Arrest for Investigation

 

Cases

 

The People v Walsh

[1988] ILRM 137
O’Hanlon J

A preliminary point of law has been taken by counsel on behalf of the accused in this case, involving a submission that none of the verbal or written statements said to have been made by the accused while detained in custody in Tralee Garda Station after the hour of 6.05 pm on 5 July, 1983, should be admitted in evidence. The basis for this submission is the contention that his arrest and detention in custody under s. 30 of the Offences Against the State Act, 1939, on suspicion of having committed a scheduled offence, namely, malicious damage to property, was only a device to enable the Gardai to avail of the 24 hour period of detention, later extended to 48 hours, for the purpose of interrogating him about his suspected involvement in the murder of Elizabeth Mary O’Sullivan at her home in Listowel on the night of the 1st, or early morning of 2 July 1983.

The evidence which has hitherto been given in the course of the hearing of the murder charge brought against the accused is sufficient to satisfy me as follows:

(1) that some person or persons gained forcible access from the shop premises of the deceased on the night she was murdered, to the kitchen/living-room at the rere of the premises by breaking a window in the partition which divided the shop from the residential part of the premises, and that this involved malicious damage to property constituting a criminal offence, and a scheduled offence within the meaning of the Offences Against the State Act, 1939.

(2) that the damage done in the process was neither very substantial nor very trivial.

(3) that the Gardai who apprehended the accused at his home in Listowel had bona fide formed a suspicion that he was involved in both crimes — the offence of malicious damage to property and the offence of murder which appeared to have followed as a sequel to the breaking of the partition window and the gaining of access to the living quarters at the rere.

A similar point of law has been taken in two previous cases to which I have been referred by counsel — The People v Towson [1978] ILRM, a decision of the Court of Criminal Appeal, consisting of O’Higgins CJ, Finlay P, and Costello J, and The State (Bowes) v Fitzpatrick [1978] ILRM, a decision of Finlay P on a habeas corpus application made while the prosecutor was still being detained under s. 30 of the Act of 1939. In Towson’s case the judgment of the Court was delivered by the Chief Justice. One of the grounds of appeal was that the accused was unlawfully arrested under s. 2 of the Emergency Powers Act 1976 on suspicion of having committed a scheduled offence, namely, being in possession of a firearm with intent to endanger life, when the real reason for arresting him and detaining him in custody was because he was suspected of having committed a murder with the firearm in question.

The Chief Justice said:

‘In this particular case, there being a reasonable suspicion that the accused had been involved in or committed the murder of Captain Nairac by shooting him involved inevitably a suspicion that he was guilty of an offence of being in possession of a firearm with intent to endanger life. Accordingly, there was no spurious invention of some imagined offence; it was a correctly held suspicion of an offence arising directly out of the matter being investigated by the investigating officers. Accordingly, in the view of the Court, the arrest could not be faulted on that ground.’

As to the submission that the use of the powers of arrest in the circumstances of that case was merely a deliberate device to abrogate the constitutional rights of the accused to be charged immediately if arrested on suspicion of having committed a common law offence, the Chief Justice stated:

Now in regard to that submission, which is very clearly put by Mr. MacEntee, the position is that this is a power given by statute to the officers in this particular case, or in such a case, it is a power which is additional to other powers which they may have; it is a power which is given and which was exercised in this particular case under the authority of the statute. It cannot be urged with any reality that merely because in the investigation of an offence, or, rather, a happening contemplated by the Emergency Powers Act, merely because a common law offence may have been committed, or an offence which is not a scheduled offence, that in those circumstances only an arrest in respect of that offence could be permitted. That submission would be to disregard the specific provisions of the Act which is an Act passed in contemplation of the Constitution, and by the Oireachtas under the powers given by the Constitution. It does follow that in exercise of a lawful authority given under s. 2 that rights which would be otherwise protected by the Constitution may in fact be abrogated or set aside. That is the effect of the legislation and it is not any reason why this Court would in any way interfere with or cast doubt upon what was done. Accordingly, in the view of the Court, grounds one and two fail.

The learned President of the High Court, who was a member of the Court of Criminal Appeal which decided Towson’s case, distinguished it in the later case of Bowes, where the accused was suspected of complicity in murder but was arrested under s. 30 of the Offences Against the State Act, 1939, allegedly on suspicion of having committed malicious damage to the knife which was used in the killing — the damage apparently having occurred accidentally while it ws being used as the murder weapon. While the accused was detained in purported exercise of the powers arising under s. 30 of the Act, he successfully applied for habeas corpus. The President stated as follows:

I am satisfied on the evidence given before me that the arrest of the accused under s. 30 of the Offences against the State Act, 1939, which on the candid evidence of Detective Sergeant Maguire was ultimately or in reality for the purpose of enabling him to be interrogated in respect of the alleged murder was only made on suspicion of the commission of the offence of malicious damage as a colourable device to bring what is in reality and in plain truth a murder investigation within the ambit of s. 30 of the Offences against the State Act 1939.

 

Distinguishing Towson’s case, he continued:

In my view that is a different situation; both offences were serious, substantive and grave offences and the experience of the courts would indicate that in all probability the accused would be charged with both those offences; and in Towson’s case he was and, in my recollection, convicted of both offences, both of murder and the offence under the Firearms Act 1924. In this case I am satisfied that the very technical nature of the offence of malicious damage involved brings the case within a different category and that therefore the arrest of the accused is not justified — at least the arrest may have been justified for murder, but his continued detention without being charged is no longer justified.

It appears to me that the circumstances of the present case put it somewhere between the situation which obtained in Towson’s case and that which obtained in Bowes, and I have had a good deal of difficulty in deciding which statement of principle is applicable to it. It is quite clear that the Gardai were much more concerned to discover the identity of the murderer of Elizabeth Mary O’Sullivan than to find out who had broken her partition window, and the prolonged questioning of the accused which took place while he was detained under s. 30 of the Act of 1939 was directed exclusively, or almost exclusively, to discovering whether he had been involved in the murder. Furthermore, no charge has hitherto been brought, so far as I am aware, in relation to the offence of malicious damage to property, and it seems likely (although no evidence has been tendered on this point) that the amount of the damage would not exceed £50.

Det. Garda Byrne, who was one of the Gardai principally concerned in the questioning of the accused while he was detained under s. 30 of the Act, was cross-examined as to the real reason and basis for the detention and questioning. He said: ‘We were investigating the death of Lis May O’Sullivan. The window was part and parcel of the one act.’

I have come to the conclusion that this case falls within the scope of the Towson rather than the Bowes decision. It appears to me that the malicious damage referred to in Bowes was obviously spurious and such as would never be the subject of criminal proceedings if it stood alone, in the ordinary course of events. In the present case, the evidence suggests that two persons may have been involved in the events of the night, which involved the murder of Miss O’Sullivan, the robbery of sums of money, and the damage to her shop premises, and it is conceivable that the murder might only be brought home to one person and that another person might be convicted of lesser offences involving malicious damage, and, perhaps, robbery. This was the situation confronting the Gardai when they arrested the accused. Furthermore, until the amount of the damage was determined accurately it could not be concluded that the malicious damage charge amounted only to a petty offence, or could result in a charge of an indictable offence carrying a maximum penalty of up to five years’ penal servitude.

In these circumstances I am satisfied that the arresting Gardai were bona fide in their suspicion that the accused had committed a scheduled offence and arrested him lawfully under s. 30 of the Act of 1939. The fact that they availed of the period of detention then permitted under the Act to question him closely about possible complicity in the other criminal offences committed on the same occasion at the same place was, in my opinion, not prohibited under the Act and could, in theory, have led to a decision not to charge him with murder, but to charge him only with the scheduled offence or one or more lesser offences than murder, or, as a further possibility, to release him without bringing any charge whatever against him.

I am further of opinion that the gravity of the offence of malicious damage to property is affected by the circumstances in which it is committed. Here, it was committed prima facie for the purpose of gaining forcible access to the home of an old lady for the purpose of robbing her, and if the wrongdoer or wrongdoers had been apprehended at that very moment before he or they had proceeded any further in his or their design, and charged merely with the scheduled offence, I think a court of trial would have taken a very serious view of the matter, notwithstanding the comparatively small amount of the damage involved.

If an application for habaes corpus had been brought on behalf of the accused during the period of his detention in Tralee Garda Station in reliance on the decision of the learned President in Bowes case, it is my opinion that such application would not have been well-founded for the reasons I have already given.

I therefore propose to refuse the present application to rule against the admissibility of the statements alleged to have been made by the accused while in custody, insofar as such application is based on the particular legal ground referred to. The jury will be asked to consider whether the statements sought to be excluded were made by the accused freely and voluntarily.

COURT OF CRIMINAL APPEAL
FINLAY CJ delivered the Judgment of the Court of Criminal Appeal on 20 December 1985 saying: This is an appeal brought against the conviction of the appellant in the Central Criminal Court on a charge of murder, pursuant to a certificate of leave to appeal granted by the learned trial judge O’Hanlon J at the conclusion of the trial.

The certificate of leave to appeal was granted

on the ground put forward by counsel for the defence that the arrest and detention of the accused under section 30 of the Offences Against the State Act 1939 was unlawful and that, accordingly, statements made by him during the period of such detention should not have been admitted in evidence.

No other ground of appeal was urged upon or argued before this Court and it was conceded by counsel on behalf of the respondent that if it were the decision of this Court that the arrest was unlawful the statements admitted in evidence would have been inadmissible, and that in that event there was not any other sufficient evidence to lead to a conviction of the accused and that this Court should set aside the verdict.

The relevant facts

An elderly lady, Lis May O’Sullivan, who resided in Listowel, was, on 2 July 1983, found dead in her home in Listowel, having last been seen alive late on the night of 1 July 1983. She had received multiple injuries and a very severe head wound which was the cause of her death. She was found in the kitchen of her house, which connected by a glass door to a small shop of which she was the proprietor. A pane of glass in this connecting door was found broken, having been in good repair the previous evening, and a heavy metal pot, which was probably the main murder weapon, was found to have been broken, having lost a chip and the handle having been separated from it and found outside the premises.

On 5 July 1983 the appellant was arrested by Detective Sergeant O’Donnell on suspicion of having committed a scheduled offence pursuant to s. 30 of the Offences Against the State Act 1939, the offence being the malicious damage to the pane of glass in the door and to the heavy pot. It was not contested before this Court that Sergeant O’Donnell had grounds for suspecting the accused of being involved in that crime. Sergeant O’Donnell in evidence stated that whilst he arrested the appellant on that suspicion, he was anxious to question him concerning the killing of Lis May O’Sullivan. No evidence was given of any ‘subversive’ or ‘terrorist’ motive in the crime.

Pursuant to that arrest the accused was detained for over 24 hours, a valid extension order having been made by a Chief Superintendent, and was then brought before the District Court, and charged with murder and with malicious damage to the value of less than £50. He was indicted and tried for murder only. During the course of his detention, in purported pursuance of s. 30, the accused was finger-printed and questioned, and made statements, some of which were admitted in evidence before the jury, after issues concerning the circumstances of their taking had been decided by the jury.

The submissions on behalf of the appellant

Two grounds of appeal were submitted on behalf of the appellant.

1. That s. 30 of the Offences Against the State Act 1939 (the Act of 1939) should be interpreted having regard to the terms of the long title of that Act and having regard to the other provisions of that Act, with the effect that the right of arrest contained in it only arose if a member of the Garda Siochana suspected a person of having committed a scheduled offence for subversive motives.

2. That having regard to the seriousness of the crime of murder which was being investigated in relation to the relatively trivial amount of malicious damage that had been caused, the exercise by the Garda Siochana of their powers under s. 30 of the Act of 1939, in what was in reality an investigation of a murder, was a colourable device only and rendered the arrest unlawful.

In support of the first submission it was urged that s. 30 should be so construed by reason of the fact that from the terms of the long title of the Act of 1939 and from the matters for which it provided, such as offences against the State; the setting up of special criminal courts; the prohibition of illegal organisations; and other like provisions, it was not intended to apply to crime which had not got a subversive or terrorist connotation or motive. It was stated that the principle of statutory interpretation was that, unless the terms of the section to be interpreted were coercively clear, it was proper and necessary for the court to refer not only to the long title but to the other provisions of the Act and, in short, the mischief which the Act was meant to deal with, and that by so referring, it was not possible to construe s. 30 as being lawfully applicable to the commission of a scheduled offence, the motive for which was not shown to be subersive or to have terrorist connotations. The material provisions of s. 30 are as follows:

A member of the Garda Siochana … may without warrant … arrest any person … whom he suspects of having committed or being about to commit or being or having been concerned in the commission of … an offence which is for the time being a scheduled offence for the purposes of Part V of this Act.

S. 36(1) provides as follows:

Whenever while this Part of this Act is in force the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind, or under any particular enactment, the Government may by order declare that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purposes of this Part of this Act.

By SI No. 142 of 1972 the Government, in pursuance of the powers vested in them by s. 36(1) of the Act, declared that offences against the Malicious Damage Act 1861 were one of the offences which were scheduled for the purposes of Part V of the Act.

It is clear from the terms of s. 36(1) of the Act that it would have been open to the Government, had they seen so fit, to declare that a particular class or kind of offence, such as an offence with a particular subversive or other motive, would be a scheduled offence under the Act, or, it would appear possible for them, if they had decided so to do, to declare that offences against the Malicious Damage Act 1861, which were carried out with a subversive or terrorist motive, were scheduled under that Act. That is not, however, what was done: what was scheduled under the Act were all offences under the Malicious Damage Act 1861.

The court is, therefore, satisfied that an offence against the Malicious Damage Act 1861 comes within the precise and unequivocal definition of an offence scheduled for the purposes of Part V of the Act and that, as such, it is coercive to construe s. 30 of the Act as entitling a member of the Garda Siochána to arrest, without warrant, any person whom he suspects of having committed that offence. It is, of course, inevitable, as was urged upon the court, that some persons who commit offences contrary to the Malicious Damage Act 1861 do so for reasons other than subversion or an attack upon the authority or institutions of the State. It is presumably for this reason that s. 45 of the Act grants to the Attorney General a power, now vested in the Director of Public Prosecutions in effect to decide that a person brought before the courts charged with a scheduled offence shall be tried in the ordinary courts and not before the Special Criminal Court.

The court is satisfied that the terms of s. 30, which have been quoted in this judgment, are clear and unambiguous and that it is coercive to construe them as referring to the precise offence which has been, by virtue of the provisions of s. 36, declared to be a scheduled offence. There can be no room for interpolating into that meaning and definition of a scheduled offence a qualification arising either from the other provisions of the Act or from the long title, and to do so would, in the view of the court, be to legislate and not merely to interpret legislation. The court, therefore, rejects this submission.

The second submission made before this Court was, in fact, the only challenge made at the trial as to the legality of the arrest of the apellant. It was based on a decision, The State (Bowes) v Fitzpatrick [1978] ILRM, in an enquiry under Article 40 of the Constitution as to the legality of the detention of the applicant. In that case the applicant had been arrested pursuant to s. 30 of the Offences Against the State Act on suspicion of being involved in an offence against the Act of 1861. The admitted grounds of his arrest were that the arresting officer suspected him to be involved in a murder and was satisfied that the murder had been carried out by the use of a knife which, in the carrying out of the murder, had become damaged. In ordering the release of the applicant on that occasion, Finlay P was satisfied, on the evidence given before him, that the arrest of the accused, which was in reality for the purpose of enabling him to be interrogated in respect of the alleged murder, was only made on suspicion of the commission of the offence of malicious damage as a colourable device to bring what was in reality and in plain truth a murder investigation within the ambit of s. 30 of the Offences Against the State Act 1939. Finlay P distinguished the case from the decision of this Court in The People v Towson [1978] ILRM where a person arrested under s. 20 of the Emergency Powers Act 1976, on suspicion of being in possession of firearms with intent to endanger life, was held to be validly arrested, notwithstanding the fact that the circumstances or occasion on which the suspicion that he had been in possession of the firearms with intent to endanger life arose, was also believed to be the same occasion on which the firearms were used to commit a murder.

The decision of this Court in The People v Towson, which was delivered by O’Higgins CJ presiding over the court, was a decision with regard to the legality of an arrest under s. 2 of the Emergency Powers Act 1976, but the terms of that Act were, in regard to the issues arising in this case, indistinguishable from the terms of s. 30 of the Act of 1939. In the course of the judgment of the court it was stated as follows:

In this particular case, there being a reasonable suspicion that the accused had been involved in or committed the murder of Captain Nairac by shooting him, involved inevitably a suspicion that he was guilty of an offence of being in possession of a firearm with intent to endanger life. Accordingly, there was no spurious invention of some imagined offence. It was a correctly held suspicion of an offence arising directly out of the matter being investigated by the investigating officers. Accordingly, in the view of the Court, the arrest could not be faulted on that ground.

In the instant case O’Hanlon J, making his ruling during the course of the trial, stated that there were two ends of the spectrum: one being a case which came within the principle of the State (Bowes) v Fitzpatrick, and the other which came within the principle of The People v Towson, but that he was satisfied, having regard not only to the amount of the damage caused, but to the place and circumstances and time at which it was alleged to have been caused in this case that the offence suspected, of malicious damage, was a real offence and was necessarily involved as part of the same incident or transaction as the murder and that, accordingly, the arrest was justified. This Court is satisfied that that is the correct legal view of the matter and that the arrest cannot be invalidated merely by the fact that the murder which was part of the same transaction was, of course, a significantly more serious offence.

During the course of the submissions on this issue it was further suggested that upon the true construction of s. 30 of the Offences Against the State Act 1939, a person having been arrested under that Act, on the suspicion of the commission of a scheduled offence, could only be questioned or interrogated about that precise offence and could not be interrogated about any other offence.

The court is satisfied that, having regard to the fact which has already been mentioned, the commission of the act of malicious damage, on suspicion of which the appellant was arrested, clearly formed part and parcel of the same transaction or series of incidents as involved the murder of the deceased, that, in such a case, at least, there are no grounds for inhibiting or restricting, on the interpretation of s. 30 the right of the Gardai to question or interrogate the appellant with regard to the entire transaction, including the murder.

The court is, therefore, satisfied that this appeal must be dismissed.

SUPREME COURT
WALSH J

(Henchy, Griffin, Hederman and McCarthy JJ concurring) delivered his judgment on 25 July 1986 saying: This is an appeal to this Court pursuant to a certificate granted by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act, 1924. The appellant was convicted in the Central Criminal Court on 9 November 1984 of a charge of murder. The trial judge, O’Hanlon J granted a certificate of leave to appeal to the Court of Criminal Appeal on the grounds ‘that the arrest and detention of the accused under s. 30 of the Offences Against the State Act, 1939 was unlawful and that accordingly, statements made by him during the period of such detention should not have been admitted in evidence.’ That was the only ground of appeal argued before the Court of Criminal Appeal where it was agreed by the prosecution that if the arrest had been unlawful the statements admitted in evidence at the trial were inadmissible and, in that event, there would not be sufficient evidence to lead to a conviction of the accused, so that in effect the accused would be acquitted.

The murder charge was laid in respect of the death of a Miss Lis May O’Sullivan, who was alleged to have been murdered at her home in Listowel, Co. Kerry on the night of 1/2 July 1983. The alleged murder occurred in her own house, which was a combined dwelling and shop. A pane of glass in the door between the shop premises and the dwelling premises was found to have been broken and a heavy metal pot, which was suspected to have been the murder weapon, was found to have been broken to the extent that its handle was separated from it and a part of the pot was itself chipped. The case of the prosecution was that the door was broken during the course of an entry to the house which eventually led to the killing of the deceased, and that the pot was alleged to have been used to cause the fatal injuries to the deceased and that in the course of doing so the pot itself was damaged in the manner already indicated.

On 5 July 1983 the appellant was arrested in purported pursuance of s. 30 of the Offences Against the State Act, 1939 on suspicion of having committed a scheduled offence, namely, malicious damage to the glass in the door and to the pot in question. The malicious damage was the ostensible reason for the arrest but the motive was the creation of a situation in which the accused might be questioned concerning the suspicion that he had been involved in the death of Miss O’Sullivan namely the charge of murder which is not a scheduled offence. He was first detained for twenty-four hours and then an extension order, whose validity is not in question, was made by a Chief Superintendent, which enabled him to be held for a further twenty-four hours. During the course of that period he was brought before the District Court and charged with murder and malicious damage to the value of less than £50. Subsequently he was indicted and tried for murder only.

This case turns upon statements made by the appellant during this period of detention and which, as already mentioned, would be inadmissible in evidence if the detention itself was illegal. It is agreed that there was no question in this case of the offences charged being in any way described as ‘subversive’ charges. The question therefore was whether the procedures available under the Offences Against the State Act 1939 and which were employed in this case, were legally applicable. Briefly the case made in the Court of Criminal Appeal on behalf of the appellant is comprised in the points which are set out in the certificate of the Court of Criminal Appeal under which the appeal to this Court has been taken.

The Court of Criminal Appeal certified that its decision in dismissing the appeal involved two points of law of exceptional public importance namely:

(1) that s. 30 of the Offences Against the State Act, 1939 should be interpreted having regard to the terms of the long title of the Act and having regard to the other provisions in that Act with the effect that the right of arrest contained in it only arose if a member of the Garda Siochana suspected a person of having committed a scheduled offence for subversive motives;

(2) that having regard to the seriousness of the crime of murder which was being investigated in relation to the relatively trivial amount of malicious damage that had been caused, the exercise by the Garda Siochana of their powers under s. 30 of the Act of 1939, in what was in reality an investigation of a murder, was a colourable device only and rendered the arrest unlawful.

The facts of this case disclose unquestionably that the alleged offence of malicious damage was very insignificant in comparison with the offence of murder. The facts also disclose, notwithstanding the difference in the seriousness between the two offences, that there was a connection between them in that the case of the prosecution was and is that it was sufficient to establish a case fit to go to a jury that the malicious damage was caused in the course of and as part of the incident which led to the fatal assault upon the deceased. The facts of the case also disclose that the members of the Gardai were generally concerned to ascertain the author of the malicious damage in question because it was manifestly clear that the damage and the death were so connected that the author of the malicious damage more than likely was in some way connected with the death of the deceased.

The fact that there was a great disproportion between the nature of the offences in question and that the greater concentration of police effort was on the investigation into the more serious of them namely, the murder charge, is not in itself sufficient to establish as a reasonable probability that the arrest in respect of the malicious damage charge was simply a colourable device to hold the accused in custody for an ulterior purpose on an alleged offence in which the guards had no real interest. The real question in this case is whether on the evidence there resides in the minds of the Garda Siochana a genuine interest in the malicious damage and a desire to pursue it. All the evidence in the case indicates the answer to this is in the affirmative. That being so, I am satisfied that the learned trial judge was warranted in holding that the arrest under s. 30 of the Offences Against the State Act 1939 in respect of the scheduled offence of malicious damage was bona fide, and genuinely motivated an arrest on the suspicion of having committed that offence.

With regard to the other point in the case, namely, that as the offence in which the appellant was arrested was not a ‘subversive’ offence, the provisions of the Offences Against the State Act 1939 were not applicable to the case. I have already considered this point at some length in the judgment which I have delivered in The People v Quilligan [1987] ILRM 606 I have nothing to add to the opinion I have expressed there. For the reasons I gave in my judgment in that case, I am of opinion that it rules the present case and the second ground of appeal.

For these reasons I am of opinion that the present appeal should be dismissed.

D.P.P., People v. Howley [1988] IECCA 2 (4 March 1988)
URL: http://www.bailii.org/ie/cases/IECCA/1988/1988_IECCA_2.html
Cite as: [1988] IECCA 2
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Record No. 70/86

Finlay C.J.

Gannon J. COURT OF CRIMINAL APPEAL

Barrington J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

v.

SEAN HOWLEY

JUDGMENT OF THE COURT delivered on the 4th day of March 1988 by FINLAY C.J.

 

This is an application for leave to appeal against a conviction for murder entered in the Central Criminal Court on the 18th July 1986 on an indictment charging the Applicant that on a date unknown between the 29th May 1985 and the 9th June 1985 within the County of Mayo he murdered Lily Ormsby.

The grounds of appeal are two in number and are confined to a ruling made by the learned trial Judge, Barron J., in the absence of the jury, admitting in evidence oral statements and statements in writing alleged to have been made by the accused of an incriminatory nature, on the 27th June 1985 while he was in custody in the Garda Station in Ballina.

The facts

The deceased, who resided as a tenant or lodger, in a house the property of the accused, in Ballina, was last seen alive in that house on the evening of Wednesday, the 29th May 1985. Her body was subsequently discovered in a lake some distance outside Ballina on the 9th June 1985, and she obviously had been dead for a considerable time. The cause of death was found to be drowning.

At 11.30 a.m. on the 26th June 1985 the Applicant was arrested by a member of the Garda Siochana pursuant to Section 30 of the Offences Against the State Act 1939 on suspicion of having committed a scheduled offence, namely, the maiming of cattle at Ballina in the County of Mayo on the 12th February 1984. During the day of the 26th June, the Applicant was interrogated by a number of members of the Garda Siochana, part of the interrogation concerning the incident of the maiming of the cattle and at other times the interrogation concerning the disappearance of the deceased. The Applicant went bed shortly after midnight on the evening of Wednesday, June 26th, and was again interrogated in the morning. At approximately half past ten, Chief Superintendent O’Connor signed an extension order extending the detention of the Applicant under Section 30 for a further twenty-four hours and this was read over to the Applicant at approximately 11.20 a.m. Shortly after noon on the 27th June the Applicant is alleged to have made an admission of the crime of murdering Lily Ormsby. It was taken down in writing and purports to have been signed by him.

He made further statements and visited the area in the lake where the body of the deceased was found. The Applicant at the trial and on oath in his evidence denied that the statement was his or that he made it and denied complicity in the crime.

From the time of the discovery of the body of the deceased the Applicant was, on the admission of the Garda Siochana, a suspect in the event of it being established that her death was a murder. He was interviewed by members of the Garda Siochana on two occasions and denied any knowledge concerning her disappearance or death.

On the 12th February of 1984 a complaint was made to the Garda Siochana in Ballina by one Sean Geraghty, a number of whose cattle having strayed from land on which they were being grazed had apparently been maimed and some of them had died. This complaint was extensively investigated by the Gardai after it was made to them, and suspicion rested on the Applicant and his brother who owned a farm of land near to the Complainant, upon which the cattle were apparently trespassing before being discovered to be injured. An internal Garda file on this apparent crime was opened and was put in evidence at the hearing of this trial. It indicates that investigations were continued from time to time and that the Superintendent in charge at the time of the Ballina Garda Station and the Chief Superintendent stationed in Castlebar both took an active interest in the crime which they considered to be one of considerable importance and seriousness. On the file it appears that the suggestion was made on a number of occasions that the Applicant and his brother should beH arrested pursuant to Section 30 of the Offences Against the State Act 1939 and should be interrogated with regard to the suspicion concerning this crime.

Comments occurred of difficulties with regard to staffing which made this inopportune at various times and also the comment occurs on the file that they would be unlikely to make admissions unless interviewed over 1 a period. No concrete evidence from other witnesses against them appears to have been obtained by the Garda Siochana. The last entry on this file was that j of Chief Superintendent O’Connor of Castlebar, entered on the 23rd May 1985, which directed that the enquiries into the crime were to continue and that further report was to be made to him in three months, or sooner if necessary.

The challenge to the admissibility of the statements alleged to have been made by the Applicant while in custody made at the trial was the same as the issues arising on this appeal.

It was contended on behalf of the Applicant that in order to make admissible statements concerning the disappearance of the deceased made by the Applicant whilst under detention pursuant to his arrest under Section 30 it would have been necessary for the prosecution to establish beyond a reasonable doubt that the predominant or primary motive for the arrest of the accused was the necessity to investigate the offence of maiming the cattle and that the prosecution had failed to do so. It was asserted that having regard to the relative seriousness of the crime of murder compared to the crime of maiming the cattle and to the importance, from the Garda Siochana point of view, investigating the crime of murder to have an opportunity of interrogating this Applicant, that desire to solve the offence of maiming the cattle which was then sixteen months old could not have been the predominant or primary motive for the arrest.

Having reviewed the authorities submitted to him, the learned trial Judge ruled that the arrest was lawful, as also was the extension of the further twenty-four hours and that that being the only challenge to the admissibility of the statements, admitted the statements in evidence. The terms of his ruling are as follows:

“The test is: was the arrest in respect of a genuine offence? If it was, then the detention was lawful. The motive of the arresting officer is not queried. Accordingly it is not necessary to consider what was the predominant or primary motive for the arrest, nor to consider whether or not the arrest would have been affected if there had been no murder investigation in being.

 

The sole test is: was the arrest in respect of a real offence and was there a genuine belief that the person arrested might have committed such offence? In the present case the answer to both questions is Yes.

Counsel further makes the point that the Extension Order must be generally made in like circumstances. He contends it was made solely to enable the murder investigation to continue. Again the test is the same. Clearly the offence continued to be a real offence. Further, there was no suggestion that there was no longer a genuine belief that the accused committed such offence. This contention fails.”

 

An issue close to this precise issue came before the Supreme Court in the case of The People at the Suit of the DPP v. Patrick Walsh in which judgment was delivered on the 25th July 1986, the case being a reference to that court by the Court of Criminal Appeal pursuant to Section 29 of the Courts of Justice Act 1924. The facts of that case were that a lady residing in Kerry and having a shop in her house was murdered by a person or persons who in order to gain access to the room in which she was and where she was killed broke a pane of glass in the door between the shop premises and the dwelling premises, and also damaged a heavy iron pot which was thought to be the murder weapon. The applicant in that case was arrested pursuant to Section 30 of the Offences Against the State Act on suspicion of being involved in the breaking of the glass window in the door and of the iron pot, and, on being interrogated made admissions with regard to the crime of murder. In the course of his judgment Walsh J. stated as follows:

 

“The facts of this case disclose unquestionably ” that the alleged offence of malicious damage was very insignificant in comparison with the offence of murder. The facts also disclose notwithstanding the difference in the seriousness between the two offences that there was a connection between them in that the case of the prosecution was and is that it was sufficient to ‘ establish a case fit to go to a jury that the malicious damage was caused in the course of and as part of the incident which led to the fatal assault upon the eceased. The facts of the case also disclose that the members of the Gardai were generally concerned to ascertain the author of the malicious damage in question because it was manifestly clear that the damage and the death were so connected that the author of the malicious damage more than likely was in some way connected with the death of the deceased The fact that there was a great disproportion between the nature of the offence in question and that the greater concentration of police effort was on the investigation into the more serious of them, namely the murder charge, is not in itself sufficient to establish as a reasonable probability that the arrest in respect of the malicious damage charge was simply a colourable device to hold the accused in custody for an ulterior purpose on an alleged offence in which the guards had no real interest. The real question in this case is whether on the evidence there resided in the minds of the Garda Siochana a genuine interest in the malicious damage and a desire to pursue it. All the evidence in the case indicates the answer to this is in the affirmative. That being so, I am satisfied that the learned trial Judge was warranted in holding that the arrest under Section 30 of the Offences Against the State Act 1939 in respect of the scheduled offence of malicious damage was bona fide and genuinely motivated an arrest on the suspicion of having committed that offence.”

In the case of The People v. Quilliqan which was appealed by the DPP from a decision of the Central Criminal Court acquitting the accused by direction, the Supreme Court held that an arrest of the applicant under Section 30 was lawful where he was suspected to have been involved with others in the murder of a man in his own home, the motive apparently being robbery, and where the entry into the home involved the damaging of a bolt on one door and the receiving lock on another, and where in the course of a struggle within the home and the ransacking of it for money and valuables certain items of furniture had been damaged.

Consideration of the judgments in that case, which dealt with other matters not here arising, would again indicate that the test which the Court applied was whether there was a genuine suspicion on the part of the Gardai that the applicant had been guilty of being involved in these offences of malicious damage, which were scheduled offences, and once having concluded that there was such a bona fide suspicion, the Court ruled that the arrest was lawful and that statements taken during it to which there was no other objection were admissible, even though the importance of that offence was very slight indeed in relation to the offence of murder which the Gardai were investigating. In that case it was also clearly laid down that where a person has been arrested under Section 30 of the Offences Against the State Act 1939 it is lawful and proper for members of the Garda Siochana during the period of his detention to interrogate him about matters other than those on the suspicion of which he was arrested, though of course he has no obligation to answer such questions and, of course, such interrogation must be conducted in accordance with the Judges1 Rules and with the fair procedures which have been laid down.

In the present case, the learned trial Judge’s ruling that the Gardai had a genuine suspicion of the Applicant as being involved in the maiming of the cattle and had a genuine interest in seeking to have that crime solved was well supported by the evidence and is not contested by the Applicant on this appeal. It is clear on the evidence which was accepted with regard to this ruling that the Applicant was, during the period of his detention frequently and persistently interrogated about the maiming of the cattle as well as being interrogated about the disappearance of the deceased. There can, of course, be no question but that the guards must have been more concerned with solving the apparent crime involving the death of the deceased than they were in solving the crime of the maiming of the cattle. Chief Superintendent O’Connor gave evidence which the learned trial Judge accepted, however, that the question of maiming cattle, particularly in a rural area, remained a very serious I crime indeed, and one he would be anxious to see solved.

If this Court were to apply the test contended for on behalf of the Applicant, namely, of a predominant or primary motive for the arrest of the Applicant, it would, in the view of this Court, be introducing two wholly new and unsupported principles into the consideration of this question. The first would be that the motive or intention of the arresting officer as distinct from his bona fides could be the determining factor for the rights of members of the Garda Siochana interrogating the person detained and for the rights of the person detained and the admissibility of evidence obtained from such interrogations. The second would be that a person who was arrested on a bona fide suspicion of the commission of a scheduled offence and detained under Section 30 of the Offences Against the State Act would, if he were under suspicion for a significantly more serious crime at the same time, be in some way immune from questioning on that serious crime.

The Court is satisfied that the true construction of the cases to which it has referred and of other authorities which were submitted in the course of the argument must be that the test remains as it was stated to be in The DPP v. Walsh and The DPP v. Quilligan, and that is that the Court must ascertain whether the arrest under Section 30 is a genuine arrest bona fide carried out on a suspicion actually held of complicity by the Applicant in a real scheduled offence. If it is, then the arrest is and remains lawful and statements made which otherwise can not be objected to on grounds of fairness or the form of questioning with regard to any matter must be admissible in evidence. If, on the other hand, the arrest is made as a device to secure the detention of a person who is not really under a bona fide suspicion with regard to the commission of a real scheduled offence but whom the Gardai wish to interview with regard to murder which is not a scheduled offence then the position is different. The Court is, therefore, satisfied that the first ground of appeal, namely, that the arrest of the Applicant was unlawful, must fail. The statements which were tendered in evidence and which are the incriminatory statements were all alleged to be made after the time when the first twenty-four hours of the Applicant’s detention had expired and he was being detained pursuant to the purported extension for a further twenty-four hours. It is, therefore, contended on behalf of the Applicant that even if the arrest was lawful that the evidence did not support a finding made by the learned trial Judge that the extension was also lawful. On the evidence given Chief Superintendent O’Connor who made the Extension Order stated that he was informed by Inspector McCallion who was in charge of the Ballina Station, of the desire of the Inspector partly based on recent information obtained, to have the Applicant interrogated with regard to the maiming of the cattle. He was further informed coming to the end of the first twenty-four hours that a further period of twenty-four hours on the following day would be necessary to complete those investigations.

He was not informed that parallel with this interrogation interrogation was being conducted concerning the disappearance of the deceased. The learned trial Judge held that the information which was laid before the Chief Superintendent which concerned the charge the subject matter of the actual arrest under Section 30 was the relevant information and that once he came to a bona fide decision on that information that the Court could not set aside that decision or find it to be invalid. This Court is satisfied that that is the true and correct ruling to have made. The Court cannot put itself in the position of exercising the discretion which is granted to the Chief Superintendent by the terms of the Section, and there is not any evidence which was before the trial Judge which would have permitted him to reach a conclusion that the Chief Superintendent’s decision was based on some erroneous principle or that he failed to have regard to some matter which would have been relevant. In these circumstances, the application for leave to appeal must be dismissed.

 

In re O’Laighlais.

Maguire C.J. [1960] IR 93

 

MAGUIRE C.J. :
6 Nov.

We are unanimously of opinion that the appeal fails and that the order of the High Court should be affirmed. We shall give our reasons later.
On the 3rd December, 1957, the judgment of the Court was delivered by Maguire C.J.

MAGUIRE C.J. :
3 Dec.

This is an appeal from an order of the High Court dated the 14th October, 1957, allowing the cause shown against a conditional order of habeas corpus ad subjiciendum dated the 18th September, 1957, and discharging the order.
The applicant, Gearoid O’Laighlais, is at present detained in the Curragh Internment Camp by virtue of a warrant dated the 12th July, 1957, signed by the Minister for Justice
in exercise of the powers conferred on him by s. 4 of the Offences Against the State (Amendment) Act, 1940, and made in the form set out in the Schedule to that Act. In the warrant the Minister affirms his opinion that the applicant is engaged in activities which, in his opinion, are prejudicial to the security of the State and orders the arrest and detention of the applicant under s. 4.
Article 40, 4, 1, of the Constitution provides that “no citizen shall be deprived of his personal liberty save in accordance with law.”
Section 4, 2 provides: “Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.”
The applicant having complained that he is being unlawfully detained it is the duty of the Court to enquire into this. The High Court and this Court have no more important and onerous function.
The Offences Against the State (Amendment) Act, 1940, under which the detention is sought to be justified was, before being signed as a law, referred by the President in the form of a Bill under the powers conferred on him by Article 26 of the Constitution for a decision on the question whether it was repugnant to the Constitution or any provision thereof. The Court decided that there was no repugnancy. The President accordingly signed the Bill and the Act was thereupon promulgated as law.
Article 34, 3, 3, of the Constitution declares: “No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution . . . .”
The Court is therefore bound to approach the consideration of this appeal on the basis that the Act is valid and incapable of being challenged as repugnant to the Constitution in these or any other proceedings. This is accepted by Mr. MacBride.
The conditional order was served on Commandant Carl O’Sullivan, in charge of the Curragh Internment Camp, and on the registrar of the commission set up under s. 8 of the Offences Against the State (Amendment) Act, 1940 (which is referred to hereafter as the Act of 1940). On cause being shown by the said Commandant O’Sullivan, the notice of motion to make absolute the conditional order was served on the State Solicitor who appeared for the Commandant, on the registrar of the commission and on the Minister for Justice. In the course of the hearing before us the Court intimated a view that the Attorney General should be represented and subsequently Mr. Walsh, Senior Counsel, and Mr. Hederman, counsel for the Commandant, informed the Court that they were instructed also to appear for and represent the Attorney General. It will be necessary subsequently to refer to some of the affidavits in detail but the story set out in them may be broadly summarised as follows.
The applicant, a builder’s labourer and unmarried, on the 11th July, last, was about to board the Mail Boat at Dun Laoghaire pier to go to England for the purpose, as he says, of obtaining employment. He had purchased a single third class ticket to London. Detective Sergeant Connor with two other Guards prevented the applicant from going on board and took him in a car to the Bridewell. The applicant says that no warrant was produced and no reason given for the arrest, but Detective Sergeant Connor has sworn that he informed the applicant that he was being detained pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939, on the grounds that he believed him to be a member of an illegal organisation. At the Bridewell the applicant was handed over to the custody of Sergeant Clifford who was informed in the presence of the applicant that he was being detained pursuant to s. 30. The Occurrence Book of the Bridewell contains a note dated the 11th July to this effect. The evidence of Sergeant Connor is corroborated by Sergeant Clifford.
On the 12th July, Chief Superintendent Michael Farrell, acting under s. 30 of the Act of 1939, made an order that the applicant be detained for a further period of twenty-four hours expiring at 7.45 p.m. on the 13th July.
The applicant deposes that early on the morning of the 13th July he was awakened in his cell in the Bridewell, told to dress, and, when dressed, was taken in a car to Mountjoy Prison outside which a lorry was waiting. Together with fifteen men who had been discharged from Mountjoy Prison that morning and re-arrested, he was driven to the military detention barracks at the Curragh and at about 11 a.m.
was visited there by Captain Kevin Barry who handed him a copy of the warrant to which we have referred and a copy of s. 8 of the Act of 1940. This was done pursuant to s. 4, sub-s. 4, of that Act. The applicant is still detained at the Curragh Detention Camp under and by virtue of that warrant.
The applicant, acting by his solicitor, Mr. P. C. Moore, on the 8th September applied in writing to have his detention considered by the commission set up under s. 8 of the Act of 1940. A correspondence ensued which it is not at this stage necessary to detail. On the 17th September the commission sat, the applicant and his counsel, Mr. Seán MacBride and Mr. Sorahan, being present. Mr. Walsh and Mr. Hederman were also present representing the Attorney General, instructed by the Chief State Solicitor, for the purpose of assisting the commission on certain questions which they had raised as to their powers and procedure. After argument the commission determined that they had power to sit in public or in camera and that they were not satisfied that they had power to administer an oath. They announced their decision that the remainder of the proceeding should take place in camera. When the proceedings were resumed in camera the commission made certain rulings on procedure.
Mr. MacBride took exception to these rulings. The commission adjourned to Friday the 20th September. On the 19th September the conditional order was obtained and was served on Commandant O’Sullivan. On Friday, the 20th September, the commission further adjourned the hearingsine die.
Before us Mr. MacBride maintained that his client was illegally interned on a number of grounds. The respondent relied upon the Act of 1940, the proclamation made thereunder and the warrant of the Minister for Justice as justifying the detention. It will be convenient to set out ss. 3, 4 and 8 of that Act on which the arguments chiefly centred.
“3.(1) This Part of this Act shall not come into or be in force save as and when and for so long as is provided by the subsequent sub-sections of this section.
(2) If and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately, this Part of this Act shall come into force forthwith.
(3) If at any time while this Part of this Act is in force the Government makes and publishes a proclamation declaring that this Part of this Act shall cease to be in force, this Part of this Act shall forthwith cease to be in force.
(4) Whenever the Government has made and published a proclamation under the second sub-section of this section, it shall be lawful for Dáil Eireann, at any time while this Part of this Act is in force by virtue of such proclamation, to pass a resolution annulling such proclamation, and thereupon such proclamation shall be annulled and this Part of this Act shall cease to be in force, but without prejudice to the validity of anything done under this Part of this Act after the making of such proclamation and before the passing of such resolution.
(5) A proclamation made by the Government under this section shall be published by publishing a copy thereof in the Iris Oifigiúil and may also be published in any other manner which the Government shall think proper.”
“4.(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section.
(2) Any member of the Garda Siochana may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section.
(3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens.
(4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act.
(5) Every warrant issued by a Minister of State under this section shall be in the form set out in the Schedule to this Act or in a form to the like effect.”

“8.(1) As soon as conveniently may be after this Part of the Act comes into force, the Government shall set up a Commission (in this section referred to as the Commission) to perform the functions imposed upon the Commission by this section.
(2) The following provisions shall apply and have effect in relation to the Commission, that is to say:
(a) the members of the Commission shall be appointed and be removable by the Government;
(b) the Commission shall consist of three persons of whom one shall be a commissioned officer of the Defence Forces with not less than seven years’ service and each of the others shall be a barrister or solicitor of not less than seven years’ standing or be or have been a judge of the Supreme Court, the High Court, or the Circuit Court or a justice of the District Court;
(c) there may be paid out of moneys provided by the Oireachtas to any member of the Commission such (if any) fees or remuneration as the Minister for Finance shall determine.
(3) Any person who is detained under this Part of this Act may apply in writing to the Government to have the continuation of his said detention considered by the Commission, and upon such application being so made the following provisions shall have effect, that is to say:
(a) The Government shall, with all convenient speed, refer the matter of the continuation of such person’s detention to the Commission;
(b) The Commission shall inquire into the grounds of such person’s detention and shall, with all convenient speed, report thereon to the Government;
(c) The Minister for Justice shall furnish to the Commission such information and documents (relevant to the subject-matter of such inquiry) in the possession or procurement of the Government or of any Minister of State as shall be called for by the Commission;
(d) If the Commission reports that no reasonable grounds exist for the continued detention of such person, such person shall, with all convenient speed, be released.”
Mr. MacBride’s first series of arguments was based upon the Convention for the Protection of Human Rights and Fundamental Freedoms adopted by the Council of Europe which was signed at Rome on the 4th November, 1950, by the Minister for External Affairs, confirmed and ratified by the Government of Ireland on the 18th February, 1953, and laid before Dáil Eireann on the 29th March, 1954. In the Instrument of Ratification the Government of Ireland undertook faithfully to perform and carry out all the stipulations of the Convention. Mr. MacBride contended (a) that the State, through the Government, having become a party to, and having confirmed and ratified, the Convention and having undertaken faithfully to perform and carry out all the stipulations therein contained (subject to a reservation not now material contained in the Instrument of Ratification), it was not open to the Government to rely on powers which are in violation of that Convention; and (b) in the alternative, that since the 3rd September, 1953, the date upon which the Convention entered into force, the Offences Against the State Acts, 1939 and 1940, and decisions relating thereto, must be construed so as to avoid violating the said Convention solemnly entered into and ratified by the State.
The provisions of the Convention on which Mr. MacBride relied are as follows:
“Article 1.
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Section I includes the following Articles:
Article 5.
(1) Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
(3) Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Article 6.
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Mr. MacBride submitted that Article 5 of the Convention had been violated, for two reasons, firstly, because s. 4 of the Act of 1940 authorises detention of a kind not provided for in Section I of the Article and secondly, because the Commission established under s. 8 of the Act of 1940 is not a tribunal of the character specified in s. 3 of the Article. Mr. MacBride submitted, in the alternative, that detention under s. 4 of the Act of 1940 was not a violation of Article 5 of the Convention if it could be regarded as falling within the middle limb of Section 1, (c) of the Article, viz., detention reasonably considered necessary to prevent the commission of an offence. He also submitted that the functions of the commission established under s. 8 of the Act of 1940 could likewise be regarded as not being in violation of Section 3 of Article 5 of the Convention if s. 8 be construed as entitling the person detained to a judicial trial.
Ireland has a written, rigid Constitution which came into force on the 29th December, 1937, having been enacted by the People on the 1st July, 1937. Article 29 of the Constitution deals with “International Relations.” Mr. MacBride relied upon ss. 1 and 3 of Article 29, which are as follows:
“1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.”
“3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.”
These provisions, Mr. MacBride submitted, reproduce the pre-existing common law, and by the common law, he said, those principles which were commonly accepted as binding by civilised nations became part of the domestic law unless they could be shown to be contrary to it. He referred to the English authorities, West Rand Central Gold Mining Co. v. Rex (1); Chung Chi Cheung v. The King (2). From the latter case he cited in particular this passage from the speech of Lord Atkin (at p. 167): “. . . . so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.”
Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on individuals; they can in no way assist Mr. MacBride’s argument.
Nor is Mr. MacBride’s submission aided by what he says is the position at common law, as set out in Lord Atkin’s speech. Inconsistency with municipal law is there stated to be a ground upon which the common law rejects the principles of international law. Mr. MacBride submits that the Act of 1940 is inconsistent with the provisions of the Convention. If it is, then clearly by the common law principles relied upon the Act prevails over the Convention. When the domestic law makes its own provisions it cannot be controlled by any inconsistent provisions in international law: Mortensen v Peters (3). The principle of incorporation upon which Mr. MacBride relies applies to such parts of international law as are based on universally recognised custom and not to such parts as depend upon convention.
The insuperable obstacle to importing the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of Ireland if they be at variance with that lawis, however, the terms of the Constitution of Ireland. By Article 15, 2, 1, of the Constitution it is provided that “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” Moreover, Article 29, the Article dealing with international relations, provides at section 6 that “no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”
The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law.
No argument can prevail against the express command of section 6 of Article 29 of the Constitution before judges whose declared duty it is to uphold the Constitution and the laws.
The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms. Nor can the Court accede to the view that in the domestic forum the Executive is in any way estopped from relying on the domestic law. It may be that such estoppel might operate as between the High Contracting Parties to the Convention, or in the Court contemplated by Section IV of the Convention if it comes into existence, but it cannot operate in a domestic Court administering domestic law. Nor can the Court accept the contention that the Act of 1940 is to be construed in the light of, and so as to produce conformity with, a convention entered into ten years afterwards. The intention of the Oireachtas must be sought in the conditions which existed when it became law.
The Court must therefore reject Mr. MacBride’s first series of arguments.
In the course of the argument reference was made to the provisions in Article 15 of the Convention for a high contracting party derogating from its obligations under the Convention in certain circumstances, viz., “time of war or other public emergency threatening the life of the nation.”Mr. MacBride said these circumstances were to be equated with the circumstances specified in Article 28, 3, 3, of the Constitution as warranting legislation in derogation of Constitutional rights, viz., “time of war or armed rebellion” or “national emergency . . . affecting the vital interests of the State” arising out of an armed conflict in which the State was not a participant. The circumstances under which Part II of the Act of 1940 may be brought into force (Part II was not in operation at the time of the signing of the Convention for the Protection of Human Rights and Fundamental Freedoms) are a declaration by the Government, by proclamation, that the powers conferred by Part II are necessary to secure “the preservation of public peace and order.” The latter circumstances Mr. MacBride submitted were not such as would justify notice of derogation under Article 15 being given.
In the view which the Court takes of the status of the Convention of Human Rights and Fundamental Freedoms under our municipal law it has not been necessary for the Court to enter into this question, and the Court does not express any opinion upon it. For the same reason, the Court does not find it necessary to express any opinion on the question whether the provisions of the Act of 1940 are in violation of the Convention. The Court has not examined nor has it been invited to examine whether in fact circumstances exist which would justify notice of derogation under Article 15.
There remain for consideration the six other grounds which Mr. MacBride put forward in support of the applicant’s appeal.
The first of these grounds is that Part II of the Act of 1940 (under which the applicant is detained) is not in operation and cannot be brought into operation because of defect of form in the Act.
Part II of the Act of 1940 commences at s. 3. Sub-sects. 1, 2 and 5 have already been quoted but it is convenient to quote them again:
“(1) This Part of this Act shall not come into or be in force save as and when and for so long as is provided by the subsequent sub-sections of this section.
(2) If and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately, this Part of this Act shall come into force forthwith.”
“(5) A proclamation made by the Government under this section shall be published by publishing a copy thereof in the Iris Oifigiúil and may also be published in any other manner which the Government shall think proper.”
Mr. MacBride submitted that because of the omission of an express power to make a proclamation in the terms of sub-s. 2 it was not possible to bring Part II of the Act into force. He gave as examples of an enabling provision s. 35, sub-s. 2, of the Offences Against the State Act, 1939 (No. 13 of 1939), since repealed, and s. 1, sub-s. 1, of the Public Safety Emergency Powers Act, 1926 (No. 42 of 1926).
In the opinion of the Court s. 3 of the Act of 1940 clearly authorises the making of a proclamation if and when the Government consider the situation exists requiring it. When a statute provides that certain consequences follow if and when an act is done, power to do that act is given. Many parallels could be quoted. One is the provisions of Article 28, 3, 3, of the Constitution. Article 28 does not provide that each House of the Oireachtas may pass the resolution referred to in the Article, but merely enacts that certain consequences shall follow when they do so. No one can doubt that the Houses of the Oireachtas are given power to bring the provisions of the Article into effect by passing the resolutions. This submission is wholly unsustainable.
The next ground of appeal is that the applicant was entitled to be released at the expiration of forty-eight hours from his arrest. Sect. 30 of the Offences Against the State Act, 1939, is relied upon. The applicant was first arrested under this section. The section authorises detention for a period of twenty-four hours and, if an officer of the Garda Siochana not below the rank of Chief Superintendent so directs, for a further period of twenty-four hours. A direction was given extending the applicant’s detention. Sub-sect. 4 then provides that a person so detained “may at any time during such detention be charged before the District Court or a Special Criminal Court with an offence and shall if not so charged be released at the expiration of the detention authorised. . . .” The applicant was not at any time during such detention charged with an offence. Mr. MacBride submitted that the provision in sub-s. 4 for release was in the circumstances mandatory.
The period of forty-eight hours’ detention authorised under s. 30 of the Act of 1939, was due to expire at 7.45 o’clock on the afternoon of the 13th July, 1957. At six o’clock on the morning of the same day Detective Sergeant Connolly attended at the Bridewell Gárda Station where the applicant was being detained and took the applicant into his custody. The detective sergeant’s instructions were to remove the applicant from the Bridewell Gárda Station in order to, have him conveyed to the Military Detention Camp at the Curragh for detention there.
The applicant’s detention under s. 30 then ceased. He was thereafter detained under the authority of the Minister’s warrant, Whether or not the detention under s. 30 continued until 7.45 o’clock on the 13th July, 1957, is immaterial. At that moment he was already detained under another and continuing authority, viz., the Minister’s warrant; and it is that warrant which is relied upon as justifying the applicant’s detention. It frequently happens that a convicted person is imprisoned under two warrants for different terms of imprisonment. When the warrant for the shorter term of imprisonment expires the convicted person is not entitled to be released but his imprisonment is properly continued under the second warrant.
The applicant’s next ground of appeal is a challenge to the validity of the Minister’s warrant. It is submitted on the applicant’s behalf that s. 4 of the Act of 1940 authorises only the detention of persons who had been arrested under the section. The submission is rested upon s. 4, sub-s. 3, which is in these terms: “Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens.” The preceding sub-section, sub-s. 2, permits of an arrest without warrant by any member of the Garda Siochana of any person in respect of whom a warrant has been issued by a Minister of State under sub-s. 1.
In our opinion the applicant’s submission is based upon a misconstruction of s. 4. Sub-sect. 3 has for its subject-matter the place and duration of detention. The power to arrest and detain is conferred by s. 4, sub-s. 1, cited earlier. This power is to be read distributively. There is a power to arrest and a power to detain. Where a person is already in custody under a conviction or other authority an arrestsave in a formal sensemay not be possible. But the power to detain is not therefore done away with. On the contrary, the power to detain is the substantive power; the power to arrest is ancillary.
Moreover, a transfer of custody of a person by an authority holding under one order or warrant to an authority claiming to receive and hold that person under another order or warrant is, in the opinion of the Court, an arrest by that latter authority.
The applicant’s next ground of appeal is that his arrest at the Bridewell Gárda Station under the Minister’s warrant was unlawful because he was not told the reason for it. The arrest was made without a warrant being produced. Sect. 4, sub-s. 2, authorises such arrest provided the Minister’s warrant has been issued. Sect. 4, sub-s. 4, however requires that a copy of the warrant shall be furnished to a person detained under the section as soon as may be after he arrives at the prescribed place of detention. Counsel for the respondent submitted that it was sufficient to comply with the requirement of sub-s. 4 and that this requirement was of itself an indication that no more was necessary for a lawful arrest under s. 4. We accept it as settled law that in the case of an arrest without the production of a warrant the arrest will not be lawful unless the person being arrested is told why he is being arrested or unless he otherwise knows: see Christie v. Leachinsky (1). The reason for the rule is not far to seek. Arrest must be for a lawful purpose; and since no one is obliged to submit to an unlawful arrest the citizen has a right before acquiescing in his arrest to know why he is being arrested. The Court sees nothing in s. 4 of the Act of 1940 which manifests an intention on the part of the Oireachtas to modify this wholesome rule of law; and accordingly the Court is of opinion that a person arrested under a Minister’s warrant must be told that such a warrant exists and that he is being arrested and will be detained under it.
But can this avail the applicant? Firstly, he has not established that he did not know why he was being arrested at the Bridewell Gárda Station. Secondly, a prima faciecase is not made out that he was not told why he was being arrested. The point he makes in his affidavit about his arrest at the Bridewell Gárda Station is that he was not told where he was being taken and not that he was not told and did not know why he was taken in custody by the detective sergeant. In contrast with this the applicant in his account of his arrest at Dún Laoghaire two days earlier, on the 11th July, says forthrightly that no reason was given to him for the arrest. In the case of that arrest the respondent was in a position to file an affidavit in reply and he did so. It is enough, however, to say that the applicant has not laid the ground for challenging the lawfulness of the arrest at the Bridewell Gárda Station. Moreover, an invalidity in the arrest would not render the subsequent detention under the Minister’s warrant unlawful though it might give the applicant other rights in respect of the period from the arrest until the warrant was produced and shown to him.
The applicant’s next ground of appeal was that the High Court misdirected itself in law in not holding that the Minister should have made an affidavit to prove that he did in fact entertain the opinion set out in his warrant, viz.,
that the applicant was engaged in activities which in the Minister’s opinion were prejudicial to the security of the State.
Mr. MacBride said that he did not question the Minister’s bona fides; but, he went on, the applicant’s affidavit had so challenged the basis for the Minister’s opinion that an enquiry into the truth of the respondent’s return was called for under s. 3 of the Habeas Corpus Act, 1816.
Counsel for the respondent accepted for the purpose of his argument that the Act of 1816 applies. But s. 3 of the Act is an enabling, not a mandatory, provision. As an enabling provision s. 3 would permit, if the Court thought fit, an enquiry as to whether the Minister did in fact entertain the opinion he states in his warrant. But Mr. MacBride, since he has said he does not question the Minister’s bona fides, makes no point about the existence of the Minister’s opinion. His real purpose, it appears, is to seek in these proceedings to question the validity of the Minister’s opinion. The applicant swore in his affidavit that he was not engaged in illegal activities at the time of his arrest. The applicant’s assertion, Mr. MacBride submitted, puts the Minister on proof that the applicant was a person to whom s. 4 of the Act of 1940 applied.
What Mr. MacBride seeks to do cannot be done. In the course of its consideration of the Offences Against the State (Amendment) Bill, 1940, before it became law (1) this Court had occasion to consider the meaning of s. 4. Chief Justice Sullivan, delivering the judgment of the Court, said (at p. 479): “The only essential preliminary to the exercise by the Minister of the powers contained in s. 4 is that he should have formed opinions on the matters specifically mentioned in the section. The validity of such opinions cannot be questioned in any Court.”
Mr. MacBride wishes to do precisely what in 1940 the Court said cannot be done.
Moreover, attention has been called by counsel for the respondent to the form of the applicant’s assertion. The applicant did not say he was not engaged in activities of the kind specified in the Minister’s warrant, but merely that he was not engaged in such activities when he was arrested. Even if the validity of the Minister’s opinion were examinable, the applicant, it may be said, has not laid the ground for such an examination.
On this branch of his argument Mr. MacBride cited from the speech of Lord Atkin in the English cases of Liversidge v.Sir John Anderson (2) and Greene v. Secretary of State for
Home Affairs (1). Liversidge’s Case (2), it will be recalled, was an action for false imprisonment, and Green’s Case (1)was a habeas corpus application. Liversidge had been detained under Regulation 18B of the Defence (General) Regulations, 1939, and the question was whether the Home Secretary should be ordered to furnish particulars of the grounds upon which he made an order for Liversidge’s detention. Regulation 18B authorised the Home Secretary to order detention if he had reasonable cause to believe any person to be of hostile associations and that by reason thereof it was necessary to exercise control over him. Lord Atkin, contrary to the view of the majority of the House, was of opinion that particulars should be ordered.
In Greene’s Case (1) the Home Secretary had sworn an affidavit showing cause, and, as Lord Atkin said (at p. 246) he appeared to be ready to meet the allegation of absence of reasonable cause. Lord Atkin’s colleagues, however, were of opinion that it was unnecessary for the Home Secretary to make an affidavit, because the question whether or not the cause which moved the Home Secretary to order detention was reasonable could not be examined by the Courts.
Lord Atkin’s view, on the other hand, was that “reasonable cause” for a belief had always been treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal (p. 288).
Mr. MacBride says Lord Atkin’s reasoning supports his submission that the Minister must make an affidavit. Mr. MacBride’s submission, however, ignores the reason why Lord Atkin thought an affidavit was necessary in Greene’s Case (1) and that particulars should be delivered in Liversidge’s Case (2). Lord Atkin regarded “reasonable cause” for a belief as an objective fact, examinable and triable like any other fact. The contrast he drew was between “reasonable cause” for a belief and “mere belief” that a fact exists. His difference with his brethren was as to the construction of Regulation 18B. The Act of 1940 does not require a Minister of State to have “reasonable cause” for his belief: he is authorised to act on his opinion. “Mere belief” is enough. Lord Atkin clearly regarded “mere belief” as a subjective state which was not examinable or triable by a Court.
It remains to consider the applicant’s last ground of appeal, namely, that the commission set up under s. 8 of the Act of 1940 having failed and neglected properly to discharge its functions in a number of matters materially affecting the applicant’s rights, the applicant is now deprived of his only safeguard against indeterminate imprisonment and accordingly is not detained in accordance with law and is entitled to his liberty.
Having regard to our decision that the appellant is lawfully detained under the warrant of the Minister, and that this warrant is lawful and valid, it is difficult to see how the matters relied upon in support of this ground of appeal can be raised on an application for an order of habeas corpus.However, as a considerable part of the argument of counsel for the appellant was directed to this ground of appeal it is necessary that it should be examined in detail.
As has been stated earlier, the applicant, acting by his solicitor, Mr. P. C. Moore, on the 8th September, 1957, applied by letter to the Secretary of the Government to have his detention inquired into by the commission set up by the Government under s. 8 of the Act of 1940. The third and fourth paragraphs of Mr. Moore’s letter were as follows:”I would like to make it clear that my client’s application is put forward on the condition that he be legally represented at the proposed inquiry by his solicitor and counsel and that his legal representatives be accorded the usual rights regarding the production of documents, the right to cross-examine State witnesses, the right to sub-poena witnesses and all the usual rights and privileges enjoyed by legal representatives in a Court of law.
I consequently would be obliged if you would inform me at your earliest convenience of the date of the proposed inquiry and the venue where same will be held, and I also require before the hearing a summary of the evidence which it is proposed to produce against my client on behalf of the State.”
The assistant secretary to the Government, by letter dated the 11th September, 1957, replied that the Government had referred the matter of the continuation of the detentionof Mr. O’Laighlais (the phraseology of s. 8, sub-s. 3, of the Act) to the commission. The letter then continued: “I am to point out that, in the Act, there is no provision for entertaining such applications subject to conditions imposed by the applicant. While the manner of conducting the inquiry is for the commission to settle, I am to say that the third and fourth paragraphs of your letter appear to be based on a mistaken view of the statutory position. Copies of your letter and the application have been forwarded to the commission.”
As stated earlier the commission when it sat on the 17th September, after argument, announced certain rulings on procedure.
Mr. MacBride thereupon on behalf of the applicant submitted that his client’s interests had already been gravely prejudiced by the transmission to members of the commission of some anonymous documents marked “Secret and confidential” the origin of which was undisclosed and the authenticity of which was unsubstantiated and said that unless the applicant’s legal advisers were made aware of all the evidence tendered to the commission to justify the detention of the applicant that it would be impossible for them to discharge their duty to the applicant. He requested the commission to divest itself of the documents forthwith and to refuse to read them or act upon them unless and until they had been duly proved and made available to the applicant’s legal advisers. The commission then adjourned to Friday, the 20th September.
On the day following the adjournment, the 18th September, Mr. MacBride moved for, and obtained in the High Court, a conditional order of habeas corpus on, among other grounds, the ground that Part II of the Act of 1940 was not in force and accordingly that the commission had not been lawfully constituted. In these circumstances the commission when it sat on the 20th September thought fit to adjourn its sittings until the legality of its constitution had been ruled upon in the High Court proceedings although Mr. MacBride requested them to proceed with the inquiry.
The application is still before the commission. The commission has not yet inquired into the grounds of his detention. So far the commission has concerned itself only with procedural matters, and even if it were to be shown that the commission’s rulings on those questions were wrong that would not render the applicant’s detention unlawful. The applicant is not detained by virtue of anything the commission has done but under the Minister’s warrant and the applicant’s challenge to the validity of the warrant has not been sustained.
While a case is at hearing in a Court erroneous rulings on procedural matters cannot ground an application for habeas corpus. An examination of s. 8 of the Act of 1940 shows that the commission set up under the section is not a court, and an application to the commission is not a court proceeding. It is what the section says it is and no morean inquiry. The commission’s only duty is to enquire into the grounds of detention and to report thereon to the Government.
The commission is entitled to have before it such information and documents (relevant to the subject-matter of its inquiry) in the possession or procurement of the Government or of any Minister of State as it shall call for. The requirement of the statute is that such information and documents shall be furnished to the commission for the purpose of its inquiry. The statute does not require the commission to disclose to the applicant such information or documents.
It having been determined that the provisions of the Act are not repugnant to the Constitution the only matter with which this Court is concerned is the meaning and intendment of s. 8. The section contemplates an inquiry which is entirely of an administrative character and the applicant’s submissions have proceeded on the wrong basis that the commission is a court.
This ground of appeal, together with the applicant’s other grounds of appeal, fails. Accordingly his appeal must be refused and the order of the High Court allowing the cause shown affirmed.

[On the 9th November, 1957, an application and statement of claim was lodged on behalf of Mr. O’Laighlais with the European Commission of Human Rights at Strasbourg, claiming his release and damages for wrongful imprisonment. The applicant complained that his imprisonment constituted a breach of the European Convention of Human Rights, in particular of Articles 5 and 6 thereof which guarantee the rights to liberty, to security of person and to the proper administration of justice.
On the 11th December, 1957, the applicant was released by order of the Minister for Justice made on the same date. The application was then treated by the Commission of Human Rights as a claim for damages for wrongful imprisonment in breach of the Convention. After an exchange of written pleadings, the Commission requested the parties to appear before it for oral argument as to the admissibility of the application. The Commission heard the arguments of counsel for Mr. O’Laighlais and counsel for the Irish Government at Strasbourg on the 19th and 20th June, 1958, and reserved its decision.
On the 2nd September, 1958, the Commission declared the application to be “admissible.” A sub-Commission consisting of seven members was then appointed, pursuant to Articles 28 and 29, for the purpose of establishing the facts and of seeking to arrange a friendly settlement. After a further exchange of written pleadings the sub-Commission, sitting at Strasbourg, heard the oral evidence of the applicant and of Inspector McMahon and the submissions of counsel.
At the hearings before the Commission and the sub-Commission the applicant was represented by S. MacBride, Senior Counsel, T. J. Conolly, Senior Counsel, and S. Sorahan, instructed by P. C. Moore, Solicitor. The Irish Government was represented by the Attorney General, Andreas O’Keeffe, Senior Counsel, B. Walsh, Senior Counsel, and A. Hederman, instructed by the Chief State Solicitor, and were assisted by Mr. S. Morrissey and Mr. T. Woods of the Department of External Affairs and by Mr. T. J. Coyne and Mr. Berry of the Department of Justice. The proceedings before the Commission and sub-Commission were heard in camera.

The report of the Commission, which is confidential, was transmitted to the Committee of Ministers and to the Irish Government on the 1st February, 1960.
On the 4th April, 1960, the Commission announced that, although it had expressed the opinion by a majority that the applicant’s detention did not constitute a violation of the Convention, it had nevertheless decided, in view of the fundamental legal issues involved, to refer the case to the European Court of Human Rights.
The European Court of Human Rights sat in Strasbourg on the 3rd and 4th days of October, 1960, to hear preliminary objections lodged by the Irish Government and gave its judgment on the 14th November, 1960. Most of the objections lodged by the Irish Government were either withdrawn or overruled by the Court and the hearing of the case was fixed for the 7th April, 1961.
The applicant was not represented before the Court as, under the Convention, there is no provision for the representation of an individual applicant save by direction of the Court or in an advisory role to the Commission. The objections of the Irish Government were opposed by the President of the Commission, Professor Sir C. H. M. Waldock. The Irish Government was represented before the Court by the Attorney General, Andreas O’Keeffe, Senior Counsel, and S. Morrissey and A. Hederman, instructed by the Chief State Solicitor, who were assisted by Professor Paul Reuter, a French lawyer.ED.]