Hardy v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [S.C. No. 330 of 1992]
• Court: Supreme Court

Hardy v. Ireland

In the matter of an application for an inquiry pursuant to Article 40, s. 4, sub-s.2 of the Constitution: Leonard Hardy

Applicant

and

Ireland, The Attorney General, The Director of Public Prosecutions and The Governor of Portlaoise Prison

Respondents

[S.C. No. 330 of 1992]

High Court

Supreme Court

Statute - Interpretation - Delegated legislation - Constitution - Trial in due course of law - Separation of powers - Statutory instrument deeming sodium chlorate an explosive - Whether unfair procedure - Whether independence of judiciary encroached upon - Explosives (Ammonium Nitrate and Sodium Chlorate) Order, 1972 (S.I. No. 191) - Constitution of Ireland, 1937, Articles 38, ss. 1, 34 and 35.

Constitution - Trial in due course of law - Presumption of innocence - Burden of proof - Statute requiring court to convict person found in possession of explosives where reasonable suspicion of unlawful object and in absence of explanation by accused - Whether burden of proof placed on accused - Whether possibility of conviction despite existence of reasonable doubt - "Reasonable suspicion" - Explosive Substances Act, 1883 (46 and 47 Vict., c.3), s. 4, sub-s. 1 - Constitution of Ireland, 1937, Article 38, s. 1.

Statute - Validity - Constitution - Presumption of constitutionality - Whether pre-1937 statute capable of unconstitutional interpretation - Whether statute carried over by Constitution - Explosive Substances Act, 1883 (46 and 47 Vict., c.3), s. 4, sub-s. 1 - Constitution of Ireland, Article 50.

Section 4, sub-s. 1 of the Explosive Substances Act, 1883, provides that any person who ". . . knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he . . . does not have it in his possession or under his control for a lawful object, shall, unless he can show that he . . . had it in his possession or under his control for a lawful object, be guilty of felony . . ."

Offences under the Act of 1883 are scheduled offences within the meaning of s. 36, sub-s. 1 of the Offences Against the State Act, 1939.

Section 7, sub-s. 1 of the Act of 1883, as amended by s. 3 of the Prosecution of Offences Act, 1974, provides that "[i]f 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 Director of Public Prosecutions, except such as the justice may think necessary by remand, or otherwise, to secure the safe custody of such person".

Section 47, sub-s. 1 of the Offences Against the State Act, 1939, provides that where the Director of Public Prosecutions intends to charge any person with a scheduled offence, he may direct that such person "be brought before a Special Criminal Court and there be charged with such offence and, upon such direction being so given, such person shall be brought before a Special Criminal Court and shall be charged before that court with such offence and shall be tried by such court on such charge".

The Explosives (Ammonium Nitrate and Sodium Chlorate) Order, 1972, provides that sodium chlorate shall be deemed to be an explosive within the meaning of the Explosives Substances Act, 1875.

On the 16th February, 1990, the applicant was convicted by a Special Criminal Court of an offence under s. 4, sub-s. 1 of the Explosive Substances Act, 1883, of possession of an explosive, namely, sodium chlorate, and was sentenced to five years penal servitude. On appeal to the Court of Criminal Appeal, it was argued, inter alia, that the Special Criminal Court had lacked jurisdiction on the grounds, first, that at no time was the direction of the Director of Public Prosecutions under s. 47, sub-s. 1 of the Offences Against the State Act, 1939, (as amended) established before that court, and secondly, that the consent of the Director under s. 7, sub-s. 1 of the Explosive Substances Act, 1883, (as amended) had not been obtained. Judgment was delivered on 22nd June, 1992, dismissing the applicant's appeal, and in relation to the latter ground of appeal, the court approved People (Director of Public Prosecutions) v. Ferris, Crawley and Brown (1986) 3 Frew. 114, in which it was held that s. 7, sub-s. 1 of the Act of 1883 related to persons charged before a justice and not to persons charged before a Special Criminal Court at first instance.

The applicant applied to the High Court for an inquiry into his detention pursuant to Article 40, s. 4, sub-s. 2 of the Constitution. It having been submitted on the applicant's behalf that in habeas corpus proceedings, applicants are entitled to canvas all issues in the High Court, the arguments made to the Court of Criminal Appeal in relation to the jurisdiction of the Special Criminal Court were opened to the court. It was further argued,inter alia, that the Explosives (Ammonium Nitrate and Sodium Chlorate) Order, 1972, was invalid having regard to the provisions of the Constitution, on the grounds, first, that it relieved the prosecution of the burden of proving an essential element of the case against the applicant contrary to Article 38, s. 1, and secondly, that it undermined the judicial independence guaranteed in Articles 34 and 35 by raising an irrebuttable presumption of fact in a criminal trial. It was argued that s. 4, sub-s. 1 of the Act of 1883 was inconsistent with Article 38, s. 1 of the Constitution on the grounds, first, that it placed an obligation upon the accused to prove his innocence to the standard of probability, thus allowing for the possibility of conviction despite the existence of a reasonable doubt, and secondly, that it permitted an accused person to be convicted of felony on the basis of suspicion alone. Finally, it was argued that the Act of 1883, being a pre-1937 statute, did not enjoy the presumption of constitutionality and that since s. 4, sub-s. 1 thereof was capable of an unconstitutional interpretation, it had not been carried over by Article 50 of the Constitution.

Held by Flood J., in refusing the relief sought, 1, that the warrant set forth an adequate statement of the offence of which the applicant had been convicted, so as to indicate clearly the basis upon which his detention had been ordered.

2. That the challenges to the jurisdiction of the Special Criminal Court were res judicata, having been heard and determined by the Court of Criminal Appeal.

Semble: If, which was doubted, the applicant's submission that all issues may be canvassed by an applicant for habeas corpus was correct, no special formula was required to communicate the direction of the Director of Public Prosecutions to a Special Criminal Court. It was sufficient to establish that the accused was before the court on his direction.

People (Director of Public Prosecutions) v. Ferris, Crawley and Brown (1986) 3 Frew. 114 followed.

3. That the effect of the Explosives (Ammonium Nitrate and Sodium Chlorate) Order, 1972, was to render sodium chlorate an explosive substance as a matter of law, but that this did not affect the legal burden upon the prosecution to prove its case beyond a reasonable doubt. Nor did the order raise an irrebuttable presumption of fact in a criminal trial so as to invade the judicial function.

Maher v. Attorney General [1973] I.R. 140 distinguished.

4. That the effect of s. 4, sub-s. 1 of the Explosive Substances Act, 1883, was, at most, to shift the persuasive burden of proof onto the accused, and that the maximum obligation which might be cast upon him in such circumstances was to raise a doubt of substance in relation to the prosecution case. The law did not contemplate an accused being required to discharge a burden of proof to the standard of probability.

Ellis-Don Ltd. (1990) 76 D.L.R. (4th) 347 distinguished.

5. That "reasonable suspicion" within the meaning of s.4, sub-s. 1 of the Act of 1883 must arise out of facts surrounding the possession of the explosive substance, which facts must be proved beyond a reasonable doubt. The section did not create an inequality between one citizen and another before the law.

6. That the Act of 1883 was to be interpreted and applied in the light of the constitutional right to trial in due course of law and the inherent constitutional right to the presumption of innocence, and that accordingly, its constitutionality could not be impugned on the basis of any alternative interpretation.

Garvey v. Ireland [1981] I.R. 75 applied.

The applicant appealed to the Supreme Court, and the sole issue before the Court was whether s. 4, sub-s. 1 of the Explosive Substances Act, 1883, was inconsistent with the provisions of the Constitution of Ireland, 1937.

Held by the Supreme Court (Hederman, O'Flaherty, Egan, Blayney and Murphy JJ.), in dismissing the appeal, 1, that in the course of a trial for an offence under s. 4, sub-s. 1 of the Explosive Substances Act, 1883, the prosecution remained under an obligation to prove all the elements of the offence beyond a reasonable doubt; the principle that an accused must be tried in due course of law was not infringed by a statutory provision which permitted the drawing of inferences from facts proved beyond a reasonable doubt by the prosecution.

Per Egan and Murphy JJ.: That the words "unless he can show that he . . . had [the explosives] in his possession . . . for a lawful object" contained in s. 4, sub-s. 1 of the Act of 1883 provided a statutory defence to an accused charged with an offence under that section in circumstances where the charge was established beyond a reasonable doubt. Where an accused sought to avail of such defence, he was required to do so by establishing the material facts on balance of probabilities.

2. That, accordingly, the provisions of s. 4, sub-s. 1 of the Act of 1883 had not been shown to be inconsistent with the provisions of the Constitution of Ireland, 1937.

Cases mentioned in this report:—

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