Finding Legislation Invalid: How does it affect current convictions?

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In our final constitutional law lecture this week, we discussed the remedies available for Constitutional Breach. When looking to rectify a breach of a particular right, there are generally two options:

  1. Severance: If the rest of the Statute can work without the offending section/words/subsections, the Courts may cut out this piece from the Statute and allow the remaining pieces to operate as a statute.
  2. The entire act found unconstitutional: If the offending piece of statute would not make sense from removing the offending piece of statute, the whole act must be found unconstitutional.

However, the interesting part of the topic came with the discussion of whether this striking down of legislation could be relied upon to claim an appeal for someone who has previously been convicted under the act. Can you see the issues that may arise?

We looked in particular at the case of DPP v Kavanagh, which outlined the correct procedure for such an issue arising. The Court found that you could only rely on a statute retrospectively under either of two conditions:

  1. If the case has not reached ”finality” – this means that you would still need to be in the course of waiting to have your trial heard, which eliminates the possibility of claims from already convicted persons.
  2. If the issue of constitutionality has already been raised – if you made an argument during your original trial that there was an issue with the struck down piece of statute, you may have a claim.

I think this is a fair approach to the issue, given the potential dangers that would come with allowing all convicted persons to make a claim against invalid legislation by which they were convicted.

By allowing someone to claim where their case has not reached ”finality,” prosecutors are able to change the grounds on which they are prosecuting someone for a crime they have actually committed. This ensures criminals do not escape the administration of justice because of an invalid statute.

What do you think? Is it unfair to not allow individuals who have already been convicted to appeal their convictions on the basis that the legislation used is now invalid? Or do you think the scope for appealing under invalid legislation should be completely restricted without any room to appeal from already undergoing cases?

Some similar analysis on this topic can be reviewed in this blog, which you may find interesting.

Until next time,



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