Mr. A v Ireland
“Splendid!” exclaimed Senator Norris. The Minister for Justice had just informed the Seanad that the Supreme Court had allowed the State’s appeal and ordered that Mr. A (as he was known) be re-arrested. Relief must have coursed through government veins; the political storm had abated – at least for now. Quite apart from the immediate context of the re-arrest of Mr. A (and indeed the political uproar of recent days), the Court’s decision has important and interesting legal implications.
The background to this episode will be known to most readers. On May 23rd the Supreme Court held that section 1(1) of the Criminal Law Amendment Act 1935 was constitutionally invalid. That case, CC v. Ireland, involved a man now aged 23. He was charged with four offences under s.1(1), which made it an offence for any person to have unlawful carnal knowledge of (i.e. sexual intercourse with) any girl under 15. This was the offence usually referred to as “statutory rape”. (Under section 2, which was not challenged by CC, a similar offence was created in relation to girls aged less than 17.) An offence under section 1 was punishable by a sentence of up to life imprisonment.
The consequence of the wording of the legislation was that the offence was committed where the fact of intercourse and the fact of the girl’s age at the particular time were proved. No mental guilt (in legal Latin, mens rea) needed to be proved; and it was irrelevant whether the girl had in fact consented. The clear and admirable aim of the law was to protect young girls from sexual predators. The question of consent should not arise, because they were not deemed capable of making such a decision. Given their youth, they should be protected “not alone against lustful men, but against themselves” (per Maguire CJ. Attorney General (Shaugnessy) v. Ryan  IR 181).
The wider question of the age of consent did not arise in CC’s case. Rather it was claimed that s1(1) was inconsistent with Article 38.1 of our Constitution (which states that no person may be charged with a criminal offence “save in due course of law”) and with his personal rights under Article 40, because an accused person had no defence whatsoever, irrespective of the circumstances. When the incidents in relation to with CC was charged were said to have taken place, he was 18. The girl in question was under 15. He said she had told him she was 16, that he had believed her, and that she had consented to all that had taken place. The crux of his case was that he had no defence in law, even where he honestly believed that the girl was over 15, and had reasonable grounds for so believing. Counsel for CC cited American and Californian case law. In one Canadian case, Wilson J. stated as follows:
“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.”CC said he had not intended to do any harm; the law, however, said that his state of mind at the time of the incident was always completely irrelevant. Because of this, CC argued that the law failed to protect his dignity and right to a good name; and that his trial would not be in “due course of law”, because he would be made a criminal despite not being mentally blameworthy. In July 2005, the Supreme Court gave judgment on another aspect of CC’s case, and seemed to hint that the sub-section was constitutionally frail. It wasn’t until last week that the Court handed down its decision holding the sub-section to constitutionally invalid. Mr. Justice Hardiman, giving the unanimous decision of the Court, said:
"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."
Hardiman J. said that such a finding “cannot reasonably be regarded as surprising”.
A week later, Ms. Justice Laffoy was faced with an application by a man, identified only as Mr. A (in order to protect his victim), for release. This man had plied a 12 year old girl (a friend of his daughter) with alcohol and later had sexual intercourse with her. The man was convicted under s.1(1) and sentenced to three years imprisonment. He argued that, since the Supreme Court had held in CC v. Ireland that s.1(1) was constitutionally invalid, this invalidity must have existed since 1937, when the Constitution was enacted. Therefore, he said, s.1(1) had effectively perished in 1937 and his conviction was of no legal validity. On Tuesday May 30th Ms. Justice Laffoy accepted this argument and ordered his release. The Irish Times the next day argued she had “had no choice”, given the Supreme Court’s decision. My own reaction was similar. The prospect arose of several dangerous individuals who had committed heinous crimes being released prematurely. Not only that, but their names would likely be removed from the sex offenders’ registry.
The State asked the Supreme Court for an early appeal date, which was set for Friday June 2nd. Gerard Hogan SC, the doyen of Irish constitutional lawyers, represented the State. He argued that, were the Court to sanction the release of Mr. A (and others like him), it would represent the triumph of abstract and absolute legal logic over justice. Although the Constitution was a “marvelous charter” of freedom, justice and liberty, it was also a charter of order and was concerned to protect victims of crime and the greater good. The decision in CC’s case should be held to have created a gap in the law through which individuals like Mr. A could march. The cases of CC and Mr. A were completely different: Mr. A had pleaded guilty; he had neither appealed his conviction nor challenged s.1(1) on constitutional grounds; and no one could claim he would have been able to make the “honest mistake” argument in any event. He knew the age of his victim. For the released prisoner, Conor Devally SC, argued that the liberty of the individual was fundamental to the Constitution. If the State could not show that a person was fairly convicted of an offence “in accordance with law” it had no right to imprison that person. The legislation had always since 1937 been invalid, even though it was only in 2006 that this had been judicially determined. The fact that most people might regard Mr. A’s incarceration as just did not change the fact that he had been convicted under legislation that was constitutionally invalid. (At the moment I’m reading Fareed Zakria’s The Future of Freedom: Illiberal Democracy at Home and Aboad. Zakaria describes the U.S. Bill of Rights as “a list of things that the government may not do, irrespective of the wishes of the majority.”) The effect of Mr. Devally’s argument seems to be that every individual convicted under s.1(1) could have their convictions quashed, and that anyone in prison solely for offences under s.1(1) could be released.
The Court rejected what Chief Justice John L. Murray, announcing the decision at around four o’clock on Friday afternoon, called Mr. Devally's "novel assertion", and ruled in favour of the State. Although we await the Court’s detailed reasons for its decision, we may speculate on the approach it may take. According to news reports, Mr. Hogan cited U.S. and Canadian authorities (i.e. case law), to the effect that it was open to the Supreme Court to limit the consequences of a declaration of invalidity. These may have included Linkletter v. Walker 381 U.S. 618 (1965), where the U.S. Supreme Court held that it had the power to withhold complete retroactive effect for its rulings, by looking, among other things at the “purpose and effect” of the constitutional decision. The courts were not restricted to either upholding legislation or holding every act under the legislation to be invalid. This third path seems to have been taken by our Supreme Court in Mr. A’s case.
In 1980, in Murphy v. Attorney General  I.R. 241, the Supreme Court declared that certain parts of Income Tax Act 1967 were unconstitutional, because they had the effect of taxing a married couple more heavily than an unmarried couple. This opened the possibility that couples could reclaim tax payments made over the preceding 12 years. The Chief Justice of the time (Tom O’Higgins) held that the unconstitutionality should only have effect from the date of the Court’s declaration. His four colleagues, however, disagreed and held that “the date of enactment [was] the date from which invalidity is to attach to the measure which has been struck down [as unconstitutional]”. In passing, Henchy J. said (although the point did not directly arise in Murphy) that a declaration of invalidity in relation to a pre-1937 statute amounted to “a judicial death certificate [for the legislation], with the date of death stated as the date when the Constitution came into effect”.
CC’s case had involved a 1935 statute. If, as Henchy J. might have argued, s.1(1) was invalid ever since 1937, how could a conviction under it be lawful? After all, the central plank on which the State based its claimed right to imprison Mr. A seemed to have been kicked away by the decision in CC’s case. Not so, it now appears. The Supreme Court in Mr. A’s case seems to have turned away from the pure logic of such a position and tempered the law with pragmatic considerations and with a welcome concern for the rights of victims, as well as public order and the common good. The community has a legitimate right to have serious criminal offences punished accordingly. An accused person has the right to a fair trial and to his personal rights, including his right to a good name. After Friday, it seems that the courts will distinguish between the constitutionality of legislation per se and the validity of acts done under the same legislation. When the latter are challenged, the court will have to be open to countervailing considerations of the public good, while bearing in mind its duty to protect the personal rights due to each citizen and protected by out Constitution.
CC may not have been granted his due by the old law, but Mr. A's legitimate interests had not been prejudiced in any concrete manner. The scope of the statute’s constitutional invalidity did not extend to the facts of his case. Some legal philosophical purists might question the logic of the Court’s decision, but few have so far been in evidence. In the CC case, counsel for the State had asked the Court declare that s.1(1) was constitutionally invalid only to the extent that it failed to provide a defence of honest and reasonable mistake. The Court declined to do so. It held that it was not for the courts to re-write legislation. Section 1(1) was invalid, but there were various possible constitutionally permissible laws that could achieve the same goal. It seems from the news reports that the Court has now declared that the ruling in CC is to be interpreted as only allowing successful to challenges by applicants who could have made the same or similar arguments to CC. The distinction between the two cases seems to be as follows: In CC the Court was unwilling to be seen to dictate to the legislature the scope of amending legislation, but in Mr. A’s case it bit the bullet and dictated to the courts the manner in the constitutional decision was to be interpreted. The point might be a fine one; and indeed at this point it is speculation on my part.
The Court’s reasoning will become clearer when the written judgment(s) are handed down, but one suspects the Court had in mind some of the considerations mentioned by Henchy J. in Murphy’s case:
Once it has been judicially established that a statutory provision enacted by the Oireachtas is repugnant to the Constitution, and that it therefore incurred invalidity from the date of its enactment, the condemned provision will normally provide no legal justification for any act done or left undone, or for transactions undertaken in pursuance of it; and the person damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress.
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, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognize that there may be transcendent considerations which make such a course undesirable, impractical, or impossible. Over the centuries the law has come to recognize, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitation, 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. (emphasis added)
The Supreme Court may simply reason that Mr. A suffered no prejudice by operation of the statute, even though the statute was constitutionally invalid. In rejecting the pure logic of the Mr. A's argument, the Court has accepted that in this instance "transcendent considerations which make such a course [namely releasing Mr. a and others like him] undesirable". Not the least of those considerations, it might be ventured, is the necessity that the law should retain at least some degree of public faith.