O'Duffy (The State) v Bennett and Others

• Jurisdiction: Ireland
• Court: High Court (Irish Free State)
• Judgment Date: 21 March 1935
• Date: 21 March 1935

The State (O'Duffy) v. Bennett and Others.

THE STATE (at the prosecution of EOIN O'DUFFY)

and

COLONEL FRANCIS BENNETT, COLONEL DAVID McKENNA, MAJOR JOHN V. JOYCE, COMMANDANT CONOR WHELAN, COMMANDANT PATRICK TUITE, being the Members of the Constitution (Special Powers) Tribunal, and in the Matter of the Courts of Justice Act, 1924 (1)

High Court.

Prohibition - Constitution (Special Powers) Tribunal - Whether an inferior Court - Jurisdiction - Whether subject to prohibition - Order of Tribunal made under seal - Whether reviewable - Certificate of Executive Minister necessary to make certain acts offences triable by the Tribunal - Whether certificate a condition precedent to jurisdiction - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922), Sch. I Art 2a- Constitution (Amendment No. 17) Act, 1931 (No. 37 of 1931) - Conditional order for prohibition - Procedure for showing cause against making conditional order absolute - Admission of additional evidence - Rules of the Supreme Court (Ir.), 1905, Or. LXXXIV, rr. 249, 250.

The Constitution (Amendment No. 17) Act, 1931, provides that the Constitution of the Irish Free State shall be amended by the insertion therein, immediately after Article 2 thereof, of the Article set forth in the Schedule to the Act, and that the said Article shall be numbered "2a"and may be cited as Article 2a of the Constitution.

The Schedule to the Act (i.e., Article 2a) provides (sect. 4) for the establishment of a tribunal to be known as the "Constitution (Special Powers) Tribunal."

Sect. 5, sub-sect. 4, provides: "The Tribunal shall have an official seal which shall be officially and judicially noticed and every document sealed with such seal and purporting to be an order or other act of the Tribunal shall be received in evidence in all Courts without further proof and be deemed to be an order or other act (as the case may require) of the Tribunal made or done with competent jurisdiction."

Sect. 6, sub-sect. 1, provides: "The Tribunal shall have jurisdiction to try and to convict or acquit all persons charged with an offence mentioned in the Appendix to this Article, and brought before the Tribunal under this Article, and also jurisdiction to sentence every person convicted by the Tribunal of any such offence." Sect. 6, sub-sect. 5, provides: "No appeal shall lie from any order, conviction, sentence or other act of the Tribunal, and the Tribunal shall not be restrained or interfered with in the execution of its jurisdiction or powers under this Article by any Court nor shall any proceedings before the Tribunal be removed by certiorari to any Court."

Sect. 20 provides: "Every person who is a member of an unlawful association shall be guilty of an offence triable by the Tribunal . . ."

Among the offences set out in the Schedule to the Article as triable by the Tribunal is (clause 7): "Any offence whatsoever . . . in respect of which an Executive Minister certifies in writing under his hand that to the best of his belief the act constituting such offence was done with the object of impairing or impeding the machinery of government or the administration of justice."

Held by the High Court (Sullivan P., Hanna and O'Byrne JJ.), that the Tribunal is an inferior Court to which prohibition lies.

Held also, that the provisions of sect. 5, sub-sect. 4, do not protect orders or acts of the Tribunal made without jurisdiction from prohibition, even though made under seal.

Held also, that the provisions of sect. 6, sub-sect. 5, are limited to acts done by the Tribunal in the execution of their legitimate powers, and do not protect proceedings which are not within their jurisdiction.

Held further, that the words "is a member" in sect. 20 mean who is a member at the time when Part IV of Article 2a containing the section came into operation, or who becomes a member at any subsequent time while that Part of the Article remains in force.

Accordingly, where a person is charged with being a member of an unlawful association at a time subsequent to that at which Part IV of the Article came into operation and while that Part was still in force, the Tribunal cannot be prohibited from hearing the charge if the accused person be properly brought before the Tribunal.

The Tribunal issued a summons and order stating that one, E. O'D., was charged by the Attorney-General with certain offences therein set out, and this document was served on E. O'D. The document concluded by stating that the Tribunal thereby ordered E. O'D. to appear before the Tribunal at a stated time and place, and in default of appearance that the Tribunal would proceed to the hearing of the said charges and would make such order thereon as to justice should appertain.

Held by Sullivan P. and O'Byrne J., Hanna J. dissenting, that the Tribunal had jurisdiction under sect. 20 to try two of the charges against E. O'D., viz., of being a member of an unlawful association, and that a conditional order for prohibition, obtained by E. O'D., to prohibit the Tribunal from hearing any of the charges, should be discharged as to those two charges.

But held further by the Court that the conditional order should be made absolute as regards the other charges, as those charges required, to make them triable by the Tribunal, a certificate of an Executive Minister as prescribed by clause 7 of the Schedule to Art. 2a, and, per Sullivan P., the summons did not state that any such certificate had been given, and therefore did not show jurisdiction on its face, and there wag, therefore, no proper charge to found the jurisdiction of the Tribunal; per Hanna J., though a certificate under clause 7 had been given, it was void for uncertainty and duplicity, and of no effect; per O'Byrne J., the certificate did not show that it was made prior to the issue of the summons, and the fact of its having been made should have been stated in the summons, and therefore these charges were not within the jurisdiction of the Tribunal.

Held also by Hanna J. that the summons was invalid and without legal authority as Art. 2a did not authorise the Tribunal to summon or order any person to appear before them in respect of charges alleged by the Attorney-General, and therefore the conditional order for prohibition should be made absolute in respect of all the charges.

Held further by Sullivan P. and O'Byrne J., Hanna J. dubitante, that a party who elects to show cause against making a conditional order absolute by serving a notice of motion and filing an affidavit of service thereof in pursuance of Or. LXXXIV, r. 250, of the Rules of the Supreme Court (Ir.), 1905, undertakes the burden of satisfying the Court that on the facts stated in the prosecutor's affidavit the conditional order should be discharged and he is not entitled to rely on any matter of fact which is not stated in such affidavit, and a notice of motion which purports to rely on any matter of fact not so stated is irregular and inoperative to bring such matter to the notice of the Court, and so much of the said notice as refers to such matter should be struck out. Accordingly, the Tribunal having elected to show cause against making the said conditional order absolute under the Or. LXXXIV, r. 250, a certificate by an Executive Minister, given for the purpose of clause 7 of the Schedule to the said Art. 2a, which was not referred to in the prosecutor's affidavit, was not admitted in evidence by Sullivan P. and O'Byrne J.; Hanna J. refraining from basing his judgment on this point.

Prohibition.

The facts have been summarised in the head note and are fully stated in the judgment of Sullivan P., as also are the arguments and the cases cited.

Cur. adv. vult.

Sullivan P. :

This is a motion by the Attorney-General to show cause against the conditional order made in this matter, dated the 1st January, 1934, whereby it was ordered that an order of prohibition do issue, directed to the Constitution (Special Powers) Tribunal and the several members thereof, prohibiting them from proceeding with the hearing or determination of the charges preferred by the Attorney-General against Eoin O'Duffy, set forth in a summons and order, dated the 22nd December, 1933, issued by the said Tribunal, and served on the said Eoin O'Duffy, ordering him to appear before the said Tribunal on the 2nd January, 1934. The grounds stated in the conditional order are:—

(1) That the said Tribunal has no jurisdiction to hear and determine the said charges or any of them.

(2) That the said charges do not charge any offence within the jurisdiction of the said Tribunal.

(3) That the said summons and order were issued and made without and in excess of jurisdiction.

(4) That the first and second of the said charges do not charge any offence or crime known to the law.

The summons and order, dated the 22nd December, 1933, issued by the Constitution (Special Powers) Tribunal, states that Eoin O'Duffy is charged by the Attorney-General of Saorstát Éireann éireann with the following offences:—

First Count:—Being a member of an unlawful association contrary to sect. 20 of Article 2a of the Constitution.

Particulars of offence:—Eoin O'Duffy, between the 8th December, 1933, and the 17th December, 1933, was a member of an unlawful association, namely, the Association styling itself and generally known as the Young Ireland Association (also known as the Blue Shirts).

Second Count:—Being a member of an unlawful association contrary to sect. 20 of Article 2a of the Constitution.

Particulars of offence:—Eoin O'Duffy, between the 22nd August, 1933, and the 9th December, 1933, was a member of an unlawful association, namely, the National Guard (also, or formerly, known as the Army Comrades Association).

Third Count:—Sedition.

Particulars of offence:—Eoin O'Duffy, on the 9th December, 1933, at Ballyshannon in the County of Donegal in the hearing of certain members of the Garda Siochana and...