The Supreme Court allowed an appeal by the Governor of Arbour Hill Prison and held that A.’s detention remained lawful under a sentence imposed before the offence provision was declared unconstitutional. The court said completed proceedings based on an enactment later found unconstitutional would not normally be reopened, while leaving open the possibility of exceptional cases where upholding them would be manifestly unjust or oppressive.
A. had pleaded guilty in the Dublin Circuit Criminal Court to unlawful carnal knowledge of a girl under 15, contrary to section 1(1) of the Criminal Law (Amendment) Act 1935. He was sentenced to three years’ imprisonment. The judgment states that he was 38 and knew the girl was 12. He had claimed that, following the Supreme Court’s declaration that the provision was unconstitutional, he had effectively pleaded guilty to an offence that did not exist and that his detention was unlawful.
The High Court, in a judgment by Laffoy J., accepted that argument. A. then sought an inquiry under Article 40 of the Constitution. The prison governor appealed.
The Supreme Court had previously held that the 1935 provision could not be interpreted to include a defence of genuine mistake about age and was inconsistent with the Constitution. In this appeal, the issue was the effect of that declaration on a conviction and sentence completed before it was made.
Delivering the judgment, Geoghegan J. said the Director of Public Prosecutions, the trial court and the prison authorities had acted lawfully when the prosecution, conviction, sentence and detention took place. In his view, the later declaration did not make those completed steps unlawful. He reasoned that laws must be observed until declared unconstitutional and that prior orders in completed proceedings should generally be treated as lawful to preserve an orderly legal system.
The court rejected the governor’s separate technical argument that an Article 40 order could not be made unless the warrant had first been quashed through judicial review. Geoghegan J. agreed with the High Court on that point, but concluded that the detention was lawful on its substance.
The judgment records that the appeal was allowed and that Geoghegan J. supported the order made by the court. It does not set out the precise terms of that order. The court’s general rule was not absolute: the judgment acknowledged that exceptional circumstances might justify an Article 40 order where maintaining a completed proceeding would be manifestly unjust or oppressive.