Re the Criminal Law (Jurisdiction) Bill, 1975

• Jurisdiction: Ireland
• Judgment Date: 01 January 1977
• Neutral Citation: 1975 WJSC-SC 435
• Date: 01 January 1977
• Court: Supreme Court

CRIMINAL LAW (JURISDICTION) BILL 1975, IN RE

IN THE MATTER OF A REFERENCE BY THE PRESIDENT OF CRIMINAL LAW (JURISDICTION) BILL 1975

1975 WJSC-SC 435

THE SUPREME COURT

1 Judgment delivered 6th May 1976

The Judgment of the Court

2 This is a reference to this Court by the President made on 10th March 1976 under Art. 26 of the Constitution of the entire of the Criminal Law (Jurisdiction) Bill 1975 ("the Bill"). The Bill, which contains 22 sections and a Schedule, has the title "An Act to extend the Criminal Law of the State to certain acts done in Northern Ireland, to provide for the admission of evidence obtained by the examination of witnesses in Northern Ireland at trials for offences in respect of those acts, to enable evidence to be obtained by the examination of witnesses in the State for trials in Northern Ireland for corresponding acts done in the State, to reform the criminal law in other respects and to provide for related matters." Counsel have been assigned to argue that the Bill is repugnant to the Constitution and have contended that sections 2, 3 and 11 of it are. These are the heart of the Bill.

3 Part of the background to the Bill is the inter-communal violence and killing in Northern Ireland which has had the result that some of those who have committed appalling crimes in Northern Ireland have come to and now reside in this State. Another part of the background is that although there is an Extradition Act in force in the Republic of Ireland, international obligations required the Oireachtas to insert in that Act a provision that when the High Court was of opinion that the offence to which the warrant of arrest related was a political offence or an offence connected with a political offence, it was bound to order the release of the person to whom the warrant related (section 50 of the Extradition Act 1965) so that the person could not be extradited for trial in Northern Ireland or Britain ( Bourke v. The Attorney General 1972 I.R. 36).

4 Section 2 of the Bill provides that when a person does in Northern Ireland an act which if done in the State would constitute an offence specified in the Schedule to the Bill, he shall be guilty of an offence and shall be liable on conviction on indictment to the penalty to which he would have been liable if he had done the act in the State. The Schedule to the Bill includes murder, manslaughter, arson, kidnapping, false imprisonment, malicious damage, robbery, and offences in connection with explosive, firearms and the unlawful seizure of aircraft and vehicles. All the offences in the Schedule are the type which subversive and terrorist organisations commit all over the world in the course of their campaigns. Section 2 goes on to provide that where a person in the State or Northern Ireland aids, abets, counsels or procures the commission of such an offence or in Northern Ireland aids, abets, counsels or procures the commission of an offence specified in the Schedule, he shall be guilty of and may be indicated, tried and punished for the offence. It also provides that any person who in the State or Northern Ireland attempts, conspires or incites another person to commit such an offence shall be guilty of an offence and shall be liable on conviction on indictment to be punished as if he had committed the offence itself.

5 Section 3 of the Bill provides that a person, who in Northern Ireland is charged with or convicted of an offence in Northern Ireland consisting of acts whether done in the State or in Northern Ireland which constitute an offence specified in the Bill and who escapes from lawful custody in Northern Ireland, shall be guilty of an offence and liable to be punished on conviction on indictment.

6 While the Rules of Court provide for the taking of evidence on commission in civil actions,this is not now possible in criminal trials. Section 11 makes provision for this in connection with trials in the Special Criminal Court established under Art. 38.3.1° of the Constitution and so is a considerable change in our criminal law. So many matters in this section have been relied on by counsel assigned to argue that the Bill is repugnant to the Constitution ("the opponents") that it is essential to set out the section as it was passed by both Houses of the Oireachtas.

7 2 "11. - (1) For the purposes of the trial by a special court established under Article 38.3.1° of the Constitution of an offence under section 2 or 3 or of any appeal in relation to the trial, the court of trial shall at the request of the prosecution or the accused unless it is satisfied that it is not in the interests of justice to do so, and may of its own motion, and any appellate court may at such a request or of its own motion, by order provide for the issue of a letter of request to the Lord Chief Justice of Northern Ireland, for the taking, in the presence of the members of the court making the order, of evidence in Northern Ireland by a judge of the High Court of Justice in Northern Ireland from a witness specified in the order.

8 (2) Where a court makes an order under this section, it shall inform the accused that -

9 (a) he has a right to be present in the custody of the police of Northern Ireland at the taking of the evidence referred to in the order and if he exercises the right he will be delivered in custody into the custody of the police of Northern Ireland,

10 (b) whether or not he is present at the taking of the evidence, he has a right to be represented by the counsel and solicitor (or the solicitor only) representing him in the court or by another counsel and solicitor (or by a solicitor only) entitled to practise in the State or entitled to practise in Northern Ireland,

11 (c) he may, if not represented by counsel or a solicitor, himself question the witness giving the evidence,

12 (d) while he is in custody in Northern Ireland for the purpose of the taking of the evidence, he will be immune from detention, and any kind of suit or legal process, in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland for the purpose aforesaid, and, if the accused indicates to the court that he wishes to be present at the taking of the evidence, the court shall make an order directing that the accused be delivered when and so often as may be necessary into the custody of the police of Northern Ireland.

13 (3) ( a) A statement of evidence of a witness taken in compliance with a letter of request under this section, and certified by the judge of the High Court of Justice in Northern Ireland who took it to be a true and accurate statement of the evidence so taken, shall, if all the members of the court were present throughout the taking of the evidence, be admissible at the trial or appeal concerned as evidence of any fact stated therein of which evidence would be admissible at the trial or appeal.

14 3 ( b) A document purporting to be a certificate of a judge of the High Court of Justice in Northern Ireland and to be signed by him shall be deemed, for the purposes of this section, to be such a certificate and to be so signed unless the contrary is shown.

15 (4) A person in whose case an order is made under subsection (2) -

16 a ( a) shall be brought when and so often as may be necessary by the Garda Síochána to some convenient point of departure from the State and there delivered into the custody of the police of Northern Ireland and, if he is on bail, shall be taken into the custody of the Garda Síochána not more than 24 hours before the time of any such delivery and kept in such custody until that delivery is effected, and

17 b ( b) shall, on his return to the State upon the conclusion or any adjournment of the taking of the evidence to which the order relates, be taken into the custody of the Garda Síochána, and -

18 (i) if he is required pursuant to an order of any court to be kept in custody, be returned as soon as may be to that custody, and

19 (ii) if he is on bail, be thereupon released.

20 (5) An order under subsection (2) shall not operate to interrupt the currency of any sentence imposed in any other proceedings."

I

21 In considering this Bill, which has been passed by both Houses of the Oireachtas, the elected representatives of the people, the Court accepts the principles laid down by the former Supreme Court in In Re Article 26 of the Constitution and the Offences against the State (Amendment) Bill 1940, 1940 I.R.47, that "where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy we are of opinion, as a matter of construction, that such repugnancy must be clearly established" - per Sullivan C.J. at page 478. This principle was accepted by the former Supreme Court in In Re Article 26 of the Constitution and the School Attendance Bill 1942, 1943 I.R. 334 per Sullivan C.J. at page 344, and in In Re Article 26 of the Constitution and Electoral (Amendment) Bill 1961, 1961 I.R. 169, per Maguire C.J. at page 178. It was submitted by the opponents that the same considerations should not be applied to a Bill referred by the President under Art. 26 as are applied in the case of an Act which has been duly passed by both Houses of the Oireachtas and signed and promulgated by the President because the President has referred the Bill after consultation with the Council of State and because a question has been raised in relation to the constitutionality of such a Bill or some provision thereof. The Court does not accept that any distinction should be drawn in relation to the presumption of constitutionality between an Act of the Oireachtas and a Bill referred by the President under Act. 26.

II

22 The first argument advanced by the opponents was that the Bill is repugnant to the Constitution because Articles 2 and 3 of the...