Re Haughey

• Jurisdiction: Ireland
• Judgment Date: 24 June 1971
• Date: 24 June 1971
• Docket Number: [1971. No. 58 SS.]
• Court: Supreme Court

High Court

Supreme Court

[1971. No. 58 SS.]

In re Haughey

In the Matter of the Committee of Public Accounts of Dáil Éireann éireann (Privilege and Procedure) Act, 1970, and in the Matter of the Courts (Supplemental Provisions) Act, 1961, and in the Matter of Pádraic (otherwise Páraic) Haughey

Constitution of Ireland - Statute - Validity - Inquiry by committee of Dáil Éireann éireann - Refusal by witness to answer questions - Statute authorising the committee to "certify the offence" and empowering the High Court after inquiry to punish the offender as if he had committed contempt of the High Court - Whether a minor offence - Right to trial by jury - High Court - Jurisdiction - Whether a court of summary jurisdiction - Standing orders of Dáil Éireann éireann - Criminal offence - Particulars - Oireachtas Witnesses Oaths Act, 1924 (No. 53), s. 1 - Constitution (Consequential Provisions) Act, 1937 (No. 40), s. 4, sub-s. 1 - Committee of Public Accounts (Privilege and Procedure) Act, 1970 (No. 22), s. 3, sub-s. 4 - Constitution of Ireland,1937, Articles 37, 38, 40.

Motion on Notice.

On the 19th February, 1971, the High Court (O'Keeffe P.) on the application ex parte of the Attorney General made an order giving him liberty to serve on Mr. Pádraic Haughey a notice requiring him to attend before the High Court on the 24th February, 1971, to show cause why he should not be punished in like manner as if he had been guilty of contempt of the High Court; the order also directed that a copy of the order and a copy of a certificate dated the 18th February, 1971, of the Committee of Public Accounts of Dáil Éireann éireann should be served with the said notice.

On the 22nd February Mr. Pádraic Haughey issued a plenary summons (1971. No. 701 P.) in the High Court naming the Attorney General as defendant and seeking a declaration that the Committee of Public Accounts of Dáil Éireann éireann (Privilege and Procedure) Act, 1970, was repugnant to the Constitution.

When Mr. Pádraic Haughey attended, as respondent, before the President of the High Court on the 24th February he undertook to file in the Central Office on or before the 8th March a statement of the grounds upon which he relied in claiming that the Act of 1970 was repugnant to the Constitution and invalid; and on the 24th February the President ordered the applicant to file in the Central Office on or before the 1st March an affidavit stating the facts which were alleged to constitute an offence under the Act of 1970; and the President further ordered the respondent to file in the Central Office on or before the 8th March a notice or affidavit showing cause (other than the alleged grounds for the invalidity of the Act of 1970 under the Constitution) why he should not be punished in like manner as if he had been guilty of contempt of court; and the 10th March was fixed as the date for the hearing of the questions arising on the documents to be filed. The respondent did not ask for a trial by jury. An affidavit of Patrick Hogan was filed on behalf of the applicant on the 26th February and two notices were filed on behalf of the respondent on the 8th March.

The applicant's motion was heard in the High Court (O'Keeffe P., Murnaghan and Henchy JJ.) on the 10th, 11th and 12th March and on the last day the High Court made an order in the following terms:—". . . And the Court having on the 10th day of March 1971 refused an application on the part of counsel for the said Pádraic Haughey for leave to cross-examine Patrick Hogan on his affidavit filed herein on the 26th day of February 1971 and the Court being satisfied that the said Pádraic Haughey has been guilty of the offence certified by the Committee of Public Accounts of Dáil Éireann éireann under the hand of its Chairman in writing dated 18th February 1971 namely that the said Pádraic Haughey on the 17th day of February 1971 being in attendance as a witness before the said Committee engaged in the performance of the functions assigned to it by order of Dáil Éireann éireann made on the 1st day of December 1970 did contrary to the provisions of Section 3 (4) (b)of the above mentioned Act refuse to answer questions to which the said Committee might legally require answers DOTH ORDER AND ADJUDGE that the said Pádraic Haughey do undergo a term of six calendar months imprisonment dating from this 12th day of March 1971 in the custody of the Governor of Mountjoy Prison in punishment of the said offence and IT IS ORDERED that the Attorney General be at liberty to issue an Order of Committal accordingly1 and the Court doth refuse an application on the part of counsel for the said Pádraic Haughey for bail or a stay pending an appeal to the Supreme Court."

The respondent, Mr. Pádraic Haughey, appealed to the Supreme Court from the order and judgment of the High Court.

On the 1st December, 1970, the Committee of Public Accounts was ordered by Dáil Éireann éireann to examine specially the expenditure of a certain grant-in-aid for Northern Ireland relief and any moneys transferred by the Irish Red Cross Society to a bank account into which moneys from the grant-in-aid were or might have been lodged, and to furnish a separate report upon the expenditure. On the 23rd December the Oireachtas passed the Committee of Public Accounts of Dáil Éireann éireann (Privilege and Procedure) Act, 1970, which provided by sub-s. 4 of s. 3 that, if any person being a witness before the Committee should refuse to answer any question to which the Committee might legally require an answer, the Committee might "certify the offence of that person under the hand of the chairman of the committee to the High Court" and that the High Court might "after such inquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the High Court."

Hearsay evidence, containing serious accusations against H., was received by the Committee and H. then attended before it as a witness but, having made a statement, he refused to answer any questions of the Committee. The Committee then certified to the High Court that "an offence under the said Act has been committed by the said H." by reason of his refusal to answer questions. The High Court ordered H. to show cause why he should not be punished in accordance with the terms of the Act of 1970 and at the hearing of the motion before three judges of the High Court the evidence was furnished on affidavit. H. did not ask for a trial by jury. In sentencing H. to six months imprisonment it was

Held by the High Court (O'Keeffe P., Murnaghan and Henchy JJ.), 1, that the sub-section did not empower the Committee to conduct a criminal trial in violation of Article 38 of the Constitution but merely authorised the Committee to complete a step preliminary to a criminal trial in the High Court, and that a conviction did not take place until the High Court had recorded a conviction after the completion of a proper inquiry.

2. If the functions and powers of the Committee were of a judicial nature, they were limited functions and powers which were authorised by Article 37 of the Constitution.

3. The sub-section did not infringe the provisions of Article 38, s. 5, of the Constitution relating to a right to trial by jury since, if a right to trial by jury existed because the offence created by the sub-section was not a minor offence, the terms of the sub-section did not preclude a trial in that form.

Attorney General v. O'Kelly [1928] I.R. 308 and Attorney General v. Connolly[1947] I.R. 213 considered.

4. Standing Order 127 of Dáil Éireann éireann had been duly made in accordance with the provisions of Article 15, s. 10, of the Constitution.

5. That the certificate of the Committee contained a sufficient statement of the offence with which H. had been charged, although the statement did not specify the questions which he had refused to answer: and that a majority decision by the Committee to certify the offence was sufficient.

On appeal by H. it was

Held by the Supreme Court, in allowing the appeal, 1, that the offence created by the sub-section was not the offence of contempt of court but was an ordinary criminal offence which, by reason of the unlimited nature of the penalty authorised upon conviction, was not a minor offence within the meaning of s. 2 of Article 38 of the Constitution.

Conroy v. Attorney General [1965] I.R. 411 and The State (Sheerin) v.Kennedy[1966] I.R. 379 applied.

2. That, accordingly, a person charged with that offence was entitled to a trial by jury under the provisions of s. 5 of Article 38 of the Constitution.

3. That the presumption in favour of the validity of an Act of the Oireachtas, having regard to the provisions of the Constitution, was sufficient to support a construction of the sub-section which required the trial of the person accused of the offence to be held in the High Court, but the presumption was not sufficient to support a construction which would authorise a trial by jury.

McDonald v. Bord na gCon [1965] I.R. 217 and East Donegal Co-Operativev. Attorney General[1970] I.R. 317 applied.

4. That, as the sub-section purported to authorise a summary trial in the High Court in relation to an offence which was not a minor offence, the sub-section infringed the provisions of Article 38, s. 5, of the Constitution and was invalid.

5. That, if the offence created by the sub-section had been a minor offence and therefore triable in a summary manner by a court of summary jurisdiction pursuant to s. 2 of Article 38, then (a) the High Court would not have jurisdiction to try the person accused of the offence as that court was not a court of summary jurisdiction and (b) the sub-section would violate the provisions of Article 38 by allowing a penalty appropriate to a non-minor offence to be imposed upon conviction for a minor offence.

Held further by the Supreme Court ( Ó Dálaigh ó dálaigh C.J...