Hardy v Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Feargus M. Flood
• Judgment Date: 10 September 1992
• Neutral Citation: 1992 WJSC-HC 3706
• Docket Number: No. 558 S.S./1992
• Date: 10 September 1992

1992 WJSC-HC 3706

THE HIGH COURT

No. 558 S.S./1992

HARDY v. ATTORNEY GENERAL & IRELAND

JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO

ARTICLE 40.4.2 (2). OF THE CONSTITUTION

LEONARD HARDY

APPLICANT

AND

IRELAND AND THE ATTORNEY GENERAL THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE GOVENOR OF PORTLAOISE PRISON

RESPONDENTS

Citations:

EXPLOSIVE SUBSTANCES ACT 1883 S4(1)

OFFENCES AGAINST THE STATE ACT 1939 S47(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12(1)

OFFENCES AGAINST THE STATE ACT 1939 S44

EXPLOSIVE SUBSTANCES ACT 1883 S7(1)

DPP, PEOPLE V FERRIS CRAWLEY & BROWNE 3 FREWEN 114

EXPLOSIVES (AMMONIUM NITRATE & SODIUM CHLORATE) ORDER 1972 SI 191/1972

EXPLOSIVE SUBSTANCES ACT 1875

EXPLOSIVE SUBSTANCES ACT 1875 S3

R V HAALAM 1957 1 AER 665

MAHER V AG & OR 1973 IR 140

KING V AG 1981 IR 233

R V ELLIS-DON LTD 61 CANADIAN CC 423

PRESUMPTION OF INNOCENCE A NEW ERA 1967 CAN BAR REV 1988

O'LEARY V AG 1991 ILRM 454

GARVEY V IRELAND 1981 IR 75

CONSTITUTION ART 40.3

CONSTITUTION ART 50

CONSTITUTION ART 38.1

Synopsis:

CRIMINAL LAW

Offence

Commission - Proof - Explosives - Possession - Circumstances - Suspicion of unlawful object - Offence proved by prima facie evidence if proof of lawful object absent - Fair procedures - Trial in due course of law - Constitution - Statute - Validity - - Equality before the law - Explosives (Ammonium Nitrate and Sodium Chlorate) Order, 1972 (S.I. No. 191) - Explosive Substances Act, 1883, ss. 4, 7 - Offences Against the State Act, 1939, s. 47 - Constitution of Ireland, 1937, Articles 38, 40 - (1992/558 SS - Flood J. - 10/9/92)

|Hardy v. Ireland|

.Mr. Justice Feargus M. Flood

Mr. Justice Feargus M. Flood

1 The Applicant in this matter was charged before the Special Criminal Court with two offences of knowingly having in his possession explosive substances under such circumstances as to give rise to a reasonable suspicion that he did not have them in his possession for a lawful object, contrary to Section 4 (1) Explosive Substances Act 1883.

2 He was, on the direction of the Director of Public Prosecutions brought before the Special Criminal Court and there charged with the said offences. He pleaded "not guilty". He came for trial before the Special Criminal Court on February 15th, 16th and 22nd 1990. He was convicted on count 1 and sentenced to five years penal servitude.

3 He sought leave to appeal from the Central Criminal Court against the said conviction and the Court treated the hearing of the said application for leave to appeal as the hearing of the appeal. His appeal was heard and judgment delivered on June 22nd 1992 refusing his said appeal.

4 He now comes before this Court on an application for habeas corpus, pursuant to the above cited provisions of the Constitution.

This application is in fact brought under three broad headings

5 a (A) The invalidity of the warrant under which he is held.

6 b (B) A challenge to the jurisdiction of the Court of Trial, the Special Criminal Court arising from failure by the prosecution to observe certain statutory requirements.

c (C) A challenge to the constitutionality of

7 (1) The use of a statutory instrument to deem a substance an explosive substance for the purposes of the Explosives Substances Act 1883

8 (2) To the provisions of Section 4 (1) of the Explosive Substances Act 1883 on the basis that the section comtemplated

9 (a) a transfer of the burden of proof to the Applicant to establish on the balance of probabilities that he had possession of the said explosive substance for a lawful object.

10 (b) the said provisions in the said section created a situation of inequality before the law.

11 The Applicant's Counsel submits that the warrant is defective on its face in that it does not accurately set forth the statutory offence of which the Applicant has been convicted. In particular it omits the word knowingly. In my opinion there is no basis for this complaint. The warrant sets out "possession of explosive substances in suspicious circumstances contrary to Section 4 of the Explosive Substances Act 1883". In my opinion that is quite an adequate statement of offence to indicate clearly the basis for which detention has been ordered. In my opinion this ground fails.

This challenge is mounted on two separate grounds namely:-

12 (1) It is submitted that at no time was the direction of the Attorney General under Section 47 (1) of the Offences Against the State Act1939(now the direction of the DPP) established before the Special Criminal Court, that such direction and its communication to the Court is a condition precedent of the Court having jurisdiction as the Court is the creature of that statute. This aspect of this case was canvassed and argued before the Court of Criminal Appeal and decided by the Court of Criminal Appeal as having no foundation. Under Section 12 (I) Courts Supplemental (Provisions) Act1961the Court of Criminal Appeal is established as a Superior Court of Record "and shall………have full power to determine any questions necessary to be determined for the purposes of doing justice in the case before it".

13 The Offences Against the State Act1939Section 44 provides for an appeal from the Special Criminal Court to the Court of Criminal Appeal. Accordingly it is within the power and jurisdiction of the Court of Criminal Appeal to determine the said question. That is an end to the matter save and insofar as an appeal may lie or have lain to the Supreme Court.

14 It has been submitted to me that in habeas corpus it is open to the Applicant to canvass all issues in the High Court on such application. Even on this principle (which I do not necessarily accede to,) in my opinion no special formula to communicate the said direction is necessary, as the proceedings were in the name of the Director of Public Prosecutions, prosecuted by Counsel on his behalf. It would seem to me that this would suffice to establish accused was before the Court on his direction.

15 (2) It is submitted by Counsel for the Applicant that in this instance there was a failure to observe the provisions of Section 7 (1) of the Explosive Substances Act 1883 which provides that "if any person is charged before a justice with any crime under this Act no further proceedings shall be taken against such person without the consent of the Attorney General"……It is said that the consent of the Attorney General was not obtained and that the failure to so do had the effect of failing to invest the Special Criminal Court with jurisdiction. This aspect of the matter was again canvassed and argued before the Court of Criminal Appeal in the Applicant's said appeal. That Court found the premises without foundation and approved the decision of the People (DPP) v. Ferris Crawley & Browne in, see judgments of the Courts of Criminal Appeal 1984–1989 - 3 Frewen page 114 when it was held "that the requirements of Section 7 subsection (1) of the Act of 1883 related to persons charged before a justice. It did not apply to persons charged before the Special Criminal Court where such persons were brought before the Court at first instance."

16 That would appear to me to be an end to that ground.

17 (1) Explosives (Ammonium Nitrate and Sodium Chlorate) Order 1972 S.I.191 of 1972.

18 Under the above Statutory Instrument substances specified in the Schedule thereto "shall be deemed to be explosives within the meaning of the Explosives Act 1875." Sodium chlorate is one of the substances referred to in the Schedule. The effect of the instrument is to extend the definition of explosives contained in Section 3 Explosive Substances Act 1875. Its practical effect is to render for the purposes of the 1883 Act Sodium chlorate an explosive substance.

19 Sodium chlorate can be used for perfectly innocent purposes such as a weed killer, and the Applicant's complaint is, that, by virtue of the said Statutory Instrument the prosecution had been relieved from proving as a matter of fact beyond reasonable doubt that this potentially innocent substance had the necessary explosive properties to come within the statutory definition of an explosive under the Section 3 of the said Act of 1875. The Applicant's Counsel argued that, by reason of the fact that there is an onus upon the prosecution to establish that a Defendant in a prosecution is, knowlingly in possession of a substance, which is an explosive substance, as defined by Section 9 of the Explosive Substances Act 1883, the use of the said Statutory Instrument is an unfair procedure. They referred to the decision inRex R v. Haalam 1957 1 AER at 665 and say that it must be shown that an accused person knowingly had this substance in his possession and also that he knew it was an explosive substance. It is submitted by the Applicant that the said Statutory Instrument is a breach of fundamental fairness because it raises an irrebuttable presumption of fact in a criminal trial. It was further argued that any Statutory Instrument which created conclusive evidence or an irrebuttable presumption of fact was invalid, having regard to the provisions of the Constitution, and he sought to rely on the decision of...