King v Attorney General

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1981
Date01 January 1981
Docket Number[1976

High Court

Supreme Court

[1976 No. 3089P]
King v. The Attorney General
Neville Francis King
Plaintiff
and
The Attorney General and The Director of Public Prosecutions
Defendants

Cases mentioned in this report:—

1 The State (Healy) v. DonoghueIR [1976] I.R. 325.

2 Ledwith v. RobertsELR [1937] 1 K.B. 254.

3 The Criminal Law (Jurisdiction) Bill, 1975IR [1977] I.R. 129.

4 Ryan v. The Attorney GeneralIR [1965] I.R. 294.

5 The People (Attorney General) v. O'CallaghanIR [1966] I.R. 501.

6 R. v. HarrisELR [1951] 1 K.B. 107.

7 R. v. GoodwinELR [1944] K.B. 518.

8 The State (Quinn) v. RyanIR [1965] I.R. 70.

9 The State (Sheerin) v. KennedyIR [1966] I.R. 379.

10 R. v. ClarkeELR [1950] 1 K.B. 523.

11 R. v. FairbairnELR [1949] 2 K.B. 690.

12 The State (O'Callaghan) v. Ó hUadhaigh ó huadhaighIR [1977] I.R. 42.

13 The State (Burke) v. LennonIR [1940] I.R. 136.

14 The State (O.) v. O'BrienIR [1973] I.R. 50.

15 East Donegal Co-operative v. The Attorney GeneralIR [1970] I.R. 317.

16 McGee v. The Attorney GeneralIR [1974] I.R. 284.

17 Papachristou v. City of JacksonvilleUNK (1972) 405 U.S. 156.

18 The State (Healy) v. Kennedy—High Court: 20th January, 1976.

19 The State (C.) v. The Minister for JusticeIR [1967] I.R. 106.

20 The State (Kennedy) v. LittleIR [1931] I.R. 39.

21 Deaton v. The Attorney GeneralIR [1963] I.R. 170.

22 In re McAllisterIR [1973] I.R. 238.

23 Maher v. The Attorney GeneralIR [1973] I.R. 140.

24 Cahill v. SuttonIR [1980] I.R. 269.

25 Regional Rail Reorganization Act CasesUNK (1974) 419 U.S. 102.

26 Lynch v. United StatesUNK (1934) 292 U.S. 571.

27 Attorney-General for Alberta v. Attorney General for CanadaELR [1947] A.C. 503.

28 Hinds v. The QueenELR [1977] A.C. 195.

29 The Attorney General v. CunninghamIR [1932] I.R. 28.

30 The People (Attorney General) v. EdgeIR [1943] I.R. 115.

Constitution - Statute - Validity - Severance - Statute enacted prior to 1922 - Criminal offence - Loitering with intent to commit felony - Locus standi - Intention of parliament - Vagrancy Act, 1824 (5 Geo. 4, c. 83), s. 4 - Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 15 - Penal Servitude Act, 1891 (54 & 55 Vict. c. 69), s. 7 - Constitution of Ireland, 1937, Articles 38, 40, 50.

Plenary Summons

On the 13th July, 1976, the plaintiff issued a summons in the High Court and claimed a declaration that the provisions of s. 4 of the Vagrancy Act, 1824, and of s. 15 of the Prevention of Crimes Act, 1871, and of s. 7 of the Penal Servitude Act, 1891, were inconsistent with the provisions of the Constitution of Ireland, 1937, and had not been continued in force by Article 50, s. 1, thereof and did not form part of the law of the State. He also claimed a declaration that certain convictions entered against him in the District Court on the 11th November, 1975, and the 2nd July, 1976, for contraventions of the provisions of s. 4 of the Act of 1824 were invalid.

The provisions of s. 4 of the Act of 1824 did not apply initially to Ireland but were extended to Ireland by s. 15 of the Act of 1871.

On the 13th November, 1975, the plaintiff was convicted in the District Court on two charges which were laid as follows:— "(a) That you, the said defendant, being a suspected person, were found between 8.30 p.m. and 9.30 p.m. on the 11th day of November, 1975, at Dartmouth Road in the Dublin Metropolitan District loitering with intent to commit a felony, to wit, housebreak and steal, contrary to section 4 of the Vagrancy Act, 1824. (b) That you, the said defendant, did between 8.30 p.m. and 9.30 p.m. on the 11th day of November, 1975, at Dartmouth Road in the Dublin Metropolitan District have in your possession housebreaking implements, to wit, two screwdrivers, a tyre lever, hacksaw, haversack, shifting spanner and candle with intent to commit some felonious act, to wit, to steal, contrary to section 4 of the Vagrancy Act, 1824." In respect of each charge the plaintiff was convicted and sentenced to three months imprisonment. The orders of conviction followed the style of the charges. The plaintiff appealed to the Circuit Court against both the convictions and the sentences but it appeared that his solicitor only addressed the court on the question of the sentences; the Circuit Court judge affirmed both convictions but he ordered that the sentences be suspended on terms.

On the 17th June, 1976, the plaintiff was charged in the District Court as follows:— "(a) That you, the said defendant, being a suspected person, were found between 11 p.m. and midnight on the 17th day of June, 1976, at James's Place East, a public place, in the Dublin Metropolitan District loitering with intent to commit a felony, to wit, steal, contrary to section 4 of the Vagrancy Act, 1824, as amended by the Prevention of Crimes Act, 1871, and amended by the Penal Servitude Act, 1891. (b) That you, the said defendant, did on the 17th day of June, 1976, at James's Place East, a public place, in the Dublin Metropolitan District have in your possession between 11 p.m. and 12 midnight housebreaking implements, to wit, one hammer, one screwdriver and one hacksaw with intent to commit a felonious act, to wit, steal, contrary to section 4 of the Vagrancy Act, 1824, as amended by the Prevention of Crimes Act, 1871, and amended by the Penal Servitude Act, 1891." On the 2nd July, 1976, the plaintiff was convicted on the first of the last two charges and duly sentenced, but he was acquitted on the second charge. The order of conviction made in the District Court on the 2nd July, 1976, referred to s. 4 of the Vagrancy Act, 1824, as amended by the Prevention of Crimes Act, 1871, and by the Penal Servitude Act, 1891.

Section 4 of the Act of 1824 provides:— "Every person committing any of the offences hereinbefore mentioned, after having been convicted as an idle and disorderly person; every person pretending or professing to tell fortunes, or using any subtle craft, means or device, by palmistry or otherwise, to deceive and impose on any of His Majesty's subjects; every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence, and not giving a good account of himself or herself; every person wilfully exposing to view, in any street, road, highway, or public place, any obscene print, picture or other indecent exhibition; every person wilfully, openly, lewdly and obscenely exposing his person in any street, road or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female; every person wandering abroad and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence; every person running away and leaving his wife, or his or her child or children, chargeable, or whereby she or they or any of them shall become chargeable to any parish, township or place; every person having in his or her custody or possession any picklock key, crow, jack, bit or other implement, with intent feloniously to break into any dwelling house, warehouse, coachhouse, stable or outbuilding or being armed with any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon, or having upon him or her any instrument, with intent to commit any felonious act; every person being found in or upon any dwelling house, warehouse, coachhouse, stable or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose; every suspected person or reputed thief, frequenting any river, canal or navigable stream, dock or basin, or any quay, wharf or warehouse near or adjoining thereto, or any street, highway or avenue leading thereto. . . or any street, highway or place adjacent, with intent to commit felony; and every person apprehended as an idle and disorderly person, and violently resisting any constable or other peace officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended, shall be deemed a rogue and vagabond, within the true intent and meaning of this Act; and it shall be lawful for any Justice of the Peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the House of Correction, there to be kept to hard labour for any time not exceeding three calendar months; and every such picklock key, crow, jack, bit and other implement, and every such gun, pistol, hanger, cutlass, bludgeon or other offensive weapon, and every such instrument as aforesaid, shall, by the conviction of the offender, become forfeited to the King's Majesty."

Section 15 of the Prevention of Crimes Act, 1871, provides:— "Whereas by the fourth section of the Act passed in the fifth year of the reign of King George the Fourth, chapter eighty-three, intituled 'An Act for the punishment of idle and disorderly persons, and rogues and vagabonds, in that part of Great Britain called England,' it is, amongst other things, provided that every suspected person or reputed thief frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent, with intent to commit felony, shall be deemed a rogue and vagabond, and may be apprehended and committed to prison with hard labour for any time not exceeding three calendar months: And whereas doubts are entertained as to the construction of the said provision, and as to the nature of the evidence required to prove the intent to commit a felony: Be it enacted...

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