The Supreme Court allowed an appeal by the Governor of Arbour Hill Prison in a case about whether a later finding that legislation was unconstitutional could reopen a concluded criminal case. In a judgment delivered on 10 July 2006, Ms Justice McGuinness agreed that the Constitution does not establish a general rule of retrospective application for findings of unconstitutionality.
The applicant, identified in the judgment as A., had been convicted of an offence involving sexual intercourse with a girl under the age of consent. McGuinness J. said he had never denied that the act took place, and there was no suggestion that he had been denied due process at trial. He had not challenged the constitutionality of the relevant statutory provision at the time or taken other steps then open to him.
The judge said the law recognises a distinction between declaring a statute unconstitutional and deciding what legal consequences should follow from that declaration. Although a declaration may mean the statute was invalid from the Constitution’s commencement, it does not necessarily follow that everything previously done under it can be undone or will support a claim for redress.
McGuinness J. referred to earlier Supreme Court decisions, including Murphy v Attorney General and McDonnell v Ireland, as showing that retrospective effect is qualified. She agreed with the view that concluded proceedings based on a law later found unconstitutional cannot normally be reopened, in keeping with the finality of legal proceedings. She left open the possibility of an exception where the particular case clearly demands it in the interests of justice.
She concluded that this case did not warrant an exception. The conviction had been reached under the law applicable at the time, and the applicant’s case was not open to attack on the grounds before the court. McGuinness J. said she allowed the appeal. Her judgment records agreement with the reasons given by other judges for allowing it; it does not set out the full terms of any resulting order.