The Mr. A case - Supreme Court ruling

Gobán Saor

Well? A brilliant piece of judicial reasoning or a clumsy fudge to paper over a gaping crack? Due weight to a teleological interpretation of the Constitution or law by "talk-to-joe" logic?

Victor

Anyone got a copy?

maidhc

http://www.bailii.org/ie/cases/IESC/2006/S45.html

Lplated

Think it doesn't matter how you dress it up, in the end of the day someone is in jail having been convicted for a crime that does not exist. One assumes this 'robust' decision will be of limited precendtal value given its own special facts and perhaps we can move on with the pretence that we have a legal system that adheres to some sort of fundamental principle.

Our man in Havana

I wonder if Mr. A will now go to the ECHR?

Sparks

Bond-007 wrote:

I wonder if Mr. A will now go to the ECHR?

Is that option open to him, legally speaking?

Thirdfox

The people are happy... another potential political/judicial crisis over... justice not served but this is the price of democracy I suppose.

If only the law was like maths:
Law=null => conviction=void => man=free
+ politics
man=free => public=outrage => judicial=pressured => mob=rules

focusing

He could go to the ECHR over his right to liberty, and possibly to his right to a fair trial.

Doubt he'd win though.

mountainyman

The ECHR allow wide latitude to participating states. However I think he would win. However regardless of the decision of the ECHR he will not be released and damages awarded by the ECHR are low by Irish standards.

It seems every comtroversial decision in Irish law stands on its own facts.

MM

mountainyman

[QUOTE=Murray CJ]
At the outset I drew attention to the fact that issues concerning the extent to which a judicial adjudication has retrospective effect ... is not ... novel. What is novel about this case is that such a judicial finding is invoked by another party for the purpose of impugning an earlier judicial decision which has been finally determined. ...
[/QUOTE]

[QUOTE=Murray CJ]
Counsel for the applicant could not point to any case in which such a collateral challenge to a final decision of a Court had been brought before the Courts based on a subsequent judicial decision. Neither have I been able to discover any such case.
[/QUOTE]

[QUOTE=Murray CJ]
[EXAMPLES OF CASES NOT REOPENED BY CHANGE IN LAW]

Donoghue –v- Stevenson
... did not lead ... to the reopening ... of decided cases ... concerning manufacturers’ liability.

Byrne –v- Ireland
[MURRAY CJ MAKES A SIMILAR POINT AS D v S]
[/QUOTE]

[QUOTE=Murray CJ]
The law is too old and too wise to be applied according to a rigid abstract logic or a beguiling symmetry. As Henchy J. pointed out above for centuries the law has known general principles and transcendent considerations, such as the public interest, which is another way of saying the common good, restricting retrospectivity, especially the setting aside of judicial decisions already finally decided, even though the law on which they are founded is later held to be invalid.
[/QUOTE]

MM

focusing

The ECHR tend not to decide in favour of self-confessed sex abusers, whatever about the merits of the case.

A bit like the Supreme Court...

Schuhart

I think there’s a very reasonable article here by Vincent Browne, on the A case. I think the key points are

…If the entire constitutional order would be thrown into disarray by applying the strict logic of a finding of invalidity, for instance, then the court should recoil from that.

Most of us would agree with that proposition. But the judges went beyond that, for reasons that I could not detect in their judgments. They leapt from the position that a finding of unconstitutionality does not necessarily invalidate everything done under the invalid law to a finding that virtually everything done under the invalid law was OK. That seems absurd to me. If this is so, what is the force of a finding that a law is unconstitutional?

If everything done under that unconstitutional law until then stands, the only effect of a finding of unconstitutionality is that what is done henceforth under such a law would be unconstitutional - and that doesn’t amount to a lot. Surely, the reasonable position is as it was until the Supreme Court devised its judgments in the A case: that, apart from exceptional circumstances where the constitutional or societal order would be at risk, everything done under an invalid law would be invalid.

But it is what the Supreme Court ordered on June 2 that I find incomprehensible. It issued a warrant for the arrest of Mr A on the basis of his conviction for an offence that it had found ten days earlier did not exist.

I can anticipate the argument that will be advanced in favour of this: the Supreme Court had found that, although Section 1 (1) of the 1935 act was unconstitutional, it was not prepared to give this finding retrospective effect - that a conviction under this invalid law was unlawful - and that, since this man - according to the court - was lawfully convicted and imprisoned, it was proper that he would serve out the rest of his sentence.

But, but, but . . .the man had been freed and here was the Supreme Court intervening to have him imprisoned on the basis of a law it had found was invalid - in other words, a law that did not exist.

There is an important article in the Constitution, Article 40.4.1 which reads: ‘‘No citizen shall be deprived of his personal liberty save in accordance with law.” The Supreme Court on June 2 ordered that Mr A be deprived of his personal liberty on the basis of a law that the Supreme Court had found not to exist - or at least on the basis of a law which the Supreme Court had found invalid, unconstitutional. How can this be?

Several people are being deprived of their liberty right now on the basis of this Section 1 (1) which, according to the Supreme Court, is not a law. How can this be?

There is something very serious here, if my contention is correct. It would mean that the Supreme Court was playing around with the law to fit the circumstances. And one of the safeguards we supposedly have of our liberties is that the Supreme Court will always stand by the law, at all times, irrespective of how unpopular or how difficult.

I can’t fault his argument, and feel that the Court have made a decision justifiable in common sense terms, but have effectively set aside the constitution to do it.

TalkISCheap

Isn't it great that we've built a concept as nebulous as the 'common good' into our Constitution to the point where it means 'you have all of these rights... except when it doesn't suit us and we decide otherwise.' :rolleyes: