There will be widespread relief that the Supreme Court has shut the door on the prospect of convicted child rapists walking free as a result of the striking down of the statutory rape law seven weeks ago. The court had already ordered the re-arrest of Mr A, who had pleaded guilty to the rape of a 12-year-old girl but then sought release following the declaration of unconstitutionality of the law under which he was convicted. But the court's reasoning, and the wider implications of its ruling, was only given yesterday.
The court found that Mr A could not himself have brought the case challenging the law, which was found unconstitutional, because a defence of honest mistake about the age of the girl could not be made. He had made no such mistake, and had pleaded guilty. He was not entitled to benefit from the finding of unconstitutionality.
It also found that where a person has been convicted under a statute in force at the time, and has not challenged that statute in any way, then the final decision of the court was lawful, even if the statute was later found to be unconstitutional. To do otherwise, the Supreme Court ruled, would deprive the administration of justice of all finality and certainty, and even put in question acquittals.
This will come as a relief to the public, whose faith in the system and the administration of justice was undermined by the Supreme Court's original decision, on a par with the Brendan Smith fiasco and the Sheedy affair. The Court, as a body, lost much public respect in failing to delimit the consequences of its decsion such that the Government unfairly bore the brunt of the responsibility for the potential release of men who had pleaded guilty to, or were convicted of, the rape of young girls.
For the first time, the Court has also examined in detail the general issue of retrospectivity arising from a finding of unconstitutionality. It pointed out that, despite the fact that there have been over 80 such findings, there has been relatively little scrutiny of the time limit on such a finding, and how retrospective it should be.
It has been suggested that retrospectivity is absolute when a law is found to have been unconstitutional from its enactment or, as in this case, from the enactment of the Constitution. However, the Court has drawn convincingly from previous case law to show that this has not been the case, and that the retrospective principle has always been qualified by previous Supreme Courts. In particular, considerations of public policy, the common good and legal certainty, as well as the practical effect of the actions taken under the law in question, come into play and must be taken into consideration.
Two members of the five-judge court also explored the position taken by other common law countries with constitutions similar to, and in some cases modelled on, Ireland. In Canada, for example, a finding of unconstitutionality is often accompanied by giving an opportunity to the legislature to put things right. That did not happen. The political crisis could have been averted.