Report and Recommendations - Scottish Government

8.2 FINALITY AND CERTAINTYIntroduction8.2.1 In introducing the provisions of the 2010 Act that relate to the SCCRC, theGovernment attempted to address the problem, recognised in Cadder, whichcan happen when “change the law” decisions, capable of having retroactiveeffect, are made by the courts. The difficulty created follows from the legalfiction that, as distinct from changes made by statute, the courts never changethe law but simply declare what the law has always been. This can, and does,occur where a superior court overrules a decision, or series of decisions, takenby a lower court, which may have been applied in practice for years, if notgenerations. In theory, the new declaration of the law applies to all previouscases. However, of practical necessity, there must be a limit to anyretroactivity.8.2.2 In the Irish Supreme Court case of A v The Governor of Arbour Hill Prison,Murray CJ neatly set out the limit in the following terms 1 :“….in a criminal prosecution where the State relies in good faith on astatute in force at the time and the accused does not seek to impugn thebringing or conduct of the prosecution, on any grounds that may in lawbe open to him or her, including the constitutionality of the statute,before the case reaches finality, on appeal or otherwise, then the finaldecision in the case must be deemed to be and to remain lawfulnotwithstanding any subsequent ruling that the statute, or a provisionof it, is unconstitutional”.1 [2006] 4 IR 88 at 143355