Ryan and Others (The State) v Lennon and Others

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date19 December 1935
Date19 December 1935

High Court.

Supreme Court.

The State (Ryan and Others) v. Lennon and Others.
THE STATE (at the prosecution of Jeremiah Ryan and Others)
and
CAPTAIN MICHAEL LENNON, Governor of the Military Detention Barracks, Arbour Hill, Dublin, COLONEL FRANK BENNETT and Others, The Members of the Constitution (Special Powers) Tribunal
and in the Matter of the Courts of Justice Act
1924
and in the Matter of the Constitution of Saorstát Éireann éireann(1)
The State (Ryan and Others) v. Lennon and Others.
Cooney's Case
The State (Ryan and Others) v. Lennon and Others.
O'Connell's Case

Constitution - Power of Oireachtas to amend - Extent of power - Deletion of provisions for Referendum - Validity - Extension of period of amendment"by way of ordinary legislation" - Validity - Power to repeal Articles of Constitution - Whether fundamental and immutable principles- Habeas corpus - Prohibition - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922, sect. 2 and Sch. I, Art. 50 - Constitution (Amendment No. 10) Act, 1928 (No. 8 of 1928) - Constitution (Amendment No. 16) Act, 1929 (No. 10 of 1929) - Constitution (Amendment No. 17) Act, 1931 (No. 37 of 1931).

Habeas Corpus and Prohibition.

The prosecutors, Jeremiah Ryan, Hubert Johnson, John Harty and James Cantwell, moved to make absolute a conditional order for habeas corpus and prohibition, granted on the 11th day of June, 1934. The order, the parties to whom it was directed, and the grounds upon which it was based, are set out in the judgment of Sullivan P.

The application for the conditional order was based upon the joint affidavit of the four prosecutors, filed on the 11th June, 1934, in which it was stated that they were arrested by members of the Garda Siochána at their various residences in the vicinity of the town of Thurles on the 22nd April, 1934, and were immediately removed to the Garda Siochána Barracks in that town, where they were interrogated by Superintendent Muldoon, Superintendent Buggy and Sergeant Corcoran. Subsequently they were removed in custody to Limerick Goal, where they were detained for eight days. On the 2nd May, 1934, they were transferred in custody to Arbour Hill Military Detention Barracks where they were at the date of this application. The affidavit then stated that the Governor of Arbour Hill Military Detention Barracks was Captain Michael Lennon whose office was at the said Barracks. On the 31st May, 1934, the four prosecutors were brought before the Constitution (Special Powers) Tribunal at Collins Barracks, where the following charges were brought against them:—

Conspiracy to shoot with intent to murder.

Attempting to shoot with intent to murder contrary to sect. 14 of the Offences against the Person Act, 1861.

Conspiracy to shoot with intent to do grievous bodily harm.

Attempting to shoot with intent to do grievous bodily harm contrary to sect. 18 of the Offences against the Person Act, 1861.

Being an accessory to shooting with intent contrary to sect. 47 of the Offences against the Person Act, 1861.

Common assault.

Being members of all unlawful association contrary to sect. 20 of Article 2a of the Constitution.

Unlawful assembly.

Conspiracy to obstruct and interfere with the enforcement of the law.

Being in possession of a firearm without holding a Firearm Certificate therefore contrary to sect. 2 of the Firearms Act, 1925.

Being in possession of firearms with intent contrary to sect. 15 (a) of the Firearms Act, 1925.

The affidavit then stated that, as information had been received that about ninety witnesses would be called to give evidence against the four prosecutors, and as their solicitors and counsel had only a few days in which to prepare their defences, they applied for an adjournment, and an adjournment was granted until the 12th June, 1934. At the hearing on the 31st May, 1934, each of the four prosecutors pleaded not guilty to the said charges.

Three affidavits were filed on behalf of the Attorney-General by way of showing cause against making the conditional order absolute, viz., one by Captain Michael Lennon, one by John S. O'Connor, solicitor for the Attorney-General, and the third by Commandant Feeley, Registrar of the Constitution (Special Powers) Tribunal.

The affidavit of Captain Michael Lennon, having stated that he was Military Governor of Arbour Hill Prison, otherwise known as Arbour Hill Detention Barracks, then stated that he had the custody of prisoners awaiting trial and Sentence, and of prisoners sentenced by the Constitution (Special Powers) Tribunal; that the four prosecutors were detained by him in said prison awaiting trial under and by virtue and authority of a sealed order of the Constitution (Special Powers) Tribunal, dated the 31st May, 1934. He exhibited a sealed copy of the said order which had been served upon him on the 31st May, 1934. He further stated that he received the four prosecutors at Arbour Hill Prison on the 2nd May, 1934, by virtue of four several committal orders, made by the Minister for Defence on the said 2nd day of May, 1934, under Art. 2aof the Constitution, and he exhibited the said committal orders. He further stated that the said Arbour Hill Prison was a place of detention, and a place of imprisonment prescribed by the Minister for Defence under the said Art. 2a of the Constitution, as appeared from an extract from the Regulations made by the Minister for Defence on the 7th November, 1933, as amended on the 16th February, 1934, certified by the Secretary of the Department of Defence under the seal of the Minister for Defence on the 18th June, 1934.

John S. O'Connor, solicitor for the Attorney-General, in his affidavit, filed the 21st June, 1934, stated that an order was made by the Executive Council of Saorstát Éireann éireann on the 11th August, 1933, declaring that Parts II, III, IV and V of Art. 2a of the Constitution should come into force, and that the said Parts II, III, IV and V of the said Article had since the said date continued in force; that the members of the Constitution (Special Powers) Tribunal appointed by the Executive Council were:— Colonel Francis Bennett, Colonel Daniel McKenna, Major John V. Joyce, Commandant Conor Whelan and Commandant Patrick Tuite, and he referred to Iris Oifigiúilof the 15th August, 1933, and of the 25th August, 1933, containing the said order and appointments.

Commandant Richard Feely, in his affidavit, filed on the 21st June, 1934, having stated that he was the Registrar of the Constitution (Special Powers) Tribunal, and that he had read a copy of the conditional order made by the High Court on the 11th June, 1934, and a copy of the joint affidavit of the four prosecutors therein mentioned, such copies having been served on him as such Registrar as directed by the said order of the High Court, then stated that on the 1st day of May, 1934, a sealed order was made by the said Constitution (Special Powers) Tribunal, on the application of an Inspector of the Garda Siochána, directing that the trial of the four prosecutors be transferred to the said Tribunal. He further stated that on the hearing of the said application a certificate of an Executive Minister, pursuant to clause 7 of the Appendix to Art. 2a of the Constitution was produced and was before the Tribunal when their said order was made. On the 22nd day of May, 1934, a certificate of an Executive Minister, pursuant to clause 7 of the Appendix to Art. 2a of the Constitution, was lodged with him, and of this he made an exhibit. On the same day a statement of the charges against the prosecutors and a summary of the evidence to be given was lodged with him as such Registrar, and said documents were served upon the prosecutors. He then referred to the trial of the four prosecutors, which commenced on the 31st day of May, 1934, the examination of certain witnesses, and the adjournment of the trial until the 12th June, 1934, and he then referred to the further adjournment on the 12th June by reason of the conditional order made by the High Court on the previous day.

The prosecutors appealed to the Supreme Court (1) from the judgment and order of the High Court and applied for an order that the said order should be discharged and that in lieu thereof it should be ordered that the conditional order of 11th June, 1934, be made absolute notwithstanding the affidavits filed by the respondents by way of showing cause.

Article 50 of the Constitution of the Irish Free State (which came into operation on 6th December, 1922), as originally enacted, provided as follows:—

"Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof."

The "Scheduled Treaty" mentioned in this Article referred to the"Articles of Agreement for a Treaty between Great Britain and Ireland"set forth in the Second Schedule of the Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922, to which the Constitution formed the First Schedule.

By the Constitution (Amendment No. 10) Act, 1928, passed within the said period of eight years, the Constitution was amended by, inter alia, the deletion of Article 47 (dealing with the...

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    ...(See in particular the judgements of Kennedy CJ and Fitz Gibbon J, agreeing on this if on nothing else, in The State (Ryan) v Lennon [1935] IR 170 and the fascinating analysis of the decision by Dr Gerard Hogan, "A Desert Island Case Set in the Silver Sea: The State (Ryan) v Lennon" in O'D......
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