In March 2015, in Bederev v Ireland (here), the Court of Appeal declared that s 2(2) of the Misuse of Drugs Act 1977 was repugnant to Article 15.2.1 of the Constitution and was therefor invalid. In this determination (Murphy v Governor of Mountjoy) the Supreme Court granted two appellants (Murphy and Carberry) leave to appeal the legality of their detentions, where they had been convicted of possession of controlled drugs for the purpose of supply prior to the decision in Bederev.
In A v Governor of Arbour Hill Prison [2006] 4 IR 88 the Supreme Court held that a declaration that a statute was repugnant to the Constitution did not void previous convictions under that statute. Murphy and Carberry argue that their cases can be distinguished from that of A, who was convicted of unlawful carnal knowledge. They argue that, whereas unlawful carnal knowledge is wrong in itself, regardless of whether or not there is a statutory prohibition, their offences were only prohibited by statute and not inherently wrong. Therefor, once s 2(2) of the 1977 Act was declared repugnant to the Constitution their detention was no longer valid.
An appeal in Bederev is listed for the 12th of April. In this appeal, the Supreme Court will consider the range of potential exceptions to the rule from A v Governor of Arbour Hill Prison, and whether Murphy’s and Carberry’s convictions are valid.
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