Cox v Ireland
| Jurisdiction | Ireland |
| Judge | FINLAY C.J. |
| Judgment Date | 01 January 1992 |
| Neutral Citation | 1991 WJSC-SC 1772 |
| Court | Supreme Court |
| Docket Number | [1990 No. 368P] |
| Date | 01 January 1992 |
BETWEEN
and
1991 WJSC-SC 1772
Finlay C.J.
Hederman J.
McCarthy J.
O'Flaherty J.
Egan J.
THE SUPREME COURT
Synopsis:
CONSTITUTION
Statute
Validity - Offence - Penalties - Imposition - Scheduled offence - Conviction in Special Criminal Court - Employment - Forfeiture - Re-employment - Disqualification - Administration of justice - Equality before the law - Personal rights - Right to earn livelihood - Unjustified interference - Offences Against the State (Scheduled Offences) Order, 1972 (S.I. 142) - Offences Against the State Act, 1939, ss. 6, 14, 34 - Constitution of Ireland, 1937, Article 40 - (361/90 - Supreme Court - 11/7/91) 1992 2 IR 503
8Cox v. Ireland|
PROFESSIONS
Teacher
Offence - Conviction - Imprisonment - Expiration - Re-employment - Statutory prohibition - Validity of statute - (361/90 - Supreme Court - 11/7/91) - [1992] 2 I.R. 503 - [1991] 13 DULJ 118
|Cox v. Ireland|
WORDS AND PHRASES
"As far as practicable"
Enactment - Object - State - Security - Protection - Offence - Penalties - Impermissibly wide application of statutory sanctions - Prohibition of re-employment of convicted person - Personal rights not defended as far as practicable - (361/90 - Supreme Court - 11/7/91) - [1992] 2 I.R. 503 - [1991] 13 DULJ 118
|Cox v. Ireland|
Citations:
OFFENCES AGAINST THE STATE ACT 1939 S34(1)
OFFENCES AGAINST THE STATE ACT 1939 S34(2)
OFFENCES AGAINST THE STATE ACT 1939 S34(3)
OFFENCES AGAINST THE STATE ACT 1939 S34(4)
CONSTITUTION ART 34.4.5
FIREARMS ACT 1925 – 1971
OFFENCES AGAINST THE STATE ACT 1939 PART V
OFFENCES AGAINST THE STATE ACT 1939 PART lV
OFFENCES AGAINST THE STATE ACT 1939 S35(2)
OFFENCES AGAINST THE STATE ACT 1939 S35(3)
OFFENCES AGAINST THE STATE ACT 1939 S35(5)
OFFENCES AGAINST THE STATE ACT 1939 S38
OFFENCES AGAINST THE STATE ACT 1939 S36(1)
OFFENCES AGAINST THE STATE ACT 1939 S36(3)
OFFENCES AGAINST THE STATE ACT 1939 S45(1)
OFFENCES AGAINST THE STATE ACT 1939 S45(2)
OFFENCES AGAINST THE STATE ACT 1939 S47(1)
OFFENCES AGAINST THE STATE (SCHEDULED OFFENCES) ORDER 1972 SI 142/1972
MALICIOUS DAMAGES ACT 1861
OFFENCES AGAINST THE STATE (SCHEDULED OFFENCES NO 2) ORDER 1972 SI 282/1972
CONSTITUTION ART 40.1
DPP, PEOPLE V QUILLIGAN 1986 IR 495
CONSTITUTION ART 40.3
OFFENCES AGAINST THE STATE ACT 1939 S36
CRIMINAL LAW ACT 1976 S2
OFFENCES AGAINST THE STATE ACT 1939 S35(4)
OFFENCES AGAINST THE STATE ACT 1939 S34
CONSPIRACY AND PROTECTION OF PROPERTY ACT 1875 S7
CONSTITUTION ART 38.1
OFFENCES AGAINST THE STATE ACT 1939 S14
DECISION OF THE COURT pronounced pursuant to Art. 34.4.5 of the Constitution by FINLAY C.J., by direction of the Court, on the 11th day of July 1991
This is an appeal from the judgment and order of the High Court dated the 2nd October 1990, made by Barr J., whereby in judicial review proceedings commenced by plenary summons he made a declaration that "the provisions of subsections (1) to (4) of Section 34 of the Offences Against the State Act 1939are contrary to the provisions of the Constitution of Ireland, and void".
By the same order it was declared that the Plaintiff was entitled to recover damages from the State and the issue of damages was directed to stand adjourned for plenary hearing.
This decision of the Court, pronounced pursuant to Article 34.4.5 of the Constitution, deals only with the issue of the validity of the impugned Section of the Act of 1939 having regard to the provisions of the Constitution.
The essential facts leading to the institution of these proceedings were not in dispute and were as follows.
The Plaintiff is a qualified second level teacher, holding the degree of Bachelor of Education and a teacher training certificate from the New University of Ulster and Queen's University Belfast, respectively. He was from 1974 up to and including the month of February 1988 a teacher of physical education and geography at Moyne Community School, Co. Longford. On the 17th February 1988 he was convicted on a plea of guilty by the Special Criminal Court of offences contrary to the Firearms Acts 1925to 1971relating to the unlawful possession of three rifles and a quantity of ammunition. He was sentenced by that Court to two years" imprisonment. He served his sentence and, after remission, was released from prison on the 18th August, 1989. While the Plaintiff was in prison Moyne Community School employed a substitute teacher in his place. The Board of Management of that school would have been prepared to re-employ him in his original position from the commencement of the school year in September, 1989. The decision of the Minister for Education was sought on the possibility of re-employing the Plaintiff but both he and the Board of Management was informed by the fourth-named Respondent, an officer of the Minister, that the provisions of Section 34 of the Act had to apply to his case.
Section 34 of the Offences Against the State Act, 1939provides:
2 "34.- (1) Whenever a person who is convicted by a Special Criminal Court of an offence which is, at the time of such conviction, a scheduled offence for the purpose of Part V of this Act, holds at the time of such conviction an office or employment remunerated out of the Central Fund or moneys provided by the Oireachtas or moneys raised by local taxation, or in order under or as a paid member of a board or body established by or under statutory authority, such person shall immediately on such conviction forfeit such office, employment, place, or emolument and the same shall forthwith become and be vacant.
(2) Whenever a person who is convicted by a Special Criminal Court of an offence which is, at the time of such conviction, a scheduled offence for the purposes of Part V of this Act, is at the time of such conviction in receipt of a pension or superannuation allowance payable out of the Central Fund or moneys provided by the Oireachtas or moneys raised by local taxation, or the funds of a board or body established by or under statutory authority, such person shall immediately upon such conviction forfeit such pension or superannuation allowance and such pension or superannuation allowance shall forthwith cease to be payable.
(3) Every person who is convicted by a Special Criminal Court of an offence which is, at the time of such conviction, a scheduled offence for the purposes of Part V of this Act, shall be disqualified -
(a) for holding, within seven years after the date of such conviction, any office or employment remunerated out of the Central Fund or moneys provided by the Oireachtas or moneys raised by local taxation or in or under or as a paid member of a board or body established by or under statutory authority,
(b) for being granted out of the Central Fund or any such moneys or the funds of any such board or body, at any time after the date of such conviction, any pension, superannuation allowance, or gratuity in respect wholly or partly of any service rendered or thing done by him before the date of such conviction, and
(c) for receiving at any time after such conviction any such pension, superannuation allowance, or gratuity as is mentioned in the next preceding paragraph of this section which was granted but not paid on or before the date of such conviction.
(4) Whenever a conviction which occasions by virtue of this section any forfeiture or disqualification is quashed or annulled or the convicted person is granted a free pardon such forfeiture or disqualification shall be annulled, in the case of a quashing or annulment, as from the date of the conviction and, in the case of a free pardon, as from the date of such pardon.
(5) The Government may, at their absolute discretion, remit, in whole or in part, any forfeiture or disqualification incurred under this section and restore or revive, in whole or in part, the subject of such forfeiture as from the date of such remission."
This Section is contained in Part IV of the Act which is part of the permanent legislation, but it only applies in respect of scheduled offences which are tried in a Special Criminal Court under Part V of the Act.
Part V of the Act only comes into operation when the Government makes a proclamation declaring that it is satisfied that the ordinary courts are inadequate to secure effective administration of justice and the preservation of public peace and order. (Section 35, subsections (2) and (3)). The Government may at any time while Part V of the Act is in force by a proclamation declare that it shall cease to be in force. (Section 35(4)).
Dail Eireann has the power at any time to pass a resolution annulling the Government's proclamation. (Section 35(5)).
As soon as may be after the coming into force of Part V of the Act a court to be known as the Special Criminal Court shall be established for the purposes of that Part of the Act. (Section 38).
When Part V of the Act is in force the Government may by order declare that offences of a particular class or kind or under a particular enactment, shall be scheduled offences for the purposes of that Part. (Section 36(1)). The Government may at any time declare that the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment, which are for the time being scheduled offences, can be secured through the medium of the ordinary courts and upon such declaration the offences concerned shall cease to be scheduled offences. (Section 36(3)).
When Part V...
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