Quinlivan v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1997 No. 1878 SS].
• Court: High Court

High Court

[1997 No. 1878 SS].

Quinlivan v. Governor of Portlaoise Prison

Nessan Quinlivan

Applicant

and

The Governor of Portlaoise Prison, Respondent and The Director of Public Prosecutions, Ireland and The Attorney General, Notice Parties

Cases mentioned in this report:-

In Re Athlumney [1898] 2 Q.B. 547.

Attorney General v. Marquis of Hertford [1849] 3 Exch. 670.

B. v. Director of Public Prosecutions [1997] 2 I.L.R.M. 118.

Britnell v. Secretary of State for Social Security [1991] 2 All E.R. 726.

Buckley and others (Sinn Féin) v. The Attorney General[1950] I.R. 67.

Costello v. Director of Public Prosecutions [1984] I.R. 436.

D. v. The Director of Public Prosecutions [1994] 1 I.L.R.M. 435.

Doyle v. An Taoiseach [1986] I.L.R.M. 693.

East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317.

Eccles v. Ireland [1985] I.R. 545; [1986] I.L.R.M. 343.

Gloucester Union v. Woolwich Union [1917] 2 K.B. 374.

Hamilton v. Hamilton [1982] I.R. 466; [1982] I.L.R.M. 290.

Hegarty v. O'Loughran [1990] 1 I.R. 148; [1987] I.R. 135, H.C.; [1990] I.L.R.M. 403, S.C.

Hitchcock v. Way (1837) 6 Ad. and El. 943.

Kavanagh v. The Government of Ireland [1996] 1 I.R. 321.

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

McDaid v. Judge Sheehy [1991] 1 I.R. 1; [1989] I.L.R.M. 342, H.C.; [1991] I.L.R.M. 250, S.C.

McDonald v. Bord na gCon (No. 2) [1965] I.R. 217.

In Re McLoughlin's Application [1963] I.R. 465.

O'H v. O'H [1990] 2 I.R. 558; [1991] 1 I.L.R.M. 108.

The People (Director of Public Prosecutions) v. Kavanagh (Unreported, Special Criminal Court, 29th October, 1997).

Quinn v. Wren [1985] I.R. 322; [1985] I.L.R.M. 410.

R. v. Ipswich Village (1876-1877) 2 Q.B. 269.

R. (O'Leary) v. Justice of Kerry 3 N.I.J.R. 251.

The State (McEldowney) v. Kelleher [1983] I.R. 289; [1985] I.L.R.M. 10.

The State (O.) v. O'Brien [1971] I.R. 42.

The State (Shanahan) v. The Attorney General [1964] I.R. 239.

In Re Joseph Suche & Co. Ltd. (1875-76) 1 Ch. D. 48.

Swire v. Cookson (1883) 48 L.T. 877.

Thompson v. Lack (1846) 3 C.B. 540.

Zainal bin Hashim v. Government of Malaysia [1980] A.C. 734.

Criminal Law - Common law offence - Statutory abolition - Absence of transitional provisions - Whether pending prosecutions affected - Interpretation Act, 1937 (No. 38), s. 21(1) - Non-Fatal Offences Against The Person Act, 1997 (No. 26), s. 28.

Statutory interpretation - Criminal statute - Intention of Parliament - Non-interference with judicial process - Canons of construction - Common law rule - Whether applicable to criminal statute - Interpretation Act, 1937 (No. 38), s. 21(1) - Non-Fatal Offences Against The Person Act, 1997 (No. 26), s. 28.

Inquiry under Article 40 of The Constitution.

The facts are summarised in the headnote and are fully set out in the judgment of McGuinness J., infra.

The applicant sought an inquiry pursuant to Article 40.4.2 of the Constitution into the lawfulness of his detention by way of an ex parte application to the High Court on the 30th October, 1997, grounded on an affidavit sworn on the 30th October, 1997. The High Court (Carney J.) made an order directing that he be produced before the Court and that the respondent should certify in writing the grounds of the applicant's detention. On the 31st October, 1997, the respondent certified the grounds of the applicant's detention and the inquiry into the lawfulness of the applicant's detention pursuant to Article 40.4.2 was listed for hearing on the 5th November, 1997. The Director of Public Prosecutions was joined as a notice party. On the 3rd November, 1997, a notice pursuant to O. 60 of the Rules of the Superior Courts, 1986, was served on the Attorney General.

The matter was heard by the High Court, (McGuinness J.), on the 5th, 6th and 7th November, 1997. An ex tempore judgment was given on the 10th November, 1997, refusing the relief sought by the applicant and outlining in summary form the reasons for so refusing.

Section 28 of the Non-Fatal Offences Against the Personal Act, 1997 provides, inter alia, that:-

"(1) The following common law offences are hereby abolished -

. . .

• (c) kidnapping, and

  • (d) false imprisonment."

On the 7th November, 1996, the applicant was arrested and charged with the offence of false imprisonment contrary to common law and s. 11 of the Criminal Law Act, 1976. He was returned for trial on the 11th November, 1997.

On the 30th October, 1997, the applicant applied ex parte to the High Court pursuant to Article 40.4.2 of the Constitution on the grounds that he was unlawfully in custody by reason of s. 28 of the Non-Fatal Offences Against the Person Act, 1997, which came into force on the 19th August, 1997.

It was submitted by the applicant that s. 28 of the Act of 1997 abolished the common law offence of false imprisonment and in the absence of transitional provisions in the Act, the prosecution against him could not proceed.

Held by McGuinness J., in refusing the relief sought, 1, that in the absence of an express statement in a statute abolishing a common law offence that the abolition of the common law offence was to have the effect of bringing an abrupt end to all prosecutions for that offence which were then before the courts, all prosecutions which were pending immediately prior to the coming into force of the statute would continue. The statute did not have to expressly provide that such prosecutions would continue after the coming into operation of the statute.

The People (Director of Public Prosecutions) v. Kavanagh (Unreported, Special Criminal Court, 29th October, 1997) overruled. In Re Suche (1875-76) 1 Ch. D. 48followed.

2. That where a statute abolishing a common law offence failed to include transitional provisions, the court had a duty to draw such inferences in respect of these transitional provisions as Parliament intended.

3. That the canons of construction and the common law rule of interpretation were important but not conclusive tools of statutory interpretation in criminal matters. However, combined with the constitutional requirement of non-interference with the judicial process, they were a useful means to determine the intention of Parliament.

• Buckley v. The Attorney General [1950] I.R. 67 and Hamilton v. Hamilton[1982] I.R. 466applied.

4. That the offence of false imprisonment, prior to the enactment of the Non-Fatal Offences Against the Person Act, 1997, was a common law offence and the saver provided for by s. 21(1) of the Interpretation Act, 1937, did not apply to the statutory abolition of common law offences.

The People (Director of Public Prosecutions) v. Kavanagh (Unreported, Special Criminal Court, 29th October, 1997) followed.

5. That where two constructions or interpretations of relevant statutory provisions are open, the court must adopt one which was not in conflict with the Constitution.

Cur. adv. vult.

McGuinness J. 9th December, 1997

The facts

The applicant in these proceedings was arrested on the 14th October, 1996 at his home address at 5, Knockalisheen Avenue, Ballynanty Beg, Limerick and was detained under the provisions of s. 30 of the Offences Against the State Act, 1939. On the following day the 15th October, 1996, the applicant was released from that arrest and was rearrested at common law for the offence of false imprisonment. On the 16th October, 1996, the applicant was brought before the Special Criminal Court in Dublin and was formally charged with the offence of false imprisonment of one Michael Lyons at Greenhill Road, Garryowen, Limerick, on the 25th August, 1996, contrary to common law and s. 11 of the Criminal Law Act, 1976. On that day the case was adjourned to the 13th November, 1996 and the applicant was remanded in custody.

It subsequently transpired that one of the judges who had been sitting on the Special Criminal Court on the 16th October, 1996, was no longer a member of the Special Criminal Court and that the legal effect of this circumstance was that there was no valid Court sitting on the 16th October, 1996. The applicant had therefore not been validly remanded in custody and his imprisonment in Portlaoise Prison was unlawful. A direction was given by the Minister for Justice for the release of the applicant and he was released together with a number of other persons in similar circumstances at approximately midnight on the night of the 6th/7th November, 1996. He was virtually immediately rearrested and brought before a properly constituted Special Criminal Court on the 7th November, 1996, where he was recharged with the said offence of false imprisonment contrary to common law and s. 11 of the Criminal Law Act, 1976. He was again remanded in custody to Portlaoise Prison.

The applicant then commenced proceedings in this Court pursuant to the provisions of Article 40 of the Constitution challenging the lawfulness of his detention arising out of the proceedings on the 7th November, 1996. The High Court (Kelly J.), refused the relief sought by the applicant in those proceedings. The applicant appealed that decision to the Supreme Court and the appeal was heard on the 20th October, 1997. The Supreme Court gave judgment on 7th November, 1997, (during the course of the present application before this Court) and upheld the judgment and order of Kelly J.

Meanwhile in the Special Criminal Court a book of evidence was formally served on the applicant on the 14th October, 1997 and he was returned for trial on the 11th November, 1997. This was subsequently postponed to the 12th November, 1997, on account of the inauguration of the President which was held on the 11th November, 1997.

On the 29th October, 1997, the Special Criminal Court gave judgment in the case of The People (Director of Public Prosecutions) v. Kavanagh (Unreported, Special Criminal Court, 29th October, 1997). In that judgment the Special Criminal Court considered the effect of s. 28 of the Non-Fatal Offences...