King v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 01 January 1981
• Date: 01 January 1981
• Docket Number: [1976
• Court: Supreme Court

King v. The Attorney General

Neville Francis King

Plaintiff

and

The Attorney General and The Director of Public Prosecutions

Defendants

[1976 No. 3089P]

High Court

Supreme Court

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.

Section 4 of the Act of 1824 did not apply to Ireland originally; it was extended to Ireland by s. 15 of the Act of 1871. Section 4 of the Act of 1824 created many offences, of which one was the possession of housebreaking implements with the intention of committing a felony.

Another of the offences created by s. 4 of the Act of 1824 was the frequenting by "every suspected person or reputed thief" of any of the places therein described with the intention of committing a felony. Section 15 of the Act of 1871 also provided that, in order to prove that a suspected person had intended to commit a felony, it was not necessary to show that he was guilty of any particular act tending to show his purpose or intent and that he could be convicted if, from the circumstances and from his known character, it appeared to the court that his intention had been to commit a felony. By s. 7 of the Act of 1891 it was provided that, in construing the provisions of s. 4 of the Act of 1824 relating to the frequenting of the said places by suspected persons and reputed thieves with the said intent, those provisions should apply to every such person "loitering about or in" any of the said places with the said intent.

On the 13th November, 1975, the plaintiff was convicted in the District Court at the hearing of a complaint that on a certain occasion he, being a suspected person, was found loitering in a public place with intent to steal, contrary to s. 4 of the Act of 1824. On the same date he was convicted in that court at the hearing of a complaint that, on the same occasion, he had in his possession housebreaking implements with intent to steal, contrary to s. 4 of the Act of 1824. Section 4 of the Act of 1824 was the only enactment mentioned in the orders of conviction made by the District Court in relation to those complaints. On the 2nd July, 1976, the District Court made an order convicting the plaintiff of having been found, as a suspected person, on another occasion loitering in a public place with intent to steal, contrary to s. 4 of the Act of 1824 as amended by the Acts of 1871 and 1891. The plaintiff brought an action in the High Court in which he claimed a declaration that the provisions of s. 4 of the Act of 1824 and s. 15 of the Act of 1871 and s. 7 of the Act of 1891 were inconsistent with the provisions of the Constitution of Ireland, 1937, and had not been continued in force by Article 50, s. 1, of the Constitution; he also claimed a declaration that the three orders of conviction made by the District Court were invalid.

Held by McWilliam J., in giving judgment for the plaintiff, 1, that the portion of s. 4 of the Act of 1824 relating to the offence committed by every suspected person or reputed thief who frequents the places therein mentioned (as amended) was inconsistent with the provisions of the Constitution of Ireland, 1937 (a) by infringing the concept of justice, implicit in the Constitution, by reason of the amendment concerning the proof of intent and (b) by infringing the principle of equality before the law, declared in Article 40, s. 1, by reason of being applicable only to every suspected person or reputed thief.

2. That only that portion of s. 4 of the Act of 1824 (as amended) should be declared to have had no effect after the date on which the Constitution came into operation.

On appeal by the defendants it was

Held by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.), in disallowing the appeal, 1, that the provisions of the portion of s. 4 of the Act of 1824 relating to the offence committed by "every suspected person or reputed thief" who frequents the places therein mentioned (as amended) were inconsistent with the provisions of the Constitution and that, assuming that they had been in force immediately prior to the date on which the Constitution came into operation, they had not been continued in force after that date by Article 50, s. 1, of the Constitution.

2. That such inconsistency resulted from incompatibility with the requirement in Article 38, s. 1, of the Constitution that no person shall be tried on a criminal charge save in due course of law, with the guarantee in Article 40, s. 4, sub-s. 1, that no citizen shall be deprived of his liberty save in accordance with law, with the principle of equality before the law declared in Article 40, s. 1, and with the guarantee in Article 40, s. 3, to defend and vindicate the personal rights of citizens.

3. That the plaintiff had no locus standi to question the constitutional validity of those parts of s. 4 of the Act of 1824 which were not invoked in the convictions entered against him.

Cahill v. Sutton [1980] I.R. 269 applied

4. (O'Higgins C.J. dissenting) That the further severance of s. 4 of the Act of 1824 by excising from the said portion thereof the words "suspected" and "or reputed thief" in an attempt to remove such inconsistency would not be a proper exercise of the Court's power to review that statute since the resultant remainder of that portion of s. 4 would not be in accordance with the intention of the parliament which enacted that statute.

Maher v. The Attorney General [1973] I.R. 140 considered.

5. That, by reason of such inconsistency, the plaintiffs second conviction for loitering with intent to commit a felony should be declared to be invalid; and that his first conviction for loitering with such intent and his conviction for possession of housebreaking implements with such intent should be declared to be invalid because the orders made in respect of those convictions failed to show jurisdiction.

Cases mentioned in this report:—

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

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

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

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

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

⁶ R. v. Harris [1951] 1 K.B. 107.

⁷ R. v. Goodwin [1944] K.B. 518.

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

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

¹⁰ R. v. Clarke [1950] 1 K.B. 523.

¹¹ R. v. Fairbairn [1949] 2 K.B. 690.

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

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

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

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

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

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

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

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

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

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

²² In re McAllister [1973] I.R. 238.

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

²⁴ Cahill v. Sutton [1980] I.R. 269.

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

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

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

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

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

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

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...