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!