Re Harte and McGrath

Judgment Date26 August 1941
Date26 August 1941
CourtSupreme Court
In re McGrath and Harte.
In the Matter of the Application of PATRICK McGRATH and THOMAS HARTE for relief by way of Habeas Corpus
and in the Matter of the Constitution, and in the Matter of the Courts of Justice Acts

Supreme Court.

Constitution - Emergency powers- "Time of war" - Extension of definition by First Amendment of the Constitution - Validity of extension - Military Courts for trial of certain offences in "time of war" - Validity of Acts and Orders authorising same - Retrospective operation - Rules Publication Act, 1893 (56 & 57 Vict. c. 66) - Applicability of, to Government Orders - Constitution of 1937, Arts. 25, 28, 51 - First Amendment of the Constitution Act, 1939 - Emergency Powers Act, 1939 (No. 28 of 1939) - Emergency Powers (Amendment No. 2) Act, 1940 (No. 16 of 1940) -Emergency Powers (Nos. 41 and 41a) Orders, 1940 - Application for habeas corpus.

Art. 28, sub-s. 3, of the Constitution provides that "nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war . . ." By the First Amendment of the Constitution Act, 1939 this sub-section of Art. 28 was amended by the addition at the end of the sub-section of the following words:—"In this sub-section 'time of war' includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State." This amendment was made in pursuance of Art. 51, which provides, in general, that the Constitution may be amended by the Oireachtas within a period of three years after the date on which the first President shall have entered upon his office.

In pursuance of these provisions a Military Court was, by the Emergency Powers (Amendment) (No. 2) Act, 1940 (No. 16 of 1940), and by Order made thereunder, set up for the trial of persons charged with certain specified offences, including murder, and for the imposition of the sentence of death by shooting on conviction. Under the provisions of a further Order two persons charged with murder were committed for trial to the said Military Court. They were convicted and sentenced to death.

On an application to make absolute a conditional order of habeas corpus,obtained on behalf of these two persons, it was held by Gavan Duffy J., and, on appeal, by the Supreme Court,

1. That the First Amendment of the Constitution was within the powers of amendment conferred on the Oireachtas by Art. 51;

2. That Art. 25, sub-s. 2, cl. 1, providing that the President shalld not sign a Bill until the lapse of five days from the date on which it has been presented to him, does not apply to a Bill expressed to contain a proposal to amend the Constitution;

3. That the Emergency Powers Acts, 1939 and 1940 (No. 28 of 1939 and No. 16 of 1940), being expressed in their long titles to be for the purpose of securing the public safety and the preservation of the State in time of war, it was not necessary that this purpose should be stated in the enacting portion of the Acts; and that, the resolutions contemplated by Art. 28 having been admittedly passed, it was not necessary that it should be so stated in the Acts; and that, these Acts having been passed in accordance with the provisions of Art. 28, no other Articles of the Constitution could be invoked to invalidate them;

4. That the Emergency Powers (No. 41) Order, 1940 establishing the Military Court, and Emergency Powers (No. 41a) Order, 1940 committing the above mentioned persons for trial, were made by the Government in express exercise of their powers under the above mentioned Acts, and that it was, therefore, not necessary that they should show jurisdiction on their face by reciting either the resolutions passed by the Oireachtas or the opinion of the Government that they are necessary or expedient for securing the public safety or the preservation of the State;

5. That s. 3 of the Emergency Powers (Amendment) (No. 2) Act, 1940, which provides that the Government may by Order make provisions for the trial in a summary manner of any person alleged to have committed any offence specified in such Order, authorises the Government to provide for the trial and punishment of persons, whether the offences are alleged to have been committed before or after the making of such Order;

6. That the Rules Publication Act, 1893 (56 & 57 Vict. c. 66), which deals with the making and publishing of rules and regulations made by specified rule-making authorities, does not apply to Statutory Rules and Orders made by the Government, inasmuch as there has been no adaptation of the Act to that purpose.

The conditional order for habeas corpus was accordingly discharged.

Habeas Corpus.

On the 23rd August, 1940, an application was made on behalf of the prosecutors, Patrick McGrath and Thomas Harte, to Gavan Duffy J. as Vacation Judge, at his private residence, for a conditional order of habeas corpus, directed to Commandant Lennon, the Military Governor of Arbour Hill Military Detention Barracks.

Gavan Duffy J. granted the conditional order.

On the 26th August, 1940, before the application to make absolute the conditional order was heard, Gavan Duffy J. announced in Court the grounds upon which he had granted the conditional order, as follows:—

Gavan Duffy J.:—

As the conditional order in these two cases was not made in public Court, I must at the outset state precisely why it was issued, though counsel is free to develop further grounds to-day according to the practice in habeas corpus cases.

Patrick McGrath and Thomas Harte were tried, convicted and sentenced to death by a Military Court on a charge...

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5 cases
  • People (Attorney General) v Shribman and Samuels
    • Ireland
    • Court of Criminal Appeal
    • 8 March 1946
    ...and was binding on the Court. The fact that the Order had retrospective effect did not invalidate it. In re McGrath and HarteIR, [1941] I. R. 68 and Minister for Agriculture v. O'ConnellIR, [1942] I. R. 600, applied. The Order did not suspend, amend, or apply the Emergency Powers Acts and c......
  • Minister for Agriculture v O'Connell
    • Ireland
    • Supreme Court
    • 16 November 1942
    ...made after the summons had been issued, and the six months period had elapsed before the issue of the summons. In re McGrath and HarteIR [1941] I. R. 68, applied. Minister for Agriculture v. O'Connell. THE MINISTER FOR AGRICULTURE Complainant and DAVID O'CONNELL, Defendant (1) Supreme Court......
  • DPP v Quilligan and O'Reilly
    • Ireland
    • Supreme Court
    • 1 January 1987
  • The State (Walsh and Others) v Lennon and Others
    • Ireland
    • Supreme Court
    • 27 January 1942
    ...(No. 2) Act, 1940. The validity of Order (No. 41 of 1940) and of the said two Acts was established in In re McGrath and HarteIR, [1941] I.R. 68, but the validity of Order (No. 41 F of 1941) was challenged on an application by the accused for orders of habeas corpus and prohibition. It was c......
  • Request a trial to view additional results
2 books & journal articles
  • Catholicism and the Judiciary in Ireland, 1922-1960
    • Ireland
    • Irish Judicial Studies Journal No. 1-20, January 2020
    • 1 January 2020
    ...Board v Donnelly [1939] IR 413, Re Article 26 and the Offences Against the State (Amendment) Bill, [1940] IR 470, State (Walsh) v Lennon [1941] IR 68, Re McGrath and Harte [1941] IR 68, Re Article 26 and the School Attendance Bill , 1943 IR 334, National Union of Railwaymen v Sullivan [1947......
  • George Gavan Duffy
    • Ireland
    • Irish Judicial Studies Journal No. 2-2, July 2002
    • 1 July 2002
    ...I.R. 67 at 70-71. 22[1940] I.R. 136. 23Golding, George Gavan Duffy 1882-1951 : A Legal Biography, p. 109-115. 24[1941] I.R. 83. 25[1941] I.R. 68. 26[1942] I.R. 21 Judicial Studies Institute Journal [2:2 and ultimately no less than four of the plaintiffs were executed by de Valera’s governme......

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