Re Laighléis (Lawless)

Judgment Date01 January 1961
Date01 January 1961
Docket Number[No. 13 S.S. 1957.]
CourtSupreme Court
In re Ó Laighléis.
In the Matter of an Application of GEAR ÓID gearóidÓ LAIGHLÉIS ó laighléis and In the Matter of the Constitution and In the Matter of the Courts of Justice Acts (1)
[No. 13 S.S. 1957.]

High Court.

Supreme Court.

Constitution - Arrest - Detention of person under Minister's warrant - Validity - Person suspected of illegal and subversive activities - Ground for detention - Appointment of commission by Government to inquire into the continuation of the detention - Powers of commission - Procedure of commission - Evidence - Information furnished to commission by Government - Information not disclosed at any time to detained person or his advisors - Documents marked "Secret and confidential" - Commission sitting in camera - Convention of Human Rights - Applicability of Convention within the State - Supremacy of Constitution - The Constitution of Ireland, Articles 15, 28, 29, 34, 40 - Offences Against the State Act, 1939 (No. 13 of 1939), ss. 30, 35 - Offences Against the State (Amendment) Act, 1940 (No. 2 of 1940),ss. 4. 8.

The applicant was arrested on the 11th July, 1957, in pursuance of a warrant issued under s. 30 of the Offences Against the State Act, 1939, and taken to, and detained in, the Bridewell. The said section authorised the detention for twenty-four hours of a person arrested under its provisions, but provided that he could be detained for a further twenty-four hours if so officer of the Gárda Síochána not below the rank of Chief Superintendent so directed. On the 12th July, 1957, a Chief Superintendent directed the applicant's detention for a further period of twenty-four hours expiring at 7.45 p.m. on the 13th July, 1957. Early on the morning of the 13th July, 1957, the applicant was taken to Mountjoy Prison, outside which a lorry was waiting and into which he was transferred and driven to the Military Detention Barracks at the Curragh, Co. Kildare. At about 11.00 a.m. he was handed the warrant of the Minister for Justice, dated the 12th July, 1957, made under s. 4 of the Offences Against the State (Amendment) Act, 1940, and in the warrant the Minister gave his opinion that the applicant was engaged in activities which, in his opinion, were prejudicial to the security of the State and ordered the arrest and detention of the applicant under s. 4 of the Act of 1940. The applicant, at the same time, was also given a copy of s. 8 of the Act of 1940, which informed him of his right to have the continuation of his detention inquired into by a commission appointed by the Government. The applicant, by his solicitor, on the 8th September, 1957, applied in writing to the Secretary to the Government to have his detention inquired into by the commission. The commission sat on the 17th September, 1957, and ruled that they had a discretion whether to sit in camera or in public and that they were not satisfied that they had power to take evidence on oath. They ruled that the proceedings should be held in camera. The commission further ruled that they were not bound by the rules of evidence; that they were not a judicial body; that they would not divest themselves of a file of papers marked "Secret and confidential" furnished to them and would, in all probability, read the file; that the commission reserved the right to receive evidence and documents without disclosing such evidence or the the contents of such documents to the applicant or his legal advisers, and, also, to act on evidence which was undisclosed to the applicant or his legal advisers.

The commission stated that there was no covering letter to explain the origin of the file marked "Secret and confidential"; that the file contained,inter alia, carbon copies of certain documents, the originals of which were not attached; unsigned and anonymous reports from unspecified persons or undefined bodies, and at least one report or letter from the "Special Branch"of the Gárda Síochána, Dublin Castle, which was unsigned.

The applicant obtained in the High Court a conditional order of habeas corpus on the 18th September, 1957. On the 30th September, 1957, he served a notice of motion to have the said conditional order made absolute

notwithstanding cause shown, in which he contended, inter alia, that his detention was unlawful as it contravened the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, to which the State was a party, and by which the State, it was claimed, was bound.

Held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore, O'Daly and Maguire JJ.) affirming the High Court:—

1. The Convention of Human Rights and Fundamental Freedoms was not part of the domestic law of the State and, under Article 29 of the Constitution, it could not be so.

2. The Court could not accept that the primacy of domestic legislation was displaced by the State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms, nor was the executive in the domestic forum in any way estopped from relying on the domestic law.

3. Sect. 3 of the Offences Against the State (Amendment) Act, 1940, clearly authorised the making of a proclamation if and when the Government considered such a course necessary, and the proclamation made by the Government was, therefore, in accordance with law.

4. The applicant was not entitled to be released from custody after the expiration of the forty-eight hours authorised by s. 30 of the Offences Against the State Act, 1939, as before that forty-eight hours had expired he was lawfully detained in pursuance of the Minister's warrant under s. 4 of the Offences Against the State (Amendment) Act, 1940.

Accordingly, the applicant's appeal failed; the cause shown was allowed and the conditional order of habeas corpus was discharged.

Motion on Notice.

On the 11th July, 1957, the applicant Gearóid Ó Laighléis, ó laighléiswas arrested at Dun Laoghaire as he was boarding the mail boat about 8.00 p.m. to travel to England. He alleged that he was so travelling to England to obtain employment. Having obtained in the High Court a conditional order ofhabeas corpus, he moved the Court to have the said conditional order made absolute. In his affidavit in support of the motion he stated that he was taken to the Bridewell and lodged in a cell there; that after about one and a half hours he was interviewed in the cell by a number of Gárdaí officers; that on the following day, the 12th July, 1957, he was visited in the cell by a member of the Gárdaí shortly after 5.00 p.m., and that the Gárda read from a paper informing him that he would be detained in custody for a further period of twenty-four hours under the provisions of s. 30 of the Offences Against the State Act, 1939; that on the following day, the 13th July, 1957, he was taken, first, to Mountjoy Prison and thence by lorry to the Military Detention Barracks at the Curragh Camp, Co. Kildare, and that at about 11.00 a.m. on that day he was handed a copy of a warrant signed by the Minister for Justice in which the Minister ordered his arrest and detention by virtue of the powers conferred upon him by s. 4 of the Offences Against the State (Amendment) Act, 1940, and that the warrant was dated the 12th July, 1957; that on the 17th July, 1957, he was transferred to the Curragh Internment Camp. The applicant stated further that he was not, at the time of his arrest, engaged in any illegal activities nor was he a member of any illegal organisation.

Certain of the matters set out above were not accepted us accurate by the respondent, Commandant Carl O'Sullivan, the Officer Commanding the Curragh Internment Camp. On the hearing of the application to make absolute the said conditional order it was stated on behalf of the respondent that at the time the applicant was arrested one of the detective officers making the arrest informed the applicant that he was detaining him pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939, on the grounds that he, the detective officer, believed him to be a member of an illegal organisation. The Minister's warrant was in the following terms:—


ACT, 1940.

Section 4.

In exercise of the powers conferred on me by section 4 of the Offences Against the State (Amendment) Act, 1940 (No. 2 of 1940) I, Oscar Traynor, Minister for Justice, being of opinion that Gearóid Richard Lawless, of No. 2 Larkin Flats, Ballybough, Dublin, is engaged in activities which, in my opinion, are prejudicial to the security of the State, do by this warrant order the arrest and detention of the said Gearóid Richard Lawless under the said section 4.

Given under my Official Seal this 12th day of July, 1957.

Minister for Justice."

On the 8th September, 1957, the applicant wrote to the Secretary of the Government applying to the Government under s. 8 of the Act of 1940 to have his detention considered by the commission set up by the Government under s. 8 of the Act. He also asked that on such hearing he should be represented by his solicitor and by such counsel as his solicitor might instruct in the matter.

Applications made by the applicant's solicitor to the Government for a summary of the evidence which they proposed to adduce at the hearing before the commission were refused.

The commission sat on the 17th September, 1957, in the Courts Martial Room, Connolly Barracks, Curragh Camp. The applicant was represented by solicitor and by senior and junior counsel, as was also the Attorney General. At the hearing, His Honour Judge Ó Briain stated on behalf of the ó briaincommission that it had no chairman and no president and that the members of the commission were in doubt as to (a) their power to administer an oath, and (b) their right to sit in camera.

Counsel on both sides then addressed the commission on these points and, following an adjournment, the commission announced that they had come to the...

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