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Cite as:  IECCA 64,  2 ILRM 406
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Judgment Title: DPP -v- Timothy (Ted) Cunningham
Neutral Citation:  IECCA 64
Supreme Court Record Number: 135/09
Court of Criminal Appeal Record Number:
Date of Delivery: 11/05/2012
Court: Court of Criminal Appeal
Composition of Court: Hardiman J., Moriarty J., Hogan J.
Judgment by: Hardiman J.
Status of Judgment: Unapproved
Outcome: Conviction quashed, Direct re-trial
THE COURT OF CRIMINAL APPEAL
Hardiman J. 135/09
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
TIMOTHY (TED) CUNNINGHAM
JUDGMENT of the Court delivered the 11th day of May, 2012 by Hardiman J.
This is the appellant’s appeal against his conviction in the Cork Circuit Court on the 27th March, 2009 on ten counts of money laundering. This conviction occurred on the 44th day of the trial. Count 10 on the indictment referred to a sum of stg. £2,400,000 which was found in the applicant’s dwelling house on the 17th February, 2005 during a search on foot of a warrant issued by a Superintendent Quilter pursuant to s.29 of the Offences Against the State Act, 1939, as inserted by s.5 of the Criminal Law Act, 1976. The balance of counts related to smaller sums of money said to have been transferred by the appellant to other persons for various purposes. Three of these persons, John Douglas, Dan Joe Guerin and John Sheehan gave evidence for the prosecution against the appellant.
Subsequent to his conviction, the applicant was sentenced to ten years imprisonment.
A sample count.
All of the ten counts and the indictment preferred against the applicant allege separate offences of money laundering by using various items of property, all money or monies’ worth, knowing or believing that it was the proceeds of the well known Northern Bank Robbery of the 20th December, 2004. The most serious count, Count 10, is worded as follows:
Money laundering contrary to s.31(1)(c) of the Criminal Justice Act, 1994 as inserted by s.21 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
Particulars of Offence
Timothy Cunningham between the 20th December, 2004 and the 16th February, 2005 at Farran in the County of Cork knowing or believing that property that is to say Sterling Cash to the value of £3,010,380 represented the proceeds of criminal conduct namely a robbery at the Northern Bank Cash Centre, Donegal Square West, Belfast on the 20th December, 2004 or being reckless as to whether it was or represented such proceeds, possessed the said property.”
On the 17th February, 2005 the applicant’s home at Farran, Co. Cork, was searched on foot of a warrant under s.29(1) of the Offence Against the State Act, 1939. This warrant was issued by Superintendent Quilter who was the person in charge of the investigation and accordingly (it was not seriously contested), could not possibly be described as a person independent of the investigation.
It was agreed between the parties on the hearing of this appeal that the validity of this warrant would be dispositive of the appeal against the conviction on Count 10 of the Indictment. This was because the admissibility of the evidence of finding a very large sum of cash on the appellant’s premises at least so far as that particular count was concerned was dependent on the validity of the warrant under which the search was conducted.
Section found unconstitutional.
On the 23rd February, 2012, Denham C.J. gave the judgment for the Supreme Court in the case of Ali Charaf Damache v. The D.P.P. (Ireland) and the Attorney General.
At para. 59 of the judgment it is recited that, for the reasons set out in the judgment:
Having been convicted as described above, the applicant appealed to this Court by notice of appeal dated 14th May, 2009, about three years before the Supreme Court judgment in Damache.
This set out nineteen grounds of appeal in all, of which ground two in particular made reference to the s.29(1) warrant. It was alleged that the warrant was defective because it did not identify the appellant’s residence as the place to be searched and further because it was merely a “colourable device” to avoid the necessity of making an application for a warrant to a judge
After the notice of appeal was lodged, the appeal itself proceeded slowly. The grounds of appeal had been lodged at the trial itself by the lawyers who appeared for Mr. Cunningham at that time but at a later date the applicant discharged those representatives. The applicant’s appeal was struck out for want of prosecution on the 15th February, 2011. However the case was re-entered by the Court of Criminal Appeal on the 28th November, 2011. The applicant’s original written submissions had previously been filed on the 13th October, 2011.
The Supreme Court, as already noted, delivered its judgment in the Dimache case on the 23rd February, 2012. On the 7th March, 2012, the applicant lodged in this Court a notice of motion seeking bail on the basis of the Damache case and on the 2nd April, 2012, the appellant lodged supplemental submissions, relying heavily on the Damache case.
By a notice of motion dated the 13th day of April, 2012, and returnable on the 16th April, 2012, the appellant sought liberty to amend ground 2 in his original grounds of appeal. In what follows, the underlined portion is the amendment sought and the balance is ground No. 2 as originally lodged:
The proposition that s.29(1) of the Act of 1939 was repugnant to the Constitution was not raised in this case in the court of trial. Indeed, it could not have been raised as that Court, the Cork Circuit Criminal Court, had no jurisdiction to entertain it, such jurisdiction being confined to the High Court and the Supreme Court on appeal. It was also common case that the appellant had not, either before or after the Damache decision instituted proceedings claiming that the relevant section was repugnant to the Constitution.
The question of the constitutionality of the section was, however, referred to in the appellant’s first set of written submissions.
These were filed just over four months before the decision on the Supreme Court in Damache. The respondent says, however, that this material is an afterthought, inserted in the knowledge that the Supreme Court would soon dispose of the Damache appeal and inserted with a view to putting the applicant in a position to avail of that decision if it were favourable to his position. But it would have been extraordinary if the appellant’s lawyers had omitted this step.
Extent of Hearing on the 16th April, 2012.
As noted above, the case came first into the Court’s list in April, 2012 in the form of a bail application. It was however decided to address the Damache issue with a view to deciding firstly whether it was open to the applicant to rely upon it and secondly to ascertain the extent to which it might be dispositive of the appeal. These are the only issues which will be addressed in this judgment: none of the other grounds of appeal are considered at all. If necessary, they will be addressed at a later time.
The appellant says that the search of his premises which led to the discovery of an enormous sum in Sterling cash was central to the case against him and was the engine, or a main engine, of his conviction. The search, it is agreed, was carried out on foot of a warrant issued under s.29(1) by Superintendent Quilter. As a result of the Damache decision, it is now known that this section is repugnant to the Constitution and was accordingly invalid from the time of its insertion into the Act of 1939, which occurred in the year 1976. Accordingly, Mr. Cunningham says, his conviction cannot stand. Specifically (it is said) the conviction on Count 10, which is directly related to the search of his premises, cannot stand and the balance of the convictions are rendered unsafe or unsatisfactory because they occurred after evidence of the fruit of the invalid warrant had been given; after evidence of the appellant’s consequential arrest under s.30 of the Offences Against the State Act, 1939, after the search had taken place, and an account of it, have been given; because these convictions occurred after evidence of alleged admissions made by the appellant while he was in custody under s.30 had been admitted, and on account of the general prejudicial effect of the evidence of the search and what followed from it.
The D.P.P.’s case.
The Respondent, the Director of Public Prosecutions, says that it is simply not open to the appellant now to rely on the declaration of repugnancy of s.29(1). He agrees that the appellant could not have raised this point in the court of trial but he says that he could have raised it by plenary proceedings or by judicial review either before or after the trial but did not do so. He says that the appellant is now attempting to “piggyback” on the Damache case and that this has never been permitted.
The respondent also points to the extremely slow progress of the appeal. He says that if the appeal had proceeded at anything like the normal speed it would have been disposed of long since. It is, he says, pure happenstance and the result of the appellant’s own dilatoriness that this has not occurred. Indeed, the appellant’s counsel appeared to accept that if the appeal had been disposed of before the 23rd February, 2012, it would not be possible later to make any use of the judgment and order of that day by way of attack on the appellant’s conviction.
The respondent relied heavily on the case of A. v. The Governor of Arbour Hill Prison  4 IR 88. He says that in that case the Supreme Court unanimously decided that A. was not retrospectively entitled to the benefit of the decision in the slightly earlier case of
C.C. v. Ireland  4 IR 1, to the effect that s.1(1) of the Criminal Law (Amendment) Act, 1935 was inconsistent with the Constitution. This case will be considered in some detail below. By way of general preview, however, the appellant says that the A. case is manifestly distinguishable on its facts from this one.
In particular, the appellant counters the respondent’s reliance on the A. by emphasising that, by the time the relevant section had been found unconstitutional in C.C., A. had no appeal extant. That, he says, is itself, a sufficient distinction. He relies in particular on the judgment of Murray C.J. in A. at p.143 under the heading “The General Principle”, as follows:
The Respondent also relies on certain dicta of Henchy J. in Murphy v. The Attorney General  IR 241, which are referred in all five judgments in A. He also says that at the relevant date, the Gardaí in the present case, relied in good faith on s.29(1) which was then in force and that their actions under it should now be impugned.
This is a case, notorious in its time, which furnishes the most recent example of an attempt by a person convicted of a particular offence to obtain for himself the benefit of a later declaration of the unconstitutionality of the statute creating the offence, or creating a particular mode of trial, or regulating the evidence admissible at such trial.
In this regard, the A. case was very similar to the present one. However it was very different on its facts both from the present case and from the case of C.C. on which it sought to “piggyback”.
A. was a man of thirty-eight years of age who was charged with a count of unlawful carnal knowledge contrary to s.1(1) of the Criminal Law Amendment Act, 1935. This is a count of what is often referred to as “statutory rape” of a young girl who was a friend and classmate of his own daughter. He was thus positively aware of the age of the victim and never denied this. When brought to the Court of Trial he pleaded guilty to the offence, received a sentence of three years imprisonment and did not appeal.
When A. was about halfway through his sentence, on the 23rd May, 2006, the Supreme Court delivered judgment in a quite separate case called C.C. v. Ireland  4 IR 1. There, the applicant was a teenager who was accused of having had unlawful carnal knowledge of a teenage girl. When approached by the gardaí he freely admitted having had consensual intercourse with the girl. He described the interaction between them in detail and specifically stated that the girl had informed that she was over the statutory age and that he had believed this. But despite this he was charged with an offence contrary to s.1(1) of the 1935 Act. After he was charged he instituted High Court proceedings claiming certain declarations to the general effect that, on a true construction of the subsection, he was entitled to advance the defence of mistake as to the girl’s age in answer to the charge. If this was not so, he claimed the subsection was inconsistent with the Constitution. The Court upheld this latter submission.
Three days after this judgment, on the 26th May, 2006 A. applied to the High Court for an order pursuant to Article 40.4.2 of the Constitution directing an inquiry forthwith into the lawfulness of his detention. He said that the statutory provision creating the offence of which he had been convicted had been found to have been inconsistent with the Constitution and had therefore ceased to exist in 1937.
This contention was upheld by the High Court (Laffoy J.) but the State’s appeal to the Supreme Court was successful. The Court was unanimous in allowing the appeal. All five judges gave individual judgments: this was an appeal from an order under Article 40 of the Constitution, not an action for a declaration of unconstitutionality, so the “one judgment” rule did not apply.
Similarities and Differences.
It will be seen, first, that there are many significant factual differences between the case of A. and that of C.C. A. had pleaded guilty, had not appealed, and had never challenged the constitutionality of s.1(1). Moreover, on the facts of his case it would not have been open to him to challenge the section: he had never denied that he was affirmatively aware of the age of the child and thus he lacked standing to challenge the section, which created an offence of absolute liability. C.C., on the other hand, claimed that he knew only what the girl had herself told him as to her age and that he had believed that she had spoken the truth. He asserted an entitlement to defend himself on this ground and claimed that the Act was unconstitutional only if it could not be interpreted so as to provide this entitlement. But when it was held that the Act did not permit a defence of mistake, he asserted its unconstitutionality prior to his trial.
The difference comes down to this: A. never challenged the validity of the section, or the interpretation of the section during the trial process or on appeal. His case was finally completed or concluded at the time C.C. obtained the declaration of inconsistency, the time for appeal having expired. This is a major point of contrast between A’s case and the present case. Mr. Cunningham’s appeal is still extant and undecided. Accordingly, he says, his case has not reached finality. The significance of this appears from a consideration of what was said by Murray C.J. in the concluding section of his judgment in A., under the heading “The General Principle”. The relevant passage has been set out above.
This passage plainly excludes the prospect of any challenge made after “the case reaches finality on appeal or otherwise”. It therefore necessarily implies that the case has not reached finality when there is an outstanding appeal. That finding is fatal to the principal submission of the Director.
However, on the hearing of this appeal, while it could not be denied that Murray C.J. had made the finding quoted and that it had the effect summarised above, it was said that this finding could only be found in the judgment of Murray C.J., that it did not represent the finding of the Court, and that his judgment was, in that regard “an outlier”.
We do not agree that this finding of Murray C.J. was “an outlier”, which we take to mean an offbeat or unrepresentative Judgment. On the contrary, a clear majority of the Court took the same view.
In my judgment of the same case I noted, on p.191 that, for the reasons given in the judgment “I concurred in the order of the Court pronounced by Murray C.J.”. On the preceding page I had said:
In his judgment in the same case, Geoghegan J., speaking of pre-1937 statutes like the one in question in this case said at p.196:
Accordingly, it appears to us that, so far from being an “outlier” the dictum of Murray C.J. on which the applicant relies was endorsed by at least three members of the Court in A., Murray C.J., Geoghegan J. and myself.
Moreover, all members of the Court in A. cited with approval and followed the well known dictum of Henchy J. in The State (Byrne) v. Frawley  IR 326. There, Byrne had been convicted by a jury selected under the provisions of the Juries Act, 1927. During his trial, the Supreme Court had given judgment in the case of de Búrca v. Attorney General  IR 38. This held that the jury composed in the manner required by the 1927 Act was unconstitutional. But Byrne made no point based on this decision, and appealed, but on other grounds. His application to be set at liberty because the jury who had tried him was unconstitutionally composed was unsuccessful. Henchy J. said:
As mentioned earlier in this judgment the State also made the somewhat surprising submission that the verdict of the jury convicting Mr. Cunningham was in itself final, notwithstanding the existence of an appeal. No authority was cited for this proposition, which flies in the face of the accepted view of legal finality.
Under the Constitution, the Supreme Court is described as “the Court of Final Appeal”.
By Article 34.2 it is provided that:
By Article 34.5.1 “The decision of the Supreme Court shall in all case be final and conclusive”.
Section 29 of the Courts of Justice Act, 1924, as applied to the Court of Criminal Appeal established by the Courts (Establishment and Constitution) Act, 1961 provides:
In Dalton v. Minister for Finance  ILRM 519 the Supreme Court per Finlay C.J. stated that “It is of the essence of litigation that subject to a proper right of appeal, as provided by law, the judgment of a court is a final judgment”. (Emphasis supplied)
This, of course, is entirely consistent with the dictum of Murray C.J. in A. v. The Governor of Arbour Hill Prison, quoted above, that finality may be achieved on appeal or otherwise.
The Courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are, as Chief Justice Finlay expressed it “subject to a proper right of appeal as provided by law”. It therefore appears that where there is (as in this case) a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limited for doing so.
We are therefore unable to accede to the submission that the criminal case against Mr. Cunningham was finally concluded by the verdict of the jury.
Whether the result in Damache could have been anticipated.
Mr. O’Connell S.C., Counsel for the Director, sought to emphasise that s.29 of the Act of 1939 had been in force for some seventy three years, more or less without let or hindrance. His submission certainly hinted that the result in Damache could not have been foreseen and that these factors should weigh with this Court in assessing whether the accused should (or could) be allowed to take the benefit of this decision so far as this appeal is concerned.
We would first observe in response that s.29 has not, in fact, existed in this form for seventy three years. Quite apart from the somewhat technical point that the present version of s.29 was simply inserted by substitution in 1976 by s. 5 of the Criminal Law Act 1976, one must not overlook the important detail that the version of s.29 which existed for the thirty six years between 1976 and 2012 was significantly different in many respects from the version of s.29 was originally enacted by the Oireachtas.
Whereas the original version of s.29 required that the warrant be issued by a Chief Superintendent to an officer not blow the rank of Inspector, the 1976 version permitted the warrant to be issued by a Superintendent to a Sergeant. The original version of s.29 was confined to a reasonable suspicion in relation to documentary evidence, but the 1976 version extended this to all evidence, and not merely documentary evidence. Moreover, the range of the original s.29 was confined to offences arising under the Offences against the State Act 1939 and treason, this was later extended in 1976 to offences which were scheduled for the purposes of Part V of the Act of 1939 and to offences arising under the Criminal Law Act 1976, a much wider category.
We would secondly observe that the result in Damache cannot have come as a surprise. Mr. Justice Morris had already expressed himself in stringent and uncompromising terms in the “Burnfoot Module” of Morris Tribunal Report (2008) as to the circumstances in which the s.29 procedure had been grossly abused:-
6.23. The Tribunal is satisfied that it is preferable that the power to issue a warrant should be vested in a judge. With modern technology and rapid communications, there is no reason why a judge cannot be easily contacted by telephone, facsimile or e-mail, or personally, for the purpose of making an application to him/her for a search warrant. A record can thereby be created, whether by tape or by the recording of the message received by facsimile or e-mail, or indeed by the prompt furnishing of a grounding information to the judge within a limited period after the application of, say, 24 hours, verifying the basis upon which the application was made, which record can then be filed for future reference. The judge can then make an independent decision. Such a decision as to whether to grant the warrant would involve a balancing of the interests of An Garda Síochána and the investigation of the criminal offence and the constitutional or legal rights of the person whose premises is to be the subject of the warrant. There are very limited occasions upon which time would be so pressing as to make it impossible to follow such a procedure. In any event, a residual power for such eventuality could, perhaps, still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances.”
In short, we find it difficult to avoid the conclusion that the s.29 warrant procedure represented little more than a convenient and decorous formality which, absent the fundamental safeguards we have described of third party supervision and documentation, was in truth often little better than a warrantless search of a private dwelling. One way or another, as Denham C.J. pointed out in Damache, the section struck at the essence of the guarantee of the “inviolability” of the dwelling as protected by Article 40.5.
All of this could equally be said to have been prefigured by the earlier case-law. Thus, for example, in Ryan v. O’Callaghan, High Court, 22 July 1987 Barr J. had emphasised that s. 42 of the Larceny Act 1916 contained important safeguards for the protection of the citizen in his or her home in that it first required the investigating police officer to swear an information as to reasonable cause and, second, it required the police officer to satisfy an independent personage unconnected with the investigation that it was appropriate to issue the warrant. As Barr J. noted, the sub-section by containing these safeguards did not stoop to methods “which ignore the fundamental norms of the legal order postulated by the Constitution” in the sense in which these words were articulated by Henchy J. in King v. Attorney General  I.R. 233, 257. The key fundamental norm at issue here is that a private dwelling should not be searched, save where this it is objectively necessary to do so and that, absent a genuine emergency, the assessment of these facts must be conducted by an independent third party. Many other judges had stressed the importance of the unqualified nature of the core protection afforded by Article 40.5: see, e.g., Director of Public Prosecutions v. Dunne  2 I.R. 537, 540, per Carney J.
Historical and contemporary comparative aspect
Many of the themes which underpin the reasoning in Damache - the necessity for independent supervision of the request for a warrant and making exceptions only for cases of emergency - find expression in the jurisprudence of the courts from comparable jurisdictions. Thus, for example, the US Supreme Court has frequently stressed that, as Douglas J. put in McDonald v. United States 335 U.S. 451-455-456 (1948):-
These principles were affirmed in contemporary times: see, e.g., Groh v. Ramirez 540 U.S. 551 (2004). Of course, the US Supreme Court has permitted the warrantless search of private dwellings in cases of genuine emergency: see, e.g., Brigham City v. Stuart 540 US 398 (2006).
The Court would also recall here that the essence of the constitutional guarantee in Article 40.5 - the “inviolability” of the dwelling - is one with very deep roots in the European constitutional tradition. Article 3 of the short lived republican Constitution of France of 1848 had provided that the residence of every person dwelling in French territory was “inviolable.” This exact phrase is to be found in relation to the protection afforded to the dwelling in Article 15 of the Belgian Constitution, Article 72 of the Danish Constitution and Article 14(1) of the Italian Constitution. Article 115 of the German (Weimar) Constitution of 1919 provided that the dwelling was a “sanctuary and is inviolable”, save that exceptions might “be permitted by authority of law.” Those who might be tempted to doubt the intrinsic importance of the guarantee contained in Article 40.5 would do well to reflect on the ultimate fate of its closest historical counterpart. Article 115 of the Weimar Constitution was suspended “until further notice” by paragraph 1 of the notorious constitution amending decree promulgated in the wake of the Reichstag fire in February 1933. This decree also recited that “warrants for house searches” were thereafter “to be permissible beyond the legal limits otherwise prescribed.” Millions were thereafter to discover the ugly reality of what the suspension of that key constitutional guarantee actually entailed.
In the light of that baneful and shaming historical experience, it is perhaps no surprise that the closest contemporary analogue to Article 40.5 is now to be found in Article 13 of the German Basic Law 1949. This provides in relevant part that:-
(2) Searches can only be ordered by a judge, or in the case of imminent danger also by other organs determined by statute; they may only be performed in the form prescribed by the law.”
In that regard we would note with interest that the German Constitutional Court in its decision of 20th February 2001 (BVerfG, 2 BvR 1444/00) arrived at a result which is very similar to Damache. In that case the public prosecutor had authorised the police to conduct a search of a citizen’s dwelling without first obtaining a judicial warrant because there was an “urgent” need to conduct the investigation. When the search produced no evidence of any note, the householder moved to have the search declared unconstitutional.
Holding that the search amounted to a breach of the guarantee of inviolability contained in Article 13(1) of the Basic Law, the Constitutional Court stressed that any derogations from the fundamental constitutional protection must be interpreted restrictively, pointing out that an independent (judicial) examination of the necessity for a search was likely to limit the interference with this fundamental right by ensuring it was confined to that which was demonstrably necessary in any given case. Such a requirement promoted transparency, since the objective necessity for the search has to be explained to an independent third party and appropriately documented so that it can be reviewed later. Of course, similar sentiments underpin the Supreme Court’s conclusions in Damache.
Given the constitutional provisions in other jurisdictions to which we have referred and the case-law which these provisions have generated, it is unlikely that any European or American lawyer would be surprised at the result in Damache.
The effect of the finding of unconstitutionality on third parties.
Central to Mr. O’Connell’s argument under this heading was that as the appellant had not commenced proceedings challenging the constitutionality of s.29 either before or perhaps even after his conviction, he was thereby debarred from obtaining the benefit of the finding in Damache, on the basis that a finding of unconstitutionality benefits only those litigants who have commenced proceedings in a timely fashion challenging the constitutionality of the section. To this end, Mr. O’Connell relied on the following passage from the judgment of Denham J. (as she then was) in A. ( 4 IR 88 at 158):-
Here, of course, Denham J. was simply drawing the distinction between the scope of application of declarations of unconstitutionality retrospectively on the one hand and prospectively on the other. It is accordingly necessary at this juncture to ask two fundamental questions. Firstly, if the ruling in Damache were to be applied to the circumstances of the accused’s case, would this involve the retrospective or, alternatively, the prospective application of the finding of unconstitutionality? Secondly, has the accused conducted himself in such a manner such as suggested that he is debarred by his conduct from claiming the benefit of the ruling?
Is the applicant debarred from his own conduct from relying on Damache?
Turning first to the second question, we would observe that the present appeal does not share of the distinctive features of cases such as Corrigan v. Irish Land Commission  I.R. 317, The State (Byrne) v. Frawley  I.R. 326 or A. v. Governor of Arbour Hill Prison  IESC 45,  4 IR 88. To summarise: these were all cases where the applicant had either acquiesced, in or benefited from, or elected to proceed with, a state of affairs which either directly or indirectly acknowledged the validity of the particular course of conduct or law which was subsequently put at issue. Thus, in Corrigan, the applicant was aware of circumstances which, if accepted to be correct, would have debarred a particular Appeal Commissioner from sitting on his statutory appeal. He nonetheless elected to proceed with the appeal.
The same was true in Byrne. He was aware - or at least had that knowledge imputed to him - that the Supreme Court had just ruled that the pre-existing legislation governing jury composition was unconstitutional. He nonetheless elected to continue with his on-going trial and did not object to the composition of the jury. Following his conviction, the Supreme Court held that the applicant was debarred from asserting the unconstitutionality of that jury because, in the words of Henchy J. ( I.R. 326 at 349-350):-
Because the prisoner freely and knowingly elected at this trial to accept the empanelled jury as competent to try him, I consider that he is now precluded by that election from claiming that the jury lacked constitutionality: see the decision of this Court in Corrigan v. Irish Land Commission  I.R. 317.”
Turning now to the first question, we would observe that it has been settled law since the Supreme Court’s decision in Murphy v. Attorney General  I.R. 241 that the invalidity which attaches to an unconstitutional law operates ab initio from the date of its enactment, in this case, 1976. This principle is, as Henchy J. noted in Murphy, not only a proposition which is inherent in the notion that the Oireachtas is bound by the terms of the Constitution, but it is one which is, in any event, expressly provided for by Article 15.4.2:
It is, of course, true that, as O’Flaherty J. observed in McDonnell v. Ireland  1 I.R. 134, 144, this very invalidity crystallises only with a formal declaration of constitutional invalidity. Naturally, as we have just observed, the established jurisprudence from Byrne, Murphy through to A shows that this does not necessarily mean that all actions, decisions and transactions taken in good faith on foot of that unconstitutional law must be unravelled, even if that invalidity operates ab initio. Any other conclusion would simply represent the triumph of abstract logic over the dictates of justice and the practical administration of society. Such a consequence is, in any event, contra-indicated by a range of defences - ranging from prescription, estoppel, change of position, acquiescence and res judicata - which have evolved over the centuries, the very point which was central to the judgment of Henchy J. in Murphy.
Yet, once that invalidity does crystallise with a declaration of unconstitutionality, it is plain so far as the State, society and the citizenry is concerned that the law in question is no longer operative: see in this regard the comments of O’Flaherty J. in McDonnell ( 1 I.R. 134, 143). It is inherent in the principle of unconstitutionality contained in Article 15.4.2 that any such declaration has erga omnes effect. In other words, such a declaration is not merely confined to a specific judicial ruling of unconstitutionality inter partes which binds third parties simply and only by reason of the doctrine of precedent and the fact that the earlier ruling will (in all probability) be applied in future similar cases.
The latter principle is, after all, in strictness, the manner in which the United State courts operate the Marbury v. Madison 1 Cranch 137 (1803) doctrine. The common statement to the effect that the US Supreme Court has, for example, the power to “strike down” legislation as unconstitutional is, of course, a pure solecism. James Bryce, the noted British jurist, politician and diplomat, put the matter so well in his famous work, The American Commonwealth (1889, Vol. 1) 246:-
Marbury v. Madison doctrine, a court confronted with such an unconstitutional statute simply declines to apply the statute which is in conflict.
It follows accordingly that, under the Marbury v. Madison doctrine, the reason why a law adjudged to be unconstitutional in case A will be applied to third parties is because should the matter be put to the test in subsequent case B, the court will be bound by the doctrine of precedent to follow the ruling of unconstitutionality in case A and will equally refuse to apply the ordinary statute law in respect of case B. Strictly speaking, however, the U.S. courts do not have any power, as such, to annul or invalidate an unconstitutional law. Such a law remains on the statute book, but it is not enforced by reason of the finding of unconstitutionality.
As we have already noted, by contrast, and unlike the US Constitution, Article 15.4.2 of our Constitution expressly addresses the status of unconstitutional laws by stipulating that such laws are “invalid”, albeit only to the extent of such repugnancy. Once there is a final declaration of unconstitutionality, then the law in question is judicially adjudged to be invalid or annulled. The very fact that our Constitution goes further in this respect than its US counterpart provides clear textual evidence that such a finding of invalidity must apply to third parties, certainly so far as current and prospective transactions are concerned following the “crystallisation” of the declaration of unconstitutionality.
In any event, the suggestion that a finding of unconstitutionality applies only to persons who commenced litigation or their privies is inconsistent with existing jurisprudence and established practice. Many examples could be given in this context, but it probably suffices to refer to the Supreme Court’s decision in Muckley v. Ireland I.R. 472.
In the aftermath of the decision in Murphy - where the system of aggregating the income of married couples for tax purposes prescribed by ss.192 to 197 of the Income Tax Act 1967 was held to contravene Article 41 – the Oireachtas enacted s. 21 of the Finance Act 1980. Although the Supreme Court had separately dealt with the question of the retrospective application of that finding of invalidity so as to exclude the re-payments of tax to all but a tiny minority of taxpayers, there was still yet an altogether separate category of taxpayers who had been assessed under the old (and now condemned) rules, but who, for whatever reason, had yet to pay the tax prior to the date of the decision in Murphy and whose tax affairs for the period in question had not been finalised. Section 21 of the Act of 1980 sought to re-impose the old tax on such taxpayers - presumably in an effort to ensure a degree of equality as between taxpayers, but the Supreme Court nonetheless held it to be unconstitutional.
The key point here is that all of this - i.e., either the enactment of s. 21 of the Act of 1980 or the decision in Muckley itself - would have been quite unnecessary had the position been as Mr. O’Connell urged. It follows, therefore, that, in principle, at least the accused can claim the benefit of Damache unless the criminal proceedings have been finalised.
The judge, it must be remembered, is charged only with the task of assuring the fair conduct of a criminal trial. Where, for that purpose, he rules that evidence is inadmissible because, for example, an invalid search warrant has permitted it to be found, he makes no order in respect of the search warrant. His ruling does not prejudge the validity of the act in question in other proceedings. I would adopt, with necessary adaptation, the reasoning of Webster J in Portsmouth City Council v Quetlynn  QB 114, 129:
It is sufficient to say that, in a case such as the present, the Circuit Court would have the power to adjudicate on the validity of the orders made under the Bankers Books Evidence Acts to the extent that it considers it necessary for the purpose of ruling on whether to admit evidence.”
However, the situation that prevailed here is that while counsel for the prosecution had been invited by the court to “open” the case, this was purely for the purpose of giving the members of the court an idea of what the case was about. Essentially, the ruling that was sought and given was by way of preliminary ruling before the trial was embarked upon.
I would endorse everything that Carney J. said about the undesirability of people repairing to the High Court for judicial review in relation to criminal trials at any stage (and certainly not during their currency) but, in the exceptional circumstances of this case, and having regard to the importance that there should be a definitive ruling on this matter of informer privilege, it was right that Carney J. should have entertained the application at first instance and for us to hear it on appeal.”
These are all factors which might justly weigh with any legal adviser who was required to consider what was the appropriate remedy in these circumstances. It is true that Fennelly J. had expressly acknowledged that measures of a “more generally applicable or normative character will usually enjoy a different status”, of which the issue of the constitutionality of a statute would be the most apposite example. Yet even then had the accused attacked the constitutionality of the underlying statutory provision in judicial review proceedings in which he had also sought to quash the warrant or, alternatively, if had sought to challenge the validity of the statute in plenary proceedings, he almost certainly would have been with the objection that the proceedings were mis-conceived and, in any event, premature. If this succeeded, the moving party would be at risk of an award of costs against him.
An example here is supplied by the decision of MacMenamin J. in Kennedy v. Director of Public Prosecutions  IEHC 3. In this case the applicant, who was faced with a corruption charges, sought to challenge the constitutionality of s. 4(1) of the Prevention of Corruption (Amendment) Act 2001 on the basis that - he said - it created an unfair evidential burden in favour of the prosecutions. In addition to the decision in Blanchfield, MacMenamin J. also stressed that the Supreme Court had ruled that in CC v. Ireland (No.1)  4 I.R. 1 that it was (exceptionally) prepared to rule on the proper construction of s. 1 of the Criminal Law (Amendment) Act 1935 in advance of the accused’s trial for an offence under section only because the High Court had done already done so.
MacMenamin J. then continued:-
The tenor of each decision of the Supreme Court in C.C. …express the real concern as to whether it was appropriate for the court at that point to entertain the application. For exceptional reasons only the Supreme Court considered it appropriate to proceed to deal with the substantive issue. Prima facie, and absent exceptional circumstances, these are issues for the trial judge…
In the instant case this court accepts the submissions made on behalf of the Attorney General that what is in question here is a hypothesis which has not occurred and may never occur. As matters stand no presumption has been invoked against the applicant. This court is unaware, and can only speculate as to how the evidence will evolve at trial. It may be, hypothetically, that the prosecution may call witnesses to say that they paid money to the applicant as a reward for granting them favours. As matters stand the applicant has not put in issue any of the statements contained within the book of evidence. The applicant has not engaged with the evidence in any way nor identified the nature of his defence or which facts may be in issue. In the event that witness statements go unchallenged it may not be necessary for the prosecution to invoke the provisions contained within s. 4 of the Prevention of Corruption (Amendment) Act, 2001 at all.”
The decision in Kennedy would certainly suggest that the courts would not readily entertain applications of this kind. It is, of course, true that not all pre-trial challenges will be rejected as premature. Thus, for example, the courts have been willing to entertain challenges to the constitutionality of statute prescribing a sentence in advance of any conviction: see, e.g., Osmanovic v. Director of Public Prosecutions  IESC 50,  3 IR 504.
For present purposes we do not find it necessary to opine on the circumstances in which the accused could have challenged the validity of the warrant or the constitutionality of s. 29 in advance of his criminal trial. It suffices to say that such a challenge was by no means clear-cut. The applicant might well have been met with arguments that such a challenge was purely hypothetical and premature. It may well be that the accused could have successfully carved-out an exception to Blanchfield, as, indeed, seems to have happened in Damache. Nevertheless, each of the possible options urged by Mr. O’Connell SC all presented with potential difficulties and objections. That in itself is sufficient to dispose of this particular argument advanced on behalf of the Director, since in the face of this jurisprudence, it would be unrealistic and unfair to insist that the accused should have commenced pre-trial proceedings with all the hazards and cost implications this would have entailed.
Potential arguments regarding catastrophic effects.
In arriving at our conclusions 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, as Henchy J. observed in Murphy, 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.
The Courts could not, for example, have ordered the re-running of past Dáil elections (the decision in McMahon v. Attorney General  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. 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  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 ( I.R. at 63), the “overriding requirements of an ordered society” would preclude such a consequence.
We have not been invited to consider such arguments in the context of the present case which, after all, simply concerns the status of particular convictions involving one individual currently under appeal to this Court. In these circumstances, beyond noting that considerations of this kind might yet arise in other cases - whether arising from the finding of invalidity in Damache or otherwise - it is sufficient to say that we have not been asked to address these issues in the present case and we accordingly do not do so.
For the reasons set out above, we are satisfied that the appellant is entitled to invoke the judgment of the Supreme Court to the effect that s.29(1) of the Offences Against the State Act, 1939 is inconsistent with the Constitution. This is primarily because his appeal to this Court was extant at the time of the delivery of that judgment on the 23rd February, 2012. We are also of the view, again for the reasons set out above, that the appellant is not debarred from relying on the judgment in the Damache case by reason of the fact that he did not himself institute proceedings to have s.29(1) declared unconstitutional.
We naturally make no comment as to the position that would arise in other circumstances e.g. where there was no extant appeal at the time of the Supreme Court judgment in Damache, where there had been a plea of guilty in the court of trial, or any other circumstances different to those of the present case.
In light of these findings, we propose to quash the convictions of the applicant on the ten counts on which he was convicted in the Cork Circuit Criminal Court on the 27th March, 2009.
It was agreed that the decision in this Court would be dispositive in the case of count 10 of the Indictment. The Court therefore proposes to order a retrial on counts 1 - 9 inclusive.