Friday, August 25, 2006

Ryanair Flying into Court

There's a very interesting aspect to Ryanair's current claim against the British Government for £3 million sterling in damages caused by heightened security after the Gatorade incident of a few weeks ago. In A vs. Home Secretary, the House of Lords decided that the detention of terrorist suspects at the Belmarsh facility was inconsistent with the Human Rights Act. The tone of the judgments in that case marked a profound shift from previous decisions. To simplify, up to 2002, the Lords had expressed the view that on national security matters, the judgment of the Government was more or less final. But that all changed in A, some portions of which appeared to suggest that there were similarities between Hitler (the Reichstag fire) and Tony Blair (also moving to curtail civil liberties on the basis of "portentous appeals to national security") and the Government's judgment on national security was far from final and binding. The question is, what would the court decide in Ryanair's case? Under the older thinking, they would surely have deferred to the Government; now, it is not so clear. Then again, would they be willing to treat a claim by a company in the same way as they have treated claims by suspected terrorists? Let's hope that Ryanair go all the way with this one!

Thursday, July 27, 2006

Wake up and Smell the Steaming Tar

Unsurprisingly, the Supreme Court has rejected an assertion that the National Monuments Act 2004 is unconstitutional. The controversy centres around the construction of the final phase of the M50 motorway near Carrickmines Castle. Those opposed to the building of the road were successful - partly - twice before the courts, but the Government moved to rectify the situation and it now appears as if the JCBs can swing back into action. All of which gives me the chance to dredge up a piece I wrote a few months ago about another aspect of the affair:

[blockquote]So, unless one of the more conservative Irish Supreme Courts comes abseiling to his rescue, Vincent Salafia is going to have to stump up the entire €600,000 his challenge to the construction of the M3 earned for the mocha sippers in the Law Library. But this isn’t the place to engage in an increasingly popular pastime of beating the anti-lawyer drum (or the slightly more avant garde one of bashing the current bench for its conservatism). Rather, we should ask if the fiscal condemnation visited on Mr Salafia is a sign of things to come. All over the country, groups of residents and determined individuals are retaining legal counsel to prevent the imposition of undesirable developments. But is it time for environmentalists and concerned residents to wake up and smell the steaming tar? Does the Salafia decision indicate that the courts have had enough of protracted legal challenges to decisions made by expert administrative tribunals?

Perhaps they have. After all, such expert bodies are important – apart from the planning authorities, examples include the Competition Authority, the Refugee Appeals Tribunal and the Personal Injuries Assessment Board. As the then Chief Justice, Thomas Finlay said in the early 1990s, the local planning authorities and An Bord Pleanála have “special skill, competence and experience in planning questions”. The courts, it goes without saying, do not. Further, the adversarial format that legal disputes take is often a poor means of answering complex questions about the balance between the needs of wildlife, wildlife lovers, commuters and neighbours.

Important too is the notion that decisions taken by expert bodies ought not to be interfered with lightly. As the former Supreme Court judge, Hugh O’Flaherty, once noted, “We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.” Where does this judicial attitude come from? Well, members of administrative bodies are appointed by virtue of their being knowledgeable in their particular fields. Further, one supposes that respected experts – who are subject to peer review – do not arrive at their findings lightly or whimsically. They may, on occasion, make errors, but it would do no justice if these were repeatedly corrected by the High Court: routine administrative decisions could be delayed for years and the taxpayer would have to foot the bill for not only costly wrangles over legal minutiae but for the economic burden of delay too. Why bother paying experts, national and international, handsome retainers for giving advice and taking decisions when the High Court will be the final arbiter? In short, the community at large has an interest in seeing roads built, waste disposed of and barren land developed. Of course, regard must be had to the concerns of the environment and wildlife, but those decisions ought to be taken by those who have expertise in striking the appropriate balance.

It is worth clearing out of the way any misconceptions you might have about the courts being there to ‘do justice’. The notion that, whenever aggrieved or treated unfairly, a citizen can grab a bewigged barrister and plead on his knees before the High Court is quite misplaced. In judicial review cases like these ones, judges are not there to ‘do justice’, right wrongs and hum in soothing tones about the litigant’s awful predicament. Judicial review of administrative action is concerned only with the manner in which a decision is made, not the result. It’s the process, not the outcome. For sure, the High Court will correct egregious errors made by administrative bodies, who might, for example, fail to have regard to constitutional rights or normal procedures, or arrive at their decisions by means of a sophisticated version of ‘Pin the Tail on the Donkey’.

But these mistakes are generally limited to less high-profile cases. Where major infrastructural projects like roads, or vital commercial developments are in question, everyone, knowing how high the cost of failure will be, goes out of their way to dot the i’s, cross the t’s and put little smiley faces in the o’s. To have the High Court intervene, a litigant has to prove that the decision taken “plainly and unambiguously flies in the face of fundamental reason and common sense”. That is a high fence to scale. Why is the fence so high? Because the judiciary are happy to render unto Caesar those things which are Caesar’s and leave well enough (expert bodies) well alone.

In a way, litigants like Mr Salafia have been victims of their own excess. The more cases that are taken, the more refined the law becomes: so, the better An Bord Pleanála gets at understanding that law and, thus, at ensuring that its decisions will not be overturned by the High Court.

The Salafia decision could be important. One is moved to wonder, in the wake of the recent revelation that Thomas ‘Slab’ Murphy has yet to cough up legal costs owed to the Sunday Times newspaper two decades after losing a libel action, whether or not Mr Salafia will actually have to endure a lifetime of, say, washing dishes in An Bord Pleanála’s canteen to repay his costs. That may never come to pass, but if the Supreme Court agrees with Justice Thomas Smyth that Mr Salafia has to foot the whole €600,000 bill, it will send a powerful message to all of those who, having made their case unsuccessfully before the planning authorities, wish to drag the process through the courts that they ought to be more cautious about proceeding. Nobody would ever wish for a situation where citizens were barred from the courts for want of money. But those of us sitting in traffic jams can justifiably say that batteries of experts with years of experience should speak louder than a protester with a megaphone and the number of a good senior counsel.
[/blockquote]

Perhaps a bit harsh in retrospect. Individuals do have the right to hold Government to account and it is no bad thing that they force officials to dot their is and cross their ts. Nonetheless, one can have too much of a good thing and Mr Salafia's string of challenges - for which he enjoys minimal popular or political support - are certainly excessive.

Virtual Omerta on Omerta

The Irish Director of Public Prosecutions does not give reasons for any of his decisions. This has long been a bone of contention, which was particularly well-gnawed in the wake of the Brian Curtin saga - we don't know why the judge was prosecuted under a clearly invalid warrant. In the wake of all that, James Hamilton undertook a review of the process, looking at other countries to see whether or not the system can be improved. But, according to a radio interview Mr Hamilton gave yesterday morning, it appears as if no change will be forthcoming. His primary reason is that, on some occasions, it will not be possible for one reason or another to explain the decision - for example, an informant might be involved. And if the DPP says, "I can't give a reason in this case" people will invariably start to speculate. This is a forceful argument (his other argument about the implications for the accused's constitutional right to a good name can, with some imagination, be overcome). But it has to be set against the distress caused to families of victims of crime who are often left with no explanation as to why the murderer of their loved one was not prosecuted. There is no easy answer to this: perhaps the most sensible solution would be to give reasons in certain cases on a trial basis, lasting maybe 12 months. Rather than deal with problems in the abstract, as the report will do, can we not live and learn?

Wednesday, July 26, 2006

Pushing the Boundaries

To the eye of the constitutional lawyer, the current furore – if it can still be so called – over the alleged need to revise the current constituency boundaries in the light of the preliminary census figures, is a delicious nexus of complex legal issues. The simple question for us is this: would the Opposition be successful before the courts if they went down that path? If such a fiendish problem – and that it is – were presented to a beleaguered first year law student, the answer the diabolical examiner would be looking for is ‘No’. Well, ‘No – probably’, as it is impossible to predict exactly the answer the courts would prefer; nonetheless, the arguments rack up against the Opposition.

Before we get to the meat of what the Constitution actually says, we must delve deep into our bag of lawyer’s tricks and pull out two important legal principles: the Presumption of Constitutionality and the Separation of Powers.

The first of these two ominous sounding devices provides that every law passed by the Oireachtas is presumed to be in accordance with the Constitution, until proved otherwise. In the present context, that means that the Electoral Act passed in 2004 benefits from the presumption. This has two effects: firstly, the burden of proof is against the person who is attacking the Act (in other words, they have to show that the Act is unconstitutional); secondly, any legislation, where more than one reading is possible, is interpreted in a manner which would make it constitutional.

The second principle is one with which most readers will be familiar, if only vaguely. It is a disarmingly simple piece of political science: there are three branches of Government – legislative (the Oireachtas), executive (the cabinet) and judicial (the bewigged ones in the Four Courts) – which, in their own ways, act as checks and balances on the others; but if they are to act as checks and balances, it follows that they must be independent: the legislature cannot trespass in the garden of the judiciary; judges cannot cross the line which separates them from the executive; and so on. This was made vividly clear by the Supreme Court in the 2001 case of TD v Minister for Education. There, a disturbed teenager argued that the State had not met the Constitutional requirement – and the authorities had most certainly failed – of providing him with secure accommodation. A series of High Court decisions had instructed the Government to act but nothing was forthcoming; eventually, a furious Justice Peter Kelly made a specific order instructing the Minister to act within a set timeframe. The Supreme Court, however, overturned the order. The Court said that the provision of such services was a matter for the executive; it was not for the judiciary to issue specific instructions on such difficult matters of policy. Only where there was “clear disregard” of constitutional obligations could the courts make such a specific order.

How does this resonate in the present controversy? Well, let us examine what the Constitution says and what the Opposition argues. The relevant provisions are in Article 16.2, which begins by saying that “Dáil Eireann shall be composed of members who represent constituencies determined by law”. So far, so innocuous, one might think. Far from it: the words “determined by law” mean that it is solely a task for the Oireachtas to determine constituencies.

But they do not have an unfettered right to draw the boundaries as they wish. The Constitution goes on to say that there shall at least one member for every 30,000 people and not more than one for each cohort of 20,000; and the last part of Article 16.2 requires that “as ascertained at the last preceding census, as far as practicable” the ratio of Teachta Dála to population shall be the same throughout the country.

The Opposition makes two claims. Firstly, at least two constituencies, based on the preliminary figures, have more than 30,000 people per TD; secondly, the difference in the ratios is as much as 15%, far beyond the 8% discrepancy generally thought to be constitutionally valid. The Government counters that these are only preliminary figures and that the real picture will only be painted by the release of the final figures. But who would win in the courts?

The first problem for the Opposition is the Separation of Powers. Firstly, it is clearly the Oireachtas’ task to set constituency boundaries; not that of the courts. Hoist on the petard of their TD logic, the courts would only be able to intervene if the Oireachtas were in “clear disregard” of its obligations. This is where the Presumption of Constitutionality comes in. If the Electoral Act 2004, based on an actual census, is presumed to be constitutional then it would surely take more than preliminary results to displace it. And by having passed legislation based on the “last preceding census” as the Constitution orders it to, the Oireachtas is hardly in “clear disregard” of its constitutional obligations (though it might be sailing close to the wind).

Game over? Not quite. There is a further complication. While the Oireachtas theoretically has the power to set whatever boundaries it wants (and gerrymander in favour of the status quo), in practice, this is not the case. Ever since the infamous ‘Tullymander’ of the 1970s, boundary revisions have been based on the advice of an independent, impartial Constituency Commission – given official status by the Electoral Act 1997. It was their advice upon which the last revisions were based. It is a Convention of the Constitution – a grand term which denotes an unwritten rule so important that it is followed by parties at all points on the political spectrum – that the recommendations will be made law without any alterations. So, the Opposition might ask the courts not to order that boundaries be drawn, but merely that the Constituency Commission be told to examine the preliminary figures.

But the Electoral Act gives absolutely no guidance as to when a Commission ought to be set up. It envisages that the order bringing the Commission to life – so to speak – is a function of the cabinet. This means that the Opposition is back to square one: the Separation of Powers would preclude the judiciary from ordering that the Commission be established, unless there was “clear disregard” of the Constitution, which I don’t think there is. Furthermore, even if the courts ordered that a Commission be set up, there would be no explicit legal onus on the Government to implement its recommendations: courts have no power to insist that Conventions of the Constitution are honoured; they are moral, rather than legal rules.

Even if the courts did not accept the foregoing argument (and my lawyer’s arrogance makes me presume that they would), there is a further argument in favour of the Government. Even if the courts decided that preliminary figures were enough to justify a judgment of “clear disregard”, the weasel words “as far as practicable” might save the coalition. The substance of their argument would be that, less than a year from a general election, it is not possible to redraw constituency boundaries without creating pandemonium. This line of attack is bolstered by a purposive reading of Article 16.2: in other words, we should ask what the intention behind the provision is. Clearly, it is that groups of people should be able to send forward to Leinster House politicians who will look after their interests. If there were a last-minute adjustment to constituency boundaries, politicians who had worked hard on the ground in a particular area for the last few years would be whisked away to different constituencies, leaving Joe and Joanne Soap in the lurch weeks before an election. That would hardly be fair and it would certainly not chime with the intention behind Article 16.2.

So, in closing, the Opposition’s legal prospects look bleak. The political consequences are an entirely separate matter, of course: it might not be palatable for Mr Ahern and Ms Harney to risk – however remote the chances of losing – a humiliating legal defeat on the eve of a General Election. A writ brandished by Mr Kenny on the steps of the Four Courts might in fact just be enough.

Saturday, July 22, 2006

Smoked Out

Finally! The High Court has said that a "freshwall structure" used as a smoking room in many public houses around the country since the advent of the smoking ban in 2004 are illegal. I'm not sure exactly what a "freshwall" structure is, but I'm not surprised that smoking rooms have fallen foul of the legislation: most of them sail very close to the wind. The relevant law says that either 50% of the perimeter or the roof must be open to the elements if an area is to be considered exempt from the ban on smoking in the workplace.

Funnily enough, Mr Justice Roderick Murphy seemed to miss the point somewhat:

It did not seem to him that the structure concerned was "outdoor". It was not in the common sense "indoor", but was called an "indoor" structure.

"If any structure has a roof and doors then by its very nature it is indoor and not outdoor."


Whether the building was "indoors" or "outdoors" is beside the point. The critical elements are the roof and perimeter. The judge seems to have confused the two, going by that quotation. Nonetheless, this opens up a can of worms. Many of the smoking rooms around the country are, in my view, either not compliant with the legislation, or very close to non-compliance, though obviously not as outstandingly off-the-wall as the High Court example.

The problem for the Office of Tobacco Control and the Department of Health is that most Irish people seem happy with the solution: us non-smokers can sit, stand and dance smoke-free, joining our buddies for a blast of passive if we feel like it, and smokers get to puff away and whinge and moan with their fellow social lepers about the ostracisation they are subjected to. Irish solution to an Irish problem? Sure, but the OTC would be risking a good deal of political capital if it were to make an issue of this.

Road Deaths

The Irish editor of the Sunday Times (or should that be the editor of the Irish Sunday Times?), Frank Fitzgibbon has a comment piece today in which he emphasises the need for individuals to take responsibility for their behaviour on the roads.

The Irish public has endless enthusiasm when it comes to blaming the government for everything that goes wrong in the country, but trying to uncouple personal responsibility from the deadly toll on our roads is just boneheaded.

If I leave my front door open and take off on a fortnight’s holiday, I will return to find the house cleaned out and a thank-you note from the burglar. My open-door policy may even have attracted the attention of squatters. As my insurance company will be quick to point out, the situation is of my own making. Neither will

I get very far by arguing that my taxes fund the gardai and therefore I am entitled to have my property protected.

How does that differ from getting tanked up with booze, getting into a car, driving too fast and taking dangerous risks that lead to bad things happening? Or forget about getting boozed up. If I knowingly break the speed limit and drive recklessly, there is an increased danger of an accident — possibly a fatal one. So when the taoiseach offers the advice that people should “slow down” and “take it easy”, he is talking nothing other than plain, unvarnished common sense.


In all of which he is quite right. But it still does not excuse Government inaction. Drivers can certainly do more, but so can Ministers.

Wednesday, July 19, 2006

Them too busy being born is busy dying

It had to happen sooner rather than later. The issue of what to do with unwanted human embryos has taken on a constitutional dimension. Hard to know exactly how this one will pan out over the next few days. The whole area is fraught with difficulties. Here's one off the top of my head: if an embryo does have constitutional protection (like the unborn child), will the State have an obligation to try and find a womb for it? After all, the State must defend and vindicate any personal rights of the unborn child, the only limitation being that this must be set against the right to life of the mother. Bet Justice Brian McGovern is delighted that this one landed in his lap! Finally, it's impossible to tell whether or not we'll get a Supreme Court ruling on the matter; then again, at least 18 years of child support payments are probably worth an appeal by either side.

Friday, July 14, 2006

Road Deaths and Civil Liberties

To begin with a sociological question, why is it only now that the carnage on Ireland’s roads is attracting such attention? The senseless slaughter has been ongoing for years, but was confined to the middle pages of the news media until a few months ago. Now, every accident, it seems, gets front-page billing. The shift in emphasis is fascinating and cannot really be explained by reference to statistics. Sure, more people have died already in 2006 than at the same stage in 2005, but the year-on-year increase is 20, hardly an exponential rise. What has risen exponentially – a factor rarely considered in the commentary on the subject – is the number of cars on Irish roads. In reality, it may be that, per miles travelled, proportionately less people are dying. Before I’m accused of hard-headedness, I too have lost personal friends to the carnage – and carnage it is – and it gladdens me that this is now recognised as a colossal social problem.

The issue is in the news because of angry outbursts from three Government Ministers over the past few days. The Minister for Transport and the Minister for the Environment have chimed in with the Minister for Justice, who probably summed up the cabinet’s frustration: “Blaming the State is not the way to get on with this. It’s Irish motorists who must get the message. It is dangerous, speedy, drunken and careless driving that is causing deaths, not the gardaí.” Their points are valid, but only to a certain extent. It is true to say that the authorities cannot prevent a maniac from veering across the white line whilst overtaking on a blind corner. But if the cabinet is utterly helpless, why have they introduced new penalty points offences and extremely strong drink-driving legislation? The reason is that law can shape social patterns and individual acts by deterring bad behaviour: punishing people for bad driving will dissuade them from driving badly; eventually, when a number of high-profile prosecutions have gone through and enough drivers at local level know of people who have been punished for reckless driving. No, Government cannot stop mindless acts of wanton aggression, but it can affect the thought processes of those who would commit such mindless acts. That is why they introduce legislation and fund the National Safety Council’s advertising campaigns. And it is not true to say – or even to imply – that there are no measures which can be taken to improve the situation, as we shall see.

What about the legislation which has been introduced? The new drink-driving law, the Road Traffic (Amendment) Act 2006, was passed by the Oireachtas last month and will be operative shortly. It is a draconian piece of legislation: it allows Gardai to set up a checkpoint and randomly breath-test motorists. As a precedent, it is bad law: it inverts the old maxim that the citizen is innocent until proven guilty; with random testing, you are guilty until proven innocent. Traditionally, the authorities would have to demonstrate “reasonable suspicion” or “reasonable cause” before breath-testing you; this was not, as anyone who has ever been stopped at a Garda checkpoint knows, a particularly onerous requirement. I have never been breath-tested, but I have been stopped at checkpoints; if I had been drinking, I’m pretty sure that the Gardai would have been able to form a reasonable suspicion to justify breath-testing me.

Apart from being unnecessary, why is this bad law? It is bad law because it is a bad precedent: what’s to stop the Oireachtas from saying that “International terrorism is a scourge; therefore, the Gardai are entitled to conduct cavity searches at random in train stations”; or “Possession of drugs is a huge problem in modern society; therefore, the Gardai are entitled to go into schools and pick students at random for strip searches”? These are certainly more extreme examples, but there are other, more prosaic ones, which would similarly alter the relationship between the State and the citizen: all nightclub users could be required to turn out their pockets in the presence of a Garda, in the name of stamping out drug use, which would be a most distressing – though probably tolerable – imposition on the innocent. All in all, this law is intrusive, invasive and unnecessary. Reasonable suspicion is not too much to ask.

If the foregoing reads like anarchic libertarian gobbledegook to your more practical mind, consider a serious practical problem: the new law will probably make no difference whatsoever. Yesterday, the Irish Times revealed that drink-driving detections are up 23%. 7,863 people were arrested in the first six months of 2006. Impressive? It sounds like a majestic headline figure, but it works out at 305 motorists per week. Just over 40 per day. Which is about 1.5 per county in Ireland per day. Does anyone seriously believe that only 1.5 motorists drink and drive in every county in Ireland, every day of the week? The simple problem with drink driving is not that the Gardai do not have sufficient powers, but that they do not have enough manpower. They simply cannot detect the vast majority of drink drivers because they do not have enough men manning checkpoints. Unless there is a vast increase in the number of Gardai made available to man checkpoints, the new law will not make one whit of a difference. As with the introduction of the penalty points system, an initial period of compliance will be followed by a steady increase in offences, as motorists realise that their chances of getting away with drinking and driving are no greater than before.

Can other concrete measures be taken? One suggestion that has been mooted is a curfew for young drivers in the hours of darkness. A civil libertarian might have qualms about such a move, but should be able to overcome them: even a minimal state has a duty to protect its citizens, one aspect of which is to license dangerous behaviour. Driving, as an inherently dangerous pursuit, is regulated and no one suggests that it should not be; one is only allowed to drive with the state's permission and there is nothing wrong with the authorities imposing limitations on licenses. Such limitations could take the form of a curfew, or of not permitting young drivers to carry passengers. This is a real measure which could reduce road deaths without endangering civil liberties. Of course it would again require high levels of enforcement. Much less convenient than a headline-grabbing 'checkpoint' law.

Finally, beyond the parameters of this discussion are issues such as driver training. Better-trained drivers would be involved in fewer accidents. That's stating the obvious, but the licensing system is in such a state of chassis at the moment that it needs to be sorted out before any other legs (advanced tests, regular refresher exams) can be added.

Tuesday, July 11, 2006

The Fallibilist

My mate, Karole Cuddihy has given me a plug on his blog so it's only fair to reciprocate, I feel. Karole deals with Irish legal issues as well, but he has a much broader scope than I have, addressing everything from Northern Ireland to Northern Iraq. Do pop along.

Supreme Court Decisions in the 'A' Case

The Supreme Court has finally released its eminently sensible judgments in the ‘A’ case. Cue widespread public relief and applause from the Fourth Estate. Unsurprisingly, the media has missed some of the nuances, with only the ever-sharp Brendan Howlin of the Labour Party warning that the five opinions will need careful perusal. I have only looked in detail at Chief Justice Murray’s decision but I have read the Irish Times’ reports of the others.

For those of you with short memories, Mr A was – briefly – released from prison in May, having been convicted in 2002 of the statutory rape of his daughter’s twelve year-old friend. The circumstances leading up to his release involved another Supreme Court decision, in the ‘CC’ case. There, Mr Justice Hardiman struck down Section 1.1 of the 1935 Criminal Law (Amendment) Act 1935: that provision made it a strict liability offence (i.e. no intention to commit the crime was required for a finding of guilt) to have sexual intercourse with a minor. But the law was struck down for one reason only: ‘CC’ would not have been allowed to

Within days, Mr A applied to the High Court to be released. His case was simple. Article 40.4 of the Irish Constitution says that no person shall be deprived of personal liberty save in accordance with law. The “law” under which Mr A was convicted no longer existed; in fact, like all unconstitutional laws, it was void from the beginning. Therefore, Mr Justice Hardiman’s declaration of unconstitutionality was a “judicial death certificate” and Mr A could no longer be detained.

There was a predictable storm of political controversy in the days following the ‘CC’ decision, the Government’s position not helped when it became clear that there had been a communications foul-up between the Attorney General, the Director of Public Prosecutions and the Minister for Justice, meaning that the ‘CC’ judgment took the Government by surprise. This allied to the fact that the Law Reform Commission had highlighted the potential constitutional frailties with the law in 1990, and at least one academic article had been written late last year warning of just such an outcome in this very case.

The brouhaha only intensified when Ms Justice Laffoy agreed that Mr A ought to be released. At that point, I was heading on holidays for 10 days; such was the public outrage, I genuinely thought that the Government might not be there when I got back. Happily for the Fianna Fáil/PD coalition, the Supreme Court allowed the State’s appeal, Mr A was rearrested and the Government weathered the storm. At the time of the hearing, the Supreme Court gave its decision immediately – as it often does in cases where time is of the essence – and only released its detailed reasons yesterday.

My own argument in favour of the State would have run like this. As an aside, the manner in which Mr A challenged his conviction vexes me: he applied for release under the habeas corpus provisions of the Constitution. The relevant provisions of Article 40.4 read:

"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".

Historically, the habeas corpus protection is there to prevent the State from arbitrarily arresting and detaining its subjects. It was never designed as a vehicle with which an individual might challenge the validity of his conviction. Look at the word “forthwith”: it means that the hearing must be undertaken as soon as possible, at the latest. This puts enormous pressure on counsel and judges to prepare and hear a case: haste is surely unhelpful in such serious matters. The Irish courts have not voiced any concern over this – indeed, in a previous case, cited as precedent by counsel for Mr A, the very same constitutional machinery was used – but it appears obviously incongruous that decisions on critically important matters should be rushed in such a manner. Were it not for the high esteem in which the Irish public holds its judges, the method of giving a decision now, followed by a period of reflection in which the Supreme Court comes up with reasons in support of that decision, would be viewed with a good deal of scepticism. The counter-argument is that the State cannot stand over an unjust detention and a detention based on an unconstitutional law is profoundly unjust. But as the Supreme Court pointed out during the course of the hearing, the detention was not based on an unconstitutional law, but in the first place, on a conviction. Overturning a conviction is a serious matter and ought to be a course adopted only after very careful consideration. Generally, if an individual wishes his conviction to be quashed, as Mr A did, he ought to apply for a writ of certiorari by way of judicial review, with a time frame that allows the issues in these cases to be fleshed out fully.

There are a number of other arguments in favour of keeping Mr A behind bars. The first is one which has not appeared in print to the best of my knowledge. Simply put, it is a nonsense to say that the law was unconstitutional from the date of its enactment (well, the date of the enactment of the Irish Constitution in 1937). If it had been deemed unconstitutional at any point since then, it is virtually certain that the Government of the day would have immediately moved to introduce amending legislation, as happened in the present case. Statutory rape laws exist to protect young girls from sexual predators, there are equivalents in every common law country and no Irish Government would have allowed open season on adolescents at any stage since 1937.

Secondly, Mr A never pleaded that there was an honest mistake on his part as to his victim’s age. He plied the girl with drink and then had intercourse with her. Unsurprisingly, he pleaded guilty. At no point in his trial was he denied the right to a fair hearing or to consult with counsel. As Chief Justice Murray put it, “the conviction and sentence were not tainted by any want of fairness or injustice”. Mr Justice Hardiman was harsher in his comments, stating that Mr A was attempting to “piggyback” on the ‘CC’ case: indeed, one section of Mr Justice Hardiman’s decision is actually headed ‘Piggybacking’!

Thirdly, in technical legal terms, there is no such thing as ‘absolute retrospectivity’; in other words, just because the courts now say that a law is unconstitutional, it does not follow that it never had any effect: the State is entitled to rely on legislation which has been in operation unchallenged for many years. For example, in the early 1980s, in Murphy v Attorney General, a married couple were successful in seeking a declaration that provisions of the 1969 Finance Act were unconstitutional. Did this mean that tax had been collected unconstitutionally since 1969 and that individuals could claim their money back? Quite rightly, faced with such an appalling vista, the Supreme Court said that only the Murphys and others who had lodged claims could apply, and even then, they would only be entitled to money paid after they had initiated their case – in other words, only from after the point that they raised the problem. Similarly, in De Burca v Attorney General, the Juries Act 1927 was struck down as unconstitutional as it discriminated against female jurors. Did this mean that every trial which had taken place under the Act was therefore invalid? Of course not and the Supreme Court made this clear in State (Byrne) v Frawley when an unhappy convict attempted to make just that argument. Or what about McMahon v Attorney General? There, certain provisions in the legislation governing elections to the Oireachtas were deemed unconstitutional. Did this mean that previous elections were suddenly invalid? Surely not.

As the United States Supreme Court once said, quoted by Chief Justice Murray yesterday: “The actual existence of a statute, prior to [a finding of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored”. Commenting later, the Chief Justice said that “the notion of complete or absolute retrospectivity is inherently incompatible with the broader notions of legal certainty and justice in an ordered society….Citizens and State institutions will have ordered their affairs and established relationships and rights based on the law in force”.

The Chief Justice also said that the parts of the Constitution relied on by Mr A could not be read in isolation – a standard judicial technique. While the document itself makes it clear that a law, once deemed unconstitutional, never existed, the Constitution also aims to promote the “common good”. How would the common good be served if a (“loathsome”, to quote Justice Hardiman) man who pleaded guilty to statutory rape could be released on a technicality? We need, as Chief Justice Murray said, “a coherent system of justice in an ordered society”. Simply, the society envisaged by the Constitution is entitled to rely on laws which are in place to punish the wicked and protect the innocent.

Thus, Chief Justice Murray stated at length the following 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”.


It is perhaps worth mentioning a thought which has been lurking at the back of my mind about the difference between the decision of Ms Justice Laffoy and that of the Supreme Court. In classical theory, there are two different conceptions of punishment: utilitarian and retributive. A utilitarian would say that laws exist to serve the greatest good of the greatest number: punishment is only justified if the pain to the offender is less than the overall benefit to society from his incarceration Adapting that principle to a constitutional democracy such as Ireland, one might say that laws exist to serve the common good by removing offenders from the streets, without unduly damaging individual rights; any breach of those laws has to – in order to serve the common good – result in the punishment of the offender. But, as Ms Justice Laffoy pointed out, once the law is gone, there is no justification for keeping the offender locked up. The Supreme Court took an altogether more retributive line. This concept suggests that there be a moral sanction against offenders, as they have breached society’s moral code; a code relied upon to punish heinous crimes. Offenders should get their moral desserts. The latter principle is much less reliant on an orthodox reading of the law, but allows appeals to elusive notions such as ‘justice’ and the ‘common good’. (I should say that I am not ordinarily in favour of introducing such vague notions into the law: I make this point only as an aside).

Finally, do not rush to join in the welter of congratulation kicked off by the media this morning. The ordinarily excellent Carol Coulter of the Irish Times writes on the front page that, “Men who have been convicted of unlawful carnal knowledge of girls under 15 will not now be able to seek their release following the handing down of the Supreme Court's reasons for ordering the re-arrest of Mr A last month.” That sweeping statement ought to be qualified; the Supreme Court certainly qualified it. Earlier, we saw how the Constitution has to be read as a whole: one element of this is that the “common good” is an overall objective; but another is that every individual is entitled, under Article 38, to a trial in “due course of law”. This did not affect Mr A, who was clearly guilty and admitted it, but it might have an effect in other cases. Chief Justice Murray acknowledged, as an exception to the 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”.

So, if an individual convicted of statutory rape did make an honest mistake, it is possible that he could be granted early release; or, if he has already served his sentence, apply for the verdict to be quashed. Another possibility is that an offender might come forward and say “I would have made an argument as to honest mistake, but I could not because it didn’t exist; accordingly, I was advised by my lawyers to plead guilty in mitigation and say nothing about my honest mistake”. Whether or not these situations would come within a “fundamental unfairness amounting to a denial of justice” is a question for another day, but it would be rash to rule out any further challenges: if a defendant was not able to avail of full defences, it is hard to see how he got a trial in “due course of law”. The only factor weighing against such an application is the argument that he could have challenged the constitutionality of Section 1.1 himself. I should also mention that Mr Justice Hardiman’s judgment seems to leave much less wriggle room for those already convicted, for rather complex reasons which the rest of the Court did not join.

Earlier in his judgment, the Chief Justice said that judicial decisions will “apply to cases pending before the courts”. This suggests that the declaration of unconstitutionality in ‘CC’ will prevent the 50 or so outstanding prosecutions for statutory rape from proceeding – that rider only applies to prosecutions under Section 1.1, however, and there may be alternative avenues which the DPP can go down.

In closing, the Supreme Court decisions are much as I expected: a Constitution governs a nation state, not a string of unconnected judicial decisions. The Supreme Court saw the wood and acted accordingly. But this saga might not have ended just yet!