Re McAllister

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 04 August 1973
• Docket Number: [No. 1523]
• Date: 04 August 1973

[No. 1523]

In re McAllister

In the Matter of JAMES McALLISTER, a Bankrupt

Constitution - Statute - Validity - Bankruptcy - Examination - Unsatisfactory answers - Committal - Bail - Irish Bankrupt and Insolvent Act, 1857 (20 & 21 Vict. c. 60), s. 385 - Constitution of Ireland, 1937, Articles 34, s. 3, and 38, s. 5.

Motion on Notice.

James McAllister was adjudicated bankrupt on the 23rd December, 1970. He did not lodge a statement of his affairs until the 14th December, 1971. On the 17th April and 19th June, 1972, he was examined on oath in the High Court (Kenny J.) about his affairs and at the conclusion of the examination the Official Assignee asked the Court to issue its warrant to commit the bankrupt to prison, because of his unsatisfactory answers, pursuant to s. 385 of the Irish Bankrupt and Insolvent Act, 1857. The bankrupt questioned the constitutionality of that section and the matter was adjourned to the 17th July, 1972. Before that date notice of the constitutional issue was served on the Attorney General pursuant to Order 60 of the Rules of the Superior Courts, 1962.

Section 385 of the Irish Bankrupt and Insolvent Act, 1857, provides that, if a person shall not fully answer a lawful question put by the Court in bankruptcy proceedings, it shall be lawful for the Court to commit such person to such prison as the Court shall think fit "there to remain without bail" until he shall subject himself to the Court to be sworn and make full answers. In the course of bankruptcy proceedings the Official Assignee asked the High Court to issue its warrant committing the bankrupt to prison pursuant to s. 385 of the Act of 1857. The bankrupt contended that the section was unconstitutional because it involved the trial of a criminal charge without a jury contrary to Article 38, s. 5, of the Constitution, and because it purported to exclude from the jurisdiction of the High Court the power to grant bail.

Held by Kenny J., in committing the bankrupt, 1, that the bankrupt had not fully answered lawful questions to the satisfaction of the Court.

2. That the operation of the section did not result in the trial of a criminal charge and did not involve a criminal contempt of court.

Keegan v. de BurcaIR [1973] I.R. 223 distinguished.

3. That the section, by employing the words "without bail",purported to exclude from the jurisdiction of the High Court the power to grant bail which was inconsistent with the provisions of Article 34, s. 3, sub-s. 1, of the Constitution and that, accordingly, those words had not been continued in force by Article 50 of the Constitution.

Semble: A bankrupt who is being examined about his affairs may decline to answer a question if the answer might incriminate him.

Cur. adv. vult.

Kenny J. :—

James McAllister was adjudicated bankrupt on the 23rd December, 1970. His liabilities were £386,213, his assets were £76,692 and there was, therefore, a deficiency of £309,521. The bank strike in the State began on...