The Supreme Court allowed an appeal by the Governor of Arbour Hill against a High Court order directing the release of A., who was serving a prison sentence imposed under a law later declared unconstitutional.
In reasons delivered by Denham J. on 10 July 2006, the Court held that declarations of unconstitutionality generally apply to the parties in the case that produced the declaration, or to identified litigants in related proceedings, and prospectively. They do not ordinarily apply retrospectively to unrelated cases. Denham J. said an exception might arise in wholly exceptional circumstances, but found none here.
A. had been sentenced in November 2004 to three years’ imprisonment for an offence under section 1(1) of the Criminal Law (Amendment) Act 1935. The sentence was to run from 8 November 2004. In May 2006, in separate proceedings brought by C.C., the Supreme Court held that the section was inconsistent with the Constitution because it imposed strict liability and did not allow a defence of mistaken belief as to age.
A. then sought habeas corpus, arguing that the declaration meant he was detained for an offence not known to law. The High Court ordered his release, reasoning that the section had not been carried forward by the Constitution and that the declaration made his detention unlawful. The Governor appealed.
For the habeas corpus application, the parties agreed that A. was 38 at the time of the alleged offence in May 2003, that the complainant was 12, and that A. knew she was under 15. It was also conceded that A. could not have challenged the section’s constitutionality before the C.C. decision.
Denham J. distinguished a law’s invalidity from the question of how a declaration of invalidity applies. Although the 1935 provision was deemed not to have continued in force from 1937, she said that did not settle the consequences for cases outside the litigation in which it was struck down. A general retrospective approach, she concluded, could unsettle past convictions and other situations built on laws treated as valid.
A. was not a party to the C.C. proceedings, had not begun related litigation or group proceedings, and the Court found no wholly exceptional circumstances. Denham J. said she had allowed the appeal. The judgment’s stated conclusion was that A. was not entitled to retrospective application of the declaration. The source does not set out a separate formal order beyond allowing the appeal.