Re MacCurtain

• Jurisdiction: Ireland
• Judgment Date: 01 January 1941
• Date: 01 January 1941
• Court: Supreme Court

In re MacCurtain.

In the Matter of the Application of THOMAS MacCURTAIN for relief by way of habeas corpus

and in the Matter of the Constitution

and in the Matter of the Courts of Justice Acts

1924-1936.

Supreme Court.

Constitution - Habeas corpus - Trial without jury - Inadequacy of ordinary Courts for securing effective administration of justice and preservation of public peace and order - Provision in Constitution for establishment by law of Special Courts - Trial by Special Courts in cases where it may be determined in accordance with such law that ordinary Courts inadequate - Special Criminal Courts established by Part V of Offences Against the State Act, 1939 - Provision authorising Government, when satisfied as to inadequacy of ordinary Courts, to bring Part V into force - Provision for sending accused for trial by Special Criminal Court on certificate of Attorney-General as to inadequacy of ordinary Courts - Whether such provisions repugnant to the Constitution - Constitution of Special Criminal Court - Court composed solely of military officers - Whether Court lawfully constituted - Evidence - Certificate signed by person bearing the name of Attorney-General but insufficient evidence to show that it was his certificate - Whether open to an accused person after conviction to question authenticity of certificate - Constitution of 1937, Art. 38, clauses 3 and 4 - Offences Against the State Act, 1939 (No. 13 of 1939), ss. 35, 39, 46.

T. M. was tried and convicted on a charge of murder by a Special Criminal Court set up under Part V of the Offences Against the State Act, 1939. Part V of the Act had come into force pursuant to a declaration and order made by the Government under s. 35, sub-s. 2, of the Act whereby the Government, on being satisfied of the inadequacy of the ordinary Courts for the effective administration of justice and the preservation of public peace and order, is empowered to declare that it is satisfied as aforesaid and to order that Part V shall come into force. In accordance with the procedure prescribed by s. 46, sub-s. 2, of the Act, the District Justice, before whom the accused was brought, on the application of the Attorney-General grounded on his certificate as to the inadequacy of the ordinary Courts, sent the accused for trial by a Special Criminal Court. No evidence was tendered to prove that a certificate which was signed by the person bearing the name of the Attorney-General was in fact the certificate of the Attorney-General.

The Special Criminal Court which tried T. M. sat in a military barracks and was composed solely of officers of the Defence Forces, each of whom was not below the rank of commandant, being thereby qualified to act as a member of a Special Criminal Court under s. 39, sub-s. 3, which provided that the members of such a Court must be either a "Judge of the High Court or the Circuit Court, or a Justice of the District Court, or a barrister of not less than seven years standing, or a solicitor of not less than seven years standing, or an officer of the Defence Forces not below the rank of commandant."

T. M. having applied for a conditional order of habeas corpus it was heldby Gavan Duffy J. and, on appeal, by the Supreme Court:—

1. Having regard to Art. 38, clause 3, par. 1, of the Constitution (which provides for the establishment by law of Special Courts in cases where it may be determined in accordance with such law that the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order), that the provisions of s. 35, sub-s. 2, and s. 46, sub-s. 2, of the Offences Against the State Act, 1939, authorising the Government and the Attorney-General, respectively, to determine the question of the inadequacy of the Courts as aforesaid for the purposes therein mentioned, are not repugnant to the Constitution.

2. Since by Art. 38, clause 3, par. 2, of the Constitution the Legislature was empowered to prescribe the constitution, powers, jurisdiction and procedure of Special Courts, the provisions of s. 39 of the Offences Against the State Act, 1939, in regard to the Special Criminal Courts established by that Act, are not repugnant to the Constitution.

3. That, notwithstanding the fact that all the members of the Court by which the accused was tried were military officers, that Court was not a Military Tribunal within the meaning of Art. 38, clause 4, of the Constitution, but was a lawfully constituted Special Criminal Court established under Part V of the Offences Against the State Act, 1939, since each member of the Court was qualified to act under the provisions of s. 39 of the Act.

4. That insufficiency of evidence to show that the certificate signed by the person bearing the name of the Attorney-General was in fact the certificate of the...