A bad day for justice, a bad day for the Supreme Court

The judges of the Supreme Court have failed to explain how they justified their order to imprison a man on the basis of a law the court had declared was 'null and void'. By Vincent Browne

On 2 June last the Supreme Court issued a warrant for the arrest and imprisonment of a person (Mr "A"). They did so on the basis of a conviction for an offence which the Supreme Court itself had declared, 10 days previously, didn't exist. As a result of this decision, the person in question was rearrested and re-imprisoned, Never previously was a person imprisoned for an offence that was found not to exist.

The court ordered the arrest and imprisonment of this man having considered the issues involved in the case for only a matter of hours, at most – the issues were exceptionally complex and difficult. The swift decision was taken against the background of a political crisis for the government – and especially for the Minister for Justice, Equality and Law Reform, Michael McDowell – and also against the background of a public panic, orchestrated by RTÉ Radio's Liveline programme. Citizens, some of whom had only a vague understanding of the issues involved, were encouraged to come to microphones outside Leinster House and voice their panic-filled alarms on the airwaves.

Rushed decision

No explanation has been offered for the swiftness of the Supreme Court decision on that complex case. Certainly, had the Supreme Court's decision, as well as its considered judgement, been reserved in the case, Mr "A" would have remained at liberty. But no other convicted paedophile need have been released until the Supreme Court had decided the case.

Having decided the central issue in the case in a matter of hours, at most, it then took judges over five weeks to issue their written considered judgments, explaining how they came to this surprising decision so swiftly. And in those written judgments, each of the five judges failed to explain why they had ordered the imprisonment of a man for a law that didn't exist.

The five "senior" judges of the Supreme Court (ie the chief justice and the four judges who have served longest on the court), sat on the case – John Murray, Susan Denham, Hugh Geoghan, Catherine McGuinness and Adrian Hardiman. All five judges delivered written judgments on Tuesday 10 July, all agreeing with the rearrest and re-imprisonment of Mr "A".

None of the judges challenged previous decisions of the Supreme Court which had held that a section of an act which was found to be unconstitutional was "null and void", not just null and void from the time that the court declared the section to be unconstitutional but null and void from the date of enactment. In the case of 1937 laws none of the judges disagreed with the view that an unconstitutional section of such an act was null and void from the date that the constitution was enacted in 1937.

Mr "A" had been convicted under Section 1 (1) of the Criminal Amendment Act 1935, which the Supreme Court found unconstitutional. All five judges held that although the law under which Mr "A" was convicted was "null and void" it was legal to have him and others imprisoned under this non-existent law.

Retrospectivity

They deployed a variety of arguments in support of this seeming incongruity.

The central point advanced was that a distinction had to be drawn between a finding that a law was unconstitutional and the retrospective application of that finding.

It was argued that there would be legal, constitutional and societal chaos were it to follow automatically that everything done under a law that was later found to be unconstitutional was illegal. For instance, the finding in a 1972 case that the law on ballot papers was unconstitutional, if held to have had retrospective effect, would have negatived all elections since 1923. This would have caused constitutional chaos for, in essence, there would be no Oireachtas and no government to deal with the resultant situation. So absolute retrospectivity is obviously a non-runner.

The courts here have never insisted on an absolute retrospective application of a declaration of unconstitutionality, so the "inexorable logic" implicit in the argument – that if a law is declared "null and void", everything done under that law is also "null and void" – is not valid.

The arguments advance by the five judges in favour of these propositions were persuasive – that is that there is no "absolute" and automatic retrospectivity applicable to a finding that a law is unconstitutional

But a number of crucial questions arise:

Previous declarations by judges of the Supreme Court talked of retrospectivity not being automatically applicable. But the implication in all previous decisions of the Supreme Court was that it would be applicable except in exceptional circumstances – "there may be transcendent considerations which make such a course (ie absolute retrospectivity) undesirable, impractable or impossible" and "the overriding requirements of an ordered society" have to prevail.

But in this case the judges found that there was a clear division between a finding that a law was "null and void" and a finding that this had any retrospective effect. The implication being that only in extraordinary cases would there be any retrospectivity, which goes far beyond anything contemplated by the previous judgments of the court and, in spite of inferences to the contrary in the judgments of 10 July, is unsupported by previous decisions of the court.

This raises the question of the significance of a finding that a law is invalid if what is done under that non-existent law can been deemed legal in all but exceptional circumstances?

Convicted of a non-existent offence

Another key issue in this case is the issuing of a warrant by the Supreme Court for the arrest of a man who had been convicted of an offence the Supreme Court has found did not exist.

Even if the Supreme Court held that its finding 10 days previously that Section 1 (1) of the 1935 act had no retrospective effect (and that, in essence, what they did find) they went on to give it prospective effect by issuing a warrant for the arrest of a man in accordance with a law that they found 10 days previously did not exist.

Not a single one of the five judges dealt with the prospective effect of the issuing of the warrant. They will claim that the warrant was merely a procedural device and what they were doing was merely a procedural device giving effect to their decision that the 1935 law, although "null and void", was not "null and void" retrospectively. That argument can hardly wash. Here was the court issuing a coercive order to deprive a man of his liberty under a law they had declared didn't exist.

But there is an additional point.

Article 4.1 of the constitution states: "No citizen shall be deprived of his personal liberty save in accordance with law."

How can a citizen – in this case Mr "A" – be deprived of his liberty in accordance with a law that the Supreme Court has stated is null and void? This person is deprived of his liberty in accordance with no law.

But not only him.

Others convicted and now imprisoned under section 1 (1) of the 1935 act are not deprived of their liberty in accordance with law. They are deprived of their liberty in accordance with a law that the Supreme Court says is null and void. These are now deprived of their liberty, here and now, not retrospectively.

The unanimity of the court is impressive and the erudition of many of the judgments is impressive. But a credibility gap yawns over the sudden extensive extrapolation of the law on retrospectivity and the deprivation of a person's liberty in accordance with no law.

Mr 'A' and Mr 'CC'

In the CC case, a man aged 18 was charged with having sexual intercourse with a girl under 16 (unlawful carnal knowledge under Section 1 (1) of the Criminal Amendment Act 1935). He claimed he had believed the girl was 16 and she had told him she was 16 and he challenged the constitutionality of the law which seemed to preclude the defence of "honest mistake".

The Supreme Court on 23 May found that the preclusion of the "honest mistake" defence made Section 1 (1) of the 1935 Act unconstitutional.

At this stage Mr "A" entered the scene.

Mr "A" is an unfortunate candidate for victimhood. When aged 38, he encouraged a 12-year-old female friend of his daughter to take alcohol and then he had sexual intercourse with her. There was no question of his not knowing the age of this girl. This was a premeditated rape of a child. There was no question of there being an "honest mistake".

Mr "A" was probably charged with rape and a number of sexual offences as well as with unlawful carnal knowledge but, on pleading guilty to unlawful carnal knowledge under Section 1 (1) of the Criminal Amendment Act 1935, the other charges were dropped. This meant that when Section 1 (1) of the 1935 Act was declared unconstitutional, the legal basis for his conviction and imprisonment seemed to have been voided. So the High Court judge, Mary Laffoy, decided in her judgement in the case on 31 May when she ordered his release from prison.

Had he been convicted of rape and sexual assault as well as with unlawful carnal knowledge, he would of course have remained in jail, even though the unlawful carnal knowledge conviction may have been set aside.

Mr "A" was benefiting from the successful challenge to the constitutionality of part of the 1935 Act, even though he could not possibly have claimed he had made an "honest mistake". But the legal basis for his conviction and imprisonment seemed to have been declared non-existent.

MEMBERS OF THE SUPREME COURT

John Murray

He has been chief justice since July 2004, when he replaced Ronan Keane, who had retired. He is aged 63. Charlie Haughey had him appointed Attorney General for a few months in 1982 and again from 1987 to 1991,at which point he was appointed to the European Court of Justice. He was a member of Fianna Fáil before becoming a judge and is, as such, regarded by the "intelligentsia" in the Law Library as intellectually suspect. However his judgement in this "A" case is an intellectual tour de force, even though, as argued here, it fails to explain two key factors (see accompanying article)

Susan Denham

She was thought likely to be the first woman chief justice but in reality she was never a runner because she did not have the requisite political affiliations. She has been a member of the Supreme Court since 1989 and at 59 is still the second youngest member of the Court and maybe the brightest. She argued that Section 1 (1) of the 1935 Act was constitutional but was overruled.

Hugh Geoghegan

The first Supreme Court judge who is the son of a former Supreme Court judge, and maybe also the first member of the superior courts whose spouse (Mary Finlay Geoghegan) is also a member of the superior courts – the latter is a High Court judge. He is high calibre, can be impatient and brisk.

Catherine McGuinness

The most interesting member of the court. She issued to be on the Synod of the Church of Ireland. Was a leading liberal advocate in the 1960s and 1970s. She was a member of the Labour Party and assistant to the former Labour leader, Brendan Corish. She was married to the former journalist and broadcaster, the late Proinsias Mac Aonghusa. Feminist, radical, independent, sturdy, in spite of her frail appearance.

Adrian Hardiman

Former leading light of the PDs, close buddy of Michael McDowell; his son, Hugh, is McDowell's constituency secretary. Regarded as the heavy-weight intellectual of the court and probably resented as such by John Murray. But Murray has asserted his own intellectual credentials in this judgement. Hardiman is the youngest member of the Court at age 52. His presence on the bench has pushed the Supreme Court rightwards.

The other judges on the court – Niall Fennelly; Nicholas Kerins and Fidelma Macken – did not sit on the court in the "A" case