Savage v DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Finlay P
• Judgment Date: 01 January 1982
• Neutral Citation: 1978 WJSC-HC 3968
• Date: 01 January 1982
• Docket Number: 1979-2361 P

1978 WJSC-HC 3968

THE HIGH COURT

1979-2361 P

SAVAGE v. D.P.P.

BETWEEN:

THOMAS SAVAGE AND DANIEL McOWEN

Plaintiffs

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE ATTORNEY GENERAL

Defendants

1 Judgment delivered on 31st day of July 1980 Finlay P.

2 This is a claim brought by the Plaintiffs on a plenary summons for declarations that a Certificate in writing issued by the Director of Public Prosecutions on the 13th of October 1978 requesting, pursuant to the provisions of the Offences against the State Act, 1939, the return of trial of the two Plaintiffs on non-scheduled offences to the Special Criminal Court was void; a consequential declaration that the order of the District Court dated the 17th of November 1978 made in pursuance of such Certificate sending forward the Plaintiffs for trial by the Special Criminal Court was also void and on the pleadings a further claim for a declaration that sub-section 2 of Section 46 of the Offences against the State Act, 1939was repugnant to the Constitution. In the Statement of Claim filed subsequent to the issue of the plenary summons the Plaintiffs did not pursue their claim for a declaration that Section 46 of the 1939 Act was repugnant to the Constitution, but pursued their other claims and alleged in the Statement of Claim a number of facts, which they claimed, if established, would prove that the opinion reached by the Director of Public Prosecutions upon which a Certificate pursuant to Section 46 of the Act of 1939 was issued could not have been reached on reasonable grounds or if reached was in error and was reached on insufficient grounds. The Defendants in their Defence apart from traversing the facts alleged firstly submitted that the Plaintiffs claim disclosed no cause of action. By the agreement of Counsel this issue as a matter of law was tried before me without evidence as a preliminary issue.

3 The Plaintiffs did not allege in the Statement of Claim that the Director of Public Prosecutions had not reached such an opinion and therefore the issue which arose as a matter of law before me on the preliminary issue tried was whether an opinion reached by the Director of Public Prosecutions and certified by him pursuant to the provisions of Section 46 sub-section 2 of the Offences against the State Act, 1939was reviewable by the Court, and if so, to what extent and on what facts or circumstances it was so reviewable.

4 Article 38 (3) (1) of the Constitution provides for special courts in the following words

"Special courts may be established by law for the trial of offences 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."

5 This article expressly envisages the determination by law of the cases in which offences may be tried by Special Courts and for the method by which according to law it shall be determined that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.

6 The law by which these matters are determined is in effect the Offences against the State Act, 1939.

7 By virtue of Section 35 of that Act the entire Part V of the Act which deals with the establishment and procedures relating to Special Courts becomes effective only if the Government being satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that that part of the Act should be in force makes and publishes a proclamation to that effect and so long only as the Government does not in pursuance of the powers vested in it by Section 35 revoke by a subsequent proclamation that declaration and so long only as Dáil Éireann does not by a resolution annul the proclamation which is in existence. It is of considerable significance to the points raised before me on the issue arising in this case that the legislature in passing the Offences against the State Act, 1939vested in the Government in the first instance the right by proclamation to indicate its satisfaction that the existence of Special Courts were necessary in accordance with the article of the Constitution, to which I have referred, and vested in them the primary right to proclaim that they were satisfied that they were no longer at any given time necessary and left a resultant right in Dáil Éireann by resolution to annul such a proclamation. It did not vest in the courts...