R (O'Brien) v The Governor of the Military Internment Camp and the Minister of Defence

CourtCourt of Appeal (Irish Free State)
Judgment Date02 August 1924
Date02 August 1924
R. (O'Brien) v. Military Gov. N.D.U. Internment Camp.
THE KING (O'Brien)

Appeal. (I. F. S.)

Habeas corpus - State of war or armed rebellion - Liberty of subject - Martial law - Jurisdiction of the civil Courts to determine when state of war is at an end - Constitution of the Irish Free State, Articles 6 and47 - Public Safety (Emergency Powers) Act, 1923, - Powers of Executive Minister thereunder - Bills for the immediate preservation of the public peace - Declaration by both Houses of the Oireachtas.

The civil Courts are bound, when their jurisdiction is invoked, to decide whether or not there exists a state of war or armed rebellion, but once they decide there is a state of war or armed rebellion they have no power to prohibit, control, or interfere with any act of the military forces. Article 6 of the Irish Free State Constitution is merely declaratory of the pre-existing law.

The Court of Appeal on the evidence held that a state of war or armed rebellion did not exist in Dublin at the time of the application, and accordingly ordered a writ of habeas corpus to issue to the respondents, in whose custody Mrs. Nora O'Brien was detained.

In answer to the writ the respondents certified and returned that the prisoner was detained in custody under an order of Richard Mulcahy, an Executive Minister of Saorstat Éireann éireann, within the meaning of the Public Safety (Emergency Powers) Act, 1923, he being of opinion that the public safety would be endangered by the prisoner being set at liberty. The validity of the return was questioned on the ground that the Act enabling a Minister to make such an order had been passed only the previous day, and that the declaration by both Houses of the Oireachtas, that the Bill was necessary for the immediate preservation of the public peace or safety, required by Article 47 of the Constitution had not been made.

Held, that the Act could not be relied upon, and that the return was no answer to the writ.

Habeas Corpus.

Mrs. Nora Connolly O'Brien was taken into custody at 19 Ely Place, Dublin, by soldiers of the Free State on the 14th January, 1923, and was detained in the North Dublin Union, which was used by the military authorities as an internment camp, at the date of this application. Motion on her behalf was made ex parte, in the first instance, to the Master of the Rolls for a writ of habeas corpus directed to the Military Governor of the Military Internment Camp, North Dublin Union, and the Minister of Defence. The writ was refused, but liberty was given to serve notice on the Free State authorities, which was accordingly done, and the motion came on for argument on the 15th June. The motion was grounded on the affidavit of the applicant's sister, who deposed:—

1. My sister, Nóra ní Chonghaile Bean Shéamuis uí Bhriain, of 19 Ely Place, in the County of the City of Dublin, was taken into military custody at her husband's residence at the above address on or about the 14th day of January, 1923, and is at present detained in the North Dublin Union, which is used as a military internment camp by the Free State army.

2. I am informed by my said sister and believe that no charge has been preferred against her.

3. I refrained from applying for a writ of habeas corpus ad subjiciendum at an earlier date, being advised that owing to the existence of a state of war within the area of jurisdiction of this Court such application would have been held unsustainable. I beg to refer to a copy of the Irish Timesnewspaper of the 29th day of May, 1923, containing a proclamation by Mr. Eamonn de Valera, President, and Mr. Frank Aiken, Chief of Staff of the I.R.A., from which it appears that the said I.R.A., against whom the said Free State army have been waging war, have been ordered to cease all acts of warfare.

4. The said North Dublin Union Military Internment Camp is under the command of a military governor or commandant, and I respectfully beg this honourable Court to issue writs of habeas corpus ad subjiciendum directed to the Aire Cosanta and to the military governor or commandant of the said internment camp respectively, commanding them to have the body of my sister, the said Nóra ní Chonghaile Bean Shéamuis uí Bhriain, before this honourable Court, with the reasons for her detention, on a date to be named in the said writs.

The following affidavit was filed by the Chief State Solicitor on behalf of the authorities:—

I, Gearóid Ó Súilleaváin ó súilleaváin, of General Headquarters, Parkgate Street, in the County of the City of Dublin, Lieutenant-General, aged 21 years and upwards, make oath and say as follows:—

1. I am the Adjutant-General of the army of Saorstat Éireann éireann (commonly called Ógláigh ógláigh na hÉireann héireann), and I make the following affidavit from facts within my knowledge as such Adjutant-General, save where the contrary appears.

2. I beg to refer to the affidavit sworn by me and filed in this Division on the 20th November, 1922, in a matter of "The King (at the prosecution of Erskine Childers) against the Officer Commanding the Troops, Portobello Barracks, in the County of Dublin, and the Adjutant-General of the Provisional Government Forces, Gearóid O'Sullivan," and I say that the military position as it stood in this country at the time of the swearing of the said affidavit is correctly stated therein.

3. Since November last active operations have been carried on throughout the country by the army, and these operations have been to a considerable extent successful. Large areas have been rendered comparatively free from the tyranny exercised by the armed irregulars. The National troops have moved around rapidly by night and day, and thereby kept the irregular forces continually on the move. Many engagements have taken place between the National forces and the irregulars, in which the latter have been defeated, and in some places encircling movements have been carried out by the army whereby numbers of the irregulars have been rounded up and taken prisoners, and quantities of arms and ammunition captured. There are still numbers of these irregulars at large, and the army authorities are satisfied that there are considerable quantities of arms and ammunition throughout the country, either in the hands of the irregulars or concealed in dumps known only to the irregulars, and available for use by them as and when required.

4. Active and vigorous operations are still being carried on from day to day by the National army according to plan. By means of such operations, pressed without interruption, the army hope to be able to round up and to capture such of the active irregulars as are still at large, and to locate and take possession of the arms and ammunition in their possession.

5. I am aware, from the perusal of quantities of documents and correspondence captured by us from the irregulars, that part of the deliberate plan of campaign of the irregulars was to seize tracts of land throughout the country, and hold them by force against the rightful owners with a view to upsetting the forces of law and order and reducing the country to a state of anarchy. In pursuance of such plan large tracts of land were taken and held by force throughout the country, without any show or claim of legal right or justification. This campaign could only be met and dealt with by means of military force, and such force has been and is being used. Several of these tracts of land have been taken over by the military forces from persons who were unlawfully in possession thereof, and have been restored to their rightful owners. There are still many such places with which they have not as yet had time to deal. These places are held by force against their rightful owners, and the latter can only be restored thereto and protected in the possession thereof by military action.

6. Owing to the condition prevailing in the country it has not been possible to hold an Assize since July, 1921. Great progress has been made in restoring trial by jury at Quarter Sessions, but there are still areas in which circumstances have not so far returned to normal as to allow the free functioning of juries. In Dublin and elsewhere the Courts have been kept open and functioning only by being guarded night and day by the army. In various places it is impossible to have writs served in the ordinary way, and applications for the service of writs by post or otherwise are of frequent occurrence. In executing decrees of the Court the Sheriffs have been compelled to call for and have been accorded military assistance.

7. With reference to paragraph 3 of the affidavit of Moira Connolly filed hereof, I beg to refer to a copy as captured by the army of the document published in the said issue of the Irish Times, on which, marked with the letter "A," I have signed my name before the swearing hereof. The actual captured document did not bear the signature of Mr. de Valera and Mr. Aiken, or either of them. It is not known whether there was in fact an original or whether same was signed by Mr. de Valera or Mr. Aiken. In addition, there is to the knowledge of the army authorities considerable dissension existing amongst the irregular forces, and the army authorities consider that neither Mr. de Valera nor Mr. Aiken can speak for or control the said irregular forces.

8. On the 25th May, 1923, the army captured one P. J. M'Donnell, who is described as O.C. Fourth Western Division of the Irregulars, and on his arrest was found to be in possession of a document signed by S. Hyde, who is alleged to be and described as being "O.C. Western Command." I beg to refer to the original of the said document, on which, marked with the letter "B," I have signed my name before swearing hereof, and would direct particular attention to paragraphs 3 and 4 thereof and to the advice given at the end of...

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