Analysis: Men convicted of raping girls under 17 cannot now claim the statutory rape law was unconstitutional, writes Carol Coulter
When the Supreme Court found, on May 23rd last, that the section of the 1935 Act prohibiting sexual intercourse with a girl under 15 was unconstitutional, a number of men convicted under that Act sought their release.
These cases have been adjourned pending the detailed judgment in the case of Mr A, which was handed down yesterday. He was the first convicted child rapist to challenge his detention in the light of the declaration of unconstitutionality, and he successfully argued in the High Court that he should be released. That decision was overturned by the Supreme Court on June 2nd last, and the court gave its detailed reasons yesterday.
All five judges set strict limits on the circumstances in which a declaration that a law was unconstitutional could have retrospective effect. Mr A was found not to meet any such hypothetical circumstances, and it is highly unlikely any of the convicted men whose cases have been adjourned will succeed either, should they attempt to pursue their claims.
In his judgment, the Chief Justice, Mr Justice John Murray, laid down the general principle that should apply to cases that have gone through the courts under a law later found to be unconstitutional. He stated that, where the accused did nothing himself to challenge the constitutionality of the statute, or any other aspect of the law or the procedure under which he was prosecuted before the case reaches finality, then the final decision in the case should be lawful, even if the statute was found later to be unconstitutional.
He said he did not exclude the possibility that some "extreme feature" of an individual case might mean, "for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice", that a verdict might not be allowed to stand. But such cases would be the exceptions, and there was nothing in the circumstances of Mr A to put him in such a category.
Mr Justice Hardiman was, if anything, even harsher to Mr A and people in similar circumstances.
Outlining the facts of the CC case, which led to the striking down of the statutory rape law, he pointed out that the man in question was a teenager who had had consensual sex with a 14-year-old girl who had, C said, claimed she was 16. He had challenged the law before his case went to trial, claiming innocence and that he should have been able to mount a defence of honest mistake about the age of the girl. The fact that this was not allowed for in the law led to it being found unconstitutional.
"Mr A had raised no such claim but had simply pleaded guilty to the offence," he said.
"A . . . fully accepted the facts alleged against him and the validity of the law which criminalised those facts, now seeks his release on the basis of a declaration to which he himself could never have been entitled. His release would be a 'windfall' to which he has no entitlement in justice while at the same time being a negation of the closure, solace and vindication already accorded to a victim of a grave crime, and an affront to true social order."
The other judges concurred in declaring that there was a clear distinction between declaring that a law was unconstitutional, and unravelling everything that was done over years or, in this case, decades, in good faith under that law.
Thus convictions already obtained under Section 1 (1) of the 1935 Criminal Law (Amendment) Act are likely to stand.
A challenge to Section 2 of the same Act, which criminalises sex with girls under 17, may still go ahead on the general question of mistake as to age. However, the fact that the case was concluded without the constitutionality of the law being questioned at the time is likely to now be raised by the State. Yesterday's judgment had a broader application, however. A number of the judges referred to the fact that there had been little scrutiny of the question of how retrospective a declaration of unconstitutionality could be. Mr Justice Hardiman pointed out that there had been about 87 instances of laws being found unconstitutional. Yet the question of the time from which such a law was null and void "escaped scrutiny".
Both Mr Justice Murray and Mrs Justice Susan Denham also examined the practice in other common law jurisdictions with a constitutional regime similar to ours. They do not not apply an absolute retrospectivity to laws struck down as unconstitutional, and Mrs Justice Denham suggested that the Canadian example might be followed in even setting time limits on the application of a finding of unconstitutionality to give the legislators time to put things right.