(Garde and Others) v Strickland

JurisdictionIreland
CourtKing's Bench Division (Ireland)
Judgment Date25 April 1921
Date25 April 1921
R. (Garde) v. Strickland.
THE KING (GARDE and Others)
and
MAJOR-GENERAL E. P. STRICKLAND and Others (1)

K. B. Div. (Corwn Side)

Martial law - Rebellion - Jurisdiction of the King's Bench Division.

The King's Bench Division of the High Court has the power when its jurisdiction is invoked to decide whether a state of war exists which justifies the application of martial law; but once such a condition of affairs is established to the satisfaction of the Court, it cannot interfere to determine what is or what is not necessary.

Held, following Rex v. Allen (ante, p. 241), that a state of war still existed in the martial law area, and accordingly that the Civil Courts, had no jurisdiction durante bello to interfere with the decision of a Military Court sitting therein.

Motion on Notice.

To make absolute, notwithstanding cause shown, conditional orders of certiorari and habeas, corpus issued to Major-General E. P. Strickland and to the Military Court sitting at Victoria Barracks, in the City of Cork, to remove into the King's Bench Division for the purpose of being quashed the record and proceedings of the said Military Court, before whom the trial of the prosecutors took place, and to the Governor of the Detention Barracks, Cork, in whose custody the prosecutors were detained.

The order was applied for on the grounds:—

1. That the said Military Court had no jurisdiction to try the prisoners.

2. That no state of war existed sufficient to justify the existence of martial law or a Court established in pursuance thereof.

3. That the names, professions, and places of abode of the witnesses for the prosecution were not given according to law or at all.

4. That the names of the members of the Military Court were not given.

5. That the said William Garde, John Harty, Edmund Terry, Maurice Moore, Robert Walsh, Pat Sullivan, and Jeremiah

O'Leary were indicted and tried without the oath of two lawful witnesses to an overt act of treason.

6. That the proclamation under which the Military Court claimed to act was not proved or put in evidence at the trial.

The facts and circumstances of the application are sufficiently set out in the following extracts from the affidavit of Mr. Charles K. Murphy:—

1. I am solicitor with Mr. Maurice O'Connor, solicitor, Cork, for seven persons named in the title hereof who are at present in custody at the Detention Barracks, in the City of Cork.

2. I am informed and believe that the said William Garde, John Harty, Edmund Terry, Maurice Moore, Robert Walsh, Pat Sullivan, and Jeremiah O'Leary are detained in the custody and control of Major-General E. P. Strickland, the Competent Military Authority for the City of Cork.

3. The said William Garde, John Harty, Edmund Terry, Maurice Moore, Robert Walsh, Pat Sullivan, and Jeremiah O'Leary were taken into custody by military forces on the 20th day of February, 1921, at Clonmult, in the County of Cork, and were on the 8th day of March, 1921, brought before a tribunal purporting to be a military Court at the Military Barracks, at Cork, on a charge of levying war against His Majesty. I beg to refer to a copy of the charge sheet upon which marked "A" I have signed my name before swearing this affidavit.

Previous to the trial—namely, on the 1st day of March, 1921, a summary of the evidence was in the same place taken in the presence of the prisoners. [He referred to a copy of the summary served upon the accused.]

4. At the said trial a number of witnesses were examined for the prosecution and for the accused. The names, professions, and places of abode of the witnesses for the prosecution were not at any time given to the accused or their legal representatives; nor was a copy of the indictment furnished in the manner required by law ten days before the trial to the accused or any of them or their legal representatives.

5. At the trial counsel for the prisoners objected to the jurisdiction of the Court to try or punish the prisoners on the ground that the charge was one of high treason, and the prosecution and the Court were bound to observe the laws in relation to the trial of persons for high treason, and that they had not done so.

6. The prosecution failed to supply a copy of the indictment to the accused or their legal advisers ten days before the trial, and in the manner provided by statute; they further failed to deliver to the prisoners a list of the witnesses to be produced upon the trial, together with their names, profession, and places of abode. They also failed when requested to do so by counsel for the accused to supply the names of the members of the Court as corresponding with jurors.

7. The overt acts alleged by the prosecution were not proved upon the oaths and testimony of two lawful witnesses, and therefore no power existed to indict or try the prisoners as required by 1 & 2 Geo. 4, ch. 24, sect. 1. I beg to refer to the copy of the summary of evidence which corresponds with the indictment. From said summary it appears that the accused, Jeremiah O'Leary, was not identified at all, and that John Harty was identified by only one witness. The name of Jeremiah O'Leary, who was one of the persons tried, does not...

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