Finding of unconstitutionality Flashcards
Murphy v AG
Married couples were more heavily taxed than unmarried couples
Income Tax Act 1967
O’Higgins CJ held that the statute would only be void from the date of the judgement
Frawley
Held that the plaintiff delayed by **waiting until after his trial **to take action was waiving any ability to object
CC v Ireland
No defence for honest mistake in rape conviction was deemed unconstitutional
A v Governor of Arbour Hill Prison
‘where that state relied in good faith on the statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution…before the case reaches finality…the case must be deemed to be and to remain lawful’
The clock cannot be put back. The egg cannot be unscrambled’
Damache
Appellant was suspected by gardai of involvement in a conspiracy to murder Lars Vilks, a Swedish cartoonist who depicted Islamic prophet Mohammed with the body of a dog
Lack of impartial person to issue search warrant
Therefore all evidence was unconstitutionally obtained
Cunningham & Kavanagh
In both cases, they had not arrived at finality of their trials as the Damache decision was handed down at the time
O’Brien
‘where the case has not reached finality and the appellant had not acquiesced in the prosecution or the use of s.29, the Damache decision was retrospectively applied’
DPP v Liam Bolger
Appealing conviction for murder by arguing Damache
Never raised at trial so did not apply
Clarke v Governor of Mountjoy Prison
Pleaded guilty to several driving offences
Held that by** pleading guilty and not raising any constitutional issue,** he did not meet the Damache criteria
Buck
Court held that he exhausted all of his appeals so could not argue Damache
NVH v Minister for Justice
Clarke J said that, **in exceptional circumstances, where it will not be detrimental if it were left off for six months, it could be suspended and left to the Oireachtas
**
Statutory provision that prevented asylum seekers from working was unconstitutional
Given 6 months so Oireachas could fix it
AB v Director of St Loman’s Hospital
‘The judiciary should not have to watch on helplessly as a finding of unconstitutionality leads on with remorseless logic to invalidate and unravel a large variety of administrative decisions’
Maher v AG
Only problem was the fact that the certificate re blood alcohol levels had to be ‘conclusive evidence’
Question was whether ‘conclusive’ could be severed
Was not held to be severable
