Hughes (The State) v Lennon and Others

Judgment Date20 July 1935
Date20 July 1935
CourtHigh Court (Irish Free State)

High Court.

The State (Hughes) v. Lennon and Others.
THE STATE (at the prosecution of PATRICK HUGHES)
MICHAEL LENNON, the Governor of Arbour Hill Military Detention Barracks, and COLONEL McKENNA, MAJOR JOYCE and COMMANDANT WHELAN, members of the Constitution (Special Powers) Tribunal (1)

Habeas Corpus - Certiorari - Constitution (Special Powers) Tribunal - Offences requiring a certificate of an Executive Minister to make them trial by the Tribunal - Order of Tribunal - Validity - Order not showing jurisdiction on its face - Alternative offences charged - Order not stating of which offences an accused person was found guilty - Order bad for uncertainty and duplicity - Order not severable - Effect of section taking away certiorari - Constitution (Amendment No. 17) Act, 1931 (No. 37of 1931), Sch., sect. 5, sub-sect. 4; sect. 6, sub-sects. 1 and 5; sect. 7,sub-sect. 4; Appendix, clause 7 - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922), Sch. I, Art. 2a.

Certiorari and Habeas Corpus.

The prosecutor, Patrick Hughes, applied to make absolute a conditional order for certiorari and habeas corpus directed to the Constitution (Special Powers) Tribunal, established under the Constitution (Amendment No. 17) Act, 1931. That Act provided that the Constitution should be amended by the insertion therein, immediately after Article 2, of the Article set forth in the Schedule to the Act, and that the said Article should be numbered "2a" and might be cited as Article 2a of the Constitution. The Schedule to the Act, which comprises Article 2a of the Constitution, is divided into five Parts, of which Parts II, III, IV and V are not to be of any force or effect unless or until an Executive Minister makes an Order declaring that those Parts shall come into force, but whenever the Executive Council makes such an Order those Parts of the Article shall come into force and shall continue in force until the Executive Council makes an Order declaring that those Parts shall cease to be in force. The further material provisions of Art. 2a are hereinafter set out.

The facts, as set out in the affidavit of the prosecutor, filed the 8th June, 1934, upon which his application for the said conditional order of certiorari and habeas corpuswas based, were as follows:—

"1. On the 24th day of April, 1934, I was arrested by a member of the Detective Branch of the Garda Siochána at my premises, the Midland Hotel, Nos. 33 to 36 Upper Dominick Street.

2. I was immediately removed to the Garda Barracks at the Bridewell, where, that same night, I was interrogated by Chief Superintendent Woods. The interrogation began at about 11.30 p.m. that night and lasted until 1.50 a.m. in the morning of the 25th April.

3. On or about the 7th May, 1934, I received a notice of the charges which were to be brought against me and was at the same time served with a precis of the evidence which it was proposed to offer in proof of these charges.

4. I was brought before the Constitution (Special Powers) Tribunal at Collins Barracks on the 14th day of May, 1934, and again on the 23rd, 24th, 25th, 28th, 29th, and 30th days of May, 1934, when I was tried by the aforesaid Tribunal on the charges mentioned.

5. During the course of the trial there was not at any time produced or proved any certificate by an Executive Minister or any consent of the Attorney-General. I have never seen the said certificate or the said consent. [These documents are referred to pp. 134-136 post.]

6. The evidence against me was given by Detective-officer MacNamara, who swore that on the 19th April, 1934, in his presence, and under his observation, I wrote a letter in a downstairs room of the Midland Hotel authorising Detective-officer MacNamara to negotiate with a friend at Police Headquarters to procure confidential documents in consideration of payment. [He referred to a photographic copy of said letter.]

7. At the conclusion of the trial it was stated by the President of the Tribunal that a decision would be promulgated afterwards and that meanwhile I would be detained in custody. I was, accordingly, removed to Arbour Hill Barracks.

8. No decision was at any time given and no sentence was at any time pronounced in my presence.

9. The Governor of Arbour Hill Military Detention Barracks is Captain Michael Lennon, whose office is at the said detention barracks.

10. On the 1st day of June, 1934, Captain Michael Lennon, the said Governor, informed me that I had been found guilty of all charges and sentenced to two years' imprisonment. On the evening of the same day I was removed to the portion of the said barracks which is reserved for sentenced prisoners and on the next day the said Governor called to my cell and read over to me the contents of two documents, which documents appear to be the documents marked 'D' and 'E' referred to in the affidavit of my solicitor. [The material portions of the affidavit of the prosecutor's solicitor are hereinafter set out.]

11. The case against me both as originally presented in the precis and as made by Detective-officer MacNamara during the course of the trial and as supported by Chief Superintendent Woods and Captain Quirk, turned entirely on whether I wrote in the presence of Detective-officer MacNamara the letter produced against me at the said trial and gave that letter so written in his presence to the said Detective-officer. I was not made aware either from the precis of evidence or from the statement made by any witness produced against me at the trial that I had to meet a charge of communicating to Detective-officer MacNamara a letter which I had not written.

12. I never wrote the letter produced in evidence against me at the said trial. I did not at any time communicate the said or any similar or any letter to Detective-officer MacNamara. I did not communicate the said or any similar letter to any member of the Garda Siochána. I did not at any time offer money or other consideration to Detective-officer MacNamara, or to any member of the Garda Siochána, for information or documents procured, or to be procured by him or any of them, nor did I request any information or documents from any member of the Garda Siochána.

I therefore pray for relief by way of habeas corpus and and certiorari, on the grounds that I am being illegally detained in custody, for the reasons (among others) set out in the affidavit of my said solicitor, Patrick F. O'Reilly."

Patrick F. O'Reilly, solicitor for the prosecutor, in his affidavit referred to the arrest and trial of the prosecutor (as already set out in the prosecutor's affidavit) and to the precis of evidence against the prosecutor and to the evidence given at the trial. His affidavit then continued as follows:—

"12. At about 12.30 p.m. on the 1st day of June, 1934, Sergeant Mullery, who is employed in the office of the Registrar of the said Tribunal, informed me by telephone that the said Patrick Hughes had been convicted by the said Tribunal and was sentenced to two years' imprisonment. This was the first and, except as set out in paragraph 15 hereof, the only intimation which I received from the said Tribunal as to the findings of the said Tribunal. The said Sergeant also informed me that the said Tribunal would issue a statement to the Press at 3 o'clock on that date."

In par. 13 the deponent stated that later on in the evening of the said 1st day of June, 1934, he read in an evening newspaper, published on that day, a report as to the result of the said trial, and he referred to a copy of the said evening newspaper containing the report. The affidavit then continued:—

14. So far as I am aware, the Tribunal did not make any pronouncement of the result of the trial save by the aforesaid communication to the Press. I did not receive any summons or request to attend before the said Tribunal to hear their verdict or judgment on the said trial, or the result of the said trial; and counsel retained by me to defend the said Patrick Hughes informed me, and I believe, that they were not summoned, nor did they, or either of them, receive any summons, to attend before the said Tribunal to hear the result of the said trial.

15. On the 5th day of June, 1934, I telephoned to the said Registrar and requested him to let me have a certified copy of the order of conviction of the said Patrick Hughes and a certified copy of the statement issued to the Press, which he undertook to do. On the same day I received from the said Registrar the documents upon which marked with the letters 'D' and 'E' I have endorsed my name prior to the swearing hereof."

Document marked "D" was as follows:—

The Tribunal, on adjudging Patrick Hughes guilty of all the charges preferred against him, finds that he, on a date unknown in the month of January and on the 5th, 11th, 18th, and 19th days of April, 1934, in the course of meetings with Detective-officer MacNamara, committed the offences set out in the charges.

The Tribunal also finds that the letter, dated the 19th April, 1934, referred to during the trial as the 'disputed document,' is not in the handwriting of Patrick Hughes. The Tribunal, however, finds that this document was communicated by Patrick Hughes to Detective-officer MacNamara on the 19th April, 1934.

In mitigation the Tribunal has taken into consideration the fact that in their meetings, during the month of April, Patrick Hughes was encouraged by Detective Officer MacNamara to pursue his illegal activities."

Document marked "E" was as follows:—

Constitution (Special Powers) Tribunal.

Attorney-General of Saorstát Éireann éireann


Patrick Hughes, Midland Hotel, Broadstone, Dublin.

"Whereas the above-named Patrick Hughes was charged on the 14th, 23rd, 24th, 25th, 28th, 29th, and 30th days of May, 1934, before the Constitution (Special Powers) Tribunal with the offences set forth in the schedule hereto.

And whereas the said Patrick Hughes was on the...

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