Molyneux v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello.
• Judgment Date: 25 February 1997
• Neutral Citation: [1997] IEHC 206
• Court: High Court
• Date: 25 February 1997

MOLYNEUX v. IRELAND & AG

BETWEEN

DEREK MOLYNEUX

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[1997] IEHC 206

No. 1833P/1993

THE HIGH COURT

Synopsis:

Constitutional Law

Dublin Police Act 1842, s.28; arrest without warrant of person suspected (but not witnessed by Garda) of committing aggravated assault; power restricted to Dublin area; whether in breach of Art.40(1) - Held: S.28 not unconstitutional; discrimination not founded on any basic human attribute, but on reasonable public policy grounds - (High Court: Costello P - 25/02/1997) [1997] 2 ILRM 241

|Molyneux v. Ireland|

Citations:

DUBLIN POLICE ACT 1842 S28

CONSTITUTION ART 40.1

UNITED NATIONS DECLARATION OF HUMAN RIGHTS 1948 ART 1

QUINNS SUPERMARKET LTD V AG 1972 IR 1

HARTLEY, STATE V GOV OF MOUNTJOY PRISON UNREP SUPREME 21.12.67

TORMEY V AG 1984 ILRM 657

1 Mr. Justice Costello.Delivered the 25th day of February 1997.

2 The Plaintiff is alleged to have committed an assault in the Dublin Metropolitan District on the 5 July 1992. He was arrested by a member of the Garda Siochana under section 28 of the Dublin Policy Act, 1842 which provides that;

".....it shall be lawful for any constable belonging to the said Dublin Police to take into custody without warrant any person within limits of the police district who shall be charged by any other person withcommitting any aggravated assault, in every case in which such constable shall have good reason to believe that such assault has been committed, although not within view of such constable, and by the reason of the recent commission for the offence a warrant could not have been obtained for the apprehension of the offense".

3 He was brought before the District Court. The charge of assault was heard on the 15 October 1992 and the 13 January 1993. On that day the plaintiff's solicitor informed the court that he wished to refer a point of Law to the High Court and the prosecution was adjourned. By plenary summons of the 9 March 1993 these proceedings in the High Court were instituted and the prosecution in the District Court has been regularly adjourned ever since. The High Court proceedings have been inordinately delayed byt eventually by order of the 1 July 1996 it was ordered that the issue as to whether section 28 of the 1842 Act is unconstitutional by reason of inconsistency with Article (40)(1) of the Constitution be tried as a preliminary issue. This is my judgment on that issue.

4 Article 40(1) provides:

"All citizens shall, as human persons, be held equal before the law. Thisshall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function".

5 The plaintiff's case is that the power of arrest conferred by the section does not exist outside the Dublin area where neither statutory or common law would permit the arrest of a suspect without warrant in the circumstances referred to in the section and that this means that all citizens are not being treated equally by the law and so Article 40(1) is infringed.

6 In my view this submission is based on a misunderstanding of the Article and is unsustainable.

7 The preamble to the Constitution declares that by enacting it the people of Ireland were, inter alia, seeking to promote the common good so that the "dignity and freedom" of the individual might be...