element in the crime of malicious injury imputed to them.
Because of the importance of the issue raised in the ruling and in deference to the painstaking examination by the learned trial judge of the nature and purpose of the Act of 1939 and his conclusions I think it is desirable that I also should examine the nature and purpose of the Act in question. At this stage it should be noted that Statutory Instrument No. 142 of 1972 and Statutory Instrument No. 282 of 1972 specified malicious damage offences to be scheduled offences for the purpose of s. 36 and s. 37 of the Offences Against the State Act, 1939. Neither during the trial nor during the appeal in this court has any question been raised as to the validity of the Statutory Instruments in question or as to the validity of section 30. It is also to be noted that neither in the court of trial nor in this Court was any question raised as to the existence at all relevant times of a proclamation made by the Government pursuant to s. 35 of the Act of 1939 bringing into force Part V of that Act.
The Bill for what subsequently became the Treason Act, 1939, and the Bill for what subsequently became the Offences Against the State Act, 1939, were introduced on the 8th February, 1939. The Treason Act was enacted on the 30th May, 1939, and the Offences Against the State Act was enacted on the 14th June, 1939. The crime of treason is defined in Article 39 of the Constitution and the object of the Treason Act, 1939, was to provide for the punishment for the crime of treason.
The introduction and enactment of the Offences Against the State Act, 1939, followed a “proclamation” issued by the Irish Republican Army in December, 1938, to the effect that all the powers of the Executive Council of the first Dáil had been transferred by the “remaining deputies” of that Dáil to the Council of the Irish Republican Army. This was followed by other “proclamations” on the 15th and 16th January, 1939, claiming that the Council of the Irish Republican Army was thenceforth the legitimate and legal government of every part of Ireland with the right to declare war. It did in fact purport to “declare war” upon the United Kingdom following an ultimatum to Lord Halifax, the then Foreign Secretary of the United Kingdom Government.
Article 6 of the Constitution provides that the powers of government, legislative, executive and judicial, are exercisable only by or on the authority of the organs of the State established by the Constitution. Article 15 of the Constitution provides that the sole and exclusive power of making laws in the State is vested in the Oireachtas. Article 28 of the Constitution provides that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government. The same Article goes on to say that war shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann . Article 34 of the Constitution provides that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution, and Article 35 provides that all judges shall be independent in the exercise of their judicial functions and subject only to the Constitution and the law. Article 40 of the Constitution provides that the publication of seditious matter is an offence which shall be punishable in accordance with law, and the same Article provides that the right of assembly guaranteed by the Constitution is confined to those who assemble peaceably and without arms and that the right to form associations and unions is subject to public order. Article 15 of the Constitution vests the right to raise and maintain military or armed forces exclusively in the Oireachtas and provides that no other military or armed forces can be raised or maintained for any purpose whatsoever. Article 38 of the Constitution provides for the establishment by law of special courts for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. The provisions of the Offences Against the State Act must be seen against the background of these constitutional provisions. While it may well be that some of these constitutional provisions are self-executing in the sense that they do not require legislation to implement them nevertheless the legislation embodied in the Offences Against the State Act, 1939, must be seen as a legislative intervention designed to secure and make effective the rights guaranteed by the Constitution and to provide punishment for and otherwise deal with the breaches of the Constitution envisaged in the Articles already referred to. Part I of the Act deals mainly with definitions. Part II was intended to replace the then existing laws regarding offences which were directed against the security of the State, and the carrying on of the work of government, and public order generally. Certain additions and certain changes were embodied which were seen to be necessary in view of the altered constitutional position brought about by the enactment of the Constitution in 1937. The specific offences aimed at in Part II of the Act are
(a) the usurpation of the functions of government;
(b) the obstruction of government (including attempts by force of arms or other violent means or any other forms of intimidation to prevent the exercise by the President, the members of the Oireachtas, the judiciary, or the executive of the State, or the State employees of any of their powers or functions);
(c) illegal drilling and other military exercise;
(d) the formation or maintenance of any secret society in the army or the police force;
(e) the administering of unlawful oaths.

Part II also contains provisions prohibiting the publication of treasonable and seditious matter and provisions designed to fix the responsibility for any breach of the law in regard to printing and publication. Part III of the Act is concerned with one particular aspect of the offences dealt with in Part II namely, unlawful organisations. Parts II and III create a very large number of possible offences. Part IV confers on the police certain special powers of search and arrest and other ancillary powers. Part V can only be in operation at times when the Government is satisfied that the ordinary courts are inadequate and when Part V is in operation, s. 38 of the Act requires the setting up of a Special Criminal Court or Special Courts. The particular circumstances which require the setting up of Special Criminal Courts are those which are necessary for the exercise of power to”schedule” offences. By virtue of s. 36, sub-s. 1, when Part V is in force and the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment, it may by order declare “that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purpose of this Part of this Act.” It is to be stressed that notwithstanding the operation of Part V of the Act and the setting up of Special Criminal Courts, the ordinary courts retain full jurisdiction over all offences except those particular ones which are removed to a Special Criminal Court in the manner prescribed in the Act. The jurisdiction of the Special Criminal Court is restricted to the offences in relation to which the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order which have been “scheduled” by the Government in the prescribed manner, and to any other offences in respect of which there is a certificate by the Attorney General (or, now, also by the Director of Public Prosecutions) that the ordinary courts are in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in respect of the trial of the offence in question.
Thus it would be seen that the first four Parts of the Act of 1939 are always in force and are intended to be complementary to the constitutional provisions already referred to. Parts V and VI of the Act may be regarded as emergency provisions because they only come into force and remain in force for so long as the necessary proclamations are in force and the other requirements of the Act are complied with.
Section 30 of the Act, which is in Part IV and therefore part of the legislation permanently in force, is the pivotal point of the present case. That section provides that a member of the Garda Siochana (a) in uniform, or (b) if not in uniform, on production of his identification card if demanded, may without a warrant do the following acts or any one or more of them in respect of any person (i) whom he suspects of having committed or being about to commit, or (ii) being or having been concerned with the commission of, an offence under any section or subsection of the Act of 1939, or an offence which is for the time being a scheduled offence for the purpose of Part V of that Act, or whom he suspects of carrying a document in relation to the commission or intended commission of any such offence as aforesaid, or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid, (a) stop, (b) search, (c) interrogate, (d) arrest any such person, or do any one or more of these things in respect of such person. It is to be noted that before exercising any of the powers conferred in s. 30 the garda concerned must have the required suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not then the action taken by virtue of s. 30 and purported pursuant to s. 30 would be illegal. Furthermore the suspicion must be one which is bona fide held and not unreasonablesee the views of this Court in The State (Lynch) v. Cooney [1982] I.R. 337 when dealing with the “opinion” formed by the Minister in question. The “suspicion” of a member of the garda in relation to s. 30 is not beyond judicial review as is clearly established by the decision of this Court in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550. No exercise of the powers conferred by s. 30 in relation to any person can be justified solely by the desire to interrogate that person. Sub-section 5 of s. 30 makes specific provision for interrogating persons detained under s. 30 and it is the only provision of the Offences Against the State Act, 1939 giving the right to ask particular questions conferred on members of the Garda Siochana when Part V is not in force. It is the right to demand the name and address of the person arrested and detained. Sub-section 6 provides that every person who obstructs or impedes a member of the Garda Siochana or who shall fail or refuse to give his name and address or who shall give a false or misleading name shall be guilty of an offence. When Part V of the Act is in force and when a person is arrested under s. 30 because of a suspicion of having committed or being involved in the commission of a scheduled offence, then s. 52 of the Act authorises a member of the Garda Siochana to demand of such person at any time while he is so detained a full account of his movements and actions during any specified period and to demand of him all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of the Act of 1939, or any scheduled offence. Any person who refuses to give such an account or an information, or gives false or misleading information shall be guilty of an offence. Apart from these particular provisions in s. 30 and s. 52, the Act of 1939 does not place any obligation on any person to answer any question, and any person detained or arrested by virtue of those sections would not, subject to the possibility of committing the offence of creating a public nuisance, or of misprision, be committing any criminal offence if the account he gives of his movements or the information he gave in regard to the commission or intended commission of the criminal offence were false or misleadingsee The People v. Madden [1977] I.R. p. 336 at p. 356 of the report a decision approved by this Court in The People v. Kelly (No. 2) [1983] I.R. 1 at p. 23 of the report. But as the latter case pointed out, while ss. 30 and 52 respectively are the only sections which enable the civic guards to require particular answers from an arrested person and to that extent give rise to the only statutory rights of interrogation as such conferred by the Act, nonetheless the person arrested and detained in custody in a Garda station for the specified statutory periods, as in cases of arrest for “ordinary”offences, may be asked any other question by members of the Garda Siochana present, but he is under no obligation to answer any of them and he should be so told. It is to be borne in mind that the Judges’ Rules apply in respect of all persons detained under s. 30 and, as described by this Court in its judgment in The Emergency Powers Bill, 1976 [1977] I.R. 159 at p. 173 of the report, such person retains at all times the right of communication and the right to have legal and medical assistance and the right to have access to the courts. These specified rights were not intended by the Court nor expressed to be an exhaustive list but if s. 30 were used in breach of such rights, the High Court might grant an order for release under the provisions of Article 40 of the Constitution. Parts II and III of the Offences Against the State Act, 1939, create a large number of different offences and when Part V is in operation, the number of possible offences is considerably increased. When a person is arrested under s. 30 as in any other arrest he must be informed of which of the many possible offences he is suspected unless he already has that information, see The People v. Walsh [1980] I.R. 294. In so far as the decision of the Special Criminal Court in The People v.McDermott, McGettigan and Others (1974) 2 Frewen 211 might appear to say the contrary it ought not to be followed because of the decisions of this Court in The People v. Walsh [1980] I.R. 294 and The People v. Shaw [1982] I.R. 1. During his detention, in addition to the rights already set out, he must not be subject to any form of questioning which the courts would regard as unfair or oppressive either by reason of its nature, the manner in which it is conducted, its duration or the time of day, or of its persistence into the point of harassment where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned.A fortiori this applies to cases where the initial detention period of twenty-four hours is extended to forty-eight hours by virtue of the provisions of s. 30, sub-s. 3 of the Act of 1939, bearing in mind that the officer, not below the rank of Chief Superintendent who may authorise the extension of the detention must also entertain the necessary suspicions see the decision of the Court of Criminal Appeal in The People v. Eccles McShane and Phillips (Unreported February 10th 1986). I have dealt in some detail with the powers given by s. 30 and s. 52 because it appears from the learned trial judge’s reference to s. 30 as providing the Garda Siochana with “patently draconian powers” and giving them the right to “compulsorily interrogate a person suspected of crime” that he felt that ss. 30 and 52 give to members of the Garda Siochana carte-blanche both as to the manner, nature and duration of the interrogation of persons so arrested. I hope I have succeeded in showing that such is not the case and that any mistaken beliefs to the contrary wherever they reside will be dissipated. The object of the powers given by s. 30 is not to permit the arrest of people simply for the purpose of subjecting them to questioning. Rather is it for the purpose of investigating the commission or suspected commission of a crime by the person already arrested and to enable that investigation to be carried on without the possibility of obstruction or other interference which might occur if the suspected person were not under arrest. Section 30 is part of the statute law of the State permanently in force and it does not permit of any departure from normal police procedure save as to the obligation to bring the arrested person before a court as soon as reasonably possible.
It is not outside the bonds of possibility, however unlikely it might appear to be, that in some cases of arrest pursuant to s. 30 of the Act the police might not wish to question any person so arrested save to ask him his name and address. But if they should wish to do so and in fact proceed to interrogate persons so arrested, all the safeguards already mentioned come into operation. What s. 30 does not provide for is the bringing of the arrested person before a court as soon as is practicable. That however is a separate matter. That docs not mean however that in the intervening period the person arrested may be treated in any way other than would be tolerated for a person who was arrested other than under s. 30 of the Act. One can see the logic of the learned trial judge’s views in that Part V of the Act only comes into force in the emergency conditions already referred to and while it may be said that the Act is in general intended to deal with what might be generally called the internal enemies of the State, it does not follow that its application is necessarily confined to persons who are engaged in what are generally known as subversive activities which in common parlance appear to be activities endangering the institutions and the security of the State itself. It is not at all impossible that in the light of the economic conditions in the State there could be activities which would be very injurious to the economic position of the State and might equally well be comprehended by the Act. In fact in the years during the late war and the years following it, the Special Criminal Court was very frequently engaged in the trial of what were called “black market” cases. Equally it does not follow that the power of the government to issue a proclamation to the effect that the ordinary courts are inadequate to secure the effective administration of justice, the preservation of peace and order must necessarily apply only with reference to the type of offences created by Parts II and III of the Act. It is common knowledge, and indeed was discussed in the debates in the Oireachtasleading to the enactment of the Act of 1939, that what was envisaged were cases or situations of a political nature where juries could be open to intimidation or threats of various types. However a similar situation could also arise in types of cases far removed from what one would call “political type” offences. There could well be a grave situation in dealing with ordinary gangsterism or well financed and well organised large scale drug dealing, or other situations where it might be believed or established that juries were for some corrupt reason, or by virtue of threats, or illegal interference, being prevented from doing justice. This is a matter on which the executive arm of government must make up its mind before issuing a proclamation but, as the Act provides, it is not left solely to the discretion of the executive arm of government. Notwithstanding whatever views the executive arm of government may hold, s. 35, sub-s. 5 of the Act of 1939 entrusts to Dail Eireann the power to pass a resolution annulling the proclamation by virtue of which that section is in force, and thereupon the section shall cease to be in force. In addition sub-s. 4 of that section provides that if at any time the executive arm of government is satisfied that the ordinary courts are adequate to secure the effective administration of justice and the preservation of public peace and order, the government must make and publish a proclamation declaring that Part V of the Act shall cease to be in force, and thereupon Part V ceases to be in force forthwith. However s. 36, sub-s. 1 provides that while Part V of the Act is in force and where the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment, the government may by order declare that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purposes of Part V of the Act. While the statute imposed upon the executive power the obligation to withdraw from the scheduled category any offence or classes of offence when it is satisfied that the effective administration of justice and the preservation of public peace and order can be secured through the medium of the ordinary courts, no such power was given to Dail Eireann to exercise a power similar to that already referred to in relation to the withdrawal or the annulment of the emergency proclaimed by the executive arm of government. No provision is made in the statute for a qualification of these offences by relating them to what the learned trial judge referred to as “subversive” situations or types of offences. Some support for the learned trial judge’s view in the matter might be thought to be found in s. 34 of the Act which provides for forfeitures and disqualifications of persons convicted by a Special Criminal Court of an offence which at the time of the conviction is a scheduled offence for the purpose of the Act. If a person is tried in the ordinary courts for such an offence even when Part V is in force, the forfeitures and disqualifications would not arise. Therefore it cannot be said that the possible forfeitures and disqualifications relate to the particular type of offence but depend solely upon the tribunal in which the conviction is secured. That would seem to suggest that the Oireachtas can only have in mind that the scheduled offences would be of the nature and character which the learned trial judge embraces in the phrase “subversive” types of offences. However, if it was to have been the intention of the Oireachtas that offences of a particular nature should upon conviction give rise to forfeitures and disqualifications it appears somewhat anomalous that they do not attach to convictions of the same offences in any other court. When a person is tried before the Special Criminal Court for a non-scheduled offence, the forfeiture and disqualification referred to does not apply. When a person charged with a scheduled offence is brought before the District Court, the District Justice if required by the Attorney General, and now by the Director of Public Prosecutions, shall send such person for trial by a Special Criminal Court on such charge, and the person is at once placed in jeopardy of the forfeitures and disqualifications already referred to. The situation is that effectively it is the Attorney General or the Director of Public Prosecutions who basically has the power to decide whether upon conviction of such offence disqualification and forfeiture shall be incurred because the question of whether the case is tried in the ordinary courts or in the Special Court is his decision. Effectively then it is his decision which determines whether or not a conviction will carry with it forfeiture or disqualification. While this would appear to create a most anomalous situation I do not think that it lends support to the thesis of the learned trial judge, although it may put in question the validity of s. 34 of the Act of 1939, which provides for such forfeitures and disqualifications. Incidentally, it is to be noted that this section is contained in Part IV of the Act which is part of the permanent legislation but is operative only when Part V is in force. Whatever may have been in the minds of the members of the Oireachtas when the legislation was passed, in so far as their intention can be deduced, as it must be, from the words of the statute, scheduled offences which are in the words of the learned trial judge “ordinary” offences are captured as well as the same type of offences being committed in what one might term “subversive” situations, bearing in mind that this situation exists only for so long as Part V is in force, which itself is dependent upon the continued existence in force of the proclamation of the executive arm of government and which remains fully within the control of Dail Eireann as distinct from the executive arm of government. Therefore the situation exists only for so long as Dail Eireann chooses to permit it to exist. While it does exist there is no alternative but to apply the law to what have been called “ordinary” offences, but it is the duty of the courts to be ever vigilant to see that there is no abuse of the process. Therefore in any case, of which there have been some examples in the past, where the powers given under s. 30 have been abused in respect of an “ordinary” scheduled offence, such as where the Garda Siochana are not in reality concerned with the scheduled offence but are using the power for some other purpose, then there is an abuse and the provisions of Article 40 of the Constitution can be invoked see the judgments of this Court in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550 and the judgment of the Chief Justice when President of the High Court in The State (Bowes) v. Fitzpatrick (Unreported, High Court, 1st November, 1978). In the present case, the learned trial judge was perfectly satisfied that in arresting the defendants in respect of the scheduled offence of malicious damage that the Gardai were acting bona fide and that they had a valid suspicion that each of the accused had committed a scheduled offence. Even though the scheduled offence in question faded into relative insignificance when compared with the homicide with which it was directly connected there was a genuine case of malicious damage. That means the judge has held that the motive for the arrest was not simply that of having an opportunity to ask questions about the murder, but that the arrest was a genuine one for malicious damage even though it would provide an occasion whereby questions could also be asked about the murder. Apart from the statutory obligation imposed on the accused to furnish their names and address under s. 30 and the power to put the questions authorised by s. 52 the Gardai had no other particular power to interrogate them which was any greater than the power they have to ask questions of persons in custody if the provisions of the Offences Against the State Act had never been invoked. It did however give the Gardai the advantage of having persons whom they wished to question in a position where such persons could not walk away from them. Apart from that factor, all the other safeguards envisaged by the law and already referred to were applicable and there has been no evidence that any of these safeguards were violated. Accordingly the arrest under s. 30 was lawful. The situation which resulted appears to be in all fours with that dealt with in the decision of the Court of Criminal Appeal in The People v. Towson (Unreported, 5th July, 1978).
Therefore, in the circumstances of the present case I am satisfied that the learned trial judge, who gave such deep thought to the many fundamental questions which arise from a consideration of the provisions of the Offences Against the State Act 1939, was in error in holding that a scheduled offence must be shown to be a “subversive” offence as distinct from an “ordinary” offence before the power of arrest given by s. 30 can be exercised in relation to that offence. I would therefore allow this appeal.

Croke v. Smith (No. 2)

[1998] IR 101

Hamilton C.J.
S.C.

There is a statutory and constitutional obligation on the resident medical superintendent and the Minister to discharge a person detained as a chargeable patient when he is satisfied that such patient has recovered.
In addition, it must be presumed that in the enactment of the Act and in particular s. 172 thereof and the provision therein providing for “discharge by proper authority”, that the Oireachtas was conscious of and had regard to the constitutional obligation on the courts to protect as best they may from unjust attack and in the case of injustice done, to vindicate the life, person, good name and property rights of every citizen, including in particular citizens suffering from mental disorders and to the jurisdiction of the President of the High Court in lunacy matters and that “discharge by proper authority” included a power by the court and the President of the High Court to order the discharge of a patient detained who had recovered or who has been otherwise unlawfully detained and consequently was being detained other than in accordance with the provisions of the Act.
Article 40.4 provides that:-
“1 No citizen shall be deprived of his personal liberty save in accordance with law.
2 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.”
In the course of his judgment in In Re The Midland Health Board, [1988] I.L.R.M. 251, Finlay C.J. stated at p. 258:-
“Though on my view of the case it does not arise for decision I feel I should express my view that on my understanding of the provisions of Article 40.4.2 of the Constitution the High Court, on the hearing of an application pursuant to that sub-article must reach a single decision, namely, whether the detention of the person concerned is or is not in accordance with law. If it is, then the application must be refused. If it is not, the person must be discharged from the custody in which he is. Such a procedure does not appear to me to admit of any supervision or monitoring of the interests of the person concerned, even allowing for a condition of mental retardation or other want of capacity.”
By virtue of the provisions of Article 40.4.2 of the Constitution, the complaint may be made to the High Court by or on behalf of a patient detained pursuant to the provisions of the Mental Treatment Act, 1945, as amended, alleging that he is being unlawfully detained and once such a complaint is made, the High Court is obliged to conduct an inquiry into the lawfulness of the applicant’s detention.
The onus is on the person in whose custody the applicant is to justify the detention and the High Court must be satisfied that such detention is in accordance with law before permitting the continued detention of the applicant.
Upon the hearing of the application the High Court must be satisfied that:-
(1) the person detained is a person of unsound mind and in need of care and treatment,
(2) that the procedures outlined in the Act have been complied with,
(3) the person detained has not recovered, and
(4) the person detained is not being unnecessarily deprived of his liberty.
Unless it is satisfied with regard to each of the foregoing, the High Court must order the discharge or release of the person detained.
In addition to the constitutional right of a patient to apply to the High Court pursuant to the provisions of Article 40 of the Constitution, s. 266 of the Act of 1945 provides that a letter addressed to, inter alia, the President of the High Court and the Registrar of Wards of Court shall be forwarded unopened.
This is an acknowledgement by the Oireachtas of the role of the President of the High Court in the exercise of the jurisdiction formerly exercised by the Lord Chancellor in lunacy matters.
This jurisdiction is very wide. In the course of his judgment in In re the Midland Health Board [1988] I.L.R.M. 251, Finlay C. J. at p. 257 quoted with approval the statement made by the Lord Chancellor in the course of his judgment in In Re Godfrey (1892) 29 L.R. IR. 278, where he stated:-
“The power given by the Queen’s sign-manual creates a high and reasonable duty in the Lord Chancellor towards these afflicted persons, calling on him to act on their behalf whenever it may come to his notice that their liberty or happiness require his intervention, and this beneficent jurisdiction is not confined to those so found by process of law, or narrowed to any special class. The power and duty so given and created afford in this case an illustration of the most salutary and protective exercise of the prerogative of the Sovereign.”
In this case, the Lord Chancellor made an order f reeing a person alleged to be of unsound mind from detention in an institution upon finding that she was no longer of unsound mind. The person had not at any time been a ward of court.
The President of the High Court upon receipt of a complaint from a person of unsound mind not only has jurisdiction but a duty to intervene on his or her behalf and cause an inquiry to be made into the lawfulness of such a person’s detention and to direct his or her release if he or she has recovered or is otherwise being unlawfully detained.
Power of detention
Whilst the powers of detention conferred by s. 172 of the Act on the persons named in subs. (2) of that section are extensive, the Court, in considering whether or not the provisions of s. 172 of the Act of 1945 are invalid having regard to the provisions of the Constitution, must have regard to:-
(a) the objectives of the Act and the other provisions thereof;
(b) the safeguards and other protections afforded by the Act; and
(c) the fact that
(i) the powers of detention therein contained relate only to persons in respect of whom a chargeable patient reception order has been made;
(ii) before a chargeable patient reception order can be made in respect of any person, the formalities mandated by ss. 163 and 171 of the Act must be complied with;
(iii) these sub-sections require that before a chargeable patient reception order may be made, an application for such an order must be made in accordance with the provisions of s. 163 of the Act which requires that a registered medical practitioner must examine the patient and certify that he is a person of unsound mind, is a proper person to be taken in charge and detained under care and treatment and an examination of the patient by the resident medical superintendent or other medical officer of the hospital acting on his behalf who before making an order must be satisfied as a result of such examination that the person is of unsound mind and is a proper person to be taken in charge of and detained under care and treatment;
(iv) such person may only be detained while he remains a person of unsound mind and in need of care and treatment;
(v) he or she may be discharged by “proper authority”;
(vi) such proper authority includes the resident medical superintendent of the institution in which the patient is being detained, the Minister for Health, the High Court upon an application in accordance with the provisions of Article 40.4.2 and the President of the High Court in the exercise of his jurisdiction in lunacy matters or by any other judge of the High Court designated by the President thereof to exercise such jurisdiction;
(vii) the resident medical superintendent is obliged by s. 218 of the Act to discharge a patient when he is satisfied that he has recovered and by virtue of the provisions of s. 220 of the Act is entitled to discharge the patient upon the application of any relative or friend of a person detained provided he is satisfied that the person detained will be properly taken care of;
(viii) in accordance with the provisions of s. 222 of the Act the Minister may, if he so thinks fit, by order direct the discharge of a person;
(ix) the powers and discretions given to the resident medical superintendent and the Minister in regard to the discharge of patients must be exercised in accordance with the principles of constitutional justice and are subject to review by the courts in the event of failure to so act.
Inspector of Mental Hospitals
Section 12 of the Act provides for the office of an Inspector of Mental Hospitals (“the inspector”).
The powers and duties of the inspector are set forth in Part XVIII of the Act of 1945.
The inspector is empowered by s. 235 to visit, whenever and so often as he thinks fit at any time during the day or night, any mental institution and may visit and examine any patient therein.
Section 237 of the Act of 1945, as amended by s. 33 of the Act of 1961, provides,inter alia, that:-
“When making a visit and inspection of a mental institution required by this Act, the Inspector of Mental Hospitals shall –
(a) see every patient –
(i) whom he has been requested to examine by the patient himself or by any other person or persons (including, in particular, the person in charge of the institution and in the case of a district mental hospital, the visiting committee), or
(ii) the propriety of whose detention he has reason to doubt,¦
(g) with respect to any patient the propriety of whose detention he doubts, notify the person in charge of the institution that he has doubts as to the propriety of such patient’s detention.”
Section 239 provides that:-
“(1) Where the Inspector of Mental Hospitals becomes of opinion that the propriety of the detention of a patient detained in a district mental hospital or other institution maintained by a mental hospital authority requires further consideration, he shall report the matter to the Minister.
(2) After consideration of a report under subsection (1) of thissection, the Minister may, if he so thinks fit, require the Inspector of Mental Hospitals to visit the patient to whom the report relates and to make a report on his mental condition to the Minister.
(3) After consideration of a report undersubbsection (2) of this section, the Minister may, if he so thinks fit, by order direct the discharge of the patient to whom the report relates and, if the Minister so directs, the patient shall be discharged accordingly.”
In addition, s. 241 provides that:-
“The President of the High Court may by order require and authorise the Inspector of Mental Hospitals to visit and examine any person detained at any place as a person of unsound mind and to report to the President of the High Court on the condition of such person.”
Section 266 of the Act of 1945, as amended by s. 36 of the Act of 1961, provides that:-
“Any letter addressed by a patient in a mental institution to the Minister, the President of the High Court, the Registrar of Wards of Court, a mental hospital authority, a visiting committee of a district mental hospital, or the Inspector of Mental Hospitals shall be forwarded unopened.”
By virtue of this section, a patient in a mental institution may by letter invoke the assistance of the bodies named in the said section, if he or she alleges that he or she is unlawfully detained.
It must be presumed that any complaint made to any of these authorities will be considered and appropriate action taken, if considered necessary.
It is submitted on behalf of the applicant that the safeguards outlined herein are inadequate and do not afford constitutional protection to a person being detained in a mental institution.
It is submitted that the protection afforded by ss. 218 and 220 do not adequately protect the rights of a person detained because the determination of the issue as to whether the patient has recovered rests on the medical superintendent.
It is further submitted that the safeguards contained in ss. 222, 237 and 239 are inadequate because the decisions in regard thereto are made by the Minister.

It was further submitted by the applicant that the right of a patient to send an unopened letter to the persons mentioned in s. 266 is inadequate because it does not help the illiterate, uneducated or inarticulate patient who may not be aware of his rights in this regard.
It was further submitted on behalf of the applicant that the Act of 1945 and in particular s. 172 thereof does not provide any mechanism whereby the legal and medical propriety of a patient’s continued detention or treatment is automatically reviewed by a court or an independent tribunal and that the nature of mental illness itself requires that there be a periodic automatic and independent assessment of the necessity for further detaining or treating a patient and that s. 172 of the Act was unconstitutional because there were no safeguards to protect the applicant against error or abuse in the operation of the section and that in the absence of such automatic review by a court or independent tribunal of decisions made by the resident medical superintendent and/or the Minister, the Oireachtas failed to respect and, as far as practicable, defend and vindicate the personal rights of the patient particularly his right to liberty.
In the exercise of the powers conferred on them by the Act, both the resident medical superintendent in the first instance and the Minister, in the circumstances outlined in the Act, are obliged to inquire into the mental health of the patient and the necessity for his or her detention under care and treatment.
The nature of this inquiry is not “a contest between the parties” and does not involve a dispute or controversy as to the existence of the legal rights or a violation of the law. It is simply an inquiry.
In the course of his judgment in Keady v. Commissioner of An Garda Síochána [1992] 2 I.R. 197, O’Flaherty J. stated at p. 212:-
“The arguments advanced on behalf of the plaintiff had two prongs. In the first place, it was submitted that the inquiry held constituted an administration of justice and this should be reserved solely for the courts; and secondly, it was said that the powers capable of being exercised by the inquiry could not be regarded as ‘limited functions and powers of a judicial nature’ as provided for in Article 37 of the Constitution. The main question that must be confronted, therefore, is: did the operation of the inquiry constitute an administration of justice?
In McDonald v. Bord na gCon (No. 2) [1965] I.R. 217 at p. 231 the learned High Court Judge, Kenny J., in a passage which was accepted by this Court on appeal, identified the following as the characteristic features of the administration of justice, viz.,
1. A dispute or controversy as to the existence of legal rights or a violation of the law;
2. The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
3. The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
4. The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;
5. The making of an order by the Court which as a matter of history is an order characteristic of Courts in this country.
In turn it is possible to isolate two essential ingredients from these characteristics and they are that there has to be a contest between parties together with the infliction of some form of liability or penalty on one of the parties. Here while undoubtedly there was the infliction of a penalty – and a severe one – the other essential ingredient is not present. This was not a contest between parties; it was, as its name says, an inquiry.
I conclude with the learned trial judge, therefore, that the inquiry under the Regulations of 1971 (incidentally no longer extant: see, now: Garda Síochána (Discipline) Regulations, 1989 (S.I. No. 94 of 1989) had to be conducted in a fair and just manner but that it did not involve either any trespass on the judicial domain or the exercise of judicial functions. It is right to emphasise, too, that the correct operation of domestic tribunals and inquiries such as the one here impugned has been delineated in many cases such as McDonald v. Bord na gCon (No. 2) [1965] I.R. 217; East Donegal Co-operative Livestock Mart Ltd. v. The Attorney General [1970] I.R. 317; In re Haughey [1971] I.R. 217; Kiely v. Minister for Social Welfare (No. 2) [1977] I.R. 267 and O’Keeffe v. An Bord Pleanβla [1992] I.L.R.M. 237.
This line of authority establishes that there is now in place a well charted system of administrative law which requires decision-makers to render justice in the cases brought before them and sets out the procedures that should be followed, which procedures will vary from case to case and from one type of tribunal to another and which, of course, are subject to judicial review. Similarly, the rules of evidence may not necessarily be applied with the same strictness as in a court of law provided that the decision-making body keeps in the forefront of its deliberations the necessity to come to a correct and just verdict having regard to the complaints that have to be investigated; the determination to be made and the consequences such determination may have for the other party or parties appearing before it.”
The Court is satisfied that, in exercising the powers conferred on them by the Act of 1945, the resident medical superintendent and the Minister are not engaged in the administration of justice and that no judicial intervention is necessary or required unless they or either of them fail to comply with the requirements of fair procedures and constitutional justice or fail to have regard to the constitutional right to liberty of the patient.
While it may be desirable that the necessity for the continued detention of the person, in respect of whom a chargeable patient reception order has been made, be subject to automatic review by an independent review board as provided for in the Mental Treatment Act, 1981, which has not, unfortunately, after fifteen years, been brought into force by the Minister, the failure to provide for such review in the Act has not been shown to render the provisions of the Act of 1945, and in particular s. 172 thereof, constitutionally flawed because of the safeguards contained in the Act, which have been outlined in the course of this judgment. If, however, it were to be shown in some future case, that there had been a systematic failure in the existing safeguards, and that the absence of such a system of automatic review was a factor in such failure, that might cause this Court to hold that a person affected by such failure was being deprived of his constitutional rights.
If they so fail, their decisions are subject to review by the High Court, whether by way of an application for judicial review or by way of a complaint made to the High Court in accordance with the provisions of Article 40.4.2 of the Constitution.
The Court is further satisfied that the detention of a patient does not require automatic review by an independent tribunal because of the obligation placed on a person in charge of a district mental hospital to discharge a patient who has recovered. Inherent in this section is the obligation placed on the resident medical superintendent to regularly and constantly review a patient in order to ensure that he or she has not recovered and is still a person of unsound mind and is a proper person to be detained under care and treatment. If such review is not regularly carried out, in accordance with fair procedures and rendering justice to the patient then the intervention of the court can be sought because of the obligation placed on the resident medical superintendent to exercise the powers conferred on him by the Act in accordance with the principles of constitutional justice. There is no suggestion that such a review is not carried out.
There is no doubt that the provisions of s. 172 of the Act empowers the persons, set forth in sub-s. (2) thereof, to deprive a person, in respect of whom a chargeable patient reception order has been made, of his liberty.
By virtue of the provisions of Article 40 of the Constitution, the State, however, in its enactments is obliged to have due regard to differences of capacity, physical and moral, and of social function.
The Mental Treatment Act, 1945, was, as stated in the preamble thereto, “An Act to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom . . .”
As stated by the Supreme Court in In re Philip Clarke [1950] I.R. 235, the legislation was “of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally”.
The purpose of s. 172 of the Act was to provide for the detention of persons of unsound mind and certified to be proper persons for detention under care and treatment.
The State, including the Oireachtas, is obliged by virtue of the provisions of Article 40.3.1 in its laws to respect, and as far as practicable by its laws to defend and vindicate the personal rights of the citizen but in its laws is entitled to have due regard to differences of capacity and the particular requirements of citizens, particularly those suffering from incapacity including mental disorders.
Do the provisions of s.172 of the Act, having regard to the citizen to whom it is applicable, constitute a failure by the Oireachtas to respect and, as far as practicable, defend and vindicate the personal rights of such citizens?
In view of the requirements set forth in ss. 163 and 171, which do not of themselves constitute an attack upon the personal rights of the citizen affected thereby or a failure to defend and vindicate such rights, the Court is satisfied that it has not been established that the provisions of s. 172 constitutes a failure by the Oireachtas to respect and, as far as practicable, to defend and vindicate the right of such citizens affected thereby.
In being so satisfied, the Court has had regard to the presumption of constitutionality which the Act is entitled to enjoy and in particular the presumption that the Oireachtas intended that the proceedings, procedures, discretions and adjudications by the resident medical superintendent, the Inspector of Mental Hospitals and the Minister permitted by the Act are to be conducted in accordance with the principles of constitutional justice and in particular with regard to the principle thereof that no person should be unnecessarily deprived of his liberty even for a short period.
This requirement places a heavy responsibility on these officers to ensure that no person detained pursuant to the provisions of s. 172 of the Act is detained for any period longer than is absolutely necessary for his proper care and treatment and that the safeguards provided for in the Act be stringently enforced. The necessity for the continued detention of a patient, to whom s. 172 of the Act applies must be regularly reviewed to ensure that he or she is not being unnecessarily detained.
Decisions made in this regard are not decisions made in the administration of justice but the decision makers are obliged to act in accordance with the principles of constitutional justice and to have regard to the constitutional right to liberty.
Consequently, the Court is satisfied that it has not been established that the provisions of s. 172 of the Mental Treatment Act, 1945, are invalid having regard to the provisions of the Constitution and will so answer the question referred to it by the High Court in accordance with the provisions of Article 40.4.3 of Bunreacht na hEireann .

 

McDonnell -v- Governor of Wheatfield Prison

[2015] IEHC 112
Cregan J
THE PRISON RULES MUST BE INTERPRETED IN A MANNER CONSISTENT WITH THE CONSTITUTION- THE TEST OF PROPORTIONALITY
72. In Holland v. Governor of Portlaoise Prison [2004] 2 IR 573 the High Court held that the prison rules must be construed and applied in a manner which respected and vindicated the constitutional rights of the prisoner and which upheld the principles of natural justice. The Court also held that any infringement or restriction in the exercise of the constitutional right of a prisoner must be not more than was necessary for the protection of the interest or objective which grounded the justification for such interference or restriction in the first place. The Court also held that a test of proportionality was applied when considering constitutional rights.
73. The issue in that case was that the applicant sought access to members of the media by way of correspondence and visits in the hope of encouraging them to investigate what he alleged was a miscarriage of justice. The respondent refused to permit any such communication. In considering this issue McKechnie J. stated at page 594 of his Judgment:

“Given that the right in issue [in this case] was constitutionally based, [it can, I think, be taken that] any permissible abolition, even for a limited period, or any interference, restriction or modification on that right should be strictly construed with the onus of proof being on he who asserted any such curtailment… In addition, the limitation should be no more than what is necessary or essential and must be proportionate to the lawful objective which it is designed to achieve. That a test of proportionality, where relevant, is now applied when considering constitutional rights is beyond doubt. In Heaney v. Ireland [1994] 3 I.R. 593 at page 6 or 7 Costello J. describes this principle as follows:

‘In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights… Therefore, in my opinion, it is quite appropriate to consider in this case whether the aforesaid policy of the policy of the Prison Service and the operation of rr. 59 and 63, as these have been applied to the applicant are proportionate to the objectives of the respondent, namely the maintenance of security and good order.” (Emphasis added).
74. Later in his judgment McKechnie J. in assessing the balance to be struck on the interference with prisoners rights stated as follows (at page 600):
“6. the interference on restriction:-

(i) Must be rationally connected to the said objective and must not be arbitrary, unfair or based on irrational considerations
(ii) Must be necessary or essential in order to achieve the legitimate aim to which it is addressed;

(iii) Must be not more extensive than the minimum required to achieve its intended aim, and

(iv) Must otherwise be proportionate to that objective.” (Emphasis added).

75. In Devoy v. Governor of Portlaoise Prison [2009] IEHC 288 Edwards J., in an extensive review of the authorities, on the application of constitutional rights to prisoners stated as follows at page 83:
“However, in applying the Prison Rules the Governor must apply them in a manner which is respectful of and intended to vindicate the constitutional rights of the prisoner to the extent that they are not abrogated or suspended by the very fact of his being sentenced to a term of imprisonment. Among the residual constitutional rights of a prisoner which are not abrogated or suspended is the right to be treated humanely and with human dignity. The Prison Rules recognise this and indeed Rule 75 (2) (iii) requires the Governor “to conduct himself or herself and perform his or her functions in such a manner as to respect the dignity and human rights of all prisoners.”(Emphasis added).

IS THERE A BREACH OF THE APPLICANT’S CONSTITUTIONAL RIGHTS?
76. Given that the applicant has a constitutional right to bodily integrity and psychological integrity, the next issue which arises is whether there has been a breach of these constitutional rights, as a result of the actions of the Respondent. In assessing this issue, I have had regard to recent decisions of the High Court set out below.
77. In Devoy Edwards J. stated:

“That said, there is no question but that we have moved on from the days of routine solitary confinement and the types of regimes described so vividly by the leading penologist Michael Ignatieff in his book entitled “A Just Measure of Pain – The Penitentiary in the Industrial Revolution 1750 – 1850”. Because man is a social animal the Court recognises that the humane treatment, and respect for the human dignity, of a prisoner requires that he or she should not be totally or substantially deprived of the society of fellow humans for anything other than relatively brief and clearly defined periods. To that extent a prisoner, such as the applicant, may be entitled to a degree of freedom of association as an aspect of his constitutional right to humane treatment and human dignity. The Prison Rules expressly recognise this. The combined effect of Rules 27 and 62 is to reflect what Counsel for the respondents fairly described as a “presumption” in favour of a prisoner being allowed to have a degree of association subject to the good order of the prison.
Moreover, even in the absence of specific expert evidence on the question, it is easy to appreciate as a matter of common sense that total or substantial isolation from the society of one’s fellow man, may over time amount to a form of sensory deprivation and be inhumane and abusive of the prisoner’s psychological welfare and constitute a breach of his right to bodily integrity. Again recognition of this is reflected in the Prisons Act 2007, and the Prison Rules. Although the disciplinary provisions of the code allow (inter alia) for solitary confinement as a penalty for breach of discipline such a penalty can only be applied “for a period not exceeding 3 days”. Moreover, among the penalties expressly outlawed are penalties consisting of any form of sensory deprivation, penalties of indeterminate duration and penalties which amount to cruel, inhumane or degrading treatment.”

78. In Kinsella v. The Governor of Mountjoy Prison [2012] 1 I.R. 467 Hogan J. (in refusing an application for habeas corpus under Article 40.4 of the Constitution) held that the State was obliged pursuant to Article 40.3.2 of the Constitution not merely to protect the integrity of the human body of a citizen but also the integrity of their mind and personality.
79. In that case the applicant was serving a prison sentence for theft while awaiting trial on an indictment for murder. However concerns for the applicant’s safety, coupled with a shortage of single cells in the prison resulted in the applicant being detained in a small padded cell for eleven days. Having been confined in this cell for eleven days the applicant applied for his release pursuant to Article 40.4.2 of the Constitution contending that his detention had become unlawful by reason of the prison conditions which he was required to endure.

80. In that case Hogan J. held

(1) That the State was obliged pursuant to Article 40.3.2 of the Constitution not merely to protect the integrity of the human body of a citizen but also the integrity of their mind and personality.
(2) That although the detention of the applicant in an observation cell for such a continuous period amounted to a breach of his constitutional rights it could not be said that the breach was so serious as to vitiate the lawfulness of his detention.

(3) That the release of sentenced prisoners pursuant to Article 40.4.2 could only be ordered in exceptional cases.

81. In the course of his judgment Hogan J. stated the following (at para. 8 of his judgment):
“8. So far as the present application is concerned, it is the State’s duty to protect and vindicate the person of the applicant which is principally engaged here, although I do not overlook the fact that the applicant’s present conditions of confinement also arise, in part, at least, from the State’s duty to protect his right to life and, perhaps, the life of other persons as well. Yet it is undeniable that detention in a padded cell of this kind involves a form of sensory deprivation in that the prisoner is denied the opportunity of any meaningful interaction with his human faculties of sight, sound and speech – an interaction that is vital if the integrity of the human personality is to be maintained. I use the term “a form of sensory deprivation” advisedly, because it is only fair to say that confinement in such conditions as the applicant has had to experience is none the less very far removed from the “five techniques” of sensory deprivation – such as intentionally subjecting the prisoner to constant “white” noise, sleep deprivation and the hooding of prisoners – condemned by the European Court of Human Rights in Ireland v. The United Kingdom (App. No. 5310/71) (1979-80) 2 E.H.R.R. 25 as inhuman and degrading treatment and hence a breach of Article 3 of the European Convention on Human Rights 1950.
9. By solemnly committing the State to protecting the person, Article 40.3.2 of the Constitution of Ireland 1937 protects not simply the integrity of the human body, but also the integrity of the human mind and personality. Counsel for the respondent observed in argument that no expert evidence had been led by the applicant with regard to the psychological harm which he might suffer. That is true, but it must be recalled that this application is one which of necessity was made as a matter of considerable urgency so that the possibility of commissioning such an expert report, within the short time period, was probably not a realistic possibility. Moreover, one does not need to be a psychologist to envisage the mental anguish which would be entailed by a more or less permanent lockup under such conditions for an eleven day period. Nor, for that matter, does one need to be a psychiatrist to recognise that extended detention over weeks under such conditions could expose the prisoner to the risk of psychiatric disturbance.

10. While making all due allowances for the exigencies of prison life and the difficult and unenviable task of the Prison Service in making complex arrangements for a wide variety of different prisoners with different needs and who often must be protected from one another, it is nonetheless impossible to avoid the conclusion that a situation where a prisoner has been detained continuously in a padded cell with merely a mattress and a cardboard box, for eleven days compromises the essence and substance of this constitutional guarantee, irrespective of the crimes he has committed or the offences with which he is charged. This is not to suggest that such a cell might never be used. Clearly somewhat different considerations may well arise in the case of disturbed prisoners or where other prisoners need to be accommodated on a temporary emergency basis for perhaps a day or two. But detention in such conditions for well over a week fails to meet the minimum standards of confinement presupposed by the constitutional guarantee in relation to the protection of the person contained in Article 40.3.2 of the Constitution of Ireland, 1937. I accordingly find that the conditions under which the Applicant has been detained constitute a violation of his constitutional right to the protection of the person and that the State has failed to vindicate that right in the manner required by Article 40.3.2 of the Constitution.”

82. Moreover, in Connolly v. the Governor of Wheatfield Prison [2013] IEHC 334 the High Court (Hogan J.) considered the question of whether the detention of the applicant under conditions of what amounted to solitary confinement for all but one hour in the course of a day (for a period of two and a half months) was such a manifest contravention of the State’s duty to protect the person under Article 40.3.2 of the Constitution such as would entitle him to immediate release under a habeas corpus application.
83. In that case the applicant was serving a sentence of seven years imprisonment (with the final two years suspended) following his conviction in June 2010 for causing serious harm and of offences of assault causing harm. The sentences were back- dated to March 2010 in order to take into account time spent in custody. As of the date of judgment (16th July 2013) the applicant was scheduled for release in December 2013. On 24th September, 2011, while detained in Mountjoy Prison the applicant maintained he was the victim of a violent rape by a cell mate. In addition the attacker then slashed the applicant with a knife and warned him against making any complaint in respect of it. Hogan J. noted that, although the DPP decided not to press charges in respect of the incident, there was no suggestion at all that the event did not occur in the manner described by the applicant and the Court therefore proceeded on the basis that the applicant was raped in the manner alleged. Following the incident, the applicant was transferred to Wheatfield Prison in February 2012. However, because his own personal experiences made him wary of sharing a cell, he was moved to a single occupancy cell at the end of April 2013. The applicant sought protection from the general prison population as he feared he would be subjected to homophobic victimisation. The respondent prison governor took the view that his safety was not threatened if he were placed within the general prison community. However, at his own request, Mr. Connolly was detained in a 23 hour lockup regime pursuant to r.63 of the Prison Rules 2007.

84. Therefore in the Connolly case the applicant was in a 23 hour lockup or solitary confinement at his own request because of his own personal concerns for his own safety. This distinguishes that case from the present case where the applicant in the present case is subject to a s.63 lockup against his wishes and based on the view of the Governor that he is a vulnerable prisoner. Moreover in Connolly, the applicant was only in solitary confinement for a period of two and a half months as opposed to eleven months in the present case.

85. In his judgment Hogan J. considered the Article 40.3.2 and the protection of the person and stated as follows:

“13. It is against this general background that the question of whether Mr. Connolly’s entitlement to the protection of the person in Article 40.3.2 of the Constitution has been violated and must be assessed. Article 40.3.2 obliges the State by its laws: ‘to protect as best it may from unjust attack and, in the case of injustice done, to vindicate the life, person, good name and property rights of every citizen.’
14. Here it must also be recalled that the Preamble to the Constitution seeks to ensure that ‘the dignity and freedom of the individual may be assured.’ While prisoners in the position of Mr. Connolly have lost their freedom following a trial and sentence in due course of law, they are still entitled to be treated by the State in a manner by which their essential dignity as human beings may be assured. The obligation to ensure that the dignity of the individual is maintained and the guarantees in respect of the protection of the person upheld is, perhaps, even more acute in the case of those who are vulnerable, marginalised and stigmatised.

15. While due and realistic recognition must accordingly be accorded by the judicial branch to the difficulties inherent in the running of a complex prison system and the detention of individuals, many of whom are difficult and even dangerous, for its part the judicial branch must nevertheless exercise a supervisory function to ensure that the essence of these core constitutional values and rights – the dignity of the individual and the protection of the person – are not compromised: See Creighton v. Ireland [2010] IESC 50 per Fennelly J.

16. The obligation to treat all with dignity appropriate to the human condition is not dispensed with simply because those who claim that the essence of their human dignity has been compromised happen to be prisoners. That, in essence, is the basis for the decision of Barrington J. in The State (Richardson) v. Governor of Mountjoy Prison [1980] ILRM 82 where the judge found that the presence of human excrement in the basin in which prisoners were expected to wash and clean their teeth. Barrington J. found that the applicants ‘rights under the Constitution and the law had been violated’. This would, I think, now be classified as a case where the substance of the applicant’s right to the protection of the person in Article 40.3.2 had been violated certainly as read in conjunction [with] the Preamble’s guarantees in respect of the protection of the dignity of the individual. What could be more undignified- indeed, degrading- than the obligation to wash in the presence of human excrement?

17. For even though prisoners may have strayed from the path of righteousness and even though – as with the case of Mr. Connolly – they may have severely and wantonly injured other persons, the protection of the dignity of all is still a vital constitutional desideratum. This is because the Constitution commits the State to the protection of these standards since it presupposes the existence of a civilised and humane society, committed to democracy and the rule of law and the safeguarding of fundamental rights. Anyone who doubts these fundamental precepts need only look at the preamble, Article 5, Article 15, Article 34, Article 38 and the Fundamental Rights provisions generally.

18. All of us are, of course sadly aware of the great failures of the past and the present where these rights seemed and seem like hollow platitudes. But this is not quite the point, since it is by upholding these values and rights that we can all aspire to the better realisation of the promise which these noble provisions of the Constitution hold out for us as a society.

86. Under the heading “Application of the Kinsella principle to the present case” Hogan J. stated as follows in para. 20 of his judgment:
“Can the same be said here? The conditions under which the applicant is held are not perfect but they are of course immeasurably better than those disclosed in Kinsella. In this particular context, the essence of the obligation in Article 40.3.2 to protect the person is to ensure that the integrity of the personality of every detained person is upheld. As I observed in Kinsella, this in turn means that every detained person must be permitted some meaningful interaction with his human faculties of sight, sound and speech, as such an interaction is vital if the integrity of the human personality is to be maintained. The presence of a television in the cell and access to reading material helps to ensure that the detained person has regular interaction with his faculties of sight and sound, even if the risk of psychological anguish and psychiatric disturbance must undoubtedly increase if prisoners are held under such conditions over a very long period of time.”
87. Hogan J. went on to say as follows (at para. 22:)
“22. Yet the locking up of prisoners under such circumstances for very long periods of time – which I would rather measure in terms of an extended period of months – must be regarded as an exceptional measure, which might in some instances, at least, compromise the substance of the detainee’s right to the protection of the person and the safeguarding of his human dignity. Certainly, the indefinite detention of a prisoner under such circumstances for periods of years would undoubtedly violate the guarantee to protect the person in Article 40.3.2, since it would be hard to see how the integrity of the detainee’s personality – the very essence of the guarantee of the protection of the person and preservation of the human dignity of the prisoner – could be preserved under such circumstances. (Emphasis added).
23. In view of the acute difficulties involved in prison management, the judicial branch can but rarely be prescriptive in terms of specific conditions of prison conditions, not least given that this is ultimately the responsibility of the Executive branch. In these circumstances, it would be generally inappropriate to lay down any ex ante rules regarding solitary confinement. In this regard, the supervisory function which the Constitution ascribes to the courts must therefore often be confined, in the first instance, to prompting, guiding and warning the Executive branch lest these precious values of human dignity (in the Preamble) and the protection of the person (in Article 40.3.2) might inadvertently be jeopardised in any given case. Even as in cases such as Richardson and Kinsella, where a specific finding of constitutional violation is called for, absent compelling circumstances, it will generally be appropriate as an initial step to give the Executive branch (and, by extension, the Prison Service) an opportunity to remedy this breach in early course. (Emphasis added).

24. In these circumstances, it is sufficient to say that the placing of prisoners in solitary confinement (or, as here, something approaching solitary confinement) must generally be regarded as an exceptional measure which requires monitoring and regular review by the prison authorities. As illustrated by Kinsella, complete sensory deprivation – such as, has happened in that case, by placing the prisoner in a padded cell with no access to any facilities whatsoever or to any natural light – will generally be held to compromise the essence of the prisoner’s Article 40.3.2 rights if this were to continue beyond a matter of days. (Emphasis Added).

25. As we have already noted, the applicant’s own personal conditions are immeasurably better than those of the applicant in Kinsella. In that respect, he has not suffered anything like the almost complete sensory deprivation which was a feature of the latter case. It is also clear that Mr. Connolly’s case is kept under regular review and that the prison authorities are anxious that he would leave the prison’s restricted regime and re-enter the general prison population. It is also clear from the extensive clinical notes that the professional psychologists attached to the various prisons have shown him considerable care and attention and seem totally devoted to his welfare.”

88. Hogan J. concluded that it could not “presently” be said that the circumstances of Mr. Connolly’s detention violated the substance of the guarantees of Article 40.3.2 to protect the person yet he noted that if Mr. Connolly’s detention under these conditions were to continue indefinitely for an extended period of months with no sign of variation the point might very well come when the substance of these constitutional guarantees would quickly be compromised and violated.
89. The respondent sought to rely on Foy v. Governor of Cloverhill [2010] IEHC 529 where the Court dealt with family rights in the context of screened visits. Charleton J. stated as follows “the fact of imprisonment, of necessity, curtails the exercise of the rights guaranteed to the family under Article 41 of the Constitution. One of the entitlements of a married couple is to beget children. Imprisonment, however, undermines that right, since conjugal visits are not provided for in the Prison Rules, and since the passage of time will lead to aging and increased infertility. Nonetheless this restriction, or even destruction, of a fundamental family right can be lawful within the context of a harmonious interpretation of the Constitution;” (Murray v. Ireland [1985] I.R. 532).

90. However in my view that decision deals with an entirely different point and is not intended to deal with issues such as arise in the present case.

91. The respondents also place some reliance on another decision of Charleton J. – Walsh v. Governor of the Midlands Prison [2012] IEHC 229 in which Charleton J. warned that continual review by the courts of the ordinary day to day decision of prison authorities carries a significant danger. Whilst I accept that this is so, nevertheless the Courts must be vigilant in ensuring that the constitutional rights of prisoners are not infringed or if they have to be infringed that they are only infringed in a necessary and proportionate manner.

92. It is of course a commendable fact that the respondent is acting to protect the physical health and safety of the applicant by holding him under r.63. However where a prison governor seeks to protect the physical health of a prisoner he cannot then subject that prisoner to a regime of solitary confinement which could significantly affect his mental health. It is clear – based on the evidence, based on international experience and based on common sense – that where a prisoner is kept in solitary confinement for a protracted period of time – and in particular in this case over 11 months – that there is a real and substantial risk that his mental health will be seriously affected. Indeed counsel for the applicant submitted that although the applicant had not reached a psychotic stage as yet, there was a grave risk that he would do so.

93. Fundamentally a prisoner who has committed certain crimes and is therefore imprisoned has many of his constitutional rights of necessity reduced. However his right to humane treatment within a prison must always be regarded as an important constitutional right which is not abrogated by the fact that he is a prisoner. The right to humane treatment is of necessity one which will depend on the facts of each case. Clearly however the fact that a prisoner can be detained in solitary confinement for over a period of almost a year cannot be regarded as humane treatment.
Conclusion
94. Thus in Kinsella, the applicant was subjected to solitary confinement for a period of eleven days in a padded cell and the Court held that such treatment was a violation of his constitutional rights; in Connolly the applicant was imprisoned in solitary confinement for a period of two and a half months (in cell conditions which were much better than those in Kinsella and also at his own request for his own protection) and the Court held said that such measures were to be “exceptional” and were to be regularly monitored and reviewed. In the present case the applicant has been in solitary confinement for a period of over eleven months by direction of the prison authorities and not at his own request.

95. In my view, keeping the applicant in conditions of solitary confinement for a period of over eleven months is clearly a breach of his constitutional right to bodily and psychological integrity. It is also a breach of his constitutional right to humane treatment. It follows inexorably from the decisions in Kinsella and Connollly. Indeed given the express statements by Hogan J., it is difficult to see on what basis the respondent has sought to justify detaining the applicant in solitary confinement for a period of over eleven months. It is clear that the longer a person is held in solitary confinement against his will – (even for his own protection) the greater the risk of damage being caused. This is such a clear and sustained violation of the applicant’s constitutional rights that it requires a clear and sustained response by the prison authorities to adopt a more proportionate response, to improve his situation and to take immediate steps to allow the applicant access to more social interaction with other prisoners (if only on his own landing), to partake in structured activities, to have access to a gym and to have regular access to the psychological services in the prison.

96. I accordingly find that the conditions under which the applicant has been detained constitute a violation of his constitutional rights and that the State has failed to vindicate that right in the manner required in Article 40.3.2 of the Constitution.
IS THE BREACH OF CONSTITUTIONAL RIGHTS LAWFUL?

(I) The end- date of Regulation 63 directives
97. Regulation 63 (3) (e), of the prison rules provides that “the Governor shall make and keep in the manner prescribed by the Director General a record of any direction given under this rule and in particular

(e) the date and time when the separation ceases.”
98. In the present case, the Regulation 63 direction, under which the applicant is currently detained in solitary confinement, does not state the date and time when the separation ceases. On that ground alone therefore the current direction fails to comply with the statutory instrument and is therefore unlawful on its face.
99. The respondent sought to argue that this was a mere technical breach. However in my view this submission is unfounded, particularly on the facts of the present case. The applicant has been detained in solitary confinement for almost a year. This has simply been renewed every three or four weeks and on every occasion (except one), the date and time when the separation was due to end has not been recorded on the Regulation 63 direction. If there is no end date, the Regulation 63 direction is a direction that the prisoner be kept in solitary confinement indefinitely – without being informed when that period of solitary confinement ceases. That is a substantive, not a technical breach. It is absolutely essential – particularly when a prisoner is being kept in solitary confinement against his will, that the date on which that r.63 direction ceases is stated clearly on the face of the direction.

100. Counsel for the respondent referred to various cases where he submitted that the breaches were mere technical breaches. However in my view those cases are entirely different to the factual circumstances under review in this case. (See De Roiste v Minister for Defence [2001] 1 IR 190, In Re Stephen Hunter [1989] NIJB 86, Rock v Governor of Arbour Hill [Unreported Kearns P, 6th February 2015]). I would therefore conclude that the breaches are not technical but substantive and on that ground alone the current r.63 direction is unlawful.

101. The previous r.63 directions under which the applicant has been kept separate from other prisoners have also been exhibited with the affidavit evidence. I have reviewed each of them. As counsel for the Irish Human Rights and Equality Commission submitted in her legal submission, almost every direction under which the applicant has been detained in solitary confinement fails to note on the face of the direction the date and time when the separation ceases. They also were therefore unlawful on their face.
(II) Involvement of the Governor
102. A second issue which has arisen in this case is that under r.63 a prisoner may only be kept separate from other prisoners who are reasonably likely to cause significant harm to him either at his own request “or when the Governor considers it necessary”. Likewise it is clear from r. 63 (2) that a prisoner may participate with other prisoners of the same category if the Governor considers that such participation is reasonably likely to be beneficial and such activity shall be supervised in such manner as the Governor directs. Likewise r. 63 (2) provides that the Governor shall make and keep in the manner prescribed by the Director General a record of any direction given under this rule.

103. However there is nothing in any of the affidavit evidence before the Court which establishes that the Governor of Wheatfield Prison has addressed his mind to any of the r.63 directions which were made in the case of this prisoner. The affidavits in this matter are all sworn by the assistant governor; all the r.63 directions are signed by another official in the prison. I would therefore find on the evidence that in relation to the current r. 63 direction, there is no evidence that the Governor has made a decision that he considers it necessary that a prisoner should be kept separate from other prisoners. On that basis also I find that the current direction under r.63 is unlawful.

104. However both of the above defects can clearly be remedied by the making of a fresh r.63 direction in which the Governor himself makes the direction and the date and time on which the separation ceases is stated on the face of the order. These proceedings however are addressed to a much more fundamental issue – namely whether it is constitutionally permissible or proportionate that the applicant should be kept in solitary confinement for a period of eleven months for his own protection.
IS THE BREACH OF CONSTITUTIONAL RIGHTS NECESSARY AND/ OR PROPORTIONATE?
105. It is clear from the above review of the authorities that any infringement of a prisoner’s constitutional rights must be necessary and proportionate. (See Holland, Heavey, Devoy).

106. In the light of the affidavit evidence and legal submissions filed before the court I am of the view that the actions of the respondent in keeping the applicant in what amounts to solitary confinement for a period of eleven months are not only an infringement of his constitutional rights to bodily and psychological integrity but are also entirely disproportionate to the perceived risk to the applicant. I say this for a number of reasons:

(1) R.63 provides that a Governor may, where he considers it necessary, keep a prisoner separate from other prisoners “who are reasonably likely to cause significant harm to him”. This does not permit the Governor to keep a prisoner separate from all other prisoners even those who are not likely to cause harm to the applicant. To remove a prisoner from the general prison population for his own protection is reasonable; to prevent him from associating with all prisoners on his own landing and in his own wing (where there is no evidence they are likely to cause harm to him) is utterly disproportionate to the objective- i.e. to keep the prisoner safe.
(2) Moreover it is also not proportionate to refuse the prisoner access to a reasonable amount of participation with other prisoners of the same category in authorised structured activity that the applicant may wish to attend. It appears that the respondent has denied the applicant reasonable access to authorised structured activity with other prisoners. This is also disproportionate to the objective, i.e. the protection of the applicant.

(3) Sections 11 to 16 of the Prisons Act 2007 set out the statutory sections dealing with prison discipline. S.13 of the Act sets out the sanctions available to a governor for breach of prison discipline. Section 13 (1) (c ) provides that one of the sanctions is “confinement in a cell…for a period not exceeding three days”. Moreover s.13 (7) expressly provides that the following sanctions for breach of a prison discipline are prohibited

“(j) a sanction of indeterminate duration;”
Thus it is clear that the Oireachtas clearly intended that solitary confinement could only be used as a sanction for breach of prison discipline and then only for a finite period and indeed for only a period of three days.

A fortiori, the Legislature could not have intended that the prison authorities could impose a regime of solitary confinement on any prisoner for a period in excess of eleven months where he has committed no breach of prison rules. Such a regime is utterly disproportionate to the statutory scheme envisaged and indeed utterly disproportionate to the objective being sought namely to protect the prisoner from certain other prisoners who might harm him.

(4) There is a duty on the prison authorities to protect the health of prisoners. In circumstances where there is a positive duty on the State to take appropriate steps to protect the health of a prisoner, then it follows that the prison authorities should not take any steps which would have the effect of harming the health of a prisoner – even if it is for his own protection. Whilst there might be exceptional circumstances in which the prison authorities may have to confine a prisoner to solitary confinement for his own protection, that must be limited to extreme cases and every effort must be made at the first available opportunity to improve the prisoners situation in this regard.
Whether r.63 includes a provision for review
107. One of the issues which arose in this case is whether r.63 requires that the governor should monitor and review such r.63 directions at regular intervals. In this regard the applicant submitted that r.62 contains an express review provision at r.62 (4). However the applicant submitted that the absence of any express provision relating to a review in r.63 does not automatically relieve a Governor of the duty to review such a direction.

108. In my view such a submission is correct for the following reasons

(1) Regulation 63 (3) (e) provides that the Governor shall make and keep a record of any direction given under this rule and in particular the date and time when the separation ceases. The fact that it is a specific statutory requirement that the cessation date of a direction is required when making a direction order means such directions must be of a limited duration. Thus when the direction expires it automatically becomes subject to a review.
(2) When a r.63 direction is made (and in particular when that results in a prisoner being kept in solitary confinement for a significant period of time e.g. three or four weeks) then in my view such a solitary confinement becomes a “prolonged solitary confinement”. In order to ensure the proper protection of a prisoner’s constitutional rights there would need to be a review when a prisoner moves from a situation of solitary confinement to one of “prolonged solitary confinement”. The question of when a prolonged solitary confinement might arise may depend on the circumstances of the case. However in my view a period of three or four weeks would certainly constitute prolonged solitary confinement.

(3) As is stated in Killeen v. Governor of Portlaoise Prison [2014] IEHC 77 Hedigan J. noted (at para. 6.9) that r.62 did not expressly provide for a review where the director general exercised his powers to segregate a prisoner but he held that the rules

“must be read in a constitutional manner and therefore it seems to me that some form of review analogous to that provided by r.62(4) must be read into r.62(9) so as to render lawful any authorisation given thereunder. It seems to me that the director general ought to review any removal ordered under this rule at least once every three months or upon request by the prisoner or his legal advisers providing such requests are not made vexatiously. Such review ought to be carefully recorded and should comply mutatis mutandis with the provisions set out in r.62 (6), (7) and (8). The director general should give the prisoner or his legal advisors the opportunity to consider the grounds advanced for further removal prior to authorising any continuation of their removal. The prisoner or his legal advisor should be notified promptly by the director general of his decision together with the reasons therefore. Full, detailed records of this process should be accurately kept so as to assist the court in any further application in considering the lawfulness of continuing segregation.”

The European Convention on Human Rights
109. In the present case, counsel for the applicant has not sought to argue that the continued solitary confinement of the applicant amounts to torture, or cruel, inhuman, or degrading treatment. In my view counsel was correct to do so. It is clear that the motivation of the prison authorities is to seek to protect the prisoner from coming to further harm in the prison. Therefore the only question which arises is whether keeping the applicant in solitary confinement continuously is a necessary and/or a proportionate response to the threat to his safety.
110. I have considered the submissions and the case law relied on by the applicant in relation to the cases of the European Court of Human Rights in respect of Article 3 of the European Convention of Human Rights. However, in the light of my conclusions in relation to the breach of his Irish constitutional rights, and in the light of the substantial overlap between the jurisprudence of the Irish courts and the European Court of Human Rights, I do not believe it is necessary for me to elaborate on this further.
Correspondence with solicitors
111. In addition the applicant has also sought an order of mandamus compelling the respondent to furnish the information sought in his solicitor’s correspondence. Whilst I accept that the applicant’s solicitors complain about the failure of the respondent to reply at all or to reply in a proper and full manner to their correspondence, nevertheless I am of the view that many of the issues which they raised in their correspondence have now been dealt with in replying affidavits and in legal submissions before the court.

112. I also note the applicant’s solicitors complaint that at a time when they were corresponding with the respondent the respondent made a number of additional r.63 orders without informing the applicants solicitors in advance of these new orders and giving the applicant an opportunity to made meaningful submissions in respect of them.

113. There is considerable merit in the applicant’s complaints in this regard and it is important to note that where there are solicitors corresponding with the prison authorities, it is important that the prison authorities respond to such correspondence as best they can and on the basis of their own legal advice. In this regard I note the words of Hedigan J. in Killeen in which he noted at para. 6.9 of his decision

“The director general should give the prisoner or his legal advisers the opportunity to consider the grounds advanced for further removal prior to authorising any continuation of their removal. The prisoner or his legal adviser should be notified promptly by the director general of his decision together with the reasons therefore.”

CONCLUSIONS
114. I would therefore conclude as follows:
(1) The applicant has been convicted of murder and he has been given a mandatory life sentence (although he has appealed this conviction and he is currently awaiting his appeal to the Court of Appeal.) However as a prisoner he nevertheless retains certain constitutional rights. (See State (Richardson) v. Governor of Mountjoy Prison).
(2) Among these rights is the right to bodily integrity (Ryan v. The Attorney General; State (C) v. Frawley) and indeed the right to psychological and/or mental integrity (Kinsella v. Governor of Mountjoy Prison; Connolly v. Governor of Wheatfield Prison).

(3) The applicant has been detained for at least eleven months – but almost certainly longer – in solitary confinement. (Although the regime is described as “22 or 23 hour lockup” it is to all intents and purposes solitary confinement.)

(4) The applicant has been detained in solitary confinement pursuant to an r.63 direction made by the governor of the prison because there is a credible threat to the safety of the applicant according to the governor. However the applicant does not accept that there is such a threat to his person and it is the case that he has been detained in solitary confinement against his will. He has not requested it.

(5) The Prison Rules must be interpreted and applied in a manner consistent with the Constitution and the constitutional rights of prisoners. Moreover any infringement or restriction of such constitutional rights must be proportionate. (see Holland v. Governor of Portlaoise Prison; Heaney v. Ireland).

(6) It is a strict requirement of regulation 63 (3) (e) that the end date for such directions be stated on their face. In almost every r.63 direction made in respect of the applicant in this case, stretching back over a period of eleven months, no such end- date has been stated on any of the directions (with one exception). On that ground alone the r.63 directions are unlawful on their face. Thus the latest r.63 direction dated 14th January, 2015 has no end date and on that ground alone it is unlawful on its face.

(7) Moreover r.63 requires that the Governor of the prison must make such a direction. There is no evidence before the Court that the Governor in this case has made such a direction. On that basis alone also the current r.63 direction is unlawful.

(8) The fact that the applicant has been kept in solitary confinement for a period of eleven months is a clear and sustained violation of his constitutional right to bodily and psychological integrity.

(9) It is clear beyond doubt that if these conditions were to continue there is a real and substantial risk to the mental and psychological health of the applicant. Indeed there is evidence before the court that the applicant’s psychological and mental health is beginning to suffer.

(10) It is also a principle of constitutional interpretation that any steps taken to infringe the constitutional rights of persons must be proportionate to the objective being pursued by the person seeking to infringe such a right. See Holland; Devoy; Killeen.

(11) The r.63 directions are justified by the governor on the basis of the applicant’s own protection. Whilst I accept that this may be the intention, the keeping of a prisoner in solitary confinement for over eleven months is wholly disproportionate to the risk to the applicant. There are many other steps which could be taken to protect the applicant from harm whilst at the same time not keeping him in solitary confinement.

(12) Under the Prison Rules no prisoner can be punished with solitary confinement for more than three days by the governor. In this case the prisoner has been kept in solitary confinement for a period of over eleven months against his will – not as a punishment – but ostensibly for his own protection. In my view such treatment of the prisoner whilst not intended to be a punishment quite clearly has an effect similar to a punishment. It is a de facto punishment if not a de jure one.

(13) Whilst I am acutely conscious of the difficulties which arise in running a prison, the courts must be vigilant to ensure that the constitutional rights of all prisoners are protected. Prisoners are citizens of the Republic, and after making due allowances for the necessary infringement of their constitutional rights, (which must follow because of the crimes which they have committed,) they are nevertheless entitled to the full protection of the constitutional rights which remain to them.

(14) It is clear from the international perspective, the European perspective and the Irish constitutional perspective, that solitary confinement can cause significant mental and psychological harm to prisoners. It is only to be used in exceptional circumstances and then – most critically – for a limited period of time. Indeed the UN study describes solitary confinement in excess of fifteen days as “prolonged solitary confinement”. Whilst one could take issue with a period of fifteen days and whilst it is impossible at this point to lay down precise periods, I would have thought that any period of solitary confinement longer than three or four weeks is certainly “prolonged solitary confinement”. After this period of time there should be an intensive review of such cases and more intensive management of such prisoners to ensure that such conditions can come to an end at the earliest possible time.

(15) In the circumstances I would conclude

(1) That the applicant has a constitutional right to bodily and psychological integrity.
(2) That there has been a breach of these constitutional rights.

(3) That such a breach is unlawful and neither necessary nor proportionate to the perceived threat to his person.

A.B. -v- The Clinical Director of St. Loman’s Hospital & Ors

Neutral Citation:
[2018] IECA 123
Court of Appeal
Peart J., Hogan J., Gilligan J.
Judgment by:
Hogan J.The decision of Binchy J. on the Article 40.4.2 issue
75. It is perhaps convenient to consider next how Binchy J. dealt with this particular point. He noted (at paras. 131 and 132 of the judgment) that the scope of any inquiry under Article 40.4.2 was limited to that identified by Denham C.J. in Ryan v Governor of Midlands Prison [2014] IESC 54 at paragraph 18 as follows:

“18. Thus the general principle of law is that if an order of a Court does not show an invalidity on its face, in particular if it is an order in relation to post conviction detention, then the route of the constitutional and immediate remedy of habeas corpus is not appropriate. An appropriate remedy may be an appeal, or an application for leave to seek judicial review. In such circumstances the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction, a fundamental denial of justice, or a fundamental flaw.”
76. Binchy J. recalled that the European Court of Human Rights had found in the cases of X v United Kingdom (1982) 4 E.H.R.R. 188 and H.L. v United Kingdom (2005) 40 E.H.R.R. 32 that the review of a patient’s involuntary detention conducted under English law in habeas corpus proceedings was insufficient for the purposes of Article 5(4) ECHR because it was not wide enough to bear on those conditions which were essential for the lawful detention of a person on the basis of unsoundness of mind since it did not allow a determination of the merits of the question as to whether the mental disorder persisted.
77. Binchy J. then stated that (at para. 135) that it was “difficult to see how an application made under Article 40 of the Constitution is in any way materially different to the habeas corpus procedure under discussion in both H.L. v. United Kingdom and X. v. United Kingdom particularly having regard to the decision of the Supreme Court in Ryan which in this context appears to be consistent with the sentiments of the ECtHR as to the scope of a habeas corpus application.”

78. This reasoning was vigorously challenged by the respondents. It was first submitted that Binchy J. erred in applying the Supreme Court’s remarks in Ryan v Governor of Midlands Prison [2014] IESC 54 to the issues in this case without due regard for (a) the orders of detention at issue in Ryan and (b) the Supreme Court’s ruling in Croke v Smith (No 2) [1998] 1 IR 101. It was also submitted that Binchy J. erred in treating the scope of Article 40.4.2 as necessarily being the same as the common law habeas corpus regime as obtains in England and Wales. These submissions can now be considered in reverse order.
Whether the procedure provided for by Article 40.4.2 is simply equivalent to the habeas corpus regime as it operates in England and Wales
79. There is no doubt but that the Article 40.4.2 procedure has deep roots in the common law of habeas corpus. At the same time, however, it must be recognised that because the drafters incorporated a particular version of habeas corpus into the Constitution of the Irish Free State of 1922 and again in 1937 with the Constitution and yet again in 1941 with the changes effected by the Second Amendment of the Constitution Act 1941, Article 40.4.2 has, to some extent, slipped its common law moorings.

80. Thus, for example, the very language of Article 40.4.2 confirms that the procedure is, in at least some respects, inquisitorial and not adversarial. The Court is under a particular duty to inquire “forthwith” into the complaint and the right to go from judge to judge following the refusal of an ex parte application is also preserved (see Joyce v. Governor of the Dóchas Centre [2012] 2 I.R. 666). The Court also enjoys the far-reaching power – which, of course, is entirely foreign to the purely common law powers of habeas corpus – to declare the law by which the detainee is held to be unconstitutional, although in those circumstances with an obligation to state a case on the constitutionality of the law to this Court: see Article 40.4.3.

81. While these and other differences between the common law of habeas corpus and the version now contained in Article 40.4.2 are somewhat greater than perhaps Binchy J. allowed, it does not necessarily follow that he was also in error regarding the scope of review provided for by Article 40.4.2 in cases of involuntary detention of patients under the 2001 Act. It is to that issue to which we must now turn.
The scope of Article 40.4.2 in mental health cases
82. In Ryan the issue before the Supreme Court was whether a particular prisoner was entitled to claim enhanced remission of his sentence by virtue of the Prison Rules by reason of the fact that he attended certain educational courses while in prison. He claimed that the prison authorities had erred in failing to give him this credit and that if they had had done so, he would have been entitled to be released.

83. The Supreme Court found, therefore, that there was no defect on the face of the order and following its earlier judgment in FX a few months earlier, held that Article 40.4.2 was not the appropriate remedy for the issue of remission. The respondents stress, however, that the judgment in Ryan was expressly concerned with the applicability of Article 40.4.2 to “an order of a Court”. At a point a little earlier in her judgment in Ryan Denham C.J. had said:

“13. The Court follows and applies the statement of law given in FX v Clinical Director of the Central Mental Hospital [2014] IESC 1, where it was stated at paragraphs 65 and 66:-
‘65. In general, if there is an order of any court, which does not show an invalidity on its face, then the correct approach is to seek the remedy of appeal and, if necessary, apply for priority. Or, if it is a court of local jurisdiction, then an application for judicial review may be the appropriate route to take. In such circumstances, where an order of the court does not show any invalidity on its face, the route of the constitutional and immediate remedy of habeas corpus is not the appropriate approach.
66. An order of the High Court which is good on its face should not be subject to an inquiry under Article 40.4.2 unless there has been some fundamental denial of justice. In principle the appropriate remedy is an appeal to an appellate court, with, if necessary, an application for priority. Thus, the remedy under Article 40.4.2 may arise where there is a fundamental denial of justice, or a fundamental flaw, such as arose in The State (O.) v. O’Brien [1973] I.R. 50, where a juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court.’” (emphasis supplied)

84. The respondents accordingly submitted that Ryan could not be relied on as an exhaustive statement of the scope of an inquiry under Article 40.4.2 in the case of a person detained under the Act. Their contention was that the more relevant starting point was the Supreme Court decision in Croke v Smith (No 2) [1998] 1 I.R. 101. The decision in Croke concerned an application for an inquiry pursuant to Article 40.4.2 as to the lawfulness of the applicant’s detention in the Central Mental Hospital. The High Court (Budd J.), being satisfied that the applicant’s detention was in accordance with the provisions of the Mental Treatment Act 1945, and, in particular, s. 172 thereof, but that such law was invalid, having regard to the provisions of the Constitution, referred to the Supreme Court by way of case stated, pursuant to Article 40.4.3, the question of the constitutionality of that sub-section. (Prior to the 33rd Amendment of the Constitution Act 2013 and the establishment of this Court, Article 40.4.3 provided that the case-stated proceeded from the High Court to the Supreme Court.)

85. In Croke Hamilton CJ squarely addressed head-on the jurisdiction of the High Court under Article 40.4.2 as follows to review a detention under the Mental Treatment Act 1945, saying ([1998] 1 I.R. 101, 114):

“Though the decision made by the registered medical practitioner to make a recommendation for a reception order may, and the decision of the medical superintendent to make a chargeable patient reception order will, result in the deprivation of the liberty of the person to whom they relate, such decisions cannot be regarded as part of the administration of justice but are decisions entrusted to them by the Oireachtas in its role of providing treatment for those in need, caring for society and its citizens, particularly those suffering from disability, and the protection of the common good. These decisions can only be made when it is established that the person to whom they relate is a person of unsound mind and is a proper person to be taken in charge and detained under care and treatment. These decisions can be set aside in the appropriate circumstances by the court upon an application for judicial review or upon complaint made to the High Court in accordance with Article 40.4.2 of the Constitution but this does not mean that the decisions are part of the administration of justice.” (emphasis added)
86. Hamilton C.J. then added ([1998] 1 I.R. 101, 124):
“By virtue of the provisions of Article 40.4.2 of the Constitution, the complaint may be made to the High Court by or on behalf of a patient detained pursuant to the provisions of the Mental Treatment Act 1945, as amended, alleging that he is being unlawfully detained and once such a complaint is made, the High Court is obliged to conduct an inquiry into the lawfulness of the applicant’s detention. The onus is on the person in whose custody the applicant is to justify the detention and the High Court must be satisfied that such detention is in accordance with law before permitting the continued detention of the applicant. Upon the hearing of the application the High Court must be satisfied that:-

(1) the person detained is a person of unsound mind and in need of care and treatment,
(2) that the procedures outlined in the Act have been complied with,

(3) the person detained has not recovered, and

(4) the person detained is not being unnecessarily deprived of his liberty.

Unless it is satisfied with regard to each of the foregoing, the High Court must order the discharge or release of the person detained.” (emphasis supplied)
87. The Supreme Court – reversing the High Court – accordingly upheld the constitutionality of the section, precisely because it held that the detained patient could seek an independent medical review of the merits of his case in the course of an Article 40.4.2 application. This finding as to the scope of the Article 40.4.2 is clearly part of the ratio of the decision.
88. This aspect of the judgment in Croke was applied by Clarke J, with express reference to the requirements of Article 5(4) ECHR (which requires such an express review at regular intervals), in L.K. v Naas General Hospital [2007] 2 I.R. 465,469:

“… it seems to me to be clear that one of the avenues that is open to a detained person is to seek to invoke the jurisdiction of this court under Article 40.4.2, and that is what the applicant has sought to do in this case. Therefore, it would seem to be the case that where there is not, as there is not here, any procedural dispute as to compliance with the statutory requirements of the Act, the law may be briefly stated to be the following, where a person seeks an inquiry under Article 40.4.2 and alleges that they ought not be detained the onus is on the custodian of the person to show that the detainee remains as of the date of the inquiry, in need of care by virtue of being of unsound mind such that deprivation of liberty is necessitated. That is, in effect, a composite of the three non-procedural tests set out at items 1, 3 and 4. It also seems to me that a detainee must, as a consequence of that entitlement, be entitled to a reasonable opportunity to deal, at the hearing of the inquiry, with each of the components of the test.” (emphasis supplied)
89. Clarke J. then continued ([2007] 2 I.R. 465, 482):
“I should add that an issue arose as to the scope of the substantive hearing which should be afforded a party on foot of an inquiry under Article 40.4.2 seeking to question the validity of that person’s detention under the Acts. It was agreed by both counsel, and I agree, that the passages from the judgment of Hamilton C.J. in Croke v. Smith (No. 2) [1998] 1 I.R. 101 are clear authority for the proposition that such an inquiry includes a substantive inquiry into whether the mental health and other circumstances of the applicant concerned justifies their detention. In those circumstances an inquiry under Article 40.4.2 in relation to a person detained under the provisions of the Acts may well be more extensive than a normal inquiry under the jurisdiction exercised under that Article. In ordinary circumstances the court is concerned with whether the formal requirements for custody (including fair process requirements) have been complied with. The court is not normally concerned with the substance of the reason for custody in the first place. It is, however, clear from Croke v. Smith (No. 2) [1998] 1 I.R. 101 that this court is required, on a hearing such as this, to consider the substantive merits of the detention. It may well be that such an extended jurisdiction was considered necessary in order to ensure that there were appropriate constitutional safeguards. In the same context, in this case, argument was advanced on behalf of the applicant as to her entitlements under Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 which provides that: ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’ It is clear from the jurisprudence of the European Court of Human Rights in cases such as X. v. United Kingdom (1981) 4 E.H.R.R. 188 and Winterwerp v. The Netherlands (1979) 2 E.H.R.R. 387 that a person such as the applicant is entitled to early and, indeed, regular, access to a body which carries on its business in a manner similar to a court (though not necessarily a court in the full sense of that term, as it would be used in Irish constitutional jurisprudence) for the purposes of contesting the validity of their detention. It is, however, clear that the type of inquiry identified in Croke v. Smith (No. 2) [1998] 1 I.R. 101 arising under Article 40.4.2 goes even further than the requirements necessary to satisfy Article 5(4) of the Convention. As indicated in the course of this judgment I have, in fact, conducted a substantive inquiry and have had evidence both from the Lakeview Unit and from the psychiatrist nominated on behalf of the applicant. For the reasons indicated I was satisfied on that evidence that the applicant’s continued detention was warranted. There could not, therefore, be any question of the applicant having been denied access to a court so as to satisfy Article 5(4) of the Convention.” (emphasis supplied)

90. As counsel for the HSE, Mr. Finlay S.C., stressed, the judgment of Clarke J was concerned with a detention under the Mental Treatment Act 1945 as the 2001 Act had not then come into force and it only did so in November 2006 a few months after the judgment in L.K. Clarke J addressed this potential development at the end of his judgment as follows:

“Finally I should add that the somewhat extensive jurisdiction to review, identified in Croke v. Smith (No. 2) [1998] 1 I.R. 101 seems to me to be necessitated by the requirements of the Constitution and might well also have arisen by virtue of the necessity of compliance, where possible, with the Convention. However it does not necessarily follow that that extensive jurisdiction would be required in the event that the full provisions of the Mental Health Act 2001 concerning mental health tribunals are implemented. In those circumstances the question remains open as to whether it would be necessary, or indeed appropriate, for the court to entertain a full substantive review on foot of an inquiry under Article 40.4.2. That is an issue which may need to be addressed if and when the relevant provisions of the Act of 2001 are commenced.”
91. It has to be said, however, that these comments of Clarke J. in L.K. were, in strictness, purely obiter because it was ultimately not in dispute that the applicant was suffering from a mental condition which required involuntary detention: see [2007] 2 I.R. 465, 475.
92. In perfect fairness to the trial judge in the present case it should, however, be acknowledged that the decision in L.K. was not opened to him. In a further Supreme Court decision which post-dated the present judgment under appeal, Child and Family Agency v McG [2017] IESC 9, [2017] 1 I.R. 1, 43 Charleton J. commented thus on the scope of review available under Article 40.4.2:-

“Once habeas corpus is properly available, everything in the decided cases indicates the widest amplitude of the remedy in the Constitution. The High Court in Gallagher v Director of the Central Mental Hospital (No 2) [1996] 3 I.R. 1 at 6 was surely correct that Article 40.4 implies the ‘widest possible powers to be conferred on the judge … conducting the enquiry’ since that echoes the statements of Ó Dálaigh C.J. in Application of Woods [1970] I.R. 154 at 162 that a judge must examine any ground that might render detention unlawful and of Kingsmill Moore J. in The State (Hully) v Hynes (1966) 100 I.L.T.R. 145 at 163 that in habeas corpus a ‘very wide field of enquiry is open to the court’. The High Court can follow any procedures which admit of a correct result and is not bound by adversarial rules as it is the judge himself or herself who is mandated to conduct the enquiry.”
93. The respondents point to this case-law and urge that this provides support for the view that the nature of the High Court’s jurisdiction under Article 40.4.2 is not uniform, but rather is, if necessary, context dependent so as to ensure that the constitutional rights of a detained person can be vindicated effectively in the different types of cases and contexts which may arise. They also drew attention to the judgment of Kingsmill Moore J. in The State (Hully) v Hynes (1966) 100 I.L.T.R. 145, 163 (and, in particular, the underlined passages) when he said that:
“a very wide field of enquiry is open to the court on an application for habeas corpus and when the detention is by an act of the executive, the court can enquire into all of the circumstances. It is concerned not only to see that the documents are in correct form: it can investigate whether the necessary conditions exist to justify the execution of such documents, and can enquire whether the necessary conditions exist to justify the execution of such documents, and can enquire whether they have been executed by mistake or whether their execution has been procured by fraud.” (emphasis supplied)
94. It seems to me that the essential issue here is whether the decision in Croke regarding the scope of review in Article 40.4.2 applications brought by involuntary patients is still good law. In the first place I have to say that, as I read the judgments in both Ryan and FX, what appears to be critical as a starting point for this purpose is whether the order providing for the detention of the applicant in question is good on its face. While it is true that reference is made in FX to any order of any court, nothing really turns for this purpose on the fact that the order in question was made by a court as distinct, say, from an administrative body – such as a Mental Health Tribunal – exercising statutory powers providing for the detention of the applicant: there is no suggestion in either of these judgments that the very provenance of these orders is in some fashion significant.
95. This was the very point made by MacMenamin J. in S.McG. v. Child and Family Agency [2017] IESC 9, [2017] 1 I.R. 1, 21:

“It is right to say that both judgments [in FX and Ryan] deprecate the use of the Article 40 in circumstances other that where there is a defect on the face of the order which goes to jurisdiction. But there is an exception to this rule, that is, where there has been some fundamental ‘denial of justice’ (as Denham C.J. points out in Ryan v. Governor of Cloverhill Prison….”
96. The exception to this rule is, of course, reflected in the right of the High Court to go behind the warrant for detention. This issue arose in one of the very first Article 40.4.2 applications to have arisen in the wake of FX, namely, Cirpaci v. Governor of Mountjoy Prison [2014] IEHC 76, [2014] 2 I.R. 471. In that case the applicant had been convicted of theft in the District Court and sentenced to a period of six months imprisonment. It transpired, however, that the District Court had never informed the applicant of his statutory right to elect for jury trial in respect of this charge and the applicant then sought his release pursuant to Article 40.4.2. The State authorities argued, however, that since the District Court conviction was good on its face, his only remedy was to have gone by way of an application for judicial review to quash the conviction.
97. In my judgment in the High Court I rejected the State’s argument, saying the text, history and tradition of Article 40.4.2 was such and the Court’s right to go behind a warrant of imprisonment otherwise good on its face was so entrenched that certain passages in FX which had been relied on by the respondents could not be taken to have ousted that wider jurisdiction ([2014] 2 I.R. 471, 482):

“It follows, therefore, from a consideration of this case-law that the Article 40.4.2 jurisdiction remains a broad and flexible one. It is, however, not as confined as the respondents suggest. It is rather the case that Article 40.4.2 shines as a beacon of liberty which will never deny refuge to an applicant who can show a fundamental breach of constitutional rights or the existence of some other significant defect attaching to the warrant or order providing for his or her detention. It is for these reasons that I accordingly reject the interpretation of FX which counsel for the respondent has so ably urged on this Court.”
98. It is accordingly clear that the High Court could direct the release of an involuntary patient by way of an Article 40.4.2 application not only where the order in question was good on its face, but also where there had been a fundamental breach of constitutional rights or the existence of some other material defect in the process leading to the making of the detention order in question. But even no matter how brightly the beacon of liberty has heretofore shined to vindicate the constitutional rights of Article 40.4.2 applicants, an adjudication upon the purely medical merits of the detention of an involuntary patient under the 2001 Act seems to lie just outside the arc of that spotlight of review.
99. This seems to be correct both as a matter of theory and practice. It is true in theory because the right to go behind the warrant has always been confined to those cases of a breach of fundamental rights or other fundamental defect in the making of the order providing for the detention: this has been the law in cases ranging from the classic (and much quoted) judgments of Kingsmill Moore J. in The State (Hully) v. Hynes and that of Henchy J. in The State (Royle) v. Kelly [1974] I.R. 259 on the one hand to modern decisions such as FX, Cirpaci, Ryan and SMcG on the other.

100. This seems to be also true as a matter of practice because although the existence of such a jurisdiction was confirmed in Croke as part of the ratio of that decision and acknowledged by Clarke J. by way of obiter remarks in L.K., there appears to be no instance of where the High Court has in fact ever exercised this power to release an involuntary patient detained – whether pursuant to the Mental Treatment Act 1945 or under the 2001 Act – on the purely medical merits of that applicant’s case. It would have also have to be acknowledged that the exercise of any such power of review in Article 40.4.2 (i.e., a full review of the medical merits of the applicant’s case) would be likely to present considerable practical and other problems which is why, perhaps, no such power of review appears ever to have been undertaken by the High Court, although such was admittedly in view, at least, in L.K.

101. This was also the view expressed by Barrett J. in M. v Clinical Director of the Department of Psychiatry, University Hospital Limerick [2016] IEHC 25 where he pointed to the attenuated power of review articulated in FX and in Ryan, although as the respondents stressed, there was no discussion of this point in that judgment and no mention was made of either Croke v Smith (No. 2) or of L.K..

102. This Court accordingly finds itself in the somewhat unhappy position of being required to choose between diverging ratios of two separate strains of Supreme Court authority, namely, Croke on the one hand and FX, Ryan and SMcG on the other. It is true that Croke has never been overruled and that it squarely addresses the scope of review in the case of Article 40.4.2 applications brought by involuntary patients in a way that none of the recent authorities do. On the other hand, it is difficult to avoid the fact that (i) there is now a trilogy of decisions from FX onwards which have consistently rejected a full merits review in Article 40 applications; (ii) these decisions are more recent than Croke and (iii) the Croke doctrine has never actually been applied in practice.

103. Obliged as we are to choose, I feel that for these latter reasons this Court must follow the FX line of authority and hold that the jurisdiction of the High Court in Article 40 applications is confined to ensuring that the admission or renewal order is valid on its face and that there was no violation of constitutional rights or other serious legal error in the making of the order.
The conclusions regarding the scope of review in Article 40 applications
104. It is undeniable that this conclusion has serious consequences for the constitutionality of a key part of the 2001 Act, because it means that there is no effective procedure whereby an involuntary patient detained for the longer periods of time up to twelve months envisaged in s. 15(3) of the 2001 Act can seek a review of his or her detention within a reasonable time. It was not, I think, seriously disputed by any of the parties that such a state of affairs would be unconstitutional, although, of course, the respondents defended the present appeal on the basis that there was such an effective procedure.

105. One way or another, once the Court has arrived at the conclusion which it has regarding the scope of review in Article 40 applications, then a finding of unconstitutionality in respect of s. 15(3) was more or less inevitable, since in these circumstances it is plain that the State has clearly failed in its duty to vindicate the right to personal liberty as best it may by failing to provide for an effective opportunity whereby the involuntary patient detained for this period of time can have his or her detention independently reviewed within a reasonable time after the expiration of the other safeguards contained in the 2001 Act and, specifically, the conclusions of the s. 19 appeal. The patient in these circumstances might have the renewal order for, say, twelve months affirmed and lose an appeal to the Circuit Court and yet subsequently recover from his mental disorder well before the remainder of the renewal order expired. All of this amounts to a breach of Article 40.4.1 when read in conjunction with Article 40.3.1 and Article 40.3.2.

106. It is true that the applicant has not in terms sought a declaration to this effect in his grounding statement, since the declarations of unconstitutionality sought related rather to even more fundamental provisions of the 2001 Act, namely, s.3(1) and s. 18. At the same time, however, this precise issue (namely, the absence of any effective means of independent review for patients in longer term involuntary detention and its general implications for the constitutionality of the 2001 Act regime) was squarely before both the High Court and this Court and, indeed, was the subject of the declaration of incompatibility granted by the former Court. In these circumstances, I consider that no prejudice at all would be caused to the respondents if the grounding statement was now to be formally amended in order to allow the applicant to claim this more specific and confined relief.

107. It follows, therefore, that in these circumstances s. 15(3) of the 2001 Act must therefore be adjudged to be unconstitutional.
The nature of the finding of unconstitutionality and its consequences
108. I recognise that such a finding of constitutionality will have very serious implications for the operation of the 2001 Act and the mental health regime generally. It is therefore necessary to ensure that this finding of unconstitutionality is suspended for a period of time for reasons I will presently explain. But it is first necessary to say something more about the nature of the finding of unconstitutionality. Section 15(3) has been adjudged to be unconstitutional because of the fact that, unlike the companion provisions of s. 15(1) and s. 15(2), there is no mechanism – whether by virtue of the 2001 Act or otherwise – whereby the patient can seek an independent review of his mental health status within a reasonable time. The constitutional objection, therefore, is not as such to the fact that the renewal orders in question have lasted for six months or even twelve months. It is rather that the renewal order may be renewed for these periods of time without the necessary safeguard of the possibility of an independent review within a timely period.
Whether the finding of unconstitutionality should be suspended
109. It is clear from the decision of O’Donnell J. in NHV v. Minister for Justice [2017] IESC 40, [2017] 1 I.L.R.M. 69 that a finding of unconstitutionality may be suspended. It is unnecessary here to dwell on the full range of circumstances in which this suspensive power might be exercised, save to observe that this is a case which clearly calls out for this approach. Any other conclusion would have potentially catastrophic consequences within the mental health system, since the legal basis for the detention of many vulnerable patients would otherwise simply collapse. At the resumed hearing on the 28th April 2018 the solicitor for the Mental Health Commission, Ms. Kane, stated in an affidavit that as of that date they were approximately 78 patients who were the subject of such long-term orders in institutions in the State other than the Central Mental Health Commission. The Court was then informed orally by counsel for the Commission, Mr. McDermott S.C., that as of the same date there were some 15 patients in the Central Mental Hospital who were currently also the subject of such orders. In the light of this information helpfully supplied by the Commission it is clear that a total of some 95 patients would be affected.

110. If these patients (or any of them) were suddenly released by a judicial pronouncement of the unconstitutionality of this key sub-section of the 2001 Act, this would be likely to have unfortunate consequences for their personal welfare and might well, in some circumstances at least, to pose a possible risk to the lives and safety of others.

111. The lesson of NHV is that the judiciary should not have to watch on helplessly as a finding of unconstitutionality leads on with remorseless logic to invalidate and unravel a large variety of administrative decisions, often in a chaotic and disruptive fashion and with possibly unforeseen consequences for third parties. If that were indeed the law, then there would then be a grave danger that in the words of Geoghegan J. in A. v. Governor of Mountjoy Prison [2006] IESC 45, [2006] 4 I.R. 99 that “judges considering the constitutionality or otherwise of enactments would be consciously or unconsciously affected by the consequences.”

112. If post-NHV the immediate aftershocks of a finding of unconstitutionality can be confined and controlled by a suspension of that declaration, the Court is nonetheless obliged to afford the applicant a real remedy by providing that in due course the unconstitutional law will stand annulled. So it is here. This finding of unconstitutionality in respect of s. 15(3) of the 2001 Act demands an immediate and imperative response on the part of the other branches of government, namely, the Oireachtas and the Government so that fresh legislation which will cure the unconstitutionality identified in this judgment can quickly be enacted within the window of opportunity now afforded by the suspension of the declaration.

113. In these circumstances, I would propose that this declaration of unconstitutionality in respect of s. 15(3) of the 2001 Act should stand suspended for a period of six months until the 8th November 2018when the finding of unconstitutionality will take effect without further order. In these circumstances it is unnecessary to consider the alternative arguments based on the European Convention of Human Rights which found favour with Binchy J. in the High Court.
Conclusions
114. It remains only to summarise my principal conclusions.

115. First, Binchy J.’s finding that the applicant lacked standing to advance the present constitutional challenge cannot be sustained, as Mr. B. clearly fulfils the requisite Cahill v. Sutton criteria. For all the reasons canvassed elsewhere in this judgment, I would propose to follow the pragmatic approach outlined by the Supreme Court in cases such as McGowan and proceed to determine the merits of the constitutional challenge, the absence of a High Court determination of this issue notwithstanding.

116. Second, in the light of the reasoning of the Supreme Court in the recent trilogy of cases (FX, Ryan and SMcG.), it must be concluded that in Article 40.4.2 proceedings the High Court does not have jurisdiction to rule on the medical merits of the application, the comments to the contrary in Croke v. Smith notwithstanding.

117. Third, the effect of that conclusion is that an involuntary patient detained under s. 15(3) for a period of up to twelve months does not have an effective means of vindicating his right to personal liberty by securing an independent review of that detention following the making of the renewal order and the conclusion of any s. 19 appeal to the Circuit Court. It is accordingly plain that the State has clearly failed in its duty to vindicate the right to personal liberty as best it may by failing to provide for an effective opportunity whereby the involuntary patient detained for this period of time can have his or her detention independently reviewed within a reasonable time. The patient in these circumstances might have the renewal order for, say, six months affirmed and lose an appeal to the Circuit Court and yet subsequently recover from his mental disorder well before the remainder of the renewal order expired. All of this amounts to a breach of Article 40.4.1 when read in conjunction with Article 40.3.1 and Article 40.3.2. It follows, therefore, that the sub-section empowering this involuntary detention without the necessary attendant safeguards, namely, s. 15(3) of the 2001 Act, must be adjudged to be unconstitutional.

118. Fourth, it is unnecessary here to dwell on the full range of circumstances in which this power to suspend a declaration of unconstitutionality recognised in NHV might be exercised, save to observe that this is a case which clearly calls out for this approach. Any other conclusion would have potentially chaotic and catastrophic consequences within the mental health system, since the legal basis for the detention of many vulnerable patients would otherwise simply collapse. If they were suddenly released by a judicial pronouncement of the unconstitutionality of this key sub-section of the 2001 Act, this would be likely to have unfortunate consequences for their personal welfare and it would be likely to pose a real risk to the lives and safety of others.

119. Fifth, this finding of unconstitutionality in respect of s. 15(3) of the 2001 Act quite obviously demands an immediate and imperative response on the part of the other branches of government, namely, the Oireachtas and the Government so that fresh legislation which will cure the unconstitutionality identified in this judgment can quickly be enacted within the window of opportunity now afforded by the suspension of the declaration of unconstitutionality.

120. Sixth, in these circumstances, I would propose that this declaration of unconstitutionality in respect of s. 15(3) of the 2001 Act should stand suspended until the 8th November 2018 when the finding of unconstitutionality will take effect without further order.

121. Seventh, in these circumstances it is unnecessary to consider the alternative arguments based on the European Convention of Human Rights which found favour with Binchy J. in the High Court.

122. I would also hear counsel as to the terms of any final order which this Court might make.

 

DPP v. Bradley

High Court, December 9, 1999
D.P.P. (McTiernan) v. Bradley [1999] IEHC 54; [2000] 1 IR 420 (9th December, 1999)
JUDGMENT of Mr. Justice McGuinness delivered the 9th day of December 1999.

This is a Consultative Case Stated pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act, 1961 by Judge Desmond Hogan of the District Court. The learned Judge sets out the facts of the case as follows:-

“1. At the sitting of the Dublin Metropolitan District Court held at Court No. 46 the Bridewell, Chancery Lane, in the City of Dublin on the 19th December 1997, the Accused herein appeared before me on Finglas Charge Sheet 95 of 1997 which said Charge Sheet alleged that the Accused on the 23rd day of October 1997 assaulted one,Garda Des McTiernan (the Prosecutor herein) contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997.

2. At the said hearing the Accused was represented by Catherine Staines, Solicitor in the office of Michael J. Staines and Company Solicitors. Garda Des McTiernan, the Prosecutor on that date, represented himself. Garda Des McTiernan was the only witness called by the Prosecution at the trial of the alleged offence.

3. Garda McTiernan gave evidence that as a result of a call he received while on mobile patrol at approximately 12.30 a.m. on the 23rd October 1997 in the Finglas West area he went to Cappagh Road. He said that he saw the Accused at the gateway to No. 370 Cappagh Road.Garda McTiernan stated that he made an effort to speak to the Accused about complaints of noise that had been made. The garda then stated that the Accused became very abusive and eventually threatened Garda McTiernan with a cavity block. Garda McTiernan said that fearing for his own safety and those with him he left the situation as it was. Garda McTiernan also gave evidence that he came back to 370 Cappagh Road a short time later on the same night with garda assistance. The Accused was still very abusive and Garda McTiernan again withdrew. Garda McTiernan said that on the 29th October 1997 he arrested the Accused for the offence of assault contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997. The Accused was then charged and brought before the District Court.

4. At the conclusion of the prosecution case, Catherine Staines, Solicitor for the Accused, submitted that there was no power of arrest for an offence contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997. Catherine Staines further submitted that as the arrest was unlawful there had been an infringement of her client’s constitutional rights and that the Court should protect such rights. The prosecution submitted that the Criminal Law Act, 1997 granted a general power of arrest. It was argued by Ms Staines on behalf of the Accused that Section 4 of the Criminal Law Act, 1997 only permitted arrest without warrant for an offence for which a person may be punished by imprisonment for a term of 5 years or more. Section 2(1)(b) does not carry such a penalty. I then directed that the case be put back for further legal submissions.

5. The case came before me for further legal argument on the 23rd day of January 1998 and the 24th day of February 1998. At that time the Director of Public Prosecutions was represented by Mr. Mulholland, Solicitor. The Defendant was represented by Ms Bambury. The prosecution accepted the argument made by Ms Bambury that the provisions of the Criminal Law Act, 1997 did not grant power of arrest for an offence under Section 2 of the Non Fatal Offences Against the Person Act, 1997. Mr. Mulholland for the Prosecutor then submitted that the question of whether there was a lawful arrest was immaterial to the hearing before me. The prosecution relied upon the decision of the Supreme Court inThe Director of Public Prosecutions v. Michael Delaney (O’Flaherty J. nem diss) 27th November 1997. It was submitted that the said case was authority for the proposition that unless the validity of the arrest is an essential ingredient in proving the charges brought, then the nature of the arrest is irrelevant to what the District Judge must decide. In reply, Ms Bambury for the Accused said the District Judge had an obligation under the Constitution to vindicate the constitutional rights of an accused person and that the accused person had to appear before the Court in accordance withdue process of law. Ms Bambury relied upon the High Court decision of Mrs Justice Denham in the case of Coughlan v. Patwell [1992] ILRM 808. It was submitted that the latter case was authority for the proposition that where an accused person alleges that his constitutional rights have been infringed in procedures adopted in bringing him before the District Court, then the District Judge is obliged to hear the Accused’s allegations and submissions and take such steps as are considered appropriate. The Accused first appeared before the Court on 29th October, 1997.

6. I stated that I was of the view that what was stated in the Delaney case was obiter (an observation with which Mr. Mulholland disagreed). I noted that in the case of The DPP v. Delaney, above cited, the case of Coughlan v. Patwell, above cited, did not appear to be considered by the Supreme Court. I was of the view that although the Supreme Court decision was the binding decision, a difficulty arose in its interpretation and application insofar as the decision in Coughlan v. Patwell did not appear to have been considered by the learned Supreme Court. I had a difficulty in resolving how to exercise my constitutional duties as outlined by Mrs Justice Denham in Coughlan v. Patwell with the decision of the Supreme Court in the DPP v. Delaney. In those circumstances I consider that the opinion of the High Court should be sought for the purpose of resolving those divergent authorities”.

The learned Judge then submits the following question to this Court:-

“Where it is alleged that the constitutional right to liberty of a person accused of an offence contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act has been violated in the procedures adopted in bringing him before the District Court, in circumstances where proof of a valid arrest is not an essential ingredient in proving the charge, am I, a Judge of the District Court, entitled, for that reason, to dismiss the charge accordingly?”

 

1. At the hearing before me it was accepted by Counsel (a) that proof of a valid arrest is not an essential proof under Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997, (b) that there is no power of arrest without warrant for an alleged offence under this section, and (c) that no power of arrest without warrant for such an offence is conferred by Section 4 of the Criminal Law Act, 1997 since the definition of an arrestable offence under that section is “an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence”. It is thus common case that Garda McTiernan did not have a power of arrest and that consequently the purported arrest was unlawful.

2. Counsel for the Accused, Mr. O’Connor, submitted that the unlawful arrest by Garda McTiernan was a flagrant breach of the Accused’s constitutional right to liberty under Article 40.4.1. He also referred to Article 38.1 “No person shall be tried on any criminal charge save in due course of law” and submitted that “due course of law” included and encompassed the pre-trial investigative process and procedures prior to the hearing of the criminal trial. He referred to the judgment of Denham J. in the High Court in Coughlan v. Patwell [1992] ILRM 809 where the learned Judge stated at page 812:-

“The District Court is a Court established under the Constitution and its judges uphold the law on the Constitution. Its jurisdiction is a limited jurisdiction. But within that jurisdiction it acts in accordance with the Constitution”.

3. He referred also to the cases of Trimbole v. The Governor of Mountjoy Prison [1985] IR 550 and The People (Director of Public Prosecutions) v. Mark Kenny [1990] 2 IR 110.

4. Mr. O’Connor pointed out that Garda McTiernan had available to him the power to arrest the Accused on the two previous occasions when he was abusive and threatening and thereby creating a breach of the peace. He had neglected to do so and had deliberately and unlawfully arrested him six days later.

5. Mr. Collins, on behalf of the Director of Public Prosecutions, submitted that at least since 1955, in the case of State (Attorney General) v. Fawcitt [1955] IR 39, the Supreme Court had consistently held that the jurisdiction of the District Court to embark on any criminal proceedings was not affected by the fact that the accused had been brought before the Court by an illegal process. He referred to thejudgment of O’Flaherty J. in Director of Public Prosecutions v. Delaney [1997] 3 IR 453, but pointed out that the latest re-statement of this settled principle was to be found in Director of Public Prosecutions (at the suit of Garda John Ivers) v. Angela Murphy [1999] 1 ILRM 46 and in particular in the judgment of Keane J. in that case. He submitted that the facts in the present case were quite unlike the graphic facts in Trimbole’s case. The Kenny case dealt with the admissibility of evidence obtained as a result of an invalid search warrant, which was a completely different issue.

As far as Coughlan v. Patwell was concerned, he argued that the issue decided in that case was that a Judge of the District Court acts in excess of jurisdiction where he or she refuses to allow an accused person to make any submission in relation to an alleged breach of constitutional rights and refuses to listen to such a submission. The learned Judge did not statethat where an accused person alleged that there had been a breach of his or her constitutional rights, the District Court should proceed to dismiss the complaint itself. What she decided was that, where such a submission is made, it should be heard and appropriate steps taken with regard to it. In the present case, the learned Judge Hogan had acted entirely correctly within the terms of Denham J’s judgment in hearing evidence and submissions and in stating a case for this Court.

THE LAW

In DPP v. Delaney the learned O’Flaherty J., giving judgment on behalf of the Supreme Court, stated (at page 457):-

“It appears that the submissions made in the District Court and also in the High Court and, to a degree, in this Court proceeded on the basis that the matter of arrest had some relevance to the charges here.

Whether an arrest is illegal nor not can only be of relevance where proof of a valid arrest is an essential ingredient to ground a charge, such as under Section 49 of the Road Traffic Act, 1961, as amended (driving with excess alcohol); see, for example,Director of Public Prosecutions v. Forbes [1993 ILRM 817. It was not necessary in the case of any of the charges brought against these appellants to prove a lawful arrest”.

6. The learned Judge went on to deal with a number of what he described as “recondite points” which had been debated in the District Court and in the High Court, but it is clear that he felt them to be largely irrelevant, since he concluded his judgment by saying (at page 461):-

“It will be clear from what I have stated in the course of this judgment so far that these points are of no relevance to what the learned District Judge has to decide. This is because, as already related, proof of arrests, the validity of which arrests might have been vitiated if there was a breach of the Constitution, was not an essential ingredient to prove the charges brought and, in any event, provided the District Judge is satisfied that Sergeant McGrath was acting bona fide in the belief that he should enter the premises to safeguard life and limb, then there was no breach of the Constitution”.

7. It seem to me that Judge Hogan erred in stating, as he did in the District Court, that the first-quoted remarks of O’Flaherty J. were obiter; they were in fact the main ratio of the decision. This is reflected in the official report of the case in the Irish Reports where the primary matter held by the Supreme Court is summarised in the head note:-

“1. That whether an arrest was illegal or not, could only be of relevance where proof of a valid arrest was an essential element to ground a charge”.

8. The judgment of Keane J. in DPP (Ivers) v. Murphy seems to me to set the matter out with the utmost clarity. He states (at page 61):-

“It has been repeatedly pointed out that, as a general rule, the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. If I refer to ajudgment which I delivered in Killeen v. Director of Public Prosecutions [1997] 3 IR 218, it is simply because, so far as I am aware, it is the latest re-statement of that well settled principle. I said (at page 228/9-10:

‘It can, in general, be said that the jurisdiction of the District Court to embark on any criminal proceeding, including the holding of a preliminary examination, is unaffected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. This was so held by Davitt P. inState (Attorney General) v. Fawcitt [1955] IR 39 at page 43 where he said:

“The usual methods of securing the attendance of an accused person before the District Court, so that it may investigate a charge of an indictable offence made against him, is by way of arrest or by way of formal summons, but neither of these methods is essential. He could, of course, attend voluntarily, if he so wished; so far as the exercise of the Court’s substantive jurisdiction is concerned, it is perfectly immaterial in what way his attendance is secured, so long as he is present before the District Justice in Court at the material time. Even if he is brought there by an illegal process, the Court’s jurisdiction is nonetheless effective”.

Some qualifications to that general principle may be noted in passing. Firstly evidence obtained from the accused person during the course of a detention which proves to be unlawful, whether because of a defective warrant or for some other reason, may subsequently beexcluded as inadmissible by the Court of trial. Secondly, where the process by which the person is brought before the Court involves a deliberate and conscious violation of his constitutional rights, of which the most graphic example is State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550, the Court may be justified in refusing to embark upon the hearing. There may also be cases in which a question is raised as to the validity of the detention in Garda custody of a person brought before the District Court, in which case the appropriate course is to remand the person concerned, enabling him, if he wishes so to do, to apply to the High Court for an Order of Habeas Corpus. (See the observations of McCarthy J. inKeating v. Governor of Mountjoy Prison [1991] 1 IR 61). None of these considerations arise in the present case’.

Neither do they arise here. That, in my view, is sufficient to dispose of the present case”.

 

9. It is, as was pointed out by Counsel for the Director of Public Prosecutions, notable that the learned Keane J. uses the term “graphic” to describe the facts of Trimbole’s case. The circumstances in the instant case are very far removed from such a deliberate and conscious violation of constitutional rights. I am, of course, aware that the term “deliberate and conscious” does not necessarily involve mala fides; however, on the facts as set out in the Case Stated, it seems unlikely that the unlawful arrest in this case would require the Court to refuse to embark on the hearing. Ultimately, however, as was held by Denham J. inCoughlan v. Patwell, this is a decision for the Judge of the District Court. Denham J. states at page 814:-

“If an individual as here alleges that his constitutional rights have been infringed in procedures adopted in bringing him before the Court, then the District Court has jurisdiction to, and indeed should, hear the submission and take such steps as it considers proper. It is not appropriate for a District Court to refuse to allow such a submission to be made to the Court. It may be that the District Justice on hearing the submission would have a very clear picture and could deal with the matter there and then. It may be that the District Justice would take the view that there should be a full submission after evidence is heard in the trial. It may be that the District Justice would take evidence and state a case”.

 

10. The learned Judge Hogan clearly acted correctly in hearing both evidence and submissions and in stating a case for this Court. It remains for him to decide whether or not to dismiss the case, but this is a decision which he should make in the light of the general rule, as set out by Keane J., that the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. Only if he feels that there has been a deliberate and conscious violation of the Accused’s rights, as in Trimbole’s case, should he decline to embark on the hearing.

11. The answer, therefore, to the learned Judge’s question to this Court is a qualified affirmative. Yes, he is strictly speaking entitled to dismiss the case, but only if he considers that, on the evidence before him, it falls within the parameters of the decision of the Supreme Court in DPP (Ivers) v. Murphy.

The People v Healy (P.)

[1990] ILRM 313
Finlay CJ

This is an appeal by the Director of Public Prosecutions against a judgment and verdict of the Central Criminal Court pronounced on 21 January 1987 whereby the accused was found not guilty by direction of the offences of attempted murder, shooting with intent to do grievous bodily harm and robbery, all of which arose out of an attempted armed robbery which occurred on 21 February 1986 in the City of Dublin.

The only evidence tendered by the prosecution against the accused which would associate him with participation in the crimes which had been committed was a statement in writing made by him to members of the Garda Siochana whilst in their custody following upon his arrest pursuant to s. 30 of the Offences Against the State Act 1939.

The admissibility of this statement was challenged by the defence on the ground that prior to the completion of it a solicitor retained by the accused’s family had arrived at the garda station and requested an interview with the accused. He was not permitted to see him nor was the accused informed of his presence until after the completion and signing of the statement.

The learned trial judge ruled:

(a) that the accused had been, without any excuse, denied a right of instant access to his solicitor, and

(b) that he, the learned trial judge, could not be satisfied that the incriminating admissions contained in the written statement were made prior to that denial.

He accordingly ruled that the statement was inadmissible in law and directed the jury to acquit the accused.

The facts
The accused who was then about 18 years of age was arrested at 7.55 am on 12 March 1986 pursuant to s. 30 of the Act of 1939 on suspicion of being in unlawful possession of firearms at Fitzmaurice Road, Finglas, on 21 February 1986.

He was brought to Finglas garda station and there interviewed by two members of the Garda Siochana between 8.15 and 11.20 am and by a further different pair of members of the Garda Siochana between 11.20 am and 1.15 pm.

He was then placed in a cell and given lunch, having been advised by those interviewing him to consider his position about the crimes of which he was suspected. After lunch he was again interviewed by the same members of the Garda Siochana who had interviewed him immediately prior to lunch in an interview commencing at 2.50 pm.

At approximately 3.40 pm he stated that ‘he would tell the truth about the robbery but did not want to involve his colleagues’.

He then commenced to make a statement which was written down and which he signed when it was completed at 4.30 pm.

At 4 pm Mr Dermot Morris, a solicitor, who had been retained by a member of the accused’s family, arrived at the garda station and sought an interview with the accused. He was informed that the accused was being interviewed and asked to wait. He protested at this and asserted a right to be brought to the accused but was told that he would have to wait. He was eventually permitted to see the accused at 4.34 pm, immediately after the completion of the statement.

Det Supt Burns was the garda officer who took responsibility for dealing with the solicitor’s request for an interview. He was aware that the accused was at the time of the arrival of the solicitor being interviewed but he was unaware that he had agreed to tell the truth about the robbery. The gardai who were taking the statement from the accused were unaware of the arrival of the solicitor until after the statement was completed.

The reason given in evidence by Det Supt Burns for not permitting the accused access to the solicitor before he did was that he felt it would be bad manners on his part to interrupt the interview between the two garda officers and the accused while it was taking place.

Submissions
On behalf of the appellant it was submitted as follows.

1. The right of a person in lawful detention to access to a solicitor was a legal right only, as distinct from a constitutional right and was a right to reasonable access. If such right were requested either by the person detained or by other persons bona fide making that request on his behalf, the degree of access which would be deemed reasonable varies in accordance with the facts and circumstances of every case.

2. In the instant case it was submitted that the accused’s access to his solicitor was not denied but merely delayed for a short time and that as the accused was in the course of being interviewed by investigating gardai that short delay was not unreasonable, whether considered objectively or subjectively.

3. If, contrary to this submission,the right of a person to reasonable access to a solicitor while in detention was a constitutional right and if it was breached, it was submitted that there was no deliberate and/or conscious violation of that constitutional right. For such violation to exist the argument was that the officer refusing or delaying access would have to be subjectively aware that his action was unreasonable and decide, notwithstanding that awareness, to take it. In the alternative it was submitted that apart from the fact that the superintendent stated that he felt his action was reasonable, that viewed objectively it also was.

In support of this contention as well as the contention that the legal right of access had been reasonably delayed it was contended that the fact that the accused had commenced upon the course of making an incriminating statement at the time of the solicitor’s arrival at the station, even though such fact were unknown to the garda officer dealing with the request for an interview with the accused, was good grounds for postponing that interview by reason of the constitutional importance of permitting the accused to make a confession. Reliance was also placed on the fact that the probable consequence of permitting the interview which was taking place with the accused to be interrupted by the arrival of a solicitor would be that the accused would change his mind and stop making an incriminating statement.

On behalf of the respondent it was submitted that:

1. The right of a detained person to reasonable access to a solicitor whilst he was in detention was a constitutional right arising from the constitutional requirement for fair procedures in criminal cases which extended not only to the actual trial by the courts but to the investigation of suspected crime.

2. That the detective superintendent involved was aware that he was postponing the right of access by the detained person to his solicitor upon grounds which, objectively, must be deemed unreasonable, as the learned trial judge deemed them, and that accordingly this constituted a conscious violation of the accused’s constitutional rights, it being irrelevant as to whether the detective superintendent realised that it constituted such a violation or not.

3. Even if contrary to the submissions made the right of a detained person to reasonable access to a solicitor was a legal right only, on the facts of the instant case it was submitted that the learned trial judge could only exercise a discretion vested in him with regard to the admissibility of this statement in the way that he did, for the reason stated by the superintendent for the postponement of the access, namely, bad manners involved in the interruption of an interview, was quite unsustainable as being reasonable. The other reason put forward, though unknown to the detective superintendent, on behalf of the appellant, namely, that the necessity to permit the making of the statement to conclude without interruption was it was urged also quite unreasonable, having regard to the fact that it vitiated one of the major objectives of the right of access to a solicitor, namely, the objective of securing for a detained person reasonable information and advice with regard to his rights, and in particular, with regard to his right of avoiding self-incrimination.

The law
The right in issue in this case is the right of a detained person to have access during his detention to a solicitor whose attendance he has requested, or whose attendance has been requested by other persons bona fide acting on his behalf. No question arises as to any right that a detained person might have to be informed of his right of access to a solicitor by the Garda Siochana who are detaining him, or of any possible right of a detained person to have a solicitor present while he is being interrogated. I express no view on either of these two rights which may arise for determination in other cases.

Clearly the right which is in question could be defeated in the case of a detainee who himself requests the presence of his solicitor, either by failure to convey such request to the solicitor or by failure upon the arrival of such solicitor to grant the actual access.

In the case of a solicitor who has arrived at a garda station on a request made on behalf of a detained person, which is the present case, the right could be defeated either by failing to inform the detainee of the solicitor’s arrival or on the detainee having become aware of such arrival and having requested access to the solicitor by refusing to grant it.

Counsel for the appellant did not seek to distinguish between the right of access arising from the detainee’s own request for a solicitor and that arising from the presence of a solicitor sought on his behalf.

Having regard to the view I reached as a judge of the High Court in Harrington v Garda Commissioner (High Court (Finlay P) 14 December 1976), and to the approval of that view contained in the judgment of the Court of Criminal Appeal in The People (DPP) v Pringle 2 Frewen 57, I am satisfied that no such distinction exists.

The existence of a right of access to a solicitor by a person in detention has been identified and dealt with by judgments of this court in the following cases: In re Article 26 and the Emergency Powers Bill 1976 [1977] IR 159; The People v Shaw [1982] IR 1; The People (DPP) v Conroy [1986] IR 460.

It has been dealt with by the Court of Criminal Appeal in the following cases: The People v Madden [1977] IR 336; The People v Farrell [1978] IR 13; DPP v Pringle 2 Frewen 57.

In the decision of the court in The Emergency Powers Bill 1976 reference, it is dealt with in conjunction with other rights enjoyed by a person who is in custody in the following passage:

While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the court, to state that the section is not to be read as an abnegation of the arrested person’s rights (constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and medical assistance and the right of access to the courts.

The bracketed phrase ‘constitutional or otherwise’ contained in this paragraph leaves unresolved the question as to whether the particular right of access to a solicitor which is there described as the right to legal assistance was or was not in the view of the court a constitutional right.

In The People v Shaw [1982] IR 1 Walsh J in the course of his judgment firmly identified the right of access to a solicitor in the following passage:

While he was in custody on the Sunday night the appellant asked the garda officer in charge if he ‘could get him a solicitor’. He was informed that the officer had no function in ‘getting him a solicitor’. In evidence the officer stated that he understood the request to be that he (the officer) should choose a solicitor for him. This was accepted by the trial judge …. As was pointed out in The People v Madden [1987] IR 336, 355–356, while there may be no legal obligation on the Garda Siochana to proffer without request the assistance of a legal adviser to a person under arrest, a refusal of a request of reasonable access to a legal adviser would render the detention illegal.

The judgment of Walsh J in The People v Shaw was a judgment which though in agreement with the conclusion of the other members of the court, was in the reasoning by which that conclusion was reached a minority judgment. The other judgments delivered, which were by Griffin J and Kenny J, with which Henchy J and Parke J agreed, did not deal in any way with the question of the appellant’s right of access to a solicitor.

The matter was again dealt with by Walsh J in The People (DPP) v Conroy, where he stated:

It may or may not be the case, and I do not have to decide this at the moment, that there is a constitutional obligation upon the police to ask a person if he wishes to have a solicitor and that was the point which was before the court in the Farrell case, but I am satisfied that if he does ask for a solicitor he is entitled to have one. In so far as the Farrell case might appear to decide the contrary, in my view, it ought not to be followed. The constitutional right of the appellant in the present case to have a solicitor, if he asked for one, is based upon the constitutional obligation imposed upon the Garda Siochana to abide by the provisions of Article 40 s. 3 of the Constitution, which postulates the observance of basic or fundamental fairness of procedures during interrogations by members of the Garda Siochana. If such basic fairness of procedure is not so observed by members of the Garda Siochana then it is the duty of the courts to implement constitutional guarantees by excluding the evidence so obtained: see the decision in The People v Shaw [1982] IR 1.

In my view it could not reasonably be held that a failure to comply with the request of a person in custody who is being interrogated throughout the night in respect of a possible charge of murder, could not be regarded as an unfair procedure of the type which Article 40.3 of the Constitution requires to be avoided. Even if a solicitor is sent for in such circumstances but the members of the Garda Siochana decide to press ahead with the interrogation before the arrival of the solicitor, I would regard it as a constitutionally forbidden procedure.

The judgment of Walsh J in Conroy’s case was as to the main issue arising in that case, the question as to whether or not the findings of fact necessary to rule on the admissibility of an alleged statement should be made by the judge or by the jury, a dissenting judgment. The issue of the request alleged to have been made by the appellant for the services of a solicitor was not dealt with in any of the other three judgments delivered by the majority of the court.

The provisions of s. 5 of the Criminal Justice Act 1984, which imposes an obligation on the Garda Siochana, where persons are detained pursuant to s. 4 of that Act, to inform them of their entitlement to consult a solicitor and to notify the solicitor if one is named, had not come into operation at the date of the detention of the accused in this case and have no bearing, in my view, on the issues that arise in this case. The legislative provision contained in that section cannot be taken by the court as any guide to the status of the right of access to a solicitor as to whether it is constitutional or merely legal in origin.

In the course of his judgment, which was the majority judgment of the court in The People v Shaw, Griffin J stated as follows:

Because our system of law is accusatorial and not inquisitorial and because (as has been stated in a number of decisions by this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner of or the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice.

The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators.

Viewed in that light, I am driven to the conclusion that such an important and fundamental standard of fairness in the administration of justice as the right of access to a lawyer must be deemed to be constitutional in its origin, and that to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the courts are obliged to give.

The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Garda Siochana, is as to whether there is a causative link between that breach and the obtaining of an admission.

A right of reasonable access to a solicitor in a detained person, I am satisfied, means in the event of the arrival of a solicitor at the garda station in which a person is detained, an immediate right to that person to be told of the arrival and, if he requests it, an immediate access. The only thing that could justify the postponement of informing the detained person of the arrival of the solicitor or of immediately complying with a request made by the detained person when so informed, for access to him, would be reasons which objectively viewed from the point of view of the interest or welfare of the detained person, would be viewed by a court as being valid. I reject completely the submission made on behalf of the appellant that the test to be applied to the question of reasonable access is a subjective test in the mind of the jailer of the detained person. The test is whether the superintendent’s refusal of access was a conscious and deliberate act, as it clearly was. The fact that he may not have appreciated that his refusal was a breach of the respondent’s constitutional right is immaterial. Furthermore, I would also reject the submission made on behalf of the appellant that the fact that a detained person was in the course of making a statement whether it was exculpatory or incriminatory, at the time of the arrival of the solicitor, could possibly be an objectively valid reason for postponing at least informing him of that arrival, and asking him whether he wished to suspend the making of the statement in order to have access to the solicitor.

Having regard to these conclusions, it is clear on the evidence in this case that the accused should have been informed at 4 pm of the arrival of the solicitor, and if he had asked to see him at that time, should have been permitted to see him. The failure to follow that course and the postponement of the access to the solicitor and the informing of the accused of the presence of the solicitor until after the completion of the statement was, in my view, both a deliberate and conscious violation of the accused’s constitutional right and also a complete failure to observe reasonable standards of fairness in the procedure of his interrogation.

I am satisfied that the conclusion reached by the learned trial judge that it was impossible, on the evidence before him, for him to be satisfied beyond a reasonable doubt or, as he expressed it in his ruling, even as a matter of probability that the significant incriminating statements which were contained in the tendered written statement were made prior to the arrival of the solicitor at 4 pm was a conclusion on fact which he was entitled to make and cannot be disturbed on appeal by this Court.

In these circumstances, I would dismiss this appeal.

GRIFFIN J:

The facts have been set out in the judgment of the Chief Justice and it is not necessary to repeat them.

At the trial, when all the evidence given on behalf of the prosecution was completed, submissions on the admissibility of the statement of the accused were made to the learned trial judge, Egan J. Counsel for the accused contended that the right of the accused to access to a solicitor is a constitutional right, while counsel for the prosecution contended that it was a legal right. Egan J, without deciding whether the right of such access is a constitutional right or a legal right ruled that, in the circumstances of the case, the accused had been denied reasonable access to his solicitor, which he held was ‘a right to instant access in the absence of serious excuse’. He further ruled that as it was impossible for him, on the evidence, to be satisfied that incriminating admissions had been made prior to the time when his solicitor, Mr Morris, should have been admitted, the statement of the accused should not be admitted.

After he had delivered his ruling, the learned trial judge was invited by counsel for the prosecution to state whether he was holding that there was a breach of a constitutional right, but he declined so to state.

It is beyond question that, when a person is detained on suspicion of involvement in a crime which has been committed, he is entitled to reasonable access to a solicitor. His right of such access is not in issue in this case — what is in issue is the nature and extent of that right and the consequences of frustration of that right or failure on the part of the authorities to permit or enable that person fully to exercise his right.

The detained person may exercise the right himself by requesting the attendance of a solicitor. It may also be exercised on his behalf by any person, who may be considered to be his implied lawful agent in that behalf, requesting a solicitor to attend at the garda station where he is detained — such persons would obviously include members of his family, his employer, or a close friend, all of whom would have a bona fide interest in engaging a solicitor for him. It was members of his family who retained Mr Morris to attend at the garda station on behalf of the accused in this case.

When the detained person himself requests a solicitor, it is the duty of the garda in charge of the investigation to take all reasonable steps to carry out the request. If he refuses or neglects to communicate with the named solicitor there is a clear breach of that duty and of the detainee’s right, but delay in carrying out the request may, in certain circumstances, be tantamount to a denial or frustration of that right. Where, as in this case, the solicitor has been retained on behalf of the detainee by his family, and attends at the garda station, the garda in charge is entitled to enquire from such solicitor as to who requested his attendance. On being informed of the source of the instructions, it is in my view the duty of the gardai, without delay, to inform the detainee of that fact and to enquire from him whether he wishes to consult that solicitor. If he does, the interrogation should be suspended and suitable arrangements should be made to enable him to obtain the advice of that solicitor. I do not accept the submission of counsel for the prosecution that, where the accused is in the process of being interviewed, or of making a statement, access to the solicitor may be delayed or postponed until the termination of the interview or the completion of the statement — delay may in this case also amount to a denial of the right of access.

I am in complete agreement with the Chief Justice that, whether the request for a solicitor is made by the detainee himself or is lawfully made on his behalf, there is no distinction in principle to be drawn between the rights of the detainee and the duties of the gardai in either case. Although, as the Chief Justice has pointed out in his judgment, the existence of the right of access to a solicitor by a person in detention has been identified in the judgment of this Court in In re Article 26 and the Emergency Powers Bill 1976 [1977] IR 159 without discussing the nature of the right, and the nature of the right was considered by Walsh J in The People v Shaw [1982] IR 1 at p. 35 and in The People (DPP) v Conroy [1986] IR 460 at p. 478, there has been no case in which it has been decided by this Court that the right of a detained person to a solicitor is a constitutional right. There have however been a number of decisions of this Court in which it has been held that the Constitution guarantees an arrested person basic or fundamental fairness of procedures — see, for example, In re Haughey [1971] IR 217; and The People v Shaw [1982] IR 1. In the latter case, in the course of delivering what was the majority judgment of the court, I said at p. 61:

Because our system of law is accusatorial and not inquisitorial, and because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice. Whether the objection to the statement be on constitutional or other grounds, the crucial test is whether it was obtained in compliance with basic or fundamental fairness, and the trial judge will have a discretion to exclude it ‘where it appears to him that public policy, based on a balancing of public interests, requires such exclusion’ — per Kingsmill Moore J at p. 161 of the report of O’Brien’s case.

The concept of fairness is one which is not confined exclusively to rights which are constitutional in origin. If when a person is in custody any procedure is adopted by those detaining him which does not comply with the crucial test of basic fairness, that procedure is flawed, whether the infringed right of such person is a constitutional or a legal right.

It is necessary to consider whether the procedure adopted in this case complied with that crucial test. I have no doubt that it did not. The main, if not the sole, purpose of the right of access to a legal adviser is to enable the detained person to obtain advice as to his rights, and in particular advice as to whether, in the circumstances, it would be in his best interests to make a statement or to refuse to make one. In some cases, where the evidence against him would appear to be overwhelming (as for example where he was caught in the course of the commission of the crime) his legal adviser may consider that his interests would best be served by admitting his guilt in the expectation of receiving a lighter sentence and advise accordingly. In most cases, however, the prudent legal adviser would be likely to advise his client that it would not be in his interest to make a statement, unless the circumstances are such that he could make an exculpatory statement. But the detained person is entitled to obtain that advice, and it is then for him alone to decide whether to make a statement or not, and he cannot make an informed decision until he has received that advice. It is therefore essential that, if he requests it, whether personally or through his lawful agent, such advice should be available to him as soon as possible after his arrest. It would indeed be a hollow or empty right if it could be delayed or postponed until his interrogation has ended, or, as in this case, until a statement he is in the course of making was completed. By that time he may have convicted himself out of his own mouth and any advice he could then receive would be of little value to him. Depriving him of that advice would therefore in my opinion be manifestly unfair to him.

In this case, when the solicitor called to the garda station, the detective superintendent who was in charge of the investigation was not aware that the accused was then in the course of making a statement. He was however aware that the accused was in a room being interrogated by two gardai, and his stated reason for delaying the access of Mr Morris was that it would be bad manners to interrupt the interview. That is not a valid reason for delaying access. In my view, it was immaterial whether the accused was at the time being interrogated or making a statement — in either case he was being exposed, to his prejudice, to the risk of making admissions which he might not make if he had the advice to which he was entitled. This case is clearly distinguishable from that of State (Harrington) v Commissioner of An Garda Siochana (High Court (Finlay P) 14 December 1976), in which the Chief Justice, when President of the High Court, held that delay in providing access of his solicitor to the detainee did not effectively deprive him of his right to legal advice, as he was in his cell, not being interviewed, during the entire of the time his solicitor was being delayed. In the circumstances of the present case delaying the advice effectively constituted a denial of it.

As stated earlier, the learned trial judge held that the statement of the accused was inadmissible in evidence, without deciding whether the right in question is a constitutional or a legal right. In my opinion, he was fully justified in doing so as it was, in the circumstances, not necessary for him to decide that issue, nor is it necessary for this Court to do so. Whether the right in question is a constitutional or a legal right, the statement of the accused was not obtained in compliance with basic or fundamental fairness, and as it was not possible for the learned trial judge to be satisfied that incriminating admissions in it had been made prior to 4 pm, when Mr Morris arrived at the garda station, he was in my opinion correct in excluding the entire of the statement.

I feel that I should add that, if it was necessary to decide the issue as to whether the right in question is a constitutional right or a legal right, I would find little difficulty in accepting that, where a detained person requests a legal adviser or one is provided for him by his family or other lawful agent, his right of such access is a constitutional right. But as I am of opinion that it is not necessary in the circumstances of this case, a final decision on that issue should in my view await a case in which it is necessary to decide it.

I have had the advantage of reading in advance the judgment which McCarthy J is about to deliver. In it he expresses the opinion that the examination of People (Attorney General) v O’Brien [1965] IR 146 in People v Shaw [1982] IR 1, and its reasoning, was not necessary for the decision in Shaw’s case. I respectfully disagree. As in this case, the admissibility of the statements made by the accused was directly in issue in Shaw’s case. In the court of trial, the Court of Criminal Appeal, and in this Court the arguments advanced rested substantially on the principles enunciated by Kingsmill Moore J and Walsh J, who respectively delivered the leading majority and minority judgments in that case. It therefore became necessary for this Court to consider the extent to which the principles enunciated in the judgments in that case constituted a binding decision as to the tests to be applied in relation to the admissibility of statements made by the accused. That was then my opinion and that of my colleagues who concurred in my judgment, and I see no reason to resile from what I said on that issue in Shaw’s case. Furthermore, although in this appeal substantial extracts from the judgments in Shaw’s case were cited by counsel for both parties, at no time was there any discussion on, or argument or submission from counsel on either side that the examination of O’Brien’s case or its reasoning was not necessary for the decision in that case.

I would dismiss this appeal.

McCARTHY J:

I agree that this appeal should be dismissed.

The argument for the DPP, as I understand it, is:

1. The prisoner was in lawful detention.

2. He was making a voluntary confession.

3. He had not asked for a solicitor.

4. There was no obligation on the gardai to ask him if he wanted a solicitor.

5. The fortuituous arrival of a solicitor retained by his family, which event occurred at the time of the making of the confession, was coincidental and irrelevant.

6. It did not warrant the interruption of the making of the confession.

As was stated in The People (DPP) v Quilligan [1986] IR 495, 509:

The object of the powers given by s. 30 is not to permit the arrest of people simply for the purpose of subjecting them to questioning. Rather is it for the purpose of investigating the commission or suspected commission of a crime by the person already arrested and to enable that investigation to be carried on without the possibility of obstruction or other interference which might occur if the suspected person were not under arrest. S. 30 is part of the statute law of the State permanently in force and it does not permit of any departure from normal police procedure save as to the obligation to bring the arrested person before a court as soon as reasonably possible.

Further, at 508 citing In re Article 26 and the Emergency Powers Bill, 1976 [1977] IR 159, 173:

Such person retains at all times the right of communication and the right to have legal and medical assistance and the right to have access to the courts.

In this instance the right of communication is not to be regarded as one sided; as the prisoner has the right to communicate with his relatives so have they the right to communicate with him. If they seek to do so through a solicitor then the right of communication is mixed with the right to have legal assistance; in some instances the prisoner may not be able to decide or may not wish to have legal assistance; his family may wish that he should do so; the decision must be his but the rights of the family to communicate their wish to him must be taken into account; he must be told. Further, he must be told at the earliest opportunity. If Mr Morris’ arrival had been notified to Paul Healy whilst being interviewed or whilst making his confession, he might well have said he did not wish to be interrupted. Due to the decision not to inform him of the arrival of Mr Morris, that question must remain unresolved. I doubt if it could be satisfactorily answered with hindsight, that is, by obtaining an admission subsequently as to what he would or would not have done. The matter must be looked at objectively and not by a subsequent subjective test. In The People (DPP) v Farrell [1978] IR 13, the Court of Criminal Appeal stated at 20:

None of the judgments goes so far as to declare that every person under suspicion of, or faced with, a charge of a criminal offence has a constitutional right to have the services of a solicitor and doctor before being questioned by an investigating garda. Such rights as are adumbrated in the judgments cited are all related to the particular circumstances of the person whose rights require protection and vindication.

In The People (DPP) v Conroy [1986] IR 460, the judgment of the Court of Criminal Appeal (of which I was a member) stated at 467:

Even if he had been in custody the accused had no constitutional right to a solicitor (see The People v Farrell etc) ….

This is adverted to by Henchy J, in Conroy’s case at 489:

The decided cases show that a person detained by the police has no constitutional right — at least, in the absence of special circumstances — to consult with a solicitor before making a statement: see The People v Farrell ….

In Conroy’s case (at 478) Walsh J, said:

It may or may not be the case, and I do not have to decide this at the moment, that there is a constitutional obligation upon the police to ask a person if he wishes to have a solicitor, and that was the point which was before the court in the Farrell case, but I am satisfied that if he does ask for a solicitor he is entitled to have one. In so far as the Farrell case might appear to decide the contrary in my view it ought not to be followed. The constitutional right of the appellant in the present case to have a solicitor, if he asked for one, is based upon the constitutional obligation imposed upon the Garda Siochana to abide by the provisions of Article 40.3 of the Constitution, which postulates the observance of basic or fundamental fairness of procedures during interrogations by the members of the Garda Siochana.

I would wish to express the same reservation concerning Farrell’s case and the nature of the constitutional obligation upon the police as expressed by Walsh J in Conroy. I share the view expressed by the Chief Justice in the instant appeal that such an important and fundamental standard of fairness in the administration of justice as the right of access to a lawyer must be deemed to be constitutional in its origin.

The DPP has argued that there must be a balancing of constitutional rights between that of the prisoner and those of the public. In the making of this submission, it may have been overlooked that one major right of the public is to ensure that the constitutional rights of individual citizens are respected and enforced. Quite apart from the interest of the public in the investigation of, punishment for and suppression of crime, the public has a deep interest in ensuring that the individual citizen is not denied any personal right. In that sense, the public has as much an interest in the right of Paul Healy to have legal assistance and communication from his family as Paul Healy himself.

A further argument on behalf of the DPP was that albeit there was a breach of the constitutional right, it was not a deliberate and conscious violation within the meaning ascribed to that term by Henchy J in Quilligan (at 513). The term ‘deliberate and conscious violation’ is not to be found in any statute and is not to be construed as if it were. It is to be found in the judgment of Walsh J, repeated by Kingsmill Moore J, in The People (Attorney General) v O’Brien [1965] IR 146 and referred to in The People (DPP) v Walsh [1980] IR 294, The People (DPP) v Madden [1977] IR 336, The People (DPP) v Shaw [1982] IR 1 and in The People (DPP) v Lynch [1982] IR 64. In Quilligan Henchy J, said at 513:

The only other ground on which the statements could be rejected is if it could be held that they were the fruit of an arrest which was a conscious and deliberate violation of the prisoners’ constitutional right to personal liberty. However, that conclusion was not open, for even if it could be said that the arrest was an unconstitutional act, it was not consciously or deliberately so. In arresting the accused under s. 30 of the Offences Against the State Act 1939, for a scheduled offence, the arresting gardai were acting in good faith, because they were merely following a system of arrest which had been followed — and given at least tacit approval in the courts — ever since prosecutions were first brought in respect of scheduled offences under that Act. It would follow, therefore, that, regardless of any unconstitutionality in the arrest, the statements were admissible in evidence.

No other member of the court adverted to this particular issue, possibly because Henchy J himself dealt with the appeal on the assumption that the statements were inadmissible and, consequently, the observations just quoted were not necessary for the decision. One might infer from the observations of Kingsmill Moore J, in O’Brien, dealing with the facts of that case, that accidental and unintentional infringement of the Constitution is to be distinguished from deliberate and conscious violation. So also, the views of Lavery J, who thought that to hold inadmissible the evidence in question in O’Brien would be wrong to the point of absurdity and would bring the administration of the law into well deserved contempt. Both of these conclusions appear to me to be irrelevant to the present issue. Lavery J was dealing with the question of admissibility of evidence obtained by illegal means. That was not the sole issue in O’Brien. The evidence was obtained pursuant to a violation of the constitutional right to inviolability of the home, however unintentional or incidental or accidental the error which led to the wrong address being in the search warrant. If O’Brien had refused entry and been necessarily assaulted by the Gardai in order to secure entry, all in the bona fide belief that the warrant was valid, would his action for assault and false imprisonment be defeated in the same way? In my view, if ‘conscious and deliberate’ is a term of art appropriate to be used in the context of constitutional rights and their violation, the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realize he was in breach of a constitutional right is irrelevant. If it were otherwise, then if one jailor could distance himself from the others, as the superintendent did in the instant case, there need never be such a violation. It is not the state of mind of the violator that matters; it is the objective assessment of the conscious acts or omissions. A violation of constitutional rights is not to be excused by the ignorance of the violator no more than ignorance of the law can enure to the benefit of a person who, at common law, and by statute law (s. 4(2) of the Criminal Justice Act 1964) is presumed to have intended the natural and probable consequences of his conduct. If it were otherwise, there would be a premium on ignorance.

In Shaw, Griffin J, with whose judgment Henchy, Kenny and Parke JJ, agreed said at 55:

Nor do I find myself able to support the opinion that a person’s statement is to be ruled out as evidence obtained in deliberate and conscious violation of his constitutional rights, even though the taker of the statement may not have known that what he was doing was either illegal or unconstitutional. I consider the authorities to be to the contrary effect. For example, in The People (Attorney General) v O’Brien Kingsmill Moore J, (who gave the majority judgment), having held that evidence obtained in deliberate and conscious violation of constitutional rights should be excluded except in ‘extraordinary excusing circumstances’ (which he preferred to leave unspecified), excused as ‘a purely accidental and unintentional infringement of the Constitution’ the violation complained of in that case: see p. 162. See also The People v Madden at p. 346 where a ‘factor such as inadvertence’ was recognized as capable of being one of the ‘extraordinary excusing circumstances’ envisaged in O’Brien’s case. In my opinion, it is the violation of the person’s constitutional rights, and not the particular act complained of, that has to be deliberate and conscious for the purpose of ruling out a statement. In the present case, I would rank the superintendent’s well-founded anxiety for the life of Mary as an example of an extraordinary excusing circumstance for keeping the appellant in custody for what otherwise would have been an impermissibly long period.

The Supreme Court was there dealing with the admissibility of a confession obtained during an otherwise impermissibly long period of detention, which detention was in the hope of producing a result that would save Mary’s life. It was a far remove from the circumstances of the instant appeal, in particular since the superintendent was well aware that the continued detention was prima facie, unlawful but, in what the Court of Criminal Appeal described as ‘these unique circumstances’ (at 21) the continued detention was because of an extraordinary excusing circumstance not unlawful. In Shaw, therefore, the court decided the appeal on the assumption that the test of admissibility was (at 57):

First, whether each was a statement taken in deliberate and conscious violation of the appellant’s constitutional rights and, secondly, if so, whether it should nevertheless be held admissible because of extraordinary excusing circumstances.

It would appear to follow that the examination of O’Brien and its reasoning was not necessary for the decision of Shaw.

Dokie v Director of Public Prosecutions

[2011] IEHC 110
JUDGMENT of Kearns P. delivered the 25th day of March, 2011

By order of the High Court (Peart J.) dated 7th July, 2008, the applicant was granted leave to apply for judicial review. The reliefs sought by the applicant include the following:-

1. A permanent injunction by way of an application for judicial review restraining the respondent from taking any further steps in the prosecution entitled Director of Public Prosecutions at the suit of Garda Thomas Morley v. Ebere Dokie (Bridewell Charge Sheet No. 761009) at present pending before the Dublin Metropolitan District Court;
2. A declaration by way of an application for judicial review that s. 12 of the Immigration Act 2004 is inconsistent with the provisions of Bunreacht na hÉireann and in particular Articles 38.1, 40.1, 40.3.1, 40.3.2, and/or 40.4.1 thereof; and/or

3. If necessary, a declaration by way of an application for judicial review that s. 12 of the Immigration Act 2004 is incompatible with the State’s obligations under the Convention and in particular Articles 5, 6, 7 and/or 14 thereof.

4. Damages by way of an application for judicial review as against the respondent for false imprisonment.

5. Damages and/or compensation pursuant to s.3 of the European Convention on Human Rights Act 2003 for unlawful detention of the applicant contrary to Article 5 of the Convention.

6. An order providing for such further or other relief, including ad interim or interlocutory relief as to this Honourable Court shall seem meet.

7. An order providing for an award of the costs of these proceedings to the applicant.

FACTUAL BACKGROUND

The applicant in these proceedings is a non-national who is believed to be a national of Liberia. She entered the State on 3rd April, 2008 via Dublin Airport. The applicant had traveled to Ireland from Nigeria transiting through a European airport with her daughter who is a national of Nigeria. It is stated that she paid an agent $5,000 to arrange her travel into this State and to secure passports for the applicant and her daughter. The applicant believed these passports to be false. It was claimed that she met a man and his two children, two young boys aged four and seven years old, at Lagos Airport who were also traveling with the same agent. As the group was preparing to leave Lagos, the father of the children said that he could not travel and asked the applicant to take the two young boys with her to Ireland. After initially refusing to bring the boys the applicant then later agreed. Upon her arrival at Dublin Airport with the three children, her daughter and the two young boys, the applicant was arrested and charged with an offence that she being a non-national failed to produce on demand to an Immigration Officer/member of An Garda Síochána at Dublin Airport a valid passport or other equivalent document which established her identity and nationality and failed to give a satisfactory explanation of the circumstances which prevented her from doing so contrary to ss. 12(1)(a) and (2) and s. 13 of the Immigration Act 2004.

The applicant appeared before the District Court on this charge on 4th April 2008 when she was remanded in custody. The applicant applied for asylum on 9th April 2008 and was issued, pursuant to s. 9(3) of the Refugee Act 1996, with a Temporary Residence Certificate (hereinafter referred to as ‘the TRC’) from the Office of the Refugee Applications Commissioner (hereinafter referred to as ‘ORAC’, on 28th May, 2008. However on 28th May, 2008, the District Court stated that it was not going to deal further with the case against the applicant on foot of the Dublin Airport charge sheet and made “no order” in respect of that case. It was the view of the District Court Judge that the initial charge arising from 3rd April, 2008 was null and void. The applicant was released from custody but was, however, re-arrested and charged pursuant to ss. 12(1) (a) and (2) and s. 13 of the Immigration Act 2004 with failing to produce the same documentation on the 29th May, 2008 at Chancery Street, Dublin. The applicant was granted bail on 23rd June, 2008, but was unable to meet the terms of bail until the terms of bail were adjusted on 15th July, 2008. The applicant has been at liberty in this country since July 2008 and has yet to furnish either a passport or proof of identity or nationality to the authorities. The State simply does not know for sure who the applicant is or even what country she comes from. It appears in this case that no effort has been made by or on behalf of the applicant to make good this information deficit since her arrival in this country.

 

Douglas v DPP [2013] IEHC 343, Hogan J.

JUDGMENT of Mr. Justice Hogan delivered on 26th July, 2013

1. Is a statutory offence of causing scandal or injuring the morals of the community sufficiently precise and certain as to meet the test for legal certainty in criminal matters articulated by the Supreme Court in King v. Attorney General [1981] I.R. 233? This, is essence, is the issue which is raised in these proceedings in which the plaintiff challenges the constitutionality of s. 18 of the Criminal Law (Amendment) Act 1935 (“the 1935 Act”), as amended by s. 18 of the Criminal Law (Rape)(Amendment) Act 1990 (“the 1990 Act”). Section 18 of the 1935 Act provides:-

“Every person who shall commit, at or near and inside of any place along which the public habitually pass as of right or by permission any act in such a way as to offend modesty or cause scandal or injure the morals of the community shall be guilty of an offence under this section and shall on summary conviction thereof be liable to a fine not exceeding [IR£500] or, at the discretion of the court to imprisonment for any term not exceeding [six months].”
There words in square brackets were inserted by s. 18 of the 1990 Act. It is also important to note at the outset that s. 18 provides for summary disposal only and that there is no entitlement at all to jury trial.
2. The plaintiff has been charged with the latter two offences created by s. 18 of the 1935 Act, i.e., causing scandal and injuring the morals of the community. The case against him is that on two separate days in January 2009 he was observed by security staff stroking and massaging his penis through his clothes in a café attached to a shopping centre in Dublin city centre. It is important to stress that it has never been alleged that the plaintiff had ever exposed his penis. The prosecution contend, however, that the conduct was done in a public place and that on both occasions he was seated just a few metres from adult females and teenage girls, although there is no suggestion that they witnessed or were even aware of this conduct. It is also contended that the plaintiff either desisted from these activities or disguised them when others approached. Nor has it been suggested that the plaintiff massaged his penis through his clothes to the point of sexual climax.

3. The specific charge is that on the days and place in question:

“at or near and in sight of a place along which the public habitually pass as of right or by permission, did commit an act, to wit, massage your genital area in such a way as to cause scandal and injure the morals of the community.”
4. There is no question but that the shopping centre café is a “place along which the public habitually pass as of right or by permission” within the meaning of the section. The only question, therefore, for the present purposes is whether the offences of causing scandal or injuring the morals of the community contain sufficiently clear criteria for the purposes of this constitutional challenge. It is also important to recall that the plaintiff has not been charged with any offence against modesty within the meaning of the section, a fact which, as we shall presently see, delimits slightly the scope of the constitutional challenge.
Does S. 18 of the 1935 Act enjoy the presumption of constitutionality?
5. The first question is a highly technical one: should s. 18 of the 1935 Act be treated as if it were a post-1937 statute and thus enjoy a presumption of constitutionality? Counsel for the State, Ms Donnelly S.C., argued that the effect of the changes in the penalty provisions contained in the 1990 Act was that s. 18 of the 1935 Act should be deemed now to have been re-enacted by a post-Constitution statute. She argued that in those circumstances the section should be treated for all purposes as if it were post-Constitution statute so that, in particular, it enjoys the presumption of constitutionality.

6. Given that it is common case that the onus of proof to demonstrate constitutional incompatibility rests with the plaintiff irrespective of whether the statute is treated as being a pre- or post-Constitution enactment, I am not convinced that this issue is really of fundamental importance, at least so far as the issues in this case are concerned. At most, some marginally higher burden may attach itself to a post-1937 statute (or, at least, a statute deemed to have been effectively re-enacted after date), since such legislation would be enacted by the very Oireachtas which was familiar with the terms of the Constitution itself. In this respect, the present case is very different from ZS v. Director of Public Prosecutions [2011] IESC 49. This, however, was a case with exceptional facts and circumstances and where, as we shall shortly see, the existence of the presumption of constitutionality was dispositive in those very special circumstances.

7. It is clear from the decision of the Supreme Court in Gormley v. Electricity Supply Board [1985] I.R. 129 that the mere fact that a pre-1937 statute is incidentally amended by a post-1937 statute will not in itself “give to that pre-Constitution statute a presumption of validity”: see [1985] I.R. 129, 147, per Finlay C.J. If, on the other hand, the nature of the amendment provided for by the post-1937 amendment statute is such that it extends and expands the scope of the original pre-1937 statute, then as the judgment of Finlay C.J. in Gormley makes clear, the legislation must be deemed to have been effectively re-enacted as post-1937 statute.

8. This issue was considered in some detail by the Supreme Court in ZS v. Director of Public Prosecutions [2011] IESC 49. As it happens, this case concerned the constitutionality of another provision of the 1935 Act, namely, s. 2. As originally enacted the 1935 created what was in essence the absolute offence of unlawful carnal knowledge of young females between 15 and 17. That offence was itself amended by s. 13 of the Criminal Law Act 1997 which deleted the requirement that the girl be over 15 years of age. As thus amended, s. 2 then created the offence of unlawful carnal knowledge with any female under 17.

9. In CC v. Ireland (No.1) [2006] 4 IR 1 the Supreme Court held that the parallel section, s. 1, which created the absolute offence of unlawful carnal knowledge with a female under 15 was unconstitutional by reason of the fact that it excluded the defence of mens rea. In ZS the argument was whether the amendments effected by the 1997 Act had significantly changed the scope of the parallel offence so, that, in particular, it should be presumed that the Oireachtas had not intended to negative the defence of mens rea.

10. A majority of the Supreme Court (with Denham C.J. and Murray J. dissenting) held that in these circumstances the amendments effected by the 1997 Act had not substantially re-enacted s. 2(1) of the 1935 Act. It followed, therefore, that the sub-section could not be treated as if it were a post-Constitution statute and in those circumstances the issue was whether this pre-Constitution statute was carried over by Article 50.1 of the Constitution.

11. As Fennelly J. explained:

“Because of the unique circumstance that, so far as the availability of a defence of honest mistake is concerned, it is indistinguishable from s. 1(1) on which the Court has already pronounced [in CC (No.1)], s. 2(1) was not continued in effect by Article 50.1 of the Constitution. Expressed otherwise, being inconsistent with the Constitution, it ceased to have any effect in law from the time of coming into operation of the Constitution. Hence, it had no force in law at the date of the passing of the Criminal Law Act, 1997 and its purported amendment by that Act had no legal effect. Put simply, there was no provision in force capable of being amended by item number 7 of the First Schedule of the Act. The Oireachtas did not in 1997 purport to re-enact s. 2(1). It mistakenly assumed that it was still in force. The amendment of 1997 took the form of the deletion of the words “of or over the age of fifteen years and” from s. 2(1) of the Act of 1935. The Oireachtas did not purport to re-enact section 2(1) as it had done, in the case of s. 29 of the Courts of Justice Act, 1924, by s. 48 of the Courts (Supplemental Provisions) Act, 1961, considered in People (Attorney General) v. Conmey.
This is, of course, a highly unusual, even unique, situation. It is the consequence of the existence at this point in time of a judgment of this Court declaring inconsistent with the Constitution a materially identical provision. The decision in C.C. v Ireland is crucial. The situation is quite different from the legislative provision at issue in ESB v Gormley, cited above. In that case, there were two provisions in force, which were amended in a way which the Court found to amount to effective re-enactment.

Section 2(1) of the Act of 1935 was, for the same reason as was held in relation to s. 1(1) in C.C., inconsistent with the Constitution. It did not survive the entry into force of the Constitution. It was not in force in 1997 and could not be amended by the Criminal Law Act of that year.”

12. As Fennelly J. explained, ZS must be regarded as an exceptional – perhaps even unique – case. The Court appears to have regarded it as a case where by reason of the invalidation of the “materially identical” provision contained in s. 1 of the 1935 Act in CC, s. 2 had simply ceased to exist on the enactment of the Constitution and so that there was nothing left to amend at the time of the 1997 Act. Yet even though s. 18 is contained in the very same enactment as both ss. 1 and 2, it cannot be said that a materially identical provision has already been found to be unconstitutional. In these circumstances, the approach in ZS would seem to have no application to the present case.
13. The question accordingly remains whether the amendments effected by the 1990 Act can be regarded as so material that the original section was effectively re-enacted. Here the test has been most helpfully enunciated by Finlay C.J. in Gormley:

“It is equally clear that the mere fact of an amendment of a pre-Constitution statute contained in a statute passed after the coming into force of the Constitution does not of itself give to that pre-Constitution statute a presumption of validity. With regard to s. 53 of the Act of 1927, however, and the amendment made in it by s. 46 of the Act of 1945, the view of the Court is that the nature and terms of that amendment, which extends and expands the nature of the works to which s. 53 originally applied, and the terms of the amendment, which not only made that extension but deemed the meaning of “electric line” in s. 53 of the Act of 1927 to have always had this extended or expanded meaning, effectively re-enacted s. 53 as part of a post-Constitution statute. Similar considerations apply to the amendment of s. 98 of the Act of 1927 contained in s. 5 of the Act of 1941 which, though less extensive than that contained in s. 46 of the 1945 Act, expressly extends the powers of the Board contained in s. 98 to a new event or category of case, namely, its requirement to make a survey only, as distinct from the placing of a line.”
14. Applying this test to the present case it can be seen that the offence remains entirely unaltered, save for the question of penalty. Unlike the situation in Gormley, it cannot be said that the offence applies to new events or categories of cases. At least in a case where the plaintiff is challenging the nature of the offence – as distinct, perhaps, from the nature of the penalty – the strengthening of the penalty provisions would not seem to have the effect of re-enacting a pre-Constitution statute such as s. 18 of the 1935 Act so as to the treat it for present purposes as if it were a statute enacted after the enactment of the Constitution.
15. In these circumstances, the statute must be treated as a pre-1937 statute which does not enjoy any formal presumption of constitutionality. The plaintiff must nonetheless establish and prove that the section is inconsistent with the Constitution and was thus not carried over by Article 50.1 of the Constitution. As I have already hinted, one must however doubt whether the onus of proof which rests on the plaintiff in such cases is materially different even if the case falls to be treated for constitutional consistency under Article 50.1 (in the case of a pre-1937 statute) as distinct from Article 15.4 and Article 34.3.2 (in the case of a post-1937 statute).
Does the plaintiff have standing to challenge the constitutionality of the section?
16. It is clear that the mere fact that the plaintiff has been charged with two offences under s. 18 of the 1935 Act is sufficient in itself to give him general standing to challenge the constitutionality of the relevant parts of the section: see, e.g., the Supreme Court’s decisions in CC v. Ireland (No.1) [2005] IESC 48, [2006] 4 IR 1 and Osmanovic v. Director of Public Prosecutions [2006] IESC 50, [2006] 3 IR 504.

17. It is equally clear that the plaintiff does not have standing to challenge the constitutionality of the offending modesty offence in respect of which he has not been charged. This conclusion can be justified on the basis that he is not imminently prejudiced by the operation of that part of the section: see, e.g., Cahill v. Sutton [1980] I.R. 269, 282 per Henchy J. Or one can just as easily defend that restriction on the basis that the plaintiff would in essence be here advancing on a hypothetical basis the right of a putative third party who might be so charged with the offence of offending modesty: see again Cahill v. Sutton [1980] I.R. 269, 282-283, per Henchy J. It was on this basis that, for example, Laffoy J. held in Maloney v. Ireland [2009] IEHC 291 that the plaintiff in that case – who had been arrested under s. 30(1) of the Offences against the State Act 1939 on the basis that he was suspected of having committed a scheduled offence – had no standing to challenge the constitutionality of that sub-section inasmuch as it allows for the arrest of persons “merely suspected of being in possession of information relating to the commission or intended commission of an offence”.

18. So much of this is not really in dispute between the parties. The defendant contends, however, the plaintiff does not have standing to challenge the constitutionality of the section because, irrespective of any vagueness or uncertainty which attaches to the section, the conduct of the plaintiff necessarily fits into any definition of the offence of causing scandal or injuring the morals of the community. For my part, however, I would reject that argument for two principal reasons.

19. First, there is no doubt but that any conduct of an overt sexual nature in public is liable to cause considerable offence and annoyance and, depending on the precise circumstances and the nature of the conduct in question, perhaps even shock and disgust to the average member of the public. But it does not necessarily follow that no matter how objectionable or even reprehensible such conduct would be regarded by the average member of the public that it would be necessarily regarded as the equivalent of causing scandal or as injuring the morals of the community. This is really a function of the inherent vagueness of the offences. After all, a scandal is generally a much publicized event involving moral turpitude which exercises members of the community generally, although in practice it often is regarded as effectively synonymous with objectionable conduct. Moreover, how could the question of whether the morals of the community have in fact been injured be objectively ascertained?

20. Second, the plaintiff is, in any event, entitled to know the nature of the offence (as distinct from the nature of the conduct alleged) with which he has been charged. This is perhaps just another way of saying that the plaintiff has a constitutional entitlement to legal certainty in the sphere of criminal offences. If, however, the offences are themselves so hopelessly vague that they cease to have any real meaning, then it matters not that the conduct alleged would be regarded by most as quite deplorable or that it should otherwise come within the scope of the criminal law.

21. Here it must be recalled that the standing rules are but rules of practice designed to conserve the exercise of the power of judicial review of legislation and guard against the improvident exercise of that power. If I might venture to repeat what I said on the related topic of mootness in Salaja v. Minister for Justice [2011] IEHC 51:

“The mootness doctrine is a rule of judicial practice which is designed to ensure the proper and efficient administration of justice. It thus shares a close affinity with other judicially created rules of practice, such as the rules relating to locus standi, the rule of avoidance and the doctrine of justicability. These doctrines and rules of practice may all said to be constitutionally inspired – in particular, by the doctrine of separation of powers reflected in Articles 6, 15, 28 and 34 of the Constitution – even if they are not actually constitutionally mandated in express terms. As Article 34.1 of the Constitution provides that the administration of justice is committed to the courts, the courts must endeavour to fulfil that mandate by confining themselves to the resolution of actual legal controversies. If they were to do otherwise, then the courts would stray beyond that proper constitutional role of administering justice as between parties to a legal dispute, inasmuch as such decisions would amount to purely “advisory opinions on abstract propositions of law”: see Hall v. Beals 396 U.S. 45 (1969)(per curiam). Outside of the special confines of Article 26 (which, in any event, provides for a binding decision – and not merely an advisory opinion – by the Supreme Court on the constitutionality of a Bill following a reference by the President), the provision by judges of such advisory opinions would not, at least generally speaking, serve the proper functioning of the administration of justice, since if unchecked or not kept within clearly defined limits, it would involve the judicial branch giving gratuitous advice on legal issues to the Oireachtas and the Government, a function which was never conferred on it by the Constitution. The mootness doctrine further serves the interests of the proper administration of justice by conserving scarce judicial resources.”
22. But just as the standing rules are designed to guard against the improvident exercise of judicial power in the sphere of constitutional adjudication, the courts must equally set their face against any tendency towards over-refined locus standi rules. If it were otherwise, then there would be a real danger that pedantry, formalism and rigid characterisations would obscure the very purpose of these rules at the expense of the meritorious plaintiff.
23. Here it is perhaps sufficient to say that the plaintiff’s constitutional entitlements – one of which is the right to legal certainty in the sphere of criminal law – is actually or potentially affected by the operation of the relevant parts of s. 18 simply by reason of the fact that he has been charged with these offences. This is in itself enough to confer upon him the standing to challenge the constitutionality of these statutory offences.
Legal certainty and the operation of the criminal law
24. At the heart of the plaintiff’s challenge is that the offences created by s. 18 are so vague and uncertain in their remit and potential application that they are contrary to the fundamental principle of legal certainty in criminal matters which is at the heart of Article 38.1. This principle was articulated thus by Kenny J. in King v. Attorney General [1981] I.R. 233, 264:

“Article 38.1 of the Constitution provides ‘no person shall be tried on any criminal charge save in due course of law.’ If the ingredients of the offence charge are vague and uncertain, the trial of the alleged offence based on those ingredients is not in due course of law.”
25. Similar sentiments are to be found in the more recent judgment of Hardiman J. in The People (Director of Public Prosecutions) v. Cagney [2008] 2 IR 111, 121-122:
“From a legal and constitutional point of view, it is a fundamental value that a citizen should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful.”
26. It must be here acknowledged, however, that in a common law system such as ours, absolute precision is not possible. One may therefore have perfectly general laws which can be adapted to new sets of facts within certain defined parameters, provided that the laws themselves articulate clear and objective standards. By analogy with what was stated by the Supreme Court in Cagney, it must also be clear that any judicial development in the sphere of criminal law must be largely incremental in nature, based on parameters which are obvious from earlier legal doctrine and jurisprudence. I would accordingly adopt in this context that which was stated by Lord Bingham in R. v. Rimmington [2005] UKHL 63, [2006] 1 AC 459 in the context of Article 7 ECHR. (Article 7 is the ECHR provision which corresponds to Article 15.5.1 of the Constitution, which later provision is itself discussed below)([2006] 1 AC 459, 483):
“The starting point is the old rule nullum crimen, nulla poena sine lege (Kokkinakis v Greece (1993) 17 EHRR 397, para 52; SW and CR v United Kingdom (1995) 21 EHRR 363, para. 35/33): only the law can define a crime and prescribe a penalty. An offence must be clearly defined in law (SW and CR v United Kingdom), and a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to foresee, if need be with appropriate advice, the consequences which a given course of conduct may entail (Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49; G v Federal Republic of Germany (1989) 60 DR 256, 261, para 1; SW and CR v United Kingdom, para 34/32). It is accepted that absolute certainty is unattainable, and might entail excessive rigidity since the law must be able to keep pace with changing circumstances, some degree of vagueness is inevitable and development of the law is a recognised feature of common law courts (Sunday Times v United Kingdom, para 49; X Ltd and Y v United Kingdom (1982) 28 DR 77, 81, para. 9; SW and CR v United Kingdom, para 36-34). But the law-making function of the courts must remain within reasonable limits (X Ltd and Y v United Kingdom, para. 9). Article 7 precludes the punishment of acts not previously punishable, and existing offences may not be extended to cover facts which did not previously constitute a criminal offence. The law may be clarified and adapted to new circumstances which can reasonably be brought under the original concept of the offence (X Ltd and Y v United Kingdom, para. 9; G v Federal Republic of Germany, pp 261-262). But any development must be consistent with the essence of the offence and be reasonably foreseeable (SW and CR v United Kingdom, para. 36-34), and the criminal law must not be extensively construed to the detriment of an accused, for instance by analogy (Kokkinakis v Greece, para 52).”
27. But in addition to Article 38.1 (and, of course, the corresponding protection of personal liberty in Article 40.4.1) there are, in truth, a number of other inter-locking constitutional provisions which also re-inforce this conclusion and which may be briefly mentioned at this juncture before returning to examine the constitutionality of the section.
The importance of Article 5 and Article 15.2.1
28. First, Article 5 describes the State as a democracy and Article 15.2.1 vests the Oireachtas with exclusive legislative powers. This means that the Oireachtas must take care when enacting legislation to identify and specify the relevant principles and policies which define and map out the contours of any offence: see, e.g., the judgment of O’Higgins C.J. in City View Press Ltd. v. AnCO [1980] I.R. 381 and that of O’Donnell J. in McGowan v. Labour Court [2013] IESC 23. This requirement is a cornerstone of democratic control of the executive and judicial branches by the legislative branch pre-supposed by Article 5. A law which did not articulate such principles and policies would, more often than not, also be regarded as impermissibly vague for Article 38.1 purposes in addition to offending a basic requirement of Article 15.2.1.

29. There is, accordingly, a clear connection between the duty of the Oireachtas to articulate such principles and policies in legislation creating criminal offences in order to satisfy the requirements of Article 15.2.1 and the vagueness doctrine. A vague law “impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application”: Grayned v. City of Rockford 408 US 104, per Marshall J. But, of course, as the judgment of O’Donnell J. in McGowan itself powerfully illustrates, this is precisely what the Oireachtas may not do. It is rather the duty of the legislative branch to articulate clear standards in legislation which will lend themselves to the fair, consistent and even-handed application of the law. Rigorous adherence to this requirement is especially important in the context of the criminal law, not least given that the subjective, arbitrary and inconsistent application of that law represents the very antithesis of Article 40.1 and its commitment to fundamental equality of all before the law.
The relevance of Article 15.5.1
30. Article 15.5.1 provides that:

“The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.”
31. The relevance of this provision in the context of vague and uncertain criminal laws is really self-evident. Article 15.5.1 complements the requirement of trial “in due course of law” in Article 38.1 by prohibiting the retrospective creation of either a criminal offence or the imposition of civil liability. The object of these provisions is to bring clarity in the sphere of criminal law so that citizens can order their affairs to ensure that they do not transgress any such law. Laws which purport to create vague offences invariably also breach Article 15.5.1 as it is impossible even with appropriate advice to foresee the proper scope and application of such a law and because this very vagueness further makes it impossible to ascertain whether the law in question retrospectively criminalises conduct not clearly prohibited by the law.
32. The Supreme Court’s decision in Cagney provides a good illustration of these difficulties. Here the accused had been charged with the new offence of endangerment provided for by s. 13 of the Non-Fatal Offences against the Person Act 1861:

“A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.”
33. The Supreme Court expressed anxiety that the very generality of this statutory language might expose the citizen to retrospective criminalisation. As Hardiman J. put it ([2008] 2 IR 111, 120, 121):
“It will be seen that the offence is general in scope and not specific, so that it may be applied after the event to events which are not obviously criminal in themselves and whose legality or otherwise cannot be accurately assessed in advance. For example, would the terms of the statute extend to an omission to assist an individual in circumstances which, perhaps, would involve some risk to an intervener? Does it extend to actions done with the alleged victim’s consent as in the context of extreme sports? These are important questions and the fact that the answers to them are not immediately apparent indicates just how radically the law has (or, at least, may have been) altered by s. 13…
There is, however, a possibility that the section might be interpreted over-broadly so as to cover circumstances which the legislature had not considered, and to criminalise certain things which are not and were not intended to be the subject of prohibition. I have given an example earlier in this judgment, relating to a possibly criminal omission to act in particular circumstances. Equally, the question may arise of whether the consent of the person allegedly endangered to run a risk, if established, is of any relevance: this could clearly be a crucial matter if a person is killed while engaging voluntarily in a dangerous sport. This question is not addressed in the statute….
In the present case, there was no root and branch attack on the section by suggesting that it was inconsistent with the Constitution, and it is, of course, entitled to the benefit of a presumption of constitutionality. Nevertheless the obvious potential for conflict with the fundamental value that crimes must be defined with precision and without ambiguity so that the criminal law is “certain and specific” require that this notably open ended section be carefully, and indeed strictly, construed in accordance with fundamental principles of law and of construction.”

34. It is against the background of these general constitutional considerations that we can now proceed to examine the constitutionality of the statute.
The constitutionality of s. 18
35. The leading authorities on the principle of legal certainty in the sphere of criminal offences are, of course, King v. Attorney General [1981] I.R. 233 and Dokie v. Director of Public Prosecutions [2011] IEHC 110, [2011] 1 I.R. 805. In King the plaintiff successfully challenged the constitutionality of part of s. 4 of the Vagrancy Act 1824 which had created the offence of loitering with intent to commit a felony, a constituent element of which was the frequenting by “every suspected person or reputed thief” of any of the places listed in the Act with the intention of committing a felony. The Supreme Court held that this section was unconstitutionally vague for reasons memorably articulated by thus by Henchy J. ([1981] I.R. 233, 257):

“The ingredients of the offence and the mode by which its commission may be proved are so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, so prone to make a man’s lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the same conduct, when engaged in by another person in similar circumstances, would be free of the taint of criminality, so out of keeping with the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow-citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct, and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”
36. The Supreme Court accordingly held that the portion relating to the offence committed by “every suspected person or reputed thief” was unconstitutional as at variance with various constitutional requirements including Article 38.1, Article 40.3.1 and Article 40.4.1.
37. The decision of Kearns P. in Dokie is in much the same vein. In this case the applicant successfully challenged, on King grounds, the constitutionality of s. 12 of the Immigration Act 2004. This section provided that:

“(1) Every non-national shall produce on demand, unless he or she gives a satisfactory explanation of the circumstances which prevent him or her from so doing-
(a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and
(b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate.

(2) A non-national who contravenes this section shall be guilty of an offence. (Emphasis supplied).”
Kearns P. held that the words “satisfactory explanation” did not prescribe an objective test and lent itself to potentially arbitrary application ([2011] 1 I.R. 805, 818-819):
“I am of the view that the failure to define the term ‘satisfactory explanation’ within s. 12 of the Act does give rise to vagueness and uncertainty. The section as worded has considerable potential for arbitrariness in its application by any individual member of An Garda Síochána. There is no requirement in s.12 that the demanding officer should have formed any reasonable suspicion that the non-national has committed a crime, is about to commit a crime or is otherwise behaving unlawfully before he or she can require the non-national to provide a ‘satisfactory’ explanation for the absent documents….In my view s. 12 is not sufficiently precise to reasonably enable an individual to foresee the consequences of his or her acts or omissions or to anticipate what form of explanation might suffice to avoid prosecution. Furthermore, there is no requirement in the section to warn of the possible consequences of any failure to provide a ‘satisfactory’ explanation. As a result, the offence purportedly created by s. 12 is ambiguous and imprecise. In my view it lacks the clarity necessary to legitimately create a criminal offence.”
38. Judged by the standards articulated in King and in Dokie, it is plain that s. 18 fails these tests by a wide margin. It would have to be acknowledged that the actus reus of the two offences, public scandal and injuring the morals of the community, are totally unclear. As already noted, these terms have no defined legal meaning and no clear legal principles and policies are thereby articulated. The term “scandal” is perhaps an overused word, not least in this country. But it is highly subjective in its application and meaning. The passer-by who, for example, happened to encounter an adult couple engaged in overt sexual activity in a public park might well find the conduct objectionable and perhaps even highly offensive without necessarily thinking that any scandal was thereby created. Others might think that the word “scandal” was really a synonym for conduct deemed by them to be objectionable and unacceptable.
39. As has again been already noted, the reference to “morals of the community” is equally unclear. How are these to be determined and by whom? Even if, moreover, these community morals could be ascertained, how could one determine whether they have been injured?

40. There is furthermore no doubt but that, as O’Malley has pointed out in his great work, Sexual Offences: Law, Policy and Punishment (Dublin, 1996)(at 164-166), even by the early days of the section it had become clear that it was susceptible to a variety of differing, inconsistent and arbitrary applications throughout the State. A correspondent writing in the Irish Law Times and Solicitors’ Journal presciently commented shortly after the enactment of the section ((1936) 70 I.L.T.S.J. 70) that s. 18 was:

“an extremely wide and vague section and a great deal of commonsense will be required in its interpretation to make it properly and appropriately effective.”
41. That commonsense was, however, not always present. A year later the Irish Law Times and Solicitor’s Journal carried a report of where a couple were charged under s. 18 where the impropriety alleged was that the couple had been seen embracing and kissing in a pass used by the public which led to Church grounds: see (1937) 71 I.L.T.S.J. 298-299. Noting that the offence was aggravated by the fact that the offending behaviour occurred on Church property, District Justice Goff sentenced the woman in question to one months’ imprisonment. A more distinctly more liberal approach was evinced by District Justice Flood in Limerick where a £1 was imposed on a young couple “for acts offensive to public decency in a motor car”. District Justice Flood observed that he was not prepared to “impose penalties on young people for embracing and kissing”, but “the facts disclosed in the present case were of a very different nature”: see (1937) 71 I.L.T.S.J. at 299. Contemporary sensibilities were, however, spared as the learned District Justice did not, in fact, specify the exact nature of the conduct which had brought about this doubtless egregious violation of the criminal law.
42. Even if the crusading zeal which underlies these early prosecutions under s. 18 of the 1935 Act would be regarded by later generations with incredulity and astonishment, the fact remains that these early prosecutions graphically show the potential for arbitrariness, subjective application and the downright unfairness which is inherent in the section.
No true analogy between s. 18 of the 1935 Act and other sexual offences
43. In this context there is no true analogy between the scope of s. 18 of the 1935 Act and other sexual offences relied on by the State. These latter offences are in a distinctly different category. It is true that these offences are often expressed in general terms, but one will largely find that they either have a definite meaning (or, at least, have acquired it over time) in relation to specifically prohibited conduct or else that the relevant statute is expressed by reference either to defined conduct or its effects on reasonable people or that the judgment as to appropriate community standards of behaviour is left to a jury.

44. An example of the former category of statutory provision is provided by s. 4 of the Vagrancy Act 1824 which provides that it is an offence for any male “openly and lewdly” to expose his person to a female with the intent of insulting her. In Evans v. Ewals [1972] 2 All E.R. 22 the accused exposed part of “bare skin low down on his stomach” close to his pubic hair and was convicted of the offence by magistrates. The English High Court quashed the conviction, rejecting the argument that the offence referred to any part of the male body other than the penis. Ashworth J. said that ([1972] 2 All E.R. 22, 24):

“It seems to me that at any rate today, and indeed by 1824, the word ‘person’ in connection with sexual matters had acquired a meaning of its own, a meaning which made it a synonym for ‘penis’. It may be…that it was forerunner of Victorian gentility which prevented people calling a penis a penis, but however that may be that I am satisfied in my own mind that it has now acquired an established meaning to the effect already stated.”
45. The same can be said with regard to the offence of sexual assault (as the former offence of indecent assault was so named by s. 2(1) of the Criminal Law (Rape)(Amendment) Act 1990), even if there has been no statutory definition of the offence and even if actual offence still remains a common law offence. Here the parameters of the offence are not only tightly hemmed in by decades of established case-law, but the actus reus has clearly defined elements. There has, after all, to be an assault with a sexual element on another party by the accused.
46. As O’Hanlon J. explained in Doolan v. Director of Public Prosecutions [1993] I.L.R.M. 387, 391:

“Assault in the strict sense merely involved the threat to inflict unlawful force, however slight, on another person, making some movements which caused the other person to believe that such unlawful physical contact was imminent. A battery consists in the actual application of unlawful force, but the word ‘assault’ has been quite commonly used to include what should, more strictly, be called a ‘battery’.
47. This is why, for example, the conduct of a man in entering a train compartment and exposing his penis to a female in the compartment and making a sexual suggestion to her has been held to constitute the offence of sexual (formerly indecent) assault. Given these circumstances the female was naturally put in fear of unlawful force and the conviction for indecent assault was upheld in such circumstances by the English Court of Criminal Appeal on the basis that there had been an assault (i.e., the threat of unlawful violence), even if there had been no actual battery (i.e., the application of that unlawful force): see R. v. Rolfe (1952) 36 Crim. App. Rep. 4.
48. The offence of offensive conduct in a public place created by s. 5(1) of the Criminal Justice (Public Order) Act 1994 (“the 1994 Act”) may be regarded as an example of a provision which is couched in general terms but which still articulates clear and objective standards, as the term “offensive conduct” is defined by s. 5(3) as meaning:

“any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or serious annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour.”
49. Here it may be observed that the behaviour must not only be unreasonable, but it must also be likely to cause serious offence or serious annoyance to a victim or potential victim. This latter consideration has proved to be an important consideration for the European Court of Human Rights when considering somewhat analogous issues.
50. In Chorherr v. Austria (1993) the applicant and a friend distributed leaflets at a military parade calling for a referendum on the planned purchased by Austria of fighter jets. He was arrested for the administrative offence of causing a “breach of the peace by conduct likely to cause annoyance”. The legality of this arrest was upheld by the European Court on the ground that this prescribed a sufficiently objective standard which was measured by the impact of the conduct on others.

51. This point was further elaborated upon by the European Court in Hashman and Harrup v. United Kingdom [1999] ECHR 133, (2000) 30 EHRR 241. In this case the applicants had sought to sabotage a hunt by blowing hunting horns and by bellowing at hounds in order to distract them. The Crown Court found that no violence had been used by the applicants, so no question of a breach of the peace arose. It did find, however, that the applicants would repeat their behaviour unless checked by some form of sanction. They were bound over to keep the peace and to be of good behaviour (contra bonos mores). The European Court of Human Rights held that the contra bonos mores requirement did not satisfy the requirements of legal certainty for the purposes of accepting any restriction on the right of free speech must be prescribed by law for the purposes of Article 10(2) ECHR:

“The Court next notes that conduct contra bonos mores is defined as behaviour which is “wrong rather than right in the judgment of the majority of contemporary fellow citizens” (see paragraph 13 above). It cannot agree with the Government that this definition has the same objective element as conduct “likely to cause annoyance”, which was at issue in the Chorherr case….. The Court considers that the question of whether conduct is “likely to cause annoyance” is a question which goes to the very heart of the nature of the conduct proscribed: it is conduct whose likely consequence is the annoyance of others. Similarly, the definition of breach of the peace given in the case of Percy v. Director of Public Prosecutions [1995] 1 W.L.R. 1382 – that it includes conduct the natural consequences of which would be to provoke others to violence – also describes behaviour by reference to its effects. Conduct which is “wrong rather than right in the judgment of the majority of contemporary fellow citizens”, by contrast, is conduct which is not described at all, but merely expressed to be “wrong” in the opinion of a majority of citizens.
Nor can the Court agree that the Government’s other examples of behaviour which is defined by reference to the standards expected by the majority of contemporary opinion are similar to conduct contra bonos mores as in each case cited by the Government the example given is but one element of a more comprehensive definition of the proscribed behaviour.

With specific reference to the facts of the present case, the Court does not accept that it must have been evident to the applicants what they were being ordered not do for the period of their binding over. Whilst in the case of Steel v. United Kingdom (1998) the applicants had been found to have breached the peace, and the Court found that it was apparent that the binding over related to similar behaviour, the present applicants did not breach the peace, and given the lack of precision referred to above, it cannot be said that what they were being bound over not to do must have been apparent to them.”

52. Indeed, it may be noted that it was for rather similar reasons that in Kershaw v. Ireland [2009] IEHC 166 O’Neill J. rejected a challenge to the constitutionality of s. 6 of the 1994 Act. The section prohibits “threatening, abusive or insulting words or behaviour”, but provides that there must either be also an intent to provoke a breach of the peace or the accused is “reckless as to whether a breach of the peace is occasioned.” O’Neill J. held that these words “give to the section a certainty and precision which…excludes the kind of vagueness which could lead to innocent behaviour being criminalised….”
53. One might add that, in line with the reasoning of the ECHR in Hashman, the conduct prohibited by s. 6 of the 1994 Act is measured by reference to the likely effect of such conduct on others, a key consideration in ensuring that the offence prescribed an objective and ascertainable standard.

54. Nor can any true comparison be drawn between s. 18 of the 1935 and the common law offence of outraging public decency which is an indictable misdemeanour at common law. This offence has been defined by O’Malley (Sexual Offences, at 159) as consisting of the performance of an act which is (i) lewd, obscene and disgusting; (ii) an outrage to public decency and (iii) in public. Based on the authority of cases such as R. v. Lunderbech [1991] Crim LR 784 the plaintiff might well have been accused of this offence. In Lunderbeck the accused masturbated himself while watching children playing in a public park. Even though there was no evidence that the children saw or noticed anything irregular and even though his genital area was covered by a cloth, the accused’s conviction following jury trial of the common law offence of outraging public decency was upheld by the English Court of Appeal (Criminal Division).

55. The critical feature of this offence, however, so far as the present case is concerned is that it is indictable, so that the determination of whether community standard have been outrageously violated will be determined by a jury. As Hamilton P. noted in Attorney General (Society for the Protection of Unborn Children Ltd.) v. Open Door Counselling Ltd. [1986] I.R. 593, 615 in respect of an offence of this kind :

“When a case turns on public morals or standards, the question is for the jury though, of course, the judge rules whether there is evidence upon which they can find the case proved.”
56. The fact, therefore, that the jury is the ultimate judge in such cases of whether community standards have been so violated is itself a factor which points towards the existence of an objective and ascertainable standard. That protection is noticeably absent here, since, by contrast, the offence created by s. 18 is only triable summarily, so that the accused has no right to opt for jury trial.
Conclusions on the constitutional issue
57. In my view, the present case is indistinguishable from cases such as King, Dokie and, for that matter, Hashman. The offences of causing scandal and injuring the morals of the community are hopelessly and irremediably vague; they lack any clear principles and policies in relation to the scope of what conduct is prohibited and they intrinsically lend themselves to arbitrary and inconsistent application. In these circumstances the conclusion that the offences offend the guarantees of trial in due course of law in Article 38.1, the guarantee of equality before the law in Article 40.1 and the protection of personal liberty in Article 40.4.1 is inescapable.

58. For good measure, I would add that the section also fails the Cityview Press test inasmuch as the Oireachtas has failed to articulate clear principles and policies which mark out that conduct which is prohibited and that which is not. To that extent, therefore, I would hold that the relevant offences contravene Article 15.2.1 and, for that matter, Article 15.5.1.

59. None of this is to suggest for a moment that the Oireachtas could not legislate to create new offences which would address conduct of this nature in public. What is, however, required is that any such new legislation contains adequate principles and policies in order to meet the requirements of Article 15.2.1 on the one hand and articulates prohibitions by reference to objectively ascertainable standards in order to meet the requirements of Article 38.1 on the other.
Severance
60. The only remaining issue is whether the offences of causing scandal and injuring the morals of the community can be severed from the remaining offence of offending modesty. In my view it can, as once the offending offences have invalidated, then, to adapt the words of Fitzgerald C.J. in Maher v. Attorney General [1973] I.R. 140, 147, “the remainder may be held to stand independently and legally operable as representing the will of the legislature.” In the present case, severance is accordingly possible. Recalling that the constitutionality of this remaining offence was not before the Court, one can nonetheless read s. 18 in the wake of the declaration of unconstitutionality which has been made as creating one single offence, namely, that of offending modesty.
Conclusions
61. It remains only to summarise my principal conclusions.

62. First, the plaintiff has standing to challenge the constitutionality of the section. It matters not that the conduct in question might be criminalised under some new version of the statute which the Oireachtas might enact at some point in the future or indeed that he might have been charged with a different offence in respect of this conduct. The plaintiff is entitled to object to legislation which is unconstitutionally vague and lacks clear principles and policies.

63. Second, the plaintiff can, however, only challenge those provisions of the section which directly affect his interests. Accordingly, since he has been charged only with the offences of causing scandal or injuring the morals of the community, he has no standing to challenge the constitutionality of the offence of offending modesty in s. 18 of the 1935 Act.

64. Third, the changes effected to the penalty provisions of s. 18 of the 1935 Act by s. 18 of the 1990 Act do not have the effect of re-enacting s. 18 of the 1935 Act as it were a post-1937 statute. It follows, therefore, that the section enjoys no formal presumption of constitutionality, although the onus of proof in relation to establishing the invalidity of the section rests with the plaintiff.

65. Fourth, the offences of causing scandal and injuring the morals of the community are hopelessly vague and subjective in character and they intrinsically lend themselves to arbitrary and inconsistent application. No clear standard of the conduct which is prohibited by law is articulated thereby and s. 18 does not contain any clear principles and policies. In this respect the relevant provisions of s. 18 are manifestly unconstitutional and are inconsistent with Article 15.2.1, Article 15.5.1, Article 38.1, Article 40.1 and Article 40.4.1 of the Constitution.

66. Fifth, since the plaintiff has no standing to challenge the offence of offending modesty and since that offence is capable of having a distinct and independent existence from the offences of causing scandal and injuring the morals of the community, it is possible to sever the offending words from s. 18 of the 1935 Act.

67. Sixth, I will accordingly declare in accordance with Article 50.1 of the Constitution that the words “or cause scandal or injure the morals of the community” contained in s. 18 of the 1935 Act are inconsistent with the Constitution and that these two offences thereby created by that section did not survive its enactment.

68. Seventh, none of this is to suggest that the Oireachtas could not legislate to create new offences which would address conduct of this nature in public. What is, however, required is that any such new legislation contains adequate principles and policies in order to meet the requirements of Article 15.2.1 on the one hand and articulates prohibitions by reference to objectively ascertainable standards in order to meet the requirements of Article 38.1 on the other.

Approved: Hogan J.

The facts of this case illustrate all too clearly the serious problems faced by immigration authorities in endeavoring to control and deal with undocumented persons entering this jurisdiction. The applicant currently resides in a reception centre in the State with her daughter and presumably is supported from State resources. Leave was granted in relation to these proceedings on 7th July, 2010.

RELEVANT LAW
Section 1(1) of the Immigration Act 2004 provides that the term “non-national” has the meaning assigned to it by the Act of 1999. The Immigration Act 1999 defines a “non-national” as “an alien within the meaning of the Act of 1935 other than an alien to whom, by virtue of an order under section 10 of that Act, none of the provisions of that Act applies.”

Section 11 of the Immigration Act 2004, the validity of which is not challenged in these proceedings, provides:

“(1) Every person (other than a person under the age of 16 years) landing in the State shall be in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality to the satisfaction of an immigration officer.
(2) Every person landing in or embarking from the State shall furnish to an immigration officer such information in such manner as the immigration officer may reasonably require for the purposes of the performance of his or her functions.

(3) A person who contravenes this section shall be guilty of an offence.

(4) This section does not apply to any person (other than a non-national) coming from or embarking for a place in the State, Great Britain or Northern Ireland.”

Section 12 of the Immigration Act 2004 provides:

“(1) Every non-national shall produce on demand, unless he or she gives a satisfactory explanation of the circumstances which prevent him or her from so doing-
(a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and

(b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate.

(2) A non-national who contravenes this section shall be guilty of an offence.

(3) In this section ‘on demand’ means on demand made at any time by any immigration officer or a member of the Garda Síochána.

(4) This section does not apply to-

(a) a non-national who is under the age of 16 years, or

(b) a non-national who was born in Ireland.”

Section 13 of the Immigration Act 2004 states:

“(1) A person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both.
(2) A member of the Garda Síochána may arrest without warrant a person whom he or she reasonably suspects to have committed an offence under this Act (other than section 10) or section 2(1) of the Employment Permits Act 2003).”

SUBMISSIONS OF THE APPLICANT
Section 12 of the Act of 2004 confers upon an Immigration Officer or a member of An Garda Siochana the power to stop any non-national and demand the production of their passport if the individual in question is subject to mandatory registration requirements. The section creates a criminal offence punishable by up to one year’s imprisonment for the failure of a non-national to give a satisfactory explanation of circumstances which prevent them from providing a passport and a registration certificate when demanded of them by an Immigration Officer or member of An Garda Siochana.

Counsel argued that s. 12 is objectionable on various grounds which include the following:- (i) the words purporting to create a criminal offence are too vague and imprecise; (ii) s. 12 is a disproportionate interference with the equality provisions in the Constitution; and (iii) the procedure provided for under s.12 either constitutes or permits an abuse of process in that the applicant should have been either prosecuted under s. 11 of the Act or made the subject of civil detention under s. 9 of the Refugee Act 1996. It was argued that to prosecute the applicant repeatedly under s. 12 when, to the knowledge of the gardai, she did not have a valid passport or proof of identity, is objectionable as an abuse of process.

In relation to (i), counsel argued that a person must be able to ascertain, with some measure of certainty, what conduct is prohibited before they can be subject to the criminal law. Counsel stated that she had been unable to find any other criminal offence in which the absence of a “satisfactory explanation” forms part of the actus reus of the offence as provided for by s. 12 of the Act. Due to the uncertainty of the phrase “satisfactory explanation” in s. 12, it could not properly form the basis of any criminal offence. In advancing that argument, counsel contended that as the section contained no standard for determining what constituted a “satisfactory explanation” the test became a subjective test, that is to say, a test of what in the opinion of the arresting garda constituted a ‘satisfactory explanation’. A further difficulty lay in the fact that s. 12 imposed a heightened obligation on a suspect to provide a ‘satisfactory’ rather than a ‘reasonable’ explanation. Counsel submitted that there was a significant difference between a ‘satisfactory’ and a ‘reasonable’ explanation and the test of an objective standard could only attach to the latter of the two. By definition a ‘satisfactory’ explanation was one which had to satisfy an individual member of an Garda Síochána. In that context a particular explanation offered might satisfy one member but not another. The same could be said in respect of any judge called upon to determine whether or not to convict the applicant.

Counsel further submitted that once the absence of a “satisfactory explanation” becomes part of the actus reus of the offence it must be the case that the section violates the principle against self – incrimination. The section thus also violates Article 38.1 of the Constitution which provides that “No person shall be tried on any criminal charge save in due course of law” and also Article 40. 4. 1° which provides that “No citizen shall be deprived of his personal liberty save in accordance with law.” Counsel also placed reliance upon Article 5 of the European Convention on Human Rights which provides that “Everyone has the right to liberty and security of person.” In this regard, counsel relied upon the cases of Steel & Ors. v. The United Kingdom [1998] ECHR 95 and Gillan and Quinton v. The United Kingdom [2010] ECHR 28 as authority for the proposition that the law must be formulated with sufficient precision to reasonably allow an individual to foresee the consequences of his or her acts or omissions.

In relation to (ii), the applicant argued that s.12 is unconstitutional as a disproportionate interference with various constitutional rights to which the applicant is entitled. Article 40.1 of the Constitution provides:-

“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
Article 40.3 of the Constitution provides that :-
“1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

Counsel argued that s. 12 fails to accord equal treatment to the applicant and in fact discriminates against her on the grounds of her status as an undocumented non-national. There is no requirement on Irish nationals to carry identification and the fact that a non-national is required under s.12 to carry identification documents at all times amounts to unequal treatment. This unequal treatment is without any adequate justification and the requirement to carry both forms of documentation amounts to a disproportionate interference with the applicant’s right to equality. Furthermore, as s. 12 requires that both documents be provided, it does not satisfy the test set out by the Supreme Court in the case of In re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 in that the requirement to produce a passport and a TRC upon demand is too onerous and fails to be justified as an adequate and objective requirement in fulfilling a legitimate purpose of the State’s need to control immigration. This requirement amounts to treatment that is unfair, arbitrary or invidious so as to constitute unequal treatment within the meaning of Article 40.1 of the Constitution.
Counsel also noted Article 14 of the European Convention on Human Rights which provides:-

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
It was submitted that Article 14 of the Convention was engaged and the applicant relied upon the case of Belgian Linguistic Case (No.2) (1968) 1 EHRR 252 in this regard.
Counsel directed the attention of the Court to provisions of the Immigration Residence and Protection Bill 2010 noting that the section purporting to replace s.12 has an either/or element i.e. either the individual’s valid passport/equivalent identification documentation or the TRC would be requested from a person on foot of such a demand from a demanding officer. This could be seen as an acknowledgement that the requirements under s.12 of the Act of 2004 were excessive.

Counsel also argued in the context of proportionality that it had been open to the respondent in this case to have invoked s. 9(8) of the Refugee Act 1996, which provides for civil detention, as opposed to s. 12 of the Immigration Act 2004 which provides for offence, conviction and criminal detention. S. 9 (10) of the Act of 1996 further provides that the maximum period of civil detention will be 21 days, although this term can be renewed by the District Court where satisfied that continued detention is merited. Section 10 (4) of the Refugee Act 1996 prescribes that a person detained under the provisions of the Act of 1996 must be dealt with expeditiously. No such savers appear in s. 12 of the Act. The essence of the applicant’s argument in this regard was that there is a less draconian regime available which the respondent should have utilised in the circumstances of this case.

In relation to (iii), counsel argued that the arrest and prosecution of the applicant for the further alleged offence on 29th May, 2008 in circumstances where the respondent was aware that the applicant was unable to produce a valid passport or other equivalent document constituted an abuse of process, particularly as the applicant had been previously prosecuted for failing to produce the same category of documentation. The gardai were aware that on that date the applicant was in possession of a valid TRC, albeit that that document did not establish her identity or nationality. It did however constitute evidence of her entitlement to reside in the State and was evidence that she had complied with her obligation to register her presence in the State pursuant to s. 9 of the Act of 2004. Counsel emphasized that to the extent that the State might be seen to be prosecuting the applicant in order to establish her identity, any such deployment of the section would amount to an abuse of process. That had been made clear in the judgment of O’Neill J. in Olafusi v. Governor of Cloverhill Prison & Anor. [2009] IEHC 558.

SUBMISSIONS OF THE RESPONDENT
Counsel for the respondent stressed that s. 12 of the Act enjoys a presumption of constitutionality. In the case of In re Article 26 and the Planning and Development Bill 1999 [2000] 2 IR 321, the Supreme Court held that the presumption of constitutionality applied with particular force to legislation dealing with controversial social and economic matters. Counsel argued that the presumption of constitutionality applies with particular force to the provisions of the Immigration Act 2004 as the Oireachtas is given significant power to legislate in respect of non-nationals and their activities in the State.

The State must legislate for the common good and the protection of the rights of its citizens and it is the right of the State to control and regulate the entry, departure and activities of non-nationals in the State; Osheku v. Ireland [1986] 1 I.R. 733; In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; A.O. & D.L. v. Minister for Justice, Equality and Law Reform[2003] 1 I.R. 1; and Bode v. Minister for Justice, Equality and Law Reform [2008] 3 IR 663 were relied upon in support of this argument. The power of the State to regulate the activities of non-nationals is significantly greater than it is in respect of citizens of the State. Citizens of the State enjoy rights and protections under the Constitution which are not enjoyed by non-nationals. That difference in treatment is legitimately and appropriately grounded in the State’s overarching requirement to regulate the admission of non-nationals into the State.

It was not the case that because the applicant has no documentation she is thereby liable to be arrested and convicted. The analogy drawn by the applicant with s. 4 of the Vagrancy Act 1824 was misplaced. There is no compulsion on an applicant to provide an explanation; it is an option which the applicant could have availed of when the demand for documentation was made of her. The applicant in these proceedings did not avail of this opportunity to give an explanation and this fact should be seen as greatly diminishing any claim made by or on behalf of the applicant that she was treated unfairly or oppressively. Furthermore although the applicant was actually in possession of a TRC on the 28th May, 2008 she chose not to produce that document to the member of An Garda Síochána.

Counsel noted that s. 12 contains an important safeguard in that it relieves a non-national from the obligation to produce either of the two documents when they have been demanded where he or she gives a “satisfactory explanation” of the circumstances which prevent him or her from so doing. Counsel for the respondent submitted that the significance of this saver had been entirely overlooked and misunderstood by the applicant. Furthermore, s.12, in not limiting or restricting the range of explanations that may be proffered, affords non-nationals enormous latitude and it is for this reason that the inclusion of this qualification acts as a safeguard in such circumstances. The offence lies in not having a passport. The ‘explanation’ provided for under the section is not part of the actus reus but a defence. It affords non-nationals in such circumstances an opportunity to explain, to the satisfaction of the demanding officer, their reasons for their failure to provide the required documentation. This is an objective test and not subjective to an individual demanding officer. In any event a further safeguard is evident in that it is for the District Court to assess whether a “satisfactory explanation” in fact was given regardless of what the arresting Garda might believe. Section 12 does not require or compel a non-national to provide an explanation. A non-national is perfectly free to provide no explanation and, instead, to provide the passport or other equivalent document which establishes his or her identity and nationality which the non-national is obliged to possess when landing in the State by virtue of s. 11 of the Act of 2004. The obligation to possess a passport or other equivalent document which establishes her identity and nationality is not disputed by the applicant as evidenced by the fact that s. 11 was not challenged in these proceedings. Section 12 does not interfere with the privilege against self-incrimination as there is no obligation to speak or to provide an explanation regarding the required documentation. The applicant’s reliance upon the case of King v. The Attorney General [1981] 1 I.R. 233 was misplaced. That case concerned the statutory crime of vagrancy under which it was sufficient to prove that the accused was a “suspected person” or “reputed thief” who was loitering. The Supreme Court held, at p.263, that the terms ‘suspected person’ and ‘reputed thief’ were so uncertain that they could not form the foundation for a criminal offence. No such uncertainty about the meaning of words arises under s.12 and it was thus clear that the section is not unconstitutional or incompatible with the Convention.

In relation to the applicant’s argument that s. 12 breaches the right to equal treatment before the law which is protected by the Constitution, counsel for the respondent claimed that the applicant’s complaints based upon Article 40.1 of the Constitution and Article 14 of the Convention were misplaced. Article 40.1 of the Constitution provides that: – “All citizens shall, as human persons, be held equal before the law” but “this shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”. Article 40.1 applies to “citizens” and, a fortiori, the applicant, who is not a citizen of the State, is not entitled to invoke Article 40.1 and s. 12 of the Immigration Act 2004, which applies solely to non-nationals, cannot be deemed to violate Article 40.1 of the Constitution. In the event that this Court did not accept that argument, counsel proceeded to argue that there is no basis upon which the Court could conclude that s. 12 breached Article 40.1. In the case of In re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 the Supreme Court stated that “Article 40.1, as has been frequently pointed out, does not require the State to treat all citizens equally in all circumstances” and “[e]ven in the absence of the qualification contained in the second sentence, to interpret the Article in that manner would defeat its objectives”.

In its decision in the case of In re Article 26 and the Planning and Development Bill 1999 [2000] 2 IR 321, the Supreme Court upheld the entitlement of the Oireachtas to classify and discriminate between persons for relevant legislative purposes and stated at p. 357 that:-

“Article 40 does not preclude the Oireachtas from enacting legislation based on any form of discrimination: as has often been pointed out, far from promoting equality, such an approach would simply result in greater inequality in our society.”
Section 12 achieves a legitimate legislative purpose in a non-arbitrary and rational manner. Article 40.1 can not be read as requiring uniform treatment; The State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567 relied upon. It was ultimately the respondent’s contention that the applicant failed to establish that s. 12 violates Article 40.1 of the Constitution. For completeness, counsel further argued that s. 12 did not amount to any breach of Article 14 of the Convention as it is clear that the difference in treatment prescribed by s. 12 has an objective and reasonable justification in that it pursues a legitimate aim in a proportionate manner.
In relation to the final ground in which counsel for the applicant argued that s. 12 amounted to an abuse of process, counsel for the respondent stated that there was no evidence before the Court to conclude that s. 12 was applied in respect of the applicant for an improper purpose or that its application amounted to an abuse of process. The applicant could not be allowed to rely upon hypothetical situations divorced from the factual circumstances of her case; A. v. Governor of Arbour Hill Prison [2006] 4 IR 88 relied upon. Any argument that s. 11 should have been availed of by the prosecution was misplaced, as it was clear that the applicant had arrived into the State with a passport of some sort, be it false or otherwise. A prosecution under s. 11 might well have failed for this reason.

DECISION AND DISCUSSION
In considering the net issues to be determined by this Court, it is helpful to reiterate s.12 of the Immigration Act 2004 at this point. Section 12 provides:

“(1) Every non-national shall produce on demand, unless he or she gives a satisfactory explanation of the circumstances which prevent him or her from so doing-
(a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and

(b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate.

(2) A non-national who contravenes this section shall be guilty of an offence. (Emphasis added)

I am of the view that the failure to define the term “satisfactory explanation” within s. 12 of the Act does give rise to vagueness and uncertainty. The section as worded has considerable potential for arbitrariness in its application by any individual member of an Garda Síochána. There is no requirement in s.12 that the demanding officer should have formed any reasonable suspicion that the non-national has committed a crime, is about to commit a crime or is otherwise behaving unlawfully before he/she can require the non-national to provide a ‘satisfactory’ explanation for the absent documents.
While the failure to provide a “satisfactory explanation” appears to me to form part of the actus reus of the offence, I have difficulty in following the respondent’s case that it simultaneously operates as a potential defence to the offence of failing to provide the documents specified at subs. (1)(a) and (b) when requested by the demanding officer. I have to say it would have been much more satisfactory if the draftsman had specifically identified the explanation as a defence, as occurred under legislation in the United Kingdom. Section 2 (1) of the Asylum and Immigration (Treatment of Claimants) Act 2004 states that:-

“A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which – (a) is in force, and (b) satisfactorily establishes his identity and nationality or citizenship.”
Section 2 (4) then specifically provides as follows:-
“It is a defence for a person charged with an offence under subsection (1)….(c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1).”
The provision cited above sits more comfortably with the configuration of criminal offences with which our criminal law system is familiar. It is also noteworthy that under this British measure the defendant need only produce an explanation which is ‘reasonable’ and thus susceptible to evaluation by an objective standard.
In my view Section 12 is not sufficiently precise to reasonably enable an individual to foresee the consequences of his or her acts or omissions or to anticipate what form of explanation might suffice to avoid prosecution. Furthermore, there is no requirement in the section to warn of the possible consequences of any failure to provide a ‘satisfactory’ explanation.

As a result, the offence purportedly created by s. 12 is ambiguous and imprecise. In my view it lacks the clarity necessary to legitimately create a criminal offence.

The difficulties arising from such imprecision and vagueness were identified in the case of King v. The Attorney General [1981] 1 I.R. 233. S. 4 of the Vagrancy Act 1824 described the offence of loitering with intent to commit a felony as the frequenting by “every suspected person or reputed thief” of any of the places listed in the Act with the intention of committing a felony. The Supreme Court found this language to be too vague to create a criminal offence as is apparent from the following passage from the judgment of Henchy J. in King v. The Attorney General at p. 257:-

“The ingredients of the offence and the mode by which its commission may be proved are so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, so prone to make a man’s lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the same conduct, when engaged in by another person in similar circumstances, would be free of the taint of criminality, so out of keeping with the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow-citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct, and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”
The Supreme Court held that the portion relating to the offence committed by “every suspected person or reputed thief” was unconstitutional as it was inconsistent with the various constitutional requirements including the following: Article 38.1 – that no person shall be tried on a criminal charge save in due course of law, Article 40.4.1° – that no citizen shall be deprived of his liberty save in accordance with law, Article 40.1 – which provides for the principle of equality before the law and Article 40.3 – which sets out the State’s duty to defend and vindicate the personal rights of citizens.
This Court similarly acknowledges the potential of s.12 to breach the applicant’s constitutional rights in offending the right not to incriminate oneself as provided for both under Irish law and by virtue of Article 6 of the European Convention on Human Rights. I see no reality in the respondent’s submission that the non-national can elect to remain silent. The plain fact of the matter is that silence equates in these circumstances with the failure to provide a satisfactory explanation and thus becomes proof of the commission of the offence. It should also be stated that there is no saver in the section to the effect that the ‘explanation’ given be inadmissible in any criminal proceedings other than those brought under s. 12 of the Act.

On the issue of proportionality, the Court acknowledges that the maintenance and control of the asylum and immigration system in the State is aptly categorised as a legitimate purpose in furtherance of the common good and public policy. The State is entitled, and indeed under a duty, to control the entry, deportation and activities of non-nationals in the State. The Supreme Court in the case of In re Article 26 of the Constitution and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 was cognisant of this reality and stated as follows at p. 383:-

“For this reason, in the sphere of immigration, its restriction or regulation, the non-national or alien constitutes a discrete category of persons whose entry, presence and expulsion from the State may be the subject of legislative and administrative measures which would not, and in many of its aspects, could not, be applied to its citizens.”
The Supreme Court decisions in Laurentiu v. Minister for Justice, Equality and Law Reform [1999] 4 IR 26 and Leontjava v. Director of Public Prosecutions [2004] 1 IR 591 reiterated that a wide latitude had been afforded to the Oireachtas in adopting whatever form of legislation it considered appropriate. In Oguekwe v. Minister for Justice, Equality and Law Reform [2008] 3 IR 795 Denham J. observed at p. 813 that “[a]t all times the State retains the right to control immigration”.

However, it is well established that any legislative infringement on rights contained in Article 40.1 must satisfy a proportionality test. The critical test by which to adjudge whether a person’s constitutional rights have been infringed was enunciated by Costello J. in Heaney v. Ireland [1994] 3 I.R. 593. Costello J. in his landmark judgment stated as follows at p. 607:-

“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society…. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:—
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible, and

(c) be such that their effects on rights are proportional to the objective.”

The section that is being challenged provides that a non-national must produce two specified documents on demand. Taking the scenario in the abstract, it is suffice to note that a person who travels to another country without a passport can not reasonably expect to gain entry to that country without their passport. While it is the case that there exists a less draconian regime for such entrants into the State which provides for an administrative form of civil detention under the Refugee Act 1996, that fact alone will not render the section unconstitutional if the interest to be protected requires or warrants a criminal sanction in order to be properly effective. The high importance of having effective immigration control procedures persuades me that a criminal sanction such as is provided for by s. 11 and s. 12 of the Act of 2004 for the failure by a non-national to have a passport when entering the State or to carry both passport and registration certificate thereafter is not a disproportionate legislative response to that requirement. It is for the Oireachtas to determine whether such legislation is necessary and I do not see the existence of a form of administrative civil detention such as that provided for by the Act of 1996 as somehow undermining the respondent’s contentions on this particular issue. In my view the equality provision at Article 40.1 is not infringed having regard to the need in the public interest for the State to have suitably strict measures to deal with undocumented entrants into the State.
On the third aspect of this case, I find unconvincing the suggested explanation for the non-resort by the prosecution to s. 11 of the Act in the particular circumstances of this case. It was clear from the moment the applicant presented to the immigration authorities at Dublin Airport that she had neither a passport or other valid identifying documentation. To suggest that the prosecution did not proceed under s. 11 because of some apprehension that a forged passport might afford a full defence to the applicant is farfetched in the extreme.

S. 12 might be a more convenient method of dealing with non-nationals who have moved on into the community and in respect of whom it is suspected that they lack passports of other valid proof of nationality and identity. Those are not the circumstances which arise here. This is not a case where a ‘roadside check’ of a person who has integrated into the community occurred. It is a case where, to the knowledge of the authorities, the applicant had no passport on arrival and no other proof of identity. It is not difficult to appreciate the unfairness which can arise if s. 12 is deployed in these circumstances: the applicant may be subjected to repeated prosecutions and will be guilty of a criminal offence on each and every occasion. By contrast, s. 11 provides for a ‘once and for all’ type of offence which seems to me to be more appropriate on the facts of this case. I think the applicant can legitimately complain that s. 11, and not s.12, should have been utilised in these circumstances.

In this context the High Court has already determined that s. 12 is not to be deployed as a means for identifying a particular applicant. In Olafusi v. Governor of Cloverhill Prison & Anor. [2009] IEHC 558 the applicant was arrested and charged with offences contrary to ss. 12(1) (a) and (2) and s. 13 of the Immigration Act 2004 for failure to produce on demand to a member of An Garda Síochána evidence of his identity and nationality. The applicant was brought before the District Court and entered a plea of guilty but the District Court Judge refused to accept the guilty plea as the applicant’s identity had yet to be confirmed. Habeas corpus proceedings were then initiated and O’Neill J. held that the refusal of a guilty plea to facilitate further enquiries concerning the identity of an accused was not a proper basis for refusing a plea. He held that the detention of the applicant amounted to illegal detention. O’Neill J. noted in particular that provision existed for the civil detention of such persons under s. 9 (8) of the Refugee Act 1996, as amended. Insofar as the present case is concerned, and insofar as the prosecution might have had a similar objective, the deployment of s.12 of the Act was, in my view, inappropriate.

In summary therefore I am of the view that, while s. 12 was designed as an immigration control mechanism, its vagueness is such as to fail basic requirements for the creation of a criminal offence. As drafted it gives rise to arbitrariness and legal uncertainty. It also offends the principle that a person be not obliged to incriminate himself. I find it unconstitutional for those reasons. Notwithstanding that a civil mode of detention was available pursuant to s. 9(8) of the Refugee Act 1996, I would nonetheless hold with the respondents on the issue of proportionality having regard to the manifest need for effective measures to regulate the entry into the State of undocumented non-nationals.

Even if I am mistaken in my conclusions on the first issue and the legislation is to be taken as constitutionally sound, I would regard the deployment of s.12 in respect of this applicant as an unconstitutional use of a legislative provision which was designed to be deployed in different circumstances.

Having regard to my conclusions, I do not regard it as necessary to consider arguments based on the European Convention on Human Rights or the case law arising thereunder. I propose at this stage to simply grant two of the reliefs sought which are set out at the beginning of this judgment namely, an injunction restraining the respondent from taking any further steps in the prosecution entitled Director of Public Prosecutions at the suit of Garda Thomas Morley v. Ebere Dokie, and also a declaration that s.12 of the Immigration Act 2004 is inconsistent with the provisions of Bunreacht na hEireann and in particular Article 38.1 which provides that no person shall be tried on a criminal charge save in due course of law and with the guarantee in Article 40.4.1 that no person shall be deprived of his liberty save in accordance with law.

I will hear the parties in relation to any other reliefs and the order to be made.

McInerney v Director of Public Prosecutions

 

[2014] IEHC 181

JUDGMENT of Mr. Justice Hogan delivered on 9th day of April, 2014
1. In these two judicial review applications the applicants seek a declaration that the remaining portion of s. 18 of the Criminal Law (Amendment) Act 1935 (“the 1935 Act”), as amended by s. 18 of the Criminal Law (Rape)(Amendment) Act 1990 (“the 1990 Act”) is unconstitutional and did not survive the enactment of the Constitution. As originally enacted, s. 18 of the 1935 Act created three separate, if overlapping, offences, namely, offending modesty, causing scandal or injuring the morals of the community.2. In a judgment delivered by me on 26th July 2013, Douglas v. Director of Public Prosecutions [2013] IEHC 343, [2013] 2 I.L.R.M. 324, I held that the other component offences of that section as enacted (“cause scandal or injure the morals of the community”) were hopelessly and irremediably vague and did not meet the test for legal certainty in criminal matters articulated by the Supreme Court in King v. Attorney General [1981] I.R. 233. It was in those circumstances that I concluded those particular provisions of s. 18 of the 1935 Act were manifestly unconstitutional and were inconsistent with Article 15.2.1, Article 15.5.1, Article 38.1, Article 40.1 and Article 40.4.1 of the Constitution.

3. I also held that these two offences could be severed from the other offence, namely, that of offending modesty. There was no appeal against this decision. In these proceedings, therefore, the applicants challenge the constitutionality of the only offence created by s. 18 remaining after the decision in Douglas, namely, that of offending modesty.

4. As the law stood immediately prior to the decision in Douglas, s. 18 of the 1935 Act (as amended) had provided:-

“Every person who shall commit, at or near and in sight of any place along which the public habitually pass as of right or by permission, any act in such a way as to offend modesty or cause scandal or injure the morals of the community shall be guilty of an offence under this section and shall on summary conviction thereof be liable to a fine not exceeding IR£500 or, at the discretion of the court to imprisonment for any term not exceeding six months.” (emphasis supplied)
5. The italicised words were held by me to be unconstitutional in Douglas. In the wake of that decision s. 18 of the 1935 Act then read:
“Every person who shall commit, at or near and in sight of any place along which the public habitually pass as of right or by permission, any act in such a way as to offend modesty shall be guilty of an offence under this section and shall on summary conviction thereof be liable to a fine not exceeding [IR£500] or, at the discretion of the court to imprisonment for any term not exceeding [six months].”

6. The words in square brackets had been previously inserted by s. 18 of the 1990 Act. It is also important to note at the outset that s. 18 provides for summary disposal only and that there is no entitlement at all to jury trial.

7. It is against this general background that the facts of the present applications can be considered. In essence, however, these applications can be regarded really as the merely the sequels to my earlier decision in Douglas and this present judgment should accordingly be read in conjunction with that earlier decision.
The case against the applicants
8. In considering the background facts to this application, I will take the cases in reverse order. The second applicant, Mr. Curtis, is charged with the offence of offending modesty under s. 18(1) of the 1935 Act. The case against him is that on 26th May 2013 at Camden Place in Dublin city centre he removed his penis from his trousers as groups of females walked past him. The charge against him under s. 18(1) was adjourned by District Judge Blake pending the outcome of the present proceedings.

9. The first applicant, Mr. McInerney, was originally charged with all three offences under s. 18, i.e., offending modesty, causing scandal and injuring the morals of the community. The case against him is that on 3rd September 2011 while sitting in his car at Rathfarnham Shopping Centre in Dublin he was observed masturbating while members of the public passed by. The specific charge against him is that:

“on 3rd September 2011 at Rathfarnham Shopping Centre, Butterfield, Dublin 14….at or near and in sight of a place along which the public habitually pass as of right or by permission, did commit an act, to wit, masturbate in such a way as to offend modesty/cause scandal/injure the morals of the community.”
10. The first applicant was convicted of this offence by the District Court in February 2013 and he received a sentence of three months’ imprisonment. The Circuit Court heard an appeal from this decision on 8th October 2013, i.e., a few months after the decision in Douglas had been delivered. On that day, the President of the Circuit Court, Mr. Justice Groarke, permitted the prosecution to amend the summons by deleting the words “cause scandal” and “injure public morals”, so that the remaining particulars of the charge was that the accused had “offended modesty.” On the suggestion of the prosecution (or so I have been informed), it was agreed that the appeal would stand adjourned pending the outcome of the present challenge to the constitutionality of the remaining part of s. 18(1) of the 1935 Act.
11. There is no question but that the shopping centre cark park is a “place along which the public habitually pass as of right or by permission” within the meaning of the section. The only question, therefore, for the present purposes is whether the offence of offending modesty contains sufficiently clear criteria for the purposes of this constitutional challenge.

12. Before considering the possible merits of any challenge to the constitutionality of s. 18 of the 1935 Act, it is necessary first to address the questions of locus standi and the presumption of constitutionality.
Whether the applicants have the requisite locus standi to challenge the constitutionality of s. 18 of the 1935 Act in the light of Douglas?
13. In Douglas, I held that the plaintiff had the requisite standing to challenge the constitutionality of the relevant offences because he had actually been charged with offences under the section. In this regard it mattered not that the plaintiff might have been charged with other offences or that his conduct might have been legitimately criminalised under some re-cast version of the section.

14. As I explained in my judgment ([2013] 2 I.L.R.M. 324, 332-323):

“….the plaintiff is, in any event, entitled to know the nature of the offence (as distinct from the nature of the conduct alleged) with which he has been charged. This is perhaps just another way of saying that the plaintiff has a constitutional entitlement to legal certainty in the sphere of criminal offences. If, however, the offences are themselves so hopelessly vague that they cease to have any real meaning, then it matters not that the conduct alleged would be regarded by most as quite deplorable or that it should otherwise come within the scope of the criminal law. ……Here it is perhaps sufficient to say that the plaintiff’s constitutional entitlements – one of which is the right to legal certainty in the sphere of criminal law – is actually or potentially affected by the operation of the relevant parts of s. 18 simply by reason of the fact that he has been charged with these offences. This is in itself enough to confer upon him the standing to challenge the constitutionality of these statutory offences.”
15. At the hearing before me the correctness of my conclusion on the standing issue in Douglas was not seriously put at issue. It follows, therefore, that as both applicants have, after all, been charged with the offence of offending modesty under s. 18 of the 1935 Act, they have the requisite standing to challenge the constitutionality of the remaining portion of the section for all the reasons which I set out in my judgment in Douglas.
Whether s. 18 of the 1935 Act enjoys a presumption of constitutionality
16. In Douglas I held that s. 18 of the 1935 Act does not enjoy a formal presumption of constitutionality. While it was true that the penalty provisions of the section had been amended by a post-Constitution enactment, namely, s. 18 of the 1990 Act, this did not have the effect of changing the nature of the offence. In line with the test posited by Finlay C.J. in Electricity Supply Board v. Gormley [1985] I.R. 129, I held that the amendments did not have the effect of changing or expanding the nature of the offence

17. Again, therefore, for all the reasons I set out in Douglas, I propose to proceed on the basis that s. 18 does not enjoy a formal presumption of constitutionality, even if the onus of establishing that the remaining provisions of the section is unconstitutional continues to rest with the applicants.

18. Before turning to a consideration of the constitutionality of the remaining portions of s. 18, it is necessary first to recapitulate some of the key constitutional principles. Much of what follows, therefore, involves a re-statement and repetition of a good deal of what I have already said in Douglas.
Legal certainty and the operation of the criminal law
19. At the heart of the applicants’ challenge is that the offence of offending modesty created by s. 18 is so vague and uncertain in its remit and potential application that it is contrary to the fundamental principle of legal certainty in criminal matters which is at the heart of Article 38.1. This principle was articulated thus by Kenny J. in King v. Attorney General [1981] I.R. 233, 264:

“Article 38.1 of the Constitution provides ‘no person shall be tried on any criminal charge save in due course of law.’ If the ingredients of the offence charge are vague and uncertain, the trial of the alleged offence based on those ingredients is not in due course of law.”
20. Similar sentiments are to be found in the more recent judgment of Hardiman J. in The People (Director of Public Prosecutions) v. Cagney [2008] 2 IR 111, 121-122:
“From a legal and constitutional point of view, it is a fundamental value that a citizen should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful.”
21. It must be here acknowledged, however, that in a common law system such as ours, absolute precision is not possible. One may therefore have perfectly general laws which can be adapted to new sets of facts within certain defined parameters, provided that the laws themselves articulate clear and objective standards. By analogy with what was stated by the Supreme Court in Cagney, it must also be clear that any judicial development in the sphere of criminal law must be largely incremental in nature, based on parameters which are obvious from earlier legal doctrine and jurisprudence.
22. But in addition to Article 38.1 (and, of course, the corresponding protection of personal liberty in Article 40.4.1) there are, in truth, a number of other inter-locking constitutional provisions which also re-inforce this conclusion and which may be briefly mentioned at this juncture before returning to examine the constitutionality of the section.
The importance of Article 5 and Article 15.2.1
23. First, Article 5 describes the State as a democracy and Article 15.2.1 vests the Oireachtas with exclusive legislative powers. This means that the Oireachtas must take care when enacting legislation to identify and to specify the relevant principles and policies which define and map out the contours of any offence: see, e.g., the judgment of O’Higgins C.J. in City View Press Ltd. v. AnCO [1980] I.R. 381 and that of O’Donnell J. in McGowan v. Labour Court [2013] IESC 23, [2013] 2 I.L.R.M. 276. The principles and policies test is not simply some formalistic technical doctrine designed to ensure that what are in truth legislative powers are not improperly transferred to the executive branch by the vesting of wide powers to make of statutory instruments without appropriate legislative safeguards. It is rather a cornerstone of democratic control of the executive and judicial branches by the legislative branch pre-supposed by Article 5.

24. This was the very point which was made by Kelly J. in Collins v. Minister for Finance [2013] IEHC 530 where he stated that the Cityview Press doctrine:

“was not, however, some technical artifice which has been imposed by an inflexible and formalistically minded judiciary. The Cityview Press test is rather instead a key element of the separation of powers and the rule of law by ensuring that the legislative branch retains proper control of executive discretion by providing for the clear articulation of proper legislative standards in each Act of the Oireachtas conferring such authority.”
25. In Collins Kelly J. further noted that budgetary allocation was a key feature of parliamentary process, specifically with regard to the role of the Dáil and its members:
“It may be recalled that Dáil Éireann is described by Article 15.1.2 as a House of Representatives of the people. Budgetary allocation and the raising of taxation are, therefore, not only integral features of the operation of the democratic nature of the State prescribed by Article 5, but represent key features of the representative duty of each Dáil Deputy. It is by these decisions that the Dáil (and the wider Oireachtas) shape the very society in which we live. It is for this reason that the individual members of the Dáil are directly answerable to the People in the electoral process provided for in Article 16.
Budgetary allocation is, therefore, a fundamental responsibility which Articles 5, 11, 17 and 28 of the Constitution cast upon the Dáil and its individual members. This constitutional responsibility may under no circumstances be abrogated, whether by statute, parliamentary practice or otherwise. It must be stressed in this regard that Article 28.4.1 requires that the Government “shall be responsible to Dáil Éireann”.”

26. The same may be said by analogy with regard to the duty cast upon the Oireachtas with regard to the criminal law. Just as in the case of budgetary allocation, decisions in relation to the content and scope of the criminal law are fundamental choices which equally “shape the very society in which we live”. These are choices which Article 5 and Article 15.2.1 cast upon the Oireachtas and its individual members. In line, accordingly, with what was said in Collins, this represents a fundamental constitutional responsibility of both Houses and its members which equally may not be abrogated.
27. A law which did not articulate such principles and policies would, more often than not, also be regarded as impermissibly vague for Article 38.1 purposes in addition to offending a basic requirement of Article 15.2.1.

28. There is, accordingly, a clear connection between the duty of the Oireachtas to articulate such principles and policies in legislation creating criminal offences in order to satisfy the requirements of Article 15.2.1 and the vagueness doctrine. A vague law “impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application”: Grayned v. City of Rockford 408 US 104, per Marshall J. But, of course, as the judgment of O’Donnell J. in McGowan itself powerfully illustrates, this is precisely what the Oireachtas may not do. It is rather the duty of the legislative branch to articulate clear standards in legislation which will lend themselves to the fair, consistent and even-handed application of the law. Rigorous adherence to this requirement is especially important in the context of the criminal law, not least given that the subjective, arbitrary and inconsistent application of that law represents the very antithesis of Article 40.1 and its commitment to fundamental equality of all before the law.
The relevance of Article 15.5.1
29. Article 15.5.1 provides that:

“The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.”
30. The relevance of this provision in the context of vague and uncertain criminal laws is really self-evident. Article 15.5.1 complements the requirement of trial “in due course of law” in Article 38.1 by prohibiting the retrospective creation of either a criminal offence or the imposition of civil liability. The object of these provisions is to bring clarity in the sphere of criminal law so that citizens can order their affairs to ensure that they do not transgress any such law. Laws which purport to create vague offences invariably also breach Article 15.5.1 as it is impossible even with appropriate advice to foresee the proper scope and application of such a law and because this very vagueness further makes it impossible to ascertain whether the law in question retrospectively criminalises conduct not clearly prohibited by the law.
31. It is against the background of these general constitutional considerations that we can now proceed to examine the constitutionality of the statute.
The constitutionality of the “offending modesty” provision
32. Counsel for the State parties, Ms. Donnelly S.C., submitted, however, that in contrast to the offences of causing scandal and injuring the morals of the community which were at issue in Douglas, the offence of offending modesty contained clear and recognisable standards, even if in some respects the application of those standards to the facts of any given case was liable to some element of subjective judgment and even if the community’s sense of those self-same standards varied from generation to generation. While acknowledging that an accused charged with such an offence could not opt for jury trial – as the offence is simply triable summarily – she submitted that the offence of offending modesty had to be measured by the standards of right thinking members of the community and not merely by reference to the subjective judgment of the District Judge trying the offence.

33. Here it must be stressed that the two terms at the heart of the offence – namely, “to offend” and “modesty” – are themselves not terms of art and are unknown to the criminal law. It is true that the criminal law is replete with references to cognate words to that of “to offend” – such as “offence” and “offender” – but the use of this term in the adjectival sense in which it is here employed conveys no definite or fixed legal meaning, at least in the context of the criminal law. The use of the term “offending” in juxtaposition to the word “modesty” does, however, convey a sense of breaching or violating some moral or societal standard or convention, rather than articulating some fixed standards which are cognisable by reference to accepted criminal law principles by reference to which the citizens can regulate their conduct.

34. The use, moreover, of the word “modesty” in this s.18 context seems to refer to behaviour that is considered objectionable by reference to conventional social values and norms, even if those social norms may change from generation to generation. While the reference to immodest behaviour in this sense has something of an old-fashioned ring to it, it would seem now generally to refer to the wearing of revealing or inappropriate clothing in a manner which invites societal disapproval.

35. It is nevertheless difficult to avoid the conclusion that the Oireachtas here sought to criminalise conduct which might be thought to breach societal norms of decorum and social convention, especially perhaps – although not perhaps exclusively – in matters of dress. While this in and of itself is not constitutionally objectionable, yet it must be said that in the absence of clearly articulated legal standards and further statutory definitions of this phrase, the parameters of the offence remain entirely elusive.

36. There is little agreement in this society as to what conduct or behaviour might be said to be immodest in this sense. Given that there is no option for jury trial in respect of this offence, by what objective standards could a District Judge determine what was or was not immodest? Just as importantly, even if there was agreement as to what these norms of social behaviour in relation to modesty actually were, it is not clear whether the offence consists of offending against these norms simpliciter and, if so, how it could be ascertained whether one had “offended” against these norms in this sense.

37. In that respect, the actus reus of the offence is hopelessly unclear. Here it may be observed that the offence is couched at a purely abstract level and there is, in particular, no requirement that the accused must have engaged in conduct which is calculated to give offence to those who happen to witness it.

38. Just as was the case with Douglas, there was much debate at the oral hearing regarding comparisons with other offences. Ms. Donnelly SC invited comparison with the offence of dangerous driving, which she instanced as an example of a similarly abstractly worded offence whose parameters might change over time. The language of s. 53(1) of the Road Traffic Act 1961 – which creates the offence of dangerous driving – is nonetheless instructive:

“A person shall not drive a vehicle in a public place at a speed or in a manner which, having regard to all the circumstances of the case (including the nature, condition and use of the place and the amount of traffic which then actually is or might reasonably be expected then to be therein) is dangerous to the public.”
39. It is true that the examples of what might constitute dangerous driving have altered over time. Thus, the drivers of 1961 could not have been distracted by mobile telephony in the same way as the drivers of 2014 might well be. Yet the principles articulated by s. 53(1) of the Road Traffic Act 1961 are clear and straightforward: it applies (i) to persons driving a vehicle in a public place; (ii) at a speed or in a manner which is dangerous to the public and (iii) such dangerousness to be measured by reference to all relevant circumstances, including the prevailing road conditions.
40. There is, moreover, general agreement as to what constitutes dangerous driving and, in any event, it is something on which motoring experts and transport engineers can give an informed opinion, if necessary by reference to the precise standards articulated in the legislation. The same cannot be said of “modesty” and still less of any act that might be said to “offend modesty.”

41. Ms. Donnelly SC also pointed out that Article 40.6.1 of the Constitution envisaged that there would be an offence of publishing or uttering indecent matter. It is certainly true that indecency and immodesty are, to some degree, related concepts. But there are any assistance provided by an analysis of the text of the Constitution really ends. All that Article 40.6.1.i provides is that the publication or utterance of “blasphemous, seditious or indecent matter” shall be any offence. But as the Supreme Court made clear in Corway v. Independent Newspapers Ltd. [1999] IESC 5, [1999] 4 IR 485, the mere fact that these three offences are expressly contemplated by the Constitution does not absolve the Oireachtas from the responsibility of articulating clear principles and policies defining the parameters of these offences.

42. In Corway the Supreme Court held in effect that the common law offence of blasphemy had not survived the enactment of the Constitution, in part because the scope of that offence was totally unclear. As Barrington J. explained ([1999] 4 IR 485, 502):.

“In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists. As the Law Reform Commission has pointed out neither the actus reus nor the mens rea is clear. The task of defining the crime is one for the Legislature, not for the Courts. In the absence of legislation and in the present uncertain state of the law the Court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the respondents.”
43. The same can just as readily be said of the offence of offending modesty.
No true analogy between s. 18 of the 1935 Act and other sexual offences
44. In this context there is no true analogy between the scope of s. 18 of the 1935 Act and other sexual offences relied on by the State. These latter offences are in a distinctly different category. It is true that these offences are often expressed in general terms, but one will largely find that they either have a definite meaning (or, at least, have acquired it over time) in relation to specifically prohibited conduct or else that the relevant statute is expressed by reference either to defined conduct or its effects on reasonable people or that the judgment as to appropriate community standards of behaviour is left to a jury.

45. An example of the former category of statutory provision is provided by s. 4 of the Vagrancy Act 1824 which provides that it is an offence for any male “openly and lewdly” to expose his person to a female with the intent of insulting her. In Evans v. Ewals [1972] 2 All E.R. 22 the accused exposed part of “bare skin low down on his stomach” close to his pubic hair and was convicted of the offence by magistrates. The English High Court quashed the conviction, rejecting the argument that the offence referred to any part of the male body other than the penis. Ashworth J. said that ([1972] 2 All E.R. 22, 24):

“It seems to me that at any rate today, and indeed by 1824, the word ‘person’ in connection with sexual matters had acquired a meaning of its own, a meaning which made it a synonym for ‘penis’. It may be…that it was forerunner of Victorian gentility which prevented people calling a penis a penis, but however that may be that I am satisfied in my own mind that it has now acquired an established meaning to the effect already stated.”
46. The same can be said with regard to the offence of sexual assault (as the former offence of indecent assault was so named by s. 2(1) of the Criminal Law (Rape)(Amendment) Act 1990), even if there has been no statutory definition of the offence and even if actual offence still remains a common law offence. Here the parameters of the offence are not only tightly hemmed in by decades of established case-law, but the actus reus has clearly defined elements. There has, after all, to be an assault with a sexual element on another party by the accused.
47. As O’Hanlon J. explained in Doolan v. Director of Public Prosecutions [1993] I.L.R.M. 387, 391:

“Assault in the strict sense merely involved the threat to inflict unlawful force, however slight, on another person, making some movements which caused the other person to believe that such unlawful physical contact was imminent. A battery consists in the actual application of unlawful force, but the word ‘assault’ has been quite commonly used to include what should, more strictly, be called a ‘battery’.
48. This is why, for example, the conduct of a man in entering a train compartment and exposing his penis to a female in the compartment and making a sexual suggestion to her has been held to constitute the offence of sexual (formerly indecent) assault. Given these circumstances the female was naturally put in fear of unlawful force and the conviction for indecent assault was upheld in such circumstances by the English Court of Criminal Appeal on the basis that there had been an assault (i.e., the threat of unlawful violence), even if there had been no actual battery (i.e., the application of that unlawful force): see R. v. Rolfe (1952) 36 Crim. App. Rep. 4.
49. The offence of offensive conduct in a public place created by s. 5(1) of the Criminal Justice (Public Order) Act 1994 (“the 1994 Act”) may be regarded as an example of a provision which is couched in general terms but which still articulates clear and objective standards, as the term “offensive conduct” is defined by s. 5(3) as meaning:

“any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or serious annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour.”
50. Here it may be observed that the behaviour must not only be unreasonable, but it must also be likely to cause serious offence or serious annoyance to a victim or potential victim. This latter consideration has proved to be an important consideration for the European Court of Human Rights when considering somewhat analogous issues.
51. In Chorherr v. Austria (1993) the applicant and a friend distributed leaflets at a military parade calling for a referendum on the planned purchased by Austria of fighter jets. He was arrested for the administrative offence of causing a “breach of the peace by conduct likely to cause annoyance”. The legality of this arrest was upheld by the European Court on the ground that this prescribed a sufficiently objective standard which was measured by the impact of the conduct on others.

52. This point was further elaborated upon by the European Court in Hashman and Harrup v. United Kingdom [1999] ECHR 133, (2000) 30 EHRR 241. In this case the applicants had sought to sabotage a hunt by blowing hunting horns and by bellowing at hounds in order to distract them. The Crown Court found that no violence had been used by the applicants, so no question of a breach of the peace arose. It did find, however, that the applicants would repeat their behaviour unless checked by some form of sanction. They were bound over to keep the peace and to be of good behaviour (contra bonos mores). The European Court of Human Rights held that the contra bonos mores requirement did not satisfy the requirements of legal certainty for the purposes of accepting any restriction on the right of free speech must be prescribed by law for the purposes of Article 10(2) ECHR:

“The Court next notes that conduct contra bonos mores is defined as behaviour which is “wrong rather than right in the judgment of the majority of contemporary fellow citizens” (see paragraph 13 above). It cannot agree with the Government that this definition has the same objective element as conduct “likely to cause annoyance”, which was at issue in the Chorherr case….. The Court considers that the question of whether conduct is “likely to cause annoyance” is a question which goes to the very heart of the nature of the conduct proscribed: it is conduct whose likely consequence is the annoyance of others. Similarly, the definition of breach of the peace given in the case of Percy v. Director of Public Prosecutions [1995] 1 W.L.R. 1382 – that it includes conduct the natural consequences of which would be to provoke others to violence – also describes behaviour by reference to its effects. Conduct which is “wrong rather than right in the judgment of the majority of contemporary fellow citizens”, by contrast, is conduct which is not described at all, but merely expressed to be “wrong” in the opinion of a majority of citizens.
Nor can the Court agree that the Government’s other examples of behaviour which is defined by reference to the standards expected by the majority of contemporary opinion are similar to conduct contra bonos mores as in each case cited by the Government the example given is but one element of a more comprehensive definition of the proscribed behaviour.

With specific reference to the facts of the present case, the Court does not accept that it must have been evident to the applicants what they were being ordered not do for the period of their binding over. Whilst in the case of Steel v. United Kingdom (1998) the applicants had been found to have breached the peace, and the Court found that it was apparent that the binding over related to similar behaviour, the present applicants did not breach the peace, and given the lack of precision referred to above, it cannot be said that what they were being bound over not to do must have been apparent to them.”

53. Indeed, it may be noted that it was for rather similar reasons that in Kershaw v. Ireland [2009] IEHC 166 O’Neill J. rejected a challenge to the constitutionality of s. 6 of the 1994 Act. The section prohibits “threatening, abusive or insulting words or behaviour”, but also provides that there must either be also an intent to provoke a breach of the peace or evidence the accused is “reckless as to whether a breach of the peace is occasioned.” O’Neill J. held that these words “give to the section a certainty and precision which…excludes the kind of vagueness which could lead to innocent behaviour being criminalised….”
54. One might add that, in line with the reasoning of the European Court of Human Rights in Hashman, the conduct prohibited by s. 6 of the 1994 Act is measured by reference to the likely effect of such conduct on others, a key consideration in ensuring that the offence prescribed an objective and ascertainable standard. This is not true (or, at least, not necessarily true) in the case of the conduct at issue under s.18 of the 1935 Act. Both the gentleman bathers at the Forty Foot and the celebrity fashionista who attends a glamorous social event in a revealing evening dress may all commit offences under the offending modesty provisions of s. 18, even if no one who is present on either occasion is either actually offended in the slightest or would be likely to be so offended.

55. It is true that in Douglas I suggested that no true comparison could be drawn between s. 18 of the 1935 and the common law offence of outraging public decency which is an indictable misdemeanour at common law. As I said in that judgment ([2013] 2 I.L.R.M. 324, 342):

“The critical feature of this offence, however, so far as the present case is concerned is that it is indictable, so that the determination of whether community standard have been outrageously violated will be determined by a jury. ….The fact, therefore, that the jury is the ultimate judge in such cases of whether community standards have been so violated is itself a factor which points towards the existence of an objective and ascertainable standard. That protection is noticeably absent here, since, by contrast, the offence created by s. 18 is only triable summarily, so that the accused has no right to opt for jury trial.”
56. As Prendergast has powerfully argued, this aspect of my judgment in Douglas may yet have to be re-examined in an appropriate case: see “Douglas v. DPP and the constitutional requirement for certainty in criminal law” (2013) 49 Irish Jurist 343. It may be that in Douglas I was altogether too optimistic regarding the prospects of that particular common law offence surviving an appropriate constitutional challenge or the fact that in that example a jury would determine whether community standards had been violated pointed towards the existence of an objective and ascertainable standard. Yet, as I pointed out in Douglas, even that particular safeguard is absent here, so that s. 18 provides that the question of what constitutes offending modesty is to be determined by a judge sitting alone. It is true that this must be determined by reference to objective standards, but since there is no agreement in the community as to what these standards are and as they have no fixed or ascertainable meaning in law, the potential for subjective appraisal is inevitable.
57. But even if these obiter observations of mine regarding the constitutionality of the offence of outraging public decency were wrong, this cannot take from my key conclusion, namely, that the present case is indistinguishable from cases such as King, Corway, Dokie, Douglas and, for that matter, Hashman. The offence of offending modesty is hopelessly and irremediably vague when measured by reference to the King principles. The offence lacks any clear principles and policies in relation to the scope of what conduct is prohibited and it invites arbitrary and inconsistent application. In these circumstances the conclusion that the offence offends the guarantees of trial in due course of law in Article 38.1, the guarantee of equality before the law in Article 40.1 and the protection of personal liberty in Article 40.4.1 is inescapable.

58. For good measure, I would add that the surviving part of s. 18 also fails the Cityview Press test inasmuch as the Oireachtas has failed to articulate clear principles and policies which mark out that conduct which is prohibited and that which is not. To that extent, therefore, I would also hold that the relevant offences contravene Article 15.2.1 and, for that matter, Article 15.5.1.

59. Once, therefore, the only remaining offence to survive the decision in Douglas is itself found to be unconstitutional, then it follows that there is nothing of substance left in the section. In these circumstances, severance in the manner which operated in Douglas is simply not possible. It follows, therefore, that the remaining portion of s. 18 which was left intact after the decision in Douglas must now fall in its entirety as unconstitutional..

60. None of this is to suggest for a moment that the Oireachtas could not legislate to create new offences which would address conduct of this nature in public. What is, however, required is that any such new legislation contains adequate principles and policies in order to meet the requirements of Article 15.2.1 on the one hand and articulates prohibitions by reference to objectively ascertainable standards in order to meet the requirements of Article 38.1 on the other.
Conclusions
61. It remains only to summarise my principal conclusions.

62. First, the applicants have standing to challenge the constitutionality of the section. It matters not that the conduct in question might be criminalised under some new version of the statute which the Oireachtas might enact at some point in the future or indeed that either of them might have been charged with a different offence in respect of this conduct. As I pointed out in Douglas, a person charged with such an offence is entitled to object to legislation which is unconstitutionally vague and lacks clear principles and policies.

63. Second, as I also pointed out in Douglas, the changes effected to the penalty provisions of s. 18 of the 1935 Act by s. 18 of the 1990 Act do not have the effect of re-enacting s. 18 of the 1935 Act as it were a post-1937 statute. It follows, therefore, that the section enjoys no formal presumption of constitutionality, although the onus of proof in relation to establishing the invalidity of the section rests with the applicants.

64. Third, the offence of “offending” modesty is hopelessly vague and subjective in character and it intrinsically invites arbitrary and inconsistent application. No clear standard of the conduct which is prohibited by law is articulated thereby and the surviving part of s. 18 does not contain any clear principles and policies. In this respect these relevant provisions of s. 18 are manifestly unconstitutional and are inconsistent with Article 15.2.1, Article 15.5.1, Article 38.1, Article 40.1 and Article 40.4.1 of the Constitution.

65. Fourth, contrary to the position in Douglas, the doctrine of severance cannot now sensibly operate and it follows that the remaining parts of s. 18 which survived the decision in that case must fall in their entirety. I will accordingly declare in accordance with Article 50.1 that the remainder of s. 18 of the 1935 Act is inconsistent with the Constitution. The net effect of this declaration is that it must be now held that the entirety of s. 18 of the 1935 Act did not survive the enactment of the Constitution.

66. Fifth, none of this is to suggest that the Oireachtas could not legislate to create new offences which would address conduct of this nature in public. What is, however, required is that any such new legislation contains adequate principles and policies in order to meet the requirements of Article 15.2.1 on the one hand and articulates prohibitions by reference to objectively ascertainable standards in order to meet the requirements of Article 38.1 on the other.

Browne v Attorney General

, unreported, High Court, March 6, 2002, Kearns J

Judgment of Mr. Justice Nicholas Kearns delivered this 6th day of March, 2002
Introduction
1. This is a case about tuna fish and dolphins and the implementation in Irish law of an EU Regulation. The albacore tuna is a migratory species which may be found off the Azores in June and which moves gradually north east over the following four to five months. This species feeds on a variety of prey, including certain fish types, squid and saury, which are also prey items for dolphins. In the North East Atlantic, the albacore tuna fishery operated by French and Spanish vessels dates back to the 19th Century. Traditionally, tuna were caught on troll-lines towed behind the fishing vessel, but following a reduction from 1,000 to 50 vessels in the French tuna fleet between 1950 and 1986, drift net fishing techniques were introduced in an attempt to relaunch the French tuna industry. This proved economically viable and, following trials, Ireland followed suit in the early 1990’s. By 1993 there were some 90 Community vessels engaged in drift net fishing for tuna, of which 64 were French, 16 Irish and 10 British. Spanish vessels, which are prohibited by Spanish law from using drift nets, continue to troll for tuna with a fleet of between 600-700 vessels, most of which operate in the North East Atlantic.
2. Drift nets have been used to catch fish for many centuries but since the use of mono-filament in net manufacture during the 1960’s, increasing concern was expressed over the number of non-target species being caught, notably dolphins, who, like tuna, often swim close to the surface.
3. A drift net consists of a number of sheets of common gill net which are joined together and which when deployed by “shooting” or “streaming”, are maintained in a vertical position in the water in a wall-like fashion by a line of floats at the top and a line of weights at the bottom. Such nets can be of varying length and, in certain instances in the Pacific, were up to 50 kilometres in length. A drift net is defined in the Sea Fisheries (Drift Nets) Order 1998 (SI 267/1998) (The Irish Regulation) as ” a wall of netting used in fishing, which is free to move according to the wind and tide”. To reduce the risk of catching dolphins, some drift nets incorporate gaps or doors through which dolphins can sometimes escape.
4. Accordingly, and not merely because of any perceived threat to fish stocks but also because of concerns that by-catches of cetaceans (marine mammals) were unacceptably high, the UN called upon all members of the International Community to agree to an immediate cessation to further expansion of large scale pelagic drift net fishery activities on the high seas. It passed a number of resolutions, to which in turn the EU responded in 1992 by adopting Regulation 345 which set a maximum length of 2.5 kms for drift nets used by EU vessels. This Regulation provided for a number of derogations.
5. In April 1994 the Commission of the EU reported to the Council both on drift netting and in relation to the various derogations, finding that a proposal was necessary to provide for the cessation of all fishing activities using drift nets and the immediate application of special control measures. Majority support among the Member States for such a ban was not forthcoming until the presentation in 1998 of a UK Presidency compromise proposal which in June 1998 resulted in the adoption of Regulation 1239/98 (“The EU Regulation”). The EC Regulation altogether banned drift netting for tuna fishery in the North Atlantic and Mediterranean with effect from January 1st 2002 and provided for a cap on the number of vessels that, subject to the 2.5 km net length restriction, could still participate in the drift net tuna industry for the period from 1998 to the end of 2001.
6. Both France and Ireland voted against the adoption of the regulation, contending, in Ireland’s case, that there was no scientific evidence that albacore tuna stocks were over-exploited or that drift netting resulted in biologically significant by-catches of dolphins. Tuna fishing was for Ireland of significant socio-economic importance, involving, prior to capping, some 30 boats in Counties Cork and Kerry, fishing mainly out of Dingle and Castletownbere. Part of the relief sought in these proceedings is a declaration that the EC Regulation (which had amended Council Regulation [EC] 894/97) is unlawful and invalid as being contrary to EC law. A referral under Article 234 to the European Court of Justice is sought for that purpose. However, the more immediate task with which the Court is concerned is to inquire whether the EC Regulation has been properly transposed into Irish law, given that the Applicant herein faces prosecution on charges in the Cork Circuit Court as a result of allegedly infringing the implementing measures provided for by the Irish Regulation.
The Facts
7. Vincent Browne, the Applicant, is from Castlegregory, Co Kerry and is the master of an Irish fishing boat, the MFV “Antonia”, which sails out of Castletownbere. He is a member of the Irish Tuna Association and has an authorisation to fish, inter alia, for tuna.
8. On the 15th of June 2000 he departed from Dingle in Co Kerry with a view to fishing for tuna, prior to which he had obtained a permit issued by a Sea Fisheries Officer pursuant to the Irish Regulation. In his Affidavit he deposes that the vessel was carrying 2.5 kilometres of drift net and was also carrying approximately 4 kilometres of gill net, which was rigged similarly to a drift net, but which had in addition 5 sea anchors for attachment to the net, together with 2 heavy steel gill net anchors for attaching at each end of this stretch of approximately 4 kilometres of gill net and in excess of 600 fathoms of rope for attaching these heavy steel gill net anchors. He deposes that these anchors are intended to and do in fact assist in preventing the nets when set from drifting according to wind and tide and contends accordingly that the second length of net was not a drift net as defined by the Irish Regulation.
9. The vessel travelled some 400 miles from Dingle in a south westerly direction and ended up fishing in an area some 190 nautical miles outside of the 200 nautical mile exclusive fishery limit of the State. There the vessel fished for tuna between the 18th June – 23rd June, 2000. At about 4.30 p.m. on Saturday, 24th day of June 2000, the boat was boarded by a boarding party from an Irish Naval vessel the LE “Deirdre” led by Sub-Lieutenant Bernard Heffernan.
10. The Applicants log book recorded possession of the 2.5 kms of drift net and 4.5 kms of gill net which nets were then inspected by members of the Naval Service. The log of the vessel was inspected, as was the fishing gear and nets which were then in the net pound at the stern of the vessel. The Naval Officer then requested the Applicant to shoot all of the net on board into the water, for the purpose of measuring it’s length. He noted that the anchors and fittings were not rigged to the second net. In cross-examination before this Court he agreed that Mr Brown had said at the time that this second net hadn’t been used. He also stated, however, that this second net was exactly the same as the first net on inspection. He agreed that the 2.5 km length of net was in 12 sections and was a continuous wall with no gaps or doors. Having shot the nets, the same were measured at 2.545 kms and 4.554 kms respectively.
11. Having thus ascertained the length of net or nets, Officer Heffernan cautioned the Applicant and informed him that he was being detained for the offence of keeping on board, or using for fishing, one or more drift nets whose individual or total length was more than 2.5 km contrary to Article 11 of the Council Regulation (EC) 1239/98 amending Council Regulation (EC) 894/97. The Applicant indicated that he understood the caution and commenced hauling his gear. Later that evening, Officer Heffernan’s Commanding Officer gave orders that the Applicant be directed to make best speed for Castletownbere where both vessels arrived on Monday the 26th day of June 2000. On arrival, the vessel was met by Garda Hegarty of Castletownbere and two Sea Fisheries Officers of the Department of the Marine following which Garda Hegarty detained the boat on suspicion of having committed an offence pursuant to Section 223A of the Fisheries (Consolidation) Act, 1959 as amended.
12. Following an inspection of the vessel, Garda Hegarty handed over custody of same to Sergeant O Donovan of Castletownbere, at which point the Applicant and his solicitor were informed there would be an application made to the District Court in Macroom for a detention order for 48 hours in accordance with the provisions of the Fisheries (Consolidation) Act 1959 as amended. The last named Respondent granted a detention order for 48 hours, during which time the fish was off-loaded from the “Antonia” and sold, the proceeds whereof amounting to £16,900.00 have been retained pending the outcome of the prosecution. The Applicant was subsequently arrested and charged on the 28th of June 2000 with the offences set out in Castletownbere charge sheets 27 and 28 of 2000. Preliminary examinations were waived and the Applicant was returned for trial to the Cork Circuit Criminal Court following which the vessel was released to the Applicant subsequent to the entry of bail bonds to secure the release of the boat and gear. Throughout these procedures, the Applicant’s solicitors maintained an objection that there was no authority in any Irish legislation giving powers of detention to the Naval Service in respect of Irish fishing boats on the high seas.
13. The first of the two charges charges the Applicant that he did on the 24th day of June 2000 keep on board the sea fish fishing vessel “Antonia” a drift net prohibited by Article 11 of Council Regulation (EC) 894/97 of the 29th April 1997 as amended by Council Regulation (EC) 1239/98 of the 8th June 1998 and of Part 4 of the Sea Fisheries drift Net Order, 1998 (SI 267/98) contrary to Section 223A of the Fisheries (Consolidation) Act, 1959 as amended by the Fisheries (Amendment) Acts 1978,1983 and 1994. The second offence charged is that the Applicant did on the same date use for fishing one or more drift nets prohibited by the same Article, contrary to Article 3 of the Sea Fisheries (Drift Nets) Order 1998, contrary to Section 223A of the Fisheries (Consolidation) Act, 1959, amended as already stated.
14. On the 19th December 2000, Kelly J gave leave to the Applicant to apply by way of Judicial Review for the following reliefs:-
1. An Order of Prohibition directed to the first named Respondent herein prohibiting him from prosecuting the Applicant in the Cork Circuit Court on the charges proffered by him and contained in Castletownbere charge sheets No. 27 and 28 of 2000.
2. An Order of Certiorari quashing the Order made by the fourth named Respondent herein on or about the 28th June 2000 whereby he returned the Applicant for trial to the Cork Circuit Criminal Court on foot of the charges contained in Castletownbere charge sheets No. 27 and 28 of 2000.
3. An Order of Certiorari quashing the Order made by the fourth named Respondent herein on the 26th June 2000 pursuant to Section 233A of the Fisheries (Consolidation) Act 1959 (as amended by Section 12 of the Fisheries [Amendment] Act 1978 and as amended by Section 11 of Fisheries [Amendment] Act 1994) whereby he directed the continued detention by Garda Martin Hegarty of the Sea Fishing boat “Antonia” of which the applicant is the Master and the persons on board at the Port of Castletownbere for a period of 48 hours from 10.09 p.m. on the 26th June 2000.
4. A declaration that the boarding, arrest and detention of the Fishing Boat “Antonia” on or about the 24th June 2000 190 miles outside the exclusive fishery zone of the State was unlawful and unauthorised by law.
5. A declaration that bottomset nets or anchor fixed gill nets on board the Antonia do not constitute drift nets for the purposes of Council Regulation 1239/98 or the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998).
6. A declaration that the Sea Fishers Drift Net Order 1998 (SI 267 of 1998) is ultra vires the powers of the third named Respondent herein and contrary to the European Communities Act 1972 as amended and/or contrary to Section 5 of the Fisheries (Amendment) Act 1983.
7. A declaration that the Fisheries (Drift Nets) Order 1998 (SI267 of 1998) is ultra vires the powers of the third named Respondent herein pursuant to Section 223A of the Fisheries Consolidation Act 1959 as inserted by Section 4 of the Fisheries Amendment Act 1983 or alternatively the said section is invalid having regard to the provisions of the Constitution and in particular Article 15 thereof.
15. Other reliefs sought, including a possible referral under Article 234 of the Treaty of the European Communities referring the matter to the Court of Justice, to which I have already made reference, need not be detailed further at this point.
16. The grounds upon which relief was sought include the following:-
1 The Applicant has been arrested, detained, charged and returned for trial for a matter which is not an offence known to Irish law.
2 The activity complained of by the first named Respondent is outside the jurisdiction of the State and the entitlement of the first named Respondent to prosecute for same.
3 The offences alleged against the Applicant in Castletownbere charge sheets 27 and 28 of 2000 are outside the jurisdiction prescribed by Section 10 of the Maritime Jurisdiction Act 1959 as amended, as it is not within the territorial seas or internal waters of the State.
4 The offences alleged against the Applicant in Castletownbere charge sheets 27 and 28 of 2000 are not alleged to have been committed within the exclusive fisheries limits prescribed by the Government pursuant to Section 6 of the Maritime Jurisdiction Act 1959 and as laid down in the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976.
5 The offences alleged do not come within the scope of the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) made pursuant to Section 223A of the Fisheries Consolidation Act 1959 as amended (as inserted by Section 4 of the Fisheries Amendment Act, 1983) under Chapter 2 of Part 13 of the 1959 Act which sets out the statutory provisions applicable to the exclusive fishery limits of the State. The previous statutory instruments (SI 201 of 1994 and SI 262 of 1995) proscribing any infringement of Article 9 (A)(1) of Council Regulation 3094/86 outside the exclusive fishery limits of the State in relation to an Irish fishing vessel or by a person on board an Irish sea fishing vessel have been repealed by SI 267 of 1998 and have not been re-enacted by SI 267 of 1998 in relation to any infringement of Council Regulation 1239/98 outside the exclusive fishery limits of the State.
6 The powers of Sea Fishery Protection Officers pursuant to Part XIII of the Fisheries (Consolidation) Act 1959 as amended only apply and are exercisable in relation to offences allegedly committed within the areas comprised within the territorial seas or internal waters of the State under the Maritime Jurisdiction Act, 1959 or within the exclusive fishery limits prescribed by the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976 and have not been extended or deemed to apply outside the exclusive fishery limits of the State and in particular in relation to Council Regulation 1239/98.
7 The first named Respondent and/or his solicitor were unable to inform the Applicants solicitor orally or in reply to correspondence written by the Applicants solicitor as to what power of detention they were exercising in relation to the Applicant on the High Seas and were also unable to inform the fourth named Respondent herein what power had been exercised or the existence of any particular power which would entitle the Applicant to be arrested and his ship to be boarded and detained but that they did believe that there was such a power.
8 The second named Respondent is obliged when purporting to give effect to Acts or measures adopted by the European Communities or by any of the institutions thereof to use the methods prescribed by law and in particular the methods prescribed by the Oireachtas for the proper implementation of these into domestic law (whether by means of a Regulation made pursuant to Section 3 (1) of the European Communities Act 1972 as amended or, where necessary, by the passage of legislation to be enacted by the Oireachtas in circumstances where this is required, or alternatively by the making of regulations pursuant to Section 224 B of the Fisheries (Consolidation) Act 1959 as inserted by Section 5 of the Fisheries mendment Act 1893).
9 Insofar as the second named Respondent has purported to give effect to Council Regulation (EC) 1239/98 by means of the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) in purported exercise of the powers conferred to him by Section 223A of the said 1959 Act as amended, and by failing to use Section 3 (1) of the European Communities Act 1972 as amended or Section 224B of the said Fisheries (Consolidation) Act, 1959 as amended or by securing the passage of legislation by the Oireachtas, the said Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) is invalid and unlawful and ultra vires the powers of the second named Respondent herein.
10 Insofar as the second named Respondent made the said 1998 Order purportedly pursuant to Section 223A of the Fisheries Consolidation Act 1959 as amended and insofar as the same
(a) creates an indictable offence on the high seas
(b) defines that offence
(c) purportedly has applied to it the enforcement provisions of Chapter 2 and of Part XII of the 1959 Act, as amended and the prosecution, conviction and penalty provisions of Sections 2 to 4 of the 1978 Fisheries (Amendment) Act as amended by the Fisheries Amendment Acts 1983 and 1994.
The Minister is acting ultra vires Section 223A of the said 1959 Act as it only permits him to regulate the exclusive fishery limits of the State.
11 Alternatively if and insofar as the said regulations are ultra vires the said Section 223A, constitutes an impermissible delegation of law making power by the Oireachtas to the second named Respondent herein, contrary to Article 15 of the Constitution.
The Statement of Opposition
17. The Statement of Opposition contends that the return for trial was made within jurisdiction and denies that any steps taken prior to the making of such Order were unlawful or failed to come within the scope of the Sea Fisheries (Drift Nets) Order 1998.
18. The Statement further contends that the various Orders made by the fourth named Respondent are now spent. Any controversy as to whether the bottomset or anchor fixed gill nets on board the vessel constitute drift nets is a pure issue of fact to be determined by the Court of Trial, and it is submitted that this Court has no jurisdiction or alternatively, should refuse its discretion, to make any declaration on this point. This Statement further contends that the powers of Sea Fishery Protection Officers are not limited in application to offences committed within the territorial seas or within the exclusive fishery limits of the State.
19. Further, the powers of detention, arrest and boarding exercised by the first named Respondent derive from Section 233 of the Fisheries (Consolidation) Act 1959 as amended.
20. Paragraph 13 states as follows:-
“The second named Respondent was entitled at law to make an Order under Section 223A of the Fisheries (Consolidation) Act 1959, as amended, for the purpose inter alia, of giving effect to certain provisions of Council Regulation (EC) 894/97 of April 29th 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8th, 1998.”
21. It is further denied that Orders made under Section 223A of the Fisheries (Consolidation) Act 1959 as amended are limited in scope to regulating the exclusive fishery limits of the State. It is further denied that Section 223A of the Fisheries (Consolidation) Act 1959, as amended, constitutes an impermissible delegation of law making by the Oireachtas to the second named Respondent.
The EC Regulations
22. Title VIII of Council Regulation (EC) No 2847/93 of 12th October 1993 established a control system applicable to the Common Fisheries Policy and provided as follows by Article 31:-
“1. Member States shall ensure that the appropriate measures be taken, including of administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.
2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of National law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.
3. Sanctions arising from the proceedings mentioned in paragraph 2 may include, depending on the gravity of the offence:
– Fines,
– Seizure of prohibited fishing gear in catches
– Sequestration of the vessel
– Temporary immobilisation of the vessel
– Suspension of the licence
– Withdrawal of the licence”
Given that these enforcement requirements for non-compliance exist, it is contended on behalf of the Respondents in this case that the State, in transposing the EC Regulation, was required to create an offence that was at least capable of being tried on indictment.
23. EC Council Regulation 894/97 lays down certain technical measures for the conservation of fishery resources.
24. Article 11 provides as follows:-
“1. No vessel may keep on board, or use for fishing, one or more drift nets whose individual or total length is more than 2.5 kilometres.
2. Throughout the fishing referred to in paragraph one, the net must, if it is longer than 1 kilometre remain attached to the vessel. However, within the 12 mile coastal band, a vessel may detach itself from the net, provided that it keeps it under constant observation.
3. Notwithstanding Article 1 (1) this Article shall apply in all waters, with the exception of the Baltic Sea, the Belts and the Sound under the sovereignty or jurisdiction of the Member States, and outside those waters to all fishing vessels flying the flag of a Member State or registered in a Member State.”
25. The Regulation did not contain a definition of “Drift Net”, although the Regulation did define “Bottom Set Gill Nets or Entangling Nets” and “Trammel Nets”. Reference is made in the Regulation to the use of gill nets at Article 9, paragraph 2 (dealing with Mackerel) which, Mr McGuinness on behalf of the Applicant suggests, is indicative that all these types of net are distinguishable from each other.
26. This Regulation was amended by Council Regulation (EC) No1239/98 of the 8th of June 1998. It replaced Article 11 of 894/97 by repeating Article 11 (1) and by adding Article 11A which provided:-
“1. From 1 January 2002 no vessel may keep on board, or use for fishing, one or more drift nets intended for the capture of species listed in Annex 8.
2. From 1 January 2002, it is prohibited to land species listed in Annex 8 which have been caught in drift nets.
3. Until 31 December 2001, a vessel may keep on board, or use for fishing, one or more drift nets referred to in paragraph 1 after receiving authorisation from the competent authorities of the Flag Member State. In 1998, the maximum number of vessels which may be authorised by a Member State to keep on board, or use for fishing, one or more drift nets shall not exceed 60% of the fishing vessels which used one or more drift nets during the period 1995 to 1997.”
27. Article 6 of the Regulation provided:-
“In the case of failure to comply with the obligations laid down in Articles 11 and 11A and this Article, the competent authorities shall take appropriate measures in respect of the vessels concerned, in accordance with Article 31 of Regulation (EC) No. 2847/93.”
28. The Regulation further provided that the said obligations should apply in all waters falling within the sovereignty of jurisdiction of the Member States and outside those waters should apply to “all community fishing vessels.”.
29. It was for the purpose of transposing, implementing and providing for enforcement to the Regulation that the Minister for the Marine and Natural Resources on the 28th July 1998 introduced the Sea Fisheries (Drift Nets) Order 1998 (SI 267/98) (The Irish Regulation).
The Irish Regulation
30. In introducing the Irish Regulation, the Minister purported to do so in exercise of powers conferred on him by Section 223A of the Fisheries (Consolidation) Act 1959 as amended, which provides:-
“(1) Chapter II of part XIII of the Principal Act is hereby amended by the substitution of the following subsections for subsection (i) of section 223A (inserted by section 9 of the Act of 1978):
“1. The Minister may, as he shall think proper, by Order prescribe and adapt either or both of the following measures, namely, measures of conservation of fish stocks and measures of rational exploitation of fisheries.
(1A) Without prejudice to the generality of subsection (1) of this section, an Order under this may –
(a) relate –
(i) generally to sea fishing or to sea fishing which is of a specified class or description,
(ii) generally to fishing other than sea fishing or to such fishing which is of such of such a class or description,
(iii) generally to fisheries other than sea fisheries or to such fisheries which are of such a class or description,
(iv) generally to fishing boats (including sea fishing boats) or to fishing boats which are of such a class or description,
(v) to boats, other than fishing boats, which are of such a class or description,
(b) for the purpose of enabling the Order to have full effect, extend any or all of –
(i) the powers conferred by this Act on a sea Fisheries Protection Officer for the purposes of this Act
(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act
(iii) the powers so conferred on authorised officers within the meaning of Section 301 of this Act,
(c) Include such incidental supplementary and consequential provisions as the Minister considers appropriate, and in case provisions are included in such an Order by virtue of paragraph (b) of this subsection, this Act shall be construed and have effect in accordance with the terms of the Order
2 An order under subsection (1) of Section 223A (inserted by Section 9 of the Act of 1978) of the Principal Act and which immediately before the commencement of this section had neither expired nor been revoked shall be deemed to have been made under the first of the subsections inserted in the said Section 223A by subsection (1) of this section and may be revoked or amended as if it had been so made
3 A person who contravenes or attempts to contravene an Order under this Section shall be guilty of an offence
4 The Minister may by Order revoke or amend an order under this section including an order under this subsection”
31. It is interesting to contrast this provision with Section 224 (B) of the Fisheries (Consolidation) Act 1959, which was inserted by Section 5 of the Fisheries (Amendment) Act 1983, and which was clearly envisaged as a vehicle for the transposition of EU measures into Irish law. Section 224B (1) provides:-
“Without prejudice to the generality of Section 3 (1) of the Act of 1972, the Minister may by Regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the Treaties or of any Act adopted by an institution of the European Communities which authorises any or all of the Member States of the European Communities to restrict or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction.”
32. Because the availability of this provision is confined to regulations to be introduced to give effect or have effect within the exclusive fishery limits of the State, it clearly fell short of what the Minister required to create an indictable offence outside those limits on the high seas. Because the creation of an indictable offence was involved, the provisions of the European Communities Act 1972, usually availed of for transposition purposes, were also unavailable.
33. The purported effect of SI 267/98 is to put in place enforcement provisions for Council Regulation 1239/98. Essentially it provides that from the making of the Order no vessel may keep on board or use for fishing one or more drift nets whose individual or total length is more than 2.5 kilometres. The penalties for any breach are contained in the Fisheries (Amendment) Act 1978. It repeals earlier regulations made in 1994 and 1995 wherein an identical definition of drift net appeared and wherein extra territorial application was provided for. It does not purport to bring within it’s ban any other type of net, and in particular any other net which is not free to drift or move according to wind and tide. Nor does it expressly state that when an infringement of the Order occurs, it is by reference to exclusive fishery limits, be it either inside or outside of same.
34. The effect of the Irish instrument is to give the Minister power to create an indictable offence on the High Seas without primary legislation. Whether such a substantial measure can be effected by means of Statutory Regulation is a consideration to which I will now turn.
Implementation by Statutory Instrument
35. Article 249 EC provides:-
“In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.
A Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”
36. Article 10 EC provides that:-
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community tasks.”
37. While Community Regulations are directly applicable, they may nonetheless require the making of detailed rules by a Member State to make them effective and this is done by some act or measure of implementation.
38. Under Article 29.4.3, introduced by the third amendment to the Constitution in 1972, it was provided that “The State (might) become a member of the European Economic Community”. Article 29.4 paragraphs 3, 4, and 5, respectively authorised the State by means of successive constitutional amendments to ratify the Single European Act in 1987, the Treaty on European Union (The Maastricht Treaty) in 1992 and the Treaty of Amsterdam in 1997.
39. Article 29.4.7 provides:-
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities (including the European Economic Community) or prevents laws enacted, acts done or measures adopted by the European Union or the Communities or by the institutions thereof, or by bodies competent under the treaties established in the Communities, from having the force of law in the State.”
40. Article 15.2.1. of the Constitution provides:-
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: No other legislative authority has power to make laws for the State”.
41. Article 6 of the Constitution recognises the tripartite separation of legislative, executive and judicial powers.
42. Against this Community and Constitutional backdrop, one must then consider the relevant provisions of the European Communities Act 1972 which is a conduit pipe through which Community law may be rendered into domestic law.
43. Described as “An Act to make provision with respect to membership of the State of the European Communities” , it contains the following provisions:-
“2 From the first day of January 1973 the Treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those Treaties.
3(i) A Minister of State may make regulations for enabling Section 2 of this Act to have full effect
(ii) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to theMinister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(iii) Regulations under this section shall not create an indictable offence”
44. As it is a matter of some importance in this case, I also propose to set out fully the relevant parts of Section 4 of the European Communities Act 1972 as substituted by the European Communities (Amendment) Act 1973:-
“(1) (a) Regulations under this Act shall have statutory effect
(b) If the Joint Committee on the Secondary Legislation of the European Communities recommends to the Houses of the Oireachtas that any regulations under this Act be annulled and a resolution annulling the regulations is passed by both such Houses within one year after the regulations are made, the regulations shall be annulled accordingly and shall cease to have statutory effect, but without prejudice to the validity of anything previously done thereunder.”
45. This Section replaced the corresponding section of the 1972 Act which provided that regulations under that Act should have statutory effect but, unless confirmed by Act of the Oireachtas passed within six months after they are made, they should cease to have statutory effect on the expiration of that period, without prejudice however to the validity of anything previously done thereunder. The amendment thus watered down but nonetheless preserved an important element of parliamentary supervision over regulations made under the 1972 Act.
46. The essential issue therefore when Community law is being transposed is to determine the circumstances in which Ministerial Regulation, rather than primary legislation, may be resorted to for that purpose, and where it is permissible, to examine if the mode of implementation complies with the requirements of domestic law.
47. Under Irish constitutional principles, ministerial regulations cannot make new law and are permitted only to give effect to the principles and policies contained in the parent Act under which they are adopted. They may not repeal or amend legislation. They may not go beyond the four walls of the particular Act. The parameters were defined by O’Higgins CJ in Cityview Press Limited-v-An Chomhairle Oiliuna (1980) IR 381 (at p399):-
“In the view of this Court the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
48. In Meagher-v-The Minister for Agriculture and Food (1994) 1IR 329 it was held by the Supreme Court that Section 3 of the 1972 Act was not invalid having regard to the provisions of the Constitution. In that case, and in the later case of Maher-v-The Minister for Agriculture, Food and Rural Development (2001) 2 ILRM 481, the appropriateness of effecting transposition by Ministerial Regulation rather than primary legislation was considered in great detail.
49. In the Maher case, the Supreme Court held, inter alia as follows:-
(1) The fact that a regulation is directly applicable does not prevent the provisions of that regulation from empowering a Community institution or a Member State to take implementing measures. In the latter case the detailed rules for the exercise of that power are governed by the public law of the Member State in question; however, by virtue of the direct applicability of the measure empowering the Member State to take the national measures in question, the national Courts can ascertain whether such national measures are in accordance with the content of the Community Regulation (Eridania-v-Minister of Agriculture and Forestry (Case 230/78) (1979) ECR 2749 applied).
(2) The fact that it may be convenient or desirable to transpose a Community measure into Irish law in the form of a Regulation rather than an Act of the Oireachtas is not of itself a sufficient reason for concluding that the regulation is necessitated by the obligations of membership of the European Union or of the Communities within the meaning of Article 29.4.7 of the Constitution. Where no policy choices are left to the Member State, expedition is one of the factors which may legitimately be taken into account in deciding to opt for the making of a regulation rather than the enactment of primary legislation, but it does not justify such a decision in the case of every directive or EU Regulation.
50. In the instant case, both sides agree that the use of a statutory instrument, rather than an Act of the Oireachtas, as the vehicle for making the detailed rules was not necessitated by the obligations of membership of the European Union, so that the transposing measure in the instant case is not immune from Constitutional scrutiny. In considering whether the regulations in the Maher case infringed the exclusive law making power conferred upon the Oireachtas by Article 15.2.1. of the Constitution the Supreme Court held that the “principles and policies test” provides the basis for deciding whether a given legislative act abdicates the exclusive law making power conferred upon the Oireachtas by Article 15.2.1 of the Constitution. The Court further held that the principles and policies test is capable of being applied by the Irish Courts without any conflict with Community law, being a test designed to protect the democratic basis of government, a principle that finds expression in Community law. Thus the Court also held:-
(3) Where a provision of Community law imposes obligations on the State, leaving no room (or perhaps no significant room) for choice, the implementation of such a provision by means of Ministerial Regulation is not invalid having regard to Article 15.2.1 of the Constitution. The force of Article 15.2.1 is preserved for cases where such an obligation does not exist. The principles and policies test applies mutatis mutandis where the delegated legislation represents an exercise of power or discretion arising from Community secondary legislation. It applies with particular clarity to the case of directives in respect of which Article 249 EC leaves the choice of form and methods to the Member States. Although Community Regulations are directly applicable without the need for national implementing measures, the principles and policies test is applicable where such regulations leave open a range of choices. Each case must be decided on its own merits. The mere existence of a Community Regulation implies a Community policy. Article 253 EC obliges the Community legislature to state in such Acts “the reasons on which they are based”. Member States implementing measures come inherently within the scope of such a stated policy. However, the choices left to the Member States may be of such significance in their nature or scope or so unconnected with Community policies and aims that primary legislation would be required to transpose the Community measure into Irish law and, if regulations were to be used, such would be invalid having regard to Article 15.2.1 of the Constitution.
51. On behalf of the applicant, Mr McGuinness points out that in the instant case the Minister is not exercising any power in pursuance of Section 3 of the Act of 1972. Instead, the Minister is purportedly acting in pursuance of a power granted to him by the Oireachtas under Section 223A of the Act of 1959 as amended. This, it is submitted, clearly brings it within the scope of Article 15.2.1 and the principles and policies test laid down by the Supreme Court. On any application of this test, he submits, it could not be said that the Oireachtas was intending to delegate to the Minister:-
(a) A power to implement any measure of Community law from whatever treaty source arising.
(b) A power to create an alternative but silent means of implementation thereby implicitly authorising a by-pass of the existing methods by which the Minister might have properly sought to implement any such European based obligation.
(c) A power to extend the criminal jurisdiction of the State by the creation of an indictable offence which might be committed anywhere on the high seas in the world.
(d) A power to prescribe conservation measures not limited to the exclusive fishery limits of the State.
52. He further submits that the mere fact that Ireland may have been required to introduce the ban on drift net fishing contained in the Council Regulation does not exempt Ireland from proceeding to do so in a lawful manner in accordance with the requirements of its own constitutional and statutory procedures. Thus, it is submitted, even if the substance of the measure contained in SI 267 is considered to be necessitated, it does not and cannot satisfy the Irish requirements that for such implementation to be effective in terms of the enforcement of a criminal law, there must be a clear and demonstrable assumption of jurisdiction by the State both in terms of the extension of the area within which it purports to exercise its jurisdiction and a clear criminalisation of the conduct in respect of which it wishes to exercise that jurisdiction, neither of which it is submitted are present in the instant case. Accordingly, he submits, that as the decision in Maher intended to allow for the scrutiny of a domestic implementation measure in relation to something which is not necessitated as to the mode of implementation and extends even to measures which are held to be necessitated as to their mode of implementation, it is submitted that SI 267 on any application of the principles and policies criteria, having regard to Article 15 and Section 223A, fails that test, and that the said Regulations are accordingly ultra vires the Minister. Alternatively, if Section 223A, contrary to the foregoing submission, is interpreted so as to authorise the Minister to do what he has purported to do, it is submitted that such would be a delegation of the law making power of the State contrary to Article 15.2.1 and the section itself would be unconstitutional as being in contravention of the said provision.
53. In reply Mr Charleton on behalf of the respondents submitted that Section 223A must be examined on its own terms. In particular, he submitted, that the reference to “provisions applicable to exclusive fishery limits of the State” in the heading of that part of the Act in which Section 223A is to be found should be ignored when interpreting its provisions. It was not open to the Minister in this instance to avail of Section 3 of the European Communities Act 1972, or Section 224B of the Fisheries Amendment Act, but that did not preclude him from availing of another Section of the Fisheries (Consolidation) Act 1959 whereunder an appropriate Order might be made.
54. He submitted that the particular provision of Community law imposed obligations on the State which left no room for choice so that Article 15.2.1 of the Constitution could not be said to have been infringed by the use of a Ministerial Regulation in order to implement it. He further asserted that, for the purpose of applying the principles and policies test, the Community Regulations stood in the place of an Act of the Oireachtas. As in the Maher case, the instant case involved no more than the adoption of measures for the purpose of giving effect to a Community Regulation which is directly applicable in Irish law without the necessity for enacting domestic legislation.
55. Having considered these principles and submissions, a sequential question and answer process suggests itself as the appropriate method of testing whether or not a valid transposition has taken place.
56. The first question in such a process is to inquire, given that regulations are directly applicable, whether some additional measure was necessitated by the obligations of membership of the EU.
57. As Keane CJ states in Maher-v-Minister for Agriculture, Food and Rural Development (2001) 2 ILRM 481 at p516:-
“It follows that, in the present case, the first inquiry must be as to whether the implementation of the EC Regulations by legislation, whether in primary or secondary form, was necessitated by the obligations of Membership within the meaning of Article 29.4.7 of the Constitution.”
58. As in that case, it is clear that here legislation in some form was necessary. Article 31 of Title VIII of Council Regulation (EC) 2847/93 of 12 October 1993 and Article 6 of Council Regulation (EC) 1239/98 of 8 June 1998 required Member States to ensure appropriate measures were put in place for the purposes of respecting the Common Fisheries Policy.
59. The second question in such a process is to inquire whether the form of implementation adopted was necessitated as an obligation of membership. Given that Community law is ‘indifferent’ as to the manner of implementation (subject to Community law principles of equivalence and effectiveness), such a test may be appropriately seen as a ‘practical necessity’ test. Quite obviously if all transposition measures were required to be implemented by primary legislation, the State could simply not discharge its law-making obligations as a Member State. In any case of urgency, therefore, a ‘practical necessity’ test might demand implementation by regulation although ‘expediency’ in this sense does not appear to have found approval in the Maher decision, other than as a factor to be taken into account. Both sides in the instant case are agreed however that the form of measure adopted was not necessitated as an obligation of Membership.
60. Next one must inquire if the Community law to be transposed sets out the principles and policies to such a degree as to obviate the requirement for domestic primary legislation. This involves a consideration of the content and substance of the measure to enable the Court form a view as to the propriety of any attempt to carry it into effect in domestic law by regulation only. If significant policy choices or decisions are left to the Member State, then, as the decision of the Supreme Court in Maher makes clear, primary legislation is required.
61. The policy behind the said legislation, Title VIII of Council Regulation (EC) 2847/93 is to establish a control system for the Common Fisheries Policy. To this end Member States are to use either criminal proceedings or administrative action so as to deprive offenders of the economic benefits of their infringements of the policy. Such sanctions as fines, seizure of prohibited fishing gear, sequestration of the vessel and suspensions or withdrawal of a licence are envisaged under the Regulation.
62. Council Regulation (EC) 1239/98 of 8 June 1998 provided that no vessel may keep on board or use for fishing one or more drift nets of more than 2.5 km in length intended for the capture of most species of tuna and highly migratory fish. The policy is that if these obligations were not complied with that the competent authorities are to take appropriate measures in respect of the vessels concerned.
63. Turning to the Irish implementing measure, SI 267/1998 provides that no vessel is to keep on board or use for fishing one or more drift nets whose individual length is more than 2.5 km. There is no suggestion that any area of policy has been left to the Member State or that SI 267/98 purported to address any additional policy consideration or to adopt enforcement measures that went beyond anything contemplated in the EC Regulations. The clear intention of the Community law is to achieve the abolition of drift net fishing for tuna and to progressively remove certain derogations which existed during the 1990’s. Mr McGuinness argues that to leave to Member States the decision or choice whether to impose administrative or criminal sanctions by way of enforcement is an important discretion and policy consideration. In reality, he submits, it was the only matter addressed in the transposition process, the EC Regulation being otherwise directly applicable. However, in my view, a choice between different enforcement measures does not represent a significant reservation of policy, given that the EC Regulations cited quite clearly require that effective sanctions be put in place. In my view the choice by the Minister of Regulation was constitutionally permissible, subject only to the requirement that it be carried into effect in a constitutional fashion.
64. The fourth question therefore relates to the mode of implementation into domestic law. Did the use of SI 267/98, as to its mode of implementation, amount to a violation of Article 15.2.1 of the Constitution or otherwise amount to an ultra vires exercise of power by the Minister?
65. In my view, it did for a variety of reasons.
66. Unlike the Maher case, Section 3 of the European Communities Act, 1972 was not availed of for the transposition. Instead, the Fisheries (Consolidation) Act 1959 was the chosen vehicle. The reasons why the Minister adopted this vehicle have already been referred to. However, an immediate difficulty at once arises insofar as the application of the “principles and policies” test is concerned. In Maher, the intervening parent Act, the European Communities Act, 1972 was identified as containing no general statements of principle or policy. From the point of this consideration, the Act is a conduit pipe, nothing more, nothing less. Accordingly, in Maher the EC Regulation could be looked at as the true ‘parent Act’ to ascertain if it contained the requisite statement of principles and policies sufficient to obviate the need for primary domestic legislation.
67. In this case, however, the Minister chose to ‘adopt’ as a parent Act the Fisheries (Consolidation) Act, 1959, and a section thereof, which is clearly not designed for transposition purposes. The Fisheries Acts 1959 – 1994 contain many principles and policies but not the principles and policies of these EC Regulations. That is, they do not purport to regulate for a ban on the use of drift nets of a certain length, nor do they aim to further the Common Fisheries Policy. The law regulating fish net sizes is not laid down in the Fisheries Acts, 1959 – 1994, with only the details being filled in or completed by the Respondent in SI 267/1998. The rules contained in SI 267/1998 do not give effect to principles and policies of the Fisheries Acts themselves, but constitute a completely new addition thereto.
68. A fundamental principle of the rule of law is the principle of legality whereby every executive or administrative act which affects legal rights, interests or legitimate expectations must be legally justified. This may be achieved by demonstrating that the measure in question meets the principles and policies test, but the Respondent in this case has not in my view shown that he had such legal authority by reference to the wording of the Fisheries Acts to make SI 267/98 and accordingly must be held to have acted ultra vires as to the mode of implementation of the EC Regulation.
69. I also accept Mr McGuinness’s submission that it cannot be said that the Oireachtas were intending to delegate to the Respondent a power to implement any measure of EU law from whatever treaty source arising or to delegate a power creating an alternative but silent EU power of implementation. The Oireachtas cannot be said to have thereby implicitly authorised a by-pass of existing methods by which the Respondents might have properly sought to implement any such European based obligation.
70. It also seems to me that the clear implication to be drawn from Section 3 (3) of the European Communities Act 1972 (which provides that no regulations can be made under the Act to create an indictable offence) is that primary legislation is required where it is intended to create an indictable offence. If regulations under the “conduit pipe” for transposing European legislation cannot create an indictable offence, it seems to me virtually impossible to argue that delegated legislation made under a national statute can do so.
71. In any event the Irish regulation does not expressly prescribe that an infringement of Article 11 of the Council Regulation outside the exclusive fishery limits of the State is an offence, in contrast to an earlier Order, SI 201/1994. It does not define the area of application of the requirement to comply with Article 11, 11 (A) and 11(B) of the Council Regulation and must therefore be presumed to have been intended to prohibit only that which it was within the jurisdiction of the State to prohibit i.e. one within territorial seas comprised by Section 2 of the 1959 Act or within the exclusive fishery limits of the State as fixed by Section 6 of the Maritime Jurisdiction Act 1959. It does not purport to give effect to Article 11 (c) of the Regulations so as to amend the criminal jurisdiction of the State as described above or to extend it on a world wide basis to the high seas. I accept Mr McGuinness’s submission that it is a fundamental principle of criminal law that there must be certainty as to the existence of an offence, its definition and the State’s jurisdiction in relation to an alleged commission of the offence. The Court cannot presume from an ambiguous provision that criminal liability to trial, conviction and punishment has been imposed by means of interpretation only. (See King -v- A.G 1981 IR 223 and A.G. -v- Cunningham (1932) IR 28).
72. The mode of implementation adopted, it seems to me, also offends Article 15.2.1 in another undesirable manner, a manner in which it perhaps also offends Article 6 of the Constitution, where its effect is to dis-apply S.4 of the European Communities Act, 1972.
73. The European Communities Act, 1972 is an example of one of the few instances where by virtue of S.4 thereof, there is a functioning scrutiny of delegated legislation by the Dáil and Seanad. As O’Higgins CJ states in the Cityview Press case at pp 398 – 399:-
“…sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulating or order-making process provides that any Regulation or Order made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. It is, therefore a safeguard …”
74. The Court continued: “Nevertheless, the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power neither contemplated nor permitted by the Constitution.”
75. Section 4 of the European Communities Act, 1972 devolves an important supervisory and monitoring function upon the Dail and the Seanad in respect of regulations put in place under that Act whereby they may be annulled by resolution of the two Houses. In by-passing that Act, as has occurred in this case, the Minister has stripped away that element of parliamentary supervision of the measure adopted and has undoubtedly contributed to what has been sometimes described as a “democratic deficit” in the important area of transposition of Community law into domestic law. In effect the Regulation “repeals” S. 4. insofar as the implementing measure itself is concerned. As only regulations under the 1972 Act have statutory effect, a de facto repeal of a statutory provision by a regulation made under another Act must be seen as impermissible for that reason also.
76. For these reasons I conclude and hold that the purported transposition was ultra vires in that SI 267/98 infringed the exclusive law making power conferred upon the Oireachtas by Article 15.2.1 of the Constitution.
Remaining Issues
77. While Mr Charleton contended that this was a ‘one issue’ case (i.e. about transposition), I should nonetheless make findings on the other points canvassed on their separate merits in case the matter may be taken further. A challenge in this case was made to the powers of Sea Fishery Protection Officers. Given that in the instant case, the Sea Fishery Protection Officer detained the vessel and all persons on board suspecting there had been a contravention of the provisions of Chapter II of Part XIII of the Sea Fisheries (Consolidation) Act 1959, his power to do so necessarily depends upon the validity of SI 267/1998, which I have found to be ultra vires the power of the Minister.
78. That said, Sea Fishery Protection Officers are granted special powers under Section 233 of the Fisheries (Consolidation) Act 1959, both within the exclusive fishery limits of the State and, subject to the rules of international law, outside those limits in a variety of respects.
79. There is no question but that an Irish registered vessel is subject to the criminal jurisdiction of the Irish Courts and numerous examples have been cited to demonstrate how the legislature can pass laws having extra-territorial effect, including the Merchant Shipping Act, 1894, the Air Navigation and Transport Act, 1973 and, indeed, the Fisheries (Consolidation) Act 1959. I am therefore making no finding which would impugn the powers of Sea Fishery Protection Officers other than in respect of the particular offence in respect of which the Applicant’s vessel was detained in the instant case.
80. Insofar as the various Orders of the district judge are concerned, I also accept Mr Charleton’s submissions that these Orders are now spent.
81. An issue also arose as to whether bottom set or anchor fixed gill nets on board the S-V “Antonia” did or did not constitute drift nets for the purposes of SI 267/1998. Mr McGuinness submits that the Sea Fisheries (Gill Net, Tuna and certain other Species of Fishing) Order 2001 (S. I. 226/2001) introduced a new definition, a more comprehensive definition, in recognition of the “deficiencies” in the earlier regulation, when it substituted for drift nets a definition of gill nets as follows:-
“Any type of gill nets, drift nets, bottom set gill nets, trammel nets and entangling nets”
82. This may well be a most persuasive basis for suggesting there may have been deficiencies in the definition contained in SI 267/1998, but the resolution of that issue is clearly within the jurisdiction of the trial judge in any given case and Mr. Charleton submits that seeking relief by judicial review is inappropriate in respect of what is essentially an issue of fact.
83. Mr Charleton referred to Blanchfield -v- Harnett (2001) 1 ILRM 193 where, albeit in a somewhat different situation (when an issue arose as to the admissibility of evidence), O’Neill J stated (at p205):-
“Where it is alleged that evidence has been obtained illegally the question of whether or not such is the case, i.e whether an illegality has occurred is one solely for the trial judge and following upon that whether or not the evidence should be admitted is again one solely for the discretion of the trial judge, a discretion to be exercised in accordance with law. In my view the principle of regularity of judicial proceedings requires that all questions relevant to the determination of such issues rests with the trial judge. Otherwise trials would be suspended for lengthy periods while such issues were litigated in other Courts, a practice wholly condemned by the Supreme Court in the case of People (Attorney General) -v- McGlynn (1967) IR 232 where at p239 the following was said by Ó Dálaigh CJ:-
“The nature of a criminal trial by jury is that once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be reassessed in the middle of trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”
84. While ‘trial context’ and ‘admissibility issues’ are not in point in the present case, the learned judge however continued:-
“In reference to this quote, O’Flaherty J in DPP -v- Special Criminal Court (1999) 1 IR 60 said the following:-
‘While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as practical, be followed in respect of all criminal trials subject to the jurisdiction of Courts to grant cases stated on occasion.’
Further on in this judgment O’Flaherty J added the following:
‘I would endorse everything that Carney J said about the undesirability of people repairing to the High Court for a judicial review in relation to criminal trials at any stage (and certainly not during their currency)’
In my view therefore, the exclusive jurisdiction of trial judges to determine issues as to the admissibility of evidence is right in principle being consistent with the regularity of judicial proceedings, a fact which is abundantly supported by authority.”
85. On the material brought before this Court, certain factual matters have not yet been determined. For example, can a gill net which is capable of being used as a bottom set or anchor-fixed net, nonetheless be utilised and be therefore regarded as a drift net and thus infringe the law? It seems to me that a ruling on such an issue can only be made once the factual material has been clearly established, and this quintessentially falls within the remit of the trial Court. It is a matter arising out of the charge or indictment, so I hold in favour of Mr. Charleton on this point.
amf(VincentBrowneVAttorneyGeneral)Kearns

C v Ireland (No. 2)

[2006] I.E.S.C. 33

UDGMENT of Mr. Justice Hardiman delivered on the 23rd day of May, 2006.

C.C. (“the applicant”) who was born on the 25th December, 1982, was charged with four offences contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935. These offences were said to have occurred between the 20th July, 2001, and the 16th August, 2001 in respect of the same person. He made full statements to the gardaí in which he admitted having consensual intercourse with the person named in the charges. He said that she told him that she was sixteen years of age and herself initiated the contact between them after their first encounter, when no intercourse had occurred.

The terms of s.1(1) of the 1935 Act are as follows:
“Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years.”

The distinction between felonies and other crimes has been abolished by s.3(1) of the Criminal Law Act, 1997. Moreover, by virtue of the Sex Offenders Act, 2001, the applicant, if convicted, will be registered as a sex offender and subjected to certain restrictions and obligations which, on the basis of the judgment of the Court of Criminal Appeal in DPP v. NY [2001] 4 IR 309, would appear to be punitive in nature. But the degree to which this is punitive will vary with the circumstances. In a very bad case with a defendant who has no interest in gainful employment, its punitive effect may be almost nil. On the other hand, a first offender with a responsible job may have his or her career and reputation destroyed by enrolment on the register following a relatively minor offence.

The applicant sought relief by way of judicial review. As the case ran, his claims were for:

(a) A declaration that a reasonable belief on the part of a defendant that the alleged injured party was over the statutory age constituted a defence to a charge under s.1(1) of the Act of 1935.

(b) A declaration, in the alternative, that the exclusion of the defence of mistake as to age is repugnant to the Constitution and that if the offence created by s.1(1) of the Act of 1935 is an offence of strict liability, that provision is inconsistent with the Constitution.

On the 12th July, 2005, this Court held, for the reasons set out in the judgments of Geoghegan J. and Fennelly J., that, in the words of the latter judge, “… The Oireachtas as a matter of deliberate policy, deprived accused persons of the defence of mistakes as to age made on reasonable grounds…” by the enactment of s.1(1) of the Act of 1935 in respect of an offence contrary to that subsection. The Court deferred the hearing of the applicant’s constitutional claim and ordered further submissions in that regard. The point has now been fully argued.
Submissions of counsel.
On behalf of the applicant, Ms. Deirdre Murphy S.C. submitted that it was inconsistent with the applicant’s right to a trial in due course of law as enshrined in Article 38 of the Constitution (and as guaranteed by Article 6 of the European Convention on Human Rights) to deprive him of the defence of mistake, or mistake on reasonable grounds. That regime, she said, brought about a situation where no “guilty mind” or mental guilt was required and no defence at all could be proffered once, as here, the fact of intercourse was admitted. Putting this another way she said that the Oireachtas cannot constitutionally enact a law which is capable of punishing the morally innocent with a long period of imprisonment. Such a regime, she said, constituted a failure to vindicate in law the applicant’s personal rights enshrined in Article 40.3.1 and 2 and Article 40.4 of the Constitution.

It is fair to say that the thrust of Ms. Murphy’s argument was based on the important general propositions just mentioned. She also complained of discrimination on grounds of sex arising from the fact that where two persons engaged in consensual sexual intercourse only the male appears to be guilty of a criminal offence.

Ms. Murphy pointed out that as the law stands, a defendant, possibly a young man like the present applicant, will find himself without a defence even if he were positively convinced by the girl herself that she was over the statutory age, and had objectively reasonable grounds for believing it.

Ms. Murphy relied on a considerable volume of material, Irish, English, American and Canadian in support of the proposition that, in the words of Wright J. in the well known case of Sherras v. De Rutzen [1895] 1 QB 918 at 921:
“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence”.

Ms. Murphy’s primary reliance, in terms of authority, was on the judgment of this Court in In the Matter of Article 26 of the Constitution and In the Matter of the Employment Equality Bill, 1996 [1997] 2 IR 321. The measure in question there criminalised “discrimination” as defined in the Act and also criminalised “victimisation” as defined. It went on to provide in s.15:
“Anything done by a person in the course of his or her employment shall be treated for the purposes of this Act as done also by that person’s employer whether or not it was done with the employer’s knowledge or approval.” (Emphasis added).
The judgment of this Court was pronounced by Hamilton C.J. who said, at page 373:
“… What is sought to be done by this provision is that an employer, devoid of any guilty intent, is liable to be found guilty on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years, or both such fine and imprisonment, and to be tainted with guilt for offences which are far from being regulatory in character but are likely to attract a substantial measure of opprobrium. The social policy of making the Act more effective does not, in the opinion of this Court, justify the introduction of so radical a change to our criminal law. The change appears to the Court to be quite disproportionate to the mischief with which the Sections seeks to deal.

In the course of his speech in Sweet v. Parsley [1970] AC 132 at 150 Reid L.J. … referred to ‘the public scandal of convicting on a serious charge persons who are in no way blameworthy’. Of course, the English Courts would have to recognise that if Parliament decreed that a person should be found guilty in those circumstances, then the legislation might be upheld because Parliament in the British system is said to be supreme.

Our situation, however, is totally different. We are governed by a Constitution with the separation of powers as its fulcrum and the two Houses of the Oireachtas are precluded from enacting any legislation which is in any respect repugnant to the Constitution.

The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and, therefore, contrary to Article 38, s.1 of the Constitution and also repugnant to the provisions of Article 40 s.1 of the Constitution.”

The offence created by the Employment Equality Bill was of course a vicarious one. But there does not appear to be a distinction of substance between being severely penalised for an act of which one was ignorant on the one hand, and being even more severely penalised for an act of which one was aware but had no reason to think was unlawful. This topic is further discussed below.

Ms. Murphy S.C. did not suggest that it was impermissible for the Oireachtas to create an offence of strict, or even of absolute, liability in all circumstances. Indeed, she positively conceded that in appropriate circumstances such an offence could indeed be created. She referred to Maguire v. Shannon Regional Fisheries Board [1994] 3 IR 580. In that case Lynch J. applied Sherras v. De Rutzen cited above and held that, prima facie every offence whether a Common Law offence or a statutory one, required mens rea. He held that this presumption of mens rea could in certain circumstances be displaced by clear statutory words in favour of strict liability. Ms. Murphy submitted, however, that the learned judge had limited to three the types of case which could be strictly criminalised in this way viz:
(1) Acts which are not criminal in any real sense but which in the public interest are prohibited under a penalty;

(2) Some, and perhaps all, public nuisances and
(3) Cases which, although criminal in form are really only a
method of enforcing a civil entitlement.

The learned judge went on to hold that the Section in question in that case “is regulatory in essence and does not create an offence which would be regarded as of a truly criminal character.” That could not be said of the offence in question here.

Ms. Murphy also relied on the well known Canadian case of Regina v. City of Sault Sainte Marie (1978) 85 DLR 161. This, too, was a water pollution case and the Court upheld the validity of a strict liability statute. Giving the judgment of the Court, however, Dickson J. in a relatively short but lucid passage contrasted regulatory offences with offences of a truly criminal character. Speaking of the former he said:
“Although enforced as penal laws through the utilisation of the machinery of the criminal law, the offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application. They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like. In this appeal we are concerned with pollution.

The doctrine of the guilty mind expressed in terms of intention or recklessness, but not negligence, is at the foundation of the law of crimes. In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea: R. v. Prince (1875) LR 2 CCR 154: R. v. Tolson
(1889) 23 QBD 168… . Blackstone made the point over 200 years ago in words still apt:
‘… To constitute a crime against human laws, there must be, first, a vicious will; and secondly, an unlawful act consequent upon such vicious will….’ I would emphasise at the outset that nothing in the discussion which follows is intended to dilute or erode that basic principle.”

The case just discussed is learnedly analysed in the dissenting judgment of Keane J. (as he then was) in Shannon Regional Fisheries Board v. Cavan County Council [1996] 3 IR 267. The learned judge cites an eloquent passage from Dickson J. in which he queries the justification for absolute offences and emphasises their potential to lead to “cynicism and disrespect for the law”. In a subsequent passage Dickson J. argued for the tripartite division of offences into those requiring mens rea, those of absolute liability “where it is not open to the accused to exculpate himself by showing that he was free of fault”, and an intermediate kind in which it was unnecessary for the prosecution to prove mens rea but open to the defendant to avoid liability by proving that he took all reasonable care:
“The defence would be available if the accused reasonably believed in a mistaken set of facts which if true would render the act or omission innocent or if he took all reasonable steps to avoid the particular event”.

Offences of this sort, in Dickson J’s taxonomy, would be offences of strict liability.

The relevance of this to the present case is, of course, that the Canadian Supreme Court regarded absolute liability with disfavour even in the case of many regulatory offences.

Ms. Murphy relied on two other transatlantic cases. The first of these was People v. Hernandez [1964] 39 Cal Rep 361, a case in which, departing from previous decisions, the Supreme Court of California had struck down a statute which criminalised on an absolute basis consensual intercourse with a woman under the age of eighteen. The other case cited was both more recent and more impressive as a piece of jurisprudence. This was the Canadian case of Hess and Nguyen v. The Queen [1990] 2 SCR 906. In this case the Supreme Court of Canada struck down s.146(1) of the Criminal Code of Canada which had provided:
“Every male person who had sexual intercourse with a female person who… is under the age of fourteen years, whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life”.

The effect of this was baldly stated by one of the two dissenting judges, McLachlin J. as follows:
“A person who is mentally innocent of the offence – who has no mens rea with respect to an essential element of the offence – may be convicted and sent to prison”.

Ms. Murphy relied on the decision of the majority, delivered by Wilson J. Having cited a good deal of Canadian authority the learned judge said that it was:
“… particularly important to reiterate that long before the Charter was enacted our system of law had a profound commitment to the principle that the innocent should not be punished. As Dickson J. (as he then was) explained ‘There rests now at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected to punishment unless the commission of the crime was voluntarily directed by a willing mind”.

Wilson J. went on to review the academic authorities. She concluded:
“Our commitment to the principle that those who did not intend to commit harm and who took all reasonable precautions to ensure that they did not commit an offence should not be imprisoned stems from an acute awareness that to imprison a mentally innocent person is to inflict a grave injury on that person’s dignity and sense of worth. Where that person’s beliefs and his actions leading up to the commission of the prohibited act are treated as completely irrelevant in the face of the State’s pronouncement that he must automatically incarcerated for having done the prohibited act, that person is treated as little more than a means to an end.”

Canadian authorities have, of course, a particular resonance by comparison with British ones since, like us, the Canadian jurisdiction does not attribute unqualified supremacy to Parliament. The judgments therefore tend to discuss the issue in terms of fundamental rights rather than in terms of statutory construction, as many of the English decisions necessarily do.

Submissions on behalf of the respondent.
On behalf of the respondent Mr. Feichin McDonagh S.C. commenced his submissions, both written and oral, with the proposition that “What is at issue in these proceedings is not whether s.1(1) of the Act of 1935 is no longer of any effect”. He referred to Article 50.1 of the Constitution:
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Eireann 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”.

On this basis he said that, even if the applicant were otherwise successful, the Court should not grant an order restraining the prosecution of the applicant or an order declaring s.1(1) to have ceased to have any force or effect following the adoption of the Constitution in 1937. Instead, said Mr. McDonagh, the appropriate order would be that s.1(1) ceased to have force and effect to the extent that it precluded an accused from advancing a defence of reasonable mistake as to the age of the victim.

By way of reply to Ms. Murphy’s strongest submission, that based on the Employment Equality Bill case, Mr. McDonagh sought to distinguish it on the basis that an employer defendant under the proposed s.15 of that Bill “needn’t have known that anything had happened”, in other words might be unaware of the actus reus itself. This, he said, distinguished it from a case where the defendant would of course have known that consensual intercourse had taken place. This distinction was not further elaborated upon, and neither was the Employment Equality Bill case further discussed.

Mr. McDonagh placed considerable emphasis on the dissenting judgment of McLachlin J. in the Supreme Court of Canada in R. v. Hess and R. v. Nguyen [1990] 2 SCR 906. This was the case which struck down a provision very similar to s.1(1) of the 1935 Act.

He pointed out that Canada had an established jurisprudence, in cases like Re British Columbia Motor Vehicle Act [1985] 2 SCR 486 and R. v. Vaillancourt [1987] 2 SCR 636 which was extremely distrustful of offences of absolute liability and appeared wholly to discountenance them in any case where there was a possibility of a jail sentence. There is no equivalent line of authority here. It was only this line of authority he said, that led the majority to the view that the Canadian statutory rape statute was contrary to the Canadian Charter of Rights. He submitted, however, that the dissenting judgment of McLachlin J. was to be preferred and emphasised her “balancing” approach which postulated a point:
“… where we must weigh the impact of the infringements of the accused’s constitutional right against the importance of what is achieved by the legislation… although one may postulate the case of a morally blameless person being convicted under [the Canadian Section], however rare that may be, one must also remember that all a person need do to avoid the risk of this happening is to refrain from having sex with girls of less than adult age unless he knows for certain that they are over fourteen”.

Additionally, counsel at one time suggested that a requirement of mens rea for serious criminal offences was not in fact established in Irish law. He discussed the offence of dangerous driving causing death, which carries a maximum sentence of ten years imprisonment, and submitted that in that instance “one can be convicted while being totally blameless”. This was because, for example, “A faulty brake cable could involve you in this”. This argument may have arisen ex improviso: certainly, no authority other than the words of the statute (s.53 of the Road Traffic Act, 1961, as amended) were cited in support of this proposition. It seemed disconnected from the rest of the Director’s argument.

Mr. McDonagh also urged that in assessing the seriousness of the offence the Court should not be unduly influenced by the maximum sentence but should consider the likely sentence. He further submitted that the provisions of the Sex Offenders Act could not be taken into account in order to impugn the pre-existing 1935 Act. He declined to make any submission on the question of whether the female party to an offence contrary to s.1(1) committed any offence herself.

Apart from this, the bulk of the respondent’s submissions relied on a number of American cases asserting the power of States to follow their individual courses by, for example, preventing the jury from considering voluntary intoxication when considering an accused’s state of mind. He sought to distinguish the judgment of the Supreme Court of California in
People v. Hernandez [1964] 39 Cal Rep 361 on its facts and to rely on other United States decisions tending to support provisions analogous to s.1(1) of the 1935 Act. He referred in particular to Wisconsin v. Jedowski (2004) W 168, a decision of the Supreme Court of Wisconsin of the 10th June, 2004;
“It is a fundamental principle of law that an actor should not be convicted of a crime if he has no reason to believe that the act he committed was a crime or that it was wrongful. An intent requirement was the general rule of common law. Nevertheless, strict liability crimes, that is crimes defined without any culpable state of mind are known at law. In general when strict liability is imposed the actor is deemed to have had sufficient notice concerning the risk of penal sanction inherent in the proscribed activity that it is not unjust to impose criminal liability without the necessity of proving moral culpability. The existence and content of a criminal prohibition in these cases are not hidden: the defendant is warned to steer well clear of the core of the offence (as in the statutory rape cases). Adults are well aware of the strict liability aspect of statutory rape laws. The legislature has broad powers to promote the public welfare and to create criminal offences and impose punishment. A State legislature is free to define a criminal offence and a State may bar consideration of a particular defence so long as the result does not offend some principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental.”

Decision.

Firstly, it is necessary to restate the absolute nature of the offence in question here. It affords absolutely no defence once the actus reus is established, no matter how extreme the circumstances. Rather than hypothesise such circumstances one might take the facts actually found in the well known case of R. v. Prince [1875] LR 2 CCR. This case is fully discussed in the judgment of Fennelly J. in the earlier aspect of this applicant’s case. There, the jury found that the girl in question appeared to be “very much” over the relevant age of sixteen, had told the defendant, believably, that she was eighteen, was genuinely believed by the defendant to be eighteen, and that this belief was reasonable on his part. But there was no defence. So absolute an offence is rare, even by comparison with other offences which address serious social problems, and offences that are the subject of serious societal condemnation. For example, the relatively recent child pornography legislation deals with the question of age by a system of presumptions but does not exclude their rebuttal. There is no doubt, therefore (as McLachlin J. in her dissenting judgment in Hess and Nguyen said), that this is explicitly a provision capable of criminalising, and of jailing, the mentally blameless. And the facts of Prince make clear how fatuous is any assumption that a person can always know “for certain” the age of another.

Secondly, I would reject the Director’s submission that in characterising the offence one should take no account, or little account, of the maximum sentence but should instead act on the belief that those who are truly blameless will suffer only a conviction and a light penalty. This approach is simply at variance with that of this Court in the Employment Equality Bill Reference, cited above. The extract given earlier in this judgment from the judgment of the Court in that case shows that it proceeded on the basis that “… an employer, devoid of any guilty intent is liable to be found guilty on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years or both…”. At the end of the portion of the judgment dealing with the constitutionality of s.15 of the Bill it is said:
“The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law…”. (Emphasis added)

A similar contention to that of the Director in this case was made in the Hess and Nguyen cases, cited above. It found favour with McLachlin J. Speaking for the majority, however, Wilson J. said;
“Justice McLachlin recognises that there is something troubling about subjecting someone who has made a genuine mistake of fact to life imprisonment. She feels that mental innocence may be taken into account when sentencing the accused. It seems to me that her discomfort with the idea of incarcerating the mentally innocent for as extended a period as the mentally guilty is entirely natural. But in my view, rather than work in favour of [the impugned Section], this serves to highlight the weaknesses of arguments upholding the linking of life imprisonment to an absolute liability offence. Indeed, it seems to me that my colleague implicitly accepts that there should be some correlation between moral blame and punishment.

But one cannot leave questions of mental innocence to the sentencing process. The legislature must take into account the implications of the distinction between the mentally innocent and the mentally guilty when drafting legislation. Any flaws in the provision cannot be justified by arguments that ask us to have faith that the prosecutor and judge will take these flaws into account when deciding how the accused will be punished. Reliance on prosecutorial or judicial discretion to mitigate the harshness of an unjust law will provide little comfort to the mentally innocent and cannot, in my view, serve to justify a fundamentally unsound provision”.

In the case of the offence now under consideration, one must also remark that mere conviction of the offence, apart from any sentence, carries a social stigma. Moreover, this stigma is compounded by the consequential enrolment of the person convicted on the Sex Offender’s Register. It seems impossible to exclude the fact of such registration from the factors to be considered in this case. In DPP v. Redmond [2001] 3 IR 390 the Court of Criminal Appeal held that the totality of the punitive consequences of an offence had to be considered. Enrolment on this register is a very formalised stigma. It would be a matter of intense shame to any individual, and, unfortunately to his family. It is something a person would wish to conceal even after many years. There have been tabloid newspaper demands to have the contents of the register published, and persons on the equivalent register in the United Kingdom have been physically attacked. So, unfortunately, have persons erroneously thought to be sexual offenders. Enrolment on the register would be incompatible with admission to various professions and occupations, such as that of school teacher. One can be enrolled on the register only as a result of a conviction. In all the circumstances I have no hesitation in regarding compulsory enrolment on the register as a punitive consequence of conviction.

Thirdly, I cannot accept the distinction sought to be drawn between this statute and the Employment Equality Bill. It will be recalled that this distinction was based on the proposition that in the case of the latter measure the employer defendant “needn’t have known that anything had happened”. This is factually true but I believe it to be a distinction without a difference. If a person has consensual intercourse with another whom he honestly and reasonably believes to be over the relevant age, he is not aware that anything unlawful has occurred. The essential similarity between the two measures is that a mentally innocent person is criminalised.

I turn now to consider the constitutional status of the offence created by s.1(1) of the Act of 1935.

In Mr. Thomas O’Malley’s book on Sexual Offences the learned author emphasises the legally unusual nature of this offence and indeed the offence created by the following Section of the Act of 1935. At page 97 he has this to say:
“Despite being apparently discriminatory against males, Sections 1 and 2 of the Act of 1935 have never been challenged as being inconsistent with the Constitution. The male is guilty even if the female clearly consented and there is no defence of genuine mistake as to age, a rule that may seem at variance with the generally subjective nature of criminal liability in Ireland as exemplified by decisions on provocation and self defence. Although there have been many prosecutions in recent years, most of the important litigation on these Sections took place between the 1940s and the early 1960s when there was little awareness of the rights creating potential of the Constitution.”

The learned author then goes on to examine the legal arguments for and against the constitutionality and desirability of the offence as statutorily constituted.

Mr. O’Malley also draws attention to the U.S. Supreme Court case of Michael M. v. Superior Court of Sonoma County (1981) 450 U.S. 464. This case concerned the constitutionality of a section of the California code broadly similar in effect to s.1 of the Irish Act of 1935, though the age of consent was set at 18 years. By a majority of five to four the Court upheld the constitutionality of the Section. The opinion of the majority was delivered by Rehnquist J. (as he then was) who emphasised the legitimate interest of the State in preventing teenage pregnancies as justifying the element of discrimination involved in the offence. Dissenting opinions were delivered by Brennan J. (with whom White and Marshall JJ agreed) and Stevens J. Brennan J. said that statutory rapes laws were enacted “on the premise that young women, in contrast to young men, were to be deemed legally incapable of consenting to an act of sexual intercourse”. Accordingly he viewed the challenged law as “initially designed to further these outmoded sexual stereo types, rather than to reduce the incidence of teenage pregnancies”. The narrowness of the majority tells its own tale of how fraught the issue has become from a constitutional point of view. This seems a case of higher authority than that of Wisconsin v. Jedowski, cited above.

The Section in question here does not attempt to balance two rights one against the other. The Section contains no balance: it wholly removes the mental element and expressly criminalises the mentally innocent. It need not necessarily have done so. As Ms. Murphy S.C. pointed out in argument it might have proceeded in quite another way for example by presumptions which, however strong, afforded scope for rebuttal. It might, indeed, have decided to proceed along the lines recommended by the Law Reform Commission in their 1990 Report on Child Sexual Abuse, discussed below. But the prohibition remains in the stark form in which it has been for the last 71 years.

It is clear that the Oireachtas, when it passed the Employment Equality Bill in 1996, took the view that criminal liability could be imposed in respect of an act of which the defendant neither knew nor approved. That measure, however, was referred by the President to this Court under the provisions of Article 26 of the Constitution. In its judgment the Court pointed out the most unusual features of the Bill and referred to the well known words of Lord Reid about “the public scandal of convicting on a serious charge persons who are in no way blameworthy”. The Court held that “The social policy of making the Act more effective does not, in the opinion of the Court justify the introduction of so radical a change to our criminal law”. It described the sanction proposed in the Bill – a fine of £15,000 and imprisonment of up to two years or both – as “potentially severe criminal sanctions”. This of course is true, but the sanctions cannot compare in severity with those available under the Section now in question.

In those circumstances, it appears difficult, a fortiori, to regard s.1(1)of the Act of 1935 as consistent with the Constitution. Indeed, the regime proposed by the Employment Equality Bill, though it imposed criminal liability for an act of which the employer neither knew nor approved, did provide for what might be regarded as a due diligence defence. Section 15(3) of the Bill provided;
“In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act; or (b) from doing in the course of his or her employment acts of that description.”

There is nothing of that sort available in the instant case.

On the existing jurisprudence and in particular the judgment of the Canadian Supreme Court in R. v. City of Sault Sainte Marie, cited above and the dissenting judgment of Keane J. (as he then was) in Shannon Regional Fisheries Board v. Cavan County Council, cited above, it might appear that a defence of due diligence would suffice to justify a regulatory offence of strict liability as Dickson J. used that term. Whether it would suffice for a true criminal offence carrying a sentence of life imprisonment is not a matter which arises for decision in this case. There is simply no such defence available here. No form of due diligence can give rise to a defence to a charge under s.1(1), even where the defendant has been positively and convincingly misled, perhaps by the alleged victim herself.

It appears to us that to criminalise in a serious way a person who is mentally innocent is indeed “to inflict a grave injury on that person’s dignity and sense of worth” and to treat him as “little more than a means to an end”, in the words of Wilson J. quoted earlier in this judgment. It appears to us that this, in turn, constitutes a failure by the State in its laws to respect, defend and vindicate the rights to liberty and to good name of the person so treated, contrary to the State’s obligations under Article 40 of the Constitution. These rights seem fundamental in the sense of that word as used in Jedowski; cited above

The end to which so severe a sanction, (imposed without regard to mental guilt) is the means, is presumably the protection of young girls from engaging in consensual sexual intercourse. I pause to say that this is, of course, a legitimate end to be pursued by appropriate means. In the English case of B (A Minor) v. DPP [2000] 2AC 428, Lord Nicholls said:
“The purpose of the Section is, of course, to protect children. An age ingredient was therefore an essential ingredient of the offence. This factor of itself does not assist greatly. Without more, this does not lead to the conclusion that liability was intended to be strict so far as the age element is concerned, so that the offence is committed irrespective of the alleged offender’s belief about the age of the victim and irrespective of how the offender came to his belief.

Nor can I attach much respect to a fear that it may be difficult sometimes for the prosecution to prove that the defendant knew the child was under fourteen or was recklessly indifferent about the child’s age. A well known passage from a judgment of that great jurist Sir Owen Dickson in Thomas v. The King (1937) 59 CLR 279, 309 bears repetition:

‘The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a distrust of the Tribunal of Fact – the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code’ ”.

In the same case Lord Steyn rejected the proposition that statutory rape legislation is immune from the great principle expounded in Sweet v. Parsley, cited above. He said:
“In any event, I would reject the contention that there is a special rule of construction in respect of age based sexual offences which is untouched by the presumption as explained in Sweet v. Parsley.”

The English decisions, of course, were addressing matters of construction and not of compatibility with a Constitution. But they, like this Court in the Employment Equality Bill case, and like the Canadian Supreme Court in the cases cited, speak powerfully to the central importance of a requirement for mental guilt before conviction of a serious criminal offence, and the central position of that value in a civilised system of justice.

Speaking of such a system in a constitutional context, O’Higgins C.J. in The State (Healy) v. Donoghue [1976] IR 325 said:
“In the first place the concept of justice, which is specifically referred to in the preamble in relation to the freedom and dignity of the individual appears again in the provisions of Article 34 which deals with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness and fair procedures, but also regard to the dignity of the individual. No court under the Constitution has jurisdiction to act contrary to justice.”

I cannot regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual or as meeting the obligation imposed on the State by Article 40.3.1 of the Constitution:
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life of a person’s good name and property rights of every citizen”.

The Dangerous Driving Analogy.
Nor can I agree with the Director’s submission that the law provides another example, in the form of s.53 of the Road Traffic Act, 1961 as amended, of a provision whereby a “blameless person” may be convicted of a serious offence in the furtherance of some desirable social end. It may be recalled that, in supporting this submission the Director argued that, pursuant to that Section “One can be convicted while being totally blameless… a faulty brake cable could involve you in this”.

This surprising contention has no support in road traffic law. On the contrary as long ago as R. v. Spurge [1961] 2 QB 205 it was held that if the driver is deprived of control due to a mechanical defect which is not his fault or which he could not reasonably have safeguarded against, that is a good defence. Section 54 of the Road Traffic Act, 1961, as amended, and the cases cited in Mr. James Woods and Mr. Robert Pierce’s books on Traffic Law all support that elementary proposition. It is unnecessary to discuss the topic further.

A dictum of Walsh J.
I do not believe that the references to the Act of 1935 contained in the judgment of Walsh J. in People v. Murray [1977] IR 360 at 382, 383 are of any relevance to the present case. They are incidental to the issue in that case, which was whether the offence of capital murder, created by s.1(1)(b) of the Criminal Justice Act, 1964, required proof of mens rea. The Supreme Court dealt with the case by way of appeal from the Court of Criminal Appeal pursuant to a certificate under s.29 of the Courts of Justice Act, 1924. Accordingly no question of the constitutionality of the Section of the 1935 Act in question here arose in that case. Murray focussed on a question of statutory construction. The statements as to the effect of the provisions of the Act of 1935 contained in the judgment of Walsh J. seem (if I may respectfully say so) to be correct, as do his observations as to the policy underlying the Act. But his findings go no further than the conclusion that “there is no valid comparison to be made between the statutory provisions relating to capital murder and those relating to unlawful carnal knowledge of girls under the age of consent”.

Utilitarian defence of absolute liability.
It follows from what has been said above that it does not appear that this stark measure can easily be viewed as consistent with the Constitution. But before reaching a conclusion to that effect it is appropriate to consider the utilitarian justification of an equivalent measure offered by McLachlin J. in the Supreme Court of Canada, already referred to above, and relied upon by the Director in this case. Though a dissent, it is the frankest justification available from any source for so downright a measure. Before addressing the judgment, one must first make two observations. Firstly, the judgment of McLachlin J. turns in part on the fact that s.147 of the Act (the impugned Section was
146(1) ) required that in such cases the accused must be older than the complainant. Not even this qualifying factor is present in the case of the 1935 Act. Secondly, it appears from the judgment of McLachlin J. that, prior to the litigation, the Canadian Parliament had repealed s.146(1) “and adopted a provision allowing the defence of due diligence”, as McLachlin J. put it. Remarkably, however, she did not view the fact that this had occurred as establishing “that the objectives of s.146(1) can be accomplished with a lesser infringement of the accused’s rights. An equally viable explanation is that Parliament has chosen, for whatever reasons, to reduce its objective”. As that passage makes clear, McLachlin J’s approach was based on a balancing exercise. This is an exercise not infrequently required of judges in an appropriate case, but it can also be employed by a judge who is unwilling to take a particular right as seriously as it deserves to be taken. In Hess and Nguyen, however, McLachlin J. did find that the provision contravened two Articles of the Canadian Charter, Article 7 relating to liberty and security of the person and Article 15 relating to equal treatment and the right to equal protection and equal benefit of the law. She held however that the provisions were nonetheless saved by the terms of Article 1 which guaranteed the relevant rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

McLachlin J. was straightforward in her analysis of the effect of the Section:
“… a person who is mentally innocent of the offence – who has no mens rea with respect to an essential element of the offence – may be convicted and sent to prison… An accused can be convicted under s.146(1) although he lacks a guilty mind. He clearly must intend to have intercourse. But that is not an offence. Without wishing to commit the crime or intending to commit the crime of having intercourse with a girl of less than fourteen years, an accused may stand convicted”.

McLachlin J’s justification of this is wholly utilitarian. She does not deny the injustice: she embraces it on the basis that its operation tends the greater good. This works, according to McLachlin J. in the following way:
“Is there a rational connection between the imposition of strict liability and deterrence of men from intercourse with young girls? In my view, there is. Were the defence of reasonable belief available, a man could escape conviction simply by saying that he believed the girl to be older than fourteen. The defence of due diligence would require him to make enquiries to avoid conviction but still leaves open the possibility that the girl may lie as to her age or even produce false identification, a not uncommon practise in the world of juvenile prostitution.

The imposition of strict liability eliminates these defences. In doing so, it effectively puts men who are contemplating intercourse with a girl who might be under fourteen years of age on guard. They know that if they have intercourse without being certain of the girl’s age, they run the risk of conviction, and many conclude that they will not take the chance. That wisdom forms part of the substratum of consciousness with which young men grow up, as exemplified by terms such as ‘jailbait’. There can be no question but that the imposition of absolute liability in s.146(1) has an additional deterrent effect.

… the only way of avoiding or diminishing the infringement of the accused’s right not to be convicted in the absence of a guilty mind would be by introducing a defence of due diligence or reasonable belief. Neither of these alternatives provides as effective a deterrent as the removal of all defences based on the accused’s lack of knowledge of the victim’s age.

…. the elimination of mens rea from s.146(1) of the Criminal Code may be viewed as less offensive than, for example, the elimination of mens rea from the offence of murder. The age of a young girl with whom one is contemplating intercourse is unlikely to be a matter to which a man fails entirely to address his attention… a girl of thirteen may appear to be older, but there are limits to how much older.

… although one may postulate the case of a morally blameless person being convicted under s.146(1), however rare that may be, one must also remember that all that a person need do to avoid the risk of this happening is to refrain from having sex with girls of less than adult age unless he knows for certain that they are over fourteen. Viewed thus, the infringement of the freedom imposed by s.146(1) of the Criminal Code, does not appear unduly draconian…”.

Quite a number of observations can be made about this passage. First, it clearly confuses the terms “strict liability” and “absolute liability”, a not insignificant error in the context of this offence and in the context of the judgment of Dickson J. in the City of Sault Sainte Marie case, cited above. Secondly, it wholly oversimplifies the position which would obtain were a “reasonable belief” defence available by saying (ambiguously) “a man could escape conviction by saying that he believed the girl to be older than fourteen”. In my view, things are not quite that simple.

On the essential point however, McLachlin J. does not conceal the logical conclusion of her position: she sees nothing wrong in convicting a person, however young, who specifically contemplates the age of the girl and who is freely shown by her documentation appearing to prove that she is of legal age. Even that, in her view, does not exempt him from guilt of a crime which carries a sentence of up to life imprisonment.

McLachlin J. is not insensitive to the fact that the regime for which she contends gives rise to constitutional and indeed to moral difficulties. Elsewhere in the judgment she says “It has long been acknowledged that the imposition of an absolute liability and the inequality inherent in the offence render it problematic”. Nevertheless she justifies it on a basis which is crudely utilitarian. It may be unjust – indeed it is unjust – but it is constitutionally allowable because it has a deterrent effect and is now “part of the substratum of consciousness with which young men grow up, as exemplified by terms such as ‘jailbait’.” True, one might lessen the injustice by providing a “reasonable belief” or a “due diligence” defence but by definition neither would provide “as effective a deterrent as the removal of all defences…”.

This, it seems, is a classic utilitarian argument. It permits the imposition of an admitted injustice on a discrete class of person on the sole justification of effectiveness. The measure, or its predecessors, is thought to be effective because its in terrorem effect has been so successful that it has entered “the substratum of consciousness with which young men grow up”.

The psychology of this is debatable. Certainly it is also wholly unsupported by evidence, as far as one can tell in the Canadian case and certainly in this case. One should be under no illusion as to what McLachlin J. is supporting: the complete objectification of a whole group of a community – young men – and a disregard for their human and constitutional rights, on the basis of an unevidenced speculation about the contents of the “substratum” of their consciousness.

This analysis might equally apply to a statute which unlike ours equally (or in the alternative) criminalised the female party to consensual intercourse. No doubt it is wholly coincidental that the discrete group the substratum of whose consciousness is discussed is restricted to members of one gender. Quite apart, however, from the lack of evidence for the argument based on the substratum of the consciousness, and quite apart from the obvious element of gender based discrimination in the legislation, the provision is objectionable because under it, to use McLachlin J’s summary of the equivalent Canadian legislation, “… a person who is mentally innocent of the offence – who has no mens rea with a respect to an essential element of the offence – may be convicted and sent to prison…”. This effect cannot be reconciled with the Constitution as the judgment of this Court in the Employment Equality Bill case shows. The right of an accused not to be convicted of a true criminal offence in the absence of mens rea is not qualified or limited by the 1935 Act in the interest of some other right; it is wholly abrogated. It may instructive to develop an analogy suggested by a portion of the Director’s argument, summarised above.

In this case, the DPP at one time submitted that a blameless person could be found guilty of dangerous driving causing death which carries a sentence of up to 10 years imprisonment. This submission is groundless in law, but may be suggestive as a hypothesis. If the law were changed so that an entirely blameless person could in law be convicted of the offence and sentenced to up to ten years imprisonment, this would plainly amount to a gross injustice. But when it became generally known no doubt many persons would cease to drive at all and others would drive with understandably exaggerated caution. Road accidents would almost certainly decline dramatically, thereby saving lives which, on a purely utilitarian analysis is an unanswerable argument. And the regime hypothesised by the Director would apply to everyone, not just members of one class or gender.

Despite all these arguments the suggested regime, applied to road traffic, would be objectionable to most people on the grounds of its manifest injustice. To jail perfectly respectable people on the basis of an event over which they had no control (they are, after all, “blameless”), is so complete a negation of their rights to liberty, due process, equality and respect for their human dignity that it cannot be contemplated no matter what the benefits. To put it another way, it is not a balancing of the blameless driver’s rights against those of the rest of society: it is a negation of those rights in the interest of a concept of social good. It fails the “interference with fundamental rights” test mentioned in Jedowski, above.

What, precisely, is the difference between the present measure and the dangerous driving hypothesis? At bottom it is this: one person’s rights would be negated because he took the risk of driving, while another person’s rights are negated because he took the risk of having sexual intercourse. I do not believe that a legally significant distinction can be drawn on that basis since the act of consensual intercourse is, like the act of driving, (assuming one is licensed and insured), prima facie lawful.

None of this, of course, is to deny that the State is perfectly entitled to take legitimate means, including those involving use of the criminal law, to discourage intercourse with very young girls. The Law Reform Commission, as long ago as 1990, addressed this issue and manifestly concluded that this could be done without the stark law presently in force. The commission recommended an overall reduction in the age of consent but more relevantly for present purposes recommended a defence of “genuine belief”, available to any person except a person in authority over a minor. It was further recommended that “the test for determining genuineness of belief should be subjective, but the jury is entitled to have regard to the presence or absence of reasonable grounds for such belief”. Moreover, for many years now – at least since Sweet v. Parsley in 1970, there has been ample reason to believe, or at least to apprehend, that a statute permitting conviction of a serious criminal offence without any requirement of mental or moral guilt was constitutionally vulnerable. A finding to that effect cannot reasonably be regarded as surprising.

Remedy.
As summarised above, the question of remedy was placed in the forefront of the respondent’s argument in this case. Mr. McDonagh strongly submitted that, having regard to the wording of Article 50.1 of the Constitution, any remedy should be couched in such terms as:
“That Section 1(1) of the Act of 1935 ceased to have force and effect to the extent that it precluded an accused from advancing a defence of reasonable mistake…”.
The emphasised phrase is, of course, taken from the early part of Article 50.1. Pre-constitution Free State laws such as this are continued in full force and effect “subject to this Constitution and to the extent to which they are not inconsistent therewith…”.

It is clear from what is said above that the Court is of the opinion that the form of absolute liability provided in s.1(1) of the 1935 Act is, in all the circumstances, inconsistent with the Constitution.

The difficulty with the form of limitation on a declaration to that effect that Mr. McDonagh proposes is that it appears to involve the Court in a process akin to legislation. Mr. McDonagh posits a “reasonable belief” defence on the basis that the existence of such an offence would save the Section from unconstitutionality. But so too would a defence which left the defendant’s knowledge of age to be proved by the prosecution as part of the mens rea of the offence, very likely a defence based on presumptions, and perhaps other forms of defence. It might, for example, be thought desirable to have a law on this subject along the lines proposed by the Law Reform Commission in 1990. But for present purposes it is sufficient to say that there is, obviously, more than one form of statutory rape provision which would pass constitutional muster, and it does not appear to be appropriate for the Court, as opposed to the legislature, to choose between them.

Conclusion.
I would allow the appeal and grant a declaration that s.1(1) of the Criminal Law (Amendment Act, 1935), is inconsistent with the provisions of the Constitution.

 

 

A v Governor of Arbour Hill Prison [2006] I.E.S.C. 45

UDGMENT 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 349.

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
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 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.

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.

This decision followed an earlier determination by this Court, in judgments delivered on 12th July, 2006, 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.

That section was one which did not apply to rape cases generally of adults or minors but to a specific statutory offence prohibiting consensual sexual intercourse with girls under the age of consent.

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.

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

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.

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
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.

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

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.

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

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, except where the context otherwise indicates, I will refer to a finding of unconstitutionality of an Act as including a finding under s. 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. Also 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.)

General Observations
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.

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.

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 affect, that there was no valid Oireachtas in being and none which could validly remedy the situation.

The Constitution like others, is holistic, 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.

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.

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.

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.

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.

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 proceeding 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.

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.

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.

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.

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.

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
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.

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- Farrington “… First, 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.

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.

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] AC 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 which a fortiori it meant since its enactment in 1937. As a result Mrs. Byrne was 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.

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.

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” (Blackstones’ 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 Blackstones’ 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).

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 wrong or a 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.

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.

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.

As Henchy J. stated in Murphy –v- Attorney General (at 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 … “
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 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.

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 governance and definition. 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”.

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.

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.

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 our own.

Other legal systems and retrospectivity
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 …”

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
In proceedings before the Court of Justice of the European Communities pursuant to Article 231 of the EC Treaty the Court is required to declare the measure concerned void. In principle this means that the measure never entered into effect but the 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).

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.

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” (Denkavit Italiana [1980] ECR 1205). In that case is also repeated its oft stated principle by acknowledging 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)

In exercising such a general discretion the Court of Justice, as Advocate General Stix-Hakl recalled in her opinion delivered on 14th March, 2006 (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”.

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.

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
The European Court of Human Rights in exercising its jurisdiction to protect fundamental rights under a Convention which reflects the “common heritage of … freedom and the rule of law” of European countries found it appropriate and necessary to limit the retrospective effect of its judgments on such fundamental issues 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)

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
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 4330:
“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)

It is worth noting that the Supreme Court of Indian 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”. (Emphasis added)

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.

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
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 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)

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.

The case-law of the U.S. Supreme Court in relation to criminal cases was developed in Linkletter –v- Walker [1965] 381 U.S. 618 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 approach set out in Linkletter that the application of a rule against 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 on the existence of such a rule but 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:
“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
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”.

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] 2 SER 679 which condemned aspects of the jury selection system the Court suspended its declaration for some six months.

In R. –v- Wigmarr [1987] I SER 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”. (Emphasis added)

Comment
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.

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).

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.

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

The Constitution and Retrospectivity
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.

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.

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.

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]

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.

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.

The Irish language version is expressed in the same terms.

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.

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 for this Court. It is the teleological approach – a universally recognised method of interpreting constitutional and other legal norms.

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).

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 50.1 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. 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 315, pointed out, relying on a quotation, “The statue has taken its shape and can never go back into the quarry”.

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 the moment in order to 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.

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.

In accordance with the applicant’s submission everything done in the meantime pursuant to the impugned Act must be considered itself to be null and void. This is not a static proposition and of course, 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.

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 developing doctrines and rules limiting the retrospective effect of new precedent in respect of cases already finally decided including where a law was declared invalid ab initio.

In 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:
“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”.

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 can 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.

This is the task conferred on constitutional courts.

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 interest 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.

Thus the effect of absolute retroactivity of such a judicial decision 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.

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
“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.”
Although neutral on that question the statement could be said, as the authors of JM 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 was 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.)

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 IR 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. 287 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 in and to 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 circumstances, 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.

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 the 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.

[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 “… 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”.]

At no stage during the hearing of the appeal was it shown that any legal system in any modern democracy recognises or applies an unqualified retrospective effect of a judicial decision declaring a legislative measure to be unconstitutional where the measure is deemed invalid ab initio. Any such approach would lead to incoherence in terms of justice under the Constitution which the Courts, by virtue of Article 34, are under a duty to administer.

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, to which I will now turn.

Irish case-law
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.

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 “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”.

I note in passing that the authors themselves make a 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.

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 limited.

de Burca –v- The Attorney General
In de Burca –v- The Attorney General [1972] 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:
“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)

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:
“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.”
Walsh J. certainly did not take the view that the Court’s declaration that the 1927 Act 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 consider the application of the Act in previous cases null and of no effect.

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
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 (Supra).

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 to be on the panel escaped constitutional frailty even though the exclusion of women meant they were composed in a manner inconsistent with the Constitution. He also described the dicta of O’Higgins C.J. and Walsh J. as obiter, which they indeed were, and which explains the silence of the other Judges on the question of retrospectivity in de Burca.

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.

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 1927 Act 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.

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 in concluded “Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary”. Three other members of the Court concurred with Henchy J.
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.”

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.

That statement is underscored in the concluding paragraph of the judgment of the majority which states:
“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.”
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 1927 Act 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
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 to 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.

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, notwithstanding a judicial declaration of the demise in 1937 of a statute or 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)
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.

This distinction is also made by Griffin J. in his judgment in the same case when he stated, at 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)
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.”
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.

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)

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.

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 then recoverable?”

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.

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 Byrne case when he spoke of “the overriding requirements of an ordered society”.

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 “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 “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 that is 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 approach was approved by Keane J. in McDonnell –v- Ireland [1998] 1 I.R (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”.

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.

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.

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, to have left beyond the reach of full redressive legal proceedings …” (Emphasis added)

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
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
Keane J.’s (as he then was) expression of agreement in his judgment of a dictum 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.

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

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.

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.

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.

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.

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.

Before coming to the general rule 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 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” (Emphasis added). 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.

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.

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.

This is not just a modern approach. Cicero reports the maxim “Summum ius summa iniuria” – ‘the strictest application of the law is the greatest injustice’.

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

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 which would be brought to the system of justice envisaged by the Constitution if any other approach were adopted.

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
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.

I do not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court declares a statute to be unconstitutional, or some extreme feature of an individual case, might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice, that verdicts in particular cases or a particular class of cases be not allowed to stand.

I do not consider that there are any grounds for considering this case to be 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 1935 Act 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.
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
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.

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:
“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.”
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”.

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

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.

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.

Reasons delivered on the 10th day of July, 2006 by Denham J.

This case raises the issue of the general application retrospectively of a judicial decision declaring that a law is invalid having regard to the provisions of the Constitution. I am satisfied that there is no principle of retrospective application generally of a declaration of unconstitutionality in our jurisprudence. On the contrary, outside the litigation which sought the declaration, declarations of unconstitutionality have not been applied retrospectively. While this has been the practice, the principle of law has not to date been the subject of an express decision of the Supreme Court.
The Constitution of the Irish Free State “was something different . . . it derived from another line of thought”, as Kennedy C.J. wrote in the foreword to The Constitution of the Irish Free State by Leo Kohn. The Constitution of the Irish Free State, 1922 was a step toward the independent State of Ireland. Subsequently, in the Constitution of Ireland, 1937, further new constitutional foundations were laid. While the common law was retained, in 1937 the organs of State were established and new fundamental principles stated in the Constitution.
Many of the principles set out in the Constitution of 1937 were ahead of their time. It was a prescient Constitution. Thus, the Constitution protected fundamental rights, fair procedures, and gave to the Superior Courts the role of guarding the Constitution to the extent of expressly enabling the courts to determine the validity of a law having regard to the provisions of the Constitution. Over the succeeding decades international instruments, such as the United Nations Charter and the Universal Declaration of Human Rights, proclaimed fundamental rights and fair procedures, and it became established that in a democratic state constitutional courts should have the power to protect fundamental rights, including due process, even to the extent of declaring legislation to be inconsistent with the Constitution and to be null and void.
Ireland lead the common law world in 1937 by expressly stating in the Constitution that the jurisdiction of the Superior Courts shall extend to the question of the validity of any law having regard to the provisions of the Constitution. This, perhaps more than any other aspect of the Constitution, signalled the nature of the State, its divergence from the system of government in the United Kingdom, and the parallels which may be drawn with the Constitution of the United States of America.
The power to review the constitutionality of legislation expressly given by the Constitution to the Superior Courts was a novel aspect of the Constitution in 1937. No such power existed expressly elsewhere in common law jurisdictions, such as the United Kingdom, Australia, or Canada. While such a power existed in the United States of America it was not expressly stated in the Constitution of the United States, but rather it was found to be inherent by the Supreme Court of the United States: Marbury v. Madison (1803) 5 U.S. 137. Consequently, Ireland, in 1937, led the common law countries by giving such a power expressly to the Superior Courts.
This power of review of the constitutionality of law by the Superior Courts is an aspect of the separation of powers. In this design of government the three great organs of State (the legislature, the executive and the judiciary) were each given constitutional powers and duties. There are checks and balances upon the powers of each branch of government which create a healthy tension between the three great organs of State, so as to achieve a balanced government which is to the advantage of the people.
One of the important powers given to the Superior Courts is that of review of the constitutionality of law. The judicial power of constitutional review is exercised carefully by the courts, as may be seen from the jurisprudence which has emerged in this State. Constitutional principles have been developed which relate to the exercise of this power and duty. Thus the presumption of constitutionality was recognised. In Pig Marketing Board v. Donnelly (Dublin) Ltd [1939] I.R. 413 at p. 417 Hanna J. stated:
“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representative of the people, is presumed to be constitutional unless the contrary is clearly established.”

This principle was explained by O’Byrne J. in Buckley & Ors v. The Attorney General [1950] I.R. 67 at p. 80:
“. . . [it] springs from, and is necessitated by, that respect which one great organ of State owes to another.”

Further, the concept was developed that a court should not enter upon the question of the constitutionality of a law unless it is necessary for the determination of the case before it: The State (Woods) v. Attorney General [1969] I.R. 385 at p. 390.
Also, it is an established principle that law remains constitutional until it is declared to be unconstitutional. Law is relied upon as valid and is the foundation upon which society proceeds. Personal decisions and circumstances proceed on that basis, institutional planning is organised on that basis, and the Government, including the Revenue Commissioners, and the State, advance on the acceptance that the law is valid.
In exercising the jurisdiction of determining the validity of a law the date of the legislation is relevant. If it is a statutory law post 1937 then Article 15 governs and any declaration of unconstitutionality renders it null and void ab initio, from the date of the purported legislation. If it is statutory law prior to the Constitution of Ireland, 1937 then Article 50 is applicable and the law may be declared to be inconsistent with the Constitution and not to have been continued in force by the Constitution and, consequently, no matter what the date of such legislation, it is deemed unconstitutional as of 1937. Thus, in relation to both pre and post 1937 legislation, a law may be declared void which has been acted upon for many years.
In relation to both types of legislation, both pre and post 1937, no principle of retrospective application of unconstitutionality has been developed. The precise detail of the application of the judgment may be addressed in the judgment itself, or by subsequent queries raised by a party in relation to the judgment, or by subsequent cases.
There have been decisions which have touched upon the issue of the application of a declaration of unconstitutionality outside the case itself or related litigation. In de Búrca v. Attorney General [1976] I.R. 38 the Supreme Court, on the 12th December, 1975, declared that the provisions of the Juries Act, 1927, to the extent that they required a property qualification, were not consistent with the Constitution and were not continued by Article 50 of the Constitution. Further, that the provisions of the Juries Act, 1927, to the extent that they extended exemptions from jury service to all women, were not consistent with the Constitution and were not continued by Article 50 of the Constitution. However, this did not create an avalanche of applications in respect of previous jury decisions. There was no releasing of prisoners who had been found guilty and convicted by such juries since 1937.
Nor was there a general retrospective application of unconstitutionality in Murphy v. The Attorney General [1982] I.R. 241. In Murphy this Court held that the provisions of sections 192 – 197 of the Income Tax Act, 1967, by providing for the aggregation of earned incomes of married couples, and thus imposing upon them tax at a higher rate, were repugnant to the Constitution and invalid. On behalf of the Government this Court was asked: (a) whether the impugned sections were invalid ab initio or had only become invalid as and from the date of the pronouncement of their invalidity by the High Court or by the Supreme Court, and, (b) the extent of the relief to which the plaintiffs were entitled in respect of tax overpaid by them pursuant to the impugned sections. This Court held that (a) the effect of the decision of the Court was that the sections were invalid ab initio and had never had the force of law; (b) that the date from which the plaintiffs were entitled to be repaid the sums collected from them by way of tax invalidly imposed (which had been years) was the first day of the financial year immediately succeeding that in which they had challenged the validity of the imposition of the tax in question, namely the 6th April, 1978; (c) that, as until that date the State had been entitled to act and to expend the revenue which it had acquired from the tax in question on the bone fide assumption, contributed to by the absence of objections on the part of any taxpayer, that such tax had been validly imposed and such revenue properly acquired. The plaintiffs were the only tax payers entitled to maintain a claim for restitution of tax in pursuance of the Court’s decision, unless proceedings had already been instituted by any other taxpayer challenging the validity of the sections impugned in the proceedings. Thus, this decision on unconstitutionality did not render the State liable to repay all excess monies gathered, bone fide, by the State, since 1967, to the plaintiffs, or to the many effected married couples. There was no retrospective application of unconstitutionality.
The issue of the retrospective application of declarations of unconstitutionality was the subject matter of obiter dicta in several of the judgments. Having considered the judgment of the E.E.C. Court in Defrenne v. Sabena [1976] 2 CMLR 98. Henchy J. stated, at p. 324:
“. . . it stands as 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 and have to be treated as an exemplification of the maxim communis error facit ius.”

Griffin J., at p. 328, pointed out:
“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 at 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.”

and at p. 331:
“When a statute has been declared to be void ab initio, it does not necessarily follow that what was done under and in pursuance of the condemned law will give to a person, who has in consequence suffered loss, a good cause of action in respect thereof. Notwithstanding the invalidity of the statute under which such act was done, the Courts recognise the reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the invalid statute, . . . the egg cannot be unscrambled.”

Thus while a law may be void ab initio, the application of that decision retrospectively is a different and additional matter for consideration. No principle of the general retrospective application of declarations of unconstitutionality has been developed in our jurisdiction. Instead the Courts in practice have excluded such situations and queried any other possible approach.
Not only is there no principle of retrospective application of unconstitutionality, there have been precedents expressly limiting the temporal effect of a court ruling. For example in People v Finn [2001] 2 IR 25, this Court held that the system of having review dates in sentences violated Article 13.6 of the Constitution. However, Keane C.J. stated that this should not be taken as impugning the validity of such sentences imposed by trial judges in cases which had already come before the courts. The court, in other words, held that there was no general application retrospectively of the declaration of unconstitutionality.
Thus we see emerging a principle that declarations of unconstitutionality apply to the party in the litigation in which the decision is made, and prospectively, but that it does not apply retrospectively. The cases to date have inherently applied the principle that there is no application retrospectively of a declaration of unconstitutionality outside the litigation, or related litigation, which raised the issue of the validity of the law. This case is the first time that the Court has been requested to state the principle expressly. However, the principle has been a matter of legal practice for decades.
At the core of the jurisprudence is the duty of the courts to administer justice. The courts do not apply a cold logic in a rule making vacuum. Rather, the courts administer justice to promote the common good. Thus, for example, in Blake v. The Attorney General [1982] IR 117 this Court held that parts II and IV of the Rent Restrictions Act, 1960 were repugnant to the provisions of the Constitution. In giving the judgment of the Court O’Higgins C.J. pointed out that the effect of declaring the law to be unconstitutional meant that many thousands of families, who had relied upon the protection of their tenancies by the legislation, no longer had that protection. He stated that he assumed that the matter would receive the immediate attention of the Oireachtas, that new legislation would be enacted speedily, and that pending new legislation it might be possible for some landlords and tenants to reach agreement. While not wishing to pre-empt litigation he stated at p. 142 that the Court:
“. . . desires to emphasise, however, that it is the duty of the Courts to have regard to the basic requirements of justice when exercising their jurisdiction. In this regard, in the reasonable expectation of new legislation, when a decree for possession is sought, the court should, where justice so warrants, in a case where the now condemned provisions of Part IV would have given a defence against the recovery of possession, either adjourn the case or grant a decree of possession with such stay as appears proper in the circumstances.”

Thus while the law was declared void, the Court went on to address the application of that decision. The Court did not suspend the application of the decision, however it made suggestions which, in effect, addressed the time pending new legislation.
The concept of justice is at the core of our organised society. This was referred to by O’Higgins C.J. in The State (Byrne) v. Frawley [1978] I.R. 326 where a jury had been selected under provisions of the Juries Act, 1927 which sections were subsequently declared to be inconsistent with the Constitution. However, the applicant had not objected to the jury. O’Higgins C.J., at p. 341, drew attention to the situation which would exist if the applicant succeeded. He stated:
“It seems to me proper to add that if the contrary be the case and by reason of the wrongful exclusion of qualified persons from the panel, every jury then selected is to be regarded as unconstitutional and invalid, then certain very serious consequences would follow. In the first place it would seem to me to follow with inexorable logic that each trial held with such a jury would have been a nullity and that sentences imposed and carried out, including sentences of death, would have been imposed and carried out without legal authority. In addition, even those who won acquittals from such juries could find that they were still in jeopardy because their trials were regarded as a nullity. Could organised society accept such a conclusion?”

This question was rhetorical, of course organised society could not accept such a conclusion. Nor could or have the Courts.
The Constitution established the power of constitutional review by the Superior Courts which, as with all powers and duties, is required to be performed constitutionally. Thus, it must be exercised in a manner consistent with the Constitution, harmoniously with other (and sometimes conflicting) rights and principles, and “seeking to promote the common good”: as the Preamble states.
In this case, and in most cases, the issue of the validity of a law arises in relation to a law which has been treated as valid for years. The Court may determine that the law is invalid either from 1937 or from the date of the purported legislation, depending on the date of the statute in issue. Either way a law which has been applied as a valid law for many years may be declared to be null and void. This power of the Superior Courts is exercised in the context that neither the law nor the Constitution is frozen in 1937. The Constitution is a living instrument. Concepts are before the courts today in forms not envisaged in 1937. Principles and rights have developed over the last seventy years, from roots in national society, the European Community, and international documents.
Consequently, Acts passed by the legislature many decades ago may be, as with the Juries Act, 1927, the subject of a declaration that it was not carried over by Article 50 of the Constitution. It is a declaration of our time. It is a declaration achieved by a party or parties after litigation. While the declaration is that the law is void ab initio, or not carried forward by Article 50 of the Constitution, that declaration itself does not address the issue of its application.
The issue, the retrospective application of a declaration that a law is inconsistent with the Constitution to litigants other than the party who sought such a declaration, has been the subject of judicial decisions in other common law States and a sophisticated jurisprudence is developing in several jurisdictions. Such a jurisprudence is appropriate for government in a modern democracy. Of particular relevance to our analysis is the law in Canada where the Constitution is similar to the Constitution of Ireland.
In Canada section 52(1) of the Constitution Act, 1982, provides:
“The Constitution of Canada is the supreme law of Canada, and any law that is inconstant with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

Article 50 (1) of the Constitution of Ireland, 1937 provides:
“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 contrive 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.”

Thus there is a significant similarity between the words in the two Constitutions. Both refer to laws inconsistent with the Constitution; and both give the power expressly to the relevant courts to declare a law to be consistent or inconsistent with the Constitution. Thereafter the issue of the application of such an order arises in both States. While this has been a matter dealt with in practice by our courts and inherently in certain cases it has been the subject of express judicial decisions in Canada.
This has been so especially in relation to the Canadian Charter. On many occasions the Supreme Court of Canada has expressly addressed the issue of the application, the temporality, of a declaration. In R. v. Bain [1992] 1 S.C.R. 91 the majority of the Supreme Court of Canada struck down a portion of the Criminal Code which allowed the prosecutor, but not an accused, to ‘stand by’ prospective jurors. The provisions were held to be contrary to the guarantee of a fair trial because they gave the prosecutor more influence than an accused in the selection of a jury. However, the declaration of invalidity by the Canadian Supreme Court was suspended by that Court for six months in order to ‘provide an opportunity for Parliament to remedy the situation if it considers it appropriate to do so’. Thus, not only was there no retrospective application of unconstitutionality but the application was postponed prospectively for six months. However, no reasons were given. This was remedied in a later case.
In Schachter v. Canada [1992] 2 S.C.R. 679 the Supreme Court of Canada proceeded on foot of a concession by the Government of Canada and held that a provision of the federal Unemployment Insurance Act, 1971 offended the guarantee of equality because the provision allowed more generous child care benefits to adoptive parents than to natural parents. Lamer C.J., for the majority, pointed out that striking down the act would have the result of denying the statutory benefit to adoptive parents and grant no rights to natural parents. He stated:
“The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits”.

In other words Canada is developing a jurisprudence of suspended declarations. This is not an issue before the Court in this case. But the rationale for such an approach is fundamental and arises out of the constitutional exercise of the constitutional power and duty. It assists in the analysis of the power. It raises for consideration the argument that a Court may consider it appropriate in certain extreme circumstances to suspend a declaration that a law is unconstitutional so that the Oireachtas might address the issue if it wished.
Obviously such a suspended declaration is in aid of organised society as it enables the legislature address the issue. It also enables dialogue in the community as to the best way to proceed. In Corbiere v.Canada (Minister of Indian and Northern Affairs) [1999] 2 S.C.R. 203 L’Heureux-Dubé J. pointed out that there were a number of ways in which the residence requirement at issue could be corrected and that the best solution would be that determined by Parliament after consultation with the Aboriginal people affected by the decision. In her view the principle of democracy should guide the court, that principle ‘encourages remedies that allow the democratic process of consultation and dialogue to occur’. The eighteen months suspension of the declaration of invalidity in that case enabled Parliament have the time to develop and enact a new voting regime, should it choose to do so.
This rationale strikes a familiar note in this jurisdiction. Ireland is a democratic State: Article 5. The terms of the Constitution giving to the Superior Courts the power to review legislation gives rise to the single remedy of a declaration of invalidity. While the Irish Constitution and the Canadian Constitution expressly contemplate as a remedy an order of invalidly and thus that the law was void, to exercise such a power constitutionally the Court has inherent power to administer justice. The jurisprudence which has been developed in Canada in relation to the Charter has addressed the issue of the application of such power.
I have referred to Canadian jurisprudence relating to their Charter, and accept that such case law may not be referable or persuasive to our Constitution, however it illustrates a developing jurisprudence and highlights Constitutional law consistent with a modern functioning democracy. In accordance with Article 15.4, a declaration of unconstitutionality of an Act of the Oireachtas renders the Act void ab initio. Pursuant to Article 50.1, a declaration that a statute is inconsistent with the Constitution means that it was not carried over by the Constitution and is null and void since 1937. However, the declaration of invalidly of a law and any order relating to the application of that declaration are two quite separate matters, two different issues. The inherent jurisdiction of the Superior Courts to administer justice is applicable to the decision on both issues. Consequently, the appropriate application of an order may be considered by a court in all the circumstances of the case, for the purpose of doing justice. While it has never been so decided, and it would require a full argument, it appears to me that the issue of additional remedies in relation to the application of such a declaration, for example the suspension of an application of a declaration of invalidity, could be raised in our courts.
The principle of law is that a declaration that a law is unconstitutional applies in the litigation in which the issue arose, and prospectively, there is no general retrospective application of such an order. However, I do not exclude the possibility that an exception may arise where in wholly exceptional circumstances the interests of justice so require.
The issue of the retrospective application of a declaration of unconstitutionality has arisen as a consequence of C.C. v. Ireland and Ors., (Unreported, Supreme Court, 23rd May, 2006). C.C. was charged with four offences contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935, which states:
“Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years.”

The penalty aspect of the clause was amended by the First Schedule of the Criminal Law Act, 1997, but this was not a relevant factor.
C.C. wished to raise the defence of mistaken belief as to the age of the person with whom he was charged of having carnal knowledge and he brought judicial review proceedings seeking:
(a) A declaration that a reasonable belief on the part of a defendant that the alleged injured party was over the statutory age constituted a defence to a charge under s. 1(1) of the Act of 1935.
(b) A declaration, in the alternative, that the exclusion of the defence of mistake as to age is repugnant to the Constitution and that if the offence created by s. 1(1) of the Act of 1935 is an offence of strict liability, that provision is inconsistent with the Constitution.

On the 12th of July, 2005, this Court, by a majority, held that the defence of mistake as to age was not open to C.C. on s 1(1) of the Act of 1935. On 23rd May, 2006, this Court held that as the defence of mistake as to age was not open to C.C., as it was held to be an offence of strict liability, it was inconsistent with the provisions of the Constitution.
Subsequently this applicant brought habeas corpus proceedings seeking his release on the basis that he was in custody in respect of an offence not known to law.
The facts of the applicant’s case are that on the 24th November, 2004, he was sentenced to a term of imprisonment of three years to date from the 8th November, 2004, at the Dublin Circuit Criminal Court for the offence of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935. The decision of C.C. v. Ireland and Ors., which declared that s. 1(1) of the Act of 1935 was inconsistent with the Constitution, was relied upon. It was submitted that the applicant was in custody in respect of an offence not known in law. The High Court ordered his release stating that in accordance with the decision of this Court s. 1(1) of the Act of 1935 ceased to have legislative existence in 1937. The High Court then considered the consequences, stating:
“In this case, the applicant is detained on foot of a conviction for an action which was accepted by the applicant and by the People through the relevant State authorities, including the Director of Public Prosecutions, to be an offence on 15th June, 2004 but which we now know, by reasons of the declaration made by the Supreme Court last week, was not an offence either when the action occurred or when the applicant was convicted or sentenced.
. . . the only consequence of the declaration of the inconsistency of s. 1(1) with the Constitution with which I am concerned on this application is whether it has rendered the detention of the applicant unlawful as of now.”

For the purpose of the application the following facts were agreed: (a) that the date of the alleged offence was 18th May, 2003, (b) that the applicant’s date of birth is 25th April, 1965, so that he was 38 years of age at the date of the alleged offence; (c) that the complainant’s date of birth is 21st August, 1990, so that she was 12 years of age at the date of the alleged offence; and (d) that at the date of the alleged offence the applicant knew that the complainant was under the age of 15 years.
It was conceded that the applicant would not have had locus standi to challenge the constitutionality of s. 1(1) of the Act of 1935 before the C.C. decision. The High Court concluded:
“The fact that the declaration rendered the applicant’s detention unlawful may have the appearance of a “windfall bonus” for the applicant. Be that as it may, in my view, his detention was rendered unlawful by the declaration and cannot continue. Not being satisfied that the applicant is being detained in accordance with the law, I direct his release from detention in Arbour Hill Prison.”

The Governor appealed against the judgment and order of the High Court and consequently the issue of the retrospective application of a declaration of unconstitutionality has arisen before this Court.
Conclusion
The principle of judicial review of the constitutionality of a law by the Superior Courts was a novel aspect of the Constitution of Ireland, 1937. Ireland led the common law world by expressly incorporating this power into the Constitution. Such a power carries duties. Over the years the courts have developed constitutional principles and presumptions relevant to the exercise of such a constitutional power and duty. No principle of retrospective application of a declaration of unconstitutionality has been developed. To the contrary, the application of declarations of unconstitutionality has been limited to the parties, or identified litigants, and prospectively.
There is no express principle of retrospective application of unconstitutionality in the Constitution. I am satisfied that no such principle may be implied into the Constitution. Such a principle would bring disorder into society disproportionate to the benefit to be achieved. Such a principle would render the express power given to the Superior Courts a tool of chaos.
The issue of the general retrospective application of the declaration of unconstitutionality was not dealt with in C.C. v. Ireland. Nor was there any query raised subsequently, by any party, about the application of the judgment. Instead this issue has been raised in subsequent, unrelated, litigation, this case.
Prior to the declaration of its unconstitutionality last May s.1 (1) of the Criminal Law (Amendment) Act, 1935 was treated as the law of the land. While the court order is to the effect that the section was not continued in force by Article 50(1) of the Constitution, and so it is deemed invalid since 1937, this does not reflect the reality of the situation since 1937. The reality is that it was assumed that the law was constitutional. It has been acted upon for seventy years. Over the decades people have been prosecuted, convicted and acquitted, under this legislation. The section of law has been relied upon. People have altered their positions detrimentally because of the section. The State, via many instruments, has acted upon the section. It occupied the position of a law which must be observed – until it was struck down as unconstitutional.
While it has been declared that the section is inconsistent with the Constitution and thus not carried over in 1937, that decision does not address its application outside the case in which it arose. There is no principle of the retrospective application of a declaration of unconstitutionality outside the particular parties of a case, or litigants specifically named by the court. This has long been the practice in this jurisdiction, which practice is based upon sound constitutional principle.
Organised society and the common good are protected by the Constitution. This includes the orderly administration of justice. Justice is not served, nor is the reality of the situation in our community served, by applying retrospectively an invalidity in circumstances where a law has been relied upon by all for many years. Such a principle of retrospective application would be the antithesis of law and order. Contemplate a situation in 1976 if a retrospective application of de Búrca had resulted in all the prisoners tried by such juries released? Contemplate a situation in 1982 if retrospective application of Murphy applied and the Revenue Commissioners were required to return all the invalid taxation collected from all married couples over the years? To borrow from O’Higgins C.J., organised society could not accept such a conclusion. The Constitution does not require such a conclusion, and nor have the courts.
A court is required to differentiate between the declaration of unconstitutionality and the retrospective application of such a decision. While in cold logic all such declarations are null and void since 1937, or the date of a post 1937 purported legislation, application of such a ruling is a further issue for consideration. Consequently 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. The fact that there is no principle of retrospective application of a declaration of unconstitutionality, outside the case or cases in which the issue was decided, has, quite remarkably, not been the subject to date of express judicial decision in Ireland, although it has underpinned the practice and application of the law for many years.
When a law has been treated as valid law for decades it is impossible, unjust, and contrary to the common good, to reverse the many situations which have arisen and been affected, in all their myriad forms, over the decades. In fact, even if a law has been presumed valid for only a few short years it will have affected people and institutions in ways not reversible. The community accepted the law, the way it was assumed or presumed it to be, and acted accordingly. The clock cannot be put back. The egg cannot be unscrambled. Indeed this fact is one of the reasons why consideration may be given by the President of Ireland to sending a bill to the Supreme Court under Article 26 of the Constitution. Such an action by the President, if the bill is found to be unconstitutional, prevents irreversible consequences. Once a law is applied in a community it has ripple effects which are irreversible.
The issue of the application of declarations of unconstitutionality has been the subject of sophisticated jurisprudence elsewhere. The law of Canada appears to be of particular interest. For example, in Charter cases the Supreme Court of Canada has developed the concept of suspending a declaration of invalidity so that Parliament may have time to address the issue.
In conclusion, the general principle is that a declaration of invalidly of a law applies to the parties in the litigation or related litigation in which the declaration is made, and prospectively, but that it does not apply retrospectively, unless there are wholly exceptional circumstances. The applicant in this case was not a party in C.C. v. Ireland and Ors., 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.
For these reasons I allowed the appeal in this case.

JUDGMENT DELIVERED ON THE 10TH DAY OF JULY 2006 BY McGUINNESS J.

 

I have had the advantage of reading in draft the judgments of my learned colleagues giving reasons for allowing this appeal. I am in general agreement with the reasons given. I propose to add some brief comments.
The facts of the case and the course of the proceedings have been set out in detail by Hardiman J. and there is no need to repeat them here. I gratefully accept his account of the history of this appeal.
For the reasons briefly set out below I am in agreement with the conclusion of Denham J. that there is neither an express nor an implied principle of retrospective application of unconstitutionality in the Constitution. This conclusion is borne out by the case law relevant to the issue which has been analysed by the Chief Justice and my other learned colleagues. This case law includes in particular O’Donovan v Attorney General [1961] I.R. 114, McMahon v Attorney General [1972] I.R. 69, de Burca v Attorney General [1976] I.R. 38, The State (Byrne) v Frawley [1978] I.R. 326, Murphy v Attorney General [1982] I.R. 241, and McDonnell v Ireland 1 I.R. 134.
The learned trial judge in her judgment (at page 3) considered the effect of a declaration that a pre-constitutional statute was inconsistent with the Constitution. She went on to adopt and rely on a passage from the judgment of Henchy J. in Murphy v Attorney General [1982] I.R. 241:
“If it is a pre-constitutional enactment, article 50, s. 1, provides in effect that the statutory provision in question shall, subject to the Constitution and to the extent that it is not inconsistent therewith, continue in full force and effect until it is repealed or amended by enactment of the Oireachtas, i.e. the Parliament established by the Constitution. The issue to be determined in such case is whether, when the impugned provision is set beside the Constitution, or some particular part of it, there is disclosed an inconsistency. If the impugned provision is shown to suffer from such inconsistency, it may still be deemed to have survived in part the coming into operation of the Constitution, provided the part found not inconsistent can be said to have had, the time of that event, a separate and self-contained existence as a legislative enactment. Otherwise, the impugned provision in its entirety will be declared to have ceased to have a legislative existence upon the coming into operation of the Constitution in 1937.
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.”

The learned judge went on to apply these principles as she saw them to the case of the applicant.
The passage on which the learned trial judge relied is well known and much quoted. It is a striking and memorable statement of the law, albeit obiter. Having, as it were, signed the death certificate of a statute found to be unconstitutional, Henchy J., however, went on to say (at page 307):
“While a declaration under article 50, s.1, does not arise in this case, it is of importance to note that, notwithstanding a judicial declaration of the demise in 1937 of a statute or a statutory provision it may be that, because of a person’s conduct, or because of the irreversible course events have taken, or for any one of a number of other reasons, what was done on foot of the condemned statute or statutory provision may not necessarily be relied on as a ground for claim for nullification or for other legal redress: see the decision of this court in The State (Byrne) v Frawley. In other words, a declaration under Article 50, 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.”

It is notable that this passage follows immediately after the passage quoted by the learned trial judge. Henchy J. went on to refer to previous decisions of this court, in particular to The State (Byrne) v Frawley [1978] I.R. 326 and McMahon v Attorney General [1972] I.R. 69. At page 314 of the report Henchy J. referred to The State (Byrne) v Frawley. He stated:
“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 court should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there may be transcendent considerations which make such a course undesirable, impractical, or impossible…

For a variety of reasons, the law recognises 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 by-products of time, the compulsion of public order and of the common good, the aversion of the law from giving 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. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking of the pointlessness of seeking to undo or reshape the facts of history: ‘The statue has taken its shape and can never back to the quarry’.”

It appears to me that, without any further addition, this passage outlines the general approach which must be taken to the application of retrospectivity in these circumstances and in particular represents the proper approach which should be taken to the present case. Can it seriously be said on the facts of the present case that the compulsion of public order and the common good would allow the application of the present applicant, Mr A, to succeed?
In the same case (Murphy v The Attorney General) Griffin J. dealt with the same considerations more briefly. At page 331 of the report Griffin J. stated:
“When a statute has been declared to be void ab initio, it does not necessarily follow that what was done under and in pursuance of the condemned law will give to a person, who has in consequence suffered loss, a good cause of action in respect thereof. Notwithstanding the invalidity of the statute under which such Act was done, the courts recognise the reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the invalid statute – as it was put so succinctly during the argument ‘the egg cannot be unscrambled’.”

This qualified approach to retrospectivity is evident in the decisions of this court in the cases listed earlier. I would also draw particular attention to the judgment of O’Flaherty J. in McDonnell v Ireland and Others [1998] 1 I.R. 134 (the facts of this case have been set out by Hardiman J. in his judgment). While somewhat different reasons were given in the judgments in the case this court was unanimous in dismissing the applicant’s appeal. O’Flaherty J. gave the fullest consideration to the effect of this court’s judgment in Murphy v The Attorney General. At page 142 of the report he stated:
“In any event, since the provision was in place when the plaintiff was prosecuted on the 30th May, 1974, he cannot now avail of its extirpation as giving him the cause of action. This is established in both the majority judgments as well as in the minority judgment, of the court in Murphy v The Attorney General [1982] I.R. 241.
It will be recalled that in that case O’Higgins C.J., in his minority judgment, concluded that under the Constitution a declaration as to the invalidity of a law or any provision thereof can only operate from the moment such invalidity is declared in the High Court or in the Supreme Court. He went on to hold that the requirement of an ordered society would have inclined his mind to such a conclusion aside altogether from his interpretation of the express provisions of the Constitution. The idea that a declaration of invalidity operated to say that the provision was void ab initio ‘would provide…the very antithesis of a true social order – an uneasy existence fraught with legal and constructional uncertainty’.
The approach of the majority in Murphy v The Attorney General while holding that declarations of invalidity of legislation worked to make the impugned legislation void ab initio, produced more or less the same results…

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 of 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 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 some day be struck down as unconstitutional. We speak of something as having ‘the force of law’. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, 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 2 I.R. 503.”

I have said earlier that the dictum of Henchy J. that a declaration of unconstitutionality amounts to a judicial death certificate is well known and much quoted. It is couched in striking language which readily remains in the mind. Perhaps these very qualities have militated against the giving of full consideration to the careful qualifications and fuller explanations of the effect of a applying this “death certificate” to a statute contained both in Henchy J’s own judgment and in the other judgments of this court over the years. It is in this context that I am in agreement with the Chief Justice in his analysis of the judgment of the learned High Court judge.
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 outcome 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 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. I do not consider that the present case on its facts is in any way such an exception. The applicant was convicted of an offence which consisted of sexual intercourse with a girl under the age of consent. At no stage has he denied that the act of sexual intercourse with this girl took place. There is no suggestion that he was denied due process in the course of his trial. He did not at the time challenge the constitutionality of the relevant section or take any of the other steps which might in law have been open to him. The case was decided in accordance with the law applicable at the time and is not now open to attack. I agree with the Chief Justice in what he has stated concerning the general principle governing criminal prosecutions where the State has relied in good faith on a statute in force at the time and concerning the application of those principles.
For these reasons I allowed the appeal in this case.

 

JUDGMENT of Mr. Justice Hardiman delivered the 10th day of July, 2006.
The applicant in this case, A., pleaded guilty to an offence contrary to s.1(1) of the Criminal Law Amendment Act, 1935, unlawfully and carnally knowing a girl under the age of 15 years. He received a sentence of three years imprisonment. He had served about half this period when, in another case and at the suit of another person, C.C., the subsection creating the offence to which A. had pleaded guilty was found inconsistent with the Constitution. A declaration to that effect was made under Article 50.1. This case is about A’s attempt to get the benefit of the C.C. decision for himself; to piggyback on that declaration. No-one has ever succeeded in doing this (and only a few have made the attempt) in respect of a trial or transaction completed before the declaration.

The first and salient distinction between C.C’s case and this one is that C.C. raised his ultimately successful challenge to the constitutionality of s.1(1) of the 1935 Act before his trial. Neither the present applicant nor any other person up to the time of C.C.’s case did this. For reasons discussed at length below, this is a huge obstacle in the way of any attempt to piggyback on the declaration granted in C.C’s case, all the more so for an applicant who pleaded guilty in the Court of trial. But the present applicant, for reasons arising from the specific facts of his case, meets a still greater obstacle first: he is relying on a declaration itself based on a jus tertii, a right which he himself never possessed. To explain this, I take as my starting point the enormous factual differences between this case and C.C’s. Before doing so, I wish to reiterate what Henchy J. said in State (Byrne) v. Frawley [1978] IR 326, a case much discussed below, “In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist”. And indeed, though none of the third parties in the cases discussed below were afflicted with A’s additional difficulty, none succeeded in piggybacking on another person’s success in constitutional litigation.

C.C. put forward his case on a factual basis which was in stark contrast with the facts of the case against A. He (C.C.) was a teenager charged with unlawful carnal knowledge of another teenager. He said he had met the girl in question at a dog racing track. No sexual intercourse had taken place on that occasion but some little time later she had texted him and re-established contact. This led to their having consensual intercourse on several occasions over the next month or so. The girl had told him that she was 16 years of age and he had believed this. He claimed the Section was unconstitutional in that it precluded him from advancing those facts as a defence at his trial before a jury. They showed, he said, that he had acted under a mistake of fact which was both honest and reasonable, and induced by the girl herself. Some of these central statements were contradicted by prosecution witnesses. This Court was, however, in no way concerned with the resolution of the factual conflict: if the defence were available, the factual issues would be for a jury. The sole issue for this Court in the end was the constitutionality of a law which had been found to prevent C.C. putting his version of the facts before the jury at all.

A., on the other hand, was a 38 year old man and the father of a daughter who was a class mate and friend of his 12 year old victim. He positively knew the age of the victim and did not deny this. He could never himself have impugned the subsection on the basis that C.C. did because of the operation of the jus tertii rule: a person who seeks to invalidate a statutory provision must do so by reference to the effect of the provision on his own rights. He cannot seek to attack the Section on a general or hypothetical basis and specifically may not rely on its effect on the rights of a third party: see Cahill v. Sutton [1980] IR 269. In other words, he is confined to the actual facts of his case and cannot make up others which would suit him better.

Because of this rule, A. could not have attacked the Section on the basis that it excluded a defence of reasonable mistake as to age since that defence would not have been open to him on the admitted facts, even if it had been available in law. He had, accordingly, no locus standi on which to challenge the subsection. C.C. had this standing.

As it happens, A. was represented by the same solicitor who had successfully acted for C.C. in his constitutional proceedings: he was thus very much aware of the latter’s case. On the third day after delivery of the judgment in C.C., A. commenced his own proceedings, under Article 40.4.2 of the Constitution. He claimed to be set at liberty despite his sentence because the subsection creating the offence to which he had pleaded guilty, and in respect of which he was serving the sentence, had been declared to be inconsistent with the Constitution. Accordingly, he says, the offence no longer exists and indeed never had any existence after the adoption of the Constitution in December, 1937: it cannot therefore justify his detention.

The central legal point arising on the hearing of this application emerges clearly from the foregoing facts. Can a person (in this case, A.) who has pleaded guilty to an offence, and received an appropriate sentence on the foot of that plea, demand to be released from the sentence once the provision creating the offence has been found unconstitutional at the suit of a third party (C.C.) who was asserting that a right of his was unconstitutionally infringed by the subsection? In this particular case a further question arises: is it relevant to the question just stated that the right asserted by the third party was one not infringed in the case of the applicant himself simply because, on the facts, it never attached to him?

The task of the applicant in addressing these questions seems a difficult one: his counsel was unable to point to any case, Irish or foreign, in which a declaration of unconstitutionality was applied retrospectively to invalidate a past proceeding at the suit of a third party such as A. here. This fact seems to have escaped attention during much of the rather breathless, often intentionally alarmist, discussion and coverage this case has engendered. But A. says this case is unique in that he is held in custody on the basis of his conviction of an offence that no longer exists and therefore (he says) can have no legally cognisable consequence: in particular it cannot justify his continuing detention.

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

Procedural background.
In June, 2004, the applicant in these proceedings pleaded guilty in the Dublin Circuit Criminal Court to a count of unlawful carnal knowledge contrary to s.1(1) of the Criminal Law (Amendment) Act, 1935. In November, 2004, he was sentenced to three years imprisonment. On the 26th May, 2006, he applied to the High Court (Laffoy J.) for an order pursuant to Article 40.4.2 of the Constitution directing an inquiry forthwith into the lawfulness of his detention. By order of the 26th May, 2006, the High Court directed the Governor of the Prison where he was held to produce him before the Court on the 29th May, 2006, and to certify in writing the grounds of his detention. The Governor certified:
“I hold the applicant in custody in Arbour Hill Prison pursuant to warrant dated the 24th November, 2004”.

He exhibited the warrant. From this it appears that the applicant had pleaded guilty to the offence mentioned above and had been sentenced by His Honour Judge O’Donnell “to be imprisoned for a period of three years. Said sentence to date from the 8th November, 2004”.

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

On the 23rd May, 2006, this Court had delivered judgment in a case entitled C.C. v. Ireland, The Attorney General and the Director of Public Prosecutions. The Court granted a declaration that s.1(1) of the Criminal Law (Amendment) Act, 1935, was inconsistent with the provisions of the Constitution. This was the point on which the present applicant relied. He said that the effect of the declaration granted to C.C. was to render his, A’s, continued detention unlawful because this detention was in respect of an offence not known to the law. His argument was, as his counsel said, simple and clear; indeed counsel presented his principal contention almost as an axiom. No Irish precedent for this alleged entitlement to release was, or could have been, referred to.

The applicant was produced before the High Court on the 29th May, 2006, and legal argument took place. Judgment was reserved overnight and on the 30th May, 2006, Ms. Justice Laffoy delivered a written judgment. She directed the release of the applicant on the basis that she was not satisfied that he was being detained in accordance with the law.

The respondent’s appeal was heard in this Court on the 2nd June, 2006. After the conclusion of the hearing the Chief Justice for the Court indicated that the appeal would be allowed. A brief statement of reasons was given and it was said that the judgment or judgments of the Court would be delivered at a later date.

C.C.’s case on the meaning of the Act.
C.C. was an eighteen year old who was accused of having had unlawful carnal knowledge of a girl under the age of fifteen years. When approached by the Gardaí he admitted having had consensual intercourse with the girl. He described the interaction between them in some detail and specifically stated that the girl had informed him that she was sixteen years of age and that he had believed this. After he was charged, he instituted High Court proceedings claiming certain declarations to the general effect that, on the true construction of the subsection, he was entitled to advance the defence of mistake in answer to the charge under s.1(1) of the Act of 1935. In the alternative, he claimed, that the subsection was inconsistent with the Constitution.

On the 12th July, 2005, this Court delivered judgment in that part of the case which related to the interpretation of s.1(1) of the 1935 Act. For the reasons set out in the judgments of Mr. Justice Geoghegan and Mr. Justice Fennelly, the Court (Mrs. Justice Denham dissenting) held that it was not possible to imply a requirement of mens rea as to age into the subsection. Specifically, the legislative history of the provision made it clear that the Oireachtas “… as a matter of deliberate policy deprived accused persons of the defence of the mistake as to age made on reasonable grounds…”, by the enactment of s.1(1), in respect of an offence contrary to that subsection. The judgments referred to, as is proper in a judicial exercise in statutory construction, reached this conclusion solely from a consideration of the wording of the statute and its legislative history and context. All judicial implication of material, (in this case a requirement for mens rea), into a statute operates on the basis of attributing an intention to the legislature on one of a number of well established grounds. It cannot be done otherwise. Naturally this cannot be done at all where there is positive and admissible evidence that the legislature of 1935 affirmatively intended to make the defence of mistake unavailable.

After the Courts finding on this point, the constitutional aspect of C.C.’s claim was adjourned for further argument and was eventually resolved by the judgment of the 23rd May, 2006, with the result stated above. The judgment proceeds entirely on the basis of the Constitution but a strict liability stigmatic offence with the possibility of a prison sentence would, very likely, engage European Convention points as well: see Simester, Ed., Appraising Strict Liability (Oxford U.P., 2005) and especially Chapter 8, G.R. Sullivan Strict Liability for Criminal Offences in England following incorporation of the E.C.H.R.

The case of Mr. A. presents a number of features of sharp contrast. C.C. had asserted his innocence and made his case, and in particular his constitutional claim, before his trial, having already indicated to the Gardaí the factual basis which gave him locus standi to raise it. He said the girl herself had misled him as to her age, that he had honestly and reasonably believed her, and that s.1(1) of the Act of 1935 unconstitutionally prevented him from relying on these facts as a defence.

Mr. A. had raised no such claim but had simply pleaded guilty to the offence. He could not have raised the constitutional point relied upon by C.C. because he admitted that he had positive knowledge of the age of the complainant, which was twelve years at the time of the offence. At that time Mr. A. was a man of 38 years who had administered alcohol to his victim. On these facts he lacked the locus standi to raise the constitutionality of the absence of a defence of reasonable or genuine mistake. The applicant did not conceal, on the hearing of this appeal, that he regarded the order in the case of C.C. as conferring on him an undeserved windfall, albeit one to which he was legally and constitutionally entitled, the right to be immediately released from a sentence justly imposed on him for an offence to which he had pleaded guilty and in respect of which he continues to acknowledge his guilt.

The applicant’s case.
The applicant’s case was advanced with ingenuity and moderation by Mr. Conor Devally S.C. It was a clear and simple one:
“… that the warrant is bad on its face and is put forward as justification for the detention of the applicant, a provision that was not carried forward pursuant to Article 50 of the Constitution and is known by the respondent to have been declared inconsistent with the Constitution. There being no other lawful or any lawful justification for his continued detention, his release is mandated pursuant to the terms of Article 40 of the Constitution”. [sic: p.2 of written submissions]

Mr. Devally relied on the entire of the judgment of the learned High Court Judge and in particular the passages:
(a) “In this case, the applicant is detained on foot of a conviction for an action which was accepted by the applicant and by the people through the relevant State authorities, including the Director of Public Prosecutions, to be an offence on the 15th June, 2004, but which we now know, by reason of the declaration made by the Supreme Court last week, was not an offence either when the action occurred or when the applicant was convicted or sentenced”.

(b) “… The only consequence of the declaration of inconsistency of s.1(1) with the Constitution with which I am concerned on this application is whether it has rendered the detention of the applicant void as of now”.
(c) “The defect here could not be more basic. It is that the purported conviction relates to something which is not an offence in criminal law. In my view, the conviction is a nullity, as is the sentence.”

An essential part of the chain of reasoning which led the learned trial judge to that conclusion was a dictum of the judgment of Henchy J. in Murphy v. The Attorney General [1982] IR 241. This passage, at p.306 of the report, addressed the effect of a declaration of inconsistency with the Constitution of a pre-1937 statute. Henchy J. concluded that:
“Such a declaration under Article 50.1 of the Constitution amounts to a judicial death certificate, with the date of death stated as the date when the Constitution came into operation.”.

The learned trial judge adopted this passage (which was obiter) and continued:
“Applying the foregoing principles, the Supreme Court having struck down s.1(1) in its entirety, that Section ceased to have legislative existence in 1937. Thereafter, there was no statutory offence of unlawful carnal knowledge of a girl under the age of 15 to which there attached a punishment prescribed in the Act of 1935. To put it another way, the offence of which the applicant was charged did not exist in law when it was purported to charge him with it, nor at the respective dates of his purported conviction and sentencing”.

The central question in this case might also take the form: are the consequences of a declaration of inconsistency quite as straightforward as that? It is to that question I now turn.

Effect of a declaration of inconsistency or invalidity.
Over the years since 1937 a considerable number of statutes, statutory instruments or common law rules have been found to be inconsistent with the Constitution or (in the case of post 1937 statute) invalid having regard to its provisions. In the course of argument it was estimated that there had been perhaps 87 such instances. Despite this level of judicial activity, the learned editors of J.M. Kelly The Irish Constitution (Fourth Edition), 2003, conclude (at page 895):
“The question of the time from which a law, which has been declared inconsistent with or invalid under the Constitution, is to be considered a nullity, and the closely related question of the retroactive potential of such a declaration, are matters which for many years escaped scrutiny altogether and in the last thirty years or so have only been partially explored”.

I am satisfied that this comment is a sound one. That state of affairs is, as the learned editors say, a puzzling one especially since, in relation to post-Constitution statutes at least, the Murphy case cited above makes it clear that “the date of enactment [is] the date from which invalidity is to attach to the measure which has been struck down because of its unconstitutionality”.

Moreover, at p.313 of the report in Murphy, Henchy J. stated a general principle of relief following a finding of invalidity as follows:
“Once it has been judicially established that a statutory provision is invalid, the condemned provision will normally provide no legal justification for any acts done or left undone or for transactions undertaken in pursuance of it; and that persons damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress”.

These passages contain two of the principles which are central to the applicant’s case: firstly, invalidity is not merely a prospective finding but one which has effect from the time the invalid statute was enacted. Secondly, a finding of invalidity “normally” involves redress: in the case of an imprisoned applicant the most obvious redress is release. The applicant acknowledges that the statute at issue in Murphy was a post-Constitution one, but he says, by analogy with the findings about such statutes, a pre-Constitution statute which is inconsistent with any provision of the Constitution should be regarded as having been without force ever since the date of adoption of the Constitution.

The State’s answer.
These are far-reaching arguments which led the State to ask this Court, if necessary, to depart from the finding in Murphy as to the time when invalidity or (at least) inconsistency attaches to a measure which is struck down. The respondent further asked the Court to find that it has an inherent power, when declaring the inconsistency of a statute with the Constitution, to impose a temporal limitation on the effect of such judgment, perhaps by making a prospective only or perhaps by laying down an intervening period, perhaps of six months, before such declaration would have effect.

A considerable body of legal argument relying on principle and on powerful and suggestive analogies with similar constitutional regimes was deployed in support of these submissions. Counsel for the State, Mr. Gerard Hogan S.C., did not underestimate the difficulties in the way of these arguments, if it were necessary for him to rely upon them. They would involve the reversal of significant parts of the findings of this Court in Murphy. Moreover, they were deployed, here, in response to an application under Article 40 of the Constitution: I would see a greater difficulty in assenting to them on such an application than on a substantive hearing of a plenary action, by reason of the fundamental nature of the Article 40 jurisdiction and the celerity with which it is generally required to be exercised. Moreover, it must be said that, no doubt for good reason, no such arguments were even hinted at on the hearing of C.C.’s case. Before embarking on a consideration of these novel answers to the applicant’s claim to be set at liberty, then, it is necessary first to consider the State’s primary contention that our existing jurisprudence suggests a more obvious answer to that claim. In this regard, the respondent contends that, on the existing jurisprudence, the learned trial judge erred in law in concluding that “the conviction is a nullity as is the sentence”.

“Normally”.
The last cited passage from Henchy J. expresses what was called by that learned judge “the primary rule” of redress. It will be noted that that primary rule is twice qualified by the word “normally”. It is now necessary to discuss the nature of the limitation on the primary rule suggested by that word. For the authorities cited below establish that, despite a finding of unconstitutionality, Equity or public policy “may require that force and effect be given… to transactions carried out under the void statute”. The circumstances in which the law requires this to be done will shortly be considered but before embarking on this topic, it is important to recall that Henchy J. spoke the words quoted above in an action which was, as most constitutional actions are, a direct attack on a statute by a person whose factual circumstances were such as to give him locus standi to mount that direct attack. The words quoted refer to the entitlement of such a person “normally” to relief, and to the limitations of that entitlement in certain circumstances. But a person such as the present applicant who is mounting an oblique or collateral attack on a prison sentence, on the basis of another person’s successful attack on the statute under which it was imposed, is clearly in a weaker position. His position is weaker again if he himself could never have lodged the initial attack, since the statute offended no right of his. He is not a person “damnified by the operation of the invalid provision” and thus not a person “normally” entitled to relief, within Henchy J’s categories. Such a person’s claim to redress is entirely technical: the applicant here has not sought to conceal this. But his failure in the present application is not dependent on this fact.

Any pre-Constitution statute (and many post-Constitution statutes) now declared to be inconsistent with the Constitution or invalid having regard to it, will have been in operation for a considerable period, either without constitutional challenge or having survived a previous constitutional challenge. Depending on the nature of the statute, many things of great public or private significance may have taken place by virtue of an impugned measure. The law has not been indifferent to this obvious fact, or to the injustice, difficulty and disorder which could follow from overturning at a stroke the assumptions, the vested rights and the solemn determinations, perhaps of decades. A consideration of certain cases where statutory provisions were found inconsistent or invalid illustrates these propositions.

In de Burca v. Attorney General [1976] IR 38, those portions of the Juries Act, 1927 which excluded from jury service persons other than ratepayers who held land above a certain minimum rateable valuation (and “exempted” from jury service all women other than those who made specific application), were found to be inconsistent with the Constitution. This case is generally regarded as one of the monuments of our modern inclusive and non-discriminatory jurisprudence. In O’Donovan v. Attorney General [1961] IR 114 and in McMahon v. Attorney General [1972] IR 69, certain aspects of the electoral system were successfully challenged on constitutional grounds. In the latter case, those grounds related to the existence, pursuant to a statute of 1923, of a number on a counterfoil to a ballot paper which might lead to the identification of a voter.

If the primary rule of redress were indeed a rigid one of axiomatic simplicity, it is evident that the result in the cases mentioned might have enabled a third party, unconcerned with the original litigation, to attack any conviction (or, for that matter, any acquittal) which had taken place before an unconstitutionally selected jury since 1927, or to attack any election held since 1923. This “appalling vista” was indeed a ground on which one of the dissenting judges in McMahon would have refused relief. Fitzgerald J. (as he then was) said at p.13 of the report:
“The plaintiff has not advanced any argument on the possible consequences of a finding of the procedure being unconstitutional. It appears to me that such a finding raises or could raise the issue as to whether all elections and bi-elections since 1923 were unconstitutional. It certainly creates the situation in which a citizen might be encouraged to raise such an issue”.
A similar apprehension troubled O’Higgins C.J. in the de Burca case, at p.62:
“If, then, the property qualification is not in accordance with Article 40.1, and is not saved by any inference to be drawn from Article 38.5, what is to be said of the thousand of criminal jury trials which have been held since the enactment of the Constitution and which have resulted in convictions? Were these trials invalid? I confess that this matter did cause me some concern during the hearing”.

It must be obvious that concerns such as those expressed in the two passages just cited, if there were no clear answer to them, would have a chilling effect on the development of constitutional jurisprudence. Judges might be confronted with a situation where, in order to grant deserved relief to an individual litigant they would have to cause a state of grave social, legal or political uncertainty, by potentially invalidating things, perhaps as important as elections or serious criminal trials, which took place in good faith prior to the declaration. This might occur when a person who had taken no part in the litigation leading to the declaration sought to take advantage of the declaration afterwards by claiming for example that a past general election, or a past conviction or acquittal by a jury, had been invalidated by the declaration granted.

 

A groundless fear.
But the apprehensions voiced by Fitzgerald J. (as he then was) and O’Higgins C.J. were never borne out, as the historical record shows. No litigant ever attempted to invalidate a general election, on foot of the declarations in the cases mentioned, and an attempt to invalidate a past jury trial was unsuccessful for reasons which are suggestive for the purposes of the present case, and are considered later in this judgment. Other cases where retrospective third party effect was denied are also surveyed.

The married persons tax case, Murphy v. The Attorney General, already cited several times, is the best known case in which the effect of a declaration of invalidity of a statute on the rights of third parties in relation to past transactions is discussed. McDonnell v. Ireland [1998] 1 IR 134 is the most recent case to address this topic as a central issue. There, O’Flaherty J. made the suggestive statement that:
“The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy v. The Attorney General, as well as in Cox v. Ireland [1992] 2 IR 503”.

The reasoning behind that statement, and others to a similar effect, as expounded in McDonnell’s case and others, is the theme of the next section of this judgment.

Unconstitutionality and Nullity.
In State (Byrne) v. Frawley [1978] IR 326, Michael Byrne had been tried by a jury selected under the provisions of the Juries Act, 1927. He was convicted of receiving stolen goods and sentenced to seven years penal servitude. This occurred in December 1975, and by coincidence the decision of the Supreme Court in de Burca was given during the course of the trial. But Mr. Byrne made no point based on this decision and went on with the jury that he had. He appealed to the Court of Criminal Appeal but again took no point about the unconstitutional composition of the jury. Some months after this appeal was unsuccessful he instituted proceedings under Article 40.4.2 of the Constitution on the grounds that he was not being detained in accordance with law. He thus asserted a right arising from the declaration of inconsistency made in de Burca. He failed, and without any U turn on the fundamental issue of inconsistency.

The majority judgment in this Court was delivered by Henchy J. He held, at page 350:
“Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to try him, I consider that he is now precluded by that election from claiming that the jury lacked constitutionality… the prisoner’s approbation of the jury was affirmed by his failure to question its validity when he formulated grounds of appeal against his conviction and sentence, and when his application for leave to appeal was argued in the Court of Criminal Appeal. It was not until some five months after his trial that he first put forward the complaint that the jury had been formed unconstitutionally. Such a volte face is impermissible. Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary… what has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case”. (Emphasis added)

Significantly, Henchy J. added to the foregoing:
“In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist”.

It will be seen that this decision proceeded on the basis of preclusion or estoppel. It is significant to note that, like the present proceedings, Byrne’s proceedings were under Article 40.4.2.

In December, 1975, there must have been many people who had been convicted in the then relatively recent past, but before the decision in de Burca, by an unconstitutionally selected jury. Because of the particular circumstances of Michael Byrne – he knew the jury was unconstitutionally selected before it convicted him – it was unnecessary for the Court to address the position of such persons. At p.349 of the report, however, the following is said;
“As the United States Supreme Court has held in a number of cases, it does not necessarily follow that Court orders lack binding force because they are made in proceedings based on an unconstitutional statute. So far as the present case is concerned, because of its particular circumstances it is not necessary to decide whether a person who is convicted by a jury recruited under the Act of 1927 and who did not raise the unconstitutionality of the jury, either at the trial or collaterally in the High Court before conviction, could have later successfully impugned his conviction on that ground. Whether he could have done so or not it would seem that he would now be debarred from doing so. It is now over two years since the widely reported decision of this Court in the de Burca case made it common knowledge that juries in criminal cases tried prior thereto were recruited under unconstitutional provisions. Yet, since then, no such convicted person (other than the prisoner in this case) has instituted proceedings to have his conviction or sentence set aside on that ground. Such retrospective acquiescence in the mode of trial and in the conviction and its legal consequences would appear to raise an insuperable barrier against a successful challenge at this stage to the validity of such a conviction or sentence.” (First emphasis added, second in original)

That passage is of interest for two reasons. It plainly envisages “retrospective acquiescence” as a barrier to an attack on a conviction or sentence, including an application under Article 40.4.2. Secondly, the Court simply declined to express a view on the position of a person who was not guilty of such acquiescence since the date of the finding of unconstitutionality because that question did not arise on the facts. But I would observe that any such person tried by an unconstitutionally selected jury would have had standing to challenge the relevant provisions of the Act of 1927 whereas the applicant here never had standing to challenge the relevant provisions of the Act of 1935 on the only ground on which it was struck down.

The question of the effect on third parties rights of a declaration of invalidity arose in an acute form in Murphy v. The Attorney General, cited above. There, the plaintiffs were a married couple who, under the terms of the tax legislation then in force, paid more by way of income tax than two unmarried persons in their position would have done. They claimed that the relevant provisions of the tax code were unconstitutional and were successful in this claim. After this had happened, the State caused the matter to be re-entered to “speak to the minutes of the order” in particular on the question of “whether the judgment ought to be held to operate prospectively only or retrospectively and, if retrospectively, relative to what precise period of time and to what tax payers, if any, other than the plaintiffs”. It is the latter question which is of most relevance here.

O’Higgins C.J. dealt with this aspect briefly, saying, at p.302 of the report:
“Here we are concerned about a finance or taxation statute. A particular duty lies on the government and on the Oireachtas under the Constitution to provide each year for the financial requirements of the State. This must be taken as a matter of general knowledge. Any citizen who accepts such taxation laws as are in operation and who pays his taxes without protest does so in the full knowledge that as a member of the community he will share the expenditure and arrive at benefit from the central fund. Such a citizen can scarcely have merits if after invalidity is established he seeks to recover back what has already been collected and appropriated with his knowledge and implied approval for the common good”.

Henchy J. stoutly expounded the view that a declaration of inconsistency operated with effect from 1937. But he went on to say at p.307, immediately after the “judicial death certificate” passage quoted by the learned trial judge:
“While a declaration under Article 50.1 does not arise in this case, it is of importance to note that, notwithstanding a judicial declaration of the demise in 1937 of a statute or a statutory provision, it may be that, because of a person’s conduct, or because of the irreversible course events have taken, or for any one of a number of other reasons, what was done on foot of the condemned statute or statutory provision may not necessarily be relied on as a ground for a claim for nullification or for other legal redress: see the decision of this Court in The State (Byrne) v. Frawley. In other words, a declaration under Article 50.1 that the law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity. Once a finding is made under Article 50.1 that, for want of consistency with the Constitution, a law ceased in 1937 to have the force of law, a declaration of such invalidity is a constitutional imperative . Whereas, the consequences arising from having acted on foot of or in pursuance of the statutory provision which has thus retrospectively been found to have lost the force of law in 1937 may, in certain circumstances, be held to be beyond the reach of legal action based on that invalidity”. (Emphasis added)

At p.314-5 the learned judge said:
“But it is not the universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action. [He referred to State Byrne v. Frawley]. While it is central to the due administration of justice in an ordered society that one of the concerns of the Court should be to see that prejudice suffered at the hand of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there maybe transcendent considerations which make such a course undesirable impractical or impossible.
…. For a variety of reasons the law recognises that in certain circumstances… what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking of the pointlessness of seeking to do or undo or reshape the facts of history: ‘the statute taken its shape and can never go back to the quarry’.
In this judgment I deliberately avoid any general consideration of the broad question as to when, and to what extent, acts done on foot of an unconstitutional law may be immune from suit in the Courts, for I think any conclusion I might express would in the main be obiter. In any event I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case”. (Emphasis added)

At p.321 of the report, having fully acknowledged the different context in which this question falls to be addressed in the United States, Henchy J. quoted from a judgment of the United States Supreme Court (Hughes C.J.), in Chicot County Drainage District v. Baxter State Bank [1940] 308 U.S. 371. The learned Chief Justice said:
“The Courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; and hence afforded no basis for the challenge decree. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects – with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality, and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are amongst the most difficult of those which have engaged the attention of the Courts, State and Federal, and it is manifest from numerous decisions that an all inclusive statement of a principle of absolute retroactive invalidity cannot be justified”. (Emphasis added)
It is important to restate that the conclusions quoted from the judgment of Henchy J. are in the context of his having firmly upheld the concept of invalidity attaching from the date of enactment, in the case of a post-Constitution statute found invalid. Nonetheless, having set out the extract just given from the judgment of Hughes C.J., Henchy J. commented:
“In other words, it has been found that considerations of economic necessity, practical convenience, public policy,
the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute”. (Emphasis added)

A similar question arose in a quite different context in McDonnell v. Ireland and Ors. [1998] 1 IR 134. Section 34 of the Offences against the State Act, 1939, had provided that where a civil servant was convicted by a Special Criminal Court of a scheduled offence, he would immediately forfeit his office in the public service. In Cox v. Ireland [1992] IR 53 that Section was found to be unconstitutional. McDonnell had lost his job in the postal service on his conviction of a membership offence in May 1974. His application for reinstatement was rejected. However, having noted the decision in Cox, he instituted proceedings claiming that his dismissal had been unconstitutional and had no legal effect. He also sought back money, pension rights and damages. His claim was dismissed by this Court. O’Flaherty J. said at p.142:
“In any event, since the provision was in place when the plaintiff was prosecuted on the 30th May, 1974, he cannot thus now avail of its extirpation as giving him cause of action. This is established in both the majority judgments, as well as in the minority judgment, of the Court in Murphy v. The Attorney General…”.

O’Flaherty J. cited from the judgments of Henchy J. and Griffin J. in Murphy and continued:
“The correct rule must be that laws should be observed until they are struck down as unconstitutional. [He referred to the process whereby bills are promulgated as laws and continued] From that date, all citizens are required to tailor their conduct in such a way as to conform with the obligations of the particular statute. Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold ‘the Constitution and the laws’; the judge cannot have a mental reservation that he or she will only uphold those laws that will not some day be struck down as unconstitutional. We speak of something as having ‘the force of law’. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation which preserves the distinct status of statute law which, as such, as necessitated by the requirements of an ordered society and by ‘the reality of the situation’ (to adopt Griffin J’s phrase) should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy as well as in Cox. (Emphasis added)

 

 

Consequences of the foregoing.

The cases just discussed appear to me to establish a number of propositions:
(1) The Courts have consistently asserted that post-Constitution statutes found invalid having regard to the Constitution are deemed to be invalid from the date of their enactment. That has been authoritatively decided. There are obiter statements, the best known of which was adopted by the learned trial judge in this case, to the effect that a pre-Constitution statute found inconsistent with the Constitution was afflicted with that inconsistency from 1937 and not from any later date. That proposition might be resisted (by reason of the terms of Article 50.1 of the Constitution). I do not propose to address that possibility here for reasons given above, principally a reluctance to decide an issue in an Article 40.4.2 application adversely to a prisoner on so novel a point.

(2) There is a well established line of authority for the proposition that “… it does not necessarily follow that Court orders lack binding force because they are made in proceedings based on an unconstitutional statute”; that “… it is not the universal rule that what has been done in pursuance of the law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action… the law has to recognise that there may be transcendent considerations which make such a course undesirable impracticable or impossible”; that “… a declaration under Article 50.1 that a law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity”; that “The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity”.

(3) In applying the considerations mentioned in the preceding paragraph, “… it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute”.

(4) Such force and effect may have to be given “… because of a person’s conduct or because of the irreversible course events have taken, or for any one of a number of other reasons…”; because “The irreversible progressions and by-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional law, or otherwise void, into an acceptable part of the corpus juris”; because “Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality, and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination”.

(5) There is also authority for the proposition that the Court should not attempt to lay down a rigid general rule as to what proceedings under an invalid statute will be given force and effect and what proceedings may be struck down by litigation:
“I deliberately avoid any general consideration of the broad question as to when… acts done on foot of an unconstitutional law may be immune from suit in the Courts… I think experience has shown that such constitutional problems are best brought to solution step by step, precedent after precedent, and when set against the concrete facts of a specific case”.

All these citations are taken from the cases mentioned above, are of long standing as statements of Irish law and have not been contradicted by any authority to which we have been referred.

 

The High Court judgment.
The sentence quoted above at reference (3) epitomises the basis of two disagreements I must very respectfully express with the judgment of the learned trial judge. The existing case law clearly demonstrates that there are circumstances in which things that have been done under and by virtue of a statute which has been declared inconsistent or invalid must nevertheless continue to be given force and effect. To that extent such things – a conviction before an unconstitutionally constituted tribunal, a series of general Elections with numbers on the ballot paper, a payment of tax computed under an unconstitutional provision; a dismissal from public service under an unconstitutional provision – cannot be described as nullities insofar as their continuing force and effect are concerned. The distinction at the heart of the judicial approach in all the cases cited is one between the statute itself , void ab initio or since 1937, and “transactions carried out under the void statute” which may not themselves be void, or nullities, at all. The learned trial judge does not appear to address this distinction, but proceeds directly from the established unconstitutionality of the statute to a finding of nullity of everything done under it as though one followed inexorably from the other. But Henchy J. envisages a declaration of inconsistency not being always available as the basis of a “claim for nullification”: such a claim would be redundant if what had occurred was already a “nullity” by operation of law. That, however, is how the learned trial judge described the conviction and sentence here, as nullities, and that view (set out in a passage cited earlier in this judgment) seems central to the logic of the judgment. It does not appear consistent with the cases discussed above. In my view the High Court erred in failing to address the question of whether the conviction and sentence in A’s case are matters that require to be given continuing force and effect. This question clearly arises for consideration on the well established authorities.

The fact is that in the cases cited the conviction, the payment of tax, the long series of general Elections, and the dismissal all occurred in reality, just as the Sections impugned in those cases had nevertheless commended themselves to the Oireachtas or its predecessor and had in reality been acted upon, no doubt in good faith, for periods up to half a century or (as in this case) considerably more. Indeed, the learned trial judge herself acknowledged that:
“It is undoubtedly the case that the consequences of a declaration under Article 50.1 may be determined by a variety of factors, for example, the conduct of the person relying on the declaration or the fact that an irreversible course of events has taken place, so that what was done on foot of the condemned statutory provision may not necessarily be regarded as a ground for a claim for nullification or other legal redress, as Henchy J. noted in Murphy, citing the decision of the Supreme Court in State (Byrne) v. Frawley”.
But immediately after these words the learned trial judge went on to say, in a passage which is the basis of my second respectful difference with her:
“However, on this application I am not concerned with whether the applicant may be in a position to maintain a civil action for wrongful imprisonment in the future. I am not concerned whether there are other persons in custody having been convicted of a plea of guilty of an offence under s.1(1), in circumstances where the Director of Public Prosecutions entered a nolle prosequi in relation to other charges. I am not concerned when the aggregate effect of the declaration of unconstitutionality may reveal an appalling vista, nor whether that possibility is mitigated by the authorities relied on by the respondent. None of these considerations are relevant to the determination I have to make”.

I am in agreement with the great bulk of what the learned trial judge said in the paragraph just quoted. In particular it is distasteful and often illogical to deploy a “floodgates” argument of the type she mentions against the enforcement of a clear individual right. This judgment ignores any such argument. But I cannot agree with the first sentence in the quotation, insofar as I cannot see why, in principle, the legal significance of the individual circumstances of a case should be confined to a rebutting a claim for wrongful imprisonment or other civil action. That is the only role specifically envisaged by the learned judge.

The reference in the judgment of the learned trial judge to that cause of action, and to the possibility that notwithstanding the unconstitutionality of the statute leading to imprisonment, the prisoner’s own conduct might be a bar to recovering damages, probably derives from Henchy J’s remarks at p.307 and pp.314-15 of the report in Murphy. Henchy J. certainly referred to factors which “may debar a person from obtaining redress in the Courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations had not intervened”. He also declined to consider “the broad question as to when, and to what extent, acts done on foot of an unconstitutional law may be immune from suit in the Courts…”.

I do not accept that in making these references Henchy J. was limiting the “force and effect” which might be given to “transactions carried out under the void statute”, exclusively to the provision of a possible answer to a civil action for damages. The passages quoted appear in part VII of the judgment, the salient portion of which begins “But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action: see, for example, the decision of this Court in The State (Byrne) v. Frawley”. Byrne was an Article 40.4.2 application: this seems to me necessarily to involve the proposition that an application under Article 40.4.2 cannot be excluded from the general terms “cause of action”, “redress” and “suit” as they are used by Henchy J. in this part of the judgment. Accordingly I cannot agree with the learned trial judge that “the conduct of the person relying on the declaration or the fact that an irreversible course of events has taken place” is in all circumstances unavailable as an answer to an application under Article 40.4.2. Indeed, if such factors were unavailable in answer to such an application it is difficult to see how Byrne’s case could have been decided as it was.

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

Piggybacking.
The cases cited above all relate to attempts by a third party to piggy back on a declaration of invalidity or inconsistency obtained by another person; in more formal language, to assert a right to a benefit based on a declaration obtained by another and (in this case) on the basis of a jus tertii which is unavailable to A. In each case, these attempts were unsuccessful on the basis of something in the nature of preclusion arising on the individual facts of the cases. Counsel for the applicant was unable to point to any instance of the successful invocation of a declaration based on a jus tertii with regard to a past or closed legal dealing, process or transaction.

Furthermore it is clear, on the basis of State (Byrne) v. Frawley, that this preclusion (or prohibition of a volte face, as Henchy J. also put it) could apply in an Article 40 application in respect of a person whose detention was a continuing one, notwithstanding the unconstitutionality in the process leading to the imprisonment that had emerged in another person’s case.

The discussion just concluded coercively demonstrates that a relief, including relief under Article 40.4.2, in relation to acts done under or in consequence of an unconstitutional statute, may be resisted on grounds arising from “the concrete facts of a specific case”. These facts may exhibit one or other of the grounds on which relief has been refused in the cases to date, described in the reports as (inter alia) preclusion, estoppel, acquiescence, delay, public policy, equity, impracticability and the impermissibility of a volte face by a litigant, all of which (perhaps with more) might also be described as abuse of process.

All of these things are widely recognised in the general law as factors which may prevent success in litigation or may even affect a person’s ability to pursue a claim for legal redress. Accordingly, I do not regard their availability as an answer to an application under Article 40.4.2 as in any way qualifying or diluting the Court’s fundamental obligation on such an application to enquire as to whether it can be satisfied that the applicant is being detained “in accordance with the law”.

All of the cases cited appear clearly to establish that the phrase “In accordance with law” requires to be construed having regard to the law generally and the Constitution as a whole, as I propose to do here. This, in turn, is consistent with the significance to be given to the term “justice” as it appears in the Constitution. In C.C., I cited a passage from O’Higgins C.J. in The State (Healy) v. Donoghue [1976] IR 325 which also seems relevant here:
“In the first place the concept of justice, which is specifically referred to in the preamble in relation to the freedom and dignity of the individual appears again in the provisions of Article 34 which deals with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness and fair procedures, but also regard to the dignity of the individual. No court under the Constitution has jurisdiction to act contrary to justice.”

The “individual” referred to in the penultimate sentence of this quotation includes the applicant here or a person in his position but not is limited to such person. The phrase certainly includes others who have become involved in the facts which give rise to this case and in particular the victim, whom A. does not deny that he knowingly treated unlawfully.

Accordingly, each of the factors enumerated may, in an appropriate case, be central in the protection of the rights of others, or of the community as a whole, as well as those of the applicant. To put this another way, they may in an appropriate case be central to the achievement of the common good and of that Justice and true social order prominently mentioned in the Preamble to the Constitution, relied upon Mr. Hogan in his argument on this appeal. Whether this is so in the case of this applicant is the subject of the next section of this judgment.

The facts of this case in their legal context.
The question in this case is not whether s.1(1) is inconsistent with the Constitution – it plainly is in view of the judgment of this Court of the 23rd May – but whether this applicant has competence to lay claim to the relief he seeks in the circumstances of this case or whether force and effect must continue to be given to the order of November, 2004. The phrase is an adaptation of the words of Henchy J. in State (Byrne) v. Frawley. Many though not all of the factors enumerated in that judgment which deprived Michael Byrne of this competence appear to be replicated here. No point about the constitutionality or constitutional construction of the Section was taken at or before the trial; no appeal was brought on that basis; the point was not raised until some eighteen months after his trial, as opposed to five months in Byrne’s case. Like Michael Byrne, this applicant has “by his conduct led the Courts, the prosecution (who were acting for the public at large) and the Prison Authorities” to proceed on the footing that he accepted the validity of the charge against him. One might add that the victim and her family were led to this view as well. As in Byrne’s case, his present attitude is a volte face. Moreover, by comparison with Byrne’s case the position of the present applicant is much weaker. He pleaded guilty, whereas Byrne was convicted by the jury and he had no locus standi to raise the point about the absence of a defence of mistake: it simply did not arise on the facts of his case. By contrast, Byrne undoubtedly had locus standi to challenge the composition of the jury that tried him. All these considerations suggest a lack of competence in A. to claim this relief.

There are also considerations of a more public and general nature. These are the “transcendent considerations”, referred to in the extract from the judgment of Henchy J. in Murphy, above which may make the granting of relief in circumstances such as these “undesirable impractical or impossible… [why] in certain circumstances… what has happened has happened and cannot, or should not, be undone”. These suggest the need to give continued force and effect to the order for A’s imprisonment.

The State repeatedly emphasised on the hearing of this appeal that A. was, in effect, asserting a right not his own: the right of C.C., a very young man who claimed to have been misled as to the girl’s age to be allowed to put the defence of honest or reasonable mistake before the jury as a defence. It was on that basis and no other that C.C. was successful in his action, leading to the declaration on which A. now relies. Accordingly the State say that the present case is a back door method of allowing A. to gain the benefit of the facts of C.C’s case. If the jus tertii rule would have prevented him appropriating or inventing such facts for a constitutional challenge of his own, the same rule (the State says) should preclude this indirect method of achieving the same result.

To this A. retorts that he does not seek to rely on the facts of C.C’s case, which are specific to C.C., but only on the judicial declaration that was the result of the case. This declaration – that the subsection was inconsistent with the Constitution – is in A’s contention a public declaration in rem and has force and effect independent of the arguments and the facts that gave rise to it.

The jus tertii rule is a very necessary regulation of locus standi – standing to sue. It prevents the proliferation of litigation and the expense and uncertainty it causes by requiring that each litigant must show that on the facts of his situation he is personally affected by the law he challenges. It prevents necessary and important laws from being struck down on a purely hypothetical supposition which may never arise in real life and avoids the tax payer having to fund the holding of pointless moots. Once a declaration of inconsistency or invalidity is made, however, its effect appears to me to be, necessarily, universal.

But when one comes to discuss the circumstances in which “force and effect” may require to be given to things done, prior to the declaration, under the struck down provision, one must approach the issue on a case by case basis (see Murphy, at p.315). On the facts of A’s case it appears to me highly relevant that A., who fully accepted the facts alleged against him and the validity of the law which criminalised those facts, now seeks his release on the basis of a declaration to which he himself could never have been entitled. His release would be a “windfall” to which he has no entitlement in justice while at the same time being a negation of the closure, solace and vindication already accorded to a victim of a grave crime, and an affront to true social order. Having regard to the terms of the Preamble to the Constitution and of Article 40.3.1 and 2 these appear to me to be constitutional interests requiring, like the rights of the applicant, vindication by the Courts in an appropriate case. They were so vindicated by the sentence imposed in November 2004, by an order requiring the detention of the applicant for a term of years. But this order must fall unless it is one of those things done under the void statute to which force and effect may still be given.

The factors tending to preserve the “force and effect” of the sentence are especially obvious in the case of a crime of an aggravated nature against an individual person. The defendant here, the present applicant, was the father of a friend and classmate of the victim. That is how he affirmatively knew her age. It was on that basis that the girl was in his house and, undoubtedly, under his care. The decision to involve the authorities and to pursue the case to trial must have been a difficult and traumatic one. The resolution of the criminal proceedings by a plea of guilty must equally have been a great relief. Apart from these personal considerations there was a public interest in resolving these grave allegations, if appropriate, by a finding of guilt. These considerations involve “the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what… has become widely accepted and acted upon”, and “questions of right claimed to have become vested… or prior determinations claimed to have finality and acted upon accordingly, of public policy in the light of both the statute and of its previous application…”. In the circumstances of the present case they clearly involved the State’s obligation to vindicate, in the case of injustice done, the “life person and good name” (Article 40.3.2) of the citizen who was the applicant’s victim and of her family. This, indeed, is a matter of high public policy, which is one of the factors regarded in the cases as permitting “force and effect” to be given, “in accordance with the law” (Article 40.4.1) to acts done under void statute.

If, therefore, one considers this case along the lines suggested by the language quoted above, one considers it “… with respect to particular relations, individual and corporate, and particular conduct, private and official”, and with regard to the other factor mentioned by Henchy J. I must on the authorities avoid any general consideration of when acts done on foot of an unconstitutional law may be immune from legal challenge. But the concrete facts of this case present a strong resistance to setting aside the conviction on foot of a plea of guilty and the sentence which followed it on the basis of an unconstitutionality in a long established statute established in an action by an other person, who had what this applicant lacks, locus standi to raise the point on the basis of which the relevant subsection was found inconsistent with the Constitution. It is scarcely possible to think of a less meritorious applicant. I would not grant relief unless obliged to do so.

The principles upon which relief was refused in Byrne and McDonnell and limited in Murphy to those who had first asserted their rights seem to me to provide a more than adequate basis in the long established jurisprudence for refusing relief in the present case. A. is, indeed, a singularly inappropriate candidate for relief. Apart from the loathsome nature of his crime (which is relevant only insofar as it engages competing constitutional considerations, specifically the need to vindicate the victim) there is the fact that all of the persons denied relief in the cases mentioned would have had locus standi to rely on the point giving rise to the finding of invalidity or inconsistency with the Constitution. The applicant here has not: no right of his has at any time been breached, even theoretically. The facts of his case are the diametric opposite of what would have been required to confer such locus standi on him. The facts of his case fit almost every rationale on which relief has, in the decided cases, been refused: indeed the concrete facts of this case suggest that the respondent’s position here is a fortiori, compared to those of the respondents in the cases mentioned. These considerations might themselves be outweighed if there were any plausible suggestion that the applicant here had suffered any actual injustice or oppression: in fact, there is not a scintilla of evidence for that proposition. The contrary was not argued.

The particular difficulties affecting an applicant for Article 40.4.2 relief who is a convicted prisoner have been well epitomised in this Court in the judgment in The State (Aherne) v. Cotter [1982] IR 1 88 as follows:
“Before a convicted person who is serving his sentence may be released under our constitutional provisions relating to habeas corpus, it has to be shown not that that detention resulted from an illegality or a mere lapse from jurisdictional propriety, but that it derives from a departure from the fundamental rules of natural justice, according as those rules require to be recognised under the Constitution in the fullness of their evolution at a given time and in relation to the particular circumstances of the case. Deviations from legality short of that are outside the range of habeas corpus”.

That passage puts part of the applicant’s difficulties squarely. He has not been able to allege any departure from natural justice in the way he has been treated. He acknowledges his guilt and that his claimed release would be a “windfall”. On the other hand, it must be manifest that his release would be a great injustice to others. But it is not necessary to decide the case on that basis. A. is here attempting to do what no-one has done before: to set up a declaration based on the right of a third party in order to invalidate a past and closed transaction, his criminal trial. This cannot be done because, on the long established and unchallenged jurisprudence the trial and sentence are things which require to be given continued force and effect. A’s release would require a departure from that line of authority which I am satisfied there is no warrant for doing. I am satisfied, in other words, that A. is now and always has been detained in accordance with law.

Points not considered.
It will be seen that I have not found it necessary to deal with some of the more fundamental submissions made, in the alternative, on behalf of the State authorities. These include a suggestion that the findings, notably in Murphy, as to the time at which the quality of inconsistency or invalidity attaches to a struck down statute or part thereof should be revisited. Nor have I considered the suggestion that the Court has a jurisdiction to delay the effect of a declaration of inconsistency or invalidity. It was not necessary to deal with these points since the issues raised by the present case were capable of resolution on the existing jurisprudence. I also believe that the points raised, supported as they were by elaborate scholarly argument, are in any event more suitable to be entertained at or immediately after the hearing of a plenary action in which a declaration of invalidity or inconsistency is claimed. In this regard I think Mr. Devally S.C. was correct in his forceful submission that these points, interesting and important as they undoubtedly are, do not properly arise on the hearing of this application.

I have not found it necessary, either, to consider foreign law or any judgment of the Courts of any foreign State or entity, apart from the opinion of Chief Justice Hughes cited in the judgment of Henchy J. in Murphy. Counsel for the applicant was unable to point to the law or Constitution of any foreign State as exhibiting the principle of absolute retrospectivity for which he contended. While that is an interesting fact, and not a surprising one, my judgment is based wholly on established Irish law and Irish precedent. The legal position based on these sources is so clear and so well established that I have not found it necessary to travel further afield. I prefer to ground myself on what Henchy J. called “the concrete facts of a specific case”, and to apply to them the well established legal principles to be found in the authorities. This approach emphasises why, as Denham J.correctly puts it “The issue of retrospective application is not dealt with in C.C… instead this issue has been raised in a subsequent, unrelated litigation, this case”. C.C.’s claim did not involve retrospection: this claim does. The Court must deal with the cases which come before them, and take the facts of those cases as they find them. This case involved retrospection as a central feature so that it is not only proper but necessary to address it.
A Principle.
This judgment recalls that no-one has yet succeeded in impeaching a conviction or sentence arising under a statutory provision which, later, another person succeeds in having declared unconstitutional; the principles giving rise to the established power to continue to give force and effect to such an order of the Court; the very great imperative, especially in a grave case of crime against an individual person, to preserve such an order, and the totally exceptional circumstances, involving injustice, oppression or departure from natural justice, which might prevent that being done in a particular case.

These propositions, and the constitutional provisions and decided cases on which they are based, enable one to derive a principle of non-retrospectivity in the effect of a declaration of inconsistency or invalidity of a statutory provision on concluded cases (other than that in relation to which the declaration is granted) save in exceptional individual cases of the sort mentioned. This is wholly consistent with the decisions of the Courts for more than three decades, prior to which the issue does not appear to have arisen. During that period no exception to which the researches of counsel can point has been found.

I have read what the learned Chief Justice has said with regard to the general principle mentioned above, and with regard to the nature of any exceptions to it. I very respectfully agree with him and, like him and for the reasons given above, do not consider that the present case could possibly qualify as an exception. On the contrary, the requirements of justice strongly demand that force and effect be given to the sentence justly imposed on the applicant here. The “compulsion of public order and the common good” (Murphy p.314) require no less.

Conclusion.
It was for the above reasons that I concurred in the order of the Court pronounced by the Chief Justice on the 2nd June, 2006.

 

 

 

 

A. v. Governor of Arbour Hill Prison.

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

The crucial issue in this case is whether in the event of a declaration of unconstitutionality of a pre-1937 statutory enactment creating an offence, all previous convictions and sentences for such offence must be treated as nullities. The learned High Court judge, Laffoy J., has taken the view that that is the position in law. I beg to differ, for reasons which I will elaborate upon in this judgment. 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.

Before I consider these questions in any depth, I think it important that the background to and context in which this case came to a hearing should be fully set out in one judgment. I propose to do so as briefly as I can.

Originally, two separate applications for judicial review relating to sex with a girl under 15 came on for hearing before Smyth J. in the High Court. There was similarity between the issues in each case but they were not identical. In each case, however, the respective applicant was seeking to establish in advance of a criminal trial that a genuine mistake as to age would be a good defence but the circumstances were slightly different. In one of them C.C. v. Ireland which is the case ultimately relevant here, the suggestion was that section 1(1) of the Criminal Law (Amendment) Act, 1935 which created the offence of unlawful carnal knowledge with a girl under the age of fifteen implicitly incorporated mens rea so that genuine mistake of age would be a good defence. In the other case, P.G. v. Ireland, the offence was the common law offence of sexual assault but under the provisions of section 14 of the same 1935 Act, consent was no defence if the girl was under fifteen years of age. The issue therefore of whether mistake as to age could be a defence or not arose also in relation to that offence. Each applicant had a fallback position. Each, if necessary, was claiming to have the relevant statutory provision declared unconstitutional if the court took the view that the mens rea element could not be read into it.

Smyth J. correctly considered that these issues were not appropriate to be dealt with by way of preliminary judicial review but should be left to the trial judge. However, he nevertheless went on to express views on the issue in favour of the Director of Public Prosecutions and against the applicants. In these circumstances on appeal to this court, this court reluctantly, decided that as a matter of justice it would have to decide the issue of a defence of mistake as to age though it left to the trial court issues about onus of proof and burden of proof. The court took that view because once a High Court judge had expressed an opinion on the issue albeit obiter, it was inconceivable that a trial judge in the Circuit Court would rule otherwise.

Largely influenced by a body of modern English case law in the House of Lords and, indeed, the Court of Appeal also, this court unanimously held that mistake as to age was certainly a good defence in the case of the sexual assault charge. The court, however, by a majority of four judges to one took a different view in relation to the C.C. case which was dealing with the statutory carnal knowledge offence. The majority judgments were delivered by myself and Fennelly J. These were concurred in by Hardiman J. and McCracken J. with Denham J. delivering a dissenting judgment. Fennelly J. and I reluctantly came to the view for the reasons set out in our respective judgments, delivered the 12th July, 2005, that having regard to the structure of the 1935 Act and the express wording in some other sections and its statutory antecedents it was impossible to incorporate by implication the defence of mistake as to age or in other words a mens rea element.

Because this view was taken by the majority of this court, it then became necessary to consider the constitutionality of section 1(1) of the 1935 Act. A court consisting of Murray C.J., Hardiman, Geoghegan, Fennelly and McCracken JJ and, therefore, slightly differently composed, unanimously held by concurrence with a single judgment delivered by Hardiman J. that the subsection was not consistent with the Constitution and had, therefore, not been carried over.

I should mention at this stage that the facts in the C.C. case gave rise to a genuine possibility at least that the defence of mistake as to age, if it existed, might be sustained. C.C. was eighteen years of age and was charged with having had unlawful carnal knowledge of a girl under the age of fifteen years. At all times he admitted having sexual intercourse with the girl but claimed that it was with consent. He alleged that the girl had told him she was sixteen years of age. Mr. A. the respondent on this appeal, following on the judgment of the Supreme Court on the constitutionality issue, applied for an Article 40 Inquiry in the High Court. The basis of the habeas corpus application was that the respondent pleaded guilty in the Dublin Circuit Criminal Court to a count of unlawful carnal knowledge with a girl under 15 contrary to section 1(1) of the Criminal Law (Amendment) Act, 1935 and was sentenced to three years imprisonment by Judge O’Donnell. The respondent at the material time was aged 38 and the girl 12 a fact which he then knew. Nevertheless he has claimed that as a consequence of the declaration of unconstitutionality he had effectively pleaded guilty to an offence that did not exist and that, since the warrant referred to this offence, it was itself bad on its face and that his detention was, therefore, unlawful. That submission was upheld in a closely reasoned judgment of Laffoy J. In my view, the conclusion arrived at by the learned judge is incorrect.

It is a fallacy to assume that once it is declared that a pre-1937 statutory provision creating an offence is inconsistent with the Constitution and was, therefore, not carried over, prior court orders made pursuant to proceedings under it must be treated as nullities.

Other members of the court have reviewed in some detail the Irish case law relevant to the issue including Murphy v. The Attorney General [1982] I.R. 241, de Burca v. Attorney General [1976] I.R. 38, O’Donovan v. Attorney General I.R. 114, McMahon v. Attorney General [1972] I.R. 69, McDonnell v. Ireland [1998] 1 I.R. 134 and particularly, The State (Byrne) v. Frawley [1978] I.R. 326. It is important to emphasize that while there are passages in and aspects of all these cases which have relevance to and are helpful in determining the issue which this court has had to consider, none of them in my opinion can be relied on as decisive authorities either in favour of the view which this court has taken or the view which Laffoy J. took in the High Court. There are, however, important dicta in them which indicate that, for reasons of good order, “inexorable logic” does not necessarily determine legal consequences.

At this point, it is useful to refer to a comment made by the learned editors of the fourth edition of Kelly on the Irish Constitution at p. 895. This comment is already cited in the judgment of Hardiman J. It reads as follows:

“The question of the time from which a law, which has been declared inconsistent with or invalid under the Constitution, is to be considered a nullity and the closely related question of the retroactive potential of such a declaration, are matters which for many years escaped scrutiny altogether and in the last thirty years or so have only been partially explored.”

Hardiman J. has expressed agreement with that comment and so do I. The obiter dicta of Henchy J. in Murphy v. The Attorney General have always been treated with the greatest respect as was done by the learned trial judge in this case. But in so far as they fall outside the context of that particular case referring to the recovery of back tax by the party to the action they must be treated with caution. I am not suggesting in any way that the statements of principle by Henchy J. are incorrect. But he himself has used qualifying words such as, for instance, the word “normally”. More importantly, in my view is his implied approval of the dicta of Hughes C.J. in the judgment of the United States Supreme Court in Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371 at 374. That passage expressly cited by Henchy J. reads as follows:

“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.”

Henchy J. goes on to comment as follows:

“In other words, it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case, and suchlike matters, may require that the force and effect be given in certain cases to transactions carried out under the void statute.”

In introducing the Chicot case, Henchy J. at p. 321 does refer to the fact that the United States Supreme Court is unencumbered “by any constitutional imperative such as is contained in Article 50 or Article 15, s. 4, sub-s. 1, of our Constitution”. It is clear in my view that Henchy J. did not consider this qualification to be relevant to the point he was making and in particular to his reliance on the dicta of Hughes C.J. I say this because he goes on to point out that the approach enunciated by Hughes C.J. has been adopted by the United States Supreme Court “even in cases where the statute has been declared to have been invalid ab initio.”

The part of that passage of Hughes C.J. to which I would draw particular attention is his reference to “prior determinations deemed to have finality and acted upon accordingly”. The use of the word “deemed” brings in a concept which, as will emerge later on in this judgment, is to my mind highly relevant.

Before I reach that stage however, I would like to refer in greater particularity to the judgment of O’Flaherty J. in McDonnell v. Ireland cited above. As I have already indicated, I believe that the precise issue which arises in this case has to be decided by this court for the first time because I do not think that there is any authority directly in point one way or the other. In attempting that exercise, I find assistance from the judgment of O’Flaherty J. It reinforces my own thinking as to how the lawfulness or otherwise of previous proceedings and therefore of the respondent’s detention should be considered. O’Flaherty J. recalled that O’Higgins C.J. in his minority judgment in Murphy v. The Attorney General, had concluded that a declaration as to the invalidity of a law having regard to the Constitution could only operate from the moment such invalidity was declared. The former Chief Justice had based that view both on the wording of the Constitution and on the “requirement of an ordered society”. As O’Flaherty J. points out, O’Higgins C.J. had opined that the idea that a declaration of invalidity operated to say that the provision was void ab initio “would provide … the very antithesis of a true social order – an uneasy existence fraught with legal and constitutional uncertainty.”

I entirely agree, however, with the view then expressed by O’Flaherty J. that the approach of the majority in Murphy v. The Attorney General while holding that the declarations of invalidity operated ab initio “produced more or less the same result.” There were severe limitations on the right to recover back tax. I also agree with the conclusion of O’Flaherty J. at p. 143 of the report stated as follows:

“The correct rule must be that laws should be observed until they are struck down as unconstitutional.”

In this connection, I see no difference between post-1937 legislation and pre-1937 legislation. A judge bound under his declaration on taking office to uphold the laws would not be entitled of his own volition to disregard a pre-1937 statute on the basis of his or her own theory that the enactment was inconsistent with the Constitution. Unless and until there is a formal declaration to that effect those laws are binding. They are binding because they must be deemed to be valid and constitutional. Thus in the case of a prosecution under section 1(1) of the Criminal Law (Amendment) Act, 1935 instituted and completed before any declaration of inconsistency has been made by this court, a “good order” interpretation of the Constitution must clearly require that orders and warrants made in a completed criminal case under the impugned provision must continue to be deemed valid. As the Chief Justice points out in his judgment, in this respect the position is no different than the common law practice which has never been constitutionally challenged, that a decision which effectively changes the law does not confer any right to reopen previous court decisions.

The Director of Public Prosecutions was acting lawfully when he commenced the prosecution against the respondent. It is not correct in my view to say that the Director of Public Prosecutions bona fide believed that he was acting lawfully and cannot be faulted on that account but that he was in fact acting unlawfully. Quite simply, he was acting lawfully. I assume that there was a return for trial. That return for trial was itself lawful. The District Court judge making the return for trial was bound under his declaration of office to assume jurisdiction in the preliminary inquiry and properly to consider whether there should be a return for trial or not. Once the respondent was returned for trial it was proper for the Director of Public Prosecutions to prefer an indictment against him. Equally, it was proper for the learned Circuit Court judge, Judge O’Donnell, to have the respondent duly arraigned and to accept the consequent plea of guilty. The learned Circuit Court judge was then not merely entitled but was obliged to impose an appropriate sentence. This he did and that was a custodial sentence. The appropriate warrant to the Governor of Arbour Hill Prison duly issued and thereafter the detention was lawful. It did not become unlawful by reason of the subsequent declaration of unconstitutionality or more accurately, its deemed legality remained.

In case there should be any misunderstanding about this and particularly having regard to one of the major submissions made in the High Court by counsel for the Director of Public Prosecutions, I want to make it absolutely clear that in expressing the view that the detention was lawful pursuant to the warrant, I am not invoking any technical point. Actually, I would reject the argument put forward by the Director of Public Prosecutions that there was prima facie a lawful warrant and that a judicial review quashing it would be necessary first before an Article 40 order could be made. In that respect, I am in agreement with the learned High Court judge. It has never been the law that in a clear case where the detention is unlawful, the courts have insisted on a judicial review application first which, after all, could take some considerable time and would obviously involve the usual procedures of application for leave, statement grounding it, statement in opposition and a full hearing etc. If, therefore, the only basis on which the appellant could claim lawful detention was a purely technical one based on the absence of a judicial review order first, I would have no hesitation in granting the Article 40 order. That, however, is not the basis on which I consider that the detention was lawful. 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., 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 section 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. 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.

In the ex tempore decision of this court delivered on the 2nd June, 2006 by the Chief Justice, reference is made to the The State (Byrne) v. Frawley cited above. That case has an important bearing on this case but as I have already indicated, I would not go so far as suggesting that it has a decisive relevance. For reasons upon which I will be elaborating, that case has been of assistance to me and other members of the court in considering the interaction between concepts such as “nullity” and the consequences of a so called nullity. I have already pointed out that what happens happens and such event can never be a nullity in the sense that it must be regarded as never having happened.

I think it important to embark on a detailed analysis of the judgments in both the High Court and the Supreme Court in The State (Byrne) v. Frawley. For a proper understanding of the Supreme Court judgments and of the context in which various significant obiter dicta were expressed, it is important to consider first the judgment of Finlay P. (as he then was) presiding over a divisional court of the High Court and with which the other members of the court Murnaghan and McMahon JJ concurred. Hardiman J. has explained the facts of this case in his judgment and I do not think it necessary to go into them in any detail. It was a follow-on from the decision of this court in de Burca v. Attorney General cited above and was a habeas corpus application. The applicant, Mr. Byrne, was claiming that his detention was unlawful although it purported to be pursuant to a conviction and sentence. What had happened was that the de Burca case was decided while a criminal trial of Mr. Byrne before judge and jury was in process. In the de Burca case, this court had held that it was unconstitutional to confine juries to rated occupiers and to exclude women unless they specially applied. As the trial was proceeding, the jury, of course, had already been empanelled. The attention of the trial judge was not drawn to the Supreme Court decision and there was no evidence that the trial judge had any personal knowledge of the details of it. Nor was any application made by counsel for either the prosecution or the defence to have the empanelled jury discharged. Furthermore, the conviction and sentence were appealed to the Court of Criminal Appeal and the alleged invalidity of the jury was not raised as a ground of appeal before that court. There was even a further appeal under section 29 of the Courts of Justice Act, 1924 to the Supreme Court where again the issue never arose.

In the de Burca case, five separate judgments had been delivered. In two of them, those of O’Higgins C.J. and Walsh J., the issue of the validity of trials which had already taken place by juries empanelled under the provisions of the Act of 1927 was at least aired. Presumably, it had been an in terrorem argument put forward by the State. Finlay P. at p. 331 of the report in The State (Byrne) v. Frawley cites the respective passages of O’Higgins C.J. and Walsh J. touching on this perceived problem. What O’Higgins C.J. said was as follows:

“If, then, the property qualification is not in accordance with Article 40, s. 1, and is not saved by any inference to be drawn from Article 38, s. 5, what is to be said of the thousands of criminal jury trials which have been held since the enactment of the Constitution and which have resulted in convictions? Were these trials invalid? I confess that this matter did cause me some concern during the hearing. I have come to the conclusion that, in so far as these trials were held before juries and each jury was fairly drawn from a panel, there could be no infringement of s. 5 of Article 38. The fact may have been that the panel was wrongly restricted, or could have been challenged. However, this does not alter the fact that the trial was a trial by jury and that 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. The 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.”

The citation from Walsh J. reads as follows:

“There remains the subject that was raised in the course of the submissions to this Court concerning the validity of all the verdicts and acts of juries empanelled and acting under the provisions of the Act of 1927. It was suggested that the verdicts of all such juries could be impugned because the juries were not empanelled in accordance with the law as I believe the law to be, in that persons who were not within the designated valuation figures and women were not empanelled as jurors because they were not called for jury service. The implications of this might be thought to be frightening; but whether they are frightening or not has nothing to do with the task of interpreting the Constitution which falls upon this Court. 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.

However, I think that these frightening prospects, which the Court has been invited to view, need not trouble us. 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. Therefore, no verdict was rendered by any jury composed wholly or in part of persons who were not entitled to be on the jury. The fact that persons who were entitled to be called for jury service were not called might well have been the ground for successful challenge to the way in which the jury panel was drawn up. It did not affect the lawfulness of the presence upon the panel of those who were by law and by the Constitution entitled to be on it. That being so, the acts and verdicts of these juries were those of juries composed of properly qualified jurors.”

It was urged on the Divisional Court by counsel for Mr. Byrne that those expressions of opinion by the Chief Justice and by Walsh J. were strictly obiter dicta and, of course, no view had been expressed by any of the other three judges. In the event, Finlay P., in his judgment, accepted the views of O’Higgins C.J. and Walsh J. and in the light of that held with the concurrence of the other members of the court that there had been a waiver of any right Mr. Byrne might have had and that such waiver would have been valid.

Before leaving that judgment and moving to the judgments of the Supreme Court on appeal, certain comments would seem apposite. Walsh J., rightly, if I may respectfully say so, rejects any idea that the court in interpreting a statutory provision and considering whether it is in conformity with the Constitution or not should have any regard to consequences. That does not mean, however, that in considering what are in fact the consequences of any declaration of either invalidity or inconsistency, the court may not have to fashion special rules relating to consequences especially when to use the words of O’Higgins C.J. “the overriding requirements of an ordered society” would dictate that this be done. That does not mean, as Walsh J. points out, that retrospective invalidity or inconsistency as found by the courts may not result in financial consequences to the State. Each situation may have somewhat different consequences. I am satisfied, however, that it would be wholly against good order if convictions and sentences which were deemed to be lawful at the time they were decided had to be reopened.

As was pointed out by counsel for Mr. Byrne in The State (Byrne) v. Frawley, the retrospectivity issue did not strictly arise. Without any intended disrespect to either the High Court or this court a patchwork solution to the problem of how to determine an application which was in reality without merits was available in that case. The importance of the case and its relevance to this case is in the observations made by judges in it and not in the actual decision itself.

The appeal to the Supreme Court produced judgments of considerable interest. It was unanimously held that the appeal should be dismissed. The majority of the court consisting of Henchy, Griffin and Parke JJ rejected the reasoning of the Divisional Court but held against Mr. Byrne on a narrower ground. The minority consisting of O’Higgins C.J. and Kenny J. more or less upheld the reasoning of the High Court.

The leading judgment for the majority was delivered by Henchy J. In strident terms, he rejected a view which he thought might have been implied in the judgment of the Divisional Court that even if the trial judge had personal knowledge of the de Burca case, he was not obliged to deal with the jury issue unless it was raised before him by counsel and he also strongly rejected the view that the empanelled jury could be considered a valid jury on the grounds that each of them was eligible to be a juror. Henchy J. came to the conclusion, however, that he should assume that the Circuit Court judge did not know about the de Burca case or at least did not know about it in any sufficient detail. He concluded, partly on the basis that the same counsel had been for the defence in each case, that a deliberate and informed decision was made to allow the trial to proceed before a jury in circumstances where the defence knew of the de Burca case. Henchy J. considered that Mr. Byrne was precluded by that election from claiming that the jury lacked constitutionality. In arriving at that view, his opinion was reinforced by the lack of complaint in the Court of Criminal Appeal. It was not until some five months after the trial that Mr. Byrne first complained that the jury had been formed unconstitutionally. This was impermissible in the view of Henchy J. and at p. 350 he observed as follows:

“Having knowingly elected not to claim that right, it would be contrary to the due administration of justice under the Constitution if he were to be allowed to raise that claim in the present proceedings when, by deliberate choice, it was left unasserted at the trial and subsequently in the Court of Criminal Appeal. What has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case.”

The succeeding words in the judgment are also important. They read:

“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.”

That last observation should be read in the light of an important passage in the judgment at p. 349. Henchy J. had been discussing a United States Supreme Court case of Taylor v. Louisiana (1975) 419 U.S. 522 where a particular jury system had likewise been condemned as unconstitutional. The passage in question reads as follows:

“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. So far as the present case is concerned, because of its particular circumstances it is not necessary to decide whether a person who was convicted by a jury recruited under the Act of 1927 and who did not raise the unconstitutionality of the jury, either at the trial or collaterally in the High Court before conviction, could have later successfully impugned his conviction on that ground. Whether he could have done so or not, it would seem that he would now be debarred from doing so. …”

The particular importance of that passage as far as this case is concerned lies in the reference to it not necessarily following that court orders lack binding force because they were made in proceedings based on an unconstitutional statute. As is by now clear that is firmly my view and I am convinced that good order requires it to be so.

It is highly relevant to consider also obiter dicta contained in the judgment of O’Higgins C.J. in The State (Byrne) v. Frawley. As I have already indicated, contrary to the majority view the former Chief Justice considered that the jury was, at any rate, properly constituted for the reasons which I have explained. But at p. 341 of the report, he had this to say:

“It seems to me proper to add that if the contrary be the case and, by reason of the wrongful exclusion of qualified persons from the panel, every jury then selected is to be regarded as unconstitutional and invalid, then certainly very serious consequences would follow. In the first place it would seem to me to follow with inexorable logic that each trial held with such a jury would have been a nullity and that sentences imposed and carried out, including sentences of death, would have been imposed and carried out without legal authority. In addition, even those who had won acquittals from such juries could find that they were still in jeopardy because their trial was regarded as a nullity. Could organised society accept such a conclusion? There being a supposed unconstitutionality in the trial jury itself, neither consent or lack of objection or passage of time could remedy the situation. As a further consequence, this would seem to mean that all those who have been convicted by such juries and are serving sentences would be entitled to orders similar to the order sought by the prosecutor in the present case. It does not seem to me that it could be urged as an answer to such proceedings that the person convicted had acquiesced in his trial by the jury selected. Acquiescence depends on knowledge; if the person convicted did not know of the suggested invalidity, he cannot be said to have acquiesced. In any event acquiescence cannot confer validity, just as consent cannot confer jurisdiction. I do not think it is necessary for me to examine further the implications of a proposition which I hold to be erroneous.”

Given that the former Chief Justice expressly agreed with the view of Walsh J. that consequences could not affect the issue of whether an enactment conformed with the Constitution or not, it would seem to me that the proposition which he considered to be erroneous must be the proposition that those consequences would in fact flow particularly having regard to the rhetorical question in the passage “could organised society accept such a conclusion?” I agree with Denham J. that “a court is required to differentiate between the declaration of unconstitutionality and retrospective application of such a decision”.

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

I have based my opinion in the main on Irish case and constitutional law. It is reinforced by the decisions of European and foreign courts referred to in the judgment of the Chief Justice.

These are the reasons why I favoured the appeal being allowed and supported the order made by the court.

Bita v Director of Public Prosecutions & Ors

[2020] IECA 69 (13 March 2020)

 

Page 1 ⇓PresidentMcCarthy J.Donnelly J.THE COURT OF APPEALNeutral Citation Number: [2020] IECA 69Record No: 2018/325BETWEEN/TEZAUR BITAAPPLICANT/APPELLANT- AND -THE DIRECTOR OF PUBLIC PROSECUTIONS,THE ATTORNEY GENERAL AND IRELANDRESPONDENTSJUDGMENT of Ms. Justice Donnelly delivered on the 13th day of March, 20201. This is an appeal of the High Court’s refusal to grant the applicant/appellant (“theappellant”) relief arising from his prosecution under s.5 of the Summary Jurisdiction(Ireland) Amendment Act, 1871 (hereinafter, “the 1871 Act”). Among the reliefs heclaimed was an order preventing his further prosecution on that charge and a declarationof unconstitutionality of the said s. 5 of the 1871 Act. The High Court (Ní Raifeartaigh J.)refused all relief sought in a judgment reported at Bita v. DPP [2018] IEHC 385.2. At the Old Nangor Road, Dublin at approximately 3:45am on the 27th August, 2015 theappellant exited his vehicle and urinated. After an exchange with a member of An GardaSíochána, the appellant was arrested under s.107 of the Road Traffic Act, 1961. Followinga search in custody, he was found to be in possession of a small amount of cocaine.3. The appellant was subsequently charged with an offence contrary to s. 3 of the Misuse ofDrugs Act, 1977 which is not relevant to these proceedings, and an offence contrary tos.5 of the 1871 Act. The particulars of the s. 5 charge were that he “committed an actcontrary to public decency to wit: urinating in public”. The appellant highlights thediscrepancy between the précis of evidence compiled by a member of An Garda Síochána,in which it is stated that he began to “urinate in bushes” and that same member’saffidavit in which he stated that the appellant urinated on the footpath.4. Section 5 of the 1871 Act provides:-“Any person who within the limits of the police district of Dublin Metropolis, in anythoroughfare or public place, shall wilfully and indecently expose his person orcommit any act contrary to public decency, shall be liable, on conviction before anyjustice or justices sitting in any court within the police district of Dublin Metropolis,Page 2 ⇓a fine not exceeding five pounds, or, at the discretion of such justice or justices, tobe imprisoned for any period not exceeding two calendar months.”5. The appellant sought leave to apply for judicial review, seeking a prohibition of his trial onthe grounds that s.5 of the 1871 Act was unconstitutional. Leave was refused by orderdated the 1st February, 2016 by Humphreys J., primarily on locus standi grounds andprematurity.6. The appellant appealed that refusal to the Court of Appeal. The appeal was adjourned toallow for the lodging of a note authenticated by Humphreys J. who provided a writtenjudgment outlining his reasons for refusing leave cited as Bita v. DPP [2016] IEHC 288.7. On the 25th October, 2016, the Court of Appeal, delivering an ex tempore judgmentallowed the appeal and granted leave. The matter then came on for substantive hearingin the High Court before Ní Raifeartaigh J.The Judgment of the High Court8. The first issue was a procedural one as to whether the appellant had locus standi to bringthe proceedings by way of judicial review. The trial judge in holding that the appellant hadlocus standi to bring the proceedings, stated that the appellant’s case was not based onhypothetical scenarios but rather, on the basis of the facts before the court, his argumentwas that the offence was so vague that the appellant could not have known in advancethat his actions fell within the remit of the s.5 offence. She did remark that there was adisproportionality in bringing judicial review proceedings to achieve a result which mightbe achieved more speedily and at much less expense in the District Court.9. The substantive issue before the High Court was whether s.5 of the 1871 Act isinconsistent with the Constitution by reason of being excessively vague. In consideringthat question, the trial judge found that the core issue before her was whether there is anessential difference between the term “indecent” as it appears in indictable offences ofthis nature and the phrase “contrary to public decency” as it appears in the s.5 offence.The trial judge held that in effect these were the same concepts of decency or indecencyin other criminal offences, the constitutionality of which, has been upheld in Douglas v.DPP (No.2) [2017] IEHC 248 and PP v. Judges of the Circuit Court [2017] IECA 82. Thetrial judge held that she could not see a difference of substance between “indecent” and“contrary to decency”. Moreover, the inclusion of the word “public” within the phrase“contrary to public decency” did not make any difference. The trial judge stated, that theword “indecent” in offences such as indecent assault is interpreted to mean indecent bythe standards of an ordinary or reasonable member of the public. She emphasised thatthis is intended to import an objective standard into the offence. Accordingly, the HighCourt refused the reliefs sought by the appellant and held that s.5 of the 1871 Act wasnot repugnant to the Constitution.Grounds of Appeal10. The appellant lodged five grounds of appeal, however it was clear from the oralsubmissions, that the issue before this Court is whether “contrary to public decency” isunconstitutional by reason of being too vague and within that framework, whetherPage 3 ⇓decency in and of itself is merely the converse to indecency, a well-defined term withinthe legal field. Although the finding that the appellant had locus standi was not cross-appealed, the respondent maintained in submissions that the appellant must advance hisappeal on the basis of his own factual circumstances and may not seek to impugn theprovision by reference to the alleged effect on other third parties. The respondentsubmitted that by virtue of the jus tertii rule, a plaintiff cannot seek a general review ofthe legislation under attack but may only rely upon such arguments as bear on his ownpersonal circumstances.The Appeal11. In putting forward the argument that s.5 of the 1871 Act is unconstitutional for being toovague, the appellant referred to general principles that criminal law must be certain andspecific; the difference between indecency and contrary to public decency; and that theoffence is one in which updated judicial interpretation could not prevent its arbitraryapplication. I will briefly summarise each of the appellant’s arguments in turn while alsosynopsising the respondent’s position in relation to same.Criminal Law must be Certain and Specific12. The appellant opened well known caselaw which reiterated the fundamental doctrine thatthe criminal law must be certain and specific. In the case of King v. Attorney General[1981] I.R. 233, the Supreme Court held that s.4 of the Vagrancy Act, 1824 was struckdown as being inconsistent with the Constitution. The appellant relied on the quote ofKenny J. in which he stated:-“[C]itizens may be convicted only of offences which have been specified withprecision by judges who made the common law, or of offences which created bystatute, are expressed without ambiguity.”13. This principle was also expressed by Hardiman J. in The People v. Cagney [2008] 2 I.R.111 where he stated that “a citizen should know or at least be able to find out, with someconsiderable measure of certainty, what precisely is prohibited and what is lawful”. Theappellant submitted to the Court that any act contrary to public decency cannot beprecisely defined as it is inherently subjective.14. The respondent, while agreeing with the general principle that criminal offences must bespecified with precision, referred to Douglas v. DPP (No.2) and PP v. Judges of the CircuitCourt to support the view that that there are a range of offences that do not lendthemselves to absolute precision but which are still sufficiency precise to beconstitutional. The respondent relied on Hogan J. in Douglas v. DPP in which he stated atpara. 26 of his judgment:-“absolute precision is not possible. One may therefore have perfectly general lawswhich can be adapted to new sets of facts within certain defined parametersprovided that the laws themselves articulate clear and objective standards.”Page 4 ⇓15. The respondent relied on ECHR jurisprudence to show that while an offence must beclearly defined, absolute certainty is unattainable. The respondent opened Aydin v.Germany (2013) 57 EHRR 35 in which the Court stated:-“Those consequences need not be foreseeable with absolute certainty: experienceshows this to be unattainable. Whilst certainty is highly desirable, it may entailexcessive rigidity and the law must be able to keep pace with changingcircumstances. Accordingly, many laws are inevitably couched in terms which to agreater or lesser extent are vague and whose interpretation and application are aquestion of practice.”16. The respondent submitted that this principle was also invoked by McDermott J. in Douglasv. DPP (No.2) in which he stated:-“There are however, as is clear from numerous authorities, including most recently,PP […], many offences which may be committed in widely differing ways. These donot lend themselves to very precise definition which might, if insisted upon,preclude the criminalisation of obnoxious public behaviour to an extent that wouldbring the criminal law into disrepute with the community for whom its protectionexists.”[…]“one of those instances when it becomes necessary because of the wide-rangingnature of human behaviour to define an offence which a lesser degree of certaintythan might be appropriate in other types of behaviour but that does not necessarilygive rise to constitutional infirmity[.…]“[M]athematical certainty is not either required or possible in respect of framing theoffence. As is clear from much of the case law, the core concept of indecency is onewhich is well understood but it is not possible to define every conceivable act oromission that is prohibited by the offence.”17. The respondent also relied on the English case of Knuller (Publishing, Printing andPromotions) Ltd. v. DPP [1973] A.C. 435 to show that there is a recognition within the lawthat sufficient warning as to future conduct is not equivalent to the manner of committingan offence being expressly proscribed.Contrary to Public Decency, a sufficiently flexible law or too vague to beconstitutional?18. After outlining the current jurisprudence surrounding the dichotomy between vagueoffences and offences which are sufficiently flexible to encompass changing social mores,counsel on both sides entered into discussion as to the category into which s.5 of the1871 Act fell.Page 5 ⇓19. The appellant submitted that “any act contrary to public decency” refers to any conductthat might be considered as immoral, improper or unacceptable in some way. Counselargued that it is incorrect to equate “contrary to public decency”, with indecent acts. Inour present law, decency is not sufficiently defined. When one reviews offences related toindecency, it is used in the form of an adjective: “indecent assault” and “indecentexposure”. However, if it was indecency simpliciter, that would be too vague to constitutea valid offence. The s.5 offence merely states that the “act” must be contrary to publicdecency. It is open to the prosecution to allege that any act is contrary to public decency.The appellant took spitting as an example, while they are not connoted with assault, theyare actions which can be subjective as to whether they are antisocial.20. Counsel referred to recent legislation which they submit, is more specific as to what isconstituted as unacceptable conduct. Section 45(3) of the Criminal Law (Sexual Offences)Act, 2017 which “[a] person who intentionally engages in offensive conduct of a sexualnature is guilty of an offence”. “Conduct of a sexual nature” is defined within the act andthere is also a definition for a “public place”. Counsel stated that this is the level ofspecificity that modern legislation has in contrast to the 1871 Act and that even with thequalification that the act must be “public”, this still does not cure it from being too vague.21. The appellant relied on Douglas v. DPP [2014] 1 I.R. 510 and McInerney v. DPP [2014] 1I.R. 536 which held the offences outlined in s.18 of the Criminal Law Amendment Act,1935, namely an act which is “deemed to cause scandal or injure the morals of thecommunity” and “to offend modesty” were unconstitutional for being impermissiblyvague. The appellant submitted that these s.18 offences and the offence at issue in thepresent case include conduct which is part of the same stable if not in factinterchangeable. They are both statutory embodiments of the common law offences bywhich generally objectionable conduct was a misdemeanour at common law. The twosections criminalise the same conduct. The conduct in question is immoral conduct. If onewere to go back to the date of enactments, the words quoted above were interchangeablewith “contrary to public decency” as it was in 1871. These were all general phrases whichwere to capture immorality, such as indecent exhibitions and indecent exposure.22. The respondent submitted that Douglas v. DPP and McInerney v. DPP can bedistinguished in so far as the present case should not be grouped with offences whichrelate to “offending modesty”, “injuring the morals of the community” or indeed “causingscandal”. Rather, it is submitted that committing an act contrary to public decency is insubstance the same or similar to indecency offences considered in PP v. Judges of theCircuit Court and Douglas v. DPP (No.2). PP v. Judges of the Circuit Court centred aroundthe offence of “gross indecency”, the respondent submitted that despite the desire forcertainty in criminal statutes, absolute precision is not necessary in so far as it ispermissible to have general laws that can be adapted to meet changing circumstances:-“the inherent problems of formulating a precise and comprehensive definition ofgross indecency, taking into account changes in social attitudes and the multiplicityPage 6 ⇓of situations of potential relevance that could arise are such that it was notincumbent upon the legislature to devise such a definition.”The respondent submitted that this was endorsed by the trial judge who stated that it wasimportant to maintain appropriate flexibility to encompass the variety of factual situationsthat may arise.Interpreting “decency”23. The appellant submitted, that the fundamental principle of statutory interpretation is thatwords should be given their ordinary meaning and in the proper context. In doing this,the appellant relied on the approach taken in Commissioners of Public Works v. Howard[1994] 1 I.R. 101 in which the intention of the Oireachtas, or in this case, the UKparliament in 1871, should also be discerned through the words used in the Act itself.However, the appellant submitted that the words used in any given provision are indeedthe first consideration and if its ordinary meaning is unambiguous, then that is themeaning that should be given to the provision.24. The appellant relied on the MacMillan online dictionary definition of “decency” which is“behaviour that is moral good or reasonable” and Collins dictionary definition of decencyaccords it with “the quality of following accepted moral standards”. Indecency, theappellant submitted, has a similar meaning but it is behaviour which is more aligned witha sexual nature.25. The appellant submitted that the literal grammatical interpretation of “contrary to publicdecency” is one in which a general offence against morality, is consistent with the historiccontext in which it was enacted. The appellant, in making this submission, refers tocaselaw from the late 1800’s to early 1900’s to show that “public decency” as understoodin 1871 was a vague and general concept which empowered police constables of the dayto control a variety of generally disapproved behaviour. The appellant states that s.5 ofthe 1871 Act is similar to s.18 of the Criminal Law Amendment Act, 1935 in so far asO’Malley, Sexual Offences; 2nd Edn., (2013, Round Hall) refers to the s.18 offence as onein which:-“The clear intention behind the section was to create an omnibus indecency offence,triable summarily and applicable throughout the State, while some more antiquatedstatutory provisions to the same effect often applied to certain localities only.”26. The respondent utilised a different method of evaluating “indecency” and “contrary topublic decency”. It was submitted that the offence of committing an act contrary to publicdecency does not give rise to difficulties of interpretation any more than the concept ofindecent assault. Counsel for the respondent drew attention to the migration of indecentassault to “sexual assault” but that the requirement on the prosecution to prove anelement of indecency still remains. It is submitted by the respondent that this element ofindecency has never been put on a statutory footing; rather, it is the jury that enters intoan assessment of whether the assault was “indecent” by contemporary standards.Page 7 ⇓27. The respondent relayed the more recent offences which include “indecency” therebyseeking to submit that the purpose of the legislature not seeking to specify with precisionthe exact behaviour which may result in criminal liability is to allow for changing socialconditions and allowing legislation to adapt. The respondent used s.13 of the Post Office(Amendment) Act, 1951 (as substituted by the Communications Regulation (Amendment)Act, 2007) and s.55 of the Communications Regulation (Postal Services) Act, 2011. Therespondent argued that these offences nevertheless give warning to any reasonableperson that certain conduct will be prohibited.28. The respondent relied on s.6 of the Interpretation Act, 2005 which states that:-“in construing a provision of any Act[…]a court may make allowances for anychanges in the law, social conditions, technology, the meaning of words used inthat Act […] and other relevant matters which have occurred since the date of thepassing of that Act […] but only in so far as its text, purpose and context permit.”The respondent submitted that this applies to the present case. Certain expression,namely “indecent”, “just” and “reasonable” are examples which refer to standards thatevolve with time.Discussion of PP v. Judges of the Circuit Court and Douglas v. DPP (No.2)29. The appellant submitted that there is an element of “hard cases make bad law” uponreview of these decisions. Both of these cases involved complainants who were minors. InPP v. Judges of the Circuit Court, the accused was charged with seven counts of “grossindecency” contrary to s.11 of the Criminal Law Amendment Act, 1885. The accused wascharged with engaging in sexual activity with one of his pupils and was seeking to invokethe rights of consensual adult male homosexuals which he could never have invoked onhis own behalf. Douglas v. DPP (No.2) concerned an applicant who was charged withcommitting an act to wit “masturbated in such a way as to offend modesty or causescandal or injure the morals of the community” under s.18 of the Criminal LawAmendment Act, 1935 as amended by s.18 of the Criminal Law (Rape) Amendment Act,1990. The accused was subsequently charged under a different provision for the sameoffence, which was quashed; that being the commission of an act “outraging publicdecency”. McDermott J. stated that the offence of outraging public decency did not existin Irish Law.30. The appellant submitted that it was necessary to refer to Douglas v. DPP (No.2) and PP v.Judges of the Circuit Court as the former case suggested s.5 of the 1871 Act should berevisited, but more importantly, the appellant opened these cases to distinguish them tothe present case. In both of these cases, the acts complained of were obviously criminalin nature. The conduct was so wrong, so even if the law was vague, the accused wasdoing something offensive, and indeed he did not have locus standi as the complainantwas not a consenting adult.31. Secondly, the appellant argued that while the constitutionality of the offences whichinvolved indecency or indecent acts were upheld in the above cases, the findings of thePage 8 ⇓court were obiter dicta. The trial judge in Douglas (No.2) was aware that he was notdealing with a marginal case. The case was on the facts largely criminal in nature. Thirdly,the appellant submitted that the offence of “gross indecency”, the offence of which theappellant in PP v. Judges of the Circuit Court was charged with, has a different root in thecommon law to indecency, in that the former is concerned with sodomy and other actsdeemed unnatural at the time of the enactment of the Criminal Law Amendment Act,1885. The appellant argued that the ordinary meaning of grossly indecent conduct is oflittle relevance to the matter before this Court.32. The appellant submitted that the judgment in Douglas (No.2) did not tackle the issue ofwhether indecency was a synonym for immorality or displays of immoral acts or exhibits,as the facts of the case did not call for such a discussion.33. In relation to the appellant’s argument that the finding of the court in relation to theoffences in Douglas and PP v. Judges of the Circuit Court were obiter, the respondentstated that in PP v. Judges of the Circuit Court, the High Court expressly decided thematter on the merits of the claim concerning vagueness and while the court on appealfirst addressed the standing of the accused, the Court went on to endorse the view of thetrial judge on the substantive issue.Section 5 and its Purported Conferral of an Arbitrary Power of Arrest on Gardaí34. The appellant referred to Hogan J. in Douglas v. DPP who reiterated O’Donnell J. inMcGowan v. Labour Court [2013] IESC 23 in relation to the importance of the principlesand policies doctrine:-“A vague law ‘impermissibly delegates basic policy matters to policemen, judge andjuries for resolution on an ad hoc and subjective basis, with the attendant dangersof arbitrary and discriminatory application”.35. The appellant argued that the second limb of the 1871 Act does in fact confer an arbitrarypower of arrest on gardaí.36. The respondent submitted that the appellant cannot advance this issue on appeal as theappellant lacks the necessary locus standi to put forward his argument. The respondentreferred to the jus tertii rule which states that a plaintiff cannot seek a general review ofthe legislation which is under attack, but can only rely on arguments which bear on hisown personal circumstances as per T.D. v. Minister for Education [2001] 4 IR 259 at282; A v. Governor of Arbour Hill Prison [2006] 4 IR 88.37. The respondent stated that the appellant was not in fact arrested in relation to the s.5offence but was arrested under s.107 of the Road Traffic Act, 1961. He therefore cannotmake the argument that the impugned section confers an “arbitrary power of arrest” asaverred. Indeed, the respondent went further and submitted that s.5 does not confer apower of arrest at all.Survival of s.5 of the 1871 Act Through Updated Judicial Interpretation?Page 9 ⇓38. The appellant relied on Keane v. An Bord Pleanála & Ors [1997] 1 I.R. 184 to show thatthe courts can apply old legislation to modern developments where the wording used inthe statute is wide enough to encompass it. However, the courts may not alter themeaning of the words used in legislation. The appellant used this case to argue that onecannot simply state how the words “contrary to public decency” might reasonably beunderstood to mean as this is not statutory interpretation. What the court is bound to dois interpret what the legislature intended them to mean.39. The appellant submitted that judges are slow to change the meaning of common lawoffences, let alone statutory offences, which owe their existence and meaning entirelyfrom statute. Therefore, the appellant submitted, vagueness cannot be cured byinterpretation of the Court. This would substitute the prevailing standard of morality. Itwas posed by counsel that this was a standard which was not envisaged at the time the1871 Act was enacted and therefore, what the courts would be engaged in would not bean exercise of judicial interpretation, but rather, re-interpretation.40. The respondent submitted however, that it is a common practice of statutoryinterpretation and it is within the remit of the court to interpret the s.5 provision and theinterpreter is not locked into interpreting it in the manner in which it would have beenconstrued in 1871.Discussion41. I acknowledge at the outset of this discussion the considerable help and assistance thatthe court received from the written and oral submissions of both parties to this appeal.They were of the highest standard and have been fully considered in the context ofwriting this judgment.Locus Standi42. The issue of locus standi was conceded in the appeal by the respondent. However, therespondent maintained the position with respect to the jus tertii rule; that the appellantcould not seek a general review of s. 5 but may only rely on such arguments as bear onhis own personal circumstances. The trial judge had referred in her decision to his factualsituation i.e. that “he has been charged with the offence and says, on the basis of thefacts (urination on a public footpath, whatever the precise location), that the offence wasso vague that he could not have known in advance that what he did fell within thisoffence.” The trial judge referred to the fact that part of the argument and submissioninvolved hypothetical scenarios but said that the core of the submission, as sheunderstood it was based on his own factual circumstances. Against that determinationneither the appellant nor the respondent expressly appealed.43. The Supreme Court, by a majority of 3 to 2 decided in PP v. The Judges of Dublin CircuitCourt [2019] IESC 26 that the plaintiff, who challenged the constitutionality of s.11 of theCriminal Law Amendment Act, 1885, was not entitled by virtue of the law of jus tertii, toargue the invalidity of the section by reference to the fact that this section was capable ofapplying to consensual adult male activity in private. Thus, the Supreme Court held thatwhile he had locus standi to challenge the compatibility of the section with thePage 10 ⇓Constitution, he only had such locus standi as related to his own personal circumstances.In the view of the majority of the Supreme Court (see the judgment of O’Donnell J.), thatwas a consequence of the application of the rule in the case of Cahill v. Sutton [1980] I.R.269.44. In light of the decision of the Supreme Court in PP v The Judges of Dublin Circuit Court,this Court must approach this appeal from the perspective of the applicant’s personalcircumstances. It is noteworthy that the plaintiff in PP v. The Judges of Dublin CircuitCourt had also pursued his claim in part of the grounds of vagueness. Indeed, O’DonnellJ. notes in his judgment that the specific issues before the Supreme Court had beenstructured so as to invite the court, inter alia, to find that “the appellant has locus standinot just generally, but specifically to challenge the section on the basis that it criminalises(private) consensual activity and represents the enforcement of morals alone”. That claimto locus standi was rejected.45. In those circumstances, the arguments that the appellant made in the present appealconcerning issues such as whether breastfeeding in public, spitting, removing one’s shirt,amorously embracing and displaying risqué tattoos would be covered by the section arenot relevant to this Court’s consideration as to whether s.5 is so vague or so uncertainthat he could not have known, even with the benefit of legal advice, that urinating in themanner in which it is alleged that he did was an offence contrary to the section. We mustdecide this case on the basis of his circumstances. It is also necessary to refer to theappellant’s claim that the section is arbitrary as it confers too great a power on a Memberof An Garda Síochána in circumstances where there is no standard by which they can becalled to account in choosing to arrest and charge for these purposes. The appellant wasnot arrested for this offence but for failing to respond to the request for identification. Inany event, the appellant has not identified any power of arrest for an offence under thissection and I am satisfied that it is not appropriate to consider this as an aspect of hisclaim that the offence is inconsistent with the Constitution.The Requirement of Certainty in Criminal Law46. There is no disagreement that King v. The Attorney General establishes the principle thata trial in respect of an offence of which the ingredients are vague and certain is not a trialin accordance with Article 38.1 of the Constitution. No issue has been taken with, norcould an issue be taken with, the dictum of Kenny J. set out above. Criminal law must becertain and specific. The dictum of Hardiman J. in the People (DPP) v. Cagney neatlyencapsulates the law: “from a legal and constitutional point of view it is a fundamentalvalue that a citizen should know, or at least be able to find out, with some considerablemeasure of certainty, what precisely is prohibited and what is lawful.”47. To the above, there must be added greater elaboration. Such elaboration was neatlycaptured by Hogan J. in Douglas v. DPP when he said “it must be here acknowledged,however, that in a common law system such as ours, absolute precision is not possible.One may therefore have perfectly general laws which can be adapted to new sets of factswithin certain defined parameters, provided that the laws themselves articulate clear andobjective standards.”Page 11 ⇓48. The trial judge, in that paragraph of her judgment where she quotes more fully from theabove passage by Hogan J., captured the position succinctly when she stated:-“it is clear from the authorities in the area, many of which were cited to me andwhich include the above, and indeed certain American and European Court ofHuman Rights authorities which sometimes features in the Irish judgments referredto, that there is a distinction between (1) an offence the ingredients of which areexpressed in excessively vague language (which is constitutionally impermissible)and (2) an offence the ingredients of which are expressed in general terms in orderto maintain appropriate flexibility to encompass the variety of factual situationswhich may arise but are nonetheless considered sufficiently clear notwithstandingthe general language used (which is constitutionally permissible).”49. The appellant, correctly in my view, did not take issue with that statement of the law bythe trial judge. The issue in the present case is whether, when looked at from the factualcircumstances of the appellant’s case, this is an offence which falls into the category (1)or (2) above. As the trial judge acknowledged, “many criminal offences are expressed insuch precise terms as to leave no room for argument, so are closer to the dividing linebetween the permissible and the impermissible and the line can sometimes be a fineone.”The meaning of “contrary to public decency”50. The central theme running through the appellant’s submissions in this appeal was that thelegal and historical meaning of “contrary to public decency” was inextricably linked to theconcept of immorality. From that point of view, the appellant submitted that this offencewas impermissibly vague for the same reasons as Hogan J. had found that the offences ofcausing scandal, injuring the morals of the community or offending modesty to be“hopelessly and irredeemably vague” and lacking “any clear principles and policies inrelation to the scope of what conduct is prohibited and they intrinsically lend themselvesto arbitrary and inconsistent application.” (see Douglas v. DPP above and SS).51. Subsequent to the Douglas and McInerney decisions, there were three unsuccessfulconstitutional challenges based on the vagueness doctrine. In Cox v. DPP [2015] I.R. 601,at issue was a charge of “wilfully, openly and lewdly exposing his person with intent toinsult a female” contrary to section 4 of the Vagrancy Act 1824. McDermott J. wassatisfied that the use of the word “person” carried sufficient clarity and precision toconvey that the exposure by the applicant of his penis in a public place in thecircumstances and with the intention set out in this section rendered him liable to criminalsanction. With reference to the words “lewdly and obscenely” he said they aptly andclearly qualified circumstances which attract criminal liability.52. I have referred to the decision in PP above. Although the Court of Appeal and theSupreme Court decided the case on the issue of locus standi, the Court of Appeal(Birmingham J.) made the following comments on the substance of the arguments:Page 12 ⇓“42. The nature of the conduct alleged does not provide scope for significantdisagreement as to what is indecent. Right-thinking people generally are unlikely tohave any real doubt but that the alleged conduct, if it occurred, was grosslyindecent. If the trial proceeds, the jury is unlikely to be troubled greatly by whetherthe acts alleged amounted to gross indecency, rather the issue is likely to bewhether the prosecution has proved beyond reasonable doubt that the facts allegedactually occurred.43. While it may be possible to conceive of borderline or marginal cases, and suchcases can safely be left to the good sense of juries if prosecuted, in the greatmajority of cases jurors have no difficulty in determining what is grossly indecent.44. Thus, I find myself in agreement with the trial judge that the offence of grossindecency does not fall foul of the requirement for legal certainty contemplated bythe Constitution and by the Convention.”53. The final case in this trio is that of Douglas (No. 2) v. DPP in which McDermott J. held thatthe offence of outraging public decency was not an offence at common law in Ireland.Instead he held that an offence of committing an indecent act in public was an offence.He went on to hold that the ingredients of that offence were not impermissibly vague.McDermott J. stated that the alleged acts of facing a nine year old girl in a public placewhile placing his hand into his trousers and masturbating his penis, fell within the conceptof lewd, disgusting and obscene conduct that was the indecent act or actus reus of theoffence. The respondents rely heavily upon this case, following the decision of the trialjudge. The appellant distinguishes the case on the basis that it did not tackle the natureof indecency as known to the common law and whether the scope of the offence wasvague and uncertain and in particular that even if the common law offence could haveevolved to change the meaning of indecent through judicial decision, the statutory offencehad not and could not.54. The appellant’s contention that s. 5 of the 1871 Act is the statutory embodiment ofcommon law nuisance offences by which generally objectionable in the sense of beingimmoral conduct was criminalised is the starting point for his submissions. In effect, theappellant submits, offences contrary to public decency are from the same stable ofoffences as causing scandal, injuring the morals of the community or offending modesty.As referred to above and more fully set out in his written submissions, the appellant reliedupon the legal commentary of the various authors of textbooks to that effect.55. The appellant places significant reliance on the claim that unless a narrow meaning of“decency” was intended by the UK Parliament in 1871 and that such meaning can befound from reading the Act as a whole, it must be given its ordinary meaning, to wit, thatwhich is moral, good or reasonable, accords with accepted moral standards or isotherwise good, moral and acceptable in society. It is in those circumstances that hecontends that the section is impermissibly vague for the reasons set out by Hogan J. inthe Douglas and McInerney cases.Page 13 ⇓56. It is important to make some preliminary observations. Insofar as it might be consideredthat there is a difficulty with legislating in respect of issues of morality per se, it must beacknowledged that there is a relationship between law and morality. The criminal law, inparticular, is often based upon the moral principles of a society. Naturally, not all actsthat a large portion or even a majority of the community may view as immoral, will bedesignated criminal offences. Those acts that are designated criminal offences generallyreflect the opprobrium of society at large in relation to those acts. Acts are usually notcriminalised simply because of a desire to regulate the conduct of individuals; insteadthey are criminalised to protect individuals (including the perpetrator) and the communityfrom harm. Legislation for immoral acts may create constitutional difficulties when viewedin the balance with other constitutional rights of an individual but that is not the concernin this case. The appellant makes no claim that he has a constitutional right to urinate inpublic. His claim is that legislating for this type of immorality in this fashion, isconstitutionally unacceptable because the terms of the criminal offence are so vague as tomake it intrinsically uncertain as to what acts are in fact prohibited.57. Regardless, therefore, of whether s.18 of the Criminal Law Amendment Act, 1935 and s.5of the 1871 Act came from the same stable of offences which sought to criminalise certainacts which were viewed as immoral, the question is whether the terms of the latterstatutory offence crosses the dividing line of what is permissible and what is not. InDouglas v. DPP and McInerney v. DPP, when dealing with the offences under s.18, HoganJ. held that the offences were impermissibly vague. A comparison of the language in s.18,namely offending modesty, causing scandal or injuring the morals of the community, withthat of s.5 of the 1871 Act, namely an act contrary to public decency can be made. Thes.18 offences are worded in an inherently broad fashion, expressly referencing morality,scandal and modesty. On the other hand, the offence of committing an act contrary topublic decency appears to permit more easily an interpretation that is restrictive; byreference to the well-established legal concept of indecency. It is noteworthy, but perhapsnot legally significant, that the legislature in 1935 chose not to extend the 1871 Act to thecountry as a whole. Instead, it chose to legislate nationwide, by creating offences whichwere worded very differently from each other.58. The appellant places significant reliance upon the claim that s.5 may not be subject tojudicial interpretations so as to alter the meaning of the words used in the legislation. Inthis sense, he submits that “contrary to public decency” meaning conduct broadlydescribed as immoral, cannot be amended to a more contemporary legal understanding ofthe words “indecent act”.59. I do not accept the accuracy of the submission that a court in interpreting s.5 is lockedinto an interpretation that is fixed in 1871. The provisions of the Interpretation Act, 2005recognise that circumstances change over time and the laws need to be construed in lightof evolving circumstances. Even without the 2005 provisions, concepts or standardsreferred to in legislative provisions e.g. “just” or “reasonable”, have frequently beenrefined by courts in light of evolving standards. Whether at common law or by statutelaw, a concept such as indecency may evolve to incorporate contemporaryPage 14 ⇓understandings. That does not make the offence uncertain but it is a recognition that “thelaw must be able to keep pace with changing circumstances” as set out by the EuropeanCourt of Human Rights in Aydin v Germany.60. In his submissions, the appellant asserts that “a man, even with the benefit of the finestlegal advice, would no more know that urinating at the side of the road is captured by thesection than a woman contemplating breastfeeding in public. For many, neither act wouldbe considered to be an act contrary to public decency (assuming they and their legaladvisers had managed to break down the words of the second limb and decide theirprobable meaning) whereas for others, perhaps fewer in 2017 in the case ofbreastfeeding, it may well remain contrary to public decency.” To equate urinating inpublic view with breastfeeding in public appears an extraordinary comparison. I will notsay any more in relation to this, because it is not an act upon which the appellant can relyto advance his case. In accordance with the decision in PP, it is his own act of urinating ina public place and in public view that is at issue.61. I observe also that when the appellant refers to urinating in public, he insists that therespondent’s position is that all public urination is caught by the section. That is incorrect,it was not put in that fashion by the respondents in their High Court (and Court of Appeal)submissions. It was also a position rejected by both Humpheys J. or Ní Raifeartaigh J. intheir respective judgments in the High Court, the latter judge making reference to therespondent’s submissions. At issue is public urination carried out in a manner which isobjectively indecent by an ordinary or reasonable member of the public.62. The appellant submits that such an act of public urination would have been vieweddifferently in 1871. He submits that there is no evidence of Victorian prosecutions ofpersons for dismounting from carriages and relieving themselves on the side of thehighway. He submits that this is evidence as to the uncertainty of its scope: “theuncertainty of the boundaries of the offence render it unconstitutional; it fails the test ofvagueness.”63. In the summary to his written submissions, the appellant concludes “The mere fact thatthe respondents persist in arguing that the section covers the conduct in question in thiscase, urinating in a public place without any additional element, is evidence in and ofitself of the ambiguity that exists in this very old and it is submitted outdated offence. Butfundamentally, the offence as properly understood, is one that captures any conduct thatmight be considered immoral or unacceptable behaviour: it is the same offence insubstance as was struck down in Douglas (No.1) and McInerney and for like reasonsshould also be found inconsistent with the Constitution in this case.” As I have pointed outthis was a misunderstanding of the respondents’ position. More fundamentally, thisillustrates what I view as the main problem with the case advanced by the appellant. Hiscase is premised on a consideration of the margins: how can one know the extent of theconduct covered by this offence? That is not the test we are faced with, we are faced witha consideration of whether the offence captures with certainty and precision the type ofconduct alleged against him.Page 15 ⇓64. As I understand his submissions, the appellant is not arguing that the concept of“indecency” is so vague as to fall on the wrong side of the line of what is acceptable tosatisfy the constitutional test of certainty within the criminal law. Even if he was soarguing, I am entirely satisfied that “indecency” is a concept that is well recognised byIrish criminal law and has already been recognised as falling on the right side of thegenerality/vagueness divide as the trial judge held. As stated by the Court of Appeal in PP“…the concept of indecency is one that is long familiar to the criminal law. The standardcharge delivered by judges to juries every day of the week tells them that the offence ofsexual assault was previously known as indecent assault, and defined as an assaultaccompanied by circumstances of indecency, the determination of indecency being amatter for them as jurors.” The standard of indecency is that of an ordinary or reasonablemember of the public i.e. an objective standard.65. This is an important consideration because, even if the word decency is, as the appellantargues, considerably wider than the word indecent, this does not avail him. His mainargument is that the phrase contrary to public decency is not confined to indecent actsbut extends to whatever conduct of whatever nature might be considered to be immoralor improper or simply unacceptable. Yet, if his own conduct comes within the concept of“indecent” or at least is sufficiently arguable so that the trier of fact may be permitted toadjudicate upon it, that is the end of his challenge to the constitutionality of the section.He simply cannot argue that because there is uncertainty as to where the boundary liesso that other acts may be caught the offence is inconsistent with the Constitution.66. The appellant appears to view the word “indecent” as inherently involving a sexual or atleast “sexualised” component. In my view the concept, although incorporating thoseaspects, is a wider one. I agree with the views expressed by McDermott J. in Douglas (No.2) after his extensive review of relevant case law as follows:“Indecency as the constituent element of a criminal offence is a concept well-knownin the faming of criminal offences. Indecent assault, indecent exposure, offences ofgross indecency and others have produced an extensive body of case law. The word“indecent” defined the nature of the act committed. A number of synonyms havebeen employed to define its meaning in the criminal law and in sample indictmentsproduced in various textbooks as already seen. The charge of outraging publicdecency, in this case reproduces some of those terms in that the applicant wascharged with committing an ‘act of a lewd, obscene and disgusting nature andoutraging public decency’ by behaving in the manner described. According to theShorter Oxford English dictionary (2002) (2nd Ed.) ‘Indecent’ means ‘obscene,lewd, licentious, immodest, vulgar, offensive to acceptable standards of decency,suggesting tending towards obscenity’; ‘lewd’ means ‘lascivious, unchaste,indecent, obscene’; ‘obscene’ means ‘highly offensive, morally repugnant,repulsive, foul, lonesome’: ‘outrage’ means ‘aroused fierce anger or indignation ordeeply offend’. There is very little discernible difference in the nature of the conductdescribed these words; their meaning is plain.”Page 16 ⇓67. McDermott J., who had considered in the course of his judgment the cases of Douglas v.DPP and McInerney v. DPP and the textbooks equating those offences with the offences ofoutraging public decency, public exposure etc., went on to hold that he was “satisfied thatthe offence of committing an act of public indecency does not fail the test of legalcertainty because of difficulties surrounding its definition. Its parameters are sufficientlyprecise: the concept of indecency is well known and it will be for a jury to determinewhether the acts alleged were indecent”.68. Hogan J. had suggested that a relevant consideration in the analysis of vagueness waswhether the offence would be tried by a jury. The trial judge, queried, correctly in myview, whether that can be right in the situation of an assessment of indecency as forexample an indecent assault may be tried summarily in certain circumstances. In thosecircumstances a Judge of the District Court will have to determine if the assault wascommitted in circumstances of indecency.69. The appellant has sought to argue that the criminal law only applied the term “indecent”to an otherwise criminal offence. I do not consider that to be correct. While clearly anindecent assault is linked to the concept of the criminal offence of assault that is not so inthe context of other offences. The offence of “gross indecency” is a prime example. Theact itself was criminalised because it was found to be “grossly indecent”. Other legislativeoffences such as s. 13 of the Post Office (Amendment) Act, 1951 (as substituted by theCommunications Regulation (Amendment) Act, 2007 criminalise telephonecommunications which are, indecent. In that situation, the main focus is on whether thecommunication is indecent and thereby a criminal offence. There is nothing unclear oruncertain about such a consideration, it is the same consideration that has been given asto whether the criminal assault reaches the further requirement of being indecent so as toamount to an indecent assault (now named sexual assault).70. The appellant is not being tried simply because he urinated in public. He is being triedbecause of the circumstances in which that public urination occurred and in circumstanceswhere the respondents have expressly contended that it is indecent. Importantly, theDPP, who is prosecuting the offence, accepts that the core of the offence is in substancethe same as that which underpins the indecency offences covered in Douglas (No.2) andPP. The appellant points to the discrepancy in the description by the Garda of his allegedconduct. The resolution of that is a matter for the trial. The mere fact of public urination isnot an act being put forward as inherently indecent. The examples given by Humphreys J.and recited in the judgment of the trial judge are particularly apt. Thus, in circumstanceswhere the prosecution accepts that indecency must be proven against the appellant,where indecency as a concept is not impermissibly vague and where the appellant doesnot appear to contextualise that an act contrary to public decency could incorporate anact of public indecency, the appellant’s claim of vagueness must fail.71. It must be recognised however, that the appellant’s claim has focussed on what hesubmits is the incorrect equation of public decency with public indecency. As it is possiblethat, even with the DPP’s concession that it is only in circumstances of indecency that hisPage 17 ⇓case could be successfully prosecuted, there may be some doubt that if thosecircumstances were not proven, the trier of fact might nonetheless form a view that theact was otherwise contrary to public decency. It is therefore necessary to resolve thataspect.72. The appellant’s contention that “contrary to public decency” did not equate to “contrary topublic indecency” is not in my view sustainable. It has long been held that concepts ofdecency and indecency have been interchangeable. In the English decision of R v. Mayling[1963] 2 QB 717 it was held by the Court of Criminal Appeal in upholding a conviction foroutraging public decency that “in addition to publicity as explained above, it is of coursenecessary for the prosecution to establish that the act complained of was an act ofindecency, or, to use the words in the indictment, an act outraging public decency. On theassumption that the evidence of the police officers about the behaviour of the defendantwas accepted by the jury, this requirement also was plainly satisfied.” AlthoughMcDermott J. held that such a common law offence did not exist in Ireland, he traced thehistory in Ireland of the criminalisation of indecent acts.73. The dictionary definitions provided by the appellant do not in my view preclude a findingthat what is being criminalised is an indecent act. Even if those meanings were to beviewed as precluding it, they do not oust the legal understanding of the term being usedin the statute. That term has to be seen in the context of the section as a whole whichrefers to any person who shall “wilfully and indecently expose his person or commit anyact contrary to public decency”. I am satisfied that as a matter of law, the interpretationof “contrary to public decency” was in fact to apply to acts of public indecency. I agreewith the reasoning of McDermott J. which leads one to this conclusion.74. In any event, as stated above, I am satisfied that even if it were not the case that in 1871the meaning of public decency equated with public indecency, s.5 of the InterpretationAct, 2005 requires the Court to give this an interpretation which is adjusted to, inter alia,social conditions. Therefore, in construing the provisions, it is possible to make allowancesfor changing social conditions and therefore it is the prevailing standard of morality thatapplies today. In that way, only those acts which are deemed objectively indecentaccording to contemporary standards that are criminalised by this section.75. I am satisfied that there were no error in the finding of the trial judge as follows “in myview, the respondent is correct and the concept of the core of this offence is essentiallythe same concept of decency or indecency which is at the core of other criminal offencesthe constitutionality of which has been upheld in PP and in Douglas v. DPP (No.2.). Itseems to me to be rather a hair-splitting exercise to contend that ‘contrary to publicdecency’ does not correspond with ‘indecent’. I see no difference of substance between‘indecent’ and ‘contrary to… decency’.”Conclusion76. The appellant stands accused of committing an offence contrary to s. 5 of the 1871 Act.He has locus standi to challenge the constitutionality of that offence in claiming that itterms are impermissibly vague and uncertain. His standing to challenge thePage 18 ⇓constitutionality is limited however to raising his own personal circumstances and doesnot extend to asserting rights of others. This is in accordance with the principle of justertii as expounded by the Supreme Court most recently in PP.77. His claim that the parameters of the offence may not be certain in so far as it could applyto cases of breastfeeding in public, spitting, risqué tattoos etc. is not relevant to theconsideration in this case of whether the offence is impermissibly vague. His claim thatthe offence gives too much power to members of An Garda Síochána in terms of arrestmust be rejected on the grounds that he was not arrested on suspicion of havingcommitted this offence but more fundamentally on the ground that there is no power ofarrest under this section.78. The requirement of certainty in the criminal law is a well-established constitutionalprinciple. It is also an established principle found in other legal systems and it is reflectedin the European Convention on Human Rights. It is also acknowledged in judicial decisionsin this jurisdiction, and by the European Court of Human Rights, that there is norequirement for absolute certainty. Hogan J. in DPP v. Douglas stated that “absoluteprecision is not possible” when defining an offence in a system such as a common lawsystem. As the trial judge noted in this case, the issue is whether s. 5 of the 1871 Act isan offence which is excessively vague and is therefore impermissible or is an offencewhich has the appropriate level of flexibility to encompass the variety of factual situationsand therefore permissible.79. The appellant is not being tried because he urinated in public, he is being tried due to thecircumstances in which the public urination occurred, namely, in a manner which wasobjectively indecent by an ordinary and reasonable member of the public.80. The core of the appellant’s submissions was that “contrary to public decency” was a terminextricably linked to the concept of immorality and that “immorality” as a concept isimpermissibly vague. The appellant relied upon the decisions of Hogan J. in DPP vDouglas and DPP v. McInerney, as authorities for the proposition that legislating forimmorality is “hopelessly and irredeemably vague.” It must be noted however, that thereis a relationship between law and morality. While not all acts that a majority of thecommunity may view as immoral will be classed as criminal offences, it is not correct thatlegislating for immorality per se, is unconstitutional. The issue in the case is whether themanner in which the legislature has chosen to legislate for this particularly type ofimpugned immorality, i.e, criminalising acts contrary to public decency, is too wide topermit a clear understanding by the public of what acts are in fact prohibited under thissection.81. There is not direct analogy with the offences in DPP v. Douglas and in DPP v. McInerney.The impugned provisions in those cases explicitly referred to the standard of immoralitysuch as scandal and “injuring the morals of the community”. The present section,however, is not so legally uninvolved and vague. It refers to “decency”, a term I accept tobe interchangeable with “indecency”.Page 19 ⇓82. Indecency is a term which is very familiar to the legal profession and indeed, a trier offact has on many occasions to decide whether a particular act, usually indecent (nowsexual) assault, has the element of indecency so as to categorise it into that class ofoffence. Further, the Court of Appeal in PP v. Judges of the Circuit Court, the High Courtin DPP v Douglas (No. 2) and the High Court proceedings, accepted that the term of“indecency” is a concept well recognised in Irish Criminal Law. Like the trial judge, I seeno difference in effect with the word “decency”.83. I do not accept that the criminal law only applied the term “indecent” to an otherwisecriminal offence. The offence of “gross indecency” is an example whereby neither of theterms, “gross” or “indecent”, are a crime in and of themselves. Another example is that ofthe offence of sending indecent telephone communications.84. The appellant’s contention that the standard of decency is that of the 1871 standard ofdecency is an incorrect understanding of the principle of statutory interpretation. Section6 of the Interpretation Act, 2005, explicitly permits the judiciary to interpret legislation ina way that is in line with contemporary standards. A concept such as indecency mayevolve to incorporate contemporary understanding. Indeed, even without s.6, judgeshave refined the meaning of certain words in statutes as society’s understanding of theconcepts change.85. For the reasons set out in this judgment, I would dismiss this appeal.

Result: Dismiss appeal

People (DPP) v MD

[2018] IECA 277

JUDGMENT of the Court delivered on the 28th day of June 2018 by
Mr. Justice Hedigan

1. The appellant was tried before a judge and jury in Dublin Circuit Criminal Court between 13th and the 19th May, 2015 in relation to three counts. The appellant was found not guilty in relation to a count of assault contrary to section 3 of the Non Fatal Offences Against the Persons Act 1997 and a count of criminal damage contrary to section 2 of the Criminal Damage Act 1991, both alleged to have occurred between 10th and 12th June 2013. The appellant was found guilty in relation to a count of assault causing serious harm contrary to section 4 of the Non Fatal Offences Against the Person Act 1997, alleged to have occurred on 18th June, 2013. He was sentenced to 8 years imprisonment. The appellant now seeks to have his conviction quashed by this Court.
Background
2. The injured party in this case, Ryan Hickey gave three statements to the Gardaí in which he nominated the appellant as having assaulted him. At trial, the injured party retracted his statements and stated that an individual named “Whacker” had committed the assault against him, not the appellant. Given that the facts of the case are disputed, for clarity, this judgment will set out the conflicting factual accounts given by those concerned in chronological sequence.

3. On 18th June, 2013 at approximately 8.10 pm Mr Hickey stated that he was in a car with his friend, Niall Byrne rolling a joint. The car was parked in Mr Byrne’s driveway in Castle Park Estate, Tallaght. The appellant came up to the car in the driveway, and asked to be let into the car to have a chat. Mr Hickey got out of the car and lifted his seat to let the appellant into the car. The appellant got into the back of the car and stated “I heard you were a mad rat, Indo”. The appellant proceeded to attack Mr Hickey with a Stanley blade. Mr Hickey stated that Mr Byrne pulled at the appellant’s arm to loosen his grip. At this point, Mr Hickey managed to escape, got out of the car and ran home. His mother and girlfriend were home and he asked them to call an ambulance. At the time, he told his mother that “Fat Farreller” (the appellant) had assaulted him.

4. Garda Jennings gave evidence that at approximately 8:25 pm, he received a call informing him that Mr Hickey had been stabbed. He attended Mr Hickey’s family home at 8:30 pm. Upon arrival, he described seeing Mr Hickey as having towels over his head and face, with blood dripping down through his hands and the towels. Garda Jennings asked Mr Hickey who had stabbed him. Mr Hickey informed him that “Fat Farreller” had assaulted him. This was noted by Garda Jennings in his notebook. Mr Hickey was then taken to hospital.

5. Garda Jennings stated that he later took a statement from Mr Hickey in Tallaght Hospital at approximately 1:00 am on 19th June, 2013. This was approximately four hours after the assault had occurred. This was the first of the three statements Mr Hickey gave to the Gardaí. The injured party nominated the appellant as having assaulted him, stating that the appellant “sliced him” with a Stanley blade. Mr Hickey made a second statement at Tallaght hospital the next day, at approximately 2pm. Mr Hickey had been discharged and was waiting on a prescription from the doctors at the time. Mr Hickey again nominated the appellant as having assaulted him, stating that the appellant had “cut the head off him”.

6. On 25th June, 2013 Mr Byrne (the friend of Mr Hickey who had been present in the car at the time of the assault) declined to make a statement when requested to do so by Gardaí. He stated that he hadn’t seen anything on the night in question. Later, on 5th August, 2013, Mr Byrne made a statement to the Gardaí claiming that a fourth person called “Whacker” had been present in the vehicle and that “Whacker” had assaulted Mr Hickey, not the appellant.

7. On 25th September, 2013, Mr Hickey made a third written statement to the Gardaí at Terenure Garda Station confirming the appellant assaulted him, that there were only three people in the car when he was attacked including himself and that he didn’t know anyone called “Whacker”.

8. At trial, Mr Hickey gave evidence that there was in fact a fourth person in the vehicle called “Whacker” and it was “Whacker” and not the appellant who had assaulted him.
Grounds of Appeal
9. The sixteen grounds of appeal were set out as follows:

i) The Learned Trial Judge erred in law and in fact in allowing the prosecution to introduce into evidence the statements in the book of Evidence of Ryan Hickey pursuant to the provisions of S.16 of the Criminal Justice Act 2006 in circumstances where there was not sufficient evidence before the Court of the reliability of the said statements and in particular having regard to the manner in which certain statements had been taken from the Appellant.
ii) The introduction into evidence of the statements in the Book of Evidence of Ryan Hickey was wrong in law and not in accordance with the strict requirements of S.16 of the Criminal Justice Act 2006.

iii) The Learned Trial Judge incorrectly charged and misdirected the jury in relation to the provisions of section 16 of the Criminal Justice Act 2006 and in particular how the jury should assess and deal with evidence of such a nature, particularly having regard to the circumstances of its admissions in the circumstances of this particular trial.

iv) The Learned Trial Judge erred in law and in fact in declaring the witness Ryan Hickey to be hostile and in allowing the prosecution to treat him as a hostile witness.

v) The trial was unfair and unsatisfactory by reason of the late addition by the prosecution to the Indictment of two further counts (Counts 1 and 2) that related to offences alleged to have occurred on dates different to the offence alleged in count 3 of the Indictment which was unfair and prejudicial to the conduct of the Appellant’s defence.

vi) The Learned Trial Judge erred in law and in fact in refusing an application for separate trials as between count 3 and counts 1 and 2 of the Indictment.

vii) The Learned Trial Judge erred in law and in fact in failing to give the identification warning in accordance with the People v Casey having been requisitioned by Counsel so to do.

viii) The Learned Trial Judge erred in fact and in law in allowing the prosecution introduce and rely upon the evidence of identification by a witness Ryan Hickey (that evidence being given pursuant to S.16 of the Criminal Justice Act 2006) where no identification parade had been held by An Garda Síochána in circumstances where the Appellant had become a suspect and the witness was amenable to view an identification parade. The failure to hold such a parade deprived the Appellant of trial in due course of law in breach of the Appellant’s Constitutional rights.

ix) The Learned Trial Judge failed to adequately warn the jury in relation to the difficulties with identification evidence and in particular, he failed to particularise the relationship of the problems of visual identification evidence to the particular evidence of same in this particular Prosecution case against the Appellant.

x) The trial was unsatisfactory in that the previous convictions of a witness, Niall Byrne, who gave evidence at the trial, were revealed to the jury in circumstances where such evidence of the witness’s previous convictions was not admissible in law and/or in circumstances where its admission was unfair and prejudicial to the Appellant.

xi) The cross-examination by Counsel for the Prosecution of the witness Niall Byrne was unfair having regard to matters put to the witness in relation to his previous convictions which rendered the trial unsatisfactory and the verdict unsafe.

xii) The Learned Trial Judge’s charge failed to properly deal with the manner in which the jury should deal with and approach the evidence of Niall Byrne.

xiii) The Trial was unsatisfactory and the conviction of the accused unsafe by reason of the failure of the Learned Trial Judge to put adequately or at all the defence case, being one where it had at all times been put by the defence that the Appellant was present but had been mistakenly identified by the witness.

xiv) The Learned Trial Judge erred in law and in fact in admitting into evidence, evidence of fibre lifts which had no probative value or that whatever probative value it had was far outweighed by its prejudicial and unfair effect.

xv) The finding of the jury that the Appellant was not guilty on counts 1 and 2 but guilty on count 3 is perverse having regard to all the circumstances of the case, particularly in circumstances where the Learned Trial Judge allowed the admission of the Complainant’s evidence pursuant to S.16 of the Criminal Justice Act 2006.

xvi) The manner in which the evidence was adduced before the jury and the trial judge do not, in the circumstances, support a safe conviction. Consequently, the verdict of the jury was illogical and perverse and against the evidence and the weight of the evidence.

Submissions of Counsel for the Appellant
Previous Inconsistent Statements of Mr Hickey
10. At trial, Mr Hickey denied that the appellant had assaulted him, directly contradicting his previous statements:

“ […] up until yesterday morning when I walked into this court, I believed it was Sean Farrell that cut me up […] And when I seen him, I thought that’s not the man, I’m after giving the wrong bloody name. […] So would you rather I came in and lied to the Court and says “Yes, that’s him” and he gets locked up for it, like. Am I not meant to be truthful here if anywhere?”
11. In the absence of the jury, counsel for the prosecution made an application pursuant to section 16 of the Criminal Justice Act 2006 to admit the previous statements. The learned trial judge ruled that counsel for the prosecution could put the three previous inconsistent statements to Mr Hickey in cross-examination before the jury, and that a copy of each of the three statements could be provided to the jury.
12. Whether or not a statement is reliable is an essential touchstone of admissibility. Counsel for the Appellant stresses that the first two statements were taken from Mr Hickey in hospital at a time when he was seriously injured. Mr Hickey had smoked a number of joints prior to the assault. Further, the statements were not properly recorded by the Gardaí. In evidence, Mr Hickey stated that he did not remember making the statements.

13. The third statement was taken some months after the assault and was recorded, however in evidence Mr Hickey stated that when he gave that statement, “I was stoned out of my head […] I was suicidal that day. I was only back from England and I’m dragged into a Garda station to give statements, you know what I mean. I was in shock.”

14. The learned trial judge in ruling in the statements failed to have sufficient regard to the evidence on oath of Mr Hickey, that he had misidentified the appellant as having attacked him. The previous statements did not meet the criterion of reliability as required by section 16 and should not have been admitted by the learned trial judge.

15. Further, it is submitted that the learned trial judge failed to give reasons as to the admissibility of the statements. InDirector of Public Prosecutions v. Murphy(Unreported, Supreme Court, McKechnie J, 18th January, 2013), McKechnie J was critical of the trial judge’s failure to give “somewhat more detailed or discursive” reasons as to why he admitted statements in that case. McKechnie J stated that the language of section 16 implies a discretion in the court of trial such that “the reception of such a statement does not automatically follow”. As such, it is submitted that a trial judge must give reasons as to the admissibility of statements under section 16. This was not adhered to in this case.

16. It is further submitted that it was wrong in law to allow the jurors to keep a copy of the three statements during their deliberations, and that the jury were not properly instructed as to how the provisions of section 16 should be applied by them. Heffernan & Ní Raifeartaigh inEvidence in Criminal Trials(Bloomsbury 2014) state:-

“Further questions surround the manner in which the jury receives the previous statement. The statement, or the relevant parts therein, will have been read aloud in court during the examination of the witness, and referenced in the trial judge’s summing up. InR v Hulme, the Court of Appeal criticised a trial judge’s decision to allow the jury to take the statement with them when they retired to consider their verdict. As with any analogous written materials, such as a transcript of evidence of a video recording of an interview, there was an “undoubted risk that the jury would place disproportionate weight on the content of the document, as compared with the oral evidence”. A procedure whereby the jury are permitted to read the contents of the written statement in the jury box prior to retiring was defective for the said same reason. Even if exceptional circumstances arose where it was appropriate for the jury to read the statement or take it with them, the situation would call for “robust directions by the judge” over and above any general direction concerning evidence admitted under Section 119 [Section 119 being the equivalent to Section 16 Criminal Justice Act, 2006]”.

Judge’s Charge in Relation to Section 16 Application
17. The learned trial judge charged the jury in relation to the section 16 application in the following terms:
“The law facilitates evidence to be admitted to a jury in this situation. Mr. Colgan describes it as unique but it is not so a unique occasion because it’s provided for by legislation specifically that was passed in the year 2006 and it was passed in law specifically designed to meet the needs of a case such as this. Back in the early 2000s, shortly before 2006, there was a notorious murder trial heard in the city of Limerick and there the accused on trial was faced with a series of witnesses, I think in all seven, if not eight, who came into the witness box having earlier made statements implicating the accused, went into the witness box and each one after the other said I don’t wish to give evidence., I’m not going to tell the jury anything. They were allowed stand down and after that had been gone through the judge had no option but to direct the acquittal of the accused of the charge of murder. The legislature, faced with that situation, then introduced S.16 of the Criminal Justice Act of 2006 specifically designed that in cases where a victim or a witness gives evidence or, sorry, makes a statement to Garda Siochana to initiate and assist them in the initiation of a criminal investigation, then comes to court and seeks to retract or vary what they said, allows the prosecution to prove in evidence the original statements […]
The rationale is that, as is evident from this case, that a victim such as Mr. Hickey within a short time of being very, very seriously injured and feeling aggrieved of all of that is likely to tell the Gardaí what actually happened and in this case he had repeated that account on three occasions. First he relates it in the backyard, then repeats it within an hour of midnight, repeats it again in the afternoon of the same day and then confirms it when they’re read to him in interview in September some weeks later and saying yes, they are correct, that’s accurate and answers questions consistent with it and the State say that this body of evidence, taken together, is reliable, you can act upon it. You can have confidence that that is where the truth is.

The defence make the very fair and obvious observation on all of that. Mr Hickey is either lying now or he was lying when he was making his statements, either way he is a person who is inconsistent. He is untruthful. And you might therefore pause before you act upon his account, his evidence, his statements, whichever. He is untruthful. There is no two ways of putting it. It is open to you to conclude nonetheless that he came into this court with one objective in mind and that was not to assist the prosecution but to ensure that Mr Farrell is not made answerable to what he says was the wrongs done to him originally and it is for you, ladies and gentlemen, to assess the evidence, the details as given by Detective Garda Jennings of the conversation in the yard, back yard, of the interviews that have been reduced to writing and you have, and of your observation of Mr Hickey as he was being interviewed on the third occasion, all of that’s available to you to assess and the State says that based upon that you can have confidence that that is where you’ll find the truth. The defence say otherwise. The accused man himself in interview has said he is innocent and didn’t do it and Mr Niall Byrne has come forward to support him.”

18. To say to the jury that the law was passed specifically designed to meet the needs of a case such as this was unfair and prejudicial to the appellant’s case. In referring to a murder case in Limerick, the learned trial judge imposed an atmosphere of intimidation on the case.
19. Evidence introduced under section 16 should only be allowed where a jury is fully appraised as to how to deal with the evidence given viva voce and the previous inconsistent statements. Crucially, having regard to an accused person’s presumption of innocence, the difference between unsworn written statements introduced pursuant to section 16 and evidence given on oath was not explained to the jury. InDirector of Public Prosecutions v. Murphy(Unreported, Supreme Court, McKechnie J, 18th January, 2013), it was stated that a judge’s charge where an application pursuant to section 16 has been acceded to should draw attention to the risks associated with admitting evidence pursuant to section 16. McKechnie J was critical of this not having been done in the trial court. Specifically, the following ought feature in a judges’ charge: the historical role of the hearsay rule and the reasons underlying it; the court’s preference for direct sworn evidence tested by existing safeguards; the difference between oral statements and witness statements. Further, the Supreme Court stated that the judge’s charge must be tailored to the particular case, and that a judge should point out if sworn evidence is inconsistent with a previous statement – “unless the jury is so fully informed, their critical role in this context will almost certainly be impaired and could easily be fatally jeopardised”.

20. Recently, inDirector of Public Prosecutions v. Jonathon Douglas(Unreported, Court of Appeal, Mahon J, 21st December, 2015) Mahon J described the manner in which a trial judge should charge a jury with regard to previous inconsistent statements. It is submitted that the learned trial judge in this case did not adequately inform the jury as was prescribed in Douglas to the difficulties associated with evidence introduced against an accused person under section 16. Undue weight was placed on the value of the unsworn statements over and above the evidence given on oath by the injured party.

Declaration of Mr Hickey as a Hostile Witness
21. The prosecution sought to have Mr Hickey declared a hostile witness such that he could be cross-examined by the prosecution as to his previous statements. It is submitted that such an application should not have been granted, that the cross-examination far exceeded what is permitted and that the significance of the evidence adduced under such cross-examination was never explained to the jury.
22. A witness should not be declared hostile merely because he is unfavourable or forgetful. Mr Hickey was not recalcitrant, he gave his evidence and he was clear that he now realised that he had misidentified the appellant. The subsequent cross-examination of Mr Hickey was the longest cross-examination of any witness in the trial. It is submitted that it was unfair and over-zealous.

23. Further, having been granted the application to declare Mr Hickey a hostile witness, counsel for the prosecution sought an application to rely on inadmissible hearsay evidence and evidence contrary to the rule against narrative as part of the hostility cross-examination. The learned trial judge allowed the prosecution to cross-examine Mr Hickey on what other witnesses stated that he had said to them, for example in relation to what Mr Hickey had said to his girlfriend and mother. On foot of the trial judge’s ruling, counsel for the prosecution adduced hearsay evidence from Garda Jennings and Sandra Hickey, Mr Hickey’s mother. Garda Jennings stated: “Yes, he said it was a person called Fat Farrell”. Sandra Hickey stated: “He was just getting weak at that stage and I was the one – I was going hysterical and I was asking him what happened to him, what happen – like, I was pressing him, what’s happen – what happened to you, what happened to you. He wouldn’t tell me anything. And then he told me that Fat Farreller person had attacked him again.” In closing, counsel for the Defence appears to ask the jury to ignore the hearsay evidence, however, it was unsatisfactory for the evidence to have been put to the jury in the first place.

24. The learned trial judge failed to deal with the status of the evidence given pursuant to the hostility cross-examination in his charge to the jury, and as to how the jury should have approached such evidence. He failed to explain that the purpose of hostility cross-examination is to allow a party to discredit their own witness by proving a previous inconsistent statement.

Unfairness in relation to the Indictment
25. The fifth and sixth grounds of appeal relate to the late addition of two counts to the indictment (of which the appellant was found not guilty by the jury) and the refusal of the application for a separate trial as between the section 4 count and the two other counts.
26. The appellant was arrested in relation to the section 4 charge alleged to have occurred on 18th June, 2013 at 6 Castle Park Estate, Tallaght. He was never questioned in relation to any previous incidents. The Book of Evidence served on the appellant only contained a section 4 charge. On the 27th April, 2015, two weeks before the trial commenced, the appellant became aware that he was facing two further charges, one of criminal damage and a section 3 assault charge. These charges were included on the indictment, albeit relating to a totally separate incident dated between the 10th and 12th June, 2013.

27. It is submitted that it was unfair and oppressive to include two further counts on the indictment. A count which is wholly different from and unrelated to the main matter to be tried should not be allowed to proceed at the same time. The addition of the two further counts may have indicated to the jury that the appellant was a person with a bad animus towards the injured party and that he was continuously involved in serious crime, making the section 4 assault more difficult to defend. Separate trials ought to have been granted in respect of the section 4 count and the two additional counts.

Identification
28. Grounds 7, 8 and 9 of the appeal relate to the failure of the judge to give a Casey warning when requisitioned to do so, the fact that evidence of identification was admitted where no identification parade had taken place, and the failure of the learned trial judge to warn the jury as to the difficulties associated with identification evidence.
29. It is submitted that this was a case where an identification parade should have taken place following the arrest and detention of the appellant. The question of mistaken identity was at the core of the appellant’s defence. The learned trial judge charged the jury as follows: “In this case the central issue is was it Mr. Farrell and was it Mr. Farrell on each occasion”. The learned trial judge failed to address the fact that the witness, Mr Hickey had claimed on oath that he had named the wrong person as his aggressor, and no warning was given in relation to the issue of identification and the difficulties associated with identification evidence. Counsel for the defence sought aCaseywarning from the learned trial judge, who stated:

“No, there’s no issue of mistaken identity in this case whatsoever […] All right. The defence has conceded in this case that Mr Farrell was present in the motorcar. The issue is not one of whether he could identify him or not or was mistaken in his identity. Its whether he did it or not. That is the issue central to this trial. It is not a case that requires any Casey warning and I don’t propose to give the direction in that respect.”
30. The optimum method of pre-trial identification is an identification parade, because of the dangers associated with identification evidence. The desirability of holding identification parades was stressed inDirector of Public Prosecutions v. Lee(Unreported, Court of Criminal Appeal, Murray J, 20th July, 2004). Murray J. stated:
“…because of certain inherent dangers in relying exclusively or predominantly on evidence of visual identification there is an onus on the investigating Gardaí and the prosecution to ensure that evidence of visual identification is obtained in the most reasonably reliable form which, in the absence of reasonable cause, should be in the form of a formal identification.”
31. A trial judge must convey the dangers of acting on identification evidence to a jury. Further, a trial judge ought carefully examine the identification evidence with a view to pointing out to the jury any matters which might have affected its reliability.

Unfair Treatment of a Witness called by the Defence
32. In the course of his charge to the jury, the learned trial judge stated the following about Mr Byrne, the friend of the injured party present at the time of the assault who had stated that a man named “Whacker” had attacked Mr Hickey, and not the appellant:
“The accused man himself in interview has said he is innocent and didn’t do it and Mr Niall Byrne has come forward to support him. He was in the car and he says it wasn’t the accused. Now, Mr Byrne isn’t someone who might impress you much and the State challenge him on the basis that he is a man of dishonesty. He has committed crime in the past. He has gone to prison for it and he is someone who has no regard for authority and the police in particular from the evidence you’ve heard from the last witness called to comment on his status.”
33. It is submitted that revealing Mr Byrne’s previous convictions was unfair and prejudicial to the appellant.
34. Further, it is submitted that the cross-examination of Mr Byrne by the prosecution as to his previous convictions went beyond what is fair or permissible. The learned trial judge failed to address the manner in which the jury should approach the evidence of Mr Byrne.

Defence Case
35. It is submitted that the defence case, namely that the appellant was present at the assault but was mistakenly identified by the injured party as having committed the assault was never put to the jury by the learned trial judge in his charge. The learned trial judge failed to instruct the jury that the main prosecution witness, Mr Hickey claimed on oath that he had misidentified the appellant and another person had assaulted him.

Forensic Evidence
36. Evidence was given in relation to forensic investigations carried out after the assault. A chemical test indicated the presence of blood on the tongue area of Mr Farrell’s left runner, but that the sample was insufficient such as to generate a DNA profile. It is submitted that the prejudicial effect of this evidence outweighed its probative value. Evidence was also given in relation to various items, including a Stanley knife found in the appellant’s home. No blood was found on any of these items. It is again submitted that the prejudicial effect of the evidence outweighed its probative value and ought not have been admitted.
37. Dr Bridget Fleming gave evidence that she had forensically tested a blue hoodie that the appellant had been wearing when arrested. The purpose of this evidence was to implicate the appellant as being the person sitting in the back seat of the vehicle where the assault took place. She found 18 fibres that matched the fibres of the appellant’s hoodie. Dr Fleming stated that the fibre findings provided moderate support for the view that the hoodie was in contact with the rear driver’s seat at the time of the incident. It is submitted that the level of support offered by the forensic expert was not sufficient such that it should have been admitted into evidence.

Perverse Verdict
38. It is submitted that the finding of the jury of not guilty on counts 1 and 2 but guilty on count 3 is perverse having regard to all of the circumstances of the case.
39. Despite the injured party’s explanation that he had made a mistake in his identification, the appellant now stands convicted of a crime which he has always denied, in circumstances where the injured party has sworn on oath that it was not the appellant that assaulted him. It is submitted that this is a perverse verdict and one that should be remedied by this Court.
Submissions of the Respondent
40. The majority of the submissions made by the appellant (as drafted by his newly appointed legal team) were not raised in the trial court and therefore are not appropriate grounds of appeal, as perDirector of Public Prosecutions v. Cronin[2004] 4 I.R. 329. As is well settled, the appellant was bound to requisition the learned trial judge following the charge to the jury if the appellant was unhappy with the manner in which the case had been left to the jury, as was stated inDirector of Public Prosecutions v. Finnegan and Morrison[2011] IECCA 47.

41. Specifically, the appellant did not object to section 16 being utilized in the present case. In opposing the application to have Mr Hickey declared a hostile witness, counsel for the appellant stated: “I’d respectfully submit that in this particular instance, section 16 [of the Criminal Justice Act 2006] would suffice, were the Court to go that way.” In light of the quotations set out it is difficult to see how the appellant can make the arguments as set out in the grounds of appeal relating to the admission of the previous statements under section 16.

42. Garda Jennings gave evidence outlining in detail how each statement was obtained from Mr Hickey who was then extensively cross examined as to the reliability of the statements taken. Counsel for the prosecution made clear the procedural steps that would be adopted, including providing the jury with copies of the previous statements. Counsel for the appellant made no objection at any stage.

43. The learned trial judge properly instructed the jury as to the provisions of section 16 and how to apply them contrary to the submissions of the appellant:

“ […] it is a matter for you, the jury, to assess that evidence and in doing so, in estimating the weight the act says to be attached,if any, to the statements regard shall be had to all the circumstances on which any inference can reasonably be drawn as to the accuracy or otherwise. So, you have to have regard to all of the evidence and how these statements were obtained andwhether or not ultimately you can place any weight upon them, act upon them in other words.” [Emphasis added by Counsel for the Respondent].
44. No requisition was sought regarding this direction to the jury and the appellant now seeks on appeal to revise the position held by him at trial.
45. Counsel for the appellant submits that the learned trial judge erred in law and in fact in allowing the prosecution to cross-examine Mr Hickey as a hostile witness. The learned trial judge gave a comprehensive ruling granting the prosecution application to declare Mr Hickey a hostile witness, having listened to the evidence heard and the submissions of both counsel:

“The second leg of the application then is that Mr Hickey be considered a hostile witness, and the authorities and in particular, the judgment of Carney says that hostile means more than being merely adverse to the hopes or prospects of the prosecution’s case, and clearly that is the case here. I have fairly concluded that Mr Hickey’s is about the object of not giving evidence in pursuit of his original statements, and not to be obliged to say anything to implicate the accused man Mr Farrell in the alleged wrongdoing against him. He is, to my mind, hostile to the process. He’s certainly not truthful in my mind. He is intent, as I say, in the way I’ve indicated and in pursuit of that is prepared to tell untold lies about the events […] For these reasons, Mr Hickey can be treated by the prosecution as a hostile witness and be, therefore, cross-questioned, against the normal rule, on his evidence, subject to the limitations that it would appear Mr Staines is well mindful of.”
46. It is clear that the learned trial judge carefully evaluated all the relevant factors in arriving at his determination. Counsel for the appellant now takes issue with the manner in which counsel for the respondent conducted his cross examination of Mr. Hickey, however no objection was raised before the trial court to the manner in which the examination proceeded.
47. It is further argued by counsel for the appellant that prosecution counsel improperly introduced hearsay evidence in the course of his cross examination of Mr Hickey. Prosecution counsel made an application in the absence of the jury specifically to ensure that his intended method of cross-examination would not offend against the rule against narrative (rather than hearsay which it is submitted had no application to the present circumstances). He stated:

“[…] the second aspect of the cross-examination, effectively, is to seek to have the witness recant and accept that what he originally said is the truth. And I say that, by putting those statements to him, that at the time he said x, y and z to various people, that is consistent with the purpose that I’m seeking to advance, which is to, effectively, get him to recant and accept that what he said in his statements – that the jury will have – is the truth and what he’s now saying to the jury is untruthful”.
48. This was accepted by counsel for the appellant who stated “there will be certain issues that I will be raising with the witnesses in respect of what was said, soI don’t see any difficulty at this stage in respect of the matterso”. [Emphasis added by counsel for the respondent]. The trial judge then stated:
“All right, well then the order in which you present your evidence is a matter for you, I don’t need to rule on it, and I’m satisfied, having regard to the submissions you’ve made, that you are entitled to lead the evidence and put to Mr Hickey what it is he is alleged to have said to others in respect of who was his assailant”.
49. In light of the above, it is respectfully submitted that no error in law arose in respect of the manner in which the hostile witness application was dealt with.
50. With regard to the joinder of counts 1 and 2 to the indictment, both counsel made detailed submissions and the jurisprudence on the subject was fully opened to the court. The learned trial judge ruled as follows:

“No substance has been put to the unfairness in all of that other than clearly they have come very late in the date, but we’re now at the 13th of May. The charges were laid and the accused knew as from the 27th of April of this year that he was being presented with a trial on these facts as well based upon counts 1 and 2. No application for an adjournment has been made.”
51. In considering counsel for the appellant’s application for a separate trial as between count 3 and counts 1 and 2, the learned trial judge ruled as follows:
“It’s clear, and the State submits, that there is a factual matrix here; and it would seem to me that there is a close relationship and connection between the events of some eight days, eight to six days before the events between counts 1 and 2 and count 3. For that reason, therefore, I would not be disposed to order a separate trial…”
52. The learned trial judge did not err in law or fact in refusing the appellant’s application. He considered the submissions of both counsel in conjunction with the legal authority opened to him before delivering an appropriate ruling.
53. It is conceded that counsel for the appellant raised a requisition in respect of “identification evidence, whether identification or recognition” with the learned trial judge. The following merits quotation:

“MR COLGAN: Just one matter, Judge, that kind of strikes me
JUDGE: Yes.

MR COLGAN: in respect of the identification evidence, whether identification or recognition, whether the Court should give a Casey No. 2 warning in respect of it where it’s proved over time

JUDGE: No, there’s no issue of mistaken identity in this case whatsoever.

MR COLGAN: Well, there is a case in respect

JUDGE: In my view there isn’t and I don’t propose to give any direction to the jury

MR COLGAN: Insofar as that Mr Hickey had to concede that he didn’t know Mr Farrell that well, that he was out of the jurisdiction and that he had returned and that he wasn’t familiar with him.

JUDGE: All right. The defence has conceded in this case that Mr Farrell was present in the motorcar. The issue is not one of whether he could identify him or not or was mistaken in his identity. It’s whether he did it or not. That is the issue central to this trial. It is not a case that requires any Casey warning and I don’t propose to give the jury any direction in that respect .”

54. The learned trial judge later noted in ruling that Mr Hickey could be treated as a hostile witness that the victim and the appellant were familiar with one another:
“In his statements he admits to knowing Mr Farrell well, it’s suggested over a period of seven years or thereabouts he knows of him by his name, his address, his girlfriend, he knows of him by being the friend of an associate, and yet it’s only when he arrives into the courtroom yesterday that he realises that, in fact, for the first time, it isn’t the man. He tells untruths in respect of the presence of the fourth person or not in the motorcar, and whether or not he knew a person called Whacker, whom he now says in fact is the name of the man who assaulted him on the occasion.”
55. It is submitted that the possibility of mistaken identification or recognition applied to the facts of the present case is an entirely artificial construct. It cannot be now suggested that an identification parade should have been conducted where the prosecuting authorities were dealing with an allegation from Mr Hickey that he had been attacked by the appellant, a person well known to him.
56. In relation to the grounds of appeal concerning the cross examination of Mr Byrne, it is submitted that the prosecution’s cross examination of Mr Byrne focused on his credibility as a witness, his reluctance to deal with the Gardaí, and the suspicious similarities of the account offered by him to the Gardaí and the evidence given by Mr Hickey at trial. No objection was raised as to this issue at trial and the Appellant now seeks on appeal to revise the position held by him at trial.

57. No objection was raised in relation to the defence case not being adequately put to the jury at trial, and again, the appellant seeks to revise on appeal the position held by him at trial.

58. Counsel for the defence did not raise any objection based on the potential prejudicial effect of the evidence of the fibre lifts being admitted at trial. In any event, the evidence was highly probative as it amounted to circumstantial evidence from which the jury could infer that the appellant was in the car where the assault occurred and more specifically was seated behind the appellant during the assault. Further, the evidence was probative as the appellant baldly denied committing the offence in interview but gave no further details. The appellant did not admit to being present in the vehicle until late in the trial.

59. It is submitted that the finding of not guilty on counts 1 and 2 but guilty on count 3 is not perverse for the following reasons. The only evidence of the alleged assault and criminal damage contained on counts one and two on the indictment was the witness statements given by Mr Hickey. There was no contemporaneous complaint to the Gardaí nor was there any corroborating forensic evidence to support the witness statements. By contrast, there was a body of evidence to support the allegations made in respect of the slashing incident, including: Mr. Hickey’s statements; Mr Hickey’s contemporaneous complaints; Mr Hickey’s oral testimony and the inconsistencies therein; the evidence of Mr Byrne; the evidence of Ms Sandra Hickey; the appellant’s comments to Gardaí in interview; the fibre lifts taken from the vehicle where the assault took place; the medical evidence and photographs outlining the injuries sustained by Mr. Hickey.

60. It is respectfully submitted that the weight of evidence relating to the two separate incidents is incomparable and that the findings of the jury were objectively reasonable verdicts in the circumstances of the present case.
Supplemental Submissions of the Appellant
61. Counsel for the Respondent submits that the appellant should be precluded from raising most of the grounds of appeal because those issues were not raised at trial by his then legal team, relying upon the doctrine enunciated inCronin. It is submitted that there is no coherent basis on which the Appellant’s then legal team could have failed to raise the various issues now raised on appeal. There is a substantial basis for arguing that this failure was due to oversight on their part such as to create a serious risk that the appellant’s trial was not in due course of law.

62. It is submitted that it is not in the interests of justice that the appellant is precluded from making his substantive arguments as to the unfairness of his conviction by reason of theCronindecision. Counsel for the appellant therefore seeks to add an additional ground of appeal. The first matter to be considered by the Court is this motion to add a new ground, and the Court will then turn to the substantive issues on appeal.
Judgment of the Court on the appellant’s motion to add an additional ground of appeal
63. By a Notice of Motion dated the 15th of May 2017 the applicant ( the appellant in the substantive appeal, and hereinafter “the appellant”) seeks the leave of this Court to amend his Notice of Appeal by the addition of the following further ground of appeal:

“[22]. The trial of the appellant was unsatisfactory and his conviction unsafe by reason of the failure of his then legal representation to properly protect his interests prior to and during the course of his trial.”
64. This amounts to a claim of inept, ineffectual and indeed incompetent legal representation of the appellant at his trial. Moreover the claim is further particularised in the Notice of Motion as follows:
i) It is submitted in the circumstances of the case that the failure of the appellant’s legal representatives to object to the admission as evidence of witness statements made prior to trial by the victim of the assault causing serious harm with which the appellant was charged, as sought by prosecution pursuant to the provisions of section 16 of the Criminal Justice Act 2006, (the Act of 2006) constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. The said evidence was the core evidence in the case against the appellant in the absence of which no jury, properly instructed, could have convicted the appellant. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
ii) It is further submitted in the circumstances of the case that the failure of the appellant’s legal representatives to object to the giving to the jury of copies of the said witness statements after they had been admitted in evidence constituted an error or oversight of substance on their part capable, in conjunction with their other errors or oversight, of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to this procedure and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

iii) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the omission by the prosecution, when cross-examining the victim of the assault in the voir dire as to the admissibility of his witness statements, to put to him expressly that what he had said in the said statements was true and that the evidence he was now giving in Court was untrue. There was no apparent element of tactical strategy in not objecting to the procedure thus adopted by the prosecution and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

iv) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object, adequately or at all, to the prosecution application that the victim of the assault be treated as a hostile witness constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

v) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to requisition the trial judge on that part of his charge to the jury in respect of section 16 of the Act of 2006 as dealt with the circumstances in which the said statute was enacted and which referred to a situation that has arisen in Limerick, constituted an error or oversight of substance on their part capable, in conjunction with their other errors or oversight, of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not making the said requisition and the appellants then legal representation has not, despite request, tendered any explanation for their failure to do so.

vi) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of hearsay evidence given by Saundra Hickey, Audrey Cunningham and, in part, Garda David Jennings, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

vii) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of the forensic evidence given by Sarah Fleming and Bridget Fleming, in respect of blood on the appellant’s runners, knives found in the appellant’s house, blood staining and blood swabs, and fibre lifts taken from the locus of the crime, which evidence was of no probative value or in respect of which the probative value were significantly outweighed by its prejudicial effect, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

viii) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of evidence in respect of clothing found in a washing machine in the appellant’s house which evidence was of no probative value or in respect of which the probative value were significantly outweighed by its prejudicial effect, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

ix) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the manner of the cross examination, by the prosecution, of Niall Byrne, a witness for the defence and, in particular, the immediate putting to him at the commencement of the cross examination of his previous convictions constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the procedure thus adopted by the prosecution and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

x) It is submitted in the circumstances of the case that the concession by the appellants legal representatives, pursuant to the provisions of section 22 of the Criminal Justice Act, 1984, that the appellant was present in the motor vehicle in which the assault occurred at the time the assault occurred constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in making this concession.

xi) It is submitted in the circumstances of the case that the various omissions and failures of the appellants legal representatives, taken as a whole, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in the various matters constituting the said omissions and failures and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

65. The motion is grounded upon the affidavit of Siúna Bartels, Solicitor, sworn on the 15th of May 2017, and a subsequent affidavit sworn by her on the 22nd of March 2018, the contents of which this Court has carefully considered together with relevant exhibits. Ms Bartel’s exhibits correspondence with the appellant’s previous solicitor, in which, on the advice of counsel engaged for the purposes of the appeal, she posed a number of questions concerning the strategies adopted by the original legal team at trial.
66. In a letter dated the 5th of January 2017, written to the appellant’s former solicitors Ms Bartels stated, inter alia:

“In particular, we would ask you to comment upon the following matters which appear to us to be significant:
1. For what reason was no objection taken to the statements of Ryan Hickey being admitted pursuant to S.16 of the Criminal Justice Act 2006? In particular, was there a reason why objection was not taken to the voluntariness of the statements, particularly the first two statements, given the onus of proof and where Mr. Hickey’s evidence was that he had no recollection of making those statements or of their surrounding circumstances. In relation to the application to have the statements admitted, why was no submission made that Ryan Hickey was now adamant under oath that he had misidentified the accused as his assailant and that therefore, the content of the statements did not refer to the accused.

2. For what reason was objection not taken to copies of the statements that were admitted under section 16 being given to each of the jurors? The jurors had the statements at all times following their admission and all through their deliberations.

3. Was the third statement by Ryan Hickey served on the defence by way of additional evidence? It does not appear in the Book of Evidence and does not appear to have been served by way of Notice of additional evidence.

4. With respect to the prosecution’s cross examination of Ryan Hickey in thevoir dire, why was objection not taken to the fact that it was never expressly put to him by the prosecution that what he had said in the statements to the Gardai was the truth and that he was not telling the truth in Court.

5. Why, apart from seeking to have the issue deferred, was no objection taken to the application by the prosecution to have Ryan Hickey treated as a hostile witness.

6. Why was no objection made during the prosecution cross-examination of the witness which went well beyond what is normally allowed under such a process.

7. Why was no requisition made on the manner in which the Judge McCartan charged the jury on the S.16 procedure. Further, and on his direction that”it (the law contained in S.16) was passed in law specifically designed to meet the needs of a case such as this”and his account of the situation in Limerick that appears to have given rise to the necessity for this particular legislation? You will note that other flaws in the Judge’s charge on the S.16 procedure are raised in the Applicant’s submissions – however, no requisitions were made in relation to this part of the charge. Why were any these matters not the subject of requisitions?

8. At transcript Day 3, pages 1 – 4, why was no objection taken to the prosecution application for the admission of the hearsay evidence of Saundra Hickey, Audrey Cunningham and Garda David Jennings? The prosecution refered, incorrectly, to this evidence as narrative evidence. Why was no objection made to this evidence being adduced before the jury during the cross-examination of Ryan Hickey and in the evidence in chief of each of these witnesses?

9. Why was no objection taken to the admission of the evidence of:-

(i) Blood on the tongue area of the left runner of the Applicant taken from him at the Garda Station. [Transcript Day 4, page 2]
(ii) A Stanley knife, two blades, a scalpel knife and another knife. [Transcript Day 4, page 3]

(iii) Blood staining (the blood of the Applicant) found on a broken mobile phone face found at the Applicant’s residence. [Transcript Day 4, page 3]

(iv) Evidence of blood swabs. [Transcript Day 4, page 3]

10. Why was no objection taken to the evidence of fibre lifts as adduced from the witness Bridget Fleming, which appears not to have any probative value having regard to the standard of proof required in a criminal trial? [Transcript Day 4, page 7.
11. Why was no objection taken to the admissibility of the evidence in respect of the clothing in the washing machine? It appears that the prosecution case was that at least some of the clothes the Applicant was wearing when arrested were the clothes he was wearing in the car i.e. not in the washing machine. In addition there does not appear to be any evidence that the clothing in the washing machine belonged to the Applicant.

12. Why was no requisition made in relation to the way the Learned Trial Judge charged the jury in relation to the wet clothes in the washing machine, and that the washed clothes could account for the fact that there was no forensic evidence linking the Applicant with the assault?

13. Why was no objection taken to the way Niall Byrne was cross-examined by Counsel for the prosecution and, in particular, the immediate putting to him of his previous convictions and the calling of rebuttal evidence to discredit his testimony?

14. In closing the case, in circumstances where Ryan Hickey had sworn on oath that he had misidentified Sean Farrell as his assailant, why were the jury asked to deliberate upon the following issue?:- “What weight, if any, do you attach to them (the statements introduced pursuant to S.16) because either Mr Hickey was lying then back in 2013 when he said it was Sean Farrell or he told the truth back then or he is lying now or he is telling the truth now in respect of what he said about Sean Farrell because no one else assists in respect of the matter.””

67. These queries were replied to by the solicitor concerned in a letter dated the 18th of December 2017. It states,inter alia:
“We rely, in part, on this letter as demonstrating that the general tone of your assertion of a lack of strategic awareness in the approach to Mr. Farrell’s defence is misconceived.
In or around this time this firm was also instructed in relation to a personal injuries action, which representation also terminated on your appointment. We further made several appearances in Dublin and Naas District Court in relation to road traffic matters. We also represented Mr. Farrell’s partner in respect of a number of Road Traffic matters in the District Court. On all such occasions Mr. Farrell discussed his then pending trial with Solicitor and/ or Counsel.

On review of our records we can confirm that consultations were held with Mr. Farrell on the following dates:

lst November 2013 – Circuit Criminal Court 1st Mention

6th January 2016 2014 – High Court Bail Application

9th January 2014 – Arraignment

13th January 2014 – Bail Application

16th January 2014 – Further Arraignment Date

16th May 2014 – Consultation with Counsel

23rd May 2014 – Pre-Trial

6th June 2014- Consultation with Counsel

3 rd July 2014 – Consultation with Counsel

7th July 2014 – Initial trial date

8tb January 2015 – District Court matter

12th February 2015 – District Court Matter

13th March 2015 – Further pre-trial consultation with Counsel

16th April 2015 – District Court Matter

27th April 2015-Trial, CCJ

In addition to the foregoing dates, there were extensive telephone discussions with Mr. Farrell.

Mr Farrell’s trial eventually came on for hearing on the 27th April 2015. In circumstances where the prosecution was insistent that the matter needed to be prosecuted while witness availability was assured, the matter rolled over on a daily basis from the 27th April to the 13th May when the trial in fact commenced. On each of these 13 days on which the matter was mentioned before the Court, Mr. Farrell met with both Junior and Senior Counsel.

The trial proceeded until the 19th May and obviously Mr. Farrell discussed matters with both Counsel throughout.

In relation to the “Book of Evidence”, additional evidence and disclosure in the case, we wish to put on the record that it was agreed with Mr. Farrell from the very earliest point, that evidence of clothing found in the washing machine of his home would be relied on in his defence as same disclosed absolutely no forensic evidence linking Mr. Farrell to the crime. Mr. Farrell was advised that this evidence demonstrated not merely an absence of evidence but was evidence of absence. It was explained to him that positive evidence of this sort was of assistance to his defence. Mr. Farrell maintained this strategy throughout the period in advance of his trial and throughout his trial. As is quite obvious from the foregoing, there was a significant number of opportunities to express concern. On the contrary, Mr. Farrell was quite satisfied with this proposed course.

In response to the matters raised in your letter of the 5th January 2017 the following arises:

1. There was no indication that the statements were involuntary. Your assertion of Mr. Hickey’s lack of recollection is irrelevant in light of the fact that the statements were made in the usual format (complying with the requirements of the Criminal Procedure Act (as amended)) and Mr. Hickey did not deny making the statement. While you complain that no objection was made you fail to identify any stateable basis, in fact or law, that would support a submission that the statements were involuntary.

2. This point is either mis-stated or misconceived. S.16 provides that the statement itself is evidence. This is the evidence that is to be given to the jurors. It can be contrasted with the reading of statements under section 21. Again, you make a specious comment by way of criticism but no criticism in fact arises. As stated, your comments are misconceived or your understanding of the law is flawed.

3. In the absence of our files we cannot definitively answer this query. It may be the case that same was served during the course of the 2-week mention period that preceded the commencement of the trial and so was handed directly to Counsel.

4. We have discussed this matter in detail with junior counsel, it appears you complain that we failed to object that a question was not asked by the Prosecution. You have not identified any legal basis for such an objection to be made in the course of a cross-examination. Counsel advises that objections are made to answers to questions, not a failure to ask a question.

5. It was agreed with and understood by Mr. Farrell that it was inevitable that Mr. Hickey’s statements would be admitted under s.16. It was further agreed that the best basis on which a challenge might be brought to a ruling by the Trial Judge was in the event that he did not await Mr. Hickey’s evidence before the Jury, in the face of the content of his statements having been admitted before treating him as hostile. In furtherance of this strategy it was decided to invite the Court to defer the question of declaring Mr. Hiclcey hostile until his evidence was given after the statements had been admitted.

6. It is impossible to answer this query as it is completely vague and discloses no identifiable basis of complaint.

7. You have not identified any issue you take with the manner of Judge McCartan’s charge on the s.16 procedure. In relation to your “further” complaint that no requisition was made in respect of references to “a case such as this” and “the situation in Limerick”, we can only assume that you infer that these remarks were prejudicial. We would agree if that is the case. It was decided it would be more prejudicial still, to further draw the jury’s attention to the fact that s.16 had been invoked and that Mr. Hickey had been treated as hostile as Judge McCartan was clearly unimpressed with these features of the trial and further adverse prejudicial comments may have been made, whether legitimate or otherwise.

8. First, there was no reason to believe that Ms. Hickey, Ms. Cunningham or Gda. Jennings would give evidence other than in accordance with their statements. Mr. Hickey was a witness in the case. What these witnesses testify as to what Mr. Hickey said to them, where Mr. Hickey is a witness in the case cannot be said to be hearsay. Insofar as your complaint suggests that [prosecuting counsel’s] recital of that evidence is hearsay we refer you to the absence of any reason to believe those statements would be contradicted. You certainly have not identified any such contradiction nor was any contradiction in fact made, in evidence before the Jury. Further, as [defence Senior Counsel] tangentially refers to, at Day 3, page 4 line 10, there were matters to be put in cross-examination and testing those witnesses at that point in the absence of any basis for same would have equated that test with a rehearsal. It would have rendered the cross-examination before the jury as a mere repeat. In short, the element of surprise in respect of 3 crucial prosecution witnesses would have been lost. This 8th point raised by you yet again makes a vague complaint without any identifiable evidential or substantive legal reason for same.

9. The logic in not making objections to this evidence is identical to that concerning forensic analysis of the clothes and washing machine – these exhibits were positive evidence of absence of corroboration for the prosecution case. These matters were agreed as a strategy with Mr. Farrell since 2013.

10. The same response as to point 9 arises

11. The same response as to point 9 arises

12. Yet again in order to answer your complaint we must make sense of it by inferring that the basis for it is that the comments were prejudicial, the concern expressed earlier that affording the Trial Judge a further opportunity to address the jury may have further aggravated Mr. Farrell’s position before the jury arises by way of reply.

13. And yet again, you fail to identify why it was impermissible that Mr. Byrne’s previous convictions be put tohim. Are we correct in thinking that you take further objection on the basis that they were immediately put as opposed to put at some later stage? It ought to be unnecessary to point out yet seems warranted by your question, Mr. Byrne was not an accused person before the Court. He enjoys no protection against disclosure of such convictions by reason of the Woolmington principle. There was no basis to make any objection to his cross-examination. We must continue to point out that you have not identified any basis why any objection ought to have been made.

14. They were asked to consider what weight was to be attached to his previous statements for the reason identified by you, he had given evidence on oath that Mr. Farrell had been misidentified.”

The Law
68. There are relatively few cases in the jurisprudence of the Irish appellate courts dealing with alleged ineffectual representation by a party’s legal team, or “ineffective assistance in litigation” as it is characterised in the case law of the Supreme Court of the United States of America. The leading Irish case isThe People (Director of Public Prosecutions) v McDonagh[2001] 3 I.R. 411, which we will review in some detail momentarily. Other cases of potential relevance to a greater or lesser extentare The People (Director of Public Prosecutions) v Flynn(Unreported, Court of Criminal Appeal, July 30, 2003);The People (Director of Public Prosecutions) v. Doherty[2009] IECCA 17;The People (Director of Public Prosecutions) v. W.G.[2004] IECCA 43 andThe People (Director of Public Prosecutions v O’Regan[2006] IECCA 54 (CCA) & [2008] ILRM 247 (SC).
69. Before proceeding to review theMcDonaghcase and the other Irish cases it is appropriate to refer to the approaches which have been taken in some other common law jurisdictions.

70. In the United States of America the seminal case is that of Strickland v Washington 466 US 668. InStricklandthe US Supreme Court held (inter alia) that:

1. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (696-698)
2. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction, or setting aside of a death sentence, requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. (687-696).

(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case. (687-691).
(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. (691-696).

3. A number of practical considerations are important for the application of the standards set forth above. The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. A court need not first determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.
71. In the United Kingdom, particularly in England and Wales, differing positions have been taken at different times and the jurisprudence in this area has been somewhat in flux. Amongst the most significant cases in this developing jurisprudence are those ofR v Ensor[1989] 1 WLR 497; R v Clinton [1993] 1 WLR 1181;R v Nangle[2001] Crim L.R. 506 and R v Thrakar [2001] EWCA 1096. In Scotland the position is as set out inAnderson v HM AdvocateHCJ (1996 JC 29).
72. In theEnsorcase the Court of Appeal (Criminal Division), following the approach commended in the earlier cases ofR. v Gautam, The Times, 4 March 1987, and R v Irwin [1987] 1 WLR 902, stated that a conviction should not be set aside on the ground that a decision or action by counsel in the conduct of the trial later appeared to be mistaken or unwise. This was so even if the decision or action was contrary to the accused’s wishes. There was an exception in the case of flagrantly incompetent advocacy on the part of the accused’s counsel.

73. In the subsequentClintoncase the Court of Appeal (Criminal Division) signalled something of a departure from its earlier test requiring the establishment of “flagrant incompetence” before an appellate court would interfere, holding that, although the cases where the conduct of counsel could afford a basis for appeal were wholly exceptional, where a decision was taken either in defiance of, or without proper instructions or contrary to the promptings of reason and good sense, it was open to an appellate court to set aside the verdict on the grounds that it was unsafe and unsatisfactory. The court commented that “[i]t is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel’s alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict”.

74. InNangleandThrakarthe Court of Appeal (Criminal Division) reiterated that flagrant incompetence might not now be the appropriate measure, in the light of the Human Rights Act 1988 and having regard to Article 6 ECHR. InThrakar, it was said that “… the test is whether, in all the circumstances, the conviction is safe. Nonetheless, if such failures have prevented an appellant from having a fair trial, that will normally mean that the conviction is unsafe and should be quashed.”

75. In the Scottish case ofAndersoncase the High Court of Justiciary formulated a number of principles which may be summarised as follows:

i) Although it cannot be asserted as an absolute rule that the conduct of the defence by an accused’s counsel or solicitor will not be a ground of appeal, the circumstances in which this will be permitted must be defined narrowly;
ii) The conduct complained of can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. This, in turn, can only be said to have occurred where the conduct of the case was such that the accused’s defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence he wished to be presented, or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him;

iii) The principle of finality demands that the right to a fair trial should not be viewed as involving a right to a re-trial simply because things at trial might have been done differently. It that were so, there would be no end to the process of putting an accused on trial for his offence;

iv) While an accused has the right to have his defence presented to the court, his counsel or solicitor is not subject to direction by him as to how that defence is presented. In other words, although the representative must act according to his instructions as to what the defence is, the way in which he conducts the defence within those instructions is a matter for him. As a general rule, an accused is bound by the way in which the defence is conducted on his behalf.

76. Turning then to the Irish authorities, the case ofThe People (Director of Public Prosecutions) v McDonagh[2001] 3 I.R. 411 arose out of a violent confrontation between members of two families, in the course of which the applicant was alleged to have struck the deceased with a billhook causing his death. The applicant sought leave to appeal against his conviction on the grounds,inter alia, that the preparation for and/or the conduct of the applicant’s defence by his legal advisors was seriously inadequate and thereby deprived the applicant of his constitutional right to a trial in due course of law as guaranteed by Article 38.1 of the Constitution. In this regard, the applicant relied upon the failure of his legal advisors to interview certain potential witnesses, the advice given to the applicant not to give evidence in his own defence and the failure of his legal team to serve an alibi notice pursuant to s. 20(1) of the Criminal Justice Act, 1984. It was further submitted that the defence was seriously prejudiced by the fact that the senior counsel originally retained by the applicant handed over the defence brief at such a late stage as to deprive the applicant of an opportunity of retaining a replacement of his choice. Further, the senior counsel to whom the case was handed over did not have an opportunity to meet with the applicant or discuss the case with the other members of the defence team until the morning of the trial.
77. The Court of Criminal Appeal dismissed the application. Keane C.J, giving judgment for the court, stated:

“It has already been noted that, when delivering the judgment of the court on the hearing of the second interlocutory application in this case, Murray J. said that the conduct of a trial, including steps taken preliminary to the trial by an accused’s legal advisers could, in exceptional circumstances, give rise to a ground of appeal. That view is clearly consistent with the requirement of Article 38.1 of the Constitution that no person is to be tried on any criminal charge “save in due course of law”. A criminal trial, in which the defence of the accused was conducted with such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice, could not be regarded as a trial in “due course of law”. That would apply as much to the steps taken by the accused’s legal advisers prior to the trial as it would to the conduct at the trial itself.
That is not to say, however, that what might properly be regarded as an error by the accused’s legal advisers is, of itself, sufficient to justify the setting aside of the verdict and the ordering of a retrial. As was pointed out by Rougier J., giving the judgment of the English Court of Appeal, inR. v. Clinton[1993] 1 W.L.R. 1181 at p. 1188:-

‘It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel’s alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict …’

It was also said, in that case, that the circumstances in which a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially of criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be “extremely rare”. In particular, where counsel has fully discussed the case with his or her client, and has made careful and considered decisions as to how best the defence should be conducted in his or her client’s interests, an appellate court should not intervene simply because it appears that counsel might have been mistaken in the view he took. This, it was said inR. v. Clinton[1993] 1 W.L.R. 1181 at p. 1188, applied particularly to the decision as to whether or not to call the defendant, which is one of the issues that has arisen in this case. It was however held that, exceptionally, where the decision in question was taken either in defiance of or without proper instructions or when all the ‘promptings of reason and good sense’ pointed the other way, it might be open to an appellate court to set aside the verdict.
The exceptional nature of the circumstances in which an appellate court should intervene on such a ground were also emphasised by Lord Lane C.J. giving the judgment of the same court inR. v. Wellings(Unreported, Court of Criminal Appeal, 20th December, 1991), also cited inR. v. Clinton[1993] 1 W.L.R. 1181 where he said at p. 1187:-

‘The fact that counsel may appear to have made at the trial a mistaken decision, or has indeed made a decision which in retrospect is shown to have been mistaken, is seldom a proper ground of appeal. Generally speaking, it is only when counsel’s conduct of the case can be described as flagrantly incompetent advocacy that this court will be minded to intervene.’

Subject to the caveat that the last sentence may arguably set the threshold for intervention at too high a level, the court is satisfied that the observations quoted set out, in necessarily general terms, the limited circumstances in which an appellate court may properly set aside the verdict of the jury where the grounds relied on consist essentially of criticisms of the conduct by the accused’s legal advisers of the defence of the trial or steps taken preparatory to the trial.”
78. The case ofThe People (Director of Public Prosecutions) v Flynn(Unreported, Court of Criminal Appeal, July 30, 2003) was a case in which the central complaint was not alleged ineptitude or incompetence, but rather an alleged failure to follow the client’s instructions, a claim ultimately not upheld by the Court of Criminal Appeal. Fennelly J, giving the judgment of the court, which applied the approach commended inMcDonagh, stated in addition that:
“Subject to the general obligation to follow his client’s instructions, counsel is, on the other hand, not only entitled but bound to conduct the defence in accordance with his own professional judgment. He must conduct the defence competently in accordance with his instructions.”
79. The case ofThe People (Director of Public Prosecutions) v. W.G.[2004] IECCA 43 concerned an applicant who had pleaded guilty to various sexual offences on the advice of counsel, then had misgivings about doing so, then following further legal advice was prepared to prepared to maintain his pleas, and then having been sentenced sought to appeal on the basis that that he entered pleas of guilty in circumstances where he had been in receipt of legal advice which was incomplete and inaccurate, and also that he was not given sufficient time to consider whether to plead guilty. The Court of Criminal Appeal dismissed the application, applying the McDonagh jurisprudence while also referencing the decisions inDPP v. Lynch(Unreported, Court of Criminal Appeal, Barron J 27th July 1999), andDPP v. B[2002] IR 246, both of which specifically concerned attempts on appeal to set aside pleas of guilty.
80. The case ofThe People (Director of Public Prosecutions) v. Doherty[2009] IECCA 17, was concerned with a claim that a rape trial was conducted in an unsatisfactory manner because the legal representation on behalf of the applicant failed generally to protect his interests, and in particular counsel for the applicant permitted certain evidence prejudicial to his defence to be admitted, and/or failed to challenge the admissibility of other evidence tendered by the prosecution. These claims were particularised in great detail by Macken J who gave judgment for the Court of Criminal Appeal. Counsel for the applicant at the leave to appeal hearing had argued that although the complaints then being made on appeal were not made in the course of trial, because of the incorrect and irrational tactics adopted by defence counsel, the arguments then sought to be made should be fully ventilated, as an exception to the general rule that points not made at trial are not normally permitted to be made in the course of an application for leave to appeal. The points then being made were intended to ensure that justice is done. Moreover, counsel argued the position fell squarely within the principles foundin The People (Director of Public Prosecutions) v Cronin (No. 2)[2006] 4 IR 329, in particular the following extract from the judgment of Kearns, J:

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner”.
81. Counsel for the Director of Public Prosecutions in the Doherty case contended that the application was misconceived. The documents and materials in issue were led by the prosecution in the trial without objection but rather with the consent of the defence, it being clear that these were sought for the purposes of allowing the defence to follow a particular course of action at the trial for the perceived benefit of the applicant in his defence. The complainant and other witnesses led by the prosecution were all cross-examined to that end, which was clearly to the effect that the complainant was both inconsistent in her statements to several persons, and was a fantasist. It was perfectly proper in the circumstances for the evidence to be put before the jury.
82. The Court also heard a lengthy submission from counsel for the impugned previously instructed counsel who had accepted an invitation from the Court to participate as Notice Parties to the proceedings.

83. The Court of Criminal Appeal concluded that:

“There is no doubt but that the applicant may not be precluded in an appropriate case, from raising the above grounds of appeal by reason of the jurisprudence epitomised, inter alia, by DPP v Cronin, supra., and jurisprudence along similar lines. Nor is there any doubt but that in exceptional circumstances, claimed serious incompetence of counsel may be a basis for a good ground of appeal. It is however inappropriate for this court to engage in a general enquiry into how a defence was chosen between an accused and counsel or with its details where as in this case, no allegation is made that the applicant was not consulted on his defence. Rather it should look at the basis for the complaint made and its contended for effect on the trial.”
84. The Court of Criminal Appeal went on to quote the passage from the judgment of Keane CJ in theMcDonaghcase, cited earlier in this judgment at paragraph 13 above, before observing:
“In preparing for a case of this nature with its particular features, defence counsel clearly had a choice to make, which was to consider whether the balance of advantage lay in probing the inconsistencies in the statements eventually admitted, or whether it would make better sense from the perspective of defence tactics to exclude all of the evidence that was capable of being excluded, and to confine the case, as far as possible, to one of assertion and mere denial by means of vigorous cross-examination. The latter is what [counsel for the applicant] contends for. There were, however, as is clear from the above, undoubted disadvantages associated with whichever approach was adopted and therefore that choice was not an easy one.”
85. Ultimately, the Court of Criminal Appeal concluded as follows:
“The court is of the view that the case was conducted by defence counsel in accordance with a pre-thought out agreed strategy. That involved allowing into evidence material such as the content of the above accounts given at different stages by the complainant in relation to the abuse to which she alleged she was subjected or other evidence of which complaint is now made. The legal issue which arises is whether such an approach is one which counsel, properly instructed, could properly and reasonably adopt. It is clear from the authorities that cases in which “a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially or criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be ‘extremely rare’.
[…]

In the present case, the court does not find that the conduct of defence counsel at the trial is open to the criticism now made of it or that the defence actually adopted was not put to the jury. Counsel was confronted with a very difficult situation and a particular approach to the defence was adopted with the applicant’s consent or on his instructions. Two or even more counsel may of course advise taking different valid approaches. Having regard to the analysis made by [Senior Counsel for the previously instructed counsel] of the factual and evidentiary issues arising, as set out above, it is not possible to conclude that the approach actually adopted was irrational, as claimed, nor that it was incompetent, nor in disregard of the applicant’s interests or his instructions. The defence strategy adopted was unsuccessful, it is true, but that has emerged with the benefit of hindsight.”

Discussion and Decision
86. This Court has read the entire trial transcript and has carefully considered the complaints made in the context of the trial as a whole. The focus of our enquiry has been on whether the matters complained of represented such a disregard of the accused’s interests that it cannot be said that he received a trial in “due course of law” as is required by Article 38.1 of the Constitution, or in other words a fair trial. This Court’s task has been made somewhat more difficult by the decision of the previous legal team not to avail of the opportunity to be joined as Notice Parties and to be separately represented at the appeal, as usually occurs when allegations of ineffectual representation by a previous legal team are made, e.g., as occurred in theMcDonagh,FlynnandDohertycases cited earlier in this judgment. They have been content to rely instead on the solicitor’s reply dated the 18th of December 2017 to Ms Bartel’s letter of the 5th of January 2017, both quotedin extensoearlier in this judgment. Despite this sub-optimal level of engagement by the previous legal team, we have ultimately not been persuaded that the appellant’s trial was unfair or that he did not receive a trial in due course of law.
87. It is clear from the correspondence exhibited that there was extensive consultation with the appellant both in the pre-trial phase and during the trial itself. It is contended by the former defence solicitor in his letter dated the 18th December 2017, and there is no affidavit from the appellant contradicting the assertion, that the defence legal team met with the appellant on each of the thirteen days of the trial. The defence legal team expressly take issue with any“assertion of lack of strategic awareness in the approach to Mr Farrell’s defence”and it is implicit in this that strategy and how the trial was progressing was regularly discussed during those thirteen days.

88. As regards the main defence strategy, the view appears to have been taken that the trial judge was unlikely to be sympathetic to any technical objections raised by the defence to the admission of the section16 statements, and that the previous statements of Mr Hickey would inevitably be admitted. Operating on that premise, it is to be inferred from how the case was approached overall by the defence, as reflected in the transcript, that the defence team’s overall strategic objective was not to waste time by challenging the admissibility of the s.16 statements in a voir dire they perceived was doomed to failure, and by doing so to provoke the ire of an already unsympathetic trial judge, but rather to try to convince the jury, who might be more open to the argument than the trial judge, that Mr Hickey, having changed his story in the manner in which he did so, was not to be regarded as either credible or reliable. In circumstances where Mr Hickey was the lynchpin of the prosecution’s case, the jury would be obliged to acquit Mr Farrell if they could not be satisfied as to his credibility and reliability to the standard of beyond reasonable doubt. This was certainly a viable and coherent strategy, even if others might not have regarded it as necessarily the best strategy.

89. In addition, but consistent with what we believe to have been the overall strategy, some other specific strategic decisions were identified by the former defence solicitor as having been taken. These included:

i) to rely on evidence that clothing found in the appellant’s washing machine provided no forensic link to the crime.
ii) that there was no point in challenging the voluntariness of the statements of Mr Hickey that it was sought to introduce under s.16 of the Act of 2006, as they each contained the standard declaration, and Mr Hickey was not denying making them (merely claiming no recollection of making them), and there was no other ostensible basis for doing so.

iii) that as it was inevitable, in counsel’s judgment and estimation, that Mr Hickey’s statements would be admitted under section 16 of the Act of 2006, the Court should be invited to defer declaring Mr Hickey as hostile until after he had given evidence before the jury, his previous statements having been first of all placed in evidence before the jury. It was anticipated that this application would most likely be refused, and that this refusal would provide a potential ground of appeal.

iv) that to raise a requisition in respect of somewhat prejudicial remarks made by the trial judge in charging the jury on section 16 of the Act of 2006, would do more harm than good in that it would re-emphasise, and remind the jury of, what the trial judge had said.

v) that to cross-examine the witnesses Ms Hickey, Ms Cunningham or Gda Jennings on the voir dire would likely only yield limited results, and would have the undesirable effect of giving those witnesses a rehearsal or dry run in respect of evidence they would be required to give again before the jury. It was thought better to preserve the element of surprise for their cross-examination before the jury.

vi) that to requisition the trial judge in relation to how he charged the jury with respect to the wet clothes in the washing machine would be unwise, as the trial judge might well make further remarks to the jury that would be unhelpful to the defence.

90. All of these decisions were matters of judgment to be taken by the defence legal team, in consultation with their client. It is clear there was extensive consultation. While some of the judgments made might perhaps be questioned, or second guessed, with the benefit of hindsight, an appellate court is not entitled to intervene simply on that basis. It must be established that the judgments made were contrary to “all the promptings of reason and good sense”. We are not satisfied that that is the case here.
91. We consider that very substantial deference must be given to the judgment of the defence legal team that was acting at the time. They were best placed to have a feeling for how the trial was going, how the trial judge would respond to different scenarios were they to play out, and how the jury were reacting to the evidence. Much of that dynamic will be undiscernible from the arid pages of a transcript. We agree with the principle enunciated inStrickland v Washingtonthat judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of that performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We further agree that a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. This is consistent with Keane CJ’s comment in theMcDonaghcase that “the circumstances in which a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially of criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be “extremely rare”. We do not see this case as coming within that category of extremely rare cases.

92. In so far as the complaints based on alleged failures to raise objections are concerned, we consider that many of the responding points made in the former defence solicitor’s letter are points well made. As is pointed out, objections are normally raised to questions which invite inadmissible evidence, or to answers which have proffered inadmissible evidence. There is no legal basis for objecting to the prosecution’s failure to ask questions. If the failure to do so results in a lacuna in the prosecution’s proofs, then that is to the benefit of the defence. The defence can then, at the appropriate time, make a submission to that effect either to support some application that they may decide to make or to resist some application on behalf of the prosecution.

93. Defence counsel is not obliged to pursue every conceivable objection that might be made in defence of his/her client. If a strategic defence is being run, and the objectionable matter is not potentially fatal to his/her case, counsel may prefer to remain focused on the main strategy or tactical objective and eschew pursuing collateral issues that might only serve to distract him/her, the judge and the jury from the immediate goal then being pursued. Just because a new team of lawyers, having reviewed the transcript, is critical of how the case was defended, and indicates that they would have defended it differently, does not mean that the appellant did not receive a fair trial.

94. We are satisfied in all the circumstances of this case that there is no reason to believe that the appellant’s trial was unsatisfactory, that it was unfair and that his conviction is other than sound. The justice of the case does not therefore require that the appellant should be allowed to ventilate and rely upon his proposed additional ground of appeal.

Conclusion
95. The Court is not disposed to grant the relief sought in the appellant’s Notice of Motion, and the application to add an additional ground of appeal is refused.
Decision
96. The Court having ruled out the amendment sought, must now consider the implications for this appeal of the Supreme Court decision inDPP v. Cronin[2006] 4 IR 329. In that case the court provided an authoritative statement of the criteria for admitting on appeal points not raised at the trial. Kearns J. stated as follows;

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.”
The possibility of raising such points is not entirely excluded. They may be admitted if they are “substantial and of fundamental importance to the fairness of the trial.” SeeDPP v. Boyce[2005] IECCA 143. The overriding duty of the Court is to see that justice is done. The restriction has a long history in Ireland. In Sandes “Criminal Practice Procedure and Evidence in Éire(2nd Ed., 1939) the learned author states;
“The specific grounds of appeal must be stated in the notice of appeal… The Court of Criminal Appeal will not permit a defendant or his counsel, after he has read through the transcript of evidence and has made a meticulous scrutiny of it, then to formulate grounds of appeal.”
97. As to grounds 1 and 2, upon the basis of the law established in the above authorities, it is hard to see how the issues surrounding the section 16 admission of the statements of Mr. Hickey can be raised before this Court. As is clear from the transcript and from matters outlined above in our decision on the motion, it was an issue that was considered by senior counsel for the accused and the decision was taken for stateable tactical reasons not to object. In their letter in response to the motion, the solicitors for the appellant stated that Mr. Hickey never indicated his statements were involuntary and never denied that he made them. No argument has been advanced as to why the section 16 statements should not have been admitted. There was no objection taken to the section 16 statements being given to the jury. Nothing of substance or going to the fairness of the trial can be identified here. Thus grounds 1 and 2 cannot be entertained.
98. As to ground 3, the appellant’s legal team made a tactical decision not to challenge the learned trial judge’s reference to the “Limerick situation”. They considered that emphasising the point might prove even more prejudicial. There was every opportunity for senior counsel for the appellant to requisition the judge and he chose not to do so. This was a tactical decision clearly and justifiably taken. No point is raised in this regard that rises to the level of substantial or that raises a question over the fairness of the trial. Senior counsel’s only request was to give the jury aCasey (No. 2)warning. This was refused. In the light of the section 16 statements that clearly show how well the appellant knew Mr. Farrell, there is no substance in this point. The learned trial judge may not have referred to that in his response to senior counsel but it had been amply canvassed beforehand, notably in the voir dire which took most of one day.

99. It is not possible to identify any defect in the manner in which Mr. Hickey was treated as a hostile witness or cross examined as such. He clearly was a hostile witness. Counsel for the DPP had clearly outlined to the Court how he intended to cross examine the witness and no objection was taken by senior counsel for the appellant.

100. Grounds 5 and 6 were raised by the appellant. The addition of the two charges was argued in some detail. The learned trial judge held that the only real unfairness raised was the lateness of the application. However he also noted that the appellant did in fact know at least two weeks in advance of the fact that he would face trial on those facts as well and no application for an adjournment was made. It was the choice of the appellant’s team at the time not to apply for an adjournment. These points also cannot be raised.

101. Grounds 7 to 9 deal with the refusal by the learned trial judge to give aCasey (No. 2)warning, his allowing the evidence of identification by Mr. Hickey when no identification parade had been held and failing to adequately warn the jury of the difficulties with identification evidence in this particular instance. As noted above, it was only in connection with aCasey (No. 2)warning that senior counsel for the appellant requisitioned the judge who refused. As also noted above, the evidence of the section 16 statements discussed extensively during the voir dire showed that Mr. Hickey knew Mr. Farrell quite well over a period of seven years. In the light of this evidence there is no reality whatever to a requirement for an identification parade, aCaseywarning or any other kind of warning about identification issues. This ground fails.

102. As to grounds 10 to 12 concerning the defence witness Niall Byrne, the manner in which he was cross examined by counsel for the DPP and the treatment of his evidence by the learned trial judge, none of these points were raised by the appellant’s team. This is probably because as observed by the letter of the solicitors for the appellant dated the 5th January 2017, they are devoid of any merit.

103. Ground 13 deals with the alleged failure of the learned trial judge to put the defence case adequately, being that the appellant was present but mistakenly identified. The ground appears devoid of reality in that nobody present in court during the trial could have been in any doubt as to what the defence was. In any event, not surprisingly, no point was raised at the trial and cannot be now.

104. Ground 14 deals with the admission of evidence of fibre lifts. It is argued that this evidence had no probative value or alternatively that any such value was outweighed by its prejudicial effect. It is clear that this evidence was highly probative. It allowed the jury to infer that Mr. Farrell was in the car where the assault occurred and seated behind Mr. Hickey. It should be noted that the appellant did not admit to his presence in his car until the first morning of the trial. This ground, again unsurprisingly, was not raised by the appellant at the trial and cannot be raised now.

105. Grounds 15 to 16 argue that the jury verdict was perverse. This argument is based upon the proposition that it was illogical and inconsistent to find the accused guilty on count 3 but not guilty on counts 1 and 2. This however is clearly not so. The only evidence supporting the first two counts were the statements of Ryan Hickey. There was no evidence of complaint to the Gardaí, nor any supporting photographic, forensic or other evidence to support Mr. Hickey’s statements. In clear contrast to this was the substantial body of evidence in support of the charge on count 3. This was;

(a) Ryan Hickey’s statements,
(b) Ryan Hickey’s contemporaneous complaints,

(c) Ryan Hickey’s oral testimony and the inconsistencies therein,

(d) the evidence of Niall Byrne,

(e) the evidence of Saundra Hickey,

(f) the appellant’s comments to the Gardaí at interview,

(g) the fibre lifts taken from the vehicle where the assault took place,

(h) the medical evidence and photographs outlining the injuries sustained by Ryan Hickey.

This seems clear evidence that the jury very carefully considered the different charges and weighed the evidence before them carefully in respect of each of the separate counts. Their verdict seems entirely logical and firmly based on the relative evidential weight backing up the different counts.
106. Thus we reject all of the grounds of appeal put forward by the appellant in his notice of appeal. The appeal is dismissed.