Heaney v Ireland

CourtHigh Court
JudgeMr. Justice Costello
Judgment Date29 Jun 1994
Neutral Citation1998 WJSC-HC 7869
Docket Number[1992 No. 3635P],336SP/1992

1998 WJSC-HC 7869







Mr. Justice CostelloDelivered the 29 June 1994.


On the 24 October 1990 an explosion occurred at the British Army checkpoint at Coshquin, Londonderry, in which five British soldiers and one civilian lost their lives. It was caused by a proxy bomb driven in a lorry to the checkpoint by the civilian who died in the explosion. It was believed by the garda authorities that the attack had been organised by the IRA. Both plaintiffs in these proceedings, suspected of being members of the IRA and as having been concerned in the attack, were arrested on the 24th October under the provisions of section 30 of the Offences Against the State Act, 1939. During their detention they were both asked, pursuant to section 52 of the Act, to account for their movements during a specified period. They declined to do so or to answer any questions put to them. They were both charged with (a) the offence of membershop of the IRA and (b) the offence of failing to account for their movements contrary to section 52 of the Act and tried before the Special Criminal Court established under Part V of the Act. On the 19 April 1991 both were acquitted of the charge of membership of the IRA. On the 28 June 1991 both were convicted of an offence under section 52 and sentenced to a six-month term of imprisonment. Each appealed the conviction and sentence to the Court of Criminal Appeal. By Plenary Summons issued the 3 May 1992 these proceedings were instituted claiming declarations that section 52 of the 1939 Act is invalid because it infringes a constitutionally protected right to silence and other relief. Both have served the terms of imprisonment imposedon them and their appeals to the Court of Criminal Appeal have been adjourned pending the outcome of these proceedings.

The 1939 Act.

The 1939 Act is declared by its title to be an Act to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State and for that purpose to provide for the punishment of persons guilty of offences against the State, and to establish Special Criminal Courts. Part III deals with unlawful organisations and makes it an offence to be a member of an unlawful organisation (as defined). Section 30 deals with the arrest and detention of suspected persons and provides that a member of the Garda Siochana can arrest and detain as therein specified a person who he suspects of having committed an offence under the Act or an offence scheduled under Part V of the Act. A person detained under the section may be asked to state his name and address and a person who refuses to do so is guilty of an offence and liable to be imprisoned for a period of six months. Part V of the Act contains the section impugned in these proceedings. Section 35 provides that Part V is to come into force by means of a Proclamation by the government made when the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and, that it is therefore necessary that Part V should come into operation. By section 36 the Government may declarethatoffences of a particular class or kind to be scheduled offences for the purpose of the Act and such offences are tried by Special Criminal Courts established under section 38. Section 52 provides asfollows:-


2 "Section 52 (1) Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the Garda Siochana may demand of such person at any time while he is so detained, a full account of such persons movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence.


(2) In any person of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that subsection by a member of the Garda Siochana, fails or refuses to give such member an account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months."


The following relevant features of the Act are to be noted;


(a) The power of arrest under section 30 is a permanent power. It can be exercised when a garda suspects that a person has committed (a) an offence specified in the Act or (b) one which has been scheduled by the Government when Part V is in operation.


(b) The power under section 52 to question a suspect arrested under section 30 and the obligation imposed on the suspect by the section to give the information specified in it only arise when Part V of the Act has been brought into force by government Proclamation.

Preliminary Objections

Before considering the issues raised on the plaintiffs behalf I must consider two preliminary points raised by Mr. Gaffney on behalf of the Attorney General. The first is that the issue raised in these proceedings has been determined by a judgment of the Supreme Court in The People -v- Quilligan (No. 3) 1993 2 IR 305 which I am bound to follow.


The right to silence (referred to by the Court as the right to be protected against self-incrimination) was raised in that case in the context of an arrest under section 30 of the 1939 Act. It was submitted that section 30 was invalid having regard to Article40 of the Constitution on the ground that that section breached the appellants right to silence which was protected by that Article. This submission was rejected by the court. The Chief Justice, having pointed to nine seperate protections which the law grants to persons arrested under section 30 (p. 321) (to which I will later refer), went on:-

"No detailed submission of any description was put before the Court as to the reasons why the Court should conclude that a right to silence or a right to be protected against self-incrimination was an unenumerated personal right deriving protection from Article 40 of the Constitution. No decision of the High Court or of this Court was referred to on behalf of the appellants indicating the existence of such a right as a constitutional right, unenumerated or not specified."


The court is not satisfied, having regard in particular, to the various protections or the right to silence which have been above set out in this decision, that the terms of section 30 and the interrogation expressly authorised by section 30 sub-section 5available to a member of the Garda Siochana in relation to any person suspect of any crime and in detention, whether under section 30 or otherwise, constitutes an invasion of or failure to protect the right to silence of a citizen. On that basis the Court does not find it necessary therefore, to express any view on the question as to whether or in what circumstances or subject to what qualifications, if any, a right of silence or protection against self-incrimination is an unenumerated right pursuant to the Constitution" (p. 323).


Quilligan was a case dealing with the constitutional invalidity of section 30 - this case is concerned with the constitutional invalidity of section 52 and the Supreme Court made clear that it was not expressing any views on that section. The two sections contain very different powers and impose very different obligations and accordingly I do not think that it necessarily follows from the courts decision on section 30 in Quilligan that I am required to uphold the validity of section 52 in this case. Furthermore, the Supreme Court decision related to submission based on invalidity arising from Article 40 - in the present case the plaintiffs have submitted that invalidity arises not only under that Article but, and this is their principle case, also under Article 38. I must hold therefore that I am not obliged to find in the defendants failure. But very considerable help in this case is to be obtained from the judgment in Quilligan and I will return to it later.


Secondly, it was submitted that the plaintiffs have no locus standi to advance the claim now being made. It is urged on behalf of the Attorney General that section 52 can only abrogate the right to silence when a true responsewould incriminate the persons being interrogated and as the plaintiffs have not alleged that had they answered the questions asked of them they would have incriminated themselves they have no standing to challenge the section. This argument is based on a misunderstanding of the right to silence. Where the right to remain silent exists it is one enjoyed by both the guilty and the innocent (just as the presumption of innocence is similarly enjoyed) and if a statutory provision infringes that right a plaintiff who challenges its constitutional validity is not required to assert, in order to establish a locus standi, that he would have incriminated himself had he acted as required by the statute.

The common law riqht to silence or immunity againstself-incrimination.

It is not contested that a what is commonly called a "right to silence" is conferred by the common law on suspects in custody. What is in controversy is both the nature and scope of that right and, more importantly, whether the common law right has obtained constitutional protection. If it has not, then of course, the plaintiffs claim must fail because parliament can limit the exercise of such rights as it pleases. If it has, then the court must exercise its power to review parliaments enactment and determine whether or not the restrictions imposed by the statute are...

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