Attorney General v McBride

• Jurisdiction: Ireland
• Court: High Court (Irish Free State)
• Judgment Date: 06 September 1928
• Date: 06 September 1928

Attorney-General v. M'Bride.

THE ATTORNEY-GENERAL

and

SEAN M'BRIDE

Criminal Law - New offence created by statute - Being suspected of an offence - Inviolability of the liberty of the person - Constitution of the Irish Free State - Amendment - Construction of statute - District Justice declining jurisdiction - Mandamus - Alternative remedy - Case stated - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1of 1922), Sch. I, Arts. 6, 47, and 50 - Public Safety Act, 1927 (No. 31of 1927), sects. 3, 16, and Sch., Part I.

Art. 6 of the Constitution of the Irish Free State provides: "The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law . . ."

The Public Safety Act, 1927 (No. 31 of 1927), sect. 3, provides: "Every provision of this Act which is in contravention of any provision of the Constitution shall to the extent of such contravention operate and have effect as an amendment for so long only as this Act continues in force of such provision of the Constitution."

Sect. 16, sub-sect, 1, of the same Act provides: "It shall be lawful for a superintendent of the Gárda Síochána to arrest or cause to be arrested any person whom he suspects of being or having been engaged or concerned in the commission of any of the offences mentioned in Part I of the Schedule to this Act, and whose detention is in the opinion of such superintendent necessary or desirable for the proper investigation of such offence or any other like offence." Sub-sect. 2 provides: "Whenever any person is arrested under this section the superintendent of the Gárda Síochána responsible for such arrest shall, as soon as conveniently may be, bring such person before a Justice of the District Court, and, upon such superintendent stating to such Justice that in his opinion there is ground for suspecting such person of being or having been engaged or concerned in the commission of any of the offences mentioned in Part I of the Schedule to this Act, and that his detention is necessary or desirable for the proper investigation of such offence, or any other like offence, such Justice shall order such person to be detained in custody for seven days."

Held, that the amendment of Art. 6 of the Constitution contained in sect. 16 of the Public Safety Act, 1927, is authorised by sect. 3 of that Act, the amendment being made "by way of ordinary legislation," as provided by Art. 50 of the Constitution.

Held also, that sect. 16 creates the new, artificial, or statutory offence of being suspected of having been engaged or concerned in the commission of any of the specified offences, and that the operation of the section extends to suspicion in respect of offences committed before the Act was passed.

Where an application has been made to a District Justice for an order under sect. 16, sub-sect. 2, for the detention of a person suspected of an offence under the Act, and the District Justice refuses to make the order on grounds unsustainable in law, mandamus lies, notwithstanding that the District Justice has offered to state a case for the High Court, a case stated not being an equally convenient and effective remedy in the circumstances.

Certiorari and Mandamus.

The following notice of motion was served, on behalf of the Attorney-General, upon the defendant, Sean M'Bride, and also upon the Clerk of the District Court (Metropolitan Area), Dublin:—

"Take notice, that counsel on behalf of the Attorney-General will on Monday, the 5th day of September, 1927, at the sitting of the Court, (by leave of Mr. Justice Hanna, duly granted on the 31st day of August, 1927, pursuant to order served herewith), apply for an order that a writ of mandamusdo issue, directed to E. J. Little, Esq., District Justice of the County of the City of Dublin, directing the said District Justice, on production before him of one, Sean M'Bride, to order the detention in custody of the said Sean M'Bride for the period of seven days, pursuant to sect. 16, sub-sect. 2, of the Public Safety Act, 1927 (No. 31 of 1927) (1); and, further, for an order that a writ ofcertiorari do issue, directed to the said District Justice and the Clerk of the District Court, Metropolitan Area, Inns Quay, Dublin, to return, and make return, to this Court of all orders, depositions, and matters in reference to an application made to the said District Justice pursuant to the said section of the said Act for the purpose, and to the intent, that the order made by the said District Justice on the 31st day of August, 1927, refusing to order the said detention pursuant to the said Act, may be quashed as being bad in law, and made without jurisdiction, and in excess of jurisdiction, and on the grounds that it was mandatory on the said

District Justice to make an order for detention aforesaid on the statement submitted to him by Superintendent Ennis, of the Gárda Síochána, or for such further or other order as to the Court may seem just; which application will be grounded on the affidavit of the said Superintendent Peter Ennis, already filed in the proper offices, copy of which is sent herewith, the nature of the case and the reasons to be offered."

The facts are set out in the judgment.

Cur. adv. vult.

Hanna J. :—

As this case raises questions of far-reaching importance under the Public Safety Act, 1927, I reserved judgment to put my reasons in writing.

On 25th August, 1927, the prosecutor, Peter Ennis, a superintendent, Gárda Síochána, arrested the defendant, Sean M'Bride, as a person who was suspected of having been engaged in the offence of conspiracy to murder the late Mr. Kevin O'Higgins, being an offence mentioned in Part I of the schedule to the said Act. M'Bride was brought before Mr. Little, the District Justice, on the same day, and the prosecutor applied to...