Ryan and Others (The State) v Lennon and Others

• Jurisdiction: Ireland
• Judgment Date: 19 December 1935
• Date: 19 December 1935
• Court: Supreme Court (Irish Free State)

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

High Court.

Supreme Court.

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).

Article 50 of the Constitution of the Irish Free State (which came into operation on 6th December, 1922), as originally enacted, provided as follows:—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 Referendum) and the deletion from Article 50 of the words "and as such shall be subject to the provisions of Article 47 hereof."

By the Constitution (Amendment No. 16) Act, 1929, also passed within the said period of eight years, Article 50 was amended by the substitution of the words "sixteen years" for the words "eight years" therein.

Held, by the Supreme Court (FitzGibbon and Murnaghan JJ., Kennedy C.J. dissenting) that these enactments were within the power of amendment conferred on the Oireachtas by Article 50 and were valid amendments of the Constitution; and that, consequently, an amendment of the Constitution enacted after the expiry of the original period of eight years was not invalid by reason only of not having been, or having been, capable of being submitted to a Referendum of the people under Article 50 or Article 47, respectively, as originally enacted.

By the Constitution (Amendment No. 17) Act, 1931, the Constitution was amended by the insertion therein, immediately after Article 2 thereof,

of the Article set out in the Schedule to the Act (to be cited as "Article 2aof the Constitution"). Article 2a consisted of five parts and an Appendix. Part I provided for the Article coming into force or ceasing to be in force by order of the Executive Council which the Executive Council was empowered to make whenever "of opinion that circumstances exist which render it expedient"; and it also provided that Article 3 and every subsequent Article of the Constitution should be read and construed subject to the provisions of the said Article 2a which was to prevail in the case of any inconsistency. Part II provided for the establishment of a tribunal, to be known as "the Constitution (Special Powers) Tribunal" and consisting of officers of the Defence Forces of Saorstát Éireann éireann, with jurisdiction to try and convict or acquit all persons charged with an offence mentioned in the Appendix to Article 2a and to sentence every person convicted by the tribunal of any such offence, and with power, in lieu of the punishment provided by law, to sentence such person to suffer any greater punishment (including the penalty of death) if in the opinion of the Tribunal such greater punishment was necessary or expedient. Part III conferred special powers on the police, including power of arrest on suspicion in certain cases, power of detention on suspicion in certain cases, examination of persons detained on suspicion or in custody, power to bring detained persons before the Tribunal, and power to stop and search vehicles. Part IV defined "unlawful associations" and provided penalties for membership of, or possession of documents relating to, such associations. Part V conferred miscellaneous powers on the Executive Council, the Tribunal, the Garda Siochána, etc. The Appendix to the Article enumerated seven classes of offences, six of which were classes of specific offences (including the class "any offence under any section of this Article") and the seventh of which read: "Any offence whatsoever (whether committed before or after this Article was inserted in this Constitution or before or after sections 4 to 34 of this Article came into force) in respect of which an Executive Minister certifies in writing under his hand that to the best of his belief the act constituting such offence was done with the object of impairing or impeding the machinery of government or the administration of justice."

Held by the Supreme Court (FitzGibbon and Murnaghan JJ., Kennedy C.J. dissenting) that this enactment was a valid amendment of the Constitution and was not ultra vires of the Oireachtas either by reason of involving a partial repeal of the Constitution, or by reason of conflicting with specific articles of the Constitution such as Article 6 (as to the liberty of the person), Article 64 (as to the exercise of judicial power), or Article 72 (as to trial by jury), or by reason of infringing or abrogating Articles of the Constitution, or principles underlying or embodied in the Articles of the Constitution, alleged to be fundamental and immutable. Outside the area covered by the provisions of the Scheduled Treaty (provided for by sect. 2 of the Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922), no limit was imposed by the Constituent Assembly which enacted the Constitution upon the power of the Oireachtas to amend the Constitution, and, as the Constitution (Amendment No. 17) Act, 1931, had not been alleged to be inconsistent in any way with the Scheduled Treaty, it was a valid amendment.

Decision of the High Court (Sullivan P., Meredith and O'Byrne JJ.) affirmed.

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...