McElhinney v the Special Criminal Court

• Jurisdiction: Ireland
• Judge: WALSH J.
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-SC 533
• Court: Supreme Court
• Docket Number: [No. 203 J.R. 1988]
• Date: 01 January 1990

1989 WJSC-SC 533

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

Murphy J.

(398/88)

McELHINNEY v. SPECIAL CRIMINAL COURT

BETWEEN:

LIAM McELHINNEY

Applicant

v.

THE SPECIAL CRIMINAL COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

Citations:

CRIMINAL LAW ACT 1976 S3

OFFENCES AGAINST THE STATE ACT 1939 S47

OFFENCES AGAINST THE STATE ACT 1939 S47(2)

SPECIAL CRIMINAL COURT RULES 1975 SI 234/1975 r17(1)

OFFENCES AGAINST THE STATE ACT 1939 S47(3)

OFFENCES AGAINST THE STATE ACT 1939 S47(1)

OFFENCES AGAINST THE STATE ACT 1939 S43(1)

DPP V PRINGLE, MCCANN & O'SHEA UNREP 22/5/81 1982/3/543

Synopsis:

SPECIAL CRIMINAL COURT

Jurisdiction

Accused - Attendance - Procurement - Lawful means - Conviction for unscheduled offence - Accused brought before court and charged with unscheduled offence without recourse to warrant relating to that offence - Accused brought before court pursuant to warrant issued in relation to scheduled offence - Conviction valid - ~See~ Criminal Law, accused - (398/88 - Supreme Court - 15/2/89) - [1990] 1 I.R. 405 - [1989] ILRM 411

|McElhinney v. Special Criminal Court|

CRIMINAL LAW

Accused

Attendance - Procurement - Lawful means - Special Criminal Court - Jurisdiction - Conviction for unscheduled offence - Accused brought before court and charged with unscheduled offence without recourse to warrant relating to that offence - Accused brought before court pursuant to warrant issued in relation to scheduled offence - Conviction valid - Section 43, sub-s. 1, of the Act of 1939 states (inter alia) that a Special Criminal Court shall have jurisdiction to try and to convict or acquit any person "lawfully brought before that Court for trial under this Act" - Section 47, sub-s. 1, of that Act provides that, whenever it is intended to charge a person with a scheduled offence, the Director of Public Prosecutions may direct that such person shall be brought before a Special Criminal Court and there charged with such offence (instead of being charged with the offence in the District Court); and that, 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 that court on that charge - Section 47, sub-s. 2, provides that, where it is intended to charge a person with an offence which is not a scheduled offence and the said Director certifies his opinion to be as therein described, sub-s. 1 of the section shall apply and have effect as if the offence with which that person is intended to be charged were a scheduled offence - Section 47, sub-s. 3, of the Act states that, whenever a person is required by the section to be brought before a Special Criminal Court and charged before that court,it is lawful for that court to issue a warrant for the arrest of that person and for bringing him before that court - The Director of Public Prosecutions had formed the intention of prosecuting the applicant for a scheduled offence and had directed, pursuant to s. 47, sub-s. 1, that the applicant be brought before a Special Criminal Court and there charged with the commission of the scheduled offence - On 16/12/87 a warrant for the arrest of the applicant was issued pursuant to s. 67, sub-s. 3, of the Act of 1939 and he was arrested pursuant to that warrant for the purpose of bringing him before a Special Criminal Court so that he could be charged with the commission of the said scheduled offence - The applicant was brought before a Special Criminal Court on 19/12/87 and was there charged with the commission of the scheduled offence - On the same occasion the applicant was charged with the commission of an unscheduled offence which was specified in a certificate issued on the previous day by the Director of Public Prosecutions pursuant to s. 47, sub-s. 2, of the Act of 1939 - In that certificate the said Director had certified (a) his intention to charge the applicant with a specified unscheduled offence and (b) his opinion to be that the ordinary courts were inadequate to secure the effective administration of justice in relation to a trial of the applicant for the unscheduled offence - The applicant was tried and convicted by a Special Criminal Court of having committed the unscheduled offence, and that court sentenced him to five years imprisonment - Having obtained leave, the applicant applied to the High Court for an order of certiorari quashing his conviction on the ground that he had not been brought before the court of trial pursuant to a warrant issued in relation to the offence of which he had been convicted and that, accordingly, the court of trial had lacked jurisdiction to try and convict him for the unscheduled offence - On 2/12/88 the High Court made the order sought by the applicant, and the said Director appealed against the order of the High Court - Held, in allowing the appeal, that on 19/12/87 the applicant had been "lawfully brought" before a Special Criminal Court for trial under the Act of 1939, notwithstanding the fact that he had been so brought as a result of having been arrested pursuant to a warrant issued under s. 47, sub-s. 3 of the Act of l939 in respect of the commission of a scheduled offence: ~The People v McCann~ 2 Frewen 89–91 (C.C.A. - 22/5/81) considered - Held, accordingly, that the court of trial had jurisdiction pursuant to s. 43 of the Act of 1939 to try and convict the applicant for the unscheduled offence - Offences Against the State Act, 1939, ss. 43, 47 - (398/88 - Supreme Court - 15/2/89) [1990] 1 I.R. 405[1989] ILRM 411

|McElhinney v. Special Criminal Court|

1 15th day of February 1989 by WALSH J. [NEM DISS]

2 This appeal has been taken by the Director of Public Prosecutions against the judgment and order of Mr. Justice Gannon in the judicial review of the trial,...