The Court of Appeal has dismissed appeals by three prisoners who sought release under Article 40.4.2 of the Constitution after an earlier ruling invalidated the statutory power used to designate controlled drugs. It refused to direct their release.
The three men had pleaded guilty to offences under section 15A of the Misuse of Drugs Act 1977 involving drugs valued at €13,000 or more. Their appeals challenged a High Court judgment of 24 April 2015 that had refused release orders. The Court of Appeal heard the appeals together by agreement.
The appeals followed the Court of Appeal’s decision in *Bederev v Ireland* in March 2015. That decision declared section 2(2) of the 1977 Act unconstitutional because it allowed the Government to designate controlled drugs without sufficient principles and policies set by the Oireachtas. The prisoners argued that the substances in their cases had therefore not been controlled drugs when they possessed them, were convicted, or were sentenced.
The Governor respondents accepted that, if *Bederev* was correctly decided, the statutory instruments purporting to designate the substances were invalid. They argued, however, that the Supreme Court’s decision in *A v Governor of Arbour Hill Prison* meant the completed convictions and sentences remained lawful despite the later constitutional ruling.
The Court of Appeal said it was bound by *A*. That decision established a general rule against reopening concluded criminal proceedings following a later declaration of unconstitutionality, while leaving open a narrow possibility of exceptions for wholly exceptional circumstances involving fundamental unfairness or a denial of justice.
The prisoners argued that their cases were exceptional. They said the offences concerned conduct wrong because it was prohibited, rather than inherently wrong, and that the lawmaking defect in *Bederev* was fundamental. Joseph Carberry also relied on an earlier application seeking an extension of time to appeal his conviction and sentence. The court held that the application did not amount to an appeal already in existence.
The court found no basis to distinguish the three cases from *A*. It noted that each prisoner had pleaded guilty and that the criminal proceedings had reached finality before the Article 40 applications, which it described as collateral attacks on those proceedings. It dismissed all three appeals and refused orders directing their release. The judgment did not overturn the convictions or sentences.