Damache and Constitutional Retrospectivity

In February of this year a most significant decision was handed down by the Supreme Court in the area of criminal procedure. This decision, Damache v DPP [2012] IESC 11 (discussed here), found that s.29(1) of the Offences Against the State Act 1939, which had been in operation for the past 36 years having been inserted by s.5 of the Criminal Law Act 1976, was contrary to the Constitution. The provision allowed for a member of the Garda Síochana not below the rank of superintendent, to issue a search warrant in certain specified circumstances. It did not, however, specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. It was with this omission that the Supreme Court found fault. Indeed, this omission, and the Garda practice of having superintendents who were directly involved in an investigation issue warrants under s.29(1) had previously been criticised by Justice Morris in the “Burnfoot Module” of the Morris Tribunal Report (2008). In para 6.22 of that Module the learned Chairperson of the Tribunal observed that

The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.

The Supreme Court in Damache held that the issuing of search warrants is an administrative act but it must be exercised judicially. Accordingly, independence is necessary in the exercise of the act. This, along with the importance of the constitutional protection of the inviolability of the dwelling, under Art 40.5, led the Court to find that s.29(1) was repugnant to the Constitution given that it did not insist on independence in the garda issuing of the relevant search warrants.

An obvious question which arose in the aftermath of the Damache decision is what impact this finding would have on other previously-decided cases. Is a finding of unconstitutionality retrospective or not? Speaking on the fall-out from Damache the Minister for Justice, Alan Shatter T.D., stated that

… cases that might be affected by the terms of the judgement will be the subject of examination by the Director of Public Prosecutions and the Garda Síochána in order to decide how to proceed. In cases where prosecutions are being considered it is a matter for the DPP to decide whether to proceed or not. Where convictions have already occurred, it is a matter for the Courts, in the event of a challenge to such convictions, to consider whether they should stand.

Relatively recent experience in the Irish courts in relation to the effect of a ruling of constitutional invalidity suggests that such a declaration has a retrospective effect, but only in a limited manner. In C.C. v Ireland [2006] 4 I.R. 1; [2006] IESC 33 it was held by the Supreme Court that s.1(1) of the Criminal Law (Amendment) Act, 1935 was repugnant to the Constitution as it allowed for no defence of reasonable belief as to age to be raised on a charge of unlawful carnal knowledge of a girl under the age of 15. While there was public dismay at the finding of invalidity and a certain amount of panic about the likelihood of paedophiles being released from prison in their droves, only one such case in fact came before the courts, i.e. A v Governor of Arbour Hill Prison [2006] 4 I.R. 88; [2006] IESC 45. The applicant, A, was serving a sentence at the time following conviction under s.1(1). He had, however, pleaded guilty to the offence and indeed no defence of reasonable belief as to age would have been likely in his case as the victim was his 12-year-old daughter’s friend. Initially A was released by the High Court, having held that the legal basis for his conviction and imprisonment was voided by the decision in C.C. However, on appeal by the State, the Supreme Court ordered his re-arrest and upheld the validity of his original conviction. The Court, in that case, refused to accept that it is a principle of Irish constitutional law that cases which have been finally decided and determined before the courts on foot of a statute which is later found to be unconstitutional must invariably be set aside as null and of no effect. Murray C.J. felt that Mr A was mounting a ‘collateral attack’ on the verdict in his case, on the basis that at no stage prior to or in the course of his prosecution did he seek to impugn the lawfulness of his prosecution or conviction by reason of any constitutional frailty. Murray C.J. went on to state that when an Act is declared unconstitutional a distinction must be made between the making of such a declaration and its retrospective effects on cases which have already been determined by the courts. This was said to be necessary in the interests of legal certainty, the avoidance of injustice and the overriding interests of the common good in an ordered society.

The then Chief Justice concluded:

In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.

He further stated that

The Common Law has never conceived as consistent with any ordered administration of justice that previously decided and finally determined cases could necessarily be set aside or re-opened in the light of a new precedent…

This has had a significant bearing on the cases arising before the courts in the aftermath of Damache. To date there have been just three such cases, and the Irish Times suggests that there are, in total, no more than ten cases in the pipeline wherein arguments based on Damache are likely to be made. This remains to be seen however. The cases decided to date are People (DPP) v Cunningham [2012] IECCA 64, People (DPP) v Kavanagh [2012] IECCA 65, and People (DPP) v Barry O’Brien [2012] IECCA 68, and in each case the Court of Criminal Appeal has overturned the original conviction and ordered retrials. Notably, each case was still in the process of appeal when the Damache decision was handed down: to date no case has arisen involving a person who was convicted, following the use of s.29(1), and whose case was “finalised” in the sense that there was no ongoing appeal or that he/she had finished serving their sentence when Damache was decided. Given the statements made in the three cases discussed below, and in A v Governor of Arbour Hill Prison, it seems unlikely that the decision in Damache would be retrospectively applied in such circumstances.

Search warrants were issued by Garda superintendents under s.29(1) in Cunningham, Kavanagh and O’Brien.  In Cunningham, the subsequent search of the appellant’s dwelling led to the finding of a sum of sterling cash totalling £3,010,380 which was alleged to have come from a robbery at the Northern Bank Centre in Belfast. This was used as evidence against the appellant on the charge of money laundering, just one of a number of charges laid against him. In Kavanagh, the appellant, along with two others, had been charged with false imprisonment and robbery following the completion of a so-called “tiger raid”. Following a search of his dwelling pursuant to the relevant warrant, Mr Kavanagh was arrested and later the same superintendent who issued the search warrant authorised the taking of bodily samples from Mr Kavanagh while in garda detention. In O’Brien the appellant was convicted of membership of an illegal organisation, following a search of his dwelling, during which time he was arrested within the dwelling. While Cunningham and Kavanagh seemed to focus on the search carried out pursuant to the now voided search warrant procedure, the focus in O’Brien was on the arrest of the appellant within his dwelling, the gardaí being present there only on foot of the s.29(1) warrant.

In both Cunningham and Kavanagh the Court of Criminal Appeal, in considering whether or not the Damache decision could affect the convictions previously handed down, focused on whether those cases had reached “finality” and if the appellants had made any arguments against the use of s.29(1) in their original or appellate submissions.

The issue of finality was drawn from the dicta of Murray C.J. in the Supreme Court in A, set out in pertinent part above. The Court of Criminal Appeal took this dicta, and in particular the reference to “before the case reaches finality”, to mean that a subsequent finding of legislative unconstitutionality could affect the impact of the relevant provision in a case which had not yet reached finality, though impliedly not in a case that was fully concluded by the time the subsequent finding was made. It was held in all three cases that they had not arrived at finality as their appeals were ongoing at the time that the Damache decision was handed down.

In Cunningham, the case of A was distinguished on a number of grounds, including that fact that A had pleaded guilty, whereas Cunningham had not; A never challenged the validity of the impugned provision, while Cunningham had done so, at least in his appellate submissions; and A’s case had reached “finality” by the time the C.C. decision was handed down, the time for appeals having expired, while Cunningham’s appeal was ongoing at the time Damache was decided (though the DPP argued it was that pure happenstance and the result of the appellant’s own dilatoriness that the appeal process in Cunningham had not yet concluded).

Similarly in Kavanagh it was emphasised that the case had not reached finality, and that submissions had been made on behalf of the appellants (who pleaded not guilty at original trial) during the trial as to the constitutionality of s.29(1), and similar arguments had been set out in the Notice of Appeal.

In O’Brien Hardiman J. summarised two elements of the decisions in Cunningham and Kavanagh which also applied in that case:

The matter has been raised at the court of trial and the appellant has taken no steps which suggests that he has acquiesced in or otherwise waived the point by, for example, pleading guilty to the charge.

The criminal proceedings against the appellant have not been finalised and either a trial or an appeal from conviction is still pending.

So, once again, where the case had not reached finality and the appellant had not acquiesced in the prosecution or the use of s.29, the Damache decision was retrospectively applied.

None of the three cases addressed clearly what might occur in cases involving different circumstances, e.g. (i) in a case which had not reached finality but in which no arguments against the use of s.29(1) were made, or (ii) in a finalised case wherein such arguments either were or were not made. While the likely response of the courts to the first circumstance is unclear, it seems, in relation to the second, that the decision in Damache would not affect a conviction handed down in such a case as reopening all such cases decided in the past 36 years would be chaotic.

Under the somewhat dramatic title of “Potential arguments relating to catastrophic effects” Hardiman J. in Cunningham stated that

…we are not unmindful of the fact that there may well be circumstances where (quite independently of questions such as estoppel, waiver, acquiescence, res judicata and the like) the consequences of the full or even partial retroactive application of a finding of unconstitutionality might be so catastrophic for organised society that they could not be accepted. While…the first duty of the Courts is to provide redress to those whose constitutional and legal rights have been infringed, there may also be circumstances where this is simply not feasible or practicable.

This was echoed by Denham C.J. in Kavanagh where she stated that

While the first duty of the courts is to secure legal redress for those whose rights have been infringed by unconstitutional action, this duty is, as Article 40.3.1 itself recognises, tempered by considerations of feasibility and practicability. Any other conclusion would mean that the “true social order” envisaged by the Preamble to the Constitution could not be attained (para 74)

Some interesting examples were given by Hardiman J. in Cunningham of comparable past situations in which it would have been unfeasible to apply a subsequent finding of unconstitutionality in a fully retroactive manner:

The Courts could not, for example, have ordered the re-running of past Dáil elections (the decision in McMahon v. Attorney General [1972] I.R. 69 with regard to the inadvertent breaching of the secrecy of the ballot in Article 16 notwithstanding) or ordered the re-payment of income tax on a vast scale in the aftermath of Murphy [Murphy v. Attorney General [1982] I.R. 241]. Nor could the Courts have been expected to re-open previous convictions on a vast scale in the wake of the finding of the Supreme Court in de Búrca v. Attorney General [1976] I.R. 38 that the pre-existing jury system was unconstitutional, even if the special circumstances identified subsequently in Byrne (i.e., the knowing election to proceed with an unconstitutional jury) were not present in other cases. As O’Higgins C.J. put it in de Búrca ([1976] I.R. at 63), the “overriding requirements of an ordered society” would preclude such a consequence.

There may be further Damache fall-out cases in the pipeline and it seems that if one can show that one’s case has yet to reach finality and one did not acquiesce in the s.29(1) search warrant by, for example, pleading guilty, then the Damache decision will likely be retrospectively applied and will result in an overturning of convictions and retrial. Of course, it seems obvious that in any retrial evidence obtained pursuant to s.29(1) will have to be excluded and the prosecution cases at such retrials is accordingly likely to be significantly weakened. While this is perhaps a difficult pill to swallow, one has to admire the respect for the Rule of Law displayed by the Oireachtas and the Minister for Justice who have accepted that nothing can be done to retrospectively correct the failings of s.29(1) as, per the Minister for Justice Alan Shatter,

clearly it is not possible for legislation to make something constitutional which the Supreme Court has declared to be unconstitutional

A Bill is proposed to rectify the matter for the future, however, and this is currently going through the Houses of the Oireachtas.


Damache and Constitutional Retrospectivity

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