R (O'Connell) v Military Governor of Hare Park Camp

JurisdictionIreland
CourtKing's Bench Division (Irish Free State)
Judgment Date08 April 1924
Date08 April 1924
R. (O'Connell) v. Military Governor of Hare Park Camp.
THE KING (O'CONNELL)
and
THE MILITARY GOVERNOR OF HARE PARK CAMP (1)

K. B. Div. (I. F. S.)

Habeas corpus - Liberty of the subject - Constitution of the Irish Free State, Articles 64, 70, and 72 - Public Safety (Powers of Arrest and Detention) Temporary Act (I.F.S.), 1924 - Power of the Oireachtas to authorize the detention of untried persons - Judicial powers - Due course of law.

The powers of the Oireachtas of the Irish Free State cover the whole area of self-government within the whole area of the Irish Free State, and include power to authorize the detention of untried persons.

Within the whole area of the Irish Free State the Oireachtas is a free and unfettered Legislature, and there is nothing in the Treaty or the Constitution or the statute confirming them to limit the power of the Oireachtas to authorize such detention.

Attorney-General for Ontario v. Attorney-General for Canada ([1912] A. C. 571) followed.

The Public Safety (Powers of Arrest and Detention) Temporary Act (I.F.S.), 1924, is intra vires the Constitution of the Irish Free State.

Per Pim J.: Because it was a temporary Act, made in abnormal times, and for a temporary purpose.

Habeas Corpus.

John Daniel O'Connell was arrested at Lismore House, Tralee, Co. Kerry, on 26th February, 1923, by troops of the Irish Free State and was taken to Hare Park Internment Camp, Co. Kildare, where he has since been detained in pursuance of an Order dated the 1st February, 1924, of General Richard Mulcahy, then Minister of Defence and a member of the Executive Council of Saorstat Éireann éireann. The Order purported to have been made under the provisions of the Public Safety (Powers of Arrest and Detention) Temporary Act, 1924 (No. 1 of 1924). An application on behalf of O'Connell was made for a writ of habeas corpus directed to the Military Governor of Hare Park Internment Camp requiring him to produce the body of the said John Daniel O'Connell before the Court, and certify in writing as to his detention.

Molony C.J.:—

This was an application on behalf of John Daniel O'Connell for a writ of habeas corpus directed to the Military Governor of Hare Park Internment Camp requiring him to produce the body of the said John Daniel O'Connell before the Court, and to certify in writing as to the cause of his detention.

It appears from the affidavit of Mrs. Joan O'Connell, wife of John Daniel O'Connell, that her husband was arrested at

Lismore House, Tralee, on the 26th February, 1923, by troops of the Irish Free State, and that since that date he has been and is now detained at Hare Park Internment Camp, in the County of Kildare, by the Military Governor of the said Camp.

In reply to the affidavit of Mrs. O'Connell, Commandant Michael Love, the Military Governor of Hare Park Internment Camp, has filed an affidavit stating that the said John Daniel O'Connell is at present detained in his custody in pursuance of an Order dated the 1st February, 1924, of General Richard Mulcahy, Minister of Defence and a member of the Executive Council of Saorstat Éireann éireann.

The said Order purports to have been made under the provisions of the Public Safety (Powers of Arrest and Detention) Temporary Act, 1924, and it has been argued with great ability and force by Mr. Comyn and Mr. Gavan Duffy that this Act was in contravention of the powers conferred on the Oireachtas, and that consequently the Order made thereunder was void and of no effect.

In order to test the validity of the arguments used on behalf of the prosecutor in this case it is necessary in the first instance to refer to the Articles of Agreement for a Treaty between Great Britain and Ireland, dated 6th December, 1921, and the subsequent legislation giving legal effect to the said Articles of Agreement.

Article 1 of the Treaty is as follows:—

"Ireland shall have the same constitutional status in the Community of Nations known as the British Empire as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa, with a Parliament having powers to make laws for the peace, order, and good government of Ireland, and an executive responsible to that Parliament, and shall be styled and known as the Irish Free State."

It was thought necessary to define the position of the Irish Free State in relation to the Imperial Parliament and Government, and accordingly it was provided by Article 2 that:—

"The law, practice, and constitutional usage governing the relationship of the Crown or of the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State."

The power to make laws for the peace, order, and good government of Ireland was limited only by the provisions of Article 16, which prohibited the making of any law so as either directly or indirectly to endow any religion or prohibit or restrict the free exercise thereof.

This Treaty was duly approved by the Imperial Parliament and by a meeting summoned for the purpose of the members elected to sit in the House of Commons of Southern Ireland, and was duly ratified by the necessary legislation.

It then became the duty of Dáil Éireann éireann, sitting as a Constituent Assembly, to frame a Constitution for the Irish Free State, and this was accordingly done and embodied in the Constitution of the Irish Free State (Saorstat Éireann éireann) Act, No. 1 of 1922. Sect. 1 of the constituent Act provides that the Constitution set forth in the first schedule thereto shall be the Constitution of the Irish Free State; and sect. 2 provides that the Constitution shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the second schedule thereto; and that if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the scheduled Treaty it shall to the extent only of such repugnancy be absolutely void and inoperative.

The Constitution was duly approved of by the Imperial Parliament by the Irish Free State Constitution Act, 1922 (13 Geo. 5, Sess. 2, c. 1), subject to a condition in sect. 4 that nothing in the Constitution should be construed as prejudicing the power of Parliament to make laws affecting the Irish Free State in any case where, in accordance with constitutional practice, Parliament would make laws affecting other self-governing Dominions.

The effect then of this legislation is that the Oireachtas has the sole and exclusive power of making laws for the peace, order, and good government of the Irish Free State subject only to the provisions of the Treaty and the Constitution, and the power of the Imperial Parliament to make laws affecting the Irish Free State in any case where, in accordance with constitutional practice, the Imperial Parliament would make laws affecting other self-governing Dominions.

After the Irish Free State came into being it was beset with many difficulties, and, as was recited in the Public Safety (Emergency Powers) Act, No. 28 of 1923, a state of rebellion had been created; and for the purpose of suppressing such rebellion the military defence forces of Saorstat Éireann éireann were entrusted by the Executive Government with the task of securing the public safety and restoring order and the rule of law throughout the country. In suppressing the rebellion the Military Authorities arrested many persons, including the said John Daniel O'Connell, some of whom made applications to this Court under Article 6 of the Constitution for writs of habeas corpus.

As stated by me in my judgment in the Court of Appeal inThe King (O'Brien) v. Military Governor, North Dublin Union Internment Camp(1):—"The Article of the Constitution is only declaratory of the pre-existing law, and accords with the decision of the King's Bench Division in The King v. Allen(2);The King (Garde and Others) v. Strickland(3); The King (Ronayne and Mulcahy) v. Strickland(4); The King (Johnstone)v. O'Sullivan(5) affirmed by this Court (6). To the same effect is the decision of the Master of the Rolls in The King (Childers) v. The Adjutant-General of the Forces of the Irish Provisional Government(1). The Court is bound, when its jurisdiction is invoked, to decide whether or not there exists a state of war or armed rebellion; but once it so decides, it has no power to prohibit, control, or interfere with any act of the military forces, whether it is a matter of detention, as in the present case, or the execution of a capital sentence after trial by a so-called military Court, as in Allen's case and Childers's case, or the execution of a person without trial as in Rory O'Connor's case."

In that case the Court of Appeal held that a state of war ceased to exist on the 31st July, 1923, and the necessary effect of that decision was that all persons then in military custody should be released unless statutory provision was made for their detention. The Public Safety (Emergency Powers) Act (I.F.S., No. 28 of 1923) was passed by the Oireachtas immediately afterwards, and came into operation on the 3rd August, 1923; and sect. 3 of the last-mentioned Act provided for the detention in custody of persons then in military custody, either by the military authorities or under an order of an Executive Minister. This Act, however, was only to remain in force for six months after the passing thereof, and, accordingly, it became necessary to make further provision for the detention of the persons who still remained in military custody. The Public Safety (Powers of Arrest and Detention) Temporary Act (I.F.S., No. 1 of 1924) was then passed, sect. 4 of which enacts as follows:—

"Every person who is now detained in military custody, or held as a military prisoner or captive, and has not, before the passing of this Act, been sentenced to...

To continue reading

Request your trial
5 cases
  • Article 26 of the Constitution and the Offences Against the State (Amendment) Re Bill, 1940
    • Ireland
    • Supreme Court
    • 9 February 1940
    ...course of law. R. (Zadig) v. HallidayELR, ([1917] A. C. 260) and The King (O'Connellv. The Military Governor of Hare Park CampIRIR, ([1924] 2 I.R. 104, on appeal [1935] I.R. 247), applied. 3. That the provisions of the Bill are not repugnant to the provisions of Art, 40, clause 3, of the Co......
  • Re Reade
    • Ireland
    • Supreme Court (Irish Free State)
    • 30 October 1927
    ...p. 65. (1) [1909] 1 K. B. 7. (2) [1899] 2 Q. B. 145. (3) [1925] A. C. 754. (1) [1899] 2 Q. B. 145. (1) [1925] A. C. 754, at p. 771. (2) [1924] 2 I. R. 104, at p. (1) L. R. 8 Eq. 69. (2) [1925] A. C., at p. 779. (3) 8 App. Cas. 767. (1) [1925] 2 I. R. 165. ...
  • The State (Burke) v Lennon and Attorney General
    • Ireland
    • Supreme Court
    • 15 December 1940
    ...(8) [1917] A. C. 260, at p. 291. (1) [1935] I. R. 170. (2) [1935] I. R. 170, and at p. 229. (1) 44 I. L. T. R. 176, at p. 182. (2) [1924] 2. I. R. 104. (3) [1924] 1 I. R. 32, at p. 37. (4) [1939] I.R. 413, at p. 417. (1) [1930] I. R. 366. (1) [1924] 2 I. R. 104. (2) [1935] I. R, 247. (1) [1......
  • Ryan and Others (The State) v Lennon and Others
    • Ireland
    • Supreme Court (Irish Free State)
    • 19 December 1935
    ...(1) 20 Wall. 655. (1) 21 Ohio 41. (2) 3 Wash. C. C. 313. (1) The judgments are set out post, p. 245 et seq. (1) [1932] A. C. 526. (1) [1924] 2 I. R. 104. ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT