Criminal Process II

Cases

The State (Ryan and Others) v. Lennon and Others.

[1935] IR 175

I will refer only to one other of these provisions of the new Constitution of the Free State, in contrast with the old. An “order” to search any place or premises may be issued by an inspector of the Garda Siochana without reference to any Court or Judge whatever. It will be within common knowledge that an attempt to introduce a similar provision in a neighbouring country failed before a public opinion aroused in defence of a treasured constitutional principle of liberty. We have to decide whether the committal of such principles to a written Constitution has secured them as effectually.
From those provisions which I have summarised it is clear that the new Article 2A is no mere amendment in, but effects a radical alteration of, the basic scheme and principles of the Constitution enacted for the Saorstat by the Constituent Assembly. The Constitution, in Article 2 (which curiously enough is expressly excepted from amendment by the Act under consideration), referring to their source, declares the division of powers, legislative, executive and judicial, for the exercise of which the instrument establishes, or provides for the establishment of, the necessary organisations proper to them respectively. The judicial power of the State is to be exercised in the public Courts, established for that purpose, by Judges appointed in manner thereby carefully prescribed. The Executive authority is conferred on an organisation thereby established to exercise it as thereby prescribed. It has often been said that it falls to the Courts of Justice of the State to stand between the citizen and the Executive and the executive departments, as the only defence of the citizen against encroachments on his rights and liberties, always in danger of such encroachments when watchfulness slackens,e.g., see per Farwell L.J. in Dyson v. Attorney-General (1).
Now let me state the effect on the Constitution of these, the outstanding provisions, which I have just summarised, of the new Article 2A inserted in the Constitution by the Amendment Act, No. 37 of 1931 (if valid).
Power is given permanently to the Executive Council for the time being to put the new Article into operation at any time and to supersede a great part of the Constitution whenever and for so long a time as it finds it expedient to do so.
No conditions are prescribed for the exercise of that power. It is not made a condition precedent to its exercise that there must be a state of war or armed rebellion, or other danger to the public safety, or that there must be a prevalence of disorder, or that there must be circumstances such as to prevent the constitutional Courts of Justice or any of them from sitting or fulfilling their constitutional functions, or such as to interfere effectively with the constitutional right to trial by jury. An Executive Council is thereby empowered to put the Article into operation, if they think it expedient, in time of complete peace and order and of law undisturbed and unembarrassed.
When the Article is put into operation, the Executive Council takes away from the constitutional Courts of Justice the trial of certain specified offences against the ordinary law and of others not specified but to be certified (before trial) by a member of the Executive Council as having been done for a named object, whereupon the persons charged are to be “tried” without a Judge or jury by a group of non-legal persons, appointed and removable at pleasure of the Executive Council, and holding army commissions from the Executive Council. That is to say, the exercise of the judicial power of the State in a large and, to the citizen very important, respect, is in truth and effect transferred from its constitutional depositary, the Courts of Justice of the State, to the Executive Council, for though the Executive Council exercises that judicial power through a group of its own nominees acting at its pleasure and called a “Tribunal,” this “Tribunal” is in truth in like case with the military tribunals to which Lord Halsbury, speaking of courts martial in time of war, referred in these terms:”If there is war, there is the right to repel force by force, but it is found convenient and decorous, from time to time, to authorise what are called ‘courts’ to administer punishments, and to restrain by acts of repression the violence that is committed in time of war . . . But to attempt to make these proceedings of so-called ‘courts-martial,’ administering summary justice under the supervision of a military commander, analogous to the regular proceedings of Courts of Justice is quite illusory”: Tilonko v. Attorney-General for Natal (1).
The Oireachtas, to which alone and exclusively the Constituent Assembly entrusted the legislative power in respect of peace, order and good government, by this Act (if valid) has surrendered to the Executive Council power to declare certain matters to be offences “triable” by the “Tribunal” by a certificate in the individual case of an Executive Minister. The Oireachtas, notwithstanding such exclusive trust, has in like manner surrendered to the Executive Council the authority to declare by the mouth of its nominees and servants at will, what shall be the punishment of any offence “tried” by the “Tribunal,””in lieu of the punishment provided by law” (sect. 7, sub-sect. 1), without check or limit on the choice or quantum of punishment, not even by a general rule governing all cases of a class or type, but by a sentence devised and declared for the individual case.
The net effect, then is that the Oireachtas has taken judicial power from the Judiciary and handed it to the Executive and has surrendered its own trust as a Legislature to the Executive Council, in respect of the extensive area of matters covered by the Appendix to the Article. Remembering that the “Tribunal” is to consist of five persons holding commissions as commandants (or higher ranks) issued to them by, and held at the pleasure of, the Executive Council, and holding membership of the”Tribunal” at the will of the Executive Council, the result of the Article clearly is that whenever any Executive Council thinks it expedient to use the Article, that Council itself prosecutes (in pursuance of its proper executive function) a person charged by it with an offence (which may be an offence brought within the scope of the Article by an Executive Minister’s certificate) and conducts the prosecution before itself, “trying” the charge by its own removable nominees, and itself convicts the accused person, by the same convenient and decorous machinery, and prescribes any sentence for the individual case it chooses through the same convenient and decorous machinery. Every act, from the arrest of the individual and the charging him with an “offence” to the sentence and its execution, is, therefore, in naked reality, the act of the Executive Council.
I am not making any criticism of, or comment upon, this resulting position. I am trying to make clear what the enactment purports to do and to show where and how it conflicts with the Constitution enacted by the Third Dail in 1922, and the vast importance it may have at any time to the life and liberty of every citizen (if it be effective and valid) and, consequently, the awful gravity of the matters before us for determination in this, as I consider, momentous case.
Has then the Oireachtas validly and effectively, not merely amended, but consummated this root and branch alteration in the fundamental principles of the Constitution enacted by the Third Dail Eireann as a Constituent Assembly in 1922? This is a question calling for most anxious, meticulous and (especially as regards our own particular trust, the judicial power of the State, now so rudely to be invaded) most jealous care: Lynham v. Butler (No. 2) (1). Our trust is for the people, our duty and responsibility to the people, and, while bowing inevitably to lawful amendment, when established to have been properly and duly made, we must be watchdogs to protect against unlawful encroachment and to maintain intact, so far as in us lies, the principles and provisions embodied in the Constitution for the protection of the liberties of the citizens in mass and individually.
The Constitution, or Bunreacht, is the fundamental structure upon which the State was set up by the Third Dail Eireann sitting as a Constituent Assembly. The Dail thereby formulated the system or principles, and created the organs, of government of the State. In its second and basic Article, a fundamental division of function was declared, for the exercise of which respectively there were thereby created distinct organs, as, for example, the Oireachtas as the organ of ordinary legislation. The Assembly also laid down in the instrument a few great traditional principles of government (for the most part prohibiting or limiting action of certain kinds, principally on the part of the executive organ), any radical breach of which would, in the common acceptation, involve either tyranny or anarchy.
Now, the first thing I should emphasise is that the Constitution was enacted by the Third Dáil, sitting as a Constituent Assembly, and not by the Oireachtas, which, in fact, it created. It ought not to be necessary to mention thisone cannot imagine such a necessity arising in any other country. A book has, however, been issued within the last few weeks by the Government Stationery Office, called “Index to the Legislation passed by the Oireachtas in the years, 1922 to 1932,” in which at several places the Constitution is stated to have been enacted by the Oireachtas (see pp. 6, 75, and passim), surely an extraordinary blot on an official publication. I regret that it is, therefore, necessary to state that the Constitution was enacted as a Schedule to the Constituent Act, passed on the 25th of October, 1922, by the Third Dail Eireann ,sitting as a Constituent Assembly. It may be also necessary to recall that that Assembly was a single-chamber parliament, membership of which was not restricted by, or conditioned on, any test, oath, or declaration of any kind, and which did not act in combination or association with any other chamber or body or person (Lord Lieutenant or Governor-General), and that it was the Parliament to which the then Executive or administration, including the”Provisional Government” as it was called, was responsible. The Oireachtas did not come into existence until after the Constitution itself had come into operation on the 6th of December, 1922. These historical facts are, as I will show, of no small importance in considering the questions before us.
It may be taken for granted (the contrary has not been suggested) that, if the Constituent Assembly had not conferred upon the Oireachtas, or upon some other assembly or body or bodies of persons, or upon some individual or individuals, power to alter the Constitution, it could not have been altered, whether by amendment, revision, deletion, repeal or otherwise, unless a Constituent Assembly were again convoked for that purpose, a procedure which is required in other countries. The Constituent Assembly did, however, confer on the Oireachtas such a power by Article 50, whereby it was provided that:”Amendments of this Constitution . . . may be made by the Oireachtas”that is the only power to alter the Constitution outside action by the Constituent Assembly itself, but that power is limited and circumscribed by a number of restrictions in respect of the manner and conditions of its exercise and of the substance of the amendments permitted.
In the first place, what I may describe as an over-all limitation arises in this way. The Constituent Assembly declared in the forefront of the Constitution Act (an Act which it is not within the power of the Oireachtas to alter, or amend, or repeal), that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that “all powers of government and all authority, legislative, executive, and judicial, in Ireland are derived from the people of Ireland . . .” It follows that every act, whether legislative, executive or judicial, in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God. From this it seems clear that, if any legislation of the Oireachtas (including any purported amendment of the Constitution) were to offend against that acknowledged ultimate Source from which the legislative authority has come through the people to the Oireachtas, as, for instance, if it were repugnant to the Natural Law, such legislation would be necessarily unconstitutional and invalid, and it would be, therefore, absolutely null and void and inoperative. I find it very difficult to reconcile with the Natural Law actions and conduct which would appear to be within the legalising intendment of the provisions of the new Article 2A relating to interrogation. I find it impossible to reconcile as compatible with the Natural Law the vesting, in three military servants of the Executive, power to impose as punishment for any offence within the indefinite, but certainly extensive, ambit of the Appendix, the penalty of death, whenever these three persons are of opinion that it is expedient. Finally, the judicial power has been acknowledged and declared (and the acknowledgment and declaration remain) to have come from God through the people to its appointed depositary, the Judiciary and Courts of the State. While they can fulfil that trust, dare any one say that the Natural Law permits it, or any part of it, to be transferred to the Executive or their military or other servants?
The second restriction controlling amendment of the Constitution is one imposed in express terms by the Constituent Assembly in the Constitution of the Irish Free State (Saorstat Eireann) Act itself. It is enacted in sect. 2 of that Act that:”if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative . . .” This enactment is followed by the complementary restriction in Article 50 of the Constitution:”Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas.” Now, a Treaty between two countries, negotiated and concluded, whether by authorised envoys or directly by governments, does not constitute part of the municipal law of either country, unless, and only to the extent that, such Treaty, or some part or parts of it, has been given the force of law by the legislative process of the country in question. The Anglo-Irish Treaty of 1921 (called in the Constitution the”Scheduled Treaty”) was given the force of law and became part of the municipal law in Great Britain by the Irish Free State (Agreement) Act, 1922 (passed by the British Parliament on the 31st of March, 1922), and it was given the force of law and became part of the municipal law in Saorstat Eireann by the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922 (passed by the Third Dail Eireann , on the 25th of October, 1922). Such municipal legislation, so long as it remains unrepealed, makes the treaty instrument of legal obligation, within the State so enacting it, upon the Government, the Judiciary, and the individual citizen, to the extent to which they are respectively concerned. That is, of course, an obligation having a sanction quite independently of the political and moral obligation of such Treaty internationally as an international agreement. Courts must have regard to the former obligation but have generally no concern with the latter standing alone and unsupported by municipal legislation. A Treaty, as an international agreement, may by a time limit contained in it, cease to be effective between the contracting parties by the expiry of the time limited, or it may cease to bind the contracting parties by some agreed method of abrogating it or by denunciation or some internationally recognised and accepted process of bringing its obligation to an end, or it may be modified or altered by new agreement or supplemental treaty between the contracting parties. The agreement for such abrogation or modification of a treaty between the contracting parties would not have the effect of repealing or altering the municipal legislation enacted to give the original treaty the effect of municipal law. There must be municipal legislation for that purpose (unless perhaps anticipated and provided for in advance by the original legislation). It being in the nature of things that a treaty being simply an agreement between parties is not something fundamentally immutable in its character as a treaty but is subject to modification or termination in some of the ways I have indicated, the reference to”the Scheduled Treaty” in the Constitution Act and in Article 50 must be taken to have been made in contemplation of that position and to have a certain consequent flexibility.
In In re Reade (1), I pointed out (at p. 49) that “the Treaty itself contains the whole basis and framework of what may be called the external Constitution of the Free State,” that is to say, the constitutional status and relationships assumed by Saorstat Eireann upon entering as a political unit, under the Treaty of 1921, into the Community of Nations known as the British Commonwealth of Nations as one equal member thereof. (See full discussion of this matter at pp. 46 to 49 of the report of that case.) The Treaty also contained agreements between the two countries on particular matters, some of which would be reflected in the Constitution of the Saorstat itself so long as the Treaty and the particular heads of agreement remain in force as an operative instrument between the two contracting parties, and during such time they would limit amendment of the Constitution of the Saorstat in the sense that certain amendments might constitute a breach of agreement between the two countries. But the Treaty does not of itself limit in any other way the power of the Saorstat to amend its own Constitution. The power of amendment is conferred on the Oireachtas, and the limitations on the extent and manner of exercise of that power are imposed, by the Third Dail Eireann , as of its supreme right and authority. I need only refer, for the purposes of this case, to one of the matters made the subject of particular agreement by the Treaty. Article 16 of that instrument contains a specific agreement that the Parliament of the Irish Free State shall not make any law so as to (a) endow any religion, (b) prohibit or restrict the free exercise thereof, (c) give any preference or impose any disability on account of religious belief, or (d) divert from any religious denomination any of its property except as therein mentioned. This Article of the Treaty is reflected in Article 8 of the Constitution, which guarantees freedom of conscience and free profession and practice of religion to every citizen, and prohibits legislation of the nature mentioned in the sixteenth Article of the Treaty (though there is no reason to suppose that such a provision would not have been inserted in the Constitution by the Constituent Assembly of its own volition independently of the stipulation in the Treaty). A considerable part of Mr. Overend’s argument has been addressed to the question whether the power of amendment can be read in such a way as to extend to that clause, as it certainly would if some of the contentions put forward were accepted as sound. His main contention on this matter was that, if a power of amendment of the nature and extent claimed were held to have been conferred by Article 50, then a person who had elected for citizenship of the Saorstat under Article 3, acting on the faith of the protection given to his conscience and religion by Article 8, might find that protection swept away from him some day by an amendment deleting Article 8. The answer to that argument, however, is that his election to accept citizenship of the Saorstat under Article 3 must be taken to have been made in full view of, and subject to, any amendment which can be lawfully made under Article 50, and the question therefore remains or this, as for any other, purpose, whether the particular alteration of the Constitution is an amendment which can be made lawfully under the power of amendment in Article 50, and if it be so, Mr. Overend’s citizen cannot, I fear, rely on the representation in Article 8. He can only rue his folly and bewail his fate. There is, however, another consideration which touches the same point, one relied on very strongly by Mr. Costello in his argument, and with which I now deal. It is the third limitation which, it has been contended, circumscribes and restricts the power of amendment.
In the Constitution, in addition to giving form to the Constitution proper by establishing the organisations for the exercise of the powers of government in its threefold division of authority, the Constituent Assembly also enunciated certain propositions, containing statements of fundamental principle in the constitutional sphere so expressed as to convey clearly the intention that they are to be accepted for the purposes of the Constitution as immutable and absolute, subject only to the specific qualifications expressed in certain cases. For example, Article 2, with regard to the derivation of the powers of government and authority, is enunciated by the Constituent Assembly as a statement of fundamental principle which is not to be questioned by the Oireachtas. It is noticeable that, in the case of Article 2, that position was recognised in the Constitution (Amendment No. 17) Act, whereby that Article was excepted from the general overriding effect given to the new Article 2A over all the subsequent Articles of the Constitution. A similar declaration of principle is contained in Article 6, which lays it down that the liberty of the person is inviolable, flowing from which there follows the concrete case, “no person shall be deprived of his liberty” with the specific qualification”except in accordance with law.” An enactment to the general effect that a citizen may be taken and detained in custody, without being charged with any offence known to the law but just whenever and for as long as a soldier or policeman deems it expedient, would conflict with the principle laid down in Article 6, and, in my opinion, whether purporting to be an ordinary law, or an amendment of the Constitution, would be invalid and void and could not be sustained under the power of amendment. On the other hand, ordinary laws may be enacted validly specifying the cases in which, the causes for which, the times during which, and the persons by whom, a person may in accordance with the ordinary law be deprived of his liberty. The same considerations apply to Article 7, which declares that the dwelling of each citizen is inviolable. Article 8, in which freedom of conscience and the free profession and practice of religion are laid down as rights of the citizen, is in a somewhat different form. It guarantees these liberties to every citizen. So, also, the right of free expression of opinion and the right to assemble peaceably are declared in Article 9, by guaranteeing them, subject to the equally fundamental qualification that their exercise must not be for purposes opposed to public morality.
The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and absolute (except as expressly qualified), and, so, necessarily, immutable. Can the power of amendment given to the Oireachtas be lawfully exercised in such a manner as to violate these principles which, as principles, the Oireachtas has no power to change? In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or conveyed that sense in other words, as by a declaration of inviolability, and at the same time to have conferred upon the Oireachtas power to violate them or to alter them. In my opinion, any amendment of the Constitution, purporting to be made under the power given by the Constituent Assembly, which would be a violation of, or be inconsistent with, any fundamental principle so declared, is necessarily outside the scope of the power and invalid and void.
I have been dealing with limitations of the power of amendment in relation to the kinds of amendment which do not fall within the scope of the power and which are excluded from it always, irrespective of the time when,i.e., within the preliminary period of eight years or after, or the process by which, the amendment is attempted. Such considerations as I have been discussing may affect a particular attempted amendment either in the whole or in part only. I now come to deal with a restriction on the exercise of the power of amendment affecting any attempted amendment as a whole.
The fourth limitation on amendment of the Constitution is that imposed in Article 50 on the method or process of amendment by these words:
“but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment.”
The clause then contained a special power to be exercisable during the before-mentioned period of eight years:
“Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.”
The practical difference between the procedure for exercising these powers is that, after the first period of eight years, the Oireachtas is forbidden to make an amendment of the Constitution without referring it to the people by Referendum for approval; while for an initial period of eight years a Referendum was not required unless demanded in the manner provided by Article 47, thus allowing a time within which drafting of formal or other unimportant amendments could be effected without insisting on the Referendum, which, however, could always, even during such preliminary period, be demanded and insisted upon, so that the check and control of the people could at any time be exerted if a proposed amendment seemed to call for it. A moment’s consideration will demonstrate that this clause was enacted in clear realisation of the relative positions of the Constituent Assembly and the Oireachtas. Membership of the Constituent Assembly, as I have mentioned already, was not restricted by any oath or other test. The Assembly therefore felt itself entitled to speak for all the people in the territory for which it was elected, and it is very clear, on the evidence of the Constitution itself which it enacted, that the Assembly intended, and, so far as it could by constitutional provision, tried to preserve intact the overriding authority of the people. The Assembly established by the Constitution a Legislature (the Oireachtas) upon membership of which the Assembly felt bound for certain reasons (and I am not called on here to discuss these reasons) to impose a test by way of an oath, the possible, even probable, effect of which might be anticipated as the exclusion of some of the people from membership of the Oireachtas. That probable effect, in limiting membership of the Oireachtas and so restricting the voice of opinion in support of or opposition to its acts, was met by making provision for the procedure known as the Referendum to the people for decision (which was no doubt recommended to the Constituent Assembly by other considerations as well as that which I am discussing and which is obvious on the face of the document itself). The Referendum was not limited by any oath or other test. The decision of the matter submitted was to be a decision of the whole people on the basis of universal suffrage (Article 14, for which detailed provision was actually made by statute, the Electoral Act, No. 12 of 1923, Part V). Thus, the Constituent Assembly, endowing the more limited Assembly, the Oireachtas, with a power of amendment of the Constitution, reserved to the people on whose behalf it was enacting that Constitution absolute control of the exercise of that power, so that in every case after the period of eight years the decision of the people must be obtained and, during that period, such control was secured by the right to demand a Referendum.
Nevertheless, the Oireachtas has, it is contended, by means of two amendments of the Constitution within the preliminary period of eight years, namely, the Constitution (Amendment No. 10) Act, No. 8 of 1928 (passed on the 12th of July, 1928), and the Constitution (Amendment No. 16) Act, No. 10 of 1929 (passed on the 14th of May, 1929), succeeded in taking from the people the control so carefully reserved, and endowed the Oireachtas itself with power to amend the Constitution without limit or check of any kind even to the extent of an “amendment”generally over-riding the whole Constitution and depriving the people of their constitutional rights and liberties whenever and during such time as one of the limbs of government, the Executive, thinks it expedient. The first of these two amendments deleted Articles 47 and 48 from the Constitution. Those Articles gave the people a voice in ordinary legislation by means of the “Referendum” and the “Initiative.” I am not concerned with the amendment here in its bearing upon ordinary legislation of the Oireachtas, in which respect it may be an entirely valid exercise of the power of amendment under Article 50. I have not to consider it in that aspect. I am now only concerned with its express, though not too strikingly prominent, extension to remove the condition annexed to the power of amendment during the preliminary period of eight years given by Article 50, namely, that it should be subject to the provisions of Article 47, i.e., the Referendum. Having thus, as it was supposed, removed all power of the people to interfere by the Referendum in amendments made during the preliminary term of eight years, and taken a free hand, the Oireachtas passed the second of these amending Acts extending by a further period of eight years the term for the exercise of the preliminary power, now freed by the previous amending Act of all reference to or control by the people. If this was lawful it can be continued indefinitely in time and scope of amendment, ultimately even to the exclusion of the people from all voice in legislation and administration and the open mockery of Article 2 of the Constitution. As against this, counsel advanced the (rather political) argument that the people were still fully protected, because, as he said, a general election is equally effective with a Referendum, and that in fact the majority which passed the amendment containing Article 2A was immediately afterwards rejected at the polls, though at the same time he admitted the answer, also perhaps political though logical, that the majority which succeeded after a general election did not repeal the statute enacting the amendment, but only suspended the operation of the amendment, and later put it again into full operation. If, however, the result of the election of which counsel spoke was a declaration of the mind of the people on the Amendment No. 17 and the Article No. 2A, thereby inserted in the Constitution, it follows that if submitted to the people by Referendum it could never have reached the Statute Book and we should not have had to consider its validity as an Act of the Oireachtas in operation as we are now engaged in doing.
Was, then, the Amendment No. 16 lawfully enacted by Act No. 10 of 1929? There are two principal grounds for impeaching its validity; the first, the taking away, whether validly or not, in any case the effective removal from use, of the Referendum and the right to demand a Referendum; the second, that the Amendment No. 16 is not within the scope of the power of amendment, and therefore the Oireachtas was incompetent to enact it.
It has not been suggested or even hinted that, if the Constituent Assembly had not conferred a power of amendment of the Constitution, there would have been any such power in the Oireachtas or in any other body. If no such power had been given the only way in which the Constitution could have been altered or amended in any respect would have been by convoking the Constituent Assemblyfor that purpose. The Oireachtas, therefore, which owes its existence to the Constitution, had upon its coming into being such, and only such, power of amendment (if any) as had been given it by the Constituent Assembly in the Constitution, that is to say, the express power set out in Article 50, and amendments of the Constitution could only be validly made within the limits of that power and in the manner prescribed by that power.
Now, the power of amendment is wholly contained in a single Article, but the donee of the power and the mode of its exercise are so varied with regard to a point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other, a wholly different and permanent power, to come into existence after the expiry of that preliminary period and so continue thereafter.
During the preliminary fixed period of eight years, power was given to the Oireachtas to make amendments of the Constitution “by way of ordinary legislation,” which I understand to mean by the ordinary legislative procedure. The Oireachtas had, therefore, under this clause power to enact amendments as law during the specified period of eight years. To this power, however, there was added the condition that it “shall be subject to the provisions of Article 47,” that is to say, the amendment must be submitted by Referendum to the decision of the people, if,but only if, demanded within a specified time by the Senate or by a certain proportion of the people. Thus the Constituent Assembly, even during the preliminary period, would not relax the ultimate authority of the people, and expressly reserved to the people the right to intervene when they considered it necessary to restrain the action of the Oireachtas affecting the Constitution. The frame of this provision makes it clear to my mind that, even if, by amendment of the Constitution under the power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, deliberately, expressly and in a mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years.
Now, on the other hand, the permanent power of amendment, to arise at the expiry of the period of eight years, is a wholly different thing both as to the donee of the power and the manner of its exercise. Power is not given to the Oireachtas to enact amendments of the Constitution into law in any circumstances. On the contrary, there is an express negativing of any such power. There is a prohibition, utterly unambiguous in its terms, forbidding the passing into law of any amendment which shall not have been submitted to a Referendum of the people and been approved by a specified majority of the people. In other words, the only power of amendment of the Constitution, after the 6th of December, 1930, was given by the Constituent Assembly to the two Houses of the Oireachtas and the people together. Under that power it is clearly not lawful for the Governor-General to certify the passing into law, by signifying the King’s Assent, of any Bill purporting to amend the Constitution, passed by the two Houses of the Oireachtas, until the decision of the people thereon by Referendum has been declared. If that clause still confers and defines the power of amendment of the Constitution as from and after the 6th of December, 1930, the Constitution (Amendment No. 17) Act, No. 37 of 1931, stated to have been passed on the 17th of October, 1931, has never become law, and is void and inoperative, because it has admittedly never yet been submitted to a Referendum of the people, and the Oireachtas alone has not power to enact it as law. We find, then, that the only power of amendment of the Constitution given by the Constituent Assembly has not been exercised, inasmuch as it has not been exercised by the people, to whom the ultimate effective act in its exercise was reserved: that, in fact, the purported passing of the Bill into law by its presentation by the Executive Council to the Governor-General for signification of the King’s Assent was in contravention of an express provision in the clause creating the power. We have then to see what authority is invoked for amendment by the Oireachtas alone and the exclusion of the decision of the people as required by the power of amendment given. The answer at the Bar is that the Oireachtas, by the Constitution (Amendment No. 16) Act, No. 10 of 1929, before the 6th of December, 1930, amended the power of amendment and changed the preliminary period of eight years prescribed by the Constituent Assembly to a period of sixteen years, i.e., a period ending the 6th of December, 1938, and thereby gave itself power to make amendments of the Constitution during a new period of eight years ending at the latter date without submission to a Referendum of the people contrary to the express prohibition in, and in defiance of the clear spirit and intention of, the clause. The authority for this far-reaching and (as we see in its fruits) most grave action is a certain interpretation of the words of Article 50 which, upon the most attentive consideration, I am of the clear opinion they do not bear.
We must now focus our attention on the Constitution (Amendment No. 16) Act, No. 10 of 1929, and determine the question of its validity. There are two grounds upon which it is impugned, the first extrinsic, in that, in consequence of the passing of Constitution (Amendment No. 10) Act, No. 8 of 1928, it is a defective execution of the preliminary power of amendment given by Article 50; the second intrinsic, in that it is an excessive execution of that power, an act purporting to do under the power something unauthorised by the power or even forbidden by it.
The Constitution (Amendment No. 10) Act, No. 8 of 1928, was, as stated in its long title, passed to remove Articles 47 and 48 from the Constitution, that is to say, to get rid of the intervention of the people by either procedure in respect of ordinary legislation of the Oireachtas. I do not stop here to discuss whether such amendment is within the express power of amendment or not. I assume for my present purpose that it was as regards ordinary legislation a valid amendment. The Act was, however, expressed to extend to “necessary consequential amendments”and, under cover of this far from correct phrase, it purported to make another amendment in the Constitution far more important and far-reaching than the expressed principal purpose of the Act and not at all consequential thereon, and to confer on the Oireachtas a licence to amend the Constitution without reference to the people during the residue of the fixed preliminary period to the 6th of December, 1930. The Constituent Assembly, when conferring on the Oireachtas a special power of amendment of the Constitution during such fixed period, attached an express requisite for the execution of that power, stipulating that it should be subject to the provisions of Article 47, that is to say, that the proposed amendment must be referred to the decision of the people by Referendum if demanded. The Oireachtas purported by including in the Constitution (Amendment No. 10) Act, No. 8 of 1928, what was quite incorrectly called a”necessary consequential amendment” (which, of course unintentionally, misleading description was certainly calculated to divert attention from what was being done), to remove from the power of amendment itself a requisite imposed on its exercise by the Constituent Assembly. In my opinion, it was not competent to use the power for the purpose of removing from itself the requisites for its exercise attached to it in the very terms of donation of the power. That provision of the statute, No. 8 of 1928, was bad, in my opinion, as being what is called in the general law of powers “an excessive execution.” It was outside the scope of the power. We have not been referred to, nor have I found, any precedent for such a use of a power. I do not believe that there can be a precedent, because it defies logic and reason. It was, therefore, invalid in my opinion. Nevertheless, inasmuch as a Referendum must be carried out in accordance with regulations made by the Oireachtas, the actual practical effect of the Act was to nullify for the future the provision that amendments should be subject to the provisions of Article 47, by making it impossible in practice to carry out those provisions. The consequence of that state of affairs was that future executions of the power of amendment during the fixed period must inevitably suffer from what is called in the general law of powers “defective execution.” Therein lies the first ground of impeachment of the Constitution (Amendment No. 16) Act, No. 10 of 1929.
I pass now to the other, and, in my opinion, conclusive, ground for impeaching that Act as an invalid and ineffective attempt by the Oireachtas to assume sole and unlimited power of amendment of the Constitution. That Act, the Constitution (Amendment No. 16) Act, No. 10 of 1929, passed by the Oireachtas within the preliminary period of eight years, is entitled “An Act to amend the Constitution by extending the period within which amendments of the Constitution may be made by the Oireachtas without submission thereof to a Referendum of the people.” This is effected by deleting from Article 50 the words “eight years” in each of the places where they occur and inserting in each case in lieu thereof the words “sixteen years.”If this amendment is good there is no reason why the Oireachtas should not have inserted, or should not even yet insert, a very much larger term of years or, indeed, delete the whole of Article 50 from the words “by the Oireachtas” in the second line to the end of the Article.
I am dealing now with the permanent power of amendment of the Constitution given in Article 50 and exercisable at any time after the 6th of December, 1930. Most certainly that power is not given to the Oireachtas to exercise at its own will and pleasure. On the contrary, by a mandatory prohibition in the clearest and most explicit terms, it is forbidden to make any amendment of the Constitution after the specified date without the co-operation of the people, to whom alone the effective decision to make or not to make any proposed amendment is explicitly and very definitely given by the plain words of the power and sternly reserved. The attempt to take from the people this right, this exclusive power and authority, and to confer on the Oireachtas a full and uncontrolled power to amend the Constitution without reference to the people (even though for a period of years, whether it be until 1938 or Tibb’s Eve, a matter of indifference in the circumstances) was described by counsel in, I think, accurate language, as a usurpation, for it was done in my opinion without legal authority.
The only argument advanced in support of this position is that the power to amend the Constitution gives power to amend the power itself. It certainly does not say so. One would expect (if it were so intended) that the power would express that intention by the insertion of a provision to that effect by some such words as:”including amendment of this power of amendment,” but no such intention is expressed and there is nothing from which it can be implied. On the contrary, the definite prohibition in the clause shows that no such amendment was contemplated and seems to me conclusive in its terms against implying such a power. It is not, in my opinion, sound to argue from the fact that because the power of amendment, though standing in a separate self-contained Article or clause, is written upon the same paper writing as the Constitution to which it applies, it must therefore come within its own operation. As well might it be said that one who lends another a pruning knife and leaves it, for the cultivator’s convenience, hanging on the tree for the trimming of which it is lent, therefore authorises him to whom it is lent, by some process of inversion, to turn it upon itsef, and use it to prune and amend itself into some other kind of instrument wherewith to back down the tree.
During the argument, an analogy was suggested with a power sometimes contained in documents settling property on trusts, by which the donee of the power is authorised to revoke the trusts declared by the settlement and to declare other trusts of the property, which power, it was said, gives the donee of the power authority to revoke the power itself and substitute another power with a wholly different scope and without the requisites prescribed for the exercise of the original power. I cannot assent to that proposition as a general doctrine or rule of law. It is in every case a matter of the interpretation of the particular document. If the document, read according to the legal principles of interpretation, shows the intention of the document to be that the power of revocation should authorise revocation of the power itself and the substitution of another power, then the proposition stated follows; if however the interpretation leads to a different conclusion as to intention, then the proposition stated cannot be asserted of that case. This argument, therefore, depends upon a petitio principii. The only real analogy between the two matters is that in each case the question is one of the true interpretation of the document under consideration according to the settled rules of interpretation applicable, as for instance the rule admitting consideration of the relevant surrounding circumstances for the purpose of arriving at the true meaning and intention expressed by the written words which are to be construed. Again, in the case of a power, it is a settled rule that we may not extend its scope beyond what is expressed, or to be implied of necessity from what is expressed, in the instrument containing it and also that the requirements prescribed by the instrument for its due execution must be fulfilled.
A power of amendment is not an essential part of, or provision in, or addition to, a Constitution. The Constituent Assembly which creates and grants a Constitution need not grant any power to amend it, in which case amendment can be effected only by re-convoking the Constituent Assembly for that purpose. If it should have granted a power of amendment and an amendment outside the scope of that power should be proposed, that amendment can only be effected by again convoking the Constituent Assembly to enact it, if the Assembly think fit. A power of amending a Constitution is something outside and collateral to the Constitution itself. It may be conferred on a donee other than an authority owing its existence to the Constitution, as, for instance, on the whole body of the people, on a religious or legal hierarchy, or any other person or body that might be selected for the purpose. Again, such a power may be given by the Constituent Assembly by a separate instrument and not in the instrument containing the Constitution. In the present case, Article 50 might have been enacted by the Constituent Assembly as a separate Act or it might have been enacted as a section of the Constitution Act instead of being inserted in the Schedule containing the Constitution. No doubt the Constituent Assembly could, if it had so intended, have given a power of amendment of the power to amend the Constitution, but in that case it would seem far more likely that it would rather have conferred on the Oireachtas a general open and free power of amendment of the Constitution, unlimited in scope and without limiting and restraining requirements for its exercise, than have done the same thing indirectly by giving a strictly limited power with power to remove the limitations. The Constituent Assembly clearly, to my mind, did not so intend. In my opinion, on the true interpretation of the power before us, upon a consideration of the express prohibition, limitations and requirements of the clause containing it, the absence of any express authority, the donation of the effective act in the exercise of the power to the people as a whole, the relevant surrounding circumstances to which I have already referred, and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amendment itself.
For the reasons which I have set forth, I am of opinion that the Constitution (Amendment No. 16) Act, No. 10 of 1929, is invalid and the amendment of the Constitution contained in it inoperative, null and void. It follows that, in my opinion, no amendment of the Constitution passed by both Houses of the Oireachtas after the 6th of December, 1930, could become law unless and until it had been submitted for decision to a Referendum of the people and had received the approval of the people in the manner prescribed.
It follows that, in my opinion, the Constitution (Amendment No. 17) Act, No. 37 of 1931, has never become law, and that the matters of which the applicants here complain, being acts and proceedings under that invalid statute, are all wholly illegal and indefensible in law.
I have just stated my opinion that the Act, No. 37 of 1931, as a whole enactment, has never become law. I have further to add that I am also of opinion that, for the reasons already given, parts of the amendment (the new”Article 2A”) are incapable of being validly enacted under the Constitution, some as repugnant to the Natural Law and therefore repugnant to the Source of power and authority acknowledged and declared by the Constituent Assembly, others as repugnant to some of the principles postulated by the Constituent Assembly as fundamental.
Therefore, after most anxious and grave consideration of this very serious and critical case, I have arrived at the clear and deliberate opinion that the judgment of the High Court should be reversed and that the cause shown should be disallowed and the conditional order of habeas corpus and prohibition made absolute.

 

FITZGIBBON J. :
It is impossible to overestimate the importance of the questions which we have to decide on this appeal, involving as they do, on the one hand, the validity of several Acts already passed by the oireachtas and the powers possessed by that body over future legislation, and, on the other, rights and privileges of the citizens of the Saorstat which are stated by our own Constitution to be “inviolable,”or to be “guaranteed,” and which are alleged by the appellants to be “fundamental,” “immutable,” and incapable of being taken away by any enactment whatsoever.
The detailed analysis which has just been read by the Chief Justice, upon which I cannot hope to improve, makes it unnecessary for me to recapitulate the character and effect of the legislation which we have to consider. It is no part of my duty to express an opinion upon anything connected with that legislation except its validity under the Constitution, and I refrain from any kind of criticism of its merits.
The appellants contend that “The Constitution (Amendment No. 17) Act, 1931,” No. 37 of the Acts of 1931, which I shall refer to as “Amendment No. 17,” is ultra vires,unconstitutional and void, in that it is contrary to Article 72 of the Constitution, which enacts that “No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the cases of charges for offences against military law triable by Court Martial or other Military Tribunal”; to Article 6 of the Constitution which enacts that “The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law . . .”; and to Article 64 of the Constitution which enacts that “The judicial power of the Irish Free State (Saorstat Eireann) shall be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided . . .”
There is no doubt, and it is indeed admitted by the Attorney-General and his colleagues, that Amendment No. 17 expressly contravenes, in these and many other respects, the Constitution as originally enacted by Dail Eireann , sitting as a Constituent Assembly, but they contend that Amendment No. 17 was a valid amendment of the Constitution by the Oireachtas under the powers conferred on the Oireachtas by Article No. 50, as amended by the Constitution (Amendment No. 16) Act, 1929 (No. 10 of 1929), and the Constitution (Amendment No. 10) Act, 1928 (No. 8 of 1928).
To this contention the appellants reply that the Acts by which the Oireachtas purported to amend Article 50 of the Constitution were themselves invalid and ultra viresof the Oireachtas, and, consequently, that any amendment of the Constitution which rests upon them must also be invalid. The validity of Amendment No. 17 is also attacked upon a substantive ground of far-reaching importance, namely, that it violates certain rights of citizenship which are alleged to be fundamental, and “inviolable” or”immutable,” apparently by any legislative authority whatsoever.
It is obvious that if the Oireachtas had no power to amend Article 50 of the Constitution at all, or in the particular way in which it was amended by the Amendments No. 10 and No. 16, it will be unnecessary to consider any of the other objections to Amendment No. 17, and I shall, therefore, endeavour to deal with that objection first.
Article 50 is in these terms:”Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.” Article 47 made provisions for the suspension, in certain events, of any Bill, for a period of ninety days, and for the submission of any Bill so suspended to the decision of the people by Referendum, if a demand should be made within the ninety days either by a resolution of Seanád Eireann, assented to by three-fifths of its members, or by a petition signed by one-twentieth of the voters on the register of voters. This Article was repealed in 1928 by Amendment No. 10, and as consequential upon that repeal the reference to the provisions of Article 47 in the last clause of Article 50 was deleted.

The first contention of the appellants is that the terms”amendments” and “amendment” in Article 50 do not connote “repeal,” and they have referred us to dictionary interpretations of “amend” and “amendment” in the sense of “to improve,” “to make better,” and so on. There are, however, other equally common and authentic interpretations which do include the sense of “repeal,”and “improvement” may quite properly be effected by addition, alteration, or omission. “Amend, v.t. 1. To correct, to rectify by expunging a mistake; as, to amend a law.””Amend 2. To change or alter, as a law, bill, motion or constitutional provision by the will of a legislative body, or by competent authority; as, to amend the Constitution”(Ogilvie’s “Imperial Dictionary”). “Amendment. The act of changing a fundamental law, as of a political constitution, or any change made in it according to a prescribed mode of procedure; as, to alter the law byamendment; an amendment to the Constitution”: “Standard Dictionary,” Funk and Wagnalls (1894).
In legislation, the words “amendment” and “amend”are constantly employed in the sense of “repeal,” especially when reference is made to the amendment of a lengthy document, such as the Constitution or an Act of Parliament, by a repeal, total as to some provisions of the enactment, but partial when considered in relation to the document as a whole. Taking a volume of the statutes of the Imperial Parliament (Statutes, 8 Ed. VII), and opening it at random, I find, within a few pages, the following instances: Chapter 3: “An Act to amend the Prosecution of Offences Acts, 1879 and 1884.” Sect. 3, sub-sect. 1: “The enactments mentioned in the schedule to this Act are hereby repealed to the extent specified in the third column of that schedule,” and the schedule, of”Enactments repealed,” repeals the whole of one section and parts of two others of the Act of 1879 and part of one section of the Act of 1884. Chapter 15 of the same year,”An Act to consolidate and amend the law relating to the payment of costs in criminal cases” repeals by sect. 10, sub-sect. 1, portions of twenty sections and the whole of each of thirty-two sections, in thirty-six different statutes. Chapter 8 of the same year is perhaps the most apt illustration of all: “An Act to amend section eleven of the Savings Banks Act, 1904.” Sect. 1, sub-sect. 2: “Section eleven of the Savings Banks Act, 1904, shall be and is herebyrepealed.” These instances might, I expect, be multiplied by hundreds in English legislation, and they may be paralleled from the comparatively few enactments of our own Legislature. The usage of Parliamentary draughtsmen appears in the promiscuous interchange of the words”amend” and “repeal” in the text and marginal headings of different sections, but that of the Legislature itself may be seen in the Local Elections Postponement (Amendment) Act, 1924: “An Act to amend the Local Elections Post-ponement Acts, 1922 and 1923.” Sect. 1: ” The Local Elections Postponement (Amendment) Act, 1923 (No. 48 of 1923), shall be and is hereby repealed.”
Article V of the Constitution of the United States enables Congress to propose “Amendments to this Constitution”(the very expression used, with the substitution of “of”for “to,” in Article 50 of our own Constitution), and “amendments”and “amendment” are the only terms employed, yet “Amendment No. 22” is in these words: “The Eighteenth Article of Amendment to the Constitution of the United States is hereby repealed. This Article shall be inoperative unless it has been ratified as an Amendmentto the Constitution by Conventions in the several States as provided in the Constitution within seven years from the date of submission hereof to the States by the Congress.”
A further reason, conclusive in my opinion, against the limitation of the meaning of the word “amendment” to”improvement” is to be found in Article 65, which extends the judicial power of the High Court to the”question of the validity of any law, having regard to the provisions of the Constitution.” If the validity of an amendment of the Constitution were to depend upon the decision of the High Court that it was an “improvement,”the Judges and not the Oireachtas would be made the authority to decide upon the advisability of any particular amendment of the Constitution, and this would involve a direct contravention of the principles by which their respective spheres are assigned to the Legislative, the Executive, and the Judicial organisations in the Irish Free State. The Executive decides that the Constitution would be improved by a particular alteration, the Oireachtas, if it approves of the alteration proposed by the Executive, embodies it in the form of an Act, and the Judiciary decides whether that Act can be and has been validly enacted, and then, and not till then, the Executive enforces it as a law upon the people at large.
For all these reasons I am quite satisfied that the power conferred upon the Oireachtas by Article 50 of the Constitution to make amendments of the Constitution includes a power to amend by alteration or repeal, and that the Oireachtas alone has the right to decide whether any particular alteration, addition, or omission, is desirable, and accordingly that neither Amendment No. 10, nor Amendment No. 16, nor Amendment No. 17, is ultra viresof the Oireachtas merely because it involves a partial repeal of the Constitution.
The next objection is that, even if there be a power to amend or repeal portions of the Constitution, this power does not extend to an amendment or repeal of all or any part of Article 50.
However undesirable it may appear to some that the Oireachtas should have power, by merely passing an amendment, to extend, as they have done, the period within which amendments to the Constitution may be made by way of ordinary legislation, or to legalise, as they have done, amendments of the Constitution without submitting them to a Referendum of the people, as contemplated by the Constitution itself, nevertheless, if this be the true construction of Article 50, the Court is bound to give effect to that construction.
It is conceded that there is no express prohibition against amendment of Article 50 to be found in the Constitution. It is not unusual to find that Constitutions or Constituent Acts impose such restrictions upon the legislative bodies set up by them, and the omission of any such restriction in regard to amendments of Article 50 is at least a negative argument that Dail Eireann as a Constituent Assembly did not intend to impose any such restriction upon the oireachtas. This negative argument is supported by the fact that both the Constituent Act and Article 50 itself do Contain an express restriction upon the powers of the Oireachtas to amend the Constitution, and it is a legitimate inference that, when certain restrictions were expressly imposed, it was not intended that other undefined restrictions should be imposed by implication. The Constitution was enacted by Dail Eireann ,sitting as a Constituent Assembly, unfettered by any oath or test, open to all the elected representatives of the constituencies in that Irish Free State whose establishment was therein and thereby proclaimed, and it was the only act of legislation of that Constituent Assembly.
By the Constituent Act it was decreed and enacted as follows:
“1. The Constitution set forth in the First Schedule hereto annexed shall be the Constitution of the Irish Free State (Saorstat Eireann).
2. The said Constitution” (that is “The Constitution set forth in the First Schedule hereto annexed”) “shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referrred to as ‘the Scheduled Treaty’) which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, he absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State (Saorstat Eireann) shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.
3. This Act may be cited for all purposes as the Constitution of the Irish Free State (Saorstat Eireann)Act, 1922.”
Then follows the
“FIRST SCHEDULE ABOVE REFERRED TO.
CONSTITUTION OF THE IRISH FREE STATE.
(SAORSTAT EIREANN)”
which contains eighty-three separate numbered “Articles,”of which those numbered 73 to 83 inclusive are preceded by a descriptive heading “Transitory Provisions,” which is, for what it may be worth, the sole indication of any intended distinction between any one Article or group of Articles and any other.
If there ever was an assembly which could claim to represent the inhabitants of Saorstat Eireann, it was that Dail Eireann , sitting as a Constituent Assembly, which every elected representative of every constituency within the Saorstat was free to attend, unfettered by any test, and in which there wax no nominated or unrepresentative element, and I am not disposed to quarrel with the statement of the Attorney-General that “the framers of the Constitution framed that instrument in accordance with doctrines of popular sovereignty, and the instrument must be construed as indicating the powers conferred upon the Oireachtas,” or, subject to two modifications, with the propositions stated by Mr. Gavan Duffy as the foundation of his argument, that:”1. The Constituent Assembly proclaimed the Constitution by virtue of its own supreme legislative authority. 2. It transmitted that authority to its successor, the Oireachtas, at least for eight years. 3. It gave the Oireachtas complete amending power for eight years, subject to checks which are merely checks voluntarily imposed by the supreme authority and removable at its will,” and “4. That the Constitution was proclaimed in the name of the people by Dail Eireann as an act of supreme authority, which it alone had the right to do, because it was the mouthpiece of the people, requiring and receiving no Royal assent.”
The points in which it seems to me that Mr. Gavan Duffy has overstated the powers conferred by the Constituent Assembly upon the Oireachtas are his assertions (a) that Dail Eireann “transmitted that authority,” i.e.,”supreme legislative authority” to the Oireachtas, and (b) that “it gave the Oireachtas complete amending power for eight years.” An examination of the Constituent Act and of the Constitution will demonstrate that these statements exaggerate the powers of the Oireachtas. Assuming that the legislative authority of the Constituent Assembly was supreme, it expressly decreed and enacted by the Constituent Act that “the said Constitution,” namely,”the Constitution set forth in the First Schedule” to the Constituent Act, “shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed . . . which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty,it shall, to the extent only of such repugnancy, be absolutely void and inoperative.”
Therefore the supreme legislative authority, speaking as the mouthpiece of the people, expressly denied to the Oireachtas the power of enacting any legislation, by way of amendment of the Constitution or otherwise, which might be “in any respect repugnant to any of the provisions of the Scheduled Treaty,” and it reiterated this prohibition in Article 50, which empowered the Oireachtas to make “amendments of this Constitution within the terms of the Scheduled Treaty.”
It is further to be observed that this power to make amendments is limited to “amendments of this Constitution,”and that the Constituent Assembly did not confer upon the Oireachtas any power to amend the Constituent Act itself.
These express limitations, imposed by the mouthpiece of the people upon the legislative powers of the Oireachtas which it set up, support the view that the Oireachtas was intended to have full power of legislation and amendment outside the prohibited area, and, as there was no prohibition against amendment of Article 50, I am of opinion that Amendment No. 10 in 1928, and Amendment No. 16 in 1929, were within the powers conferred upon the Oireachtas by the Constituent Act.
In this connection I may add that in my opinion an amendment of Article 50 by the deletion of the words”within the terms of the Scheduled Treaty” would be totally ineffective, as effect is given to those words by the Constituent Act itself, which the Oireachtas has no power to amend.
In my opinion the object of Article 50 was to prescribe the method by which legislative sanction was to be given to those amendments of the Constitution which the Oireachtas was empowered to make, and the Oireachtas had full power during eight years, in the absence of any express prohibition, to alter, modify or repeal the method prescribed. The extension of the period of eight years to sixteen was, in the absence of any such express prohibition, an amendment within the powers conferred. I can find no sound justification for the exclusion of Article 50 from the powers of amendment, which appear to me to exist in respect of every other Article of the Constitution except those which embody provisions of the Scheduled Treaty, and in respect even of those Articles so far as the amendments made to them are not repugnant to any provision of the Scheduled Treaty.
It is by no means unusual to find in Constitutions, especially in those of States of recent formation, express restrictions upon the power of the Legislature to amend them imposed in respect of particular articles; and, in the case of the Union of South Africa, sect. 152 of the South Africa Act, 1909, which enacts that “Parliament may by law repeal or alter any of the provisions of this Act” (a declaration which appears to me indistinguishable in substance from “Amendments of this Constitution may be made by the Oireachtas within a period of eight years by way of ordinary legislation”), goes on to declare expressly “that no repeal or alteration of the provisions contained in this section . . . shall be valid” unless the Bill embodying such repeal or alteration shall have been passed in a particular way and by a specified majority.
Our Constituent Assembly could in like manner have excepted Article 50 from the amending powers conferred upon the Oireachtas, but it did not do so, and in my opinion the Court has no jurisdiction to read either into the Constituent Act or into Article 50 a proviso excepting it, and it alone, from those powers.

Mr. Overend has endeavoured to support his argument on this point by analogies from the law of principal and agent, master and servant, trustee and cestui que trust,and principal and attorney. “Who,” said he, “ever heard of a power of attorney by which the attorney could extend the term of his own authority?” Perhaps there has never been such an instrument, but I do not see any legal objection to the insertion in a power of attorney, given for a specified period, of a proviso authorising the attorney, by deed poll registered and executed in compliance with the law or in any specified manner, to extend the period of his authority, provided that such extension was made while the power was still in force, and did not offend against any statutory prohibition. The objections that the Oireachtas had no power to amend Article 50, that Amendment No. 17 was made after the period of eight years originally fixed by Article 50 had expired, and that it was not submitted to a Referendum of the people as provided by Article 50, therefore fail.
The next objection is founded upon the provisions of Amendment No. 17 itself.
It has been admitted, as I have already stated, that many of these provisions are directly opposed to the express enactments contained in many Articles of the Constitution, for instance, in Articles 43, 64, 65, 68, 69, 70 and 72, all of which have been abrogated in whole or in part. The most emphatic of these ale probably Article 43:”The oireachtas shall have no power to declare acts to be infringements of the law which were not so at the date of their commission,” and Article 72:”No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the case of charges for offences against military law triable by Court Martial or other Military Tribunal.”
I see no ground for holding that either of these Articles could not have been amended by the Oireachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g.,the deletion of the word “no” in Article 43, could be made “by way of ordinary legislation” within that period, or within sixteen years, after eight had been altered to sixteen.
The same reasoning which applies to the power of the Oireachtas to amend Article 50 applies with at least equal force to amendments of any other Article. Outside the area covered by the provisions of the Scheduled Treaty, no limit was imposed by the Constituent Assembly upon the power of the Oireachtas to amend the Constitution.
In many other Constitutions there are Articles, laws or provisions, which are specifically described as “Fundamental,”e.g., Sweden, or “Constitutional,” e.g., Austria, Czechoslovakia and France, in respect of which the Constitution expressly restricts the power of amendment, but in the Constitution of the Saorstat there is no such segregation, and the power of amendment which applies to any Article appears to me to be equally applicable to all others, subject, of course, to the restriction in respect of the Scheduled Treaty. In Article 6 it is declared that “the liberty of the person is inviolable,” but that is not a law of universal application, for the Article proceeds: “and no person shall be deprived of his liberty except in accordance with law.” The law may, therefore, make provisions in accordance with which a person may be deprived of his liberty. It is for the Legislature to prescribe those provisions, and for the Courts to enforce them, and even if, under Amendment No. 17, a person has been deprived of his liberty by the mere caprice of an Executive Minister (sect. 24, sub-sect. 2, and Appendix, clause 7), or the unfounded suspicion,”incapable of being rebutted or questioned by cross-examination, rebutting evidence, or otherwise,” “of any member of the Gárda Síochána” (sects. 13 and 29), “or of the Defence Forces of Saorstat Éireann” (sect. 13), such a deprivation would be “in accordance with law,”and the prisoner would have no redress.
The particular method of amendment adopted, by enacting that every Article of the Constitution subsequent to Article 2 shall be subject to the provisions of Amendment 17, and that the provisions of that Amendment shall prevail whenever there is any inconsistency between them and any subsequent Article of the Constitution, is unquestionably very inconvenient, and throws almost insuperable obstacles in the way of any citizen or Judge whose duty it is to ascertain the actual law of the Constitution, but an Act of the Legislature is not ultra vires or invalid because it is difficult to construe, and amendments of the Constitution which might be made clearly and one at a time are not invalidated because they have been enacted en masse in a manner calculated to create the utmost uncertainty and inconvenience. It is our duty to ascertain and declare the law to the best of our ability, and we are not concerned with either the wisdom or the propriety of the acts of the Legislature.
Since the argument I have come across a passage in an opinion of Chief Justice John Marshall, who was for thirty-four years Chief Justice of the Supreme Court of the United States during a period when that Court was engaged in settling questions of fundamental importance which arose upon the interpretation of the recently adopted Constitution, which seems to me to have a bearing upon more than one aspect of the present case, Providence Bankv. Billings et al. (1): “The proposition is that a power which is in itself capable of being exerted to the total destruction of the grant is inconsistent with the grant; and is therefore impliedly relinquished by the grantor, though the language of the instrument contains no allusion to the subject. If this be an abstract truth, it may, be supposed universal. But it is not universal, and therefore its truth cannot be admitted, in these broad terms, in any case. We must look for the exemption in the language of the instrument, and if we do not find it there, it would be going very far to insert it by construction. The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. . . . This vital power may be abused, but the Constitution of the United States was not intended to furnish the correction for every abuse of power which may be committed by the State Governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation,as well as against unwise legislation generally.”
In my opinion the repeals, alterations, and modifications of the Constitution enacted by Amendment No. 17, so far as they have been discussed before us upon this appeal, do not exceed the powers of amendment conferred upon the Oireachtas by Article 50, as amended in 1928 and 1929; and, as it has not been suggested that they are in any respect repugnant to the Scheduled Treaty, I hold that they are valid amendments of the Constitution.
There is, however, a broader ground upon which Mr. Costello and Mr. overend have endeavoured to found an argument. They assert that there are certain rights, inherent in every individual, which are so sacred that no Legislature has authority to deprive him of them. It is useless to speculate upon the origin of a doctrine which may be found in the writings of Rousseau, Thomas Paine, William Godwin, and other philosophical writers, but we have not to decide between their theories as those of Delolme and Burke, not to mention Bentham and Locke, upon what Leslie Stephen describes as “a problem which has not yet been solved, nor are even the appropriate methods definitively agreed upon,” as we are concerned, not with the principles which might or ought to have been adopted by the framers of our Constitution, but with the powers which have actually been entrusted by it to the Legislature and Executive which it set up.
“The Declaration of the Rights of Man and of Citizens”by the National Assembly of France on October 5th, 1789, that “liberty, property, security, and resistance of oppression are the natural and imprescriptible rights of man,” cannot be invoked to overrule the provisions of a statute enacted in accordance with the provisions of a written Constitution.
When a written Constitution declares that “the liberty of the person is inviolable,” but goes on to provide that”no person shall be deprived of his liberty except in accordance with law,” then, if a law is passed that a citizen may be imprisoned indefinitely upon a lettre de cachetsigned by a Minister or, as we have seen, even by a Minister’s clerk: The State (Quinlan and Others) v. Kavanagh and Others , post p. 249, the citizen may be deprived of his”inviolable” liberty, but, as the deprivation will have been “in accordance with law,” he will be as devoid of redress as he would have been under the regime of a French or Neapolitan Bourbon.
Nations and Constituent Assemblies are not agreed as to the rights and privileges which have been variously described in different Constitutions as “inalienable,” “inviolable,””fundamental,” “constitutional,” or “guaranteed.”For instance, among the “repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States,” which the signatories of the American Declaration of Independence published as “Facts submitted to a candid world,” in justification of their rebellion, were the following acts of George III (Declaration of Independence, July 4th, 1776):”He has dissolved Representative Houses for opposing with manly firmness his invasions on the rights of the people,” “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” “He has affected to render the Military independent of and superior to the Civil Power.” “He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his Assent to their Acts of pretended Legislation: For quartering large bodies of armed troops among us; For protecting them by a mock Trial from punishment for any Murders which they should commit on the inhabitants of these States; For cutting off our trade with all parts of the World; For depriving us in many cases of the benefits of Trial by Jury; For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the forms of our Governments . . . A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.” These rights, of which “the People of these Colonies” had been deprived, were claimed by them, not as inalienable rights of all mankind, but by virtue of their former status as British Colonists, but when the American Colonists set to work to frame a Democratic and Republican Constitution for themselves they realised the danger of merely substituting the will of a majority for that of a single individual, probably because many of the framers of the Constitution of the United States had suffered from the tyranny of a political or religious majority. The States of Connecticut, Rhode Island, and New Hampshire were founded by refugees driven out from Massachusetts; that of Delaware by refugees from New York; and that of Pennsylvania by Quakers in search of freedom; and they were resolved to impose constitutional restraints upon the power of the majority in the new Legislature of the Confederation. In their Constitution, accordingly, they embodied the English, or Anglo-Saxon, principles of trial by jury, an independent judiciary, habeas corpus, and other safeguards of liberty derived from Magna Charta, the English Bill of Rights and the Act of Settlement, and they imposed severe restrictions upon the power of the Legislature, and placed almost insuperable obstacles in the path of amendments to the Constitution. They sought to bind within the limitations of the Constitution, as framed by them, not only the Executive but the Legislature itself.”An elective Despotism,” said Jefferson, “was not the government for which we fought.” “A group of tyrants would be less manageable than one.” “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” To the same effect is the opinion of the Supreme Court of the United States, delivered a century later in a case in which the Legislature of a State had attempted to appropriate private property under the guise of the imposition of a tax: Loan Association v. Topeka (1):”It must be conceded that there are private rights in every free government beyond the control of the State. A Government which recognised no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our Governments, State and National, is opposed to the deposit of unlimited poweranywhere.”
But that is only the Anglo-Saxon, or American, conception of constitutional liberty. Another view was taken by Rousseau, who declared that:”Each of us puts his person and all his power in common under the supreme direction of the General Will,” that is, of the majority, and this appears to have been adopted by the French Constitution makers. I call find no justification for the inference which the counsel for the appellants ask us to draw from the provisions of the American Declaration of Independence and the Constitution founded thereon, or from the fact that some of these provisions have been embodied in other Constitutions, including our own, that the rights thereby secured are universal and inalienable rights of all citizens in all countries or even in the Saorstát, which, we have been assured, was, or is, or ought to be, Gaelic and Catholic, attributes to either of which few other States can assert a title, while there is no other which can even suggest a claim to both. There is no ground for surprise, therefore, that this State should, as the Chief Justice has said, “point new ways” in its “pioneer Constitution draftsmanship,” or that it should prefer to secure liberty and justice to its citizens by the simple processes of Amendment No. 17 in preference to the complicated British and American machinery of an independent judiciary, trial by jury, and habeas corpus.
I cannot presume, either, that rights and privileges which the inhabitants of England have always enjoyed, either by virtue of their common law (which was only introduced into Ireland bit by bit between the last years of the twelfth century and the beginning of the seventeenth), or under the provisions of special statutes, are also indigenous to the citizens of this Gaelic and Catholic State, in the sense in which the American Colonists claimed them as their birthright by virtue of their status as British subjectsa status which I understand to be repudiated by our legislatorsor that our national conceptions of liberty and justice must necessarily coincide with those of the citizens of any other State.
Two extracts from Fathers of American Independence will suffice to show, if there be any doubt, the source from which the principles embodied in their Constitution were derived. “What is the subject of our controversy with the mother country? It is this: Whether we shall preserve that security in our lives and properties which the law of nature, the genius of the British Constitution, and our charters afford us; or whether we shall resign them into the hands of the British House of Commons, which is no more privileged to dispose of them than the Great Mogul?”(Works of Alexander Hamilton, vol. 2, p. 4.) “No constitution of government has appeared in the world so admirably adapted to these great purposes” (liberty and knowledge, civil and religious) “as that of Great Britain. Every British subject in America is, of common right, entitled to all the essential privileges of Britons.” (James Otis. Hutchinson’s History of Massachusetts , vol. 3, pp. 101-2.)
Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inalienable, and incapable of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framers of our Constitution may have intended “to bind man down from mischief by the chains of the Constitution,” but if they did, they defeated their object by handing him the key of the padlock in Article 50.
Other Constitutions, e.g., that of the Kingdom of Serbs, Croats and Slovenes, and those of the Republics of Austria, Poland, Esthonia and Czechoslovakia, have esteemed all or some of these rights and privileges so highly as to declare them to be “fundamental,” or “constitutional,”or “guaranteed,” and the Republic of Mexico has provided in its Constitution a unique and very remarkable judicial safeguard for affording immediate redress by the decree of an Independent Federal Tribunal when any of the fundamental rights of man secured by its Constitution have been infringed by any authority whatsoever, and for excusing the obedience of a law or decree which is ultra vires of the enacting Legislature or Judiciary. The “personal guarantees”so protected include ten relating to criminal trials; no arrest except upon a previous charge founded upon evidence, or in cases flagranti delicto; no search of private houses except on a warrant issued by a Judge specifying the place to be searched, the persons to be arrested and the objects sought; and an express proviso that “No one shall be tried according to private laws or by special tribunals. Military Tribunals shall in no case and for no reason extend their jurisdiction over persons not belonging to the army.”
But the fact that the Constitutions of other countries prohibit such invasions of the rights of liberty and property, and such extraordinary innovations in the methods of administering justice in criminal cases as have been introduced into our Constitution by Amendment No. 17, affords no ground for condemning as unconstitutional inthis country, or as contrary to any inalienable rights of an Irish citizen, an enactment which appears to have received the almost unanimous support of the Oireachtas, for we have been told that those of our legislators by whom it was opposed most vehemently as unconstitutional and oppressive, when it was first introduced, have since completely changed their opinions, and now accord it their unqualified approval. It is true that even a unanimous vote of the Legislature does not decide the validity of a law, but it is some evidence that none of those whose duty it is to make the laws see anything in it which they regard as exceptionally iniquitous, or as derogating from the standard of civilisation which they deem adequate for Saorstat Eireann. Indeed, it is possible that our Constituent Assembly may have followed too slavishly the constitutional models of other nationalities, and that, just as the constitutional safeguards of Freedom of Speech, Trial by Jury, Security of Person and Property, with others, were only introduced into the Constitution of the United States by way of amendment a year after the original Constitution had been adopted, so the amendments of our Constitution which have been enacted during recent years, whereby these and similar safeguards have been minimised or abrogated, more truly represent our national ideals. If this be so, we find the Briton’s conceptions of liberty and justice set forth in his Magna Charta and his Bill of Rights; those of the American in his Declaration of Independence and his Constitution; while those of the Gael are enshrined in Amendment No. 17 (which is to prevail, in case of inconsistency, over everything in the Constitution except Articles 1 and 2), and subsequent amendments. However this may be, I can find no justification for a declaration that there was some “spirit” embodied in our original Constitution which is so sacrosanct and immutable that nothing antagonistic to it may be enacted by the Oireachtas. This Court has no jurisdiction to express an opinion upon any questions other than the constitutionality of the amendments before us, and their correct interpretation, once the Legislature has thought fit to enact them. Perhaps I may be permitted again to refer to a couple of American decisions upon similar questions.”Courts cannot nullify an Act of the State Legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the Constitution where neither the terms nor the implications of the instrument disclose any such restriction”: Walker v.Cincinnati (1). “Such a power is denied to the Courts, because to concede it would be to make the Courts sovereign over both the Constitution and the people, and convert the government into a judicial despotism”: Goldenv. Prince (2).
The last contention of Mr. Overend, that every person who accepted citizenship of the Irish Free State when it was first established, or at any subsequent date, did so upon the faith of an undertaking, express or implied, on the part of the State, embodied in the Constitution, that no alteration of the Constitution to his detriment would thereafter be made, is so manifestly untenable upon any ground of law or principle, that I mention it only to show that it has not been overlooked.
Equally unfounded is the suggestion that the power of amendment introduced in Article 50 should be treated by analogy to a proviso in small print at the end of a fraudulent prospectus, or to a condition on the back of a railway ticket handed to an illiterate traveller. Such arguments show the desperate straits to which the appellants have been reduced. Article 50 seems to me to occupy its appropriate place, at the end of the group of clauses which deal with the creation, composition, and powers of the Legislature, and every person who became a citizen must be presumed to have been aware of the existence of Article 50, and to have accepted citizenship upon the terms therein set forth.
Fortunately it can never again be suggested that the Saorstat has obtained citizens by false pretences, now that the Oireachtas has promulgated urbi et orbi, to the Czechoslovak and the Mexican, to our kinsmen in the United States of America and throughout the British Commonwealth of Nations, and, above all, to our fellow-countrymen in Northern Ireland, whose co-operation we profess to desire, as well as to all those who seek, or acquire, or have thrust upon them, rights under our new Irish Nationality and Citizenship Act, Amendment No. 17 as an integral part of our Constitution, setting forth in the clearest language, in the forefront of that document, the conditions under which liberty is enjoyed and justice may be administered in “this other Eden demi-Paradise, this precious stone, set in the silver sea, this blessed plot, this earth, this realm, this” Saor Stát.

MURNAGHAN J. :
The appellants before the Court on this appeal contend that they are held in unlawful custody, and state that they are about to be brought to trial before a tribunal which has no legal authority to try them.
On these grounds they seek to obtain orders of habeascorpus and of prohibition.
There is no dispute about the facts, and the legal issues in controversy have, by the arguments, been limited to two matters, which, however, raise considerations of very grave moment.
The appellants are held in custody under the provisions of an Act of the Oireachtas styled “the Constitution (Amendment No. 17) Act” (No. 37 of 1931), and it is not disputed in this case that, if this Act has been validly passed into law, the detention of the appellants is in accordance with law.
The appellants take their stand on the position that the Oireachtas, when it passed this Act in 1931, exceeded the powers given to it by the Constitution, and that it had no power to make the amendment of the Constitution which it purported by that Act to make. This Court has neither the power nor the responsibility of saying whether the circumstances of the time justified the Oireachtas in adopting the provisions of the Act in question, but it is the function and the duty of the Court to determine whether the Oireachtas in passing this Act had power under the Constitution to pass the Act which it did pass.
The extreme rigour of the Act in question is such that its provisions pass far beyond anything having the semblance of legal procedure, and the judicial mind is staggered at the very complete departure from legal methods in use in these Courts. The Oireachtas, which passed this Act in November, 1931, recognised that the provisions of the Act contravened many of the Articles of the Constitution, and the Act itself is professedly declared to be an amendment of the Constitution. Sect. 2 of the Schedule to this Act, setting up the Special Powers Tribunal, enacts as follows:”Article 3 and every subsequent Article of this Constitution shall be read and construed subject to the provisions of this Article, and in the case of any inconsistency between this Article and the said Article 3 or any subsequent Article, this Article shall prevail.” As a matter merely of drafting I do not consider such a method of amending the Constitution an elegant one; and it is highly inconvenient to be obliged to determine what the Constitution really is from the study of conflicting documents. The drafting of the Act in this form was evidently motived by a desire to secure at all cost that none of the provisions should be held to be contrary to the Constitution, but the meaning and intention is quite clear. The Article set forth in the Schedule to the Act of 1931 is declared to be an Article of the Constitution, and Article 3 and all subsequent Articles of the Constitution are declared to be amended in so far as any provisions of the Constitution are inconsistent with those of the said Article set out in the Schedule to the Act of 1931.
When the Constitution of Saorstat Eireann was adopted in 1922 it was a question of great importance to what extent and in what manner this Constitution might be altered. I think that it is not necessary here to recapitulate the steps that led to the adoption of the Constitution. It is sufficient to quote Article 83 of the Constitution itself, which reads:
“The passing and adoption of this Constitution by the Constituent Assembly and the British Parliament shall be announced as soon as may be, and not later than the sixth day of December, Nineteen hundred and twenty-two, by Proclamation of His Majesty, and this Constitution shall come into operation on the issue of such Proclamation.”
It must, therefore, have been foreseen that difficulty in the future would be avoided by a clear statement as to how and to what extent the Constitution might be amended. At all events we find in the Constitution a special Article50which deals with the power of amendment, and which finds its place naturally amongst the powers of the Oireachtas. Article 50 is as follows:

“Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.”
This Article may be summarised as providing that, during the eight years after the coming into operation of the Constitution, amendments of the Constitution under the Article might be made by way of ordinary legislation which were valid without a Referendum unless specially demanded by the persons, and in the manner, specified in Article 47, but that amendments made after that period had in every case to be approved by a Referendum of the people with the prescribed majority.
As I have already stated the amendment of the Constitution with which we are concerned in this case was not made within the period of eight years from 6th December, 1922, the date of coming into operation of the Constitution, but was made in November, 1931, under an amendment of the Constitution made in July, 1929, inside the eight year period, which, if valid, amended Article 50 by substituting a period of sixteen years for the period of eight years mentioned in the original Article 50. Owing to this amendment so made the Act of 1931 (Amendment No. 17) was not submitted to a Referendum.
The appellants on this appeal have put forward two lines of argument against the validity of the Act setting up the Special Powers Tribunal. In one line of argument it is said that the alterations made in the Constitution by the Act of 1931 are outside the scope of the amendments authorised by Article 50 of the Constitution. In this argument it is sought to be established that many Articles of the Constitution are so fundamental as to be incapable of alteration, and that the true meaning of the word “amendment” in Article 50 of the Constitution does not authorise any change in these fundamental Articles or doctrines. It has to be admitted that the Constitution itself does not segregate as fundamental specified Articles or doctrines, nor does it in terms make any distinction between the different classes of Articles. At most, certain Articles such as Article 8, by which freedom of conscience is guaranteed, and Article 9, by which the right of public meeting is guaranteed subject to certain safeguards, may be said to seek to secure what may, in the sphere of ethics and politics, be regarded as fundamental rights. These Articles are not, however, those which have been said to have been weakened; and, in reference to other Articles which are alleged to be fundamental, the only criteria which the appellants can suggest is that the Court should undertake the responsibility of deciding in any set of circumstances which Articles should be held to be fundamental. Before the Court should seek to assume such a power it is, in my opinion, necessary that the Court should find a very stable foundation for such an exercise of jurisdiction. If we regard closely the substance of the matter it is plain that, after the eight years period, proposed amendments of the Constitution were to be submitted to the people for approval, and were to become law only if they had been accepted by the requisite majority of the voters entitled to vote. This direct consultation of the people’s will does indicate that all matters, however fundamental, might be the subject of amendment. On the other hand the view contended for by the appellants must go to this extreme point, viz., that certain Articles or doctrines of the Constitution are utterly incapable of alteration at any time, even if demanded by an absolute majority of the voters.
Much has been said in the argument concerning the nature and special sanctity of the Constituent Act. A Constituent Act is an Act which sets up a new Constitution, and, as such, must be a document of the first importance. But there is no necessary reason why the members of the Constituent Assembly should seek to set bounds to the march of the nation in the future. As a matter of construction of Article 50 I do not see any ground for limiting the meaning of the word “amendment” as used in that Article in the manner suggested by the appellants. They seek to construe this word as being limited to alteration or improvement of details as distinct from principles. This construction would draw a line which must necessarily be a very indefinite one and would lead to difficulties even greater than is caused in some Continental systems by a distinction between partial and general revision of the Constitution. But in truth lawyers are familiar with the use of the word “amendment” as applied to the Legislature. As so used, amendment frequently includes the repeal of sections or groups of sections of an Act as well as modification of the underlying principle of the Act itself. Although the complete abolition of the Constitution without any substituted provision might not properly be called in law an “amendment,” in my opinion the word “amendment” is wide enough to allow of the repeal of a number of Articles, however important in substance they may be. The only limitation specified in the text of Article 50 itself is that the amendment of the Constitution must be within the terms of the Scheduled Treaty. This limitation is emphasized by the Constituent Act itself, which provides that if any amendment of the Constitution is in any respect repugnant to any of the provisions of the Scheduled Treaty it shall to the extent only of such repugnancy be absolutely void and inoperative. This conception of the power of amendment as entertained by the framers of the Constitution does not at all accord with the limitation now attempted to be put forward. As a matter of construction I am satisfied that the power of amendment extends to any limits other than those specified in the Article and in the Constituent Act, and it is not argued that the Act of 1931 is in any way inconsistent with the Scheduled Treaty.
I think it right to add that the view which I have expressed is that stated by O’Connor M.R. in passages relied upon taken from the unreported cases of R. (Cooney)v. Clinton and R. (O’Connell) v. Military Governor of Hare Park Camp (1). The passages in these cases, read by the Attorney-General, state the opinion of the late Master of the Rolls that any part of the Constitution might be altered so long as the alteration should not be contrary to the terms of the Scheduled Treaty. I can find nothing in Article 50, and I know of no rule of construction outside this Article, which would justify this Court in annulling any amendment within the terms of the Scheduled Treaty passed by the Oireachtas and approved of by a Referendum supported by an absolute majority of the voters on the register.
Article V of the Constitution of the United States allows amendments to that Constitution to be made and although the same word “amendment” is used in that Article it has not been shown to have received the limited meaning which the appellants contend for.

During the argument a number of cases decided in the Courts in England have been referred to. I have considered these cases and while some of them are valuable as illustrations of general principles of construction yet they do not require examination as authorities upon the questions involved in this appeal. I shall refer to the case of Attorney-General for New South Wales v. Trethowan (1)only for the purpose of remarking that the decision in that case turned upon the provisions of the Colonial Laws Validity Act, which have no application to the facts of the case before us.
The Constitution has entrusted to the Court the power and duty of seeing that the Legislature shall not exceed its legislative power by passing enactments which are contrary to the Constitution. But the Constitution has also given a power to the Legislature, subject in some cases to a Referendum of the people, to amend the Constitution itself. In cases where the Legislature professes to amend the Constitution itself, the only function of the Court is to see that the proposed amendment is within the scope of the power granted by the Constitution and that the requisite forms insisted upon by the Constitution shall have been duly observed. It has not been disputed that within the period of eight years mentioned the Oireachtas could have made by way of ordinary legislation any amendment which might after the period of eight years be made by the Oireachtas with the approval of the people consulted directly in a Referendum. For the reasons which I have stated in detail I am of opinion that the Amendment No. 17, if made by the Oireachtas within the specified period of eight years, would have been within the power of amendment contained in Article 50 of the Constitution.
The second question which has been the subject of argument is whether the amendment made in 1929, substituting a period of sixteen years for that of eight years mentioned in Article 50 during which amendments of the Constitution might be made by way of ordinary legislation, is in itself a valid amendment. If the Oireachtas had allowed the period of eight years to expire without seeking to alter Article 50 in this respect, amendments of the Constitution would in every case require approval by a Referendum. In the Electoral Act of 1923 provision was made for the holding of a Referendum, and the machinery was available, but the oireachtas appears to have been disinclined to allow this method of consulting the people to be put into practical operation. On 12th July, 1928, the Constitution (Amendment No. 10) Act was passed, deleting from the Constitution Article 47, which provided for a Referendum on certain conditions in respect of ordinary legislation,and Article 50 was amended by the deletion of the words “and as such shall be subject to the provisions of Article 47 hereof.” The result of the Constitution (Amendment No. 10) Act was that ordinary legislation was no longer subject to the conditional Referendum nor was any constitutional amendment, made within the eight years period, subject to the conditional Referendum either. As matters thus stood there would, however, have been a compulsory Referendum in the case of every amendment of the Constitution made after the expiration of the eight years period. But, by the Constitution (Amendment No. 16) Act passed on 14th May, 1929, the Oireachtas, by way of ordinary legislation within the eight year period, made an amendment of Article 50 as already mentioned, and extended the power of amendment by way of ordinary legislation to a period of sixteen years.
Whether this Constitution (Amendment No. 16) Act was validly made is the second question which has been argued, and the question is purely one of juristic construction of Article 50 of the Constitution. Where the result aimed at by the framers of Article 50 appears to be that constitutional amendments made after the eight years period should be confirmed by a Referendum of the people, it may seem a strange result that the power to make amendments by way of ordinary legislation during the specified period should be capable of being utilised to extend the period itself during which such amendments might be made by way of ordinary legislation. It has been forcibly argued that a construction of Article 50 which enables this to be done would put it in the power of the Legislature to extend its own power of constitutional amendment from time to time and thus do away in practice with the control sought to be achieved through a Referendum. But the meaning of Article 50 must be ascertained from the actual words used in the Article. The words are “Amendments of this Constitution within the terms of the Scheduled Treaty may be made . . .” which identical subject-matter is again referred to as “such amendments.” By the Constituent Act the Constitution is defined to be the Constitution set forth in the First Schedule thereto. This First Schedule contains 83 Articles, of which Article 50 is one, and accordingly the words of Article 50 in their natural and ordinary meaning must allow of the amendment of each and every Article of the Constitution provided that the amendment is within the terms of the Scheduled Treaty. It must, therefore, be asked upon what principle of construction the power of amendment so given should not extend to Article 50 itself? It has been sought on behalf of the appellants to limit the power of the Oireachtas during the eight year period by introducing analogies derived from the law of principal and agent. Reference is made to the rule of law by which an agent cannot himself extend the scope of the authority given to him by the principal and it is said that the Oireachtas is in the position of an agent towards the people. I agree that if the analogy could be substantiated it would follow, on similar lines of reasoning, that a limited agency in the Oireachtas to amend the Constitution could not be resorted to in order to extend the limits of the agency. But in legal language the terms of principal and agent have definite legal meanings, and it is not in the sense of this meaning that we can speak of the Oireachtas as the agent of the people. Perhaps a more close analogy might be suggested in the donee of a power of revocation and new appointment. In such a case, if the power is wide enough, the entire settlement can be revoked and new provisions can be substituted even to the extent of a new mode of revocation. But in truth neither of these analogies can safely be applied to the matter before the Court and the case must depend upon the construction of Article 50 of the Constitution.
The consequences of a decision in favour of the extension of the period during which amendments of the Constitution may be made by way of ordinary legislation alone are grave and far reaching hut it is the duty of the Court upon a point of construction to arrive at a conclusion irrespective of the consequences of the decision. I am ready to conjecture that when Article 50 was framed it was not considered probable that any such use of the power would be made as has been made, but the terms in which Article 50 is framed does authorise the amendment made and there is not in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly based. It must also be remembered that in this country the Referendum was an untried political experiment and it cannot be assumed that the Referendum should be incapable of alteration or removal. I feel bound by the words of Article 50, which allows amendment of the Constitution as a whole, of which Article 50 is declared to be a part.
I am, therefore, of opinion that power was given to amend Article 50 and that consequently the period during which the Constitution may be amended by way of ordinary legislation has been validly extended to a period of sixteen years from the date of coming into operation of the Constitution.
In my opinion the appeal should be dismissed.
I have already made some observations upon the manner in which the Constitution has been amended by the Constitution (Amendment No. 17) Act, 1931. The power of amendment is not a power of temporary suspension and as the Act of 1931 has been put into operation the Constitution must, I should imagine, be considered as amended so as not to be inconsistent with the provisions of the Act of 1931. To discover what the provisions of the amended Constitution now are is a matter of no small difficulty; and if the Act of 1931 should in the future cease to remain in force I fear that grave doubts will arise as to what the Constitution really is. It is, therefore, highly desirable that amendments of the Constitution should be made either by way of repeal of specific Articles or by the substitution of amended Articles instead of those which it is desired to alter.

 

 

The State (Burke) v. Lennon and the Attorney-General.

[1940] IR 136

 

Gavan Duffy J. 141

Seamus Burke, a spirit grocer and provision merchant, of Ballinrobe, Co. Mayo, who is an Irish citizen, applies for an order of habeas corpus, on the ground that he is being unlawfully detained by the Governor of Arbour Hill Military Detention Barracks, Dublin, being interned in the Barracks without trial.
The Governor justifies on a warrant emanating from the Minister for Justice under s. 55 (authorising internment under certain circumstances) of the Offences Against the State Act, 1939 (No. 13 of 1939), and the Regulations made under that Act.
I shall speak throughout of Seamus Burke as the applicant; he has made an affidavit and is the applicant in effect, but in form the applicant is his brother; no objection has been made on this score, but I am not to be taken as construing Art. 40 of the Constitution to sanction an application by a third party where the person detained can make the application himself.

Sects. 55 and 54 of the Act, and s. 59, to which I shall refer, appear in Part VI of the Act, headed “Powers of Internment,” and sub-s. 2 of s. 54 enacts that that Part of the Act shall come into force forthwith,
“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.”
The proclamation is thus a condition precedent. The Act was passed on the 14th of June, 1939. and a proclamation in the terms of sub-s. 2 of s. 54 was made and gazetted by the Government on the 22nd of August, 1939. On the same day the Government, under s. 35 of the same Act, made and gazetted a proclamation declaring that they were
“satisfied that the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that Part V”
of the Act should come into force; Part V is headed”Special Criminal Courts” and such Courts are the subject of a special provision in Art. 38 of the Constitution. It is noteworthy that a determination that the ordinary Courts are inadequate to their functions is necessary to bring Part V into force, whereas that condition does not apply to bringing into force Part VI. Any Judge of the High Court must regret interfering with executive action at this time, when in fact the Government, with its special means of knowledge, has officially declared that the ordinary Courts are inadequate to secure the effective administration of justice, but any such consideration is subsidiary to the right of the citizen under the Constitution to an order of habeas corpus, if that right be established.
The applicant has been interned without trial since the 16th of September, 1939, in pursuance of s. 55 of the Act, under a warrant by the Minister of that date, on the ground that the Minister is satisfied that he is engaged in activities calculated to prejudice the preservation of the security of the State. He now challenges the right of the Oireachtas to make a law conferring the power of internment on a Minister. I have thus to determine a matter of high constitutional importance. I am not concerned with policy, for problems of statesmanship belong essentially to the legislative and executive domains, and not to the judicial; I have to decide a question of law.

The Attorney-General is represented on this application in pursuance of the Rules of Court, and he sustains the validity under the Constitution of Part VI of the Offences Against the State Act, 1939. I must look into the material provisions of the Constitution in order to see exactly what place personal liberty finds there, and to see whether the impugned enactment fits into the constitutional framework, and I must do so with special care, since this is the first case in which a claim of this kind has arisen for adjudication under the Constitution.
I wish to place on record the fact that there has been no suggestion on behalf of the State that the Offences Against the State Act, 1939, may be treated as having amended the Constitution by implication. If I may say so, I think counsel for the State were quite right in making no case of that kind under the present Constitution.
The Constitution was enacted by the People of Ireland on the 1st of July, 1937, and came into force on the 29th of December, 1937.
With the greatest solemnity, the People, invoking the Most Holy Trinity, gave to themselves “Dochum Glóire Dé agus onóra na hEireann”: a noble Christian polity; they enshrined the guiding principles in language simple and direct; and they entrusted to the Judiciary the tremendous responsibility of maintaining their constitutional monument against legislative attack.
Art. 9 deals with citizenship and declares fidelity to the nation and loyalty to the State to be fundamental political duties of all citizens. For the rest, the salient features of the Constitution, for the purposes of the present case, are (1), its declaration of the fundamental right of the citizen to personal liberty; (2), its measures for the protection of constitutional rights; (3), its outlook on the criminal law; and (4), its provisions for times of emergency. There is no express authority for internment without trial.
As to personal liberty, it is one of the cardinal principles of the Constitution, proclaimed in the Preamble itself, that the dignity and freedom of the individual may be assured; Arts. 40 to 44 of the Constitution set out the”Fundamental Rights,” comprising personal rights, the imprescriptible rights of the family, the inalienable right and duty of parents to educate their children, the natural right to private property, and freedom of conscience and religion. The fundamental personal rights, which are the personal rights of free men, include (Art. 40) the right to the equal protection of the law, the inviolability of the home, the rights of free speech, peaceable assembly and
association, and, in particular, the liberty of the person, expressed in the words: “No citizen shall be deprived of his personal liberty save in accordance with law”; this right is secured by a strongly worded habeas corpus clause, to protect the citizen against unlawful imprisonment, except as against the Defence Forces during the existence of a state of war or armed rebellion.
These rights are, of course, qualified, because under modern conditions the rights of the citizen must be subjected to legal limitations, and absolute rights are unknown, or virtually unknown, in a democratic State. But in a significant clause of Art. 40 the State guarantees in its laws to respect the personal rights of the citizen and, as far as practicable, to defend and vindicate them; in particular, the State is charged by its laws to protect, as best it may, from unjust attack the person of the citizen as well as his life, good name and rights of property.
The right to personal liberty means much more than mere freedom from incarceration and carries with it necessarily the right of the citizen to enjoy the other fundamental rights, the right to live his life, subject, of course, to the law; and, if a man is confined against his will, he has lost his personal liberty, whether the name given to the restraint be penal servitude, imprisonment, detention or internment; see Dunne v. Clinton (1). Habeas corpus is the direct security for the right to personal liberty, but a constitutional separation of powers and constitutional directions for the administration of justice as an independent function of the State were necessary to make the remedy secure.
The architects of the Constitution were alive to the need for protecting the rights declared in the Constitution; accordingly, in Art. 5, they characterised the State as a democratic State, in which (Art. 6) all powers derive under God from the People and are to be exercised only by or on the authority of the legislative, executive and judicial organs established by the Constitution; effect is given to the division of powers by Arts. 15, 28 and 34 and 35. Laws in any respect repugnant to the Constitution are expressly forbidden and invalidated by Art. 15 and, as a special safeguard, exclusive original jurisdiction in cases raising the constitutionality of any law is assigned to the High Court, together with a veto, a matter of first importance, upon any statutory encroachment on the appellate jurisdiction of the Supreme Court in any such case (Art. 34); the Supreme Court is thus made the ultimate constitutional guardian of constitutional right.

Under Arts. 34 and 35 an independent judiciary is constituted, charged with the administration of justice in public Courts established by law. The High Court is invested with full original jurisdiction to determine all matters and questions, whether of law or fact, civil or criminal; the inference is that there are two categories, and two categories only, of matters and questions of law or fact: (a) the civil and (b) the criminal. The Constitution recognises in Arts. 29 and 13, as exceptions from the general jurisdiction of the High Court, international agreements (unless the Oireachtas otherwise determines) and the exercise of his powers and functions by the President.
Arts. 30 and 38 enjoin that all crimes and offences are to be prosecuted in the name of the People, that no person shall be tried on any criminal charge save in due course of law, minor offences only being tried in Courts of summary jurisdiction, and that no person shall be tried on any criminal charge without a jury, except under the summary jurisdiction for minor offences, or military law for military offenders, or where military tribunals are dealing with a state of war or armed rebellion, or under the jurisdiction of special Courts, established by law when the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. Manifestly these penal jurisdictions are all contemplated as importing lawful restrictions under the Constitution upon personal liberty, and Art. 40 must be read in the light of Art. 38.
The need to provide for times of emergency was clearly foreseen and the emergencies in contemplation were defined. Besides making the declartion of war subject to the assent of Dail Eireann , the Constitution, where express amendment of the Constitution is not involved, facilitates the enactment of a Bill declared by the Government to be urgent and immediately necessary to preserve public peace and security or by reason of a public emergency (Art. 24), sanctions the establishment of special Courts, as I have said, where the ordinary Courts are inadequate (Art. 38), and declares that a law made expressly to secure the public safety and the preservation of the State in time of war or armed rebellion is not to be invalidated by any provision of the Constitution (Art. 28); see now as to “time of war” the First Amendment (1939).
There is no provision enabling the Oireachtas or the Government to disregard the Constitution in any emergency short of war or armed rebellion. And the Constitution contains no express provision for any law endowing the Executive with powers of internment without trial.
I am now in a position to ask myself whether s. 55 of the Offences Against the State Act, 1939, is a valid law under the Constitution. The section purports to authorise a Minister of State (after the necessary proclamation has been made and published under s. 54), to order the arrest and indefinite detention of any person enaged in activities calculated to prejudice the preservation of the peace, order or security of the State, whenever the Minister is satisfied, a condition precedent, that the person is so engaged; the Minister makes his order by a “warrant” under his hand, which entitles any Gárda, without other warrant, to arrest that person; and the section requires the person arrested to be detained in a prescribed place. The detained man may apply in writing to the Government, under s. 59, to have his detention considered by a non-judicial Commission, whereupon the Government must refer the matter to the Commission; its duty is to inquire into the grounds of the detention and with all convenient speed report to the Government; the Minister for Justice must furnish to the Commission all relevant information and documents for which it may call; if it reports that no reasonable grounds exist for the detention, the internee must within one week either be released or charged according to law with an offence. He may be held for a week despite the Commission’s report that no reasonable grounds exist for detaining hima provision hard to defend. Mr. Maguire for the Attorney-General says that it is the plain duty of the Commission to inquire what the internee has to say for himself, either orally or in writing; any such inquiry must, I think, involve divulging the grounds of internment to the internee. Mr. Maguire’s candour, a conspicious feature of his argument, invites the inquiry why, if he is right as to the duty of the Commission, fair play does not impose a similar duty on the Minister; I do not know the answer. But, as neither the prosecutor nor the State has argued that the Minister’s duty under the section involves any hearing of, or statement from, the suspect, I pass on to the specific complaints of the applicant.
Let me say here, in order to avoid recurring to the case, that Mr. Haugh vigorously pressed upon me, in answer to most of those complaints, the decision in O’Connell’s Case (1) whereby a transient Court upheld internment without trial under the Constitution of 1922; in my opinion, that case, if its authority survived the appeal (2), bears only a superficial resemblance to this, because it was decided under a Constitution differing radically from the present Constitution in its provisions to secure personal liberty; and because in that case, unlike this, there was”nothing except the inner consciousness of the Minister expressed in the written order” for interment (per Molony C.J. at p. 112), for the authority to intern was the arbitrary opinion of the Minister that the enlargement of the internee would imperil the public safety: that position is not reproduced in the Act of 1939.
The applicant complains that s. 55 violates the equality of citizens before the law (Art. 40); I cannot so hold without much closer examination of the authorities. It is recognised in America that a similar provision for equal protection of the laws in the 14th Amendment to the Constitution of the United States does not prevent all limited legislation and is not infringed by a law imposing on all citizens the like penalties for the like offences. But I need not decide this point.
I shall now examine the contention that s. 55 of the Act of 1939 is repugnant to the Constitution because it authorises an invasion by the Executive of the judicial domain by requiring a Minister of State to administer justice. In order to determine this question, I shall investigate the duty of a Minister under the section, in order to see its essential character and so to ascertain whether a Minister acting under s. 55 is acting judicially. That is the first of two associated, but distinct, questions. Upon an affirmative answer to the first question, the second inquiry is whether, besides acting judicially, he is administering justice.
The Minister has authority to order arrest and internment only upon condition that he shall first have been “satisfied”that the person concerned is engaged in prejudicial activities of the sort described in the section. The word “satisfied”may or may not imply something in the nature of a judicial inquiry; its implication depends on the context. And, if the section erects the Minister into a tribunal, is he a judicial or a so-called administrative tribunal? A judicial tribunal, besides acting judicially, administers justice, determining rights and liabilities according to law, upon the ascertainment of the relevant facts. An administrative tribunal is sometimes required to act judicially; more often it is not, but, whether or not it acts judicially, it does not administer, and does not claim to administer, justice. Such is not its function; normally its characteristic function is to administer policy as it sees best in the public interest. Its decisions may, therefore, properly be influenced by subjective standards; it generally has the widest discretion, a very much wider power of acting on personal opinion than is involved in the limited judicial discretion familiar to a court of law, administering justice. That is why an appeal to the Courts from an administrative tribunal so frequently fails.
The Minister has to be satisfied. There must be countless occasions in the official life of a Minister of State on which he has to be satisfied as to particular facts before taking a particular course, occasions on which nobody would for a moment expect him to act judicially in order to be satisfied; otherwise the daily routine of administration would become impossible. But under s. 55 the Minister, who may be any Minister of State, is not exercising any normal function of his office; he is exercising a most exceptional statutory power, and a man’s liberty depends on his exercise of it. The nature of the duty imposed on “a Minister of State”by s. 55 is the best guide to the meaning of the word”satisfied” in the section. Part VI of the Act is its own best dictionary, and the grave duty which the section imposes does not suggest any loose use of the word “satisfied,”but, in my opinion, clearly suggests a serious inquiry resulting in a serious finding of “satisfied” or “not satisfied,” as the case may be. Mr. Haugh points out that in the Public Safety Act of 1924 (No. 1 of 1924), there were sections empowering a Minister to act, if “satisfied” that there were grounds of suspicion, but those sections were not considered by the Court in O’Connell’s Case (1).
In examining the duty imposed on the Minister, I have in mind two well-known authorities in particular, The Dublin Corporation Case (2), and Webster’s Case (3). In the earlier case May C.J. says at p. 376:
“It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant”he is, of course, speaking of the purely ministerial warrant “but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term ‘judicial’ does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others;”
and he instances the making of a rate. In the later case FitzGibbon L.J. accepts this statement, as applied to the cases under consideration, with the proviso that the acts must involve the exercise, or assumed exercise, of some jurisdiction (p. 383), while Palles C.B. at p. 373 enunciates this much quoted proposition:
“I have always considered, and still consider, the principle of law to be as stated by the Chief Justice, assuming that there is nothing in the statute constituting the particular tribunal or investing it with the particular power which indicates a contrary intention.” (He is speaking of an intention to exclude certiorari.) “I have always thought that to erect a tribunal into a ‘Court’ or ‘jurisdiction,’ so as to make its determinations judicial, the essential element is that it should have power, by its determinationwithin jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact.”
This passage represents accepted law, save that the words”determine liability” would, it has been suggested, be more accurate than “impose liability,” but for my present purpose the difference is not material. These statements, though directed to certiorari, help to clarify the aims of my present inquiry.
Let me examine the duty of the Minister under the section a little more closely. Before issuing his warrant for arrest with a view to internment, the Minister must make up his mind upon certain matters of fact; the evidence placed before him will generally, I suppose, be contained in the Gárda records; I assume that it is not required by the section to be legal evidence. Often the Minister may be in a better position to reach a correct conclusion than the man in the street, and he is not bound by the view which he thinks a jury would probably take, if on the evidence that view appears to him to be wrong. I recognise all that in favour of the State, but I come back to the need for the Minister to be satisfied, to be satisfied as to facts, and to be satisfied as to facts which will form “the grounds” of detention for the Commission of inquiry, if there be one. First, the Minister, to have the right to intern, must be satisfied that the person concerned is in fact engaged in specific activities; that is the kind of question that one may fairly classify as a “jury question”; if he finds against the man on that issue of fact, the Minister, before he can intern, must consider whether those activities by that person are calculated to prejudice the peace, order or security of the State and be satisfied that they are; the phraseology here is indefinite, but I need not pause to consider whether, on the analogy of American decisions, it is too vague under our Constitution for a penal enactment; this second determination may be said to depend on opinion, because different minds may so easily on the same facts reach different conclusions; but it is emphatically not a matter of discretion, which the Minister is free to determine as he feels inclined in accordance with his view of the public interest; it is essentially a matter of fact to be determined with due regard to the evidence; the Minister has to be satisfied, as a matter of fact, that the activities in question are calculated to prejudice the State, as being hurtful to the public peace, public order or public security. Sometimes a strong opinion may inevitably affect his judgment upon this kind of fact, but it remains matter of fact. Having reached a conclusion adverse to the man concerned on both issues of fact, having been “satisfied” within the meaning of the section, the Minister by his dual determination of fact, be it right or wrong, at once puts the man into the category of persons liable to be arrested and interned. In my opinion, it is clear that, so far as his investigation has now gone, the Minister in this weighing of the evidence has been acting judicially; to give an example illustrating the limits of his power, the Minister could not be satisfied within the terms of the section, merely because he ascertained that the Garda Siochana had the worst opinion of the man by reason of his past activities, and that he was a person whom it would be prudent to lock up; but the Minister must be satisfied on the evidence that his present activities are calculated to prejudice the State. If I am right in holding that the Minister is acting judicially in his essential inquiry, in finding “the grounds” for internment, I cannot hold that the essential character of his duty under the section is altered by his discretion (if any, for it is not clear that he has a discretion) as to proceeding to apply the statutory sanction, if he does not prosecute. Now many civil servants are called upon in divers directions to act judicially, without thereby administering justice; hence this test does not by itself determine whether under the section the Minister is administering justice or acting merely in an administrative capacity, but the test is useful because it goes a long way towards ascertaining the essential character of this particular statutory function.
The border line between the powers that may, and the powers that may not, be exercised by a Minister of State or a Department of Government is not easy to define with accuracy. The solution of the problem is expressed by Professor Willoughby in his Constitution of the United States, 2nd edn., at pp. 1619 and 1620, in the following statement, which, as a general enunciation of principle, I adopt, as applicable under our Constitution, for the purpose of my present inquiry:
“It is not a correct statement of the principle of the separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong to another. Rather, the correct statement is that a department may constitutionally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not so constitutionally granted, which, from their essential nature, do not fall within its division of govermental functions, unless such powers are properly incidental to the performance of its own appropriate functions. . . . Generally speaking, it may be said that, when a power is not peculiarly and distinctly legislative, executive or judicial, it lies within the authority of the Legislature to determine where its exercise shall be vested.”
Before applying the principle, let me record certain relevant conclusions to which I have come on s. 55, remembering that I am dealing with a man whom a Minister has found to be engaged in activities calculated to prejudice the State. First, the Constitution (Art. 9) declares fidelity to the nation and loyalty to the State to be fundamental political duties of all citizens; there is, I think, much to be said for the view that the citizen engaged in activities conflicting with that fidelity and loyalty commits a misdemeanour, for which he is liable to prosecution under the criminal law. Secondly, and quite apart from that consideration, it would be difficult, and I think impossible, for a man to engage in activities calculated to prejudice the preservation of the peace, order or security of the State without offending the ordinary criminal law. Thirdly, I am further of opinion that the activities contemplated by s. 55, if not otherwise unlawful, are made unlawful by this very enactment, authorising internment as their reward; if such activities are not in terms forbidden by our laws, they are at least prohibited by necessary implication in s. 55, under pain of internment; Mr. Maguire agrees with me here. Fourthly, the activities described by the section make the subject-matter of Part VI of the Act one “which, by its very nature, belongs to the domain of criminal jurisprudence”;cp. In re Board of Commerce Act, 1919 (1).Fifthly, I am of opinion that indefinite internment under Part VI of the Act is indistinguishable from punishment for engaging in the activities in question, and I consider that the decision of a Minister of State to order the arrest and internment of a man under s. 55 is equivalent to a judgment pronounced against the internee for his dangerous activities.
These considerations are, indeed any one of them probably is, sufficient to show that the authority conferred on a Minister by s. 55 is an authority, not merely to act judicially, but to administer justice and an authority to administer criminal Justice and condemn an alleged offender without charge or hearing and without the aid of a jury. But, to apply Professor Willoughby’s principle, the administration of justice is a peculiarly and distinctly judicial function, which, from its essential nature, does not fall within the executive power and is not properly incidental to the performance of the appropriate functions of the executive; consequently a law endowing a Minister of State, any Minister, with these powers is an invasion of the judicial domain and as such is repugnant to the Constitution.
My conclusion in favour of the applicant is fortified by Art. 37 of the Constitution, expressly authorising a law to empower an officer who is not a Judge to exercise limited functions and powers of a judicial nature in non-criminal matters; the Article must imply that no such jurisdiction can be conferred by law in a criminal matter, so that criminal justice is exercisable only by a person who is a Judge under the Constitution. The Constitution, no doubt, makes exceptions for military law and for special Courts in specified circumstances of danger, but those exceptions do not apply here and I observe that the Constitution does not contemplate internment without trial even by the special Courts set up in time of emergency.
If my analysis of the Minister’s statutory duty is accurate, the document which the Act calls a warrant is really a combination of a conviction, an order to arrest and a warrant of committal. Its character as a conviction in the case of the present applicant seems to me particularly clear on the evidence. Sergeant Conway deposes that on the 15th of September, 1939, he arrested the applicant at Ballinrobe, because, having searched his house and found “a number of what appeared to me to be seditious and incriminating documents” unspecified, he suspected “that he was concerned in the commission of an offence” under the Offences Against the State Act, 1939, “namely, possession of seditious or incriminating documents”; that is an offence under s. 12 of the Act and “incriminating document” is defined in s. 2; the penalty is a fine or imprisonment (up to three months) or both. As I understand the evidence, a report (I rather think verbal) was then sent to Chief Superintendent Carroll in Dublin, whereupon the Chief Superintendent deposes that on the morning of the 16th he “got into touch with the Department of Justice and a warrant for the arrest and detention” of the applicant under s. 55 of the Act was signed by the Minister. This was done at 11.30 a.m. This rather elusive evidence of the ministerial activity must mean that the warrant was signed by the Minister because the seditious or incriminating documents were found in Mr. Burke’s house. The inescapable conclusion, in my opinion, is that the Executive Authority of the State, having under the Act the right to prosecute for the alleged offence, elected to take the alternative course of directing indefinite imprisonment without trial for the “activity” of possessing seditious or incriminating documents. And I am quite seriously asked to hold that this internment was not punishment at all, but merely “a deterrent.” I shall refrain from painting this lily of speech.
But, if the Minister does act only to deter, I reach the same result. If the Minister’s action was not an act of punitive justice, I should have to classify it, despite the resultant internment, as an act of deterrent or preventive justice. Now, the jurisdiction to bind a man over to be of good behaviour, when his conduct has given ground for anticipating misbehaviour by him, has been a regular feature of the ordinary administration of justice for centuries; it is a venerable part of the most ancient jurisdiction of justices and is perhaps as old as the jurisdiction to try and punish crime; see Bacon’s Abridgement, 7th edn., vol. VII, titles “Surety of the Peace” and”Surety of the Good Behaviour” and the corresponding titles in Burn’s Justice of the Peace, vol. V, and O’Connor’s Justice of the Peace, vol. I, chapter III (2nd edn.); see also the judgments of Lord Fitzgerald in Father Feehan’s Case (1), and of Palles C.B. in Dr. Tanner’s Case (2). If the Minister’s action was preventive justice, it cannot be defended under Art. 37 of the Constitution, because preventive justice, though no offence be charged, is in its nature a criminal matter or proceeding; this characteristic of preventive justice emerges from the terms of the traditional commission of the peace, coupled with the fact that the suspect may be imprisoned in default of finding sureties; from the inclusion of the subject-matter in the Criminal Justice Administration Act, 1914see s. 43, sub-s. 13; and from the decisions in Hilton v. Byron (1), in Father Feehan’s Case (2), per May C.J.; and in Halpin v. Rice (3),per Gibson J. Hence, if the Minister was exercising preventive justice by interning the applicant, he was administering criminal justice. This point is material also on the applicant’s contention that the warrant must show jurisdiction on its face, a matter to which I shall refer at the conclusion of this judgment.
In my opinion, the long title of the “Offences Against the State Act” and indeed its short title, would show that the intention of the Legislature was to punish wrongdoers, if the Act left any doubt on the question; as Mr. Maguire says, the Act was passed to deal with offenders against Art. 9 of the Constitution, which lays down the citizen’s fundamental duty of fidelity and loyalty; that is the setting in which I find s. 55.
The Minister’s action was attacked as unconstitutional by Mr. MacBride, in his very careful and elaborate argument, upon a number of other grounds, with which it is now unnecessary for me to deal. But one contention is too important to pass over in silence, especially as I think it well founded. Mr. MacBride relies very strongly on the constitutional guarantees for the personal rights of the citizen. Sect. 55, he says, infringes those rights and cannot stand. He says that the right to be free is denied. Art. 40, if I understand it, guarantees that no citizen shall be deprived of liberty, save in accordance with a law which respects his fundamental right to personal liberty, and defends and vindicates it, as far as practicable, and protects his person from unjust attack, the Constitution clearly intends that he shall be liable to forfeit that right under the criminal law on being duly tried and found guilty of an offence. In my opinion, a law for the internment of a citizen, without charge or hearing, outside the great protection of our criminal jurisprudence and outside even the special Courts, for activities calculated to prejudice the State, does not respect his right to personal liberty and does unjustly attack his person; in my view, such a law does not defend his right to personal liberty as far as practicable, first, because it does not bring him before a real Court and again because there is no impracticability in telling a suspect, before ordering his internment, what is alleged against him and hearing his answer, a course dictated by elementary justice. I am inclined to think that, if a Minister be properly satisfied under s. 55, he could have the suspect bound over to be of good behaviour under the ordinary law, so that, if the case be not one for prosecution, a law defending his liberty as far as practicable would take his recognisance, with or without sureties, in order to allow him to enjoy all his fundamental rights, to carry on his business and live his life; certainly the Act could have so provided, with the ordinary imprisonment in default.
In my opinion, the saving words in the declaration that”No citizen shall be deprived of his liberty save in accordance with law” cannot be used to validate an enactment conflicting with the constitutional guarantees. The opinion of Mr. Justice FitzGibbon in Ryan’s Case (1) is relied upon by Mr. Maguire, but it does not apply, in my judgment, to a Constitution in which fundamental rights and constitutional guarantees effectively fill the lacunae disclosed in the polity of 1922. The Constitution, with its most impressive Preamble, is the Charter of the Irish People and I will not whittle it away. There is nothing novel in the solemn recognition of the right to personal freedom as an essential basis of the social structure of a society of free men. In my opinion, the Constitution intended, while making all proper provisions for times of emergency, to secure his personal freedom to the citizen as truly as did Magna Charta in England. Whatever abuses were perpetrated in this country, despite the Magna Charta Proclamation for Ireland of 1216, in England Magna Charta was taken to mean what it said. Lord Shaw’s citation in O’Brien’s Case (2), from Hallam’s “penetrating judgment”affirms that from the era of King John’s Charter it must have been a clear principle of the Constitution in England that no man can be detained in prison without trial. The same principle is established in the Constitution of the United States, where a law which may prejudice person or property must be a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty and property, and immunities, under the protection of the general rules which govern society; see the citation from Webster, adopted by the Supreme Court, in Willoughby, 2nd ed., at p. 1691. It would be idle to multiply quotations. In my opinion, the right to personal liberty and the other principles which we are accustomed to summarise as the rule of law were most deliberately enshrined in a national Constitution, drawn up with the utmost care for a free people, and the power to intern on suspicion or without trial is fundamentally inconsistent with the rule of law and with the rule of law as expressed in the terms of our Constitution.
The legal position would be different, were I concerned with a war measure, a law “expressed to be for securing the public safety and the preservation of the State in time of war” under Art. 28, but I am not, for the Offences Against the State Act, 1939, is not such a law.
The Minister’s procedure and his warrant under s. 55 of the Act of 1939 are also attacked. I shall confine myself to the single objection that the warrant is bad on its face because it fails to show jurisdiction, so that it is no authority to the Governor of the Barracks to hold the applicant.
If the warrant were an ordinary act of a civil department administering its functions, it would have to be liberally construed, without regard to technicalities derived from the necessity of surrounding personal liberty with safeguards against errors of inferior Courts administering laws of a penal character. But it is nothing of that kind. I have held that this “warrant” amounts to a conviction, an order to arrest and a warrant of committal; if I am right in that view, the warrant must show jurisdiction. Baron Parke in Gossett v. Howard (1) says:”in the case of special authorities given by statute to justices or others acting out of the ordinary course of the common law, the instruments by which they act, whether warrants to arrest, commitments, or orders, or convictions, or inquisitions, ought, according to the course of decisions, to shew their authority on the face of them by direct averment or reasonable intendment”; this passage is endorsed by Palles C.B. in R. (Boylan) v. Londonderry JJ. (2); and the Chief Baron’s enunciation of the principle is taken to be the true rule by Mr. Justice O’Byrne in Hughes’s Case (3).The warrant here purports to be made by the Minister for Justice “in exercise of the powers conferred on me by s. 55 of the Offences Against the State Act, 1939,” but it contains no statement that the Government has made and published the proclamation necessary to give the Minister any jurisdiction at all in the matter and no reference to s. 54 (authorising such a proclamation), which might justify this Court in reading a reference to an existing proclamation into the warrant. In Hughes’s Case (4) an order, containing better recitals but omitting an averment essential to jurisdiction, was held void, despite very strong validating provisions in the governing enactment, provisions which have no counterpart here. The applicant is, therefore, held under an invalid warrant and I shall, under Art. 40 of the Constitution, order his release accordingly.
I had at one time expected to confine my judgment to the single point on the warrant, but I was able to ascertain the true character of that document only after a laborious investigation of the duty imposed on the Minister, and this involved an examination of the separation of powers in the Constitution to ascertain his lawful powers. Since that examination showed the applicant to be right on both the constitutional and the technical issues, I have felt obliged to deal with both matters.
I have only to add that there is no application before me to quash the Minister’s warrant and I am not doing so; it is well settled in this country that the absence of any such application does not affect the duty of the Court with regard to habeas corpus, when satisfied that the detention is not authorised by law; see Reg. v. Riall (1), and In re Sullivan(2),a case which on this point is good law.

 

Supreme Court.

SULLIVAN C.J. :
By a warrant under his hand, dated the 16th September, 1939, Gerald Boland, a Minister of State, in exercise of the powers conferred upon him by s. 55 of the Offences Against the State Act, 1939, being satisfied that James Burke of Friarsquarter, Ballinrobe, County Mayo, was engaged in activities calculated to prejudice the preservation of the security of the State, ordered the arrest and detention of the said James Burke under that section.
In pursuance of that warrant James Burke was taken in custody from Ballinrobe to the Arbour Hill Detention Barracks in Dublin and there detained by Captain Lennon, the Commandant of the Barracks.
On the 28th November, 1939, Redmond Burke, brother of the said James Burke, alleging that James Burke was illegally detained, applied to Gavan Duffy J. for an order that an order of habeas corpus issue to Captain Lennon commanding him to have the body of James Burke before the Court. At the conclusion of the arguments on that application the learned Judge reserved judgment. On the 1st December he delivered judgment in favour of the applicant, and made an order directing that the said James Burke be forthwith released. In obedience to that order James Burke was released.
From that judgment and order the Attorney-General and Captain Lennon have appealed to this Court, and have asked 1, for an order that the entire order and judgment of Gavan Duffy J. be set aside with costs, ncluding the costs of this appeal; 2, that in lieu thereof it be ordered that the application of the said Redmond Burke on behalf of the said James Burke be dismissed with costs.
When this appeal was called for hearing counsel on behalf of the applicant raised a preliminary objection on the ground that this Court had no juridiction to entertain the appeal, and the validity of that objection is the matter that is now to be determined.
In order to determine that question it is necessary to consider the meaning and effect of certain Articles of the Constitution, and in particular of Art. 40, which deals with the right of personal liberty and the remedy for its infringement, and of Art. 34, which deals with the appellate jurisdiction of this Court.
But it is also necessary to consider what the legal rights were of a person who was unlawfully detained in custody in Ireland 1, prior to the enactment of the Constitution of the Irish Free State, and 2, prior to the enactment of the present Constitution.
As to the rights of such a person prior to the Constitution of the Irish Free State there is no controversy; he could apply to any of the High Courts for a writ of habeas corpus, and if. on the return to that writ, the Court was satisfied that his detention was unlawful, it made an order for his immediate release, and when he had been discharged from custody pursuant to that order the legality of his discharge could never be questioned by an appeal. That was decided in Cox v. Hakes (1). In that case the appellant, who had been in custody, was discharged pursuant to an order of habeas corpus made by the High Court in England. The respondent appealed to the Court of Appeal, relying upon s. 19 of the English Judicature Act, 1873, which provides that “The said Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order . . . of Her Majesty’s High Court of Justice.” On the hearing of that appeal the judgment of the High Court was reversed. On appeal to the House of Lords the decision of the Court of Appeal was reversed, and the decision of the High Court restored on the ground that no appeal lay from an order discharging a prisoner on habeas corpus. Lord Halsbury L.C. in his speech (p. 514) in that case emphasised the exceptional nature of the remedy afforded by the writ of habeas corpus and the peculiar procedure in applications for that writ:
“The right to an instant determination as to the lawfulness of an existing imprisonment, and the twofold quality of such a determination that, if favourable to liberty it was without appeal, and if unfavourable it might be renewed until each jurisdiction had in turn been exhausted, have from time to time been pointed out by Judges as securing in a marked and exceptional manner the personal freedom of the subject. It was not a proceeding in a suit but was a summary application by the person detained, No other party to the proceeding was necessarily before or represented before the Judge except the person detaining, and that person only because he had the custody of the applicant and was bound to bring him before the Judge to explain and justify, if he could, the fact of the imprisonment.”And, having referred at length to the provisions of the Habeas Corpus Acts, he proceeded (p. 517):”I have insisted at some length upon the peculiarities of the procedure, because I think one cannot suppose that the Legislature intended to alter all the procedure by mere general words without any specific provision as to the practice under the writ of habeas corpus as the statutes which from time to time have regulated both its issue and its consequences. My Lords, I do not deny that the words of s. 19 literally construed are sufficient to comprehend the case of an order of discharge made upon an application for discharge upon a writ of habeas corpus; but it is impossible to contend that the mere fact of a general word being used in a statute precludes all inquiry into the object of the statute or the mischief which it was intended to remedy.” And, in a later passage:”This, however, is a proceeding on the part of the Court itself examining the lawfulness of the imprisonment for itself; and though it may, it is not bound to do more than satisfy itself of the lawfulness or unlawfulness of an imprisonment. My Lords, it is upon this part of the case that I think the absence of a proper appellant is important.
I admit at once that if I were to assume an appeal it would be easy to find a person who might appropriately represent the interests of those who authorised the imprisonment. The original complainant, the Judge, or even the gaoler, might properly fill that character; but when the nature of the transaction is such that there is no one whom the Court would be bound ex debito justitiae to hear, I think it reflects some light upon the nature of the proceeding
and upon whether the Court must regard it as a proceeding in which there cannot be a right of appeal.” And, in the concluding passage (p. 522) he said:”It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but it is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last Court of Appeal.”
The decision of the House of Lords in that case was binding upon all the Courts in Ireland prior to the Constitution of the Irish Free State, and, as the section of the Judicature (Ireland) Act, 1877, that conferred appellate jurisdiction upon the Court of Appeal in Ireland was similar in its terms to s. 19 of the English Judicature Act, 1873, it followed from that decision that the Court of Appeal in Ireland had no jurisdiction to entertain an appeal from an order discharging a prisoner on habeas corpus.
Art. 73 of the Irish Free State Constitution provided that, subject to that Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State at the date of the coming into operation of the Constitution shall continue to be of full force and effect until repealed or amended by the Oireachtas. The law as declared in Cox v. Hakes (1) was by that Article continued in force in the Irish Free State unless it was inconsistent with any Article of that Constitution. At no time while that Constitution continued was that law questioned in any Court of the Free State.
It is now contended by counsel for the Attorney-General that that law was inconsistent with Art. 66 of that Constitution, which conferred upon the Supreme Court appellate jurisdiction from all decisions of the High Court with such exceptionsnot including cases which involve questions as to the validity of any lawand subject to such regulations as may be prescribed by law. It is not necessary to discuss that argument now, as it will be considered when dealing with Art. 34, clauses 3 and 4, of the present Constitution: the two Articles are in substance the same and, if the law established by Cox v. Hakes (1)is inconsistent with Art. 34, clauses 3 and 4, of the present Constitution it must necessarily be inconsistent with Art. 66 of the former Constitution.
We have now to consider the relevant Articles of the present Constitution, the Constitution of Éire . Articles 40 to 44 declare certain rights, described as “Fundamental Rights,” and the first of these Articles deals with rights that are described as Personal Rights.” Clause 4 of that Article provides as follows:
“(1). No citizen shall be deprived of his personal liberty save in accordance with law.
(2). Upon complaint being made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every Judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay and to certify in writing as to the cause of the detention, and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law.
(3). Nothing in this section, however, shall be invoked to prohibit, control, or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion.”
It is clear that the application contemplated by clause 4, sub-clause 2, is a summary application by or on behalf of the person detained, and that no other party is necessarily before the Judge except the person detaining, who must bring the applicant before the Court and justify, if he can, the detention, and it is, I think, equally clear that upon the hearing of that application the applicant’s right to release should be summarily determined. That, indeed, is not disputed; what is in dispute here is the finality of such determination in view of the provisions of Art. 34, clause 4, sub-clause 3, of the Constitution. That Article provides:
” The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction from such decisions of other Courts as may be prescribed by law.”
The Supreme Court of the Irish Free State decided that in Art. 66 of the Free State Constitution which conferred appellate jurisdiction upon that Court the words “with such exceptions and subject to such regulations as may be prescribed by law” referred to exceptions and regulations prescribed by laws passed by the Oireachtas after that Constitution came into force, and did not carry on the limitations upon appeals imposed by statutes of the Parliament of the United Kingdom: Warner v. Ministry for Industry and Commerce (1); In re M. M.(2). We should give a similar interpretation to these words in Art. 34, clause 4, sub-clause 3, of the present Constitution, and if we do so we cannot hold that the exception from the jurisdiction of the Court of Appeal established by Cox v. Hakes (3) is an “exception prescribed by law” within the meaning of that Article. Since the enactment of the Constitution no law has been passed by the Oireachtas limiting the appellate jurisdiction of this Court in such a case as the present, and accordingly that Article may be read:”The Supreme Court shall have appellate jurisdiction from all decisions of the High Court.”
Now, it cannot be denied that an order discharging a person from custody made by a Judge of the High Court is prima facie a decision of the High Court within the meaning of that Article. But it cannot be contended that in construing the Article the Court must look at that Article alone and disregard all other considerations. If that was the principle to be applied in construing a statutory provision, then the appeal to the House of Lords in Cox v. Hakes (3) would have been dismissed, as the jurisdiction of the Court of Appeal to make the order appealed from could not have been questioned, and the appeal to the House of Lords in The Secretary of State for Home Affairs v. O’Brien (4) would have been allowed, and not, as it was, dismissed.
In the latter case the appellant appealed to the House of Lords against an order made by the Court of Appeal making absolute a conditional order for a writ of habeas corpus that had been obtained by the respondent. The appellant based his right to appeal to the House of Lords upon s. 3 of the Appellate Jurisdiction Act, 1876, which provides that “an appeal shall lie to the House of Lords from any order or judgment of the Court of Appeal in England.” Notwithstanding the very general terms of that provision the House of Lords dismissed the appeal as incompetent, on the ground that no appeal lay from an order of a competent Court for the issue of a writ of habeas corpus where the Court determines the illegality of the appellant’s detention and his right to liberty, although the order does not direct his discharge. The decision in that case did not bind the Courts of the Free State and does not bind the Courts of Éire , nevertheless the views expressed by Lord Birkenhead in his speech are worthy of our consideration. He referred to the writ of habeas corpus as a writ antecedent to statute and throwing its root deep into the genius of our common law, as perhaps the most important writ known to the constitutional law of England, affording as it did a swift and imperative remedy in all cases of illegal restraint or confinement, and he then referred to certain principles applicable in habeas corpus proceedings:”In the course of time,” he said, “certain rules and principles have been evolved; and many of these have been declared so frequently and by such high authority as to become elementary. Perhaps the most important for our present purpose is that which lays it down that if the writ is once directed to issue and discharge is ordered by a competent Court, no appeal lies to any superior Court. Correlative with this rule, and markedly indicative in itself of the spirit of our law, is that other which establishes that he who applies unsuccessfully for the issue of the writ may appeal from Court to Court until he reaches the highest tribunal in the land.” In a later passage in his speech he dealt with the argument advanced in support of the appeal:”The argument is, of course, founded upon the very wide language of s. 3 of the Appellate Jurisdiction Act, 1876, which is undoubtedly general enough to cover this or almost any other case. It is certainly true that in terms the words are wide enough to give an appeal in such a matter as the present. But I should myself, if I approached the matter without the assistance of authority at all, decline utterly to believe that a section couched in terms so general availed to deprive the subject of an ancient and universally recognised constitutional right.”
In the present case in determining the meaning of Art. 34, clause 4, sub-clause 3, of the Constitution I am entitled to have regard to the provisions of Art. 40, clause 4, and in considering that Article I am entitled to consider the principles formerly applicable in habeas corpus cases. I have already stated my opinion that the latter Article contemplates summary application, upon the hearing of which the right to release will be summarily determined. I think that in accordance with settled principles and established practice that determination is, and was intended to be, final. It follows that in my opinion an appeal does not lie to this Court from an order of the High Court made under Art. 40, clause 4, discharging a person from illegal custody.
In the present case, at the request of counsel for the Attorney-General, the learned Judge included in the order that he made a recital that in his opinion a certain section of the Offences Against the State Act, 1939, was repugnant to the Constitution; and in this Court counsel for the Attorney-General relied upon certain Articles of the Constitution as indicating that an appeal should lie to this Court in any case in which a question as to the validity of any law is involved, having regard to the provisions of the Constitution. But that consideration cannot affect the jurisdiction of this Court to entertain an appeal from an order made under Art. 40, clause 4, discharging a person from custody.

MURNAGHAN J.:
On the 1st day of December, 1939, Mr. Justice Gavan Duffy made an order for the release of James Burke, who was detained in custody under a warrant which was issued under the Offences Against the State Act, 1939 (No. 13 of 1939).
An appeal having been sought to be taken against this order to this Court, counsel for James Burke has appeared, and he has taken a preliminary objection to the hearing of the appeal on the ground that no appeal lies from an order for release made in habeas corpus proceedings.
Counsel on behalf of the Attorney-General states that he does not seek any order which would affect James Burke, who is now at liberty, but he very strongly urges this Court to review the opinion of Mr. Justice Gavan Duffy, who formed the view that the Offences Against the State Act was in certain respects invalid as being contrary to the Constitution. Mr. Justice Gavan Duffy had also held that the warrant under which James Burke was held was bad in form, but at the request of counsel for the Attorney-General he stated in his order his view as to the invalidity of the statute.
It is not suggested that Mr. Justice Gavan Duffy had not jurisdiction to make the order which he did make, but the appeal, if competent, is brought to settle a matter of very great public importance.
In the whole history of Irish law no precedent can be cited of an appeal against an order of release made in proceedings by way of habeas corpus. Appeal is the creature of express enactment and, until the Judicature Act was passed, it was not possible to point to any enactment to support such an appeal even in argument. At that time the situation undoubtedly was that, if a person could obtain an order for release from any of the three Common Law Courts the order could not be called in question. It was an established principle that the applicant could seek the aid of any of these Courts even though the other Court or Courts had refused to grant the application.
After the passing of the Judicature Act in England a case of great authority in the House of Lords, Cox v. Hakes (1), decided that there was no appeal from such an order of release, although an appeal was given in the widest terms from any judgment or order (save as thereinafter mentioned) of the High Court of Justice, or any Judges or Judge thereof. A similar provision is found in our Judicature (Ireland) Act, 1877 (40 & 41 Vict. c. 57). The reasons stated by the Law Lords in their speeches are weighty and varied, one line of argument being that the Courts should not infer an intention to make such a grave constitutional change merely from the use of general words which, divorced from the subject-matter, would appear to cover the case in question; a second line of argument was that after release made by order of the Court there was in fact no machinery to bring again the discharged person into custody, and therefore the Courts could not impute to the Legislature an intention to grant an appeal on a matter where reversal of the order of discharge would be futile. In a more recent case in the House of Lords, Secretary of State for Home Affairs v. O’Brien (2), the greater weight seems to have been found in the first line of argument.
Such was the state of the law in Ireland in the year 1922 when the Constitution of the Irish Free State was promulgated. This Constitution, by Art. 73, adopted the law in force at the date of its coming into operation, if not inconsistent with the Constitution. The law, as so adopted, having regard to the authority of Cox v. Hakes (1),undoubtedly was that no appeal lay against an order for release in habeas corpus proceedings. It was, however, certainly open to the makers of the Constitution to make a different provision if they thought it prudent and desirable. It is not enough, however, to point to purely verbal arguments if the realities of the times lead to a different conclusion. In the struggle for Irish liberty applications for relief by way of habeas corpus had been hampered, and it was thought necessary to embody in the new Constitution an Article securing the right of personal freedom by habeas corpus except in well defined and specially mentioned cases. By incorporating such an Article in the Constitution the legal consequence was that no ordinary legislation could impair the right so secured; such an alteration could only be made by amendment of the Constitution.
Art. 6 reads:”The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon complaint being made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every Judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay, and to certify in writing as to the cause of the detention, and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law.” Read by itself, this Article states in clear and forcible language that it is obligatory on the tribunal to make an order for release unless satisfied that the detention is in accordance with law. There is no statement that the order for release is subject to review by another Court, and it seems to me impossible to say that the High Court can do anything but order release if the cause of detention is held to be not in accordance with law. Art. 64 of this Constitution sets up a new Court of final appeal, to be called the Supreme Court, and Art. 66, as far as material, is:”The Supreme Court of the Irish Free State shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court.” We are now asked to interpret this constitutional enactment in the largest sense of the words used and, so doing, we should, it is argued, hold that there is an appeal from all decisions of the High Court. Certainly no one can point to any exception dealing with the matter in question in any law passed by the Oireachtas. A similar line of reasoning was adopted in Attorney-General for the Colonies v. Ah Sheung (1), a case before the High Court in Australia. In that case, however, the report does not indicate that there was any consideration given to the principles stated by the House of Lords in Cox v. Hakes (2). If merely verbal reasoning is not alone relied upon, arguments in support of the appeal are to be found in the value of finality and certainty while arguments to the contrary rest upon the topics of delay, oppressiveness, and restriction upon freedom.
If there were not in this written Constitution the Article, No. 6, dealing with habeas corpus, I confess that I feel it to be unsafe to hold that the use of general words alone dealing with the question of appealis sufficient to overturn an established constitutional usage. Certain constitutional principles are stated in the Constitution, but many other important constitutional principles have been adopted as existing in the law in force. But if we look carefully at the language used, Art. 66 gives “appellate jurisdiction” from all decisions of the High Court. This language seems to me to refer to a subject-matter which is a suitable matter for appeal. But what subject-matter is there for appeal when an order for release has been made? If the Supreme Court could again bring the person discharged by the high Court before itself and hand him back into custody there certainly would a subject-matter for appellate jurisdiction. But it is not seriously contended that any such order could be made.
Much stress was, during the argument, laid upon the point that it was highly desirable that questions involving the validity of laws should be brought before the Supreme Court. The argument cannot, however, be limited to this class of matter. If this Court accepts the construction asked for by the appellants it must hold that every order of release is subject to appeal no matter how trivial the illegality may be. But Art. 66 does not stand alone. In the forefront of the Constitution of 1922 is Art. 6 which secures the right of personal freedom, and it contains a peremptory direction to the High Court to order release unless satisfied that the person in custody is detained in accordance with law. This Article, which requires in an absolutely unqualified way that the High Court shall make an order for release, affords ample ground for holding that Art. 66 never intended to subject the decision of the High Court ordering release to a further review. Art. 66, which is in general terms, must, in my opinion, be read in a way that should not conflict with the specific provision in Art. 6. The Latin maxim Generalia specialibus non derogantis not an abstruse canon for the interpretation of British statutes aloneit is an ancient statement of the laws of human expression of thought in words. In my opinion anything that would conflict with the provisions of Art. 6 could only be validated by an express amendment of the Constitution.
The Constitution of the Irish Free State has been abrogated and the people of Eire are now governed by the fundamental provisions of Bunreacht na hEireann in force since December, 1937. Art. 40, clause 4, sub-clauses 1 and 2, are, however, textually the same as Art. 6 of the earlier Constitution, and Art. 34, clause 4, sub-clauses 3 and 4, restate in almost identical language the words of the former Art. 66. The same line of reasoning must, in my opinion, apply. The order for release made by the High Court under Art. 40, clause 4, sub-clause 2, is a specific and unqualified provision of Bunreacht na hEireann, and its meaning cannot be altered by general words in Art. 34, clause 4, sub-clause 3, so as to arrive at a sense contrary to that which is expressed.
But in truth there is, in my opinion, no conflict. This Court has appellate jurisdiction over all decisions of the High Court capable of being the subject-matter of appeal. It is not sought in this case to make the order for release the subject-matter of appealit is not contended, I think, that we have authority to deal with this order at all in any effective way. There is no general provision that this Court should give advisory opinions on the question of the validity of laws. It should be possible to frame some action or matter in which the question of the validity of laws could be decided without departing from the established rules of procedure.
In my opinion this Court should yield to the preliminary objection made and refuse to entertain this appeal for want of jurisdiction.

MEREDITH J. :
The Courts have always been very jealous to preserve the dignity and prestige of the law, and, therefore, they have studiously refrained from making any order that would be futile. In pursuance of that policy, even in civil actions, the Courts have declined to give mandatory injunctions in cases where they were not able to supervise the carrying out of their orders and seeing that they were effective. In the present case the order of Mr. Justice Gavan Duffy simply resulted in the release of Mr. Burke. That order was final, absolute and complete, and this Court could not make any effective order on appeal. This Court could not have exercised any jurisdiction whereby the order for release could be effectively interfered with: that jurisdiction is vested solely and exclusively in a Minister. The order on habeas corpus is by its very nature not appealable and is outside the scope of Art. 34.
In expressing in this way my agreement with the main contention put forward by Mr. MacBride, on behalf of Redmond Burke, I wish to make it clear that I do not pass over or reject his argument based on the importance of the liberty of the subject. But I do not accept Mr. MacBride’s contention that the heading placed over certain Articles of the Constitution, describing certain rights as “fundamental,”meant that those Articles were to be interpreted as of more fundamental importance than any other Article of the Constitutionfor instance, that the Articles conferring and preserving the liberty of the subject had any more importance than those Articles which provide for a constitutional change in the law, or for a change in the Constitution, or for the will of the people being carried out by constitutional means and not by unconstitutional means.
The heading in question is perfectly plain in its meaning it is a division and classification, not of Articles, but of the rights conferred by the Constitution. The rights included under the heading of “fundamental” are all such as might be described as private, inherent, determinate, categorical rights, as opposed to certain other rights. The rights in question are those contained in Art. 40 relating to personal liberty, Art. 41 relating to family, Art. 42 relating to education, Art. 43 relating to private property, and Art. 44 relating to religion. Those inherent and private rights are distinguished from rights in relation to social matters in Art. 45, in respect of which only directive principles are stated. [Reads Art. 45.]
It has been suggested that this Court should, on this appeal, make a declaratory order, that Mr. Justice Gavan Duffy’s order was a speaking order and might be treated as declaratory, and that, therefore, it was competent for the Supreme Court to review the statements made in the order and deal with the whole large question of the validity of the law under which Mr. Burke was taken into custody. I dissent entirely from that view, for the reason that when Mr. Justice Gavan Duffy heard the habeas corpus application he heard it as a single and individual Judge, under a special provision of the Constitution which gave the right to apply to the High Court “or any and every Judge thereof”:see Art. 40, clause 4, paragraph 2. It was under that special jurisdiction that the application was heard. Therefore on that application, which was brought under that Article, which was enacted for the express purpose of preserving rights by way of habeas corpus, there was only one question for Mr. Justice Gavan Duffy. Whether Mr. Justice Gavan Duffy, besides giving the reasons for his judgment, made a speaking order or not, the order, so far as effective, dealt
with one point only, that on which the Judge had alone jurisdiction to make the order; anything beyond that was obiter, or rather extra-judicial.
I wish to add only a few more words. I do not rest this case of the liberty of the subject upon previous decisions of British Courts, and I do not think that our Constitution has left the liberties of the subject to be interpreted and defended by decisions of the British Courts, however important. The whole case made by the appellants was that the provision of Art. 34 of the Constitution, relating to appeals from High Court orders, was general, without any limitation, and prima facie included habeas corpus. I do not agree with that view.
In Art. 40, where habeas corpus was being dealt with, a particular jurisdiction was given, not merely to the High Court, but also to “any and every Judge thereof.” Thereby a clear distinction was introduced between a decision of the High Court as such and a decision of any individual Judge thereof. The Constitution having introduced and emphasised that very important distinction for the purposes of habeas corpus, if it had been intended that the appellate jurisdiction should be extended to habeas corpus applications, it should and would have given the right of appeal not merely from any decision of the High Court, but “from any decision of the High Court or any Judge thereof.” As the relevant Article did not say that, it does not, to my mind, prima facie., refer to habeas corpus applications, and the alleged inconsistency between the general words of Art. 34 and other Articles of the Constitution simply does not exist.
In my opinion that was a complete answer to the case made by the appellants.

GEOGHEGAN J.:
In this case the notice of appeal asks this Court to reverse the order of Mr. Justice Gavan Duffy directing the release of Seamus Burke and to dismiss the application made on behalf of Seamus Burke and pursuant to which he has actually been released by the said order.
A preliminary objection has been made that in the circumstances no appeal lies. The preliminary point only has been argued.
At the time the Constitution of the Irish Free State was enacted and for many years previously no appeal lay from any order of the High Court of Justice in Ireland or a Judge thereof by which a person had been discharged from prison under a writ of habeas corpus.
In England the procedure on habeas corpus was a very ancient one, but prior to the year 1890 I cannot find a report of an appeal against, or an application to review, an order granting the writ for the release of a person in custody. In that year the question whether the Court of Appeal in England had jurisdiction to hear such an appeal was raised before the House of Lords in Cox v. Hakes (1).
In that case it was argued that the words of s. 19 of the Judicature Act, 1873, taken literally, were wide enough to give an appeal from an order discharging by writ of habeas corpus a person in custody; at the time the appeal was heard this person had been discharged. The majority of the House of Lords (Lord Halsbury, Lord Watson, Lord Bramwell, Lord Herschell and Lord Macnaghten) resolved that no appeal lay. The history of this remedy, its nature and essential features and the procedure in reference to it were very fully discussed in the speeches delivered. Different reasons were given by the learned Lords who reached this decision. Lord Bramwell expresseed a doubt whether in awarding or disposing of a writ of habeas corpus a Judge of the High Court or the High Court itself is acting as a Court or Judge of a Court of Judicature. Apart from this doubt all five were agreed that the words of s. 19 comprehended an appeal against an order for habeas corpus. Lord Halsbury was of opinion that, as the right to personal freedom had been for centuries determined summarily and finally, express legislation would be necessary to confer the right of appeal claimed. Lord Herschell dwelt on the absence of any provision for procedure to render effective an order of reversal made by the Court of Appeal. His Lordship considered this an indication that the Legislature had not intended to limit in any way the legal right of a person wrongfully detained to instant and final release. The speeches of Lord Halsbury, Lord Bramwell and Lord Herschell show how ancient this right was and how fully it had been recognised.
The decision in Cox v. Hakes (1) was of course binding on the Irish Courts when the Constitution of the Irish Free State Act was passed in 1922. The people of this country at that time had no reason to doubt that in the procedure of habeas corpus there could be determined immediately and finally the prisoner’s right to freedom.
The argument on behalf of the appellants is that this safeguard of the right of personal freedom was swept away in 1922 by the insertion in Art. 66 of the Constitution of that year of the words:
“The Supreme Court shall . . . have appellate jurisdiction from all decisions of the High Court.”
I am not convinced that these words, taken literally and strictly, comprehend a right of appeal from an order by which a prisoner has been discharged by habeas corpus. Art. 6 of that Constitution is really a concise statement of the previously existing rights under the procedure in habeas corpus. It directs that the Court or Judge shall order the release of a person alleged to be unlawfully detained unless satisfied that he is detained in accordance with law. If the order is to be subject to appeal the prisoner can scarcely be said to have been released; he may have a mere respite pending an appeal at the instance of his gaoler. His freedom is conditional on his satisfying a majority of the Judges of the Supreme Court of the truth of his complaint. I am of opinion that Art. 6 contemplated the release of the prisoner as a complete and final act and that Art. 66 does not contain apt words to delay the immediate release secured to the prisoner by Art. 6.
Let me assume for a moment that the words in Art. 66, taken strictly and literally, are sufficient to confer a right of appeal against an order granting the release of a prisoner and inquire if these general words are adequate to introduce into the law such an absolute novelty as the possibility of reversing an order made by a Judge of the High Court under which a prisoner had been set free. The Legislature, when enacting Art. 66, may be assumed to have been aware of the principle stated by Lord Herschell:
“The law of this country has been very jealous of any infringement of personal liberty.”
( Cox v. Hakes (1).)
The manner in which the Courts and Judges exercised jurisdiction to discharge under a writ of habeas corpus had been the great safeguard of liberty. If this safeguard were to go why roll up its repeal in general words in Art. 66 only somewhat remotely associated with Art. 6 which proclaimed that the liberty of the person is inviolable?
Surely a repeal of such importance would not have rested to any extent on implication when it could have been expressed clearly and plainly in Art. 6, which set forth the provisions for ensuring liberty of the person.
The extent to which general words affect an order for the release of a prisoner was (after 1922) considered by the House of Lords in the well-known case of The Secretary of State for Home Affairs v. O’Brien (1). On the 9th May, 1923, an order was made by the Court of Appeal in England for the issue of a writ of habeas corpus in favour of Mr. Art O’Brien, then in custody. Against this order the Home Secretary appealed to the House of Lords. For reasons it is not necessary now to go into Mr. O’Brien had not been released when the appeal was heard by the House of Lords on 14th May, 1923. The case was, therefore, distinguishable from Cox v. Hakes (2) in which the prisoner had been released. If the appeal succeeded no question of re-arrest of Mr. O’Brien would arise. It was not disputed that the words of s. 3 of the Appellate Jurisdiction Act, 1876, are framed in language wide enough, if read literally, to give a right of appeal in that case to the House of Lords.
The House, by a majority (Lord Atkinson being the sole dissentient) held that the principle established in Cox v. Hakes (2) applied.
Lord Birkenhead in the course of his speech (at p. 610) said:
“It is certainly true that in terms the words are wide enough to give an appeal in such a matter as the present. But I should myself, if I approached the matter without the assistance of authority at all, decline utterly to believe that a section couched in terms so general availed to deprive the subject of an ancient and universally recognised constitutional right.”
Lord Shaw (at p. 645) says:
“In the view which I take of this appeal the question at stake transcends an ordinary case of jurisdiction. To sustain jurisdiction would be to claim a right to circumvent or destroy that finality of liberation which has been long affirmed as part of English constitutional law. It would, in short, be a usurpation by this House of a right and power to destroy a liberty already properly affirmed as a matter of right in one of His Majesty’s subjects. Your Lordships are thus determining not merely in the present case to decline a jurisdiction, but to decline a usurpation. That usurpation is forbidden.
And beyond finality, I repeat that the point of urgency, an essential point, would also be violated by our assertion of a power to review a liberating judgment.”

The decision in Cox v. Hakes (1) and the reasoning in the speeches of the majority of the House of Lords in The Secretary of State for Home Affairs v. O’Brien (2) lead me to the conclusion that the general words in Art. 66 of the Constitution of 1922 do not operate to repeal the then existing law as to the release of a prisoner pursuant to an order for habeas corpus, and that the combined effect of Art. 6 and Art. 73 of that Constitution was to continue the law in full force and effect.
I feel that this opinion is not in conflict with the decision in Warner v. Minister for Industry and Commerce (2) or the decisions in the cases based on it. Warner’s Case (2)was civil litigation between parties. The proceedings in the present case are of a criminal nature. The procedure is essentially different. In former times the writ of habeas corpus was always ex parte. Under present practice a conditional order is frequently made, but a Court or Judge may, if they think fit, make an order absolute in the first instance for habeas corpus to issue. Contrasted with the course of civil proceedings between parties the striking characteristic of proceedings by habeas corpus has always been the immediate and final determination of the prisoner’s right to freedom.
It is further contended for the appellants that the general words in Art. 34 of the Constitution of 1937 give jurisdiction to this Court on appeal. The words of Art. 34, clause 4, paragraph 3, of the Constitution of 1937 are substantially the same as the relevant words in Art. 66 of the Constitution of 1922. Art. 40, clause 4, of the Constitution of 1937 contains provisions for securing the release of a person unlawfully detained similar to those in Art. 6 of the Constitution of 1922. The same reasons that have induced me to reject the interpretation of an implied repeal in the Constitution of 1922 apply to that of 1937.
Possibly the implication of a limitation of the personal right of freedom is negatived more strongly by the solemn reference in the preamble of the Constitution of 1937 to the intention to assure the dignity and freedom of the individual.
It has been suggested that questions touching the validity of a statute are involved in this appeal. I feel satisfied that the only point that is material is whether this Court can hear an appeal from the order of Mr. Justice Gavan Duffy directing the release of the prisoner.
In my opinion the Court has no jurisdiction to hear this appeal.

JOHNSTON J.:
I am in the unfortunate position that I cannot concur with the views that have been expressed by my brethren, but I do not think it necessary to state my reasons at length.
During the course of the argument I indicated pretty clearly the opinion that I was inclined to form, and I adhere to that opinion.
In view of the clear views that have been expressed by the other members of the Court, the opinion that I have arrived at becomes a matter of no importance, and I need only say, in a general sort of way, that my view of the matter is that the terms of Arts. 34 and 40 of the new Constitution are clear and comprehensive, and they do not at all suggest that, in regard to cases like the present, an appeal does not lie to the Supreme Court.
The Constitution of 1937 represents a fresh start in respect of the fundamental principles that are to be the guide of this country for the future, and I do not think that a further Constitutionan unwritten onewas intended by the People of Eire to exist side by side with this written Constitution or evenperhaps it would be more correct to sayoutside and beyond the present Constitution.
I think that the practical effect of our decision in this case will be to add to Art. 34, paragraph 4, half a dozen words making a further reservation from the jurisdiction of the Supreme Courtreserving from that Court the right of hearing appeals from the High Court in habeas corpus cases such as we have here to-day.

 

Re Offences Against the State (Amendment) Bill, 1940,

SULLIVAN C.J. :
9. Feb.

In pursuance of the provisions of Art. 26 of the Constitution, the President of Ireland, on the 8th January, 1940, after consultation with the Council of State, referred to this Court a Bill, entitled “Offences Against the State (Amendment) Bill, 1940,” for a decision on the question whether the said Bill is repugnant to the Constitution or to any provision thereof.
The said Article admittedly refers to a Bill such as this, which had been duly passed by both Houses of the Oireachtas. Under the Article it is provided that the Court, consisting of not less than five Judges, shall consider every question referred to it by the President and, having heard arguments by or on behalf of the Attorney-General and by counsel assigned by the Court, shall pronounce its decision in open Court as soon as may be, and in any case not later than sixty days after the date of reference.
The Article further provides that the decision of the majority of the Judges of this Court shall, for the purposes of this Article, be the decision of the Court (clause 2, par. 2).
It is further provided that, in every case in which this Court decides that any provision of a Bill, so referred to the Court, is repugnant to the Constitution or to any provision thereof, the President shall decline to sign such Bill, and that, in every other case, the President shall sign the Bill as soon as may be after the date on which the decision of this Court shall have been pronounced.
In accordance with the provisions of the Article the Court assigned counsel and, subsequently, the Court heard arguments by counsel on behalf of the Attorney-General and by counsel so assigned by the Court, and at the conclusion of the said arguments reserved its decision.
The decision now announced is the decision of the majority of the Judges and is, within the meaning of clause 2, par. 2 of the said Article, the decision of the Court.
The long title of the Bill, so referred to this Court is “An Act to repeal Part VI of the Offences against the State Act, 1939, and to make other provisions in relation to the detention of certain persons.”
Sect. 2, which is contained in Part I of the Act, repeals Part VI of the Offences Against the State Act, 1939. The Part of the Act of 1939 so repealed is substantially to the same effect as Part II of the Bill now before this Court.
Part II of the Bill consists of seven sections.
Sect. 3 provides that Part II of the Act is to come into force when and so often as the Government makes and publishes a Proclamation declaring that the powers conferred by the said Part of the Act are necessary to secure the preservation of public peace and order, and that, if the Government makes and publishes a Proclamation declaring that the said Part of the Act shall cease to be in force, same shall forthwith cease to be in force. It further provides that it shall be lawful for Dail Eireann, at any time while the said Part of the Act is in force, to pass a resolution annulling such first-mentioned Proclamation and thereupon such Proclamation shall be annulled and the said Part of the Act shall cease to be in force, but without prejudice to the validity of anything done after the making of the Proclamation and before the passing of the resolution.
Sect. 4 provides as follows:
“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.”
Sect. 5 confers on any member of the Garda Siochana power, in respect of any person arrested and detained under this Part of the Act:(a) to demand his name and address, (b) to search him or cause him to be searched, (c) to photograph him or cause him to be photographed, and (d) to take or cause to be taken his fingerprints. It also provides that any person who obstructs or impedes a member of the Garda Siochana in the exercise of the said powers, or who refuses to give to a member of the Garda Siochana his correct name and address, shall be guilty of a contravention of the regulations to be made under this Part of the Act and shall be dealt with accordingly.
Sect. 6 provides that a Minister of State may, by writing under his hand, order the release of any person who is being detained and such person shall forthwith be released.
Sect. 7 empowers a Minister of State to make regulations for all or any of the following purposes, that is to say:
(a) Prescribing the prisons, internment camps, and other places in which persons may be detained under this Part of this Act;
(b) providing for the efficient management, sanitation, control, and guarding of such prisons, internment camps, and other places;
(c) providing for the enforcement and preservation of discipline amongst the persons detained in any such prison, internment camp, or other place as aforesaid;
(d) providing for the punishment of persons so detained who contravene the regulations;
(e) prescribing or providing for any other matter or thing incidental or ancillary to the efficient detention of persons detained under this Part of this Act.
Sub-s. 2 of the said section provides that:
“Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such regulation is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such regulation is laid before it, such regulation shall be annulled accordingly, but without prejudice to the validity of any thing previously done under such regulation.”
Sect. 8 provides for the setting-up of a Commission to which any person detained under this Part of the Act may apply in writing to consider the continuation of his detention, and requires the Minister for Justice to furnish to the Commission such relevant information and documents, in the possession or procurement of the Government or of any Minister of State, as shall be called for by the Commission, and further provides that, if the Commission reports that no reasonable grounds exist for the continued detention of such person, he shall, with all convenient speed, be released.
Sect. 9 provides that the Government shall, once at least in every six months, furnish to each House of the Oireachtas certain particulars therein specified with reference to persons detained.

Counsel, so assigned by the Court, contended that the Bill was repugnant to the Constitution and, in particular, they relied upon the Preamble and on Article 34, clause 1, and Articles 38 and 40.
We propose to deal specifically with the aforesaid Articles, but in arriving at our conclusion we have had regard not only to those Articles but also to all such other Articles as seemed to us material to the question which we have to determine.
Before dealing, however, with the said Articles, we desire to point out that several Acts authorising the detention of persons had been passed by the Oireachtas of the Irish Free State prior to the enactment of the Constitution which we are now considering. The existence and effect of these Acts must have been within the knowledge of the framers of the Constitution and, nevertheless, there is no express prohibition in the Constitution against such legislation. This is a matter to which we are bound to attach considerable weight in view of the fact that many Articles of the Constitution prohibit the Oireachtas, in plain and unambiguous language, from passing certain laws therein specified.
Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.
The material portion of the Preamble is that which declares that, in enacting the Constitution, the People of Ireland are
“Seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations.”
In dealing with the Preamble counsel laid great stress on the words “dignity and freedom of the individual” and focussed their attention upon those words exclusively. This does not seem to us to be the correct method of arriving at the true meaning and effect of the Preamble. The main object aimed at is the promotion of the common good, which, it is contemplated, will assure the dignity and freedom of the individual, the attainment of social order, the restoration of the unity of our country and the establishment of concord with other nations. Apart from the grammatical construction of the words of the Preamble, it seems to us difficult to understand how the dignity and freedom of the individual member of a State can be attained unless social
order is maintained in that State. There is nothing in this clause of the Preamble which could be invoked to necessitate the sacrifice of the common good in the interests of the freedom of the individual.
Article 34 deals with the establishment of Courts and the administration of justice therein, and the particular Clause on which reliance was placed, is Clause 1, which provides that justice shall be administered in public Courts established by law by Judges appointed in the manner provided by the Constitution. In order to rely upon this Article it would be necessary to establish that the Minister, in exercising the powers conferred upon him by the Bill, is administering justice within the meaning of the Article. This proposition seems to us to be wholly unsustainable.
Article 38 deals with the trial of offences and provides, in clause 1, that no person shall be tried on any criminal charge save in due course of law. The remaining clauses of the Article prescribe the methods in which criminal charges may be tried and specify various Courts for this purpose. The argument necessarily proceeds upon the basis that the Minister, in performing his functions under the Bill, is engaged in the trial of a criminal charge and that the detention contemplated by the Bill is punishment in respect of a criminal offence.
In the opinion of this Court neither s. 4 nor s. 5 of the Bill creates or purports to create a criminal offence. The only essential preliminary to the exercise by a 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 is not a matter that could be questioned in any Court. Having formed such opinions, the Minister is entitled to make an order for detention; but this Court is of opinion that the detention is not in the nature of punishment, but is a precautionary measure taken for the purpose of preserving the public peace and order and the security of the State. This distinction has been recognised in several cases.
In the case of The King (Zadig) v. Halliday (1), a question arose as to the power of the Home Secretary in England to make an order for detention under the Defence of the Realm (Consolidation) Regulations, 1914, made under s. 1, sub-s. 1, of the Defence of the Realm Consolidation Act, 1914. In the course of his speech in that case Lord Finlay L.C. says at p. 265:
“On the face of it the statute authorises in this sub-section provisions of two kindsfor prevention and for punishment. Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.”
In a later passage he says, at p. 269:
“One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. It is to this that regulation 14B is directed. The measure is not punitive but precautionary. It was strongly urged that no such restraint should be imposed except as the result of a judicial inquiry, and, indeed, counsel for the appellant went so far as to contend that no regulation could be made forbidding access to the seashore by suspected persons. It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a Court of law. No crime is charged. The question is whether there is ground for suspicion that a particular person may be disposed to help the enemy. The duty of deciding this question is by the order thrown upon the Secretary of State, and an advisory Committee, presided over by a Judge of the High Court, is provided to bring before him any grounds for thinking that the order may properly be revoked or varied.”
Lord Atkinson, in the course of his speech in the same case, says at p. 273:
“Preventive justice, as it is styled, which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done, is no new thing in the laws of England.”
Again:
“One of the most effective ways of preventing a man from communicating with the enemy or doing things such as are mentioned in s. 1, sub-s. 1 (a) and (c), of the statute is to imprison or intern him. In that as in almost every case where preventive justice is put in force some suffering and inconvenience may be caused to the suspected person. That is inevitable. But the suffering is, under this statute, inflicted for something much more important than his liberty or convenience, namely, for securing the public safety and defence of the realm.”
The principle underlying the decision in that case was acted upon and applied in this country in the case of The King (O’Connell) v. Military Governor of Hare Park Camp (1).In that case the applicant was detained in custody under an order of an Executive Minister made under s. 4 of the Public Safety (Powers of Arrest and Detention) Temporary Act, 1924, which authorised such Minister to make such an order where he was of opinion that the public safety would be endangered by such person being set at liberty. It was contended that the section was repugnant to the Constitution of the Irish Free State, which, in our opinion, was, in this respect, substantially to the same effect as the Constitution of Ireland. That contention was rejected and an application for habeas corpus was refused.
Article 40 deals with personal rights. Clause 3 thereof provides that the State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen, and to protect from unjust attack and, in case of injustice done, to vindicate, the life, person, good name, and property rights of every citizen.
It is alleged that the provisions of the Bill are repugnant to the guarantee contained in this clause. It seems to us impossible to accede to this argument. The guarantee in the clause is not in respect of any particular citizen, or class of citizens, but extends to all the citizens of the State, and the duty of determining the extent to which the rights of any particular citizen, or class of citizens, can properly be harmonised with the rights of the citizens as a whole seems to us to be a matter which is peculiarly within the province of the Oireachtas, and any attempt by this Court to control the Oireachtas in the exercise of this function, would, in our opinion, be a usurpation of its authority.
The People, by the Constitution, have provided for the setting-up of three great Departments of Statethe Oireachtas, the Executive, and the Judiciaryand it is essential for the harmonious working of the machinery of State that each Department should confine itself to its own constitutional functions. If the Oireachtas enacts a law within the scope of its legal and constitutional powers, it is for the Courts to construe and apply such law. Any criticism by the Courts of the manner in which the Oireachtas exercises the discretion and powers vested in it would be as much open to objection as would any suggestion, in either House of the Oireachtas, that a decision of a Court, within the scope of its authority, was not in accordance with law.

Clause 4 of the said Article provides that no citizen shall be deprived of his liberty save in accordance with law, and makes provision for the release of any person who is being detained otherwise than in accordance with law.
The phrase “in accordance with law” is used in several Articles of the Constitution, and we are of opinion that it means in accordance with the law as it exists at the time when the particular Article is invoked and sought to be applied. In this Article, it means the law as it exists at the time when the legality of the-detention arises for determination. A person in custody is detained in accordance with law if he is detained in accordance with the provisions of a statute duly passed by the Oireachtas; subject always to the qualification that such provisions are not repugnant to the Constitution or to any provision thereof.
Accordingly, in our opinion, this Article cannot be relied upon for the purpose of establishing the proposition that the Bill is repugnant to the Constitutionsuch repugnancy must be established by reference to some other provision of the Constitution.
It was contended that the effect of the Bill is to take away the right to habeas corpus. There is no foundation for this contention. Notwithstanding the provisions of the Bill, a person who is detained is entitled under Article 40, clause 4, par. 2, to have the legality of his detention enquired into and to obtain an order for his release, unless the Court or Judge, enquiring into the matter, is satisfied that all the provisions of the Bill have been complied with and that the detention is legal.
No doubt the Bill, when enacted, will have the effect of altering the law and, to that extent, will justify a detention which might otherwise be unlawful. This, however, cannot rightly be described as taking away the right to habeas corpus.
The arguments based upon ss. 5 and 7 of the Bill can be disposed of very shortly. If, as this Court holds, the arrest and detention contemplated by s. 4 are lawful, it is obviously necessary that provision should be made as to the place and mode of detention and other matters incidental thereto. Sects. 5 and 7 seem to us to be framed with this object in view. The purposes for which regulations may be made are set out in s. 7 and, in framing the regulations, the Minister is bound by the terms of the section. There is nothing in the section to suggest that any regulation made thereunder could contravene any Article of the Constitution. It is not for us to assume that the Minister will exceed the powers conferred upon him by the section and, should he do so, it seems to us that the regulations would, to that extent, be ultra vires and invalid.
It was contended before us that the Bill is unnecessary and oppressive. This is not a matter for our consideration and we express no opinion upon it. The only question before us is whether it is within the power of the Oireachtas, consistently with the Constitution, to enact such legislation. In the opinion of this Court it is, and we shall advise the President accordingly.

The Emergency Powers Bill, 1976

[1977] IR 159

 

O’Higgins C.J.
15th October, 1976

The Facts
On the 1st September, 1976, Dail Eireann resolved in the following terms: “That Dail Eireann hereby resolves, pursuant to subsection 3 of section 3 of Article 28 of the Constitution . . . that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State.” On the same day Seanad Eireann passed a resolution in identical terms.
On the 16th September, 1976, the Emergency Powers Bill, 1976, was passed by both Houses of the Oireachtas. On the 24th September, 1976, the President of Ireland (pursuant to the provisions24 of Article 26 of the Constitution and after consultation with the Council of State) referred the bill to this Court for a decision on the question whether the bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof. Pursuant to the provisions of Article 26, section 2, of the Constitution, this Court has considered this question and has heard arguments by the Attorney General and his counsel and by counsel assigned by this Court.
The Law
The Emergency Powers Bill, 1976, is a bill entitled: “An Act for the purpose of securing the public safety and the preservation of the State in time of an armed conflict in respect of which each of the Houses of the Oireachtas has adopted a resolution on the first day of September, 1976, pursuant to subsection 3 of section 3 of Article 28 of the Constitution.”
The latter sub-section of the Constitution reads as follows:
“Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this sub-section ‘time of war’ includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and ‘time of war or armed rebellion’ includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.”
This sub-section incorporates the First and Second Amendments of the Constitution. Sub-section 3, as originally enacted by the people, made no reference to an armed conflict and the sub-section ended with the words “in time of war or armed rebellion in pursuance of any such law.” The First Amendment incorporated the reference to an armed conflict, and the portion of the sub-section as it now stands beginning with the words “In this sub-section”down to the words “the vital interests of the State” represents the total effect of the First Amendment. The rest of the sub-section as it now stands represents the whole25 of the Second Amendment of the Constitution.
A resolution of both Houses of the Oireachtas is not a condition precedent to the enactment by the Oireachtas of any law which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion. It is, however, a condition precedent to the enactment of any such law in a time when there is taking place an armed conflict in which the State is not a participant that such law must be expressed to be for the purpose of securing the public safety and the preservation of the State in time of such armed conflict. This bill is expressed to be for that purpose. The resolutions26 upon which the bill is grounded are not part of the bill (although they are referred to in its long title and in its s. 3) and are not and could not be the subject of a reference to this Court under Article 26. Each resolution states that there is an armed conflict taking place in Northern Ireland and that a national emergency arising out of that armed conflict exists affecting the vital interests of the State. The only recital of fact contained in the bill is that each of the Houses of the Oireachtas on the 1st September, 1976, adopted a resolution pursuant to sub-s. 3 of s. 3 of Article 28 in respect of an armed conflict. The only resolutions in respect of an armed conflict adopted by the Houses of the Oireachtas on the 1st September, 1976, were those referring to an armed conflict in Northern Ireland and the bill must, therefore, be confined to the armed conflict described in the resolutions.
As to the right of the President to refer the bill to this Court, it is clear that he has power to do so notwithstanding that the bill is one passed by both Houses of the Oireachtas by reference to the provisions of sub-s. 3 of s. 3 of Article 28. The power of the President to do so has not been questioned in these proceedings.
The Submissions
It has been submitted by counsel assigned by the Court that it should be decided that the provisions of the bill are repugnant to the Constitution, or to some of the provisions thereof, and that the President should be so advised by this Court. If the Court were to do so, the President would be obliged by Article 26, s. 3, sub-s. 1, of the Constitution to decline to sign the bill, and so it would not become law.
Essentially, the submissions made by counsel so assigned have been to the effect that the provisions27 of s. 2 of the bill are repugnant to the provisions28 of Article 40 of the Constitution, and that the long title of the bill is not in accordance with the provisions of Article 28, s. 3, sub-s. 3, of the Constitution.
The Attorney General asked the Court to deal with this reference on the basis that s. 2 of the bill would be repugnant if it were not saved by Article 28, s. 3, sub-s. 3, of the Constitution. As the matter has not been discussed further, the Court does not find it necessary to express an opinion on the question whether s. 2 of the bill or any part of it would be repugnant if it were not saved by Article 28, s. 3, sub-s. 3, of the Constitution.
The extent to which the bill, if signed by the President and given constitutional validity as law by Article 28, s. 3, sub-s. 3, would encroach on personal rights which would otherwise be constitutionally guaranteed was canvassed in argument. In this context it is important to point out that when a law is saved from invalidity by Article 28, s. 3, sub-s. 3, the prohibition against invoking the Constitution in reference to it is only if the invocation is for the purpose of invalidating it. For every other purpose the Constitution may be invoked. Thus, a person detained under s. 2 of the bill may not only question the legality of his detention if there has been non-compliance with the express requirements of s. 2, but may also rely on provisions of the Constitution for the purpose of construing that section and of testing the legality of what has been done in purported operation of it. A statutory provision of this nature which makes such inroads upon the liberty of the person must be strictly construed. Any arrest sought to be justified by the section must be in strict conformity with it. No such arrest may be justified by importing into the section incidents or characteristics of an arrest which are not expressly or by necessary implication authorised by the section.
While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the Court, to state that the section is not to be read as an abnegation of the arrested person’s rights (constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the section were used in breach of such rights the High Court might grant an order for release under the provisions for habeas corpus contained in the Constitution. It is not necessary for the Court to attempt to give an exhaustive list of the matters which would render a detention under the section illegal or unconstitutional.
It has been submitted by counsel assigned by the Court that the immunity granted to the type of legislation contemplated by Article 28, s. 3, sub-s. 3, of the Constitution against invalidation by any provision of the Constitution applies only to a law which becomes so on being signed by the President. It is urged that Article 28, s. 3, sub-s. 3, is not to be taken into account by this Court when considering the provisions of a bill referred to it under the provisions of Article 26. If Article 26 stood alone and could be construed without reference to Article 28, s. 3, sub-s. 3, of the Constitution, that submission would be correct and this Court might have to advise the President that the bill would be repugnant to the Constitution because of the provisions of s. 2 of the bill.

Every law enacted by the Oireachtas must initially have been a bill passed by both Houses of the Oireachtas and is, therefore, capable of being referred to this Court by the Presidentunless it is a bill of the kind expressly excluded by Article 26 from reference. The bills which may be referred include bills intended to be enactments in conformity with the provisions of Article 28, s. 3, sub-s. 3, of the Constitution. If such a bill is not referred to this Court it must be signed by the President. Thereupon, it becomes a law enacted by the Oireachtas and has the immunity conferred upon it by the sub-section in question. The Constitution, therefore, contemplates that laws which would otherwise be invalid may be validly enacted provided they conform with the requirements of Article 28, s. 3, sub-s. 3, of the Constitution.
When a bill is validly referred to the Court under Article 26, the test of its repugnancy or invalidity is what its force and effect will be if and when it becomes law. Thus, in regard to a bill which is to take effect as law under Article 28, s. 3, sub-s. 3, if it is shown to the Court that the preliminary and procedural requirements for the passing of the bill by both Houses of the Oireachtas have been complied with, it is ipso facto, because of the exemption granted by Article 28, s. 3, sub-s. 3, incapable of being struck down on the ground of repugnancy to the Constitution or to any provision thereof.
The next submission was that the long title, which is an essential part of the billbecause it is relied on as expressing the bill’s purposefails to conform with the requirements of Article 28, s. 3, sub-s. 3, in that the purpose of the bill is not expressed to be for the preservation of the State”in time of war.” This submission is based upon the provisions of the First Amendment of the Constitution, as incorporated in sub-s. 3, which provides that “time of war” includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that arising out of such armed conflict a national emergency exists affecting the vital interests of the State. The argument is that, even though it is the existence of an armed conflict that is relied upon, nonetheless the expression “time of war” must be used because the latter includes the former.
As against this, the Attorney General has submitted that in the sub-section, particularly as amended by the Second Amendment of the Constitution, it is indicated that a time of war, an armed rebellion, and an armed conflict in which the State is not a participant are to be regarded as separate and distinct events. He relies on the fact that the expression,”termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion,” occurs in the latter portion of the sub-section and is substantially repeated in the words “by such war, armed conflict, or armed rebellion has ceased to exist” which follow a line or two later. Furthermore, he pointed out that the sub-section draws other distinctions between the three types of categories mentioned. Resolutions of both Houses of the Oireachtas are necessary to declare that a national emergency exists which affects the vital interests of the State when the occasion is one of an armed conflict in which the State is not a participant and such armed conflict is actually taking place. This is to be contrasted with what may be done in”time of war or armed rebellion” when such resolutions are not required. The existence of a “time of war or armed rebellion” is sufficient to bring into operation any law which has been enacted by the Oireachtas pursuant to that sub-section and which is expressed to be for the purpose of securing the public safety and the preservation of the State. If such a law had been enacted before the occurrence of such event, it is brought into operation by the occurrence of that event. The Attorney General submitted that the inclusion in “time of war” of “armed conflict” indicates the type of legislation which may be enacted under the sub-section. He submitted that different formalities are required for the enactment of legislation for an armed conflict in which the State is not a participant, as distinct from legislation for a time of war or armed rebellion. In the view of this Court this submission is well founded.
The Court is satisfied that the purpose of the bill, as expressed by reference to a time of an armed conflict instead of by reference to a time of war, complies with the requirements of Article 28, s. 3, sub-s. 3, while at the same time restricting the area of operation of the bill, in that the bill would not be applicable to a “time of war or armed rebellion,” as distinct from “armed conflict,” because it is not expressed to be for that purpose.
The last matter to be considered is the question of the existence of the state of affairs necessary to permit the application of Article 28, s. 3, sub-s. 3, of the Constitution. As pointed out earlier in this judgment, these are the matters or statements of fact which are contained in the resolutions of the two Houses of the Oireachtas. Submissions were made as to the extent, if any, to which the Court could examine the correctness of these statements. It was submitted by the Attorney General that there is a presumption that the facts stated in the resolutions are correct. The Court accepts the existence of that presumption and the corollary that the presumption should be acted upon unless and until it is displaced. In this case it has not been displaced.

The Attorney General submitted the general proposition that when the resolutions referred to in Article 28, s. 3, sub-s. 3, have been passed this Court has no jurisdiction to review the contents of them. When the consequences of this submission were pointed out to him he withdrew it as he said it did not arise in this case. The Court expressly reserves for future consideration the question whether the Courts have jurisdiction to review such resolutions.
The Court has come to the conclusion that the different objections raised to the constitutionality of this bill fail. To summarise, the exemption provided by Article 28, s. 3, sub-s. 3, of the Constitution is the decisive factor in the consideration of any question of repugnancy. The bill’s stated expression of its purpose accords with the requirements of the sub-section; and there is a presumption which has not been displaced that the facts stated in the resolutions are correct. For these reasons the Court decides that the bill is not repugnant in any respect to the Constitution or any provisions thereof and will so advise the President.
The Court would like to express its appreciation of the assistance given to it by counsel and solicitors engaged in these proceedings.

The State (McDonagh) v. Frawley

[1978] IR 131

O’Higgins C.J.
24th July 1978

On the 18th May, 1977, the prosecutor was sentenced by the Central Criminal Court to two years imprisonment for receiving stolen goods. He was committed to Mountjoy Prison to serve a sentence. While in prison he complained of a back-ache and further complained that he was not receiving adequate medical attention. This complaint having been made to the High Court, Mr. Justice D’Arcy, pursuant to the provisions of Article 40 of the Constitution, made an order for an enquiry as to the legality of the prosecutor’s imprisonment having regard to his allegation that his constitutional rights to bodily integrity were being interfered with by reason of a failure to provide adequate medical attention. Cause was shown by the production of the warrant of the Central Criminal Court authorising the imprisonment of the prosecutor, and by an affidavit of Dr. Davis, the prison doctor, who deposed to the medical treatment which was provided for the prosecutor.
Mr. Justice D’Arcy refused to accept the production of the lawful warrant as cause. In his report to this Court the learned judge says: “I refused to accept the production of the lawful warrant as cause. In my opinion, by reason of the decision of the Supreme Court in The Emergency Powers Bill, 1976 3 the production of a warrant alone does not suffice. It merely proves that a prosecutor was taken into lawful custody and is still in lawful custody, but it does not offer any assistance as to whether or not a prisoner’s other constitutional rights may or may not be infringed.”However, on perusal of Dr. Davis’s affidavit, he was satisfied that the prosecutor had received and was receiving adequate medical attention. Accordingly, he allowed the second ground as cause shown and discharged the conditional order.
The prosecutor appealed to this Court against that decision and the Court has already dismissed the appeal. However, it was felt that the appeal might be availed of by this Court to clear up some misunderstandings which obviously exist in matters of this kind. For that reason, this matter is listed to-day so that reasons for the dismissal of the appeal may be stated.
The prosecutor is a convicted person and, as such, he was serving a lawful sentence which had been passed upon him by the court at which he was convicted. As a convicted person under sentence, he is and was deprived of his liberty in accordance with law. In addition, he became subject to the prison rules made by the Minister for Justice in accordance with ss. 12 and 13 of the General Prisons (Ireland) Act, 1877. These rules provide for the prosecutor’s treatment while in prison, including the provision of medical attention. While so held as a prisoner pursuant to a lawful warrant, many of the prosecutor’s normal constitutional rights are abrogated or suspended. He must accept prison discipline and accommodate himself to the reasonable organisation of prison life as laid down in the prison regulations. He cannot demand the medical treatment he thinks he should get, but he will be given such medical treatment as the medical officer of the prison thinks appropriate. In my view, as long as he is treated as a prisoner under sentence and in accordance with the regulations, he cannot be heard to complain.
Quite different from the status and rights of such a convicted person are those of a person arrested and detained under the Emergency Powers Act, 1976. That Act under s. 2 (which, having operated for a period of 12 months, has now expired) gave a power of arrest and detention for a specified period or periods and for reasons which were also specified. A person so arrested was not a convicted person and, of course, had the right to be either released or charged. The power of arrest and detention was given by that Act under the special provisions of Article 28, s. 3, sub-s. 3, of the Constitution. As the Act of 1976 suspended some constitutional rights, the exercise of the powers conferred required to be watched with zealous care and particular concern by the Courts. If it appeared that those powers were used for a purpose which was not permitted, or in defiance of rights which were not suspended or ought not to be affected, then the Courts would interfere and say that the detention was not in accordance with the Act.
As was stated by the Court in The Emergency Powers Bill, 1976 3 at p. 173 of the report: “Any arrest sought to be justified by the section must be in strict conformity with it. No such arrest may be justified by importing into the section incidents or characteristics of an arrest which are not expressly or by necessary implication authorised by the section. While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the Court, to state that the section is not to be read as an abnegation of the arrested person’s rights (constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the section were used in breach of such rights the High Court might grant an order for release under the provisions for habeas corpus contained in the Constitution.” I think it is sufficient to say that these words refer only to the arrest and detention of an unconvicted person under the statutory powers mentioned.
The position of a person duly convicted and properly sentenced is quite different. Where a person such as the prosecutor is detained for execution of sentence after conviction on indictment, he is prima facie detained in accordance with law and, as was held in the High Court by Maguire P. at p. 435 of the report of The State (Cannon) v. Kavanagh 4 , it would require “most exceptional circumstances for this Court to grant even a conditional order ofhabeas corpus to a prisoner so convicted.” To the same effect, see the judgments of Andrews L.C.J. and Black and Brown JJ. in Re Beggs5 and the judgment of the (English) Court of Criminal Appeal (Goddard L.C.J., Parker and Donovan JJ.) in Re Featherstone6 at p. 147 of the report, where the exceptional circumstances justifying the release by habeas corpus of such a person are said to be exemplified by a case where the term of sentence has expired. In a case such as the present, the production of the warrant by the governor of the prison will normally be a sufficient justification of the detention.
The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that a citizen may not be deprived of his liberty save “in accordance with law” does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded. For example, if the judge at a murder trial in which the accused was convicted were to impose a sentence of imprisonment for life, instead of penal servitude for life as required by the statute1, the resulting detention would be imposed technically without jurisdiction. But the prisoner would not be released under Article 40, s. 4, for it could not be said that the detention was not “in accordance with the law” in the sense indicated. In such a case the court would leave the matter of sentence to be rectified by the Court of Criminal Appeal; or it could remit the case to the court of trial for the imposition of the correct sentence: see the unanimous opinion expressed in the House of Lords in Athanassiadis v. Government of Greece 7 at p. 289 of the report which shows that a mere technical defect is not a good ground for release on habeas corpus.
The confinement of orders of release under Article 40, s. 4, to cases where the detention is not “in accordance with the law” in the sense I have indicated means that applications under Article 40, s. 4, are not suitable for the judicial investigation of complaints as to conviction, sentence or conditions of detention which fall short of that requirement. These fall to be investigated, where necessary, under other forms of proceedings. But in cases where it has not been shown to the satisfaction of the court that the detention is “in accordance with the law” in the sense indicated, the release of the detained person must be ordered and, notwithstanding judicial dicta to the contrary, the order of release may not be coupled with an order of rearrest. The protection of personal liberty, which Article 40, s. 4, is intended to ensure, would be hollow and ineffectual if the order of release was not unqualified and unconditional.
The prosecutor is being detained under a valid warrant in execution of a sentence imposed by the Central Criminal Court. That is sufficient to dispose of his application to the High Court. His complaint that he is not being given the medical treatment of his choice for a back-ache could not possibly be a good ground for ordering his release, particularly when his complaint is not supported by any medical opinion. For the foregoing reasons, I considered that the prosecutor’s appeal should be dismissed.

Henchy J.
I agree.

Griffin J.
I agree.

Kenny J.
I agree.

Parke J.
I agree.

 

 

In re Philip Clarke.

[1950] IR 235
Maguire C.J.

 

The Judgment of the Court will be road by Mr. Justice O’Byrne.

O’BYRNE J. :”
Sect. 165 of the Mental Treatment Act, 1945, provides:”
“165.”(1) Where a member of the Garda Siochana is of opinion that it is necessary that a person believed to be of unsound mind should, for the public safety or the safety of the person himself, be placed forthwith under care and control, he may take the person into custody and remove him to a Garda Siochana station.
(2) Where a member of the Garda Siochana removes a person under this section, he shall apply forthwith in the prescribed form to the authorised medical officer for a recommendation (in this Act also referred to as a recommendation for reception) for the reception and detention of the person as a person of unsound mind in the district mental hospital for the mental hospital district in which the person ordinarily resides.
(3) Where application is made under this section to the authorised medical officer for a recommendation for reception, such officer shall forthwith examine the person to whom the application relates and shall thereupon either”
(a) if he is satisfied that it is proper to make the recommendation, make it in the prescribed form, or
(b) in any other case, refuse the application.

(4) Where a recommendation for reception is made under this section in relation to any person, the appropriate assistance officer shall be regarded as the applicant for the recommendation.”
On the 6th July, 1949, William Melly, a member of the Garda Síochána, in purported pursuance of sub-s. 1 of the foregoing section, took the appellant into custody and removed him to a Garda Siochana Station. In his affidavit, sworn in this matter, William Melly says that, when he took the appellant into custody, he believed that he was of unsound mind and that it was necessary to place him under control for his own safety.
On the same day, William Melly brought the appellant before Dr. John F. Falvey, who is admittedly the authorised medical officer, within the meaning of the section, and Dr. Falvey, having examined the appellant, made a recommendation for his reception and detention in Grangegorman Mental Hospital, which is the district mental hospital for the mental hospital district in which the appellant ordinarily resides.
Later on the same day the appellant was brought before Dr. Katherine Keys, an assistant medical officer of the said mental hospital, acting on behalf of Dr. John Dunne, the Medical Superintendent of the said Hospital. Dr. Keys examined the appellant and, being satisfied that he was a person of unsound mind and a proper person to be taken charge of and detained, made an order that he be received and detained in the said district mental hospital as a person of unsound mind. The appellant was received into, and is still detained in, the said mental hospital in pursuance of the said Order.
The first ground of appeal is that Part XIV of the said Act and, in particular, s. 165 thereof, is repugnant to the Constitution.
In support of this ground of appeal, counsel for the appellant relied, in particular, on the following provisions of the Constitution, viz.:”
1. The Preamble in so far as it states that the People, seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, do adopt and enact the Constitution;
2. Article 40, 3, 1, which provides that the State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen;
3. Article 40, 3, 2, which provides that the State shall, in particular, by its laws protect as best it may from unjust
attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.
Counsel also relied upon Article 40, 4, 2, which provides that, on an application such as this, the Court shall order the release of the person detained, unless satisfied that he is being detained in accordance with the law.
It was not suggested that s. 165 contravened any express provision of the Constitution; but counsel contended that a provision, such as that contained in the section, is, impliedly, prohibited by and is repugnant to the provisions of the Constitution, to which I have referred.
It has already been decided by this Court that where a particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, such repugnancy must be clearly established. (See In re Art. 26 of the Constitution and The Offences Against. The State (Amendment) Bill, 1940 (1) and Buckley and Others (Sinn Fein) v. Attorney General and Another (2).)
A passage, at p. 481, in the judgment delivered by Sullivan C.J. in In re Art. 26 of the Constitution and The Offences Against The State (Amendment) Bill, 1940 (1) was relied upon as laying down the proposition that the Court could not consider whether a guarantee contained in the Constitution had been infringed by an Act of the Oireachtas. Such an interpretation of the passage would be inconsistent with the principle already referred to as having been laid down in that judgment. The passage must be read as a rule of prudence in the consideration of the question of express or implied repugnance, especially in matters such as those involved in the said Bill.
It was conceded that the Constitution does not prohibit all interference, by legislation, with the right of the individual to personal liberty. The main argument, on behalf of the appellant, against the validity of the section was based upon the absence of any judicial intervention or determination between the arrest of the person alleged to be of unsound mind and his subsequent detention under a reception order.
The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was, no doubt, present to the minds of the draughtsmen when it was proclaimed in Art. 40, 1, of the Constitution that, though all citizens, as human beings, are to be held equal
before the law, the State may, nevertheless, in its enactments, have due regard to differences of capacity, physical and moral, and of social function. We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others.
The section is carefully drafted so as to ensure that the person, alleged to be of unsound mind, shall be brought before, and examined by, responsible medical officers with the least possible delay. This seems to us to satisfy every reasonable requirement, and we have not been satisfied, and do not consider that the Constitution requires, that there should be a judicial inquiry or determination before such a person can be placed and detained in a mental hospital.
The section cannot, in our opinion, be construed as an attack upon the personal rights of the citizen. On the contrary it seems to us to be designed for the protection of the citizen and for the promotion of the common good.
In our opinion the section in question is not repugnant to either the letter or spirit of the Constitution and, accordingly, we are of opinion that this ground of appeal fails.
It is further contended that the statutory procedure for the reception of patients in a mental hospital was not complied with in this case and that, accordingly, the appellant is not being detained in accordance with law and should be released under Art. 40, 4, 2, of the Constitution.
Sect. 165, sub-s. 1, provides that where a member of the Garda Siochana is of opinion that a person, believed to be of unsound mind, should, for the public safety or the safety of the person himself, be placed forthwith under care and control, he may take the person into custody and remove him to a Garda Siochana station. This sub-section was clearly complied with. It appears from the affidavit of the said William Melly that, on the 6th July, 1949, the said William Melly believed that the appellant was of unsound mind and that it was necessary for his own safety that he should be placed under control. He, thereupon, took the appellant into custody and removed him to the Bridewell Garda Station.
Sub-sect. 2 of the said section provides that, where a member of the Garda Siochana removes a person under the section, he shall apply forthwith in the prescribed form to the authorised medical officer for a recommendation for the reception and detention of the person as a person of unsound mind in the district mental hospital for the mental hospital district in which the person ordinarily resides. It is at this step that it is alleged there was a departure from the legal procedure.
The Act itself does not prescribe the form of application, but s. 8 provides that the Minister for Local Government and Public Health may make regulations in relation to any matter or thing referred to in the Act as prescribed or to be prescribed or as being the subject of regulations.
In pursuance of that power, the Minister made Regulations on the 3rd April, 1946 (Statutory Rules and Orders, 1946, No. 202). The Regulations prescribe the form of application under s. 165 by a member of the Garda Siochana for a Recommendation for Reception (Form No. 6) and Statement of Particulars to accompany application under ss. 162, 165, 166 or 177 of the Act (Form No. 8). These sections contemplate applications by a wide variety of persons with varying degrees of knowledge regarding the patient and his history, and it is strange that one stereotyped form of particulars should have been prescribed for all such cases. That, however, is the form in which the Regulations have been made.
The application of William Melly was accompanied by a Statement of Particulars on Form No. 8 and this Statement of Particulars was duly signed by William Melly. The form requires particulars in respect of twenty-two different matters; but, in the form as signed by William Melly, the particulars required at Nos. 9 to 16 inclusive, 18, 19 and 22, were not furnished. The particulars so omitted deal mainly with the mental history of the patient and were, presumably, omitted because the applicant was not in a position to supply the particulars. No question has been raised as to the validity of the Order made by the Minister and, accordingly, the Order must be read and construed as though it were contained in and formed part of the Statute.
The question then arises whether (to use language which is sanctioned by authority) the furnishing of these particulars is a peremptory and obligatory provision of the Act, so that failure to supply them invalidates the entire proceedings, or whether it is merely directory. On this question very little assistance is to be obtained from authority, except as to the manner in which the question should be approached.
In Liverpool Borough Bank v. Turner (1) Lord Campbell L.C. says, at p. 380:”
“No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of
Justice to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed.”
In Howard v. Bodington (1) Lord Penzance, having cited the foregoing passage from the judgment of Lord Campbell, proceeds as follows, at p. 211:”
“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”
This Act, as shown in the title, was primarily intended to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom. Coming to the particular part of the Act with which this case is concerned, it appears that it was also intended for the safety of the public generally.
Sub-sect. 1 of s. 165 empowers a member of the Garda Síochána, in certain circumstances, which occurred in this case, to take the patient into custody and remove him to a Garda Siochana station. Having done so, the guard was required, forthwith, to apply to the authorised medical officer for a recommendation order. Under the Regulations made by the Minister, the particulars mentioned in Form No. 8 should accompany this application. A glance at the form will show the nature of the particulars which the guard was required to furnish. I take a few at random:”
“9. Whether this is the first attack of mental disorder. 10. Age on first attack of mental disorder. 14. Probable cause of present attack. 15. Whether person is subject to epilepsy. 16. Whether person is suicidal. 19. Particulars of income received by or property belonging to person.”
The patient may be a complete stranger to the guard who takes him into custody; but, nevertheless, the guard is required by the section to make the application for the recommendation order forthwith. The particulars are, as it seems to us, mainly intended for the assistance of the medical officer whose duty it is to examine the patient when the latter is brought before him. Suppose the guard is unable, as is likely to happen in many cases, to furnish some of the required particulars, what is to happen? He cannot retain the patient in custody whilst he is making inquiries, because the section requires that he shall forthwith apply for the recommendation order. Is he then to release him, to the possible danger of the patient himself and the public? This seems to be involved in the argument put before us on behalf of the appellant and must be so if the furnishing of the required particulars is an obligatory provision of the Act. Having regard to the scope and object of the Act, we cannot think that this was the intention of the Legislature. The furnishing of the particulars is undoubtedly a requirement of the Act, but, in our opinion, this requirement is directory only and not obligatory.
For these reasons, we are of opinion that this appeal fails, and should be dismissed.

 

The State (C.) v. Frawley

1976] IR 365

Finlay P.
13th April, 1976

This is an application by the prosecutor for an order of release under Article 40 of the Constitution; pursuant to s. 4, sub-s. 2, of that Article the Supreme Court, on appeal from my decision in the High Court, directed an enquiry into his detention. The facts on which the prosecutor relies are as follows. He is at present detained in Mountjoy Prison on foot of a warrant issued by the Dublin Circuit Criminal Court in respect of a number of counts of breaking and entering and robbery with violence committing him to concurrent sentences of imprisonment of the maximum length of two years commencing on the 28th February, 1975. It is anticipated that on foot of that warrant he would, if not previously released by order of the Court, be discharged from prison in the month of July, 1976. No challenge is made to the validity of this conviction or of the warrant issued pursuant to it. The respondent has supplied the prosecutor with a prison record of his detention on this and on previous committals; its accuracy is accepted and, by agreement, it has been admitted in evidence.
The prosecutor did not give oral evidence before me but Dr. Brian McCaffrey, the clinical director of psychiatry for the Eastern Health Board who examined the prosecutor on his behalf; Dr. Smith, the senior psychiatrist to the Central Mental Hospital, Dundrum; Dr. Davies, the medical officer of Mountjoy Prison and Dr. Daly, the director of the Central Mental Hospital, Dundrum, were also called as witnesses on behalf of the prosecutor. No oral evidence was adduced on behalf of the respondent who showed cause by relying on the conviction and warrant. From this oral evidence, from the previous prison record to which I have referred, and from the prosecutor’s own original complaint I find the facts of this matter to be as follows. The prosecutor is now diagnosed, in the words of Dr. McCaffrey, as suffering from a personality trait disturbance of a sociopathic type and, in the words of Dr. Daly, from a disorder of personality which is sociopathic in nature. Between these two diagnoses there is not, I am satisfied, any substantial conflict. He is not, on the agreed medical evidence, either now or consistently a person who is insane, nor does he suffer from a psychotic disease. He does not come within the ordinary definition of a psychopath. No evidence was adduced before me, nor was any suggestion made on behalf of the respondent, that the prosecutor was feigning any part of this condition. Some minor conflict appears in the medical evidence as to whether the prosecutor has been at any relevant time even temporarily insane or of unsound mind but I have come to the conclusion on the evidence that, at some periods at least, the disturbance of his personality has been so acute that it rendered him for some time of legally unsound mind.
If the history of his childhood given by the prosecutor to Dr. McCaffrey is substantially accurate (and I have no reason to believe otherwise), then the origin of this condition is almost certainly an upbringing largely in institutions after a broken marriage of his parents. Having regard to the prosecutor’s innate personality and intelligence, this upbringing was almost unbelievably cruel. Whatever its origin, the prosecutor’s condition manifests itself in an aggressive and continuous hostility to authority and to the features of society which represent authority. To this is added a higher than average intelligence and an unusually athletic physique and capacity. In the pursuit of this hostility the prosecutor is endowed with a physical courage tantamount to recklessness. As a result, during the periods of his imprisonment (which have now continued with only short interruptions since 1969), he has displayed three main activities.
First, he has repeatedly climbed over the walls and on to the roofs of prisons and hospitals with an agility and skill which is practically unique. Secondly, he has repeatedly swallowed metal objects such as bed springs and handles of spoons and has inserted wire and sharp objects into his body not with a suicidal intent, in the opinion of the doctors, but rather for the reckless purpose of making his continued detention impossible. Of course, this tendency as well as the prosecutor’s climbing activities have seriously endangered his life and health. Thirdly, he militantly resists almost all forms of discipline and repeatedly, either on his own or with others, seeks by various methods to escape from detention.
During the entire period of his imprisonment, including the currency of his present detention, he has been certified as insane on a number of occasions and has been transferred to the Central Mental Hospital, Dundrum, usually for short periods of a month or less: he has then been certified as not insane and has been re-transferred to prison. For most of the time he has been in prison he has been kept in solitary confinement with the interruption of varying but short periods of exercise and association with other prisoners. Whilst out of solitary confinement he is usually kept handcuffed for some period. He is deprived of much of the ordinary equipment of a prisoner such as cutlery, a bed with springs and a transistor radio. The purpose and, I am satisfied, the only purpose of these very severe restrictions is to prevent his escape on the one hand and to prevent him swallowing metal and other objects on the other. He has, for example, at one time swallowed batteries and component parts of a radio.
During the relatively short periods of his detention in the Central Mental Hospital, Dundrum, he has received treatment which consisted only of sedation and custodial care. His hostility to that institution and its staff is apparently even greater than his hostility to prison; and this, apart from any other consideration, has prevented any effective therapy.
There is no doubt that to either the prison or hospital authorities he presents an extraordinarily difficult custodial problem; it is difficult to protect him from himself and to detain him, and he is entirely disruptive of the entire organisation of the prison and hospital. He has a particularly bad effect on the other patients confined to the hospital in Dundrum and, to the extent of his permitted association, on fellow prisoners. The requirements of his physical health originate, almost exclusively, from his self-inflicted injuries and wounds; and I am satisfied that those requirements have been adequately met during his detention largely by repeated visits to general hospitals for surgical treatment. Due to the number of operations he has undergone for the removal of foreign bodies from his stomach, he now represents a marked risk if he has to undergo further abdominal surgery.
It is the view of Dr. McCaffrey, which is not disputed by the other medical witnesses or challenged by the respondent, that the only long-term psychiatric treatment which would have a reasonable chance of success in the prosecutor’s case would be his involuntary detention in a specialised psychiatric unit which was capable of keeping him in custody while being specially equipped to provide outlets for his physical capacity and aggressiveness in harmless activities such as gymnastics and games, and which would provide educational and intellectual interests and companionship which he would find amenable, and specially-trained staff who would acquire his co-operation and confidence.
On the evidence it is agreed that no such institution exists in Ireland and that neither in the Central Mental Hospital, Dundrum, nor in any other psychiatric hospital do facilities for such treatment exist. The number of persons suffering from a similar though not identical condition in Ireland at present was estimated by Dr. McCaffrey at about six, and by Dr. Daly at from six to twenty. Dr. Daly expressed the opinion that, disregarding the finance which might be involved, such a unit could physically be installed in Dundrum and, provided appropriate trained staff could be obtained, put into operation. The building of it would involve not only complete segregation from the other patients now detained there, who are almost all psychotic in one form or another, but also the provision of physical barriers to escape which would have to be far beyond the barriers provided in that institution at the present time. Even if the provision of such a unit were immediately started, it would be a number of years before it could be operative.
On the medical evidence, the prosecutor has shown some improvement in his condition in the last six or seven months, though he remains a genuinely sick person. This improvement is considered as probably arising from his expected release next July and, possibly, it is also derived from the fact that he is reaching an age of maturity at which a spontaneous improvement of his condition might occur.
On these facts, Mr. MacEntee, on behalf of the prosecutor, submitted a number of written submissions which he subsequently developed in an able argument. On the facts as I find them, the submissions which remain relevant may be summarised into two broad contentions.
The first contention is that the right to bodily integrity is an unspecified constitutional right and that, in the context of a detained prisoner who is unable to obtain his own medical attention, it imposes upon the Executive an obligation to protect his health as far as is reasonably possible in all the circumstances. Further, counsel contends that the prosecutor’s present detention and its circumstances fail to secure to him that right and that, therefore, it is unconstitutional and unlawful. The second broad contention is that, even if the European Convention on Human Rights is not part of the substantive law of the State1, the freedom from torture and from inhuman and degrading treatment and punishment which is guaranteed by the Convention is, nevertheless, an unenumerated constitutional right; and it is submitted that the present detention of the prosecutor denies that freedom and, accordingly, is unconstitutional and unlawful.
In support of these contentions, counsel referred to the following cases, which I have considered: Ryan v. The Attorney General 2; In re Haughey 3; O’Brien v. Keogh 4: Byrne v. Ireland 5; and McGee v. The Attorney General. 6
Having regard to these submissions and to my findings of fact, I have come to the following conclusions. The right of bodily integrity as an unspecified constitutional right is clearly established by the decision of the Supreme Court in Ryan v. The Attorney General 7 by which I am bound and which I accept. Even though it was there laid down in the context of a challenge to the constitutional validity of a statute of the Oireachtas which, it was alleged, forced an individual to use water containing an additive hazardous to health, I see no reason why the principle should not also operate to prevent an act or omission of the Executive which, without justification, would expose the health of a person to risk or danger.
When the Executive, in exercise of what I take to be its constitutional right and duty, imprisons an individual in pursuance of a lawful warrant of a court, then it seems to me to be a logical extension of the principle laid down in Ryan’s Case 7 that it may not, without justification or necessity, expose the health of that person to risk or danger. To state, as Mr. MacEntee submits, that the Executive has a duty to protect the health of persons held in custody as well as is reasonably possible in all the circumstances of the case seems to me no more than to state in a positive manner the negative proposition which I have above accepted. Therefore, I am satisfied that such a proposition is sound in law.
The vital question, however, is whether the Executive has failed in that duty in this case on the facts as I find them. I am satisfied that the medical requirements of the prosecutor, as distinct from his psychiatric needs, have at all material times been adequately met by the respondent. The prosecutor has been regularly visited and examined by the medical officer of Mountjoy Prison and, when specialised surgical treatment has been required, that treatment has been afforded in the Mater Hospital by a senior consultant surgeon. In my view, the restraints of which the prosecutor most vehemently complains have been designed and implemented to eliminate or diminish, so far as is reasonably practical, the possibility of the prosecutor harming himself by swallowing foreign bodies, by self injury or by injury arising from his climbing and escaping activities.
The real failure in this duty alleged against the respondent is that he has failed to provide the special type of institution and treatment which was recommended by Dr. McCaffrey as a long-term treatment and that, to an extent, imprisonment in any other form is directly harmful to the progress of the prosecutor’s condition of personality disturbance. A failure on the part of the Executive to provide for the prosecutor treatment of a very special kind in an institution which does not exist in any part of the State does not, in my view, constitute a failure to protect the health of the prosecutor as well as possible in all the circumstances of the case. If one were to accept in full all the assumptions upon which Dr. McCaffrey’s opinion is based, it could be shown that there was a failure of an assumed absolute duty to provide the best medical treatment irrespective of the circumstances. I am satisfied, as a matter of law, that no such absolute duty exists.
It has been urged on behalf of the prosecutor that the respondent cannot be excused from his duty to provide this very specialised type of psychiatric treatment on the grounds of the non-availability of the appropriate facilities since that non-availability flows from an unconstitutional failure on the part of his superiors to provide this specialised type of institution with appropriate staff. Even though the number of persons suffering from a condition even generally akin to that of the prosecutor may be as low as six, not all of whom are in custody, a description of the progress and consequence of the prosecutor’s disturbance and the nature of his life in prison would make the availability of appropriate long-term treatment most desirable as a matter of compassion.
However, it is not the function of the Court to recommend to the Executive what is desirable or to fix the priorities of its health and welfare policy. The function of the Court is confined to identifying and, if necessary, enforcing the legal and constitutional duties of the Executive. I cannot conscientiously hold, no matter where my sympathy might lie, that an obligation to provide for prisoners in general the best medical treatment in all the circumstances can be construed as including a duty to build, equip and staff the very specialised unit which Dr. McCaffrey has recommended and which might be appropriate to the needs of the prosecutor and four or five other persons. Therefore, I am satisfied that the first main contention of the prosecutor fails.
With regard to the second contention, the position in law seems to me to be that the existence of constitutional rights which are not specified in Article 40 of the Constitution8 was first declared by Mr. Justice Kenny in the High Court in Ryan v. The Attorney General 9 and was subsequently confirmed by O’Dalaigh C.J. in the Supreme Court in that case. At p. 313 of the report Mr. Justice Kenny states: “It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at allthe right to free movement within the State and the right to marry are examples of this.” If the unspecified personal rights guaranteed by Article 40 follow in part or in whole from the Christian and democratic nature of the State, it is surely beyond argument that they include freedom from torture, and from inhuman or degrading treatment and punishment. Such a conclusion would appear to me to be inescapable even if there had never been a European Convention on Human Rights, or if Ireland had never been a party to it.
The question which has given me the most trouble in this case is whether the conditions under which the prosecutor has been and is detained in prison constitute a failure to protect him from torture or from inhuman or degrading treatment and punishmentthus making his detention unlawful. Notwithstanding the harshness of the privations which he has undergone and, to a lesser extent, continues to suffer, I have finally come to the conclusion that those conditions do not constitute such failure.
I am quite satisfied that the purpose and intention of the restrictions and privations surrounding the prosecutor’s detention are neither punitive nor malicious. The strongest confirmation of this would appear to be that the restrictions have been somewhat relaxed since the improvement in his condition noted by Dr. McCaffrey in the last six or seven months. There was no evidence before me of any privation or hardship which does not appear related to one or other of the main purposes of keeping the prosecutor from escaping and preventing him from injuring himself. In seeking to achieve these two purposes, the respondent is discharging two duties which appear to me to be constitutional in origin.
I must construe the entire concept of torture, inhuman and degrading treatment and punishment as being not only evil in its consequences but evil in its purpose as well. It is most commonly inspired by revenge. retaliation, the creation of fear or improper interrogation. It is to me inconceivable to associate it with the necessary discharge of a duty to prevent self-injury or self-destruction.
Therefore, I am satisfied that the respondent has justified the detention of the prosecutor and, therefore, I must refuse the prosecutor’s application for an order releasing him pursuant to Article 40, s. 4. sub-s. 2, of the Constitution.

Dermot O’Connor v Director of Public Prosecutions

1985 No. 9972

High Court

21 March 1986

[1987] I.L.R.M. 723
(Lardner J)

: This is an application by the plaintiff Dermot O’Connor for an interlocutory injunction restraining the defendant, the Director of Public Prosecutions (the DPP) from proceeding with a prosecution entitled the Director of Public Prosecutions v Dermot O’Connor on an indictment charging the plaintiff with receiving a large number of items (over 100) of jewellery contrary to s.31 (1) of the Larceny Act 1916. The application is made on the ground that for the DPP to proceed with this prosecution would in the circumstances of this case invlove an injustice to the plaintiff and a breach of his constitutional right to have fair procedures applied at his trial. In making this application counsel for the plaintiff has relied on certain facts and matters which are not really in controversy.

The plaintiff was originally charged with the offences in question on 26 October 1983. The charges relate to dates between 21 September 1980 and 3 April 1982. On the advice of counsel the plaintiff caused the principal witness in the Book of Evidence, Raymond Roche, to be examined on deposition. It appears from this deposition that this witness was able to identify only a few of over 140 items of jewellery alleged to have been stolen. Despite this the DPP appeared determined to proceed with the trial in respect of all the items of jewellery the subject of the original charge.

The plaintiff says he was advised that this trial in respect of a large number of items of jewellery in respect of which no evidence of theft could be adduced was likely to be prejudicial to the trial of the items in respect of which there was some evidence and further that a trial in respect of all the items of jewellery would very materially increase the cost of his defence.

In these circumstances, before the trial and by letter dated 25 January 1985, the plaintiff’s solicitors wrote to the DPP inquiring whether in view of the deficiencies of evidence to which I have referred, he proposed to run the trial on the same basis as that set out in the Book of Evidence and pointing out the increased cost and expense to which it would put the plaintiff. It seems to me that this letter should have led the DPP to reconsider the matter. In the event no reply to this letter was received and the trial proceeded on 5 February 1985 in the Circuit Court before a judge and jury. On the second day of the trial the Circuit Court judge following a cross examination of Raymond Roche, the witness for the prosecution, discharged the jury on the ground that the inclusion in the indictment of a large number of items of jewellery in relation to which there was no evidence of theft was prejudicial to the trial of the remaining allegations.

Evidence on affidavit disclosed that by this time the plaintiff had been forced to close the business in South Ann Street in which he had earned his living for about 29 years, and that his financial resources were exhausted by the costs of the defence leading to the abortive trial.

Following upon the abortive trial in February 1985 a fresh indictment was prepared against the plaintiff in April 1985 in which the matters alleged against him were substantially reduced as compared with the original indictment. And subsequently by a notice dated 20 July 1985 served on the plaintiff at or about the beginning of November 1985, the plaintiff was notified that two witnesses viz Pearl Coleman (who is not a witness in the Book of Evidence) and the witness Raymond Roche porposed to give additional evidence. It is said and not denied that the additional evidence is substantially directed to amending the gaps in the prosecution case which had become apparent in the course of the original examination on deposition and at the trial in February 1985.

The present application is to restrain the DPP from proceeding with the trial on this second indictment which was scheduled to begin on 4 December 1985 until restrained by interim injunction by Barr J shortly before that date.

In making the present application counsel for the plaintiff rely upon the following matters:—

(1) that before the first trial the DPP was requested not to proceed with charges in respect of which there appeared to be no or no sufficient evidence on the ground that it would be unjust and would prejudice a fair trial and put the plaintiff to substantial additional costs and that he ignored this request:

(2) that at the trial the judge discharged the jury on substantially the grounds which the DPP before the trial had been asked to consider;

(3) that this trial by reason partly of the extent of the matters charged in the indictment greatly increased the cost of the defence; that the plaintiff had thereby lost his business and exhausted his financial resources;

(4) that at the examination on deposition of the witness Raymond Roche and at the abortive trial the plaintiff had disclosed his defence;

(5) that the notice of further evidence served in November 1985 was directed to making good the deficiencies in the prosecution case which the previous examination on deposition and the abortive trial had disclosed and that the plaintiff would be deprived of any opportunity of examining either Pearl Coleman or Raymond Roche on deposition.

 

Relying upon these matters counsel invoked the statement of law given by Finlay P (then President of the High Court) in the State (O’Callaghan v OhUadhaigh [1977] IR 42 and O’Higgins CJ in the State (Healy) v Donoghue [1976] IR 325.

I accept without reservation that the plaintiff is as a matter of constitutional right entitled to have all proceedings brought against him conducted in accordance with fair procedures and with reasonable expedition. At the same time I am mindful of the concomitant interest of the State in an effective criminal process; though this requirement of effective processes for prosecuting crime must in my view be understood as being effective processes which are compatible with fair procedures. In the present case I am told that the plaintiff is a man of 60 years of age who has for several months past suffered from serious ill-health. It is now alnost two and a half years since he was first charged.

It seems to me that the fact that the first trial was abortive was very probably due to the failure by the DPP to reconsider the state of the prosecution case when he received the letter of 25 January 1985 from the plaintiff’s solicitors or to a want of sufficient care originally in the preparation of that case for trial.

Then it seems to me there is the delay of ten months between the abortive trial on 5 February 1985 and the scheduled second trial in December 1985 and the circumstance that the notice of additional evidence dated 20 July 1985 was not served on the plaintiff until November 1985. These circumstances disclose a degree of dilatoriness which is seriously unsatisfactory. The only mitigating factor which counsel for the DPP had recourse to was the state of the Circuit Court criminal lists in Dublin.

In determining whether the right to fair procedures would be infringed by a further trial of the plaintiff, my decision is clearly one which is influenced by and indeed determined by the view I take of the particular circumstances of this case. In many cases fairness or its converse unfairness will be a matter of degree. It is so in this case. In my judgment by reason of the several matters and circumstances relied upon by counsel for the plaintiff, to which I have referred, taken together with the factors of delay and other matters mentioned, a further trial of the plaintiff on the indictment which has been prepared, when considered in the context of the previous proceedings would involve an infringement of his right to fair procedures. It may be that one or two of these circumstances or matters by themselves would not amount to a lack of fair procedures. My judgment is that all, taken in combination, do involve such a lack and would involve injustice to the plaintiff. There should be an interlocutory injunction until the trial of this action.

L’Henryenat v Ireland

Jean Claude L’Henryenat v Ireland, The Minister for Fisheries and Forestry and The Attorney General

1979 No. 4807

1982 Nos. 178 & 233 P

High Court

Supreme Court

26 May 1982

1 July 1983

[1984] I.L.R.M. 249
(Carroll J)

(O’Higgins CJ, Walsh, Griffin, McCarthy and O’Hanlon JJ)

 

CARROLL J delivered her judgment on 26 May 1982 saying: On 23 March 1979 a French fishing boat called ‘Guemima’ number LO 422255Y owned by Mr Gerard Evenas and with the plaintiff as master, was arrested by the Irish Naval Vessel LE Emer under the command of Lieutenant Commander John Jordan at a point approximately 0.7 miles from the most westerly point of the shore of the Dingle Peninsula in the County of Kerry between the parallels of 52.07 degrees north and 10.27 degrees west approximately. The boat and people on board were escorted to the Port of Galway where it arrived at approximately 4.00 p.m. At 6.30 p.m. on 24 March 1979 an application was made on behalf of the Attorney General to District Justice Sheerin sitting at a special sitting of the District Court at Galway pursuant to s. 233A of the Fisheries (Consolidation) Act, 1959 (as inserted by s. 12 of the Fisheries (Amendment) Act, 1978) for an order that the boat and all persons thereon be detained at the Port of Galway by a sea fisheries protection officer and his assistants for a period not exceeding 48 hours from the time of the making of the said order. The application was granted on the evidence of Lieutenant Commander John Jordan that he was satisfied that contravention of the provisions of Chapter II and/or III of Part XIII of the Fisheries (Consolidation) Act, 1959 by a person on board the said boat, was suspected. The District Justice made the order until 6.30 p.m. on the evening of Monday 26 March 1979.

On 26 March 1979 at approximately 5.30 p.m. Sergeant Patrick Guerin arrested the plaintiff at Galway docks and brought him to the Garda Station at Eglinton Street, Galway. He there charged the plaintiff with three offences the particulars whereof are set out in detail in the statement of claim.

They can be summarised as follows:

That when the boat ‘Guemima’ of which he was the master, was within the exclusive fishery limits of the State, a person then on board fished, or alternatively attempted to fish, both contrary to s. 222(A) of the Fisheries (Consolidation) Act, 1959 (as inserted by s. 7 of the Fisheries (Amendment) Act, 1978) and contrary to s. 232 of the Fisheries (Consolidation) Act, 1959 and further that he as master unlawfully carried on board nets with an unauthorised mesh.

Before 6.30 p.m. on the same evening, 26 March 1979, the plaintiff was brought before the District Justice at a special sitting of the District Court in Galway. The solicitor for the Attorney General applied for a further detention order for a period of one week for the boat to be detained at the Port of Galway until the proceedings arising from the charges made against the plaintiff had been adjudicated upon by the District Justice under s. 8 or s. 13 of the Criminal Procedure Act, 1967. It was submitted to the District Justice that he had a discretion pursuant to s. 235 of the Fisheries (Consolidation) Act, 1959 (as inserted by s. 14 of the Fisheries (Amendment) Act, 1978) that the boat and the plaintiff could be released if satisfactory security as provided for by s. 235 of the Fisheries (Consolidation) Act, 1959 (as inserted by s. 14 of the Fisheries (Amendment) Act, 1978) was given and that in this particular case the said security amounted to £124,000 calculated as follows:

£100,000: being the maximum fine provided for upon conviction of either one of the first two charges made against the plaintiff pursuant to s. 2(3) of the Fisheries (Amendment) Act, 1978.

£100,000: being the maximum fine provided for upon conviction of the third charge as provided for by s. 2(1) of the Fisheries (Amendment) Act, 1978.

£14,000: being the value estimated by the Attorney General of the fish and gear upon the said fishing boat.

TOTAL: £124,000.

The District Justice made an order on 26 March 1979 that the boat and the plaintiff be detained at the Port of Galway for the period of one week until 2.30 p.m. on Monday 2 April 1979 (pursuant to s. 234(1) of the Fisheries as inserted by s. 13 of the Fisheries (Amendment) Act, 1978). He further ordered (pursuant to s. 235(2) (a) of the Fisheries (Consolidation) Act, 1959 as inserted by s. 14 of the Fisheries (Amendment) Act, 1978) that the boat and the plaintiff be released if cash or sufficient bond security in the sum of £124,000 be forthcoming for payment of the maximum fine or fine and the estimated value of any forfeitures which might be ordered in the event of the conviction of the plaintiff in respect of the offences or any of them or if he failed to attend before court when required in relation to the offences. He granted bail to the plaintiff in the sum of £100.00 on his personal recognisance (pursuant to s. 235(b) of the Fisheries (Consolidation) Act 1959, (as inserted by s. 14 of the Fisheries (Amendment) Act 1978), conditioned that he attend the District Court sitting at Galway on 2 April 1979 at 2.30 p.m. or any adjournment thereof. He further ordered that the documents required to be served, be served on the solicitor for the plaintiff.

Neither the plaintiff nor the owner Mr Evenas were successful in obtaining either cash or sufficient bond or security in the sum of £124,000.

On 28 March 1979, McWilliam J granted a conditional order of certiorari quashing the said orders unless cause was shown to the contrary. The matter was returnable before the court on 4 April 1979.

On 2 April 1979, which was the date to which the remand was made, the plaintiff was charged in the District Court with the same three offences and District Justice Sheerin made the following Order by Consent, namely:

THAT

(1) The further hearing of the said complaint is adjourned to Galway District Court on 7 May 1979 at 2.30 p.m.

(2) The said defendant Jean Claude L’Henryenat is remanded to appear at the said sitting of the said court in his own recognisance in the sum of £100.00.

(3) Pursuant to s. 234 of the Fisheries (Consolidation) Act, 1959 as inserted by s. 13 of the Fisheries (Amendment) Act, 1978 the said foreign sea fishing boat ‘Guemima’ LO 422255Y of which the said Jean Claude L’Henryenat is the master, be detained at the Port of Galway by the sea fisheries protection officer Sergeant Patrick Guerin and his assistants until the said 7 May 1979 at 2.30 p.m.

(4) Pursuant to rule 5 of the District Court (Criminal Procedure Act 1967) Rules 1967 the time for service of the book of evidence on the defendant is extended to 7 May 1979.

On 4 April 1979 an application was made to McWilliam J for an order making absolute the conditional order of certiorari dated 30 March 1979 and for an absolute order of certiorari to quash the District Court order made on 2 April 1979. The Attorney General had filed notice by way of cause shown on 3 April 1979 against the conditional order.

McWilliam J disallowed the cause shown against making absolute the conditional order of certiorari and he made it absolute. He also made an absolute order of certiorari in the first instance to quash the District Court order made on 2 April 1979. He further ordered the release of the plaintiff and the fishing boat and ordered the recognisance entered into by the plaintiff to be vacated and that he retain the proceeds of sale of the cargo of fish on board the boat.

 

Following the making of the order of the High Court on 4 April 1979 at approximately 8.20 p.m., Sergeant Patrick Guerin handed back the ship’s papers to the plaintiff. He then repossessed the ship’s papers and rearrested the plaintiff. The plaintiff was brought to the Garda Station at Eglinton Street, Galway, and was charged with the same three offences as before together with an additional offence of entering within the exclusive fishery limits of the State (contrary to s. 221 of the Fisheries (Consolidation) Act, 1959 as amended by s. 5 of the Fisheries (Amendment) Act, 1978).

At a special sitting of the District Court in Galway commencing at approximately 10.00 p.m. on the night of 4 April 1979 District Justice Sheerin at approximately 1.00 a.m. on the morning of 5 April 1979 made an order in the following terms:

THAT

1. Pursuant to s. 234(1) of the Fisheries (Consolidation) Act, 1959 as inserted by s. 13 of the Fisheries (Amendment) Act, 1978 the said foreign sea fishing boat ‘Guemima’ LO 422255Y of which the said Jean Claude L’Henryenat is the master be detained at the Port of Galway by the Sea Fishery Protection Officer Sgt. Patrick Guerin and his assistants until the proceedings have been adjudicated upon by a District Justice under s. 8 or 13 of the Criminal Procedure Act, 1967 or under s. 2(2) of the Fisheries (Amendment) Act, 1978 or otherwise on the exercise of his summary jurisdiction.

2. Pursuant to s. 234(2) of the Fisheries (Consolidation) Act, 1959 as inserted by s. 13 of the Fisheries (Amendment) Act, 1978 the said master, the said Jean Claude L’Henryenat, be released on his entering into a recognisance himself in the sum of £100, (one hundred pounds) conditioned that he will appear at the sitting of the District Court at Galway on 7 May 1979 at 2.30 p.m. and at any adjournment thereof until his presence is no longer required.

3. Pursuant to s. 235(2) (a) of the Fisheries (Consolidation) Act, 1959 as inserted by s. 14 of the Fisheries (Amendment) Act, 1978 the said foreign sea fishing boat ‘Guemima’ LO 422255Y be released by the said sea fisheries protection officer Sergeant Patrick Guerin and his assistants if cash or sufficient surety (in the form of a bond, under seal, drawn on a bank licensed by the Central Bank to carry on the business of banking in the Republic of Ireland) in the sum of £134,000 (one hundred and thirty four thousand pounds) be forthcoming for payment, in the event of conviction of the defendant in respect of the said offence or any of them or in the event of his failure to attend before any court when such attendance is required for the purpose of any preliminary examination under the Criminal Procedure Act, 1967 in relation to the offences or any of them, or any trials, appeals, or other proceedings in relation to the offences, or any of them, which sum is sufficient to provide for payment of the maximum fine or fine which may be ordered to be paid in respect of the offences or any of them, and the estimated value of any forfeitures which may be ordered, to be made upon the final determination of any trials, appeals, or other proceedings in relation to the offences or any of them.

4. Pursuant to s. 19(1) of the Fisheries (Amendment) Act, 1978 as the defendant ordinarily resides outside the jurisdiction all documents, including an indictment, required by law to be served on the defendant in connection with or for the purpose of the charges or of any proceedings arising out of or connected with the charges, may, in lieu of being served on the defendant be served on Mr Patrick J. Daly, solicitor, of Messrs Claffey and Daly, Solicitors, 35 William Street, Galway, solicitor for the defendant, the said Patrick J. Daly being a person who is ordinarily resident in the State.

5. Pursuant to rule 5 of the District Court (Criminal Procedure Act 1967) Rules 1967 (SI No. 181 of 1967) the time for service of the book of evidence on the defendant be extended to 7 May 1979.

On 5 April 1979 a conditional order of certiorari was made by McWilliam J to send the order made on 5 April 1979 before the court for the purpose of being quashed, unless cause was shown to the contrary, the matter to be returnable on 23 April 1979 for mention.

He further ordered that the plaintiff be admitted to bail on his entering into a recognisance in the sum of £100.00 without surety. Counsel on behalf of the plaintiff undertaking to the court that he would return to Ireland with the sea fishing boat ‘Guemima’ when required to do so, it was ordered that the boat be released on the plaintiff providing cash or sufficient security in the sum of £25,000 and placing the proceeds of sale of the cargo of fish on board on joint deposit receipt in the names of Patrick Daly and the Chief State Solicitor or in lieu thereof provide cash or sufficient security in the additional sum of £9,000, together making a total sum of £34,000.

Notice showing cause against the conditional order of certiorari made on 5 April 1979, was filed on behalf of District Justice Sheerin on 24 April 1979. On the same date notice for particulars was served by the State requiring the plaintiff to state the precise grounds upon which it was alleged that the Fisheries (Amendment) Act, 1978 is repugnant to the Constitution. On the same date a statement was filed by the plaintiff setting out the grounds.

Following the making of the order of certiorari on 5 April 1979 the plaintiff lodged the sum of £34,000 in cash with the Chief State Solicitor, and the boat departed from the Port of Galway twelve days after it had been arrested. On 20 July 1979 a bond for the sum of £34,000 by the Allied Irish Banks was substituted for the cash deposit.

On 18 July 1979 application was made to the High Court to have the conditional order of certiorari granted on 5 April 1979 made absolute, notwithstanding the cause shown. Butler J continued the conditional order of certiorari and adjourned the same generally with liberty to re-enter so that the plaintiff could pursue his claim in relation to the Constitution in an action commenced by plenary summons.

The plenary summon was issued on 31 July 1979 resulting in the present hearing.

The plaintiff did not attend the hearing of the action but the owner of the fishing boat, Mr Evenas, gave evidence and also Mr Daly, the solicitor of the plaintiff. Their evidence can be summarised as follows:

Mr Gerard Evenas the owner of the boat ‘Guemima’ gave evidence that it was purchased in 1978 for 1,500,000 FF. A new engine was installed at the cost of 500,000 FF (the cost of the new engine being 330,000 FF). The boat was financed by a seven year term loan. The repayments were 25,000 FF per month, the interest rate being 11%.

Prior to the boat being detained in March 1979, he was earning sufficient to meet his outgoings and in his opinion, if he still had the boat it would have been operating profitably.

The annual turnover of the boat in 1979 was 1,800,000 FF. The salary or earnings which he as owner drew was between 70,000 and 80,000 FF per annum. The proceeds of sale of fish were divided 57% to the owner and 43% to the crew.

The security demanded for the release of the boat was £124,000 initially. He made efforts to raise this type of finance with various institutions but was not successful. When the sum involved was reduced to £34,000 he entered into an arrangement with Allied Irish Banks (AIB) whereby AIB gave an undertaking to pay the Attorney General the amount of the fines, the value of the gear and catch forfeited and costs incurred, not exceeding £34,000 if the plaintiff was convicted and further, if the plaintiff failed to attend court, the undertaking was to pay £34,000.

In order to obtain this bond he had to transfer 400,000 FF to AIB which he borrowed from credit maritime by way of short term loan at an interest rate of 18%, the interest on the loan being compounded.

He had to use money from the earnings of his other boat in order to pay the interest, so he decided to sell. In October 1980 he sold the boat ‘Guemima’ for 1,500,000 FF, which represented a loss to him. By then he had paid 160,000 FF in interest to credit maritime in connection with releasing the boat.

He also said that a skipper of a French boat charged with a fishing offence by a foreign court would be disciplined by maritime authorities in France if he failed to attend his trial.

The plaintiff left his employment in April or May of 1979 and is now working on another boat but Mr Evenas sees him fairly often.

The catch on board the boat when detained was valued by the Irish Authorities at £9,000. It was ultimately sold for £85 (for fertilizer). 13 tonnes at 6 cents per kilo realised 740.00 FF when the boat returned to France. Even though the High Court granted liberty to sell the fish in Galway it proved impossible to do so. Mr Daly, solicitor for the plaintiff, said he could not arrange for the sale of the fish. There were two problems. They would have run into trouble in unloading off the docks and if the fish was to be sold it had to be done through the local co-op and this could not be arranged.

Mr Daly also gave evidence that in his opinion if a case came before the District Court in the end of March or the beginning of April, the earliest trial in the Circuit Court from then would be sometime in July.

The question of whether the plaintiff would consent to be tried in the District Court had not arisen as Mr Daly said they heard the Attorney General was not consenting to a summary trial.

The sections of the Fisheries (Amendment) Act 1978, (‘the 1978 Act’) which are impugned are s. 2(2) and ss. 12, 13 and 14.

The plaintiff submitted that it was open to him to argue the constitutionality of the Act as it affected the constitutional rights of Mr Evenas the owner of the boat. This was strongly contested by the Attorney General on the grounds that the plaintiff had no locus standi to do so.

The question of locus standi was dealt with by the Supreme Court in a case of Cahill v Sutton [1980] IR 269. Henchy J states:

To allow one litigant to present and argue what is essentially another person’s case is not as a general rule conducive to the administration of justice (at p. 283).

But he goes on to state that the rule being a rule of practice, must be subject to exceptions when the justice of the case requires. He says:

… the stated rule of personal standing may be waived or relaxed if in the particular circumstances of a case, the court finds there are weighty countervailing considerations justifying a departure from the rule (at p. 285).

I find no such weighty countervailing considerations to justify a departure from the rule in this case. There is no question of the owner of the boat not being in a position to assert adequately or in time his constitutional rights. Accordingly I hold that the constitutional rights of the plaintiff alone are the relevant rights to be considered.

An application to join Mr Evenas as a plaintiff was made when the plaintiff was replying to the defendants’ argument. I refused the application on the grounds that the case which the Attorney General came to meet was the case on behalf of the plaintiff suing alone. The issues to be met if Mr Evenas was joined as a co-plaintiff would be substantially different.

It is claimed on behalf of the plaintiff that because s. 2(2) of the 1978 Act provides for the compulsory forfeiture on conviction for a summary offence as specified in column 4 of table II to s. 2 therefore it takes it out of the category of minor offences. The sub-section is therefore invalid having regard to Article 38(2) of the Constitution which limits the jurisdiction of District Justices to the trial of minor offences.

The plaintiff relied on the decision of McWilliam J in the case of Kostan v Ireland and the Attorney General High Court 1977 No. 1809 P (McWilliam J) 10 February 1978.

I fully accept the reasoning of McWilliam J in Kostan’s case but I do not consider that he decided that if there is compulsory forfeiture, the offence is automatically not a minor offence. What he held was that forfeiture involving property valued at £100,000 was not minor.

It is settled law that in order to judge whether an offence is a minor offence or not, one must look at the punishment (see Conroy v The Attorney General & Another [1965] IR 411).

Before proceeding to try any person summarily under s. 2(2) of the 1978 Act, a District Justice must form the opinion that the facts proved against the defendant constitute a minor offence fit to be charged summarily.

He has therefore two jurisdictions:

(1) to decide if in his opinion the offence is minor;
(2) to decide the case summarily.
He can only exercise the second jurisdiction if he has formed the necessary opinion.

It must be assumed that a District Justice will have regard to the value of property liable to be forfeited in the event of a conviction, in deciding whether the offence is minor.

If the value of the fish and fishing gear in the case of a prosecution under ss. 223 and 223(A) or the net under s. 226 or a device under s. 227 is such that forfeiture would impose a penalty or punishment which is not minor, then it must be assumed that the District Justice will decline jurisdiction.

A similar point arose in the case of Clune & Others v D J Clifford [1981] ILRM 17. Gannon J says:

There is and must be a presumption that a District Justice will apply himself to his functions and duties in accordance with his oath of office and within the limits of his jurisdiction with justice and fairness to the best of his ability (at p. 21).

In my opinion s. 2(2) cannot be impugned on the grounds that compulsory forfeiture per se on conviction takes the offence out of the category of minor offences.

The actual offences with which the plaintiff is charged are four in number, one under s. 221, two under s. 222(A) and one under s. 226.

There is no compulsory forfeiture in respect of an offence under s. 221, if it is tried summarily.

The District Justice would have no jurisdiction to try the offences under s. 222(A). He only has a possible jurisdiction in respect of offences referred to in s. 2(1) i.e. specified in table I, but offences under s. 222(A) are not specified in table I. They are specified in table III.

A District Justice would have jurisdiction to try summarily the offence charged under s. 226 which does have compulsory forfeiture of nets on conviction. But he would have to decline jurisdiction if the value of the nets liable to be forfeited made the punishment not a minor one, and, as I have already said, one must assume that the District Justice would decline jurisdiction in such a case.

The plaintiff also challenges s. 12, 13 and 14 of the 1978 Act with particular emphasis on s. 14 in so far as it amends s. 235(2) of the Fisheries (Consolidation) Act, 1959 (‘the 1959 Act’).

The plaintiff claims that the combined effect of ss. 234 and 235 of the 1959 Act (as amended by ss. 13 and 14 of the 1978 Act) is to make it mandatory on the District Justice to fix bail at an unreasonable and excessive sum, without regard to the means of the plaintiff, and without enquiry as to the likelihood of his being present at the trial of the offence with which he is charged, and this is so whether he can be released independently of the boat or not. He says this is contrary to the provisions of Article 38(1) which guarantees as part of the right to be tried in due course of law, a right to be released on bail reasonably proportionate to the plaintiff’s means, fixed after due enquiry as to means, the likelihood of his attending court and all the circumstances of the case, as laid down in the case of the The People (Attorney General) v O’Callaghan [1966] IR 501.

The plaintiff did not attack the right of the District Justice to exercise his discretion to detain the vessel. He attacked the mandatory criteria which must be appleid by the District Justice in fixing security where he does exercise his discretion to release the boat. If the District Justice decides to release the boat, the security covers not only possible fines, costs and forfeiture but also the attendance of the plaintiff.

The plaintiff further claims that the security required under s. 2 (a) is more onerous than bail. Bail is merely a promise to pay in the event of default, but the security provided for in s. 14 requires that money should be put down, or a bond provided, which is the equivalent. The plaintiff claims that the necessity to provide security is punishment in advance of conviction. This is contrary to Article 38(1) which guarantees trial in due course of law. It is also contrary to the concept of fairness and fair procedures mentioned in the case of the State (Healy) v Donoghue [1976] IR 325 and is also contrary to the presumption that an accused person is innocent until proved guilty. This is so even though under s. 232 of the 1959 Act a master charged with offences under Chapter II of Part XIII, if not the actual offender, is deemed to be guilty, subject to defences provided in that section.

The plaintiff claims that the detention of the vessle, because of difficulty in raising the security after the amount had been fixed, amounts to a deprivation of the right to earn a livelihood contrary to Article 40(3). It was submitted that the plaintiff must be at a loss because of loss suffered by the owner Mr Evenas.

There was a further submission that the State has no power to detain persons temporarily on board a boat at a port. The provision relating to temporary detention is contained in s. 1 of the Prisons Act, 1956 and a boat at a port is not within the ambit of that section, neither does it come within the exceptions for the Curragh, Arbour Hill or St. Patrick’s Institution.

The State submitted as an initial point that the plaintiff’s claim ought to be dismissed for his non-attendance on the grounds that where a plaintiff challenges an Act of the Oireachtas and alleges his personal rights guaranteed by the Constitution are infringed, he should attend in person so as to satisfy the court that his complaints are real and that he is still alive.

I reject this argument. The plaintiff was represented by a solicitor and counsel who presented his case for him on the facts admitted and on the evidence adduced. He is entitled to have his case decided on that evidence. I do not know of any legal principle which requires the physical presence of a plaintiff to be necessary in prosecuting a case even when it concerns his constitutional rights. It must be assumed that when solicitor and counsel appear they do so on the express instructions of their client.

S. 12 of the 1978 Act inserts a new s. 233(A) in the 1959 Act. It provides that where a sea fisheries protection officer has detained a boat and persons on board at a port under s. 233 then he shall as soon as may be apply to a District Justice to authorise the continued detention of the boat and persons for 48 hours. The District Justice may make such order if he is satisfied the officer suspects there has been a contravention of a provision of Chapter II or III of Part XIII of the 1959 Act. On the expiration of the 48 hour period the boat and the persons detained on board must be released unless further orders have been made under s. 234 before the expiration of the period.

There is no provision for the release on bail of the persons detained or for the release of the boat during this 48 hour period. It is unaffected by s. 235(2) inserted by s. 14 of the 1978 Act. No arguments were directed as to its unconstitutionality. The only point made in connection with this section concerns temporary detention in a place other than as provided by the Prisons Act, , which I will deal with later.

S. 13 of the 1978 Act amends s. 234 of the 1959 Act by inserting a new section. Sub-s. (1) provides that where a sea fisheries protection officer has detained the boat and persons on board at a port under his powers under s. 233, he shall as soon as may be, bring the master and any other person against whom procedings have been or are about to be instituted for an offence under Chapters II or III before a District Justice. The District Justice may, if satisfied as to the institution of proceedings, order the detention of the boat at a specified port and of each person to be charged (including the master) until the proceedings have been adjudicated upon by a District Justice as therein set out. Under sub-s. (2) the District Justice may also release on bail any person against whom proceedings have been instituted before they have been adjudicated on by a District Justice.

S. 14 of the 1978 Act amends s. 235 of the 1959 Act by substituting a new section.

S. 235(1) deals with further orders for the detention of the boat in the event of appeals generally or on a person being sent forward for trial at a court other than the District Justice or on an application by the Attorney General where a person is discharged by a District Justice.

S. 235(2) provides as follows:

(a) Where in respect of an offence or offences under a provision of Chapter II or III of this part, an order is made under s. 234 sub-s. (1) or sub-s. (1) of this section in relation to a sea fishing boat, a District Justice may at his discretion, by order directed to a sea fisheries protection officer, require the boat to be released if security, which in the opinion of the justice is satisfactory is given for payment, in the event of conviction of the defendant in respect of the offence or offences or in the event of his failure to attend before any court when such attendance is required for the purposes of any preliminary examinations under the Criminal Procedure Act, 1967, in relation to the offence or offences or any trials, appeals or other proceedings in relation to the offence or offences, of a sum that in the opinion of the justice is sufficient to provide for:

(i) Payment of the maximum fine or fines ordered or which may be ordered, to be paid in respect of the offence or offences.

(ii) The estimated amount of the costs (if any) of any trials, appeals or other proceedings in relation to the offence or offences awarded, or which may be awarded, against the defendant concerned, and

(iii) The estimated value of any forfeitures ordered, or which may be ordered to be made upon the final determination of any trials, appeals or other proceedings in relation to the offence or offences.

(b) The security provided for in paragraph (a) is in addition to and not in substitution for any other bond or recognisance which the defendant concerned may be required to enter into by the District Justice concerned in relation to any trials, appeals or other proceedings in respect of the offence concerned.

Sub-s. (3) provides that if an order is made for the detention or release of a boat the boat shall be detained or released in accordance with its terms.

The State submitted that once the plaintiff got bail he was free to go. No condition was placed on his bail. There was no question that he must be held during the detention of the boat and he was totally divorced from the boat so far as his bail was concerned. The State submitted the plaintiff had no locus standi to challenge the detention of the boat or any of the provisions relating to it because he did not own it. He therefore cannot be prejudiced by the detention of the boat.

The State further submitted that the State had a right to detain the boat (see Jennings v Quinn [1968] IR 305) and that because the plaintiff did not argue that the detention as such was the same as bail, he cannot argue that the exchange of the boat for security is any different.

It is true that the plaintiff did not argue that the State was not entitled to detain the boat. But I would distinguish between the State requiring the boat for purposes connected with the preparation of the prosecution case and the State requiring security in substitution for a boat which they no longer require for such purposes. The first detention is in my opinion clearly within the State’s powers (see Jennings v. Quinn). The substitution of money or a bond as security for the boat is in a different category and is the very question to be decided by the court.

I am of opinion that the substitution of money or a bond as security for the boat does constitute bail, or its equivalent, for the following reasons:

The order for detention of the boat is made because a person is being charged with an offence and not otherwise. The provision for granting bail under s. 234(2) to that person charged with that offence, is made in the context of a detention order for the boat having been made.

When the District Justice exercises his discretion to release the boat, he makes a judicial decision that it is no longer reasonable to detain it. (In fact, in this case it was the solicitor for the Attorney General who originally submitted to the District Justice on 26 March 1979 that he had a discretion to release the boat and that in this particular case the security was calculated at £124,000). Therefore when the discretion is exercised the right of the State to detain the boat for the purpose of evidence or the preparation of the State’s case ceases and the sole purpose of substituting money or a bond is for the stated purpose of security for the payment of the maximum fines, estimated costs and estimated value of forfeitures if the person charged is convicted, or in the event of his failure to attend before any court when such attendance is required. It is specifically provided by sub-paragraph (b) that the security is in addition to and not in substitution for any other bond or recognisances which that person entered into. It seems clear to me that the money or bond substituted for the boat is therefore additional to personal bail and forms part of it.

Therefore in so far as the security constitutes bail I am of opinion that it is excessive. It is fixed without regard to the means of the plaintiff and without enquiry as to the likelihood of his attending his trial. This would appear to offend against the principles relating to bail enunciated by the Supreme Court in The People (AG) v O’Callaghan [1966] IR 501. It is also unfair in that it requires money to be laid down (or a bond to be provided which is the equivalent of money) whereas bail is merely a promise to pay. This would appear to offend against the concept of fairness and fair procedures which must be imported into the administration of justice (see State (Healy) v O’Donoghue [1976] IR 325). It would seem to be unfair that in one criminal case, an accused can get bail, which is merely a promise to pay in the event of default, and in another criminal case, such as a prosecution under the amending provisions in the 1978 Act, security in the form of money or a bond is required. Therefore I hold that the following portion of s. 235(2) (a):

or in the event of his failure to attend before any court when such attendance is required for the purposes of any preliminary examinations under the Criminal Procedure Act, 1967 in relation to the offence or offences or any trials, appeals or other proceedings in relation to the offence or offences

and the entire of paragraph (b) of s. 235(2) are unconstitutional in that they are contrary to the concept of personal liberty enshrined in the constitution in Articles 38(1), 40(3) and 40(4)1°.

This still leaves s. 235(2) (a) intact in so far as security can be substituted for the boat to ensure payment of fines, costs and forfeiture. Therefore further questions have to be answered.

Is this a punishment in advance of conviction? The person charged is the plaintiff. He is not the owner of the boat. Any damage suffered by Mr Evenas is irrelevant in considering whether the plaintiff is being punished. If the plaintiff is convicted of the offences with which he is charged, it is in ease of him that there is a fund there to pay the fines. Therefore I reject the argument that he is being punished in advance of conviction.

I also reject the argument that the provision of security to pay fines etc. is contrary to the presumption that the plaintiff is innocent until proven guilty. He has not been asked to provide security. The fact that the owner had to provide security does not affect the presuption of innocence in favour of the plaintiff.

Has the plaintiff been prevented from earning his livelihood as a result of the continued detention of the boat after the order was made to release it on substitution of security? The continued detention was due to the delay experienced by Mr Evenas in arranging finance. Was there any other interference with his right of private property?

I have no evidence that the plaintiff suffered any damage at all as a result of delay in releasing the boat. He did not give evidence before the court, so I cannot assume that he suffered any loss or damage at all. I refuse to draw the inference that if Mr Evenas suffered loss, the plaintiff must therefore also have suffered a loss. It does not follow automatically, in my opinion.

Lastly I have to decide whether the State has power to detain a person in a boat in a port. Ss. 12 and 13 of the 1978 Act (inserting ss. 233A and 234 in the 1959 Act) have the same statutory effect and force as any section of the Prisons Acts. No constitutional grounds were put forward to challenge the detention. Therefore, in my opinion, the State has a statutory power to detain a person in a boat in a port by the virtue of ss. 233A, 234 and 235(1) and (3) of the 1959 Act, as amended by ss. 12, 13 and 14 of the 1978 Act.

SUPREME COURT
O’HIGGINS CJ

delivered the Judgment of the Court on 1 July 1983 saying: In these proceedings the plaintiff challenged the validity of ss. 12, 13 and 14 of the Fisheries (Amendment) Act 1978 which amended by the insertion of new sections therein, the Fisheries (Consolidation) Act 1959. The plaintiff’s claim was heard in the High Court by Miss Justice Carroll who held against the plaintiff’s claim with regard to ss. 12 and 13 but concluded in the plaintiff’s favour that portion of s. 14, which inserted a new s. 235(2) (a) and (b), into the Fisheries (Consolidation) Act 1959, was invalid. Against her decision in this regard this appeal has been brought by the defendants. A cross-appeal raising questions as to the decision of the learned trial judge in respect of ss. 12 and 13 and other matters, has not been moved.

The Fisheries (Consolidation) Act 1959, as amended by the Fisheries (Amendment) Act 1978, confers inter alia wide powers on sea fishery protection officers in relation to the protection of our territorial waters against illegal fishing by foreign sea fishing boats. Such officers, generally naval officers serving on board vessels belonging to the State, may stop, board and search boats suspected of fishing within Irish territorial waters, and may take any such boat and all persons on board to the nearest or most convenient port (s. 233). If a sea fishery protection officer so detains a boat and the persons thereon at a port he must ‘as soon as may be’ bring the master of the boat and any other persons on board against whom proceedings for illegal fishing have been or are about to be instituted, before a District Justice or a peace commissioner. If the District Justice or peace commissioner is satisfied that such proceedings have been or are about to be instituted, he may order the detention of the boat and those charged or to be charged until the proceedings have been dealt with. The District Justice, however, may order the release on bail of any person so charged before the proceedings are adjudicated upon (s. 234(2)). Where an order for the detention o a boat has been made, s. 235(2) (a) and (b) which are the impugned provisions inserted by s. 14 of the Act of 1978, may apply. These provisions are as follows:

235

(2)(a) Where, in respect of an offence or offences under a provision of chapter 2 or 3 of this Part, an order is made under sub-s. (1) of s. 234 or sub-s. (1) of this section in relation to a sea fishing boat, a District Justice may, at his discretion, by order directed to a sea fisheries protection officer, require the boat to be released if security, which in the opinion of the justice is satisfactory, is given for payment, in the event of conviction of the defendant in respect of the offence or offences or in the event of his failure to attend before any court when such attendance is required for the purposes of any preliminary examinations under the Criminal Procedure Act, 1967, in relation to the offence or offences or any trials, appeals or other proceedings in relation to the offence or offences, of a sum that in the opinion of the justice is sufficient to provide for

(i) payment of the maximum fine or fines ordered, or which may be ordered, to be paid in respect of the offence or offences.

(ii) the estimated amount of the costs (if any) of any trials, appeals or other proceedings in relation to the offence or offences awarded, or which may be awarded, against the defendant concerned, and

(iii) the estimated value of any forfeitures ordered, or which may be ordered, to be made upon the final determination of any trials, appeals or other proceedings in relation to the offence or offences.

(b) The security provided for in paragraph (a) is in addition to and not in substitution for any other bond or recognisance which the defendant concerned may be required to enter into by the District Justice concerned in relation to any trials, appeals or other proceedings in respect of the offence concerned.

In this case the plaintiff was master of a French fishingboat called ‘Guemima’, which was owned by another Frenchman, Mr Gerard Evenas. On 23 March 1979 this boat, being suspected of fishing within territorial waters, was arrested by the Irish Naval Vessel, LE Emer, under the command of Lieutenant Commander John Jordan. The court does not find it necessary to consider details of what subsequently transpired following the taking of the boat and those on board to the Port of Galway. It is sufficient to say that at the date of the initiation of these proceedings the plaintiff, having been charged with offences under the Fisheries Acts, had been released on bail under the provisions of s. 234(2). In relation to the boat, an order for its detention had been made but security for its release in the sum of £34,000 had been provided. The security had been fixed at the sum of £134,000 by the District Justice, pursuant to the provisions of the impugned paragraph, but McWilliam J reduced the amount to £34,000. No question has been raised on this appeal in relation to the jurisdiction of the High Court to make the reduction and it is not necessary to consider that question. Following the proceedings in the District Court this present action was commenced by the plaintiff. As already indicated, the object of the action was to impugn the validity of the entire of ss. 12, 13 and 14 of the Fisheries (Amendment) Act 1978. These matters were dealt with in the High Court. This Court is concerned only with the plaintiff’s challenge to s. 14 and, in particular, with the question whether the learned trial judge was correct in her determination that portions of this provision were invalid having regard to the Constitution.

The case made for the invalidity of the new s. 235(2) paragraphs (a) and (b) inserted by s. 14, both in the High Court and on appeal in this Court, was based firmly on the submission that the requirement to give the security therein mentioned amounted to a requirement on the part of the person charged to give additional bail and that such bail was oppressive and contrary to fair procedure as implicitly required by the Constitution. Miss Justice Carroll came to the conclusion that the security requirement did amount to bail and that as such it was oppressive in a number of respects. For this reason she concluded that so much of paragraph (a) as related to the pre-conviction attendance of the defendant and all of paragraph (b) were invalid. In the opinion of this Court the learned trial judge was not correct in holding that the giving of security as provided for in the paragraphs in question was a bail. Consequently, the conclusions she formed cannot be sustained.

It is to be noted that while the plaintiff was the person charged with the offences and was the ‘defendant’ referred to in the paragraphs in question, he was not the owner of the boat, nor did he provide the security. He was in fact released on his own bail of £100 and no question was raised in this respect. An examination of paragraph (a) of sub-s. (2) of the new section indicates, in the opinion of the court, the following:

(1) The District Justice is given power, at his discretion, to order the release of the boat prior to any adjudication of the proceedings against the defendant.

(2) This power is exercisable if satisfactory security is given.

(3) The security must be such as to provide in the event of the conviction of the defendant, or his prior disappearance or absconding, for the payment of the maximum fine, the costs of the proceedings and the estimated value of any forfeitures.

(4) The required security may be given by anyone who seeks the release of the boat and the failure to give it prevents the release, not of the defendant, but of the boat.

Such being the features of the paragraph, the court regards the provision as to security as being intended and designed to permit an application by the owner or other interested person for the release of the boat pending the trial of the defendant. The security should be such sum as would, in the opinion of the Distict Justice, be sufficient to provide, in the event of the conviction of the defendant or in the event of his failure to attend any preliminary hearings or any trials or appeals or other proceedings in relation to the offence, for the payment of the maximum fine, the estimated costs of any trials, appeals or other proceedings and the estimated value of any forfeiture ordered or which may be ordered. The provision of the 1959 Act, which is replaced by this new paragraph, did not authorise the release of the boat pending the trial and only permitted such release on similar security in the event of an appeal following conviction. This new provision is obviously intended to ease the position of owners or masters of boats who may have proceedings pending over a significant time.

As the court is of the opinion that the impugned paragraphs do not refer to bail, the court concludes that Miss Justice Carroll was in error in the conclusion that she came to and that no portion of the paragraphs in question is invalid having regard to the provisions of the Constitution upon any of the grounds put forward.

This appeal is accordingly allowed.

 

 

 

Cullen v. The Attorney General

 

 

[1979] IR 394
Hamilton J. 400
HC
7th July 1977

[Having referred to the facts, the pleadings and s. 57 of the Road Traffic Act, 1961, the judge continued] The plaintiff seeks a declaration that s. 57 of the Road Traffic Act, 1961, is invalid having regard to the provisions of the Constitution of Ireland, 1937. When the plaintiff’s case was opened before me I ruled that his challenge would have to be directed to the section and not to the manner in which the learned District Justice exercised the powers conferred on him by the section. Accordingly, I stated that no evidence would be admitted with regard to the manner of the exercise by the District Justice of these powers. Consequently, the action was heard by me without oral evidence.
As the Road Traffic Act, 1961, was passed subsequent to the coming into force of the Constitution, the Act is a law contemplated by the provisions of Article 34, s. 3, sub-s. 2, of the Constitution which provides:” “Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court.”
Mr. Justice Walsh in East Donegal Co-Operative v. The Attorney General 3 stated at p. 340 of the report:”
“In testing the validity of Acts of the Oireachtas which were passed since the coming into force of the Constitution, the approach is that laid down by this Court in McDonald v. Bord na gCon .7 It was pointed out in that case that there was a presumption of constitutionality operating in favour of all such statutes and it was stated at p. 239 of the report that ‘one practical effect of this presumption is that if in respect of any provision or provisions of the Acttwo or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant.’ It should be pointed out that the term ‘repugnant’ in that quotation is used in its general sense and that the more precise term would have been ‘invalid having regard to the provisions of the Constitution.’ As a term of art the term ‘repugnant’ in the Constitution is confined to cases arising under Article 26.
Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning. At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
On behalf of the plaintiff Mr. Sheridan submitted that the provisions1 of s. 57, sub-s. 1, of the Road Traffic Act, 1961, were invalid having regard to the provisions of Article 40, s. 1, of the Constitution which state:” “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” He also submitted that they were invalid having regard to Article 40, s. 3, which provides:”
“1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
Mr. Sheridan based those submissions on the ground that, by the terms of s. 57, a person convicted of an offence under s. 56 of the Road Traffic Act, 1961, is deprived of rights which are afforded to persons who are sued in the civil courts in respect of loss and damage by their alleged negligence in the driving of a motor vehicle, namely, the right to receive notice of the claim, the right to seek particulars, the right to make a lodgment, the right to avail of the provisions of the Civil Liability Act and the right to prepare a defence to the claim. He contended that the section purports to differentiate between persons sued in respect of loss and damage occasioned by their alleged negligence on the one hand and persons, similarly sued, who have been convicted of an offence under s. 56 of the Road Traffic Act, 1961, on the other hand.
In my opinion there is no validity in these submissions. Before a District Justice can exercise the powers conferred on him by s. 57 of the Act of 1961, there must be a conviction under s. 56 of the Act of 1961. He must be satisfied that injury was caused to person or property by the negligent use (on the occasion on which the offence was committed) of the vehicle in relation to which the offence was committed, and that the person who suffered the injury would be entitled to recover in a civil action against the convicted person damages in respect of the injury, and he must form an opinion of the amount of the damages which the person suffering the injury would be entitled to recover against the convicted person.
As stated by Mr. Justice Walsh in delivering the judgment of the Supreme Court in East Donegal Co-Operative v. The Attorney General 3 at p. 341 of the report:” “. . . the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conductedin accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
Consequently, it must be presumed that in enacting the Act of 1961 and, in particular, s. 57 thereof the legislature intended that the court, before making any order pursuant to s. 57, would act in accordance with the principles of constitutional and natural justice and would conduct a hearing for the purpose of establishing (a) whether or not “the person present or represented” suffered injury, (b) whether the injury was caused by the negligent use of the vehicle on the occasion in question and (c) the amount of the damage that such person would be entitled to recover against the convicted person. It must be presumed to have been the intention that the determination of these matters would be conducted in accordance with the provisions of natural and constitutional justice. This would entail giving notice to the convicted person; it would also entail giving him an opportunity (a) to obtain particulars, if he wished, of the claim made and the negligence alleged against him and (b) to make a defence to such claims. As the court is only entitled to order him to pay the damages which, in the opinion of the court, he would be entitled to recover against the convicted person, this means that the convicted person is entitled to the benefit of the Civil Liability Act if the negligence of the “person present or represented” contributed to the cause of the accident. Consequently, I am satisfied that the plaintiff’s claim fails insofar as it is based on these grounds.
Though the matter was not raised in the pleadings or in the reply to the notice for particulars, Mr. Sheridan, on behalf of the plaintiff, submitted that s. 57 of the Act of 1961 was invalid having regard to the provisions of the Constitution on the following grounds. First, the section gave the court power to impose (in addition to the punishment for an offence under s. 56 of the Act of 1961) a further fine not exceeding the damages which, in the opinion of the court, the person present or represented who had suffered injury would be entitled to recover against the convicted person. Secondly, there is no limitation on such damages. Thirdly, in default of payment within the time appointed by the court, the court is given power to sentence the convicted person to a term of imprisonment not exceeding six months. Fourthly, by reason of these matters, an offence under s. 56 of the Act of 1961 is not a minor offence and, consequently, cannot be tried by the District Court but must be tried by a judge sitting with a jury.2Article 38, ss. 1 and 2, of the Constitution provides:” “1. No person shall be tried on any criminal charge save in due course of law. 2. Minor offences may be tried by courts of summary jurisdiction.” An offence under s. 56 of the Act of 1961 is undoubtedly a criminal charge and, unless it is a minor offence, cannot be tried by a court of summary jurisdiction. As counsel for the Attorney General did not object and was in a position to deal with this submission, I agreed to permit counsel for the plaintiff to make submissions on this point, subject to a satisfactory amendment of the pleadings.

The first matter which I have to examine in regard to this submission is the jurisdiction conferred on the court by s. 57, sub-s. 1, of the Act of 1961 to inflict on the convicted person a fine not exceeding the damages which, in the opinion of the court, the person present or represented would be entitled to recover against the convicted person. Mr. Sheridan submitted that the only limitation on the amount of the fine is the limitation created by the opinion of the court as to the damages which would be recoverable in a civil action against the convicted person for the damages suffered. On this point Mr. Conolly submitted that, in accordance with the judgments of the Supreme Court in McDonald v. Bord na gCon 7 and in East Donegal Co-Operative v. The Attorney General 3 , I should construe the section so as to give it a constitutional construction, and that I should impose on the District Court a limitation of its jurisdiction so as to confine it to its jurisdiction in civil matters”i.e., £250.
In construing the section I must have regard to the following statement made by Mr. Justice Walsh in East Donegal Co-Operative v. The Attorney General 3 at page 341 of the report:” “It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.” In my opinion the statutory provision in this case is clear and unambiguous. It gives to the District Court the power to inflict on the convicted person a fine not exceeding the damages which, in the opinion of the court, the person present or represented would be entitled to recover against the convicted person.
I cannot construe s. 57 of the Act of 1961 as imposing any limitation on the power of the court to limit such damages. I am fortified in this view by the answers given by Mr. Justice Butler to a consultative Case Stated in TheAttorney General (Duke) v. Meredith .6 It is not necessary for me to describe in detail the facts set forth in the Case Stated. Mr. Victory applied pursuant to s. 57, sub-s. 1, of the Act of 1961 for a fine to be inflicted on the defendant Meredith by way of damages for injury to Victory’s personal property caused by the defendant. Having recited the facts in the Case Stated, District Justice Sweetman posed the following questions:” “1. Am I right in holding that the damages I can assess and inflict as a fine under this sub-section are limited to the amount that could be recovered in an action for damages for tort in the District Court? 2. If not, is there any limit to the fine I can inflict under the sub-section in addition to any other punishment?” Mr. Justice Butler answered both questions in the negative.

Consequently, it appears to me that a person who is convicted of an offence under s. 56 of the Road Traffic Act, 1961, is liable (by virtue of the terms of sub-s. 3 of s. 56) on summary conviction to a fine not exceeding £100 or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment; and that (by virtue of the terms of s. 57 of the Act of 1961) he is liable to a fine not exceeding the damages which, in the opinion of the court, a person who has suffered damage as a result of the negligent use of the vehicle in question and who is present or represented in court would be entitled to recover against the convicted person and that, in default of the payment of such additional fine within the time appointed by the court, he is liable to be sentenced to a term of imprisonment not exceeding six months.
As stated by Mr. Justice Walsh in Conroy v. The Attorney General 4 at p. 436 of the report:” “The primary consideration in determining whether an offence be a minor one or not is the punishment which it may attract. An offence which is in itself by ordinary standards and by its nature trivial and morally indifferent may, nevertheless, by the severity of the punishment it attracts, cease for the purposes of the Constitution to be a minor offence.” I am satisfied that the punishment described in sub-s. 3 of s. 56 of the Road Traffic Act, 1961, is not sufficient by itself to exclude the offence from the category of minor offences. However, in my opinion the provisions of sub-s. 1 of s. 57 of that Act purport to increase the penalty which the court can inflict to such an extent as would not permit an offence under s. 56 of the Act of 1961 to be regarded as a minor offence which is properly triable by a District Justice.
Consequently, I am satisfied that the provisions of s. 57, sub-ss. 1 and 2,
of the Road Traffic Act, 1961, are invalid having regard to the provisions of the Constitution, and I so hold.

 

The State (John David Rollinson) v District Justice James J Kelly

1981 No. 120SS

High Court

9 November 1981

[1982] I.L.R.M. 249
(Gannon J)

On 5 May 1981 the prosecutor obtained from Barrington J, an order directing the District Justice named herein to send to this Court for the purpose of being quashed unless cause be shown to the contrary a number of orders of convictions imposing on the prosecutor fines to a total sum of 6,750 in relation to 54 complaints of failure to forward returns in respect of various bets. The discrepancy between the conditional order as granted and the nature of the District Court orders to which it refers was not adverted to in this Court. The discrepancy may derive from the following two inconsistent paragraphs in the grounding affidavit sworn by the prosecutor:

3 In or about 7 February 1980 I was served with 54 summonses at the complaint of the Director of Public Prosecutions alleging that on various dates between and including 10 August 1979 and 27 September 1979 I failed to forward within the prescribed time returns in respect of alleged events entered into at my aforementioned office on various dates between and including 10 August and 27 September 1979 in contravention of regulation 29 of the Betting Duty (Certified Returns) regulations 1934 and s. 25(2) of the Finance Act, 1936. I beg to refer to the said 54 summonses when produced.

And

8 The 54 offences alleged against me and on which I was convicted and fined by the District Justice consist of an alleged failure on my part to forward to the collector of customs and excise within the time limited by s. 29 of the Betting Duty (Certified Returns) regulations 1934 the excise or betting duty on certain bets alleged to have been accepted by me during weeks when daily returns were required to be made by me by s. 27 of the same regulations. I beg to refer to the said regulations when produced.

The grounds upon which the conditional order was made are stated to be set out in paragraphs 9, 10 and 11 of the prosecutors grounding affidavit. These paragraphs are as follows:

9 I am advised by my solicitors and I believe that there is no provision in s. 27 of the said regulations requiring any such returns to be kept or made, and that consequently the proceedings before the District Justice were wholly misconceived and the purported determination and conviction ultra vires the powers of the District Justice and a nullity.

10 I am further advised by my said solicitors and I believe that if, without prejudice to the matters raised in the previous paragraph of this affidavit, an obligation does arise pursuant to s. 29 of the Regulations to make returns of excise or betting duty within a specific time then a failure within the specified period to comply with the requirements of s. 29(c) of the Regulations gives rise to one offence only and not to a separate offence in relation to each individual bet. In this respect the District Justice acted in excess of the powers conferred by s. 25(2) of the Finance Act, 1926 in purporting to convict on each of the 54 summonses taken against me when at most seven offences only could have been committed on the alleged facts charged in the said summonses.

11 Again without prejudice to each of the two immediately previous paragraphs of this affidavit, I am informed by my said solicitors and I believe that the right of the District Justice to hear the alleged case against me depends on whether or not the alleged offence created by s. 25(2) of the Finance Act, 1926 is a minor offence such as is triable summarily within the provisions of Article 38 paragraph 2 of the Constitution. I am advised by my solicitors and I believe that it is not a minor offence by reason of the extreme gravity of the primary and direct consequences of a conviction, and the magnitude of the penalty and that accordingly the District Justice exceeded his jurisdiction in purporting to hear and determine the alleged complaint against me. The total amount of the penalty payable by me in accordance with the provisions of s. 25(2) of the Finance Act, 1926 in respect of the 54 offences charged would, on conviction, amount to 27,000 if, as is alleged, an offence carrying an excise penalty of 500 is committed in relation to each individual bet. One of the grounds stated in s. 6 of the Betting Act, 1931 upon which a superintendent of the Garda Siochana may refuse an application for a certificate of personal fitness to receive a bookmakers licence and certificate of suitability of premises in accordance with s. 11 of that Act is that the applicant has been convicted of an offence in relation to the duty on bets and as a consequence of such refusal an applicant will be severely prejudiced in respect of his or her livelihood, property and ability to pay the penalty imposed.

To this order cause was shown on behalf of the respondent by the Chief State Solicitor by notice dates 22 May 1981. The four paragraphs of the notice of showing cause read as follows:

1. S. 27 Betting Duty (Certified Returns) Regulations 1934 recites and envelopes s. 26 Betting Duty (Certified Returns) Regulations 1934 and sets out the law relating to the type of return required. The proceedings before the respondent herein were properly conceived and the determination and conviction intra vires the powers of the respondent and good and valid in law.

2. An obligation does arise pursuant to s. 29 of the regulations herein to make returns of excise or betting duty within a specific time. A failure within the specified period to comply with the requirements of regulation 29(c) of the regulations does not give rise to one offence only but gives rise to a separate offence in relation to each individual bet. The respondent did not act in excess of the powers conferred by s. 25(2) of the Finance Act, 1926 in convicting on each of the 54 summonses taken against the prosecutor as 54 offences had been committed.

3. Each of the offences set out in each of the summonses herein was a minor offence in accordance with Article 38 paragraph 2 Bunreacht na hEireann. The respondent did not exceed his jurisdiction in hearing and determining the said complaints and summonses against the prosecutor.

4. The convictions and orders and each of them of the respondent made herein in relation to the 54 summonses herein are good and valid in law.

The facts which were admitted and deposed to in the affidavit of the prosecutor are as follows:

1. The prosecutor is a bookmaker who has entered into an arrangement with the revenue commissioners to pay duty on bets received by him on the basis of certified returns as provided for in regulations 2, 3 and 4 of the Betting Duty (Certified Returns) Regulations S R and O 113 of 1934 made pursuant to s. 25 of the Finance Act, 1926.

2. The prosecutor received at his registered bookmaking office and accepted a number of bets each of 10p over a period between 8 August 1979 and 20 September 1979 (both dates inclusive) in respect of which he did not pay duty and in relation to which he did not make a return to the revenue commissioners.

3. On 7 February 1980 the prosecutor was served with 56 summonses charging him with offences of contravening regulation 29 of the Betting Duty (Certified Returns) regulations SR and O 113 of 1934 comprising two summonses in relation to each of 28 betting slips.

4. On 13 November 1980 the prosecutor was convicted in the District Court of the offence as charged on each of 55 summonses and fined a sum of 500 on each conviction, the fine being mitigated in each case to a sum of 125.

5. Although he was not present in the District Court for the hearing of the prosecutions no objection is taken to the proceedings in the District Court in relation to that aspect.

6. All the convictions are for the offences as alleged and separately charged of either failing to forward duty or failing to forward a return. Of the 55 orders of the District Court produced in this Court 28 relate to a charge of failure to forward a return of a number of bets and 27 relate to a charge of failure to forward the duty in respect of a number of bets.

The form in which the orders of conviction are expressed is illustrated by the following two examples:

Fine No. 2624 Dublin Metropolitan District JAK Complainant: The Director of Public Prosecutions Defendant, John David Rollinson on 13 November 1980 at the Metropolitan District Courthouse, Morgan Place, Dublin in said District before me James A. Kelly one of the Justices of the said District Court assigned to the said district a complaint was heard that the said defendant of 13 Watson Avenue, Killiney, Co. Dublin did on 16 August 1979 being a bookmaker and having a registered book-making office at 244 Clontarf Road, Dublin 3 within the court area and district aforesaid and having been authorised by the revenue commissioners under the Betting Duty (Certified Returns) regulations 1934 to pay duty on bets on the basis of certified returns in respect of bets accepted at the aforesaid registered bookmaking office did fail to forward within the prescribed period to the collector of customs and excise Dublin a return in respect of a 10p bet on Ski Run betting slip no. 7634 which said bet was entered into on 8/8/79 at the aforementioned registered book-making office. In contravention of Regulation 29 of the Betting Duty (Certified Returns) regulations 1934 and contrary to s. 25(2) of the Finance Act, 1926.

And I did adjudge that the said defendant be convicted of the said offence and pay for penalty for said offence the sum of 500 mitigated to 125 within three months and in default of payment of the said sum of 125 within the said period the said sum to be levied by distress and sale of defendants goods and chattels unless the said sum be sooner paid.

The second form of order for comparison was as follows:

Dublin Metropolitan District Fine No. 2678 JAK Complainant The Director of Public Prosecutions Defendant John David Rollinson

On 13 November 1980 at the Metropolitan District Courthouse, Morgan Place, Dublin in the said District before me James A. Kelly one of the justices of the said District Court assigned to the said district a complaint was heard that the defendant of 13 Watson Avenue, Killiney, Co. Dublin on 27 September 1979 being a bookmaker and having a registered bookmaking office at 53 Collins Avenue East, Killester within the court area and district aforesaid and having been authorised by the revenue commissioners under the Betting Duty (Certified Returns) regulations 1934 to pay duty on bets on the basis of certified returns in respect of bets accepted at the aforesaid registered bookmaking office did fail to forward within the prescribed period to the collector of customs and excise, Dublin, duty in respect of a 10p bet on Ringawoody betting slip no, 7102 which was entered into on the 18/9/1979 at the aforementioned registered bookmaking office. In contravention of regulation 29 of the Betting Duty (Certified Returns) regulations 1934 and contrary to s. 25 (2) of the Finance Act, 1926.

And I did adjudge that the said defendant be convicted of the said offence and pay for penalty for said offence the sum of 500 mitigated to 125 within three months and in default or payment of the said sum within the said period that the said sum be levied by distress and sale of the defendants goods and chattels unless the said sum be sooner paid.

For the purpose of following the submissions in support of the application to make absolute the conditional order it is necessary first to consider the provisions of the Betting Duty regulations in SR and O 113 of 1934 and in particular regulation 29 the contravention of which is the offence of which the prosecutor stands convicted on each of the District Court orders sought to be quashed. Regulation No 29 reads as follows:

Not later than the Thursday next following the week ending Saturday wo which 29 Not later than the Thursday next following the week ending Saturday to which the daily returns required by No. 27 of these regulations relate, the bookmaker shall forward to the collector of customs and excise designated by the commissioners for that purpose

(a) a summary of such daily returns in the form prescribed by the commissioners, duly certified by him or by the person authorised by him who has been approved by the commissioners for that purpose;

(b) all such daily returns; and

(c) the amount of the duty in respect of the bets to which the arrangement is applicable accepted by him during the week to which the returns relate.

For the prosecutor Mr Herbert drew attention to the expression used in regulation 29 paragraphs (a) and (b)such daily returns which he says are referred to in regulation 29 as being the daily returns required by No. 27 of these regulations. Regulation 27 for its part, he says, does not in fact require returns to be made but does require the certification by the bookmaker (or by a person authorised by him and approved by the Commissioners) of the returns to be furnished under No. 26 of these regulations. He accepts that regulation 26 does require the bookmaker to furnish a return, but it is a return of all bets to which the arrangement is applicable accepted by him on each day of the week. The submission in support of the first ground upon which the conditional order was granted is that in regulation 29 the reference to No. 27 of the regulations is meaningless and is made in error but should be a reference to no 26 of the regulations. Mr Herbert argues that such error is fatal to the nature of the offence purportedly charged and that this mistake, as submitted, on the part of the legislature cannot be corrected by the court. For the respondent showing cause, Mr OFlaherty submits that the offences charged are offences of failing to comply with regulation 29. The requirements of regulation 29 are to furnish to the person therein designated within the time therein prescribed the summary of daily returns, the daily returns and the amount of the duty. What has to be furnished each week, he submits, comprises the information relating to bets accepted the previous week and the amount of the duty relating to such bets. According to Mr OFlaherty regulation 26 prescribes that a return in prescribed form must be furnished of all bets accepted for each day of each week; regulation 27 requires that each weekly return of the bets accepted each day must be certified by the bookmaker or other approved person; regulation 29 requires that the weekly return of each days bets must be furnished not later than the Thursday of the following week. It is his submission that the reference in regulation 29 to regulation 27 incorporates the reference to regulation 26 which is brought in by regulation 27, and that read together the requirements of regulation 29 are clear. As demonstrated in the argument the nature of the offence charged and all necessary particulars are clear from the summonses for the person to whom the summonses are addressed and to the District Justice.

I accept the argument advanced to show cause on this aspect and in my opinion the summonses and charges and convictions as expressed in relation to s. 25(2) of the Finance Act, 1926 and regulation 29 of the Betting Duty (Certified Returns) regulations 1934 are in no way defective.

The second group upon which the conditional order was granted is founded upon the submission that regulation 29 requires one return only to be furnished each week and one amount of duty to be forwarded each week, the return being in respect of each days bets of the previous week and the amount being the total duty in respect of bets accepted the previous week. The summonses in the District Court relate to a series of four bets accepted in each of seven successive weeks. Mr Herbert argues that the failure, as alleged, to comply with regulation 29 as applied to the entire period should be in respect of no more than faulty returns and that the charges as laid and the convictions should have been seven only in number and would attract only seven fines. Mr OFlaherty submits that as every bet accepted is required under regulations 8 and 9 of the Betting Duty (Certified Returns) regulations 1934 to be included in the returns any and each omission is a false return, and therefore a noncompliance with regulation 29. It should be noted that the failure to pay the duty on any and each bet accepted is a statutory offence created by s. 24 of the Finance Act, 1926. If Mr OFlaherty is correct in his submission it must follow that s. 25 of the Finance Act, 1926 in creating the offence of noncompliance with regulation 29 by failing to forward duty on bets is a second and indirect offence and punishment for the same omission constituting the offence under s. 24.

SR and O No. 113 of 1934 provides the bookmaker with the opportunity of paying duty on bets on the basis solely of information known only to him. The arrangement provided for in the regulations when accepted by the bookmaker created a relationship of trust between him and the revenue commissioners. The task of declaring what bets he accepted and what amount of duty he should pay was entrusted entirely to the bookmaker, but he was required to furnish information in a verifiable form within a prescribed period and to remit the amount of duty he himself calculated. In relation to this second ground in support of the application for the conditional order I think the submissions for the prosecutor are correct and there should have been no more than seven charges of failure to make weekly returns and no more than seven charges of failure to forward the amounts of duty in respect of bets accepted in each of the several weeks.

A third ground upon which the prosecutor relies in support of his application for the conditional order is that the offences charged are not minor offences and that he should have been, but was not, afforded a trial by jury as is his right, he claims, under Article 38 paragraphs 2 and 5 of the Constitution.

The Constitution which was adopted in 1937, some years after the enactment of the laws creating these offences, contains provision at Article 50 for the continuance in full force and effect of the laws in force in the State immediately prior thereto to the extent to which they are not inconsistent therewith. Article 38 paragraph 5 of the Constitution prohibits the trial of any person on any criminal charge without a jury save in the case of trials permitted otherwise by paragraphs 2, 3 and 4 of that Article. Of these paragraphs 2 provides that minor offences may be tried by courts of summary jurisdiction. Paragraphs 3 and 4 are not relevant to this application.

It was contended on behalf of the prosecutor that the charges laid in the summonses relate to excise duties under the care and management of the revenue commissioners by virtue of ss 42 and 43 of the Finance Act, 1926 and are to be construed together with the customs Acts so far as relates to duties of excise. The decisions of the Supreme Court in The State (Gettins) v Judge Fawsitt [1945] IR 183 and in Melling v O Mathghamhna [1962] IR 1 were cited in support of the contention that these are criminal charges. Counsel for both the prosecutor and the respondent referred to Melling v O Mathghamhna, Conroy v AG and anor. [1965] IR 411, The State (Sheerin) v Kennedy [1966] IR 375Re Haughey [1971] IR 217, and Cullen v AG [1979] IR 394 in support of arguments on the question of whether or not the offences charged are minor offences. For the prosecutor it was argued that in addition to the primary punishment of 500 excise penalty the convicted person becomes liable under section 6 of the Betting Act, 1931 to have his application for a licence refused by a superintendent of the Garda Siochana and thus be deprived of his means of livelihood. Such consequence however is not a necessary consequence of a conviction and can follow only after a revocation of a licence pursuant to enquiry of a judicial nature under s. 15 of the 1931 Act. The power to suspend or revoke a licence under s. 15 appears to be a matter of regulation of the statutory control of betting and not primarily, though perhaps incidentally, a punishment in its consequence. It was not seriously contested by the respondent, properly so as I think that charges laid in the summonses are criminal charges. This is a matter of construction of the Statute, and in particular of ss. 22 to 26 inclusive of the Finance Act, 1926 in the context of the customs Acts then in force (see s. 43(2) of the Finance Act, 1926). The regulations provided for in s. 25 are regulations clearly intended to control and manage the payment of duty on bets through the co-operation of the bookmaker. The regulations in fact made and set out in SR and O 113 of 1934 put the bookmaker in a position of trust particularly if he enters into the arrangement therein mentioned. Sub-s.(2) of s. 25 of the Finance Act declares that a bookmaker who acts in contravention of or fails to comply with the regulations is guilty of an offence and shall be liable on summary conviction thereof to an excise penalty of five hundred pounds. In the District Court the charges were preferred and the prosecution undertaken by the DPP not in the manner of the collection of an excise penalty, but in the form for punishment of a criminal offence. The nature of the act in the circumstances established, the language used in the statute creating the offence, the amount of the fixed penalty, and the procedure adopted in the court of summary jurisdiction all indicate the offence is a of criminal nature. It seems clear to me that the object of the penalty is the punishment of the offender and its deterrent effect and not merely a means of collecting revenue.

The term minor offence used in Article 38 paragraph 2 of the Constitution is not defined within any expressed limitations. As the creation of offences is a matter for the Legislature the limitations which may classify any offence as being minor may be expressed by the legislature in the enactment. If they are not so expressed they may be declared by the courts following the accepted principles of construction of statutes by which the intentions of the legislature are ascertained. The principles for the guidance of the court as set out by Lavery, J, in his judgment in Melling v O Mathghamhna [1962] IR 1 at 13 to 15 and as restated by Walsh, J, in Conroy v Attorney General [1965] IR 411 at 435 to 438 have been consistently followed. It should be noted from the foregoing authorities that the construction of the terms used in the Constitution is solely the function of the courts but in the consideration of the application of Article 50 of the Constitution to the statute as in this case, the statute itself must be construed and the intentions of the legislature ascertained.

All the authorities cited emphasise that the nature of the punishment prescribed is the most important factor in determining whether the offence created by a statute is or is not a minor offence. In making an assessment of the severity of the punishment, as indicative for this purpose, regard should be had to the nature of the mischief sought to be prevented, in comparison with other offences, if any, relative to the like mischief in the same or related statutes. Because this is a matter essentially of determining the intention of the legislature the standards prevelant at the time the offence was created and the enactment adopted may be ascertained by reference to other reasonably contemporaneous legislation.

S. 22 to 26 inclusive of the Finance Act, 1926 relates to the collection of duty on bets and create related offences. The Betting Act, 1926 was an enactment of expressed short duration and was repealed and re-enacted by the Betting Act, 1931. The provisions of these statutes remained unamended up to the adoption of the Constitution in 1937, and subject to the limitation if applicable expressed in Article 50, became part of the statute law adopted by the legislature in 1937. S. 24 of the Finance Act, 1926 prescribed an excise penalty of 500 for failure to pay duty on a bet. S. 25 prescribed an excise penalty of 500 for failure to comply with the regulations made for the recording and furnishing of information and of collecting and paying duty on bets. S. 26 prescribed an excise penalty of 50 for obstructing or impeding or resisting an Excise Officer seeking such information. S. 22 of that Act prescribed an annual fee of 10 for the bookmakers licence and s. 23 required payment of an annual duty of 20 for the certificate of registration of his premises. The offences and penalties created by the Betting Act, 1931 may be summarised as follows:

(a) For carrying on a bookmakers business without a licence fine 500, reduced by the Finance Act, 1963 to 100.

(b) For failing to deliver up a revoked licence fine 10.

(c) Failure to return certificate of registered premises no longer required fine 20.

(d) Carrying on bookmakers business in unregistered premises fine 100 or 3 months imprisonment.

(e) Improper use of bookmakers premises fine 100.

(f) Opening for business at prohibited times fine 50.

(g) Taking bets under one shilling fine 20.

(h) Taking bets from young persons under stated age fine 100.

(j) Failing to display certificate of registered premises fine 10.

(k) Failing to produce licence on request fine 20.

(l) Obstructing inspection fine 20.

As a matter of comparison it is evident that failure to comply with the regulations prescribed under s. 25 of the 1926 Act was intended to be regarded as a most serious offence. As I have pointed out earlier the regulations prescribed under that section were such that a relationship of trust was created between the book-maker who entered into the arrangement prescribed in the regulations and the revenue commissioners. It is evident that a breach of the trust reposed in the bookmaker by s. 25 and the regulations was regarded as being as serious as the failure to pay the duty on a bet as required by s. 24.

In the course of his judgment in Melling v O Mathghamhna [1962] IR 1 Lavery, J, said at 17, 18:

In the end it is a matter of first impression whether a particular offence is of a minor character or not and a judge can only express his own view thereon. I have considered the matter at length and to the best of my ability and in my opinion these offences are properly to be regarded as minor offences which may be tried summarily.

(The offences referred to were charges of smuggling butter into the State in contravention of s. 24 of the Dairy Produce (Price Stabilisation) Act, 1935 and s. 186 of the Customs Consolidation Act, 1876.) The judge went on to say:

I should, however, limit my decision to cases where the revenue commissioners have elected to claim a penalty of 100 or treble the duty paid value of the goods, being less than 100.

If the revenue commissioners should elect to claim treble the value of the goods involved duty paid exceeding 100 it would be, in my opinion, for the District Justice to consider whether the offence was or was not a minor offence. For example if a penalty of 1,000, or indeed, much less were claimed it would be open for the justice to decline jurisdiction on the ground that the offence was not a minor offence.

In that case there were two dissenting judgments of Kingsmill-Moore, J, and ODalaigh, J, as to the conclusion but in relation to the question of the severity of sentence as being the primary factor they are also in agreement with the majority decision. In the course of his judgment Kingsmill-Moore, J, said at 35:

It is clear that a poor man (guilty perhaps of smuggling some quite trifling article) might have difficulty in finding 100 even a very rich man might not succeed in laying his hands on the larger amounts. In this connection I think we must take the value of money as being what it was in 1922 when the Saorstat Eireann Constitution was enacted.

In the course of his judgment ODalaigh, J, said at 42, 43:

The legislature might, of course, have chosen to indicate that all smuggling offences were to be treated as minor offences; but where, as in s. 186, the penalty, in one of its alternatives, has been related to the value of the goods, then one is forced to conclude that the legislature, understandably, wished to signalise that the offence was of varying degrees of seriousness. The question which arises therefore is, when does a crime reach such a point or rather when, in 1922, did a fine reach such a point that it should be regarded as indicating that the offence was no longer to be looked upon as minor?

In attempting to fix this point and I shall indicate later where I think it should be fixed regard has to be had to the burden which a fine of a particular amount would impose upon the ordinary or average citizen, with, if anything, as I incline to think, a leaning in the direction of people of humbler circumstances, and this should certainly be so when, as in this case, the penalty or fine is a fixed one and unrelated to the offenders ability to pay.

By what standard as to its penal effect is the fixed penalty of 500 prescribed by s. 25 (2) of the Finance Act, 1926 to be measured? An indication of the value of such a sum of money must have had in the estimation of the legislature at the time of the enactment may be found in the statutory provisions for the salaries of the District Justices to whom was entrusted the procedure for summary trial and conviction in relation to such offences. By s. 74 of the Courts of Justice Act, 1924 the annual salary of district justices throughout Ireland other than in the cities of Dublin and Cork was 1,000. In 1928 provision was made for assistant justices at an annual salary at 800, but this provision was withdrawn in 1946. The salaries prescribed in 1924 remained unaltered until 1947 from which it may be inferred that the standard of money remained constant over the same period and accordingly the impact of a fine or excise penalty of 500 would have been the same in 1937 as it had been in 1926. A further indication of severity of the fine by comparison with money values adopted by the legislature at that time may be found in the provisions of the Ministers and Secretaries Act, 1924 which prescribes that the annual salary of the president of the executive council should not exceed 2,500, which corresponded with the annual salary of an ordinary judge of the High Court prescribed by s.13 of the Courts of Justice Act, 1924. These salaries remained unaltered until after the adoption of the Constitution in 1937. The same salary of 2,500 was appointed to the Taoiseach in 1938 and was increased by 20%, and that of the High Court judge by 25% in the year 1947. It would seem to follow that in 1926 and in 1931 and in 1937, and indeed up to 1947, a fine of 500 would necessarily have been regarded by the legislature, and must have been regarded by the judiciary, as a very severe penalty. In 1963 the legislature considered it prudent to reduce from 500 to 100 the penalty for the offence created by s. 2 of the Betting Act, 1931 of carrying on the business of bookmaker without a license. It will seem to be a necessary inference that at that time also the offences created by s. 24 and s. 25 of the Finance Act, 1926 were still considered so serious as to warrant a punishment significantly greater than any other offences related to the same mischief.

In the result the contention of the prosecutor that the offences charged were not minor offences is, in my opinion, correct. His claim to be entitled to trial by a jury on such charges as his constitutional right must, in my opinion, be upheld. In conclusion therefore, the cause shown must be disallowed and the conditional order of certiorari made absolute.

Director of Public Prosecutions v Byrne

[1994] 2 ILRM 91
Finlay CJ
This is an appeal brought by the Director of Public Prosecutions against a decision made by the High Court on a case stated by way of appeal by a judge of the District Court pursuant to the provisions of s. 2 of the Summary Jurisdiction Act 1857 and s. 51 of the Courts (Supplemental Provisions) Act 1961 (see [1993] ILRM 475). The proceeding in the District Court out of which the appeal arose was a charge against the respondent of an offence contrary to s. 49 of the Road Traffic Act 1961 namely of having in his blood a concentration of alcohol in excess of the permitted limit.

The facts found by the learned judge of the District Court and the questions raised by her in the case stated to the High Court together with the decision of the High Court and the reasons given therefor are all fully and accurately stated in the judgment which is about to be delivered by Blayney J and it is not necessary that I should repeat them here.

Having regard to those facts, questions and decision, the issue which clearly arises on this appeal is as to what are the circumstances, if any, under which a person charged with a criminal offence who asserts a delay or undue lapse of time between the date of the alleged offence and the bringing of him to trial may prevent that trial taking place where he cannot establish any risk of a specific prejudice to him in the conduct of his defence which would be likely to render the trial unfair.

The offence concerned in this case being an offence contrary to s. 49 of the Road Traffic Act 1961 as amended was of course an offence, if it was committed, which was known to the members of the Garda Síochána immediately after its commission. No question therefore arises in this case as to the rights of an accused in relation to a trial where there has been a lengthy delay between the alleged commission of the offence and the time when it was reported either to the investigating bodies such as the Garda Síochána or to the Director of Public Prosecutions. Different considerations arise in those cases and are dealt with to some extent in the recent judgments of this Court in the case of G. v. Director of Public Prosecutions which is unreported but which judgments were delivered on 14 December 1993.

The relevant constitutional provision in respect of this problem is of course that contained in Article 38.1 of the Constitution which provides that ‘no person shall be tried on any criminal charge save in due course of law.’ The interpretation of this sub-article insofar as it is relevant to the issues in this case was dealt with by Gannon J (at p. 335) in the course of his judgment in State (Healy) v. Donoghue [1976] IR 325 in the following terms which were subsequently expressly quoted and approved of by O’Higgins CJ in this Court at p. 349:

Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser, to be allowed to give or call evidence in his defence, and to be heard in argument or submission before judgment be given. By mentioning these I am not to be taken as giving a complete summary, or as excluding other rights such as the right to reasonable expedition and the right to have an opportunity for preparation of the defence.

In some constitutional structures the right to a speedy trial or to a trial with reasonable expedition is separately provided for from the right to a trial in due course of law or by due process of law. The most obvious and well known example of that is the existence in the Constitution of the United States of America of the Sixth Amendment and Fourteenth Amendment. The Sixth Amendment provides the right ‘to a speedy and public trial by an impartial jury’ and the Fourteenth Amendment provides ‘nor shall any state deprive any person of life, liberty or property without due process of law.’ As is clearly implied in the case of State (Healy) v. Donoghue by this Court as well as by the High Court, the importance of the protection of the right to a trial with reasonable expedition is not in any way lessened by the fact that the constitutional origin of it in our law arose from the general provision for a trial in due course of law rather than from a separate express provision of a right to a speedy trial.

In many instances delay or lapse of time between the date of an alleged offence and the date of a proposed trial may have the consequence of creating a real or probable risk that the accused will be subjected to an unfair trial. This can arise in either of two ways. A court whose jurisdiction is invoked to prevent such an invasion of constitutional rights might be satisfied from an excessive length of time itself to raise an inference that the risk of an unfair trial had been established as a reality. More frequently (as arose in the case decided by this Court of State (O’Connell) v. Fawsitt [1986] IR 362; [1986] ILRM 639), the accused will be in a position to establish on the facts the real risk of a particular prejudice which would render the trial unfair.

Whilst such cases are, I am satisfied, instances of one of the more serious consequences of a delay in the trial of a person on a criminal charge they are not the only potential consequences. The right to reasonable expedition in the trial of a criminal charge would appear clearly to precede as a natural right not only the Constitution of Ireland but the Constitution of the United States as well and from an historical point of view would appear to derive directly from the Magna Carta and to be part of the common law. The reason for it has been succinctly identified by the judgments of the Supreme Court of the United States in Barker v. Wingo (1972) 407 US 514 where Powell J at p. 532 stated as follows:

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests:

(i) to prevent oppressive pre-trial incarceration;
(ii) to minimise anxiety and concern of the accused; and
(iii) to limit the possibility that the defence will be impaired.
This quotation was approved by the Privy Council in the decision in Bell v. Director of Public Prosecutions of Jamaica [1985] AC 937 as being an appropriate statement of the principle applicable at common law and in his judgment in the High Court in the case of State (O’Connell) v. Fawsitt also received the approval of Murphy J.

I am satisfied that it represents an accurate if extremely brief identification of some of the constitutional rights which in our jurisdiction are protected by the provisions of Article 38.1 of the Constitution which includes protection for what has been described by Gannon J in State (Healy) v. Donoghue as the right to reasonable expedition.

Having reached that conclusion I am driven to the further conclusion that of necessity instances may occur in which a delay, between the date of the alleged commission of an offence and the date of a proposed trial, identified as unreasonable, would give rise to the necessity for a court to protect the constitutional right of the accused by preventing the trial even where it could not be established either that the delay involved an oppressive pre-trial detention or that it created a risk or probability that the accused’s capacity to defend himself would be impaired. This must lead of course to a conclusion that on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish an actual or presumptive prejudice may not conclude the issues which have to be determined.

The type of delay which may be involved in this particular form of constitutional right undoubtedly creates difficulties in that it cannot be assessed with any measure of certainty or precision. The delay which is indicative of an improper motive or gross carelessness on the part of prosecuting authorities is identifiable and is different from the mere failure with which I am at this stage dealing to render to a person a constitutional right to a trial with reasonable expedition. The delay which has caused or is likely to cause significant or serious impairment of an accused person’s capacity to defend himself is again readily identifiable and largely may be classified by reason of its consequences on the facts of a particular case. The reasonableness or unreasonableness of a delay which by itself and without any other consequence is an infringement of a constitutional right is much more difficult of definition.

In the course of his judgment from which I have already quoted, Powell J in the United States case of Barker v. Wingo pointed out a number of different factors which might go into the question as to whether or not a reasonably speedy trial had been granted to an accused. They involve such matters as the particular circumstances of the case where he states for example that the delay that can be tolerated for an ordinary street crime is considerably less than for a serious complex conspiracy charge. He also as I have done points to the difference which would weigh concerning a deliberate attempt to delay a trial in order to hamper the defence. But at p. 531 he states as follows:

A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

I am satisfied that with regard to the type of delay which is involved on the issues in this particular case that it is not valid to distinguish between the activity of the members of the Garda Síochána as the agent of the prosecuting authority on the one hand and the activities of other state servants engaged in the administration of the courts service on the other hand if the combined effect of these activities or the effect of one or other of them constitutes an infringement of one of the accused’s constitutional rights.

Furthermore, since what we are concerned with in this case is the question as to whether the delay was reasonable or unreasonable, of very considerable importance in such circumstances must be the reason for the delay. It does not seem to me again to be valid or a matter which is consistent with practical common sense to suggest that when called upon in a sense to justify a delay by the court the prosecution should be allowed to state that they cannot or will not do so by reason of the fact that it occurred under the aegis of state authorities which they are not directly controlling.

Lastly, in regard to general principles, I would conclude that an appellate court such as this is in relation to these proceedings should with considerable caution interfere with the discretion of a judge of the trial court involved on her decision as to what is or is not unreasonable delay, having regard to the particular insight which such a judge would have of the consequences of the trial which is proposed and of the state of affairs in regard to the services attached to the court concerned. A similar view was expressed in the judgment of the court delivered by Lord Templeman in Bell v. Director of Public Prosecutions of Jamaica where in respect of the proposed prohibition of a trial on the basis of delay in Jamaica he stated that in general the courts of Jamaica were best equipped to decide whether in any particular case the delay contravened the fundamental right granted by the Constitution of Jamaica which was in effect a right to a trial with reasonable expedition.

Applying these principles to the facts of the present case, I have come to the following conclusions. First, the particular offence with which the accused was charged is one of very considerable simplicity of presentation. The formalities involved in the arrest and taking of specimens pursuant to the provisions of s. 49 of the Act as amended can usually be proved by a single Garda Síochána witness. What could be described as the whole nub and merits of the case depends upon the certificate of the medical bureau and whilst there is an opportunity by conflicting scientific evidence to challenge that in practice, it is very seldom used. The consequences of conviction are of course in many instances extremely serious irrespective of any fine or other penalty imposed, by reason of the mandatory disqualification from driving which in the case of a number of citizens may involve a cessation or suspension of his/her capacity to retain employment. In these circumstances, the element of anxiety referred to as one of the features sought to be protected by the right of speedy trial is high and the potential disruption of a person’s livelihood and career can be quite extensive. A speedy trial would be important therefore in this particular type of relatively straightforward summary offence and where no reason for the particular delay was proved by the prosecution nor any evidence tendered or sought to be tendered by them, I conclude that it would not be appropriate for me to interfere with the discretion exercised by a judge of the District Court that in her view such delay was unreasonable. Having reached that conclusion, my conclusion, as I have stated, is that quite separate from questions of the impairment or prejudice of the defence in a fair trial that there is established a potential invasion of a constitutional right which it was her obligation to prevent, and that she was correct in dismissing the summons.

The answers to the questions raised in the case stated should in my view be:

(1) The learned judge was correct in law in dismissing the charge against the defendant.

(2) The learned judge was entitled in law to hold that there had been unreasonable delay.

(3) There was no necessity ‘to call upon the prosecution to explain delay’ though if they had sought to tender evidence on that issue it would have been appropriate to hear it.

BLAYNEY J

(O’Flaherty J concurring): This appeal raises an issue which has been the subject of a number of recent decisions in the High Court. In what circumstances is a person charged with an offence amounting to drunk driving entitled to have the charges dismissed on the ground of delay between the date of the alleged offence and the date of the hearing in the District Court?

The respondent appeared before the District Court on 12 February 1992 to answer a summons that on 19 April 1991 at Howth Road in the Dublin Metropolitan District he drove a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in his blood exceeded the concentration of 100 milligrams of alcohol per 100 millilitres of blood, contrary to s. 49(2) and (4)(a) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic (Amendment) Act 1978 and as amended by s. 3 of the Road Traffic (Amendment) Act 1984.

The prosecuting guard had applied for the issue of the summons on 27 May 1991. It was not issued until 19 December 1991. It was served shortly after that and when it came on for hearing on 12 February 1992, counsel for the respondent submitted that there had been unreasonable delay on the part of the prosecution, that the respondent had been prejudiced thereby, and that in the absence of any explanation on the part of the prosecuting authority as to how or why that delay had occurred, the case should be dismissed.

The learned district judge held that there had been an unreasonable delay on behalf of the State in prosecuting the alleged offence, in particular between the date of application for and the date of issue of the summons, for which no explanation or justification had been offered, and she dismissed the charge accordingly. The Director of Public Prosecutions, being dissatisfied with her determination, applied for a case stated, and on 20 November 1992 the learned district judge duly stated a case setting out the facts which I have outlined and asking the following question:

The opinion of the High Court is sought as to whether I was correct in law in dismissing the charge against the defendant and in particular:

(a) Whether in the circumstances of the case I was correct in law in holding that there had been unreasonable delay in the prosecution of the said offence which of itself entitled me to dismiss the case as aforesaid, and

(b) if so, whether it was incumbent on me before proceeding to dismiss the case to require or to call upon the prosecution to explain or justify the said delay.

The case came before Geoghegan J who decided that the learned district judge had been correct and the Director of Public Prosecutions now appeals against that decision.

The following cases were cited to Geoghegan J: State (Cuddy) v. Mangan [1988] ILRM 720; Director of Public Prosecutions v. Burnby, High Court, ex tempore judgment of Barr J delivered on 24 July 1989; Director of Public Prosecutions v. Corbett [1991] 2 IR 1; Director of Public Prosecutions v. Carlton [1993] 1 IR 81 and Director of Public Prosecutions v. Bouchier-Hayes High Court 1992 No. 1015 SS (Carroll J) 19 December 1992.

Geoghegan J held that the only one of these cases that governed the present case was Director of Public Prosecutions v. Burnby and in holding that the learned district judge had been correct in her finding he followed the decision of Barr J in that case.

The facts in Director of Public Prosecutions v. Burnby were as follows. The defendant was charged with the same offence as the respondent. It was alleged to have been committed on 22 January 1988. The prosecuting guard applied for a summons on 1 March 1988. It was not issued until 21 November 1988. It was served on 13 December 1988 and came on for hearing shortly after that. The learned district judge dismissed the summons on the ground of delay. In an ex tempore judgment Barr J agreed with that decision. The grounds for his decision appear from the following two paragraphs in counsel’s note of his judgment:

The offence in respect of which Mr Burnby is charged is triable by summons. The issue of a summons is subject to strict rules concerning the time for application for the issue of a summons. While there is no time limit for the service of the summons, it is implied, arising from the summary nature of the proceedings, that the summons be served within a reasonable period to ensure the early disposal of the proceedings. This is all the more important in these offences as the accused person is required to remember a number of technical factors that may be put in his defence. It is important that he should be aware of this and that, accordingly, the prosecution should be brought against him within a reasonable time. That time would seem to be within six months from the date of the alleged offence or close to that time. Mr Burnby was not served within such a reasonable time nor was he afforded an opportunity within such a period to consider the above matters.

It is contended that if Mr Burnby was prejudiced he should have said so in evidence and given testimony to that effect. I do not accept that this is necessary, particularly where the procedure is summary in nature. It is not necessary for the applicant to allege delay and then offer evidence on prejudice. The onus is on the prosecutor to show that the prosecution has been brought within a reasonable time. Where there is delay, some explanation is called for. There is no explanation of the delay in these proceedings. I am satisfied to follow the judgment of the High Court in State (Cuddy) v. Mangan [1988] ILRM 720 and the English authorities referred to in that judgment. In cases concerning prosecutions of this nature, when considerable technicalities are involved, the court is entitled to take the view that prejudice is likely to follow from delay.

In my opinion Barr J was incorrect in holding that the onus is on the prosecutor to show that the prosecution has been brought within a reasonable time. No authority for this proposition is cited in his judgment nor was any such authority cited by counsel for the respondent on the hearing of this appeal and I am satisfied that none exists. Where a valid summons is before the court, it seems to me in principle that if a defendant seeks to have the court dismiss it the onus is on him to satisfy the court that there are grounds for taking such a course. In R. v. Telford Justices, ex p. Badhan [1991] 2 All ER 854, a case in the Court of Appeal in England, Mann LJ distinguished between delay and lapse of time and held that in the case of each the onus was on the defendant to show that he was prejudiced in his defence or that a fair trial was no longer possible. He said in his judgment at p. 863:

This is not a case where the length of elapsed time is due to some act or omission of the prosecuting authority which is ‘unjustifiable’. In such a case, which is truly describable as one of ‘delay’, when an accused can show on the balance of probability that he has been, or will be, prejudiced in the preparation or conduct of his defence then an abuse of process should be found…. Leaving aside cases (of which this is not one) where the elapse of time is due to an accused having concealed his offence or his person, we are of the view that an elapse of time for which the prosecuting authorities are not to blame can be such that an accused can be heard to say that a fair trial is no longer possible and the committal proceedings would therefore be an abuse of process. The period of the elapse is that between the date of the commission of the alleged offence and the date when the accused can first formally raise the point, that is to say immediately before the proposed opening of the committal proceedings. As in a case of delay, we think the onus will normally be on the accused to show that on the balance of probability a fair trial is now impossible. How the accused is to discharge the onus upon him must depend on all the circumstances of the case.

That case was not concerned with summary proceedings but with proceedings to commit a defendant for trial on an indictable offence but it seems to me that the principle to be applied in both proceedings is the same and I would adopt and follow the statement of the law in the judgment of Mann LJ. I should add that Mann LJ was not dealing with excessive delay or lapse of time and I shall be referring to what the legal position is in such a case later in this judgment.

Geoghegan J followed the decision of Barr J in Director of Public Prosecutions v. Burnby and held that the onus was on the prosecution to explain or justify the delay between the date of the alleged offence and the date of the hearing. He said at p. 4 of his judgment:

In my view the district judge was entitled to exercise her discretion in the way she did having regard to the failure on the part of the prosecution to call or seek to call any evidence to explain or justify the delay. Accordingly the district judge was correct in law in dismissing the charge.

In my opinion the learned trial judge was wrong in so holding and accordingly was wrong in finding that the learned district judge was correct in law in dismissing the charge. I am satisfied that the answer to the general question in the case stated should be that she was not correct in doing so.

After posing the general question which I have just dealt with, the learned district judge then went on to put the two subsidiary questions as follows:

(a) Whether in the circumstances of the case I was correct in law in holding that there had been unreasonable delay in the prosecution of the said offence which of itself entitled me to dismiss the case as aforesaid, and

(b) if so, whether it was incumbent on me before proceeding to dismiss the case to require or to call upon the prosecution to explain or justify the said delay.

In my opinion the answer to the first of these questions is that there had not been unreasonable delay in the prosecution of the offence which of itself entitled the learned district judge to dismiss it. The lapse of time between the date of the alleged offence and the hearing in the District Court was not quite ten months and it was not suggested that there had been any delay on the part of the prosecuting guard in applying for the summons or in serving it when it was issued. The sole target for the criticism of the defence was the delay of about seven months in the issuing of the summons. But that was not strictly speaking a delay in the prosecution of the alleged offence. While no doubt the prosecuting guard by making persistent enquiries and complaints in the District Court office might have been able to have the summons issued more quickly, it was the District Court office that was principally to blame for the delay in the summons being issued. But even if the prosecution could be said to have been to blame for the delay in the issuing of the summons, since the summons came on for hearing within ten months of the date of the alleged offence, I am satisfied that the delay could not be said to be unreasonable.

Where, however, the delay is excessive, a prosecution may be dismissed. In such a case prejudice may be inferred. In R. v. Telford Justices, to which I have already referred, Mann LJ said in his judgment at p. 863H:

Where the period of delay is long, then it can be legitimate for the court to infer prejudice without proof of specific prejudice.

And the position is the same where there has been no delay but there has been a long lapse of time for which the prosecution is not to blame. To quote again from the judgment of Mann LJ at p. 864A:

As in cases of delay, we also think that where the elapse of time is a long one it may be inferred that a fair trial is no longer possible. Whether it is legitimate to draw the inference will depend on the circumstances of the case. Thus it may not be readily drawn where the prosecution is wholly dependent on available documents.

I would respectfully adopt and follow these statements of the law. But there still remains the difficult question of determining when a delay or lapse of time is excessive. It seems to me that no clear rule can be laid down in regard to this. It will depend on the particular circumstances of each case. Matters to be taken into account would include the nature of the offence, the cause of the delay and the possibility that the defence will be impaired (see Bell v. Director of Public Prosecutions of Jamaica [1985] AC 937). Looking at the present case in the light of these factors, I am satisfied that such delay as there has been has not been excessive.

I am also satisfied that the delay has not been such as to amount to a breach of the respondent’s constitutional right to a trial with reasonable expedition, which right was noted by Murphy J in his judgment in State (O’Connell) v. Fawsitt [1986] IR 362; [1986] ILRM 639 in the following passage which was approved by Finlay CJ in his judgment in the same case (with which Walsh and Henchy JJ concurred). The passage occurs in the judgment of Finlay CJ at p. 378/651:

It seems to me, therefore, that the authorities have established that the Constitution guarantees to every citizen that the trial of a person charged with a criminal offence will not be delayed excessively; or, to express the same proposition in positive terms, that the trial will be heard ‘with reasonable expedition…’ The nature of the delay must be considered as has been already pointed out, having regard to the circumstances of the case.

Finlay CJ then went on to comment on this passage as follows:

In my view, that is a correct, short summary of the true legal and constitutional position that a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition.

If in the present case I had concluded that there had been a breach of the respondent’s right to a trial with reasonable expedition, I would agree with the view expressed by the Chief Justice in the present case that such a conclusion could be reached even though the circumstances were not such as to establish any actual or presumptive prejudice to the respondent in his defence to the prosecution. Taking the view as I do, that there has been no breach of the respondent’s constitutional right, there is no need for me to say anything further on this aspect of the case.

As regards the second part of the learned district judge’s question, having regard to the way it is phrased, it seems to me that it would arise only if I took the view, which I do not, that there was an onus on the prosecution to explain the delay. In the circumstances, it does not call for an answer.

I would therefore allow the appeal and would answer the question of the learned district judge by saying that she was not correct in law in dismissing the charge against the defendant and in particular was not correct in law in holding that there had been unreasonable delay in the prosecution of the offence which of itself entitled her to dismiss the case.

DENHAM J

(O’Flaherty J concurring): The facts and issues in this appeal have been fully stated by Blayney J, with whom I agree.

The District Court is a court of summary jurisdiction. The history of the court was set out by O’Higgins CJ in State (McEvitt) v. Delap [1981] IR 125 where he stated at p. 129:

The jurisdiction to try offences in a summary manner is a jurisdiction which depends entirely on statute. According to O’Connor’s Justice of the Peace (1915 ed., vol 1, p.3) it was first given to Justices of the Peace by the statute 11 Hen. 7, c.3. in relation to a number of statutory offences. That statute was followed by 33 Hen. 8, c.6, which provided for summary conviction in relation to the offence of carrying dags or short guns. In ensuing years the statutory extension of the summary jurisdiction of justices spread to a large variety of offences — both common law and statutory. In the last century the Petty Sessions (Ireland) Act 1851, and the Fines Act (Ireland) 1851 Amendment Act 1874, and other statutes in relation to Dublin, regulated and prescribed the procedure for the exercise of summary jurisdiction by justices.

These various statutes became known collectively as the Summary Jurisdiction Acts. In relation to particular statutes which created an offence and/or provided for summary trial, it was sometimes enacted that the defendant should have an option to be tried by indictment or that the justices could so opt (e.g., s. 2 of the Merchandise Marks Act 1887, and s. 46 of the Offences Against the Person Act 1861). In the absence of such a provision, no right to trial by jury existed where summary trial was directed. Where an offence was created by statute and was not expressly or by necessary implication (Cullen v. Trimble (1872) LR 7 QB 416) made subject to summary jurisdiction, it could only be tried by a jury as an indictable misdemeanour ( Russell on Crime , 7th ed., p. 11: R. v. Hall [1891] 1 QB 747).

On the establishment of the State, the District Court of Justice became (inter alia) the court of summary jurisdiction in relation to criminal matters. By s. 77A of the Courts of Justice Act 1924, it was given all the jurisdiction which had been vested ‘by statute or otherwise in justices or a justice of the peace sitting at Petty Sessions’. This effectively transferred to the District Court of justice the criminal jurisdiction formerly exercisable by justices of the Peace under the Summary Jurisdiction Acts.

The reasons for a court of summary jurisdiction were given by Gannon J in Clune v. Director of Public Prosecutions [1981] ILRM 17 where he stated at p. 19:

A summary trial is a trial which could be undertaken with some degree of expedition and informality without departing from the principles of justice. The purpose of summary procedures for minor offences is to ensure that such offences are charged and tried as soon as reasonably possible after their alleged commission so that the recollection of witnesses may still be reasonably clear, that the attendance of witnesses and presentation of evidence may be procured and presented without great difficulty or complexity, and that there should be minimal delay in the disposal of the workload of minor offences.

Statutory time limits
Statutory time limits for the making of a complaint grounding proceedings in the District Court were addressed in the Petty Sessions (Ireland) Act 1851 where, inter alia, a time limit of six months within which to make a complaint was established.

Petty Sessions (Ireland) Act 1851, s. 10(4) provided:

In all cases of summary jurisdiction the complaint shall be made, when it shall relate to the nonpayment of any poor rate, county rate, or other public tax, at any time after the date of the warrant authorizing the collection of the same, and when it shall relate to the nonpayment of money for wages, hire, or tuition, within one year from the termination of the term or period in respect of which it shall be payable, and when it shall relate to any trespass, within two months from the time when the trespass shall have occurred, and in any other case within six months from the time when the cause of complaint shall have arisen, but not otherwise.

Statutory procedures for the initiating of criminal procedures in the District Court were amended in the Courts (No. 3) Act 1986. However, the ‘time’ element remained the same. S. 7(a) states:

Any provision made by or under any statute passed before the passing of this Act relating to the time for making a complaint in relation to an offence shall apply, with any necessary modifications, in relation to an application under subs. (4) of this section.

Given that the necessary steps of issuing and serving the summons take place after an application for a summons i.e. after a time which is statutorily limited to six months, the legislation envisages a time which may be reasonably in excess of six months.

Constitutional time limits
The constitutional concept of a right of ‘reasonable expedition’ was identified by Gannon J in State (Healy) v. Donoghue [1976] IR 325 at p. 336 and endorsed by O’Higgins CJ at pp. 349–350.

There is no absolute frame of time limits under the constitutional concept of ‘reasonable expedition’. It is a matter of determining what is reasonable, which will depend on the circumstances of each case.

Court process delay
I am satisfied that the prosecution cannot deny responsibility for delay by relying on the fact that the gardaí applied well within the time for the summons and that the reason for the delay was in the court computer issuing process. It is not an answer to the respondent’s case that a state agency, other than the Director of Public Prosecutions, is to blame. If the appellant’s right of reasonable expedition is in issue arising out of state delay, whether it be of the prosecution or not, it is for the prosecution to explain or defend and bear responsibility at the hearing of the case.

The relevant dates in this case are:

(i) 19 April 1991, date of alleged offence,
(ii) 27 May 1991, gardaí applied for summons,
(iii) 19 December 1991, summons issued,
(iv) summons served shortly after,
(v) 12 February 1992, case on for hearing.
Thus, the time from the date of the alleged offence to the hearing is between nine and ten months. The prosecution cannot be excused liability for the delay by virtue of the fact that it was not their duty to issue the summons. The fact of the delay, be it by the Director of Public Prosecution’s office, the garda office, or other state or court agency, is a potentially detrimental matter to the accused for which the prosecution has to answer in court.

Thus, whereas the time taken is broken down into the units as set out previously, the essential fact is that there is between nine and ten months’ delay between the alleged offence and the date of hearing, being the first day in court. The question is whether that delay of between nine and ten months is unreasonable delay such as to warrant the case being dismissed.

While the delay may be detrimental to this accused (and there is no evidence of that) it may also be to his advantage. Not only may he claim the delay as a defence but in other ways he may be able to manipulate the system to his advantage.

Delay may in certain circumstances work more to the disadvantage of the prosecution than to the accused. However, as a general principle, delay does not serve the interests of justice.

Onus
I agree with Blayney J that the onus is not on the prosecution to explain or justify delay. A valid summons being before the court, it is for the defendant to make any case he wishes, including the defence that there has been unreasonable delay. The onus rests upon the defendant.

In this case counsel for the respondent submitted that there had been unreasonable delay on the part of the prosecution; that the respondent had not been prosecuted with due expedition; that the respondent had thereby been prejudiced and that in the absence of any explanation on the part of the prosecuting authorities of how the delay occurred the case should be dismissed.

There was no evidence before the court of specific prejudice occurring to the respondent because of delay.

Responsibility
The prosecution bears the responsibility in court for the time lapse between the charge and the trial of all steps taken by state bodies. Thus while the garda was very efficient in applying for the summons the prosecution also bears responsibility in the adversarial system for the time elapse between the application for the summons and the issuing of the summons even though this function is carried out by an entirely separate (and independent from prosecution control) state body.

Thus, the Director of Public Prosecutions bears responsibility for the entire time elapse in this case and chose not to call witnesses to explain the delay.

Unreasonable delay
The statutory scheme has established a six months’ time limit within which the complaint may be made. Thereafter the necessary steps of issuing and serving the summons must occur. This must take place within a reasonable time. What is a reasonable time? In the absence of any specific prejudice being alleged or proved general principles must apply.

The fact that approximately eight months of the elapsed time in this case occurred as a result of a delay in the courts’ issuing process is not a matter, or a delay, to be endorsed by this or any court, especially in the absence of an explanation. The fact that it is computer based should have made it even more efficient.

It is highly undesirable that the court process should be as lengthy as in this case. It is a matter to be addressed by the appropriate authorities as a matter of urgency. Further, there may be an issue of statutory duty to be analysed.

However, as a general principle of law I cannot agree that a time lapse between an offence and the case coming on for hearing of between nine and ten months, in the absence of evidence of prejudice to the accused, is such an unreasonable delay on behalf of the State that of itself it warrants dismissal of the summons.

A time lapse of what is in effect just over three and a half months after the expiration of the six months’ time limit within which an application for the issue of a summons must be made, when there is no specific evidence of prejudice, is not so unreasonable that it is unjust.

The specific question posed by the district judge was:

(a) Whether in the circumstances of the case I was correct in law in holding that there had been unreasonable delay in the prosecution of the said offence which of itself entitled me to dismiss the case as aforesaid.

As previously set out I am satisfied that the prosecution must be responsible, in court, for any delay caused by state bodies. Thus, the Director of Public Prosecutions cannot succeed by stating that it was the fault of the District Court office. However, the delay of between nine and ten months, while reprehensible and not endorsed, is not such a length of time as to entitle the district judge to dismiss the summons in the absence of a finding of specific prejudice.

Excessive delay — Abuse of process
As to whether an excessive delay can infer prejudice so as to prohibit a trial must depend on the cirumstances of each case.

In a situation where the legislature legislating on behalf of the people has not imposed an Act of Limitations on crimes it is for the court to balance the constitutional rights. The court has to balance the freedom and rights of the accused and the requirements of an ordered society.

Whereas there is no specific constitutional right to a speedy trial there is an implied right to reasonable expedition, under the due process clause. An accused is entitled to have a trial free of abuse of process.

I am satisfied that this right falls to be analysed on an ad hoc basis. In determining whether that right has been infringed the four factors identified by the Supreme Court in the United States of America in considering their speedy trial right in Barker v. Wingo (1972) 407 US 514 are matters, inter alia, to be considered. Powell J stated at p. 530:

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors:

Length of delay,
the reason for delay,
the defendant’s assertion of his right,
and prejudice to the defendant.
In regard to prejudice the court identified (at p. 532) three of the interests of the defendant to be protected as:

(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defence will be impaired.
The court said:

Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defence witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected because what has been forgotten can rarely be shown.

Applying the first factor of the four set out above I am satisfied that in this case a length of between nine and ten months from the alleged offence to the trial of the action, where there is no evidence of specific prejudice, is not such a delay as to infringe any constitutional right of the accused in the circumstances of this case.

The second specific question of the district judge does not arise. However, from the judgment herein it is clear that I am satisfied that the burden of making the case that there has been a delay is for the defendant, and it is for the prosecution to determine whether they will respond or not, thus it is not incumbent on the district judge to require or call on the prosecution to explain or justify the delay. It may well be that in many cases an explanation from the prosecution would be relevant. Or an absence of an explanation by the prosecution may be a determining factor for the court.

Thus, I would allow the appeal, and answer the question of the district judge by stating that she was not correct in law in dismissing the charge against the defendant, and was not correct in law in holding that there had been unreasonable delay in the prosecution of the said offence which of itself entitled the district judge to dismiss the case.