THE SUPREME COURT
IN THE MATTER OF ARTICLE 40, SECTION 4, SUBSECTION (2) OF BUNREACHT NA hÉIREANN
THE GOVERNOR OF ARBOUR HILL PRISON
JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of July 2006
1. The crucial issue in this case is whether in the event of a declaration of unconstitutionality of a pre-1937 statutory enactment creating an offence, all previous convictions and sentences for such offence must be treated as nullities. The learned High Court judge, Laffoy J., has taken the view that that is the position in law. I beg to differ, for reasons which I will elaborate upon in this judgment. In short, I believe that on any reasonable interpretation of Bunreacht na hÉireann, convictions and sentences pursuant to enactments not declared unconstitutional, are at the very least deemed to be lawful at the time of the relevant court orders and must be treated as remaining lawful following on a declaration of unconstitutionality.
2. Before I consider these questions in any depth, I think it important that the background to and context in which this case came to a hearing should be fully set out in one judgment. I propose to do so as briefly as I can.
3. Originally, two separate applications for judicial review relating to sex with a girl under 15 came on for hearing before Smyth J. in the High Court. There was similarity between the issues in each case but they were not identical. In each case, however, the respective applicant was seeking to establish in advance of a criminal trial that a genuine mistake as to age would be a good defence but the circumstances were slightly different. In one of them C.C. v. Ireland which is the case ultimately relevant here, the suggestion was that section 1(1) of the Criminal Law (Amendment) Act, 1935 which created the offence of unlawful carnal knowledge with a girl under the age of fifteen implicitly incorporated mens rea so that genuine mistake of age would be a good defence. In the other case, P.G. v. Ireland, the offence was the common law offence of sexual assault but under the provisions of section 14 of the same 1935 Act, consent was no defence if the girl was under fifteen years of age. The issue therefore of whether mistake as to age could be a defence or not arose also in relation to that offence. Each applicant had a fallback position. Each, if necessary, was claiming to have the relevant statutory provision declared unconstitutional if the court took the view that the mens rea element could not be read into it.
4. Smyth J. correctly considered that these issues were not appropriate to be dealt with by way of preliminary judicial review but should be left to the trial judge. However, he nevertheless went on to express views on the issue in favour of the Director of Public Prosecutions and against the applicants. In these circumstances on appeal to this court, this court reluctantly, decided that as a matter of justice it would have to decide the issue of a defence of mistake as to age though it left to the trial court issues about onus of proof and burden of proof. The court took that view because once a High Court judge had expressed an opinion on the issue albeit obiter, it was inconceivable that a trial judge in the Circuit Court would rule otherwise.
5. Largely influenced by a body of modern English case law in the House of Lords and, indeed, the Court of Appeal also, this court unanimously held that mistake as to age was certainly a good defence in the case of the sexual assault charge. The court, however, by a majority of four judges to one took a different view in relation to the C.C. case which was dealing with the statutory carnal knowledge offence. The majority judgments were delivered by myself and Fennelly J. These were concurred in by Hardiman J. and McCracken J. with Denham J. delivering a dissenting judgment. Fennelly J. and I reluctantly came to the view for the reasons set out in our respective judgments, delivered the 12th July, 2005, that having regard to the structure of the 1935 Act and the express wording in some other sections and its statutory antecedents it was impossible to incorporate by implication the defence of mistake as to age or in other words a mens rea element.
6. Because this view was taken by the majority of this court, it then became necessary to consider the constitutionality of section 1(1) of the 1935 Act. A court consisting of Murray C.J., Hardiman, Geoghegan, Fennelly and McCracken JJ and, therefore, slightly differently composed, unanimously held by concurrence with a single judgment delivered by Hardiman J. that the subsection was not consistent with the Constitution and had, therefore, not been carried over.
7. I should mention at this stage that the facts in the C.C. case gave rise to a genuine possibility at least that the defence of mistake as to age, if it existed, might be sustained. C.C. was eighteen years of age and was charged with having had unlawful carnal knowledge of a girl under the age of fifteen years. At all times he admitted having sexual intercourse with the girl but claimed that it was with consent. He alleged that the girl had told him she was sixteen years of age. Mr. A. the respondent on this appeal, following on the judgment of the Supreme Court on the constitutionality issue, applied for an Article 40 Inquiry in the High Court. The basis of the habeas corpus application was that the respondent pleaded guilty in the Dublin Circuit Criminal Court to a count of unlawful carnal knowledge with a girl under 15 contrary to section 1(1) of the Criminal Law (Amendment) Act, 1935 and was sentenced to three years imprisonment by Judge O’Donnell. The respondent at the material time was aged 38 and the girl 12 a fact which he then knew. Nevertheless he has claimed that as a consequence of the declaration of unconstitutionality he had effectively pleaded guilty to an offence that did not exist and that, since the warrant referred to this offence, it was itself bad on its face and that his detention was, therefore, unlawful. That submission was upheld in a closely reasoned judgment of Laffoy J. In my view, the conclusion arrived at by the learned judge is incorrect.
8. It is a fallacy to assume that once it is declared that a pre-1937 statutory provision creating an offence is inconsistent with the Constitution and was, therefore, not carried over, prior court orders made pursuant to proceedings under it must be treated as nullities.
9. Other members of the court have reviewed in some detail the Irish case law relevant to the issue including Murphy v. The Attorney General  I.R. 241, de Burca v. Attorney General  I.R. 38, O’Donovan v. Attorney General I.R. 114, McMahon v. Attorney General  I.R. 69, McDonnell v. Ireland  1 I.R. 134 and particularly, The State (Byrne) v. Frawley  I.R. 326. It is important to emphasize that while there are passages in and aspects of all these cases which have relevance to and are helpful in determining the issue which this court has had to consider, none of them in my opinion can be relied on as decisive authorities either in favour of the view which this court has taken or the view which Laffoy J. took in the High Court. There are, however, important dicta in them which indicate that, for reasons of good order, “inexorable logic” does not necessarily determine legal consequences.
10. At this point, it is useful to refer to a comment made by the learned editors of the fourth edition of Kelly on the Irish Constitution at p. 895. This comment is already cited in the judgment of Hardiman J. It reads as follows:
11. Hardiman J. has expressed agreement with that comment and so do I. The obiter dicta of Henchy J. in Murphy v. The Attorney General have always been treated with the greatest respect as was done by the learned trial judge in this case. But in so far as they fall outside the context of that particular case referring to the recovery of back tax by the party to the action they must be treated with caution. I am not suggesting in any way that the statements of principle by Henchy J. are incorrect. But he himself has used qualifying words such as, for instance, the word “normally”. More importantly, in my view is his implied approval of the dicta of Hughes C.J. in the judgment of the United States Supreme Court in Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371 at 374. That passage expressly cited by Henchy J. reads as follows:
“The question of the time from which a law, which has been declared inconsistent with or invalid under the Constitution, is to be considered a nullity and the closely related question of the retroactive potential of such a declaration, are matters which for many years escaped scrutiny altogether and in the last thirty years or so have only been partially explored.”
12. Henchy J. goes on to comment as follows:
“The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County (1886) 118 U.S. 425 at p. 442; Chicago, I & L. Rly. Co. v. Hackett (1931) 228 U.S. 559 at p. 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects – with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”
13. In introducing the Chicot case, Henchy J. at p. 321 does refer to the fact that the United States Supreme Court is unencumbered “by any constitutional imperative such as is contained in Article 50 or Article 15, s. 4, sub-s. 1, of our Constitution”. It is clear in my view that Henchy J. did not consider this qualification to be relevant to the point he was making and in particular to his reliance on the dicta of Hughes C.J. I say this because he goes on to point out that the approach enunciated by Hughes C.J. has been adopted by the United States Supreme Court “even in cases where the statute has been declared to have been invalid ab initio.”
“In other words, it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case, and suchlike matters, may require that the force and effect be given in certain cases to transactions carried out under the void statute.”
14. The part of that passage of Hughes C.J. to which I would draw particular attention is his reference to “prior determinations deemed to have finality and acted upon accordingly”. The use of the word “deemed” brings in a concept which, as will emerge later on in this judgment, is to my mind highly relevant.
15. Before I reach that stage however, I would like to refer in greater particularity to the judgment of O’Flaherty J. in McDonnell v. Ireland cited above. As I have already indicated, I believe that the precise issue which arises in this case has to be decided by this court for the first time because I do not think that there is any authority directly in point one way or the other. In attempting that exercise, I find assistance from the judgment of O’Flaherty J. It reinforces my own thinking as to how the lawfulness or otherwise of previous proceedings and therefore of the respondent’s detention should be considered. O’Flaherty J. recalled that O’Higgins C.J. in his minority judgment in Murphy v. The Attorney General, had concluded that a declaration as to the invalidity of a law having regard to the Constitution could only operate from the moment such invalidity was declared. The former Chief Justice had based that view both on the wording of the Constitution and on the “requirement of an ordered society”. As O’Flaherty J. points out, O’Higgins C.J. had opined that the idea that a declaration of invalidity operated to say that the provision was void ab initio “would provide … the very antithesis of a true social order – an uneasy existence fraught with legal and constitutional uncertainty.”
16. I entirely agree, however, with the view then expressed by O’Flaherty J. that the approach of the majority in Murphy v. The Attorney General while holding that the declarations of invalidity operated ab initio “produced more or less the same result.” There were severe limitations on the right to recover back tax. I also agree with the conclusion of O’Flaherty J. at p. 143 of the report stated as follows:
17. In this connection, I see no difference between post-1937 legislation and pre-1937 legislation. A judge bound under his declaration on taking office to uphold the laws would not be entitled of his own volition to disregard a pre-1937 statute on the basis of his or her own theory that the enactment was inconsistent with the Constitution. Unless and until there is a formal declaration to that effect those laws are binding. They are binding because they must be deemed to be valid and constitutional. Thus in the case of a prosecution under section 1(1) of the Criminal Law (Amendment) Act, 1935 instituted and completed before any declaration of inconsistency has been made by this court, a “good order” interpretation of the Constitution must clearly require that orders and warrants made in a completed criminal case under the impugned provision must continue to be deemed valid. As the Chief Justice points out in his judgment, in this respect the position is no different than the common law practice which has never been constitutionally challenged, that a decision which effectively changes the law does not confer any right to reopen previous court decisions.
“The correct rule must be that laws should be observed until they are struck down as unconstitutional.”
18. The Director of Public Prosecutions was acting lawfully when he commenced the prosecution against the respondent. It is not correct in my view to say that the Director of Public Prosecutions bona fide believed that he was acting lawfully and cannot be faulted on that account but that he was in fact acting unlawfully. Quite simply, he was acting lawfully. I assume that there was a return for trial. That return for trial was itself lawful. The District Court judge making the return for trial was bound under his declaration of office to assume jurisdiction in the preliminary inquiry and properly to consider whether there should be a return for trial or not. Once the respondent was returned for trial it was proper for the Director of Public Prosecutions to prefer an indictment against him. Equally, it was proper for the learned Circuit Court judge, Judge O’Donnell, to have the respondent duly arraigned and to accept the consequent plea of guilty. The learned Circuit Court judge was then not merely entitled but was obliged to impose an appropriate sentence. This he did and that was a custodial sentence. The appropriate warrant to the Governor of Arbour Hill Prison duly issued and thereafter the detention was lawful. It did not become unlawful by reason of the subsequent declaration of unconstitutionality or more accurately, its deemed legality remained.
19. In case there should be any misunderstanding about this and particularly having regard to one of the major submissions made in the High Court by counsel for the Director of Public Prosecutions, I want to make it absolutely clear that in expressing the view that the detention was lawful pursuant to the warrant, I am not invoking any technical point. Actually, I would reject the argument put forward by the Director of Public Prosecutions that there was prima facie a lawful warrant and that a judicial review quashing it would be necessary first before an Article 40 order could be made. In that respect, I am in agreement with the learned High Court judge. It has never been the law that in a clear case where the detention is unlawful, the courts have insisted on a judicial review application first which, after all, could take some considerable time and would obviously involve the usual procedures of application for leave, statement grounding it, statement in opposition and a full hearing etc. If, therefore, the only basis on which the appellant could claim lawful detention was a purely technical one based on the absence of a judicial review order first, I would have no hesitation in granting the Article 40 order. That, however, is not the basis on which I consider that the detention was lawful. It cannot have been the intention of the draftsmen of the Constitution and more properly of the Oireachtas and perhaps more properly still of the people that if a statutory provision creating an offence was found to be unconstitutional, every past conviction and sentence, perhaps going back a large number of years were ipso facto nullities. In interpreting any particular provision of the Constitution it is always necessary to have regard to the general intent of the Constitution as a whole. If such was the devastating effect of a declaration of unconstitutionality in all cases, it would fly in the face of common sense, would be manifestly unjust and would be contrary to any good order in a civilised society. As suggested by O’Flaherty J., the Constitution must be interpreted as deeming orders in completed proceedings prior to a declaration of unconstitutionality to be lawful. A provision that must be deemed lawful is by definition unlawful. It remains the position, therefore, that section 1(1) of the Criminal Law (Amendment) Act, 1935 was notionally never in force from and after the coming into being of the present Constitution but orders made in proceedings completed under it must as a matter of reasonable and orderly interpretation of the Constitution be deemed lawful.
20. In dealing with consequences from declarations of unconstitutionality of statutory provisions there cannot be absolute rules. What I have expressed as my view of the law may not itself be absolute any more than the obiter dicta of Henchy J. Individual cases throw up particular and unanticipated facts which in justice may lead to a different kind of solution. It is impossible for me to speculate now but I do not rule out the possibility that there might be circumstances where it would be manifestly unjust or oppressive to uphold a completed proceeding having regard to a declaration of unconstitutionality. In that situation, if it ever arose, an Article 40 order might be appropriate. Such a circumstance would be exceptional.
21. In the ex tempore decision of this court delivered on the 2nd June, 2006 by the Chief Justice, reference is made to the The State (Byrne) v. Frawley cited above. That case has an important bearing on this case but as I have already indicated, I would not go so far as suggesting that it has a decisive relevance. For reasons upon which I will be elaborating, that case has been of assistance to me and other members of the court in considering the interaction between concepts such as “nullity” and the consequences of a so called nullity. I have already pointed out that what happens happens and such event can never be a nullity in the sense that it must be regarded as never having happened.
22. I think it important to embark on a detailed analysis of the judgments in both the High Court and the Supreme Court in The State (Byrne) v. Frawley. For a proper understanding of the Supreme Court judgments and of the context in which various significant obiter dicta were expressed, it is important to consider first the judgment of Finlay P. (as he then was) presiding over a divisional court of the High Court and with which the other members of the court Murnaghan and McMahon JJ concurred. Hardiman J. has explained the facts of this case in his judgment and I do not think it necessary to go into them in any detail. It was a follow-on from the decision of this court in de Burca v. Attorney General cited above and was a habeas corpus application. The applicant, Mr. Byrne, was claiming that his detention was unlawful although it purported to be pursuant to a conviction and sentence. What had happened was that the de Burca case was decided while a criminal trial of Mr. Byrne before judge and jury was in process. In the de Burca case, this court had held that it was unconstitutional to confine juries to rated occupiers and to exclude women unless they specially applied. As the trial was proceeding, the jury, of course, had already been empanelled. The attention of the trial judge was not drawn to the Supreme Court decision and there was no evidence that the trial judge had any personal knowledge of the details of it. Nor was any application made by counsel for either the prosecution or the defence to have the empanelled jury discharged. Furthermore, the conviction and sentence were appealed to the Court of Criminal Appeal and the alleged invalidity of the jury was not raised as a ground of appeal before that court. There was even a further appeal under section 29 of the Courts of Justice Act, 1924 to the Supreme Court where again the issue never arose.
23. In the de Burca case, five separate judgments had been delivered. In two of them, those of O’Higgins C.J. and Walsh J., the issue of the validity of trials which had already taken place by juries empanelled under the provisions of the Act of 1927 was at least aired. Presumably, it had been an in terrorem argument put forward by the State. Finlay P. at p. 331 of the report in The State (Byrne) v. Frawley cites the respective passages of O’Higgins C.J. and Walsh J. touching on this perceived problem. What O’Higgins C.J. said was as follows:
24. The citation from Walsh J. reads as follows:
“If, then, the property qualification is not in accordance with Article 40, s. 1, and is not saved by any inference to be drawn from Article 38, s. 5, what is to be said of the thousands of criminal jury trials which have been held since the enactment of the Constitution and which have resulted in convictions? Were these trials invalid? I confess that this matter did cause me some concern during the hearing. I have come to the conclusion that, in so far as these trials were held before juries and each jury was fairly drawn from a panel, there could be no infringement of s. 5 of Article 38. The fact may have been that the panel was wrongly restricted, or could have been challenged. However, this does not alter the fact that the trial was a trial by jury and that no person served on such juries who was not eligible. In my view, an irregularity has taken place in the manner in which citizens have been called to jury service – in the same way as an irregularity took place in the manner in which ballot papers were numbered for parliamentary elections up to the decision in McMahon v. The Attorney General. In McMahon’s case the courts were not asked to entertain any suggestion that such irregularity invalidated previous elections nor, in my view, could such a submission have been successfully made. The overriding requirements of an ordered society would invalidate such an argument. In this instance, the same considerations apply.”
25. It was urged on the Divisional Court by counsel for Mr. Byrne that those expressions of opinion by the Chief Justice and by Walsh J. were strictly obiter dicta and, of course, no view had been expressed by any of the other three judges. In the event, Finlay P., in his judgment, accepted the views of O’Higgins C.J. and Walsh J. and in the light of that held with the concurrence of the other members of the court that there had been a waiver of any right Mr. Byrne might have had and that such waiver would have been valid.
“There remains the subject that was raised in the course of the submissions to this Court concerning the validity of all the verdicts and acts of juries empanelled and acting under the provisions of the Act of 1927. It was suggested that the verdicts of all such juries could be impugned because the juries were not empanelled in accordance with the law as I believe the law to be, in that persons who were not within the designated valuation figures and women were not empanelled as jurors because they were not called for jury service. The implications of this might be thought to be frightening; but whether they are frightening or not has nothing to do with the task of interpreting the Constitution which falls upon this Court. If an infringement of the Constitution were to continue long enough, the cost of correcting it might be great but that is not a reason for perpetuating it.
However, I think that these frightening prospects, which the Court has been invited to view, need not trouble us. If all the juries that were empanelled in the past and tried cases and gave verdicts were empanelled in accordance with the provisions of the Act, it means that nobody served on any of these juries who was not entitled by law to do so. Therefore, no verdict was rendered by any jury composed wholly or in part of persons who were not entitled to be on the jury. The fact that persons who were entitled to be called for jury service were not called might well have been the ground for successful challenge to the way in which the jury panel was drawn up. It did not affect the lawfulness of the presence upon the panel of those who were by law and by the Constitution entitled to be on it. That being so, the acts and verdicts of these juries were those of juries composed of properly qualified jurors.”
26. Before leaving that judgment and moving to the judgments of the Supreme Court on appeal, certain comments would seem apposite. Walsh J., rightly, if I may respectfully say so, rejects any idea that the court in interpreting a statutory provision and considering whether it is in conformity with the Constitution or not should have any regard to consequences. That does not mean, however, that in considering what are in fact the consequences of any declaration of either invalidity or inconsistency, the court may not have to fashion special rules relating to consequences especially when to use the words of O’Higgins C.J. “the overriding requirements of an ordered society” would dictate that this be done. That does not mean, as Walsh J. points out, that retrospective invalidity or inconsistency as found by the courts may not result in financial consequences to the State. Each situation may have somewhat different consequences. I am satisfied, however, that it would be wholly against good order if convictions and sentences which were deemed to be lawful at the time they were decided had to be reopened.
27. As was pointed out by counsel for Mr. Byrne in The State (Byrne) v. Frawley, the retrospectivity issue did not strictly arise. Without any intended disrespect to either the High Court or this court a patchwork solution to the problem of how to determine an application which was in reality without merits was available in that case. The importance of the case and its relevance to this case is in the observations made by judges in it and not in the actual decision itself.
28. The appeal to the Supreme Court produced judgments of considerable interest. It was unanimously held that the appeal should be dismissed. The majority of the court consisting of Henchy, Griffin and Parke JJ rejected the reasoning of the Divisional Court but held against Mr. Byrne on a narrower ground. The minority consisting of O’Higgins C.J. and Kenny J. more or less upheld the reasoning of the High Court.
29. The leading judgment for the majority was delivered by Henchy J. In strident terms, he rejected a view which he thought might have been implied in the judgment of the Divisional Court that even if the trial judge had personal knowledge of the de Burca case, he was not obliged to deal with the jury issue unless it was raised before him by counsel and he also strongly rejected the view that the empanelled jury could be considered a valid jury on the grounds that each of them was eligible to be a juror. Henchy J. came to the conclusion, however, that he should assume that the Circuit Court judge did not know about the de Burca case or at least did not know about it in any sufficient detail. He concluded, partly on the basis that the same counsel had been for the defence in each case, that a deliberate and informed decision was made to allow the trial to proceed before a jury in circumstances where the defence knew of the de Burca case. Henchy J. considered that Mr. Byrne was precluded by that election from claiming that the jury lacked constitutionality. In arriving at that view, his opinion was reinforced by the lack of complaint in the Court of Criminal Appeal. It was not until some five months after the trial that Mr. Byrne first complained that the jury had been formed unconstitutionally. This was impermissible in the view of Henchy J. and at p. 350 he observed as follows:
30. The succeeding words in the judgment are also important. They read:
“Having knowingly elected not to claim that right, it would be contrary to the due administration of justice under the Constitution if he were to be allowed to raise that claim in the present proceedings when, by deliberate choice, it was left unasserted at the trial and subsequently in the Court of Criminal Appeal. What has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case.”
31. That last observation should be read in the light of an important passage in the judgment at p. 349. Henchy J. had been discussing a United States Supreme Court case of Taylor v. Louisiana (1975) 419 U.S. 522 where a particular jury system had likewise been condemned as unconstitutional. The passage in question reads as follows:
“In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist.”
32. The particular importance of that passage as far as this case is concerned lies in the reference to it not necessarily following that court orders lack binding force because they were made in proceedings based on an unconstitutional statute. As is by now clear that is firmly my view and I am convinced that good order requires it to be so.
“As the United States Supreme Court has held in a number of cases, it does not necessarily follow that court orders lack binding force because they were made in proceedings based on an unconstitutional statute. So far as the present case is concerned, because of its particular circumstances it is not necessary to decide whether a person who was convicted by a jury recruited under the Act of 1927 and who did not raise the unconstitutionality of the jury, either at the trial or collaterally in the High Court before conviction, could have later successfully impugned his conviction on that ground. Whether he could have done so or not, it would seem that he would now be debarred from doing so. …”
33. It is highly relevant to consider also obiter dicta contained in the judgment of O’Higgins C.J. in The State (Byrne) v. Frawley. As I have already indicated, contrary to the majority view the former Chief Justice considered that the jury was, at any rate, properly constituted for the reasons which I have explained. But at p. 341 of the report, he had this to say:
34. Given that the former Chief Justice expressly agreed with the view of Walsh J. that consequences could not affect the issue of whether an enactment conformed with the Constitution or not, it would seem to me that the proposition which he considered to be erroneous must be the proposition that those consequences would in fact flow particularly having regard to the rhetorical question in the passage “could organised society accept such a conclusion?” I agree with Denham J. that “a court is required to differentiate between the declaration of unconstitutionality and retrospective application of such a decision”.
“It seems to me proper to add that if the contrary be the case and, by reason of the wrongful exclusion of qualified persons from the panel, every jury then selected is to be regarded as unconstitutional and invalid, then certainly very serious consequences would follow. In the first place it would seem to me to follow with inexorable logic that each trial held with such a jury would have been a nullity and that sentences imposed and carried out, including sentences of death, would have been imposed and carried out without legal authority. In addition, even those who had won acquittals from such juries could find that they were still in jeopardy because their trial was regarded as a nullity. Could organised society accept such a conclusion? There being a supposed unconstitutionality in the trial jury itself, neither consent or lack of objection or passage of time could remedy the situation. As a further consequence, this would seem to mean that all those who have been convicted by such juries and are serving sentences would be entitled to orders similar to the order sought by the prosecutor in the present case. It does not seem to me that it could be urged as an answer to such proceedings that the person convicted had acquiesced in his trial by the jury selected. Acquiescence depends on knowledge; if the person convicted did not know of the suggested invalidity, he cannot be said to have acquiesced. In any event acquiescence cannot confer validity, just as consent cannot confer jurisdiction. I do not think it is necessary for me to examine further the implications of a proposition which I hold to be erroneous.”
35. In conclusion, I am of the view that concluded proceedings whether they be criminal or civil based on an enactment subsequently found to be unconstitutional cannot normally be reopened. As I have already indicated, I am prepared to accept that there may possibly be exceptions. But in general it cannot be done. Nor as the Chief Justice and Hardiman J. have pointed out is there any precedent for a collateral challenge of this kind. I am also firmly of the opinion that if the law were otherwise there would be a grave danger that judges considering the constitutionality or otherwise of enactments would be consciously or unconsciously affected by the consequences, something which in the view of Walsh J. and endorsed by O’Higgins C.J. should not happen.
36. I have based my opinion in the main on Irish case and constitutional law. It is reinforced by the decisions of European and foreign courts referred to in the judgment of the Chief Justice.
37. These are the reasons why I favoured the appeal being allowed and supported the order made by the court.