Vincent Browne and the A case

Once again, in yesterday's Sunday Business Post, Vincent Browne attacked the Supreme Court's reasoning in A v Governor of Arbour Hill. He had done so at least once previously, in his Village magazine, and in his Business Post column. I see to remember an Irish Times piece as well. I'm sure Vincent Browne is a busy man, so I won't comment on his re-cycling of one piece into (at least) three.

The background, briefly, is as follows. In May, in CC, the Supreme Court decided that s.1(1) of the 1935 Act was unconstitutional. In A, the Court had to decide whether the CC ruling meant Mr. A should have been released by the High Court. The five judges all agreed that such a result did not necessarily follow, and ought not in this case. (I summarised the sequence of events here after the Supreme Court announced its decision, but before the written judgments were handed down.)

Here from the July 16th Business Post column is what I take to be the crux of Browne's objection to the judgments in the A case:

"what Murray and the other judges established was that the previous findings of the Supreme Court were correct in declaring that a finding that a law was unconstitutional did not necessarily mean that everything done under that invalid law was itself invalid.There are transcendent considerations to be taken into account. If the entire constitutional order would be thrown into disarray by applying the strict logic of a finding of invalidity, for instance, then the court should recoil from that.Most of us would agree with that proposition. But the judges went beyond that, for reasons that I could not detect in their judgments. They leapt from the position that a finding of unconstitutionality does not necessarily invalidate everything done under the invalid law to a finding that virtually everything done under the invalid law was OK. That seems absurd to me.If this is so, what is the force of a finding that a law is unconstitutional?If everything done under that unconstitutional law until then stands, the only effect of a finding of unconstitutionality is that what is done henceforth under such a law would be unconstitutional - and that doesn’t amount to a lot.Surely, the reasonable position is as it was until the Supreme Court devised its judgments in the A case: that, apart from exceptional circumstances where the constitutional or societal order would be at risk, everything done under an invalid law would be invalid.But it is what the Supreme Court ordered on June 2 that I find incomprehensible. It issued a warrant for the arrest of Mr A on the basis of his conviction for an offence that it had found ten days earlier did not exist.I can anticipate the argument that will be advanced in favour of this: the Supreme Court had found that, although Section 1 (1) of the 1935 act was unconstitutional, it was not prepared to give this finding retrospective effect - that a conviction under this invalid law was unlawful - and that, since this man - according to the court - was lawfully convicted and imprisoned, it was proper that he would serve out the rest of his sentence.But, but, but . . .the man had been freed and here was the Supreme Court intervening to have him imprisoned on the basis of a law it had found was invalid - in other words, a law that did not exist."

A few brief comments. Browne has repeatedly said Mr A was re-arrested and detained under a law that "did not exist". In what sense does a law exist? It exists once promulgated according to the Constituion. It can be repealed by the legislature. Or it can be held unconstitutional by the High Court, or on appeal the Supreme Court. In the former case, where the legislature repeals a statute, the law in question no longer henceforth has the force of law. It cannot be enforced or applied because an appropriate body has said so. The High and Supreme Courts have the right, indeed the duty, to interpret the Constitution. They have explicit power to review legislation when called upon by litigants. If such legislation is inconsistent with the Constitution, the Court can (indeed, must) so declare. The legislation, approved by the people's representatives, may no longer be enforced or applied, because the Court has said so. This is a great power in a democratic state for unelected judicial officers to exercise. According to the Constitution, only laws consistent with it carried over past its enactment in 1937. Thus Browne would argue that since s.1(1) of the 1935 Act has been held (in 2006) to be constitutionally invalid, it can never have existed. Therefore, everything done under it must be void and of no effect.

Browne admits (not that it could be denied) that the facts of Mr. A's offence disclosed "an odious, repellent person who did an unconscionable act: having sexual intercourse with the 12-year-old friend of his daughter, whom he got intoxicated before raping." Though Browne might not like the comparison, there is not a hair's breadth between that comment and Hardiman J.'s remark that Mr. A was a "singularly undeserving candidate" for release. Be that as it may, Browne is troubled by the Supreme Court's decision and reasons: He says that "one of the safeguards we supposedly have of our liberties is that the Supreme Court will always stand by the law, at all times, irrespective of how unpopular or how difficult." (Fiat justitia, ruat coelum. "Let justice be done, though the heavens fall.") Before going on, I may well be guilty of referring to different of the several pieces cited at the beginning. I won't claim he has said anything I don't honestly and fairly think he has argued.

First of all, his argument that it is incongruous to re-arrest a man on the basis of a law that has been struck down approaches the issue backwards. The High Court (in the person of Laffoy J.) ordered Mr. A's release. The State appealed, as it was perfectly entitled to do. The Supreme Court said Laffoy J. had been wrong to do so. It said that Mr. A should never have been released, for the lengthy reasons given in its written judgments. It would be one thing if Mr. A had been arrested for the first time after the CC decision. That could not have been done because the law no longer had any force. There is a difference between that and declining to order the release of a man who pleaded guilty to the substantive offence, did not attempt to bring (and could not have succeeded in) a constitutional challenge along the lines brought by CC, who received a fair trial and a just sentence. Mr. A's lawyers could in fact point to no right, substantive or procedural, constitutional or otherwise, which was being breached by his continued detention. That is, unless one believes in a right not to be tried and convicted under a provision which is later held unconstitutional. Even then, it would have been quite unjust for Mr. A to benefit collaterally from the ruling in CC, given the very different facts of his own case.

Browne's argument assumes, but does not justify, a concept of absolute and complete retrospective effect of findings of consitutional invalidity. Using his logic, would not acquittals under the old s.1(1) now be of no effect? He suggests that the Court's jurisprudence before now was based on the rule that: "If the entire constitutional order would be thrown into disarray by applying the strict logic of a finding of invalidity, for instance, then the court should recoil from that." He does not justify this distillation from the previous case law, principally because, I would argue, he cannot. How does he (I assume) accept the ruling in The State (Byrne) v. Frawley [1978] IR 326 and simultaneously reject the A ruling. In The State (Byrne) v. Frawley as Hardiman J.'s judgment noted:

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 [in which part of the Juries Act 1927 was held unconstitutional]. 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.

In Hardiman J.'s words, Michael Byrne's argument "failed, and without any U turn on the fundamental issue of inconsistency". Admittedly Byrne knew (or ought to have known) of the de Burca ruling before the jury was empanelled in his trial, whereas Mr.A's trial took place before the relevant statute was struck down. But why, Mr. Browne, are the following remarks of Henchy J. in The State (Byrne) v. Frawley not sufficient to justify the decision that Mr. A ought not to have been released?:

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 what way respect would the "the entire constitutional order ... be thrown into disarray " had Michael Byrne's case succeeded, whereas it would not have had Mr. A's done so? That is what Vincent Browne must answer in order to justify his suggestion that the Supreme Court was wrong to decide Mr. A's case the way it did. And what about McDonnell v. Ireland [1998] 1 IR 134?

Better still, let him justify "an all inclusive statement of a principle of absolute retroactive invalidity" (Chicot County Drainage District v. Baxter State Bank [1940] 308 U.S. 371) save in circumstances where "the entire constitutional order would be thrown into disarray" on its merits. Perhaps he would also like to look at the jurisprudence from other countries, such as India, Canada and the United States, mentioned in the judgment of the Chief Justice (which, to be fair, Browne has praised as an intellectual tour de force) and explain why those countries' courts are wrong and he is right? Does he not agree with these words of Denham J.?:

"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."

In the end, constitutional law is infused with matters of public policy. The right the superior courts have to review legislation for constitutionality must have a correlative duty to see that that power does not become "a tool of chaos". I have to say though, that while I seldom agree with Vincent Browne, I have begun to read him more frequently, rather than less, not only because reading commentators with I disagree forces me to refine and think through my own arguments, but also that it is good to see the law, particulatly constitutional law, being discussed outside specialist circles. There is much scope, of course, for improvement in regard to the tenor and frequency of such debate, but I think the Irish media would probably be worse off were the likes of Mr. Browne not raising the type of questions he raises about the Mr. A decision, however much I think the Supreme Court was correct, and Mr. Browne not so.