Egan v Macready and Others

JurisdictionIreland
CourtChancery Division (Ireland)
Judgment Date26 July 1921
Date26 July 1921
Docket Number(1921. No. 572.)
Egan v. Macready.
JOHN J. EGAN
and
GENERAL MACREADY and Others
(1921. No. 572.)

Martial law - Habeas corpus - State of war - Prerogative of Crown - Defence of the Realm Consolidation Act, 1914 (5 Geo. 5, c. 8) - Restoration of Order in Ireland Act, 1920 (10 & 11 Geo. 5, c. 31) - Military Courts - Court-martial - Disobedience to writ of habeas corpus - Writ of attachment against military authority.

The prisoner E. was arrested and charged with committing an offence"in that he, on the 26th day of May, 1921, near Quin, Co. Clare, in Ireland, was improperly in possession of ammunition, namely, ninety-seven rounds of revolver ammunition and five rounds of service ammunition."

On this charge he was brought before a military Court, not a Court-martial, consisting of some military officers, and was convicted and sentenced to death. On an application to make absolute a conditional order for habeas corpus notwithstanding cause shown:

Held, that a state of war being in existence at the date of the passing of the Restoration of Order in Ireland Act, 1920, the executive powers of the military authorities were limited by that Act, and that accordingly an offence punishable by death could be tried by no other military tribunal than a Court-martial. Conditional order for issue of a writ of habeas corpus made absolute.

Marais's Case, [1902] A. C. 109, distinguished.

R. v. Allen, [1921] 2 I. R. 241, not followed.

Motion on Notice to make absolute notwithstanding cause shown a conditional order dated 14th June, 1921, for the issue of a habeas corpus directed to the defendants, the Right Honourable Sir Frederick Cecil Nevil Macready, Commander-in-Chief of the Forces in Ireland, Major-General E. P. Strickland, and Brigadier-General Cameron, and the Governor of His Majesty's Male Prison in Limerick.

The facts and circumstances of the application sufficiently appear from the following extracts from the affidavit of Mr. John B. Lynch, of Ennis, solicitor for the prisoner:—

2. I acted for the said plaintiff in connexion with a charge which was preferred against him by the military authorities for having, as alleged, committed an offence in that he on the 26th day of May, 1921, near Quin, County Clare, in Ireland, was improperly in possession of ammunition, namely, ninety-seven rounds of revolver ammunition and five rounds of service ammunition. The said charge was investigated by a military Court assembled at the New Barracks, in the City of Limerick, on the 11th day of June, 1921. I was present during the entire progress of the said investigation, and instructed counsel on behalf of the said plaintiff. The deponent referred to a document headed "charge-sheet," sent to me by the military authorities as solicitor for the plaintiff, upon which A, &c., a copy of this document was served on the accused.

3. At the said investigation evidence for the prosecution was given to the effect that at a place on the public road, between Ennis and Quin, on May 26th, 1921, witnesses in a military motor lorry observed the plaintiff cycling towards them at a time when the lorry was coming round a bend in the road, and that they saw the plaintiff get on to the space between the road and wall fencing same, get off his bicycle, throw a parcel over the wall, and attempt to get over the wall himself; that one of the witnesses for the prosecution then got over the wall and picked up in the field a parcel which contained the ammunition referred to in the charge. It was admitted by the witnesses for the prosecution that plaintiff was about thirty yards from the lorry when first observed, that the lorry was going at twenty miles an hour, and plaintiff cycling at a moderate pace, and that the time during which the witnesses for the prosecution could have observed the plaintiff doing the act alleged was approximately two seconds. Evidence was given on behalf of the plaintiff that he was proceeding on his ordinary business from Ennis to Sixmilebridge to repair a motor engine, the property of the Clare County Council (he being a motor engineer under the Council) in accordance with a prior arrangement made; a number of witnesses proved that they met him at various points on the road between Ennis and where he was arrested, and that he had no parcel; other witnesses examined for the plaintiff proved that two men were seen in the vicinity of the place where the parcel was found, who ran away when the lorries approached, but escaped through the fields, although fired on by the military. It was admitted by one of the witnesses for the prosecution that this firing was a "matter of minutes" after the arrest of the plaintiff, and about 100 yards away from where he was arrested. The plaintiff elected to give evidence on oath as to these facts before his counsel stated the defence, and before the other witnesses on behalf of the plaintiff were examined. The plaintiff was not cross-examined by the prosecutor.

At no stage of the proceedings was any evidence given before or document handed in to the tribunal to show that the alleged offence took place in a martial law area, neither was any evidence given before the tribunal as to the existence or publication of any proclamation attaching the death penalty to the offence alleged in the said charge-sheet. It was also admitted by the prosecution that there were no previous convictions against the plaintiff. A short time after the conclusion of the said investigation the plaintiff was informed that he had been convicted of the said charge and sentenced to death.

In reply, an affidavit was filed on behalf of the Crown similar to that sworn by the Rt. Hon. Sir Cecil Frederick Macready inR. v. Allen(1), in which General Macready deposed that "a state of open rebellion still existed in, amongst other places, the county of Clare and adjoining districts, such state of rebellion amounting to actual warfare of a guerilla character."

On behalf of the prisoner several affidavits were filed from persons residing in the county of Clare and the town of Ennis traversing the averment that a state of war existed in the county of Clare and adjoining districts. The several deponents alleged that the business of the last Assizes, Quarter Sessions, and Petty Sessions, had been carried on in the usual way, and that trade, business, and the ordinary affairs of life had been conducted in a peaceful and quiet manner, and that in no way could the county of Clare or town of Ennis be described as being in a state of war or open rebellion.

Cur. adv. vult.

O'Connor M.R. :—

In this matter a conditional order was made on the 14th June, 1921, for the issue of a writ of habeas corpus, directed to the Commander of the Forces in Ireland and others, for the production of the body of John Joseph Egan. Cause has been shown against this order, and a motion has been made on behalf of Egan that the conditional order be made absolute notwithstanding the cause shown. The circumstances in which the conditional order was made are stated in the affidavit of Mr. John B. Lynch,

solicitor for Egan. They are as follows:—A charge was preferred against Egan by the military authority for "committing an offence in that he on the 26th day of May, 1921, near Quin, County Clare, in Ireland, was improperly in possession of ammunition, namely, ninety-seven rounds of revolver ammunition and five...

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    ...to whom the duty of repelling force by force was committed, were the sole judges of how it should be exercised. Egan v. MacreadyIR ([1921] 1 I. R. 265) distinguished. R. (Childers) and Adjutant-General of the Forces of the Irish Provisional Government Military courts -Irish Free State (Agre......
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    ...of Woods [1970] I.R. 154. The State (Browne) v. Feran [1967] I.R. 147. In re Singer (No. 2) (1964) 98 I.L.T.R. 112. Egan v. Macready [1921] 1 I.R. 265; (1921) 55 I.L.T.R. 197. The State (McDonagh) v. Frawley [1978] I.R. 131. Application of Zwann [1981] I.R. 395; [1981] I.L.R.M. 379. The Sta......
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    ...civil jurisdiction, as in Wolfe Tone's Case (1798), see Robert Heuston – Essays in Constitutional Law (1961, London) and Egan v Macready [1921] 1 IR 265. It is doubtful that the Constitution, in dealing with precisely the same remedy and in stating in detail a precise remedy for all cases o......
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