Gregory v Judge Windle
| Jurisdiction | Ireland |
| Judge | O'Hanlon J. |
| Judgment Date | 01 January 1995 |
| Neutral Citation | 1994 WJSC-HC 2954 |
| Court | High Court |
| Docket Number | Record No. 9131P/1987,[1987 No. 9131P] |
| Date | 01 January 1995 |
1994 WJSC-HC 2954
THE HIGH COURT
BETWEEN
AND
BETWEEN
AND
BETWEEN
AND
Citations:
DUBLIN POLICE ACT 1842 S14(13)
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S54
O'CONNORS JUSTICE OF THE PEACE (1915) 2ED V1 30
O'CONNORS JUSTICE OF THE PEACE (1915) 2ED V2 29–46
STATUTE 34 ED 3 C1 (1360)
FEEHAN, R V QUEENS CO JJ (1882) 10 LR(IRL) 294
POYNINGS ACT 1495 (10 HEN 7 C22)
TANNER, EX PARTE JUDGMENT 8 JULY 1889 REPORTED IN JUDGMENTS OF THE SUPERIOR COURTS IN IRELAND 1903
BOYLAN, R V LONDONDERRY JJ (1912) 2 IR 374
AG, PEOPLE V O'CALLAGHAN 1966 IR 501
MENTAL TREATMENT ACT 1945 S165
PHILIP CLARKE, IN RE 1950 IR 253
HEALTH ACT 1947 S38(1)
ENFORCEMENT OF COURT ORDERS ACT 1926
ENFORCEMENT OF COURT ORDERS ACT 1940
KEEGAN V DE BURCA 1973 IR 223
US CONSTITUTION 8TH AMENDMENT (1798)
BILL OF RIGHTS 1688
CUMMINS, STATE V MCRANN 1977 IR 78
TREGARTHEN, IN RE (1833) 5 B & AD 678
REYNOLDS, R V CORK JJ (1882) 10 LRI 1
R V LITTLE (1910) 26 TLR 8
PRICKETT V GRATREX (1846) 8 QB 1020
WILLCOCK, IN RE (1829) 2 LAW REC 422
Synopsis:
CONSTITUTION
Personal rights
Liberty - Order - Validity - Accused - Peace - Keep - Recognisances - Sureties - Imprisonment in default of recognisances - Preventive detention - Whether such order inconsistent with Constitution - (1987/9131 P - O'Hanlon J. - 9/9/94)- [1994] 3 IR 613 - [1995] 1 ILRM 131
|Gregory v. Windle|
CRIMINAL LAW
Jurisdiction
Inherence - Defendant - Peace - Keep - Recognisances - Sureties - Imprisonment in default of recognisances - Preventive detention - Whether such order inconsistent with Constitution - Inherent jurisdiction of District Court - (1987/9131 P - O'Hanlon J. - 9/9/94)- [1994] 3 IR 613 - [1995] 1 ILRM 131
|Gregory v. Windle|
DISTRICT COURT
Order
Validity - Accused - Peace - Keep - Recognisances - Sureties - Imprisonment in default of recognisances - Preventive detention - Whether such order inconsistent with Constitution - Dublin Police Act, 1842, s. 14 - Constitution of Ireland, 1937, Article 40 - (1987/9131 P - O'Hanlon J. - 9/9/94)- [1994] 3 IR 613 - [1995] 1 ILRM 131
|Gregory v. Windle|
ORDER
Validity
Defendant - Peace - Keep - Recognisances - Sureties - Imprisonment in default of recognisances - Preventive detention - Whether such order inconsistent with Constitution - Inherent jurisdiction of District Court - (1987/9131 P - O'Hanlon J. - 9/9/94)- [1994] 3 IR 613 - [1995] 1 ILRM 131
|Gregory v. Windle|
Judgment delivered by O'Hanlon J. the 9th day of September, 1994.
In each of the three above-entitled cases the Plaintiff (represented by the same Counsel and Solicitor in all three cases) challenges the validity of an Order made against him by District Judge Windle on constitutional grounds.
In the case of Tony Gregory, upon the hearing of a complaint against him on the 30th July, 1987, in the Dublin District Court, alleging that on the 19th July 1985, at O'Connell Street, a public place in the Dublin Metropolitan District, he did use threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace might be occasioned, contrary to Section 14(13) of the Dublin Police Act, 1842, he was convicted of the said offence and ordered to enter into recognisances within 14 days of the making of the said Order in the sum of £500 with one solvent surety in the sum of £1,000 to keep the peace and be of good behaviour towards all citizens for the space of six months, and in default of finding such surety and entering into recognizance aforesaid to be imprisoned for the period of one month unless he should sooner enter into said recognizance.
In the case of Christy Burke he was convicted of a like offence on the same date and in his case he was ordered to enter into a recognizance in the sum of £100 with one solvent surety in the sum of £500 to keep the peace and be of good behaviour for the space of six months, with one month's imprisonment in default.
In the case of John Cooney he appeared before District Judge Windle on the 10th January, 1989, on a charge that on the 9th January, 1989, at Abbey Street, a public place in the Dublin Metropolitan District, he did use threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace whereby a breach of the peace might be occasioned contrary to Section 14(13) of the Dublin Police Act, 1842, and an Order was made on the said date that he should enter into recognizance himself in the sum of £100 with one solvent surety in the sum of £1,000 to keep the peace and be of good behaviour towards all citizens for the space of six months and in default of finding such surety and entering into recognizance as aforesaid, to be imprisoned at Mountjoy Prison for the period of three months unless he should sooner enter into the said recognizance, said recognizance to be entered forthwith upon the making of the said Order.
In each case the named Defendant failed to enter into recognizance or provide such surety as was required by the relevant Order and in each case a Warrant of Committal was issued for their arrest and imprisonment in Mountjoy Prison for the stated period or for such shorter period as should elapse pending compliance with the Order of the District Court.
This was followed by an application to the High Court on behalf of each of the Plaintiffs for relief by way of Judicial Review to enable them to challenge the validity of the District Court Order and Warrant of Committal, and the necessary Order was made by Mr. Justice Blayney in the case of Tony Gregory on the 1st October, 1987; by Mr. Justice Hamilton, President of the High Court, in the case of Christy Burke, on the 25th September, 1987, and by Mr. Justice Johnson, in the case of John Cooney, on the 11th January, 1989. Leave was granted in each case to seek Judicial Review by way of Plenary Summons, and each of the Plaintiffs was admitted to bail pending the hearing of the proceedings.
The relief sought is expressed as follows in the Statement of Claim which was delivered in each of the three cases:-
1. An Order of Certiorari quashing the Order made by the first-named Defendant on the (relevant date) committing the Plaintiff to Mountjoy Prison for (the stated period) for his failure to enter into a recognizance to keep the peace and be of good behaviour, on the following grounds:-
(a) There was no evidence to support or justify the making of such an Order;
(b) The said Order effectively constituted preventative detention which is not authorised by the Constitution;
(c) The said Order effectively constituted a punishment for conduct which has not yet occurred and for which the Plaintiff had not been convicted after trial according to law under the Constitution;
(d) The said Order effectively constituted an amendment by the Defendant (District Judge) of a maximum statutory penalty.
2. A Declaration that the common law powers of magistrates to bind to the peace were not carried over on the enactment of the Constitution on the grounds that they failed to hold citizens equal before the law, constitute preventative detention or preventative justice and punish conduct which has yet to occur and which may not occur.
3. A Declaration that Section 54 of the Courts (Supplemental Provisions) Act, 1961, is repugnant to and inconsistent with the Constitution and is of no force and effect for the same reasons.
A Summary of the evidence given during the District Court proceedings against Messrs. Gregory and Burke is contained in replies to Notice of Particulars in their particular cases, and reads as follows:-
Following upon the Plaintiff's plea of guilty to the said offence .... a member of An Garda Siochana, a certain Superintendent Francis of Store Street Garda Station, was called on behalf of the Prosecution to give evidence of the circumstances in which the said offence was committed. The said witness gave evidence to the effect that the said offence had been committed in circumstances arising out of and during the course of a demonstration by street traders protesting their trading difficulties, during the course of which demonstration the public highway was blocked and was cleared by members of An Garda Siochana of such persons, including the Plaintiff .... the above summary does not purport to relate the precise terms of the evidence so adduced .... in the course of the said evidence and indeed during the course of the said hearing no evidence and adduced indicating a likelihood or propensity on the part of the Plaintiff to engage in conduct likely to disturb the public peace in the future and further there was no suggestion to that effect from any party to the proceedings or evidence or other circumstances from which such likelihood or danger could be inferred.
Averments to the same effect are contained in Affidavits sworn by the said two Plaintiffs in support of their applications for leave to apply for Judicial Review.
In the case of John Cooney, (but not in the case of the other two Plaintiffs) the Affidavit sworn in support of his application for leave to apply for Judicial Review includes the following averment as to his inability, on financial and other grounds, to comply with the District Court Order:-
I say that I cannot possibly procure my liberty by entering into such recognizance in compliance with the aforesaid conditions as imposed by the learned Respondent District Justice, as my circumstances...
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