State (C.) v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 31 July 1967
• Date: 31 July 1967
• Court: Supreme Court

The State (C.) v. Minister for Justice.

THE STATE (at the Prosecution of C.)

and

THE MINISTER FOR JUSTICE, THE GOVERNOR OF THE CENTRAL MENTAL HOSPITAL and THE ATTORNEY GENERAL (1)

Supreme Court

Constitution of Ireland - Statute - Whether provisions of statute inconsistent with the Constitution - Accused remanded in custody by court - Accused then certified to be insane - Statutory provisions authorising removal of accused from place of remand and his detention in district mental hospital beyond return date of remand - Whether interference with exercise of court's jurisdiction - Constitution of Ireland, 1937, Articles 6, 28, 34-37, 50 -Lunatic Asylums (Ireland) Act, 1875 (38 & 39 Vict., c. 67), s. 13 - Criminal Justice Act, 1960 (No. 27 of 1960), s. 8, sub-s. 2 - Adaptation of Enactments Act, 1922 (No. 2 of 1922), s. 11 - Ministers and Secretaries Act, 1924 (No. 16 of 1924), s. 1 & Sch. - Provisional Government (Transfer of Functions) Order, 1922 (S.R. & O. No 315 of 1922) - Mental Treatment Act, 1945 (No. 19 of 1945), s. 165.

The provisions of s. 13 of the Lunatic Asylums (Ireland) Act, 1875, authorised the Lord Lieutenant of Ireland to order that a person, who had been remanded by a justice for further examination and who had been certified during the period of remand to be insane, be removed to a district lunatic asylum; and they further authorised the confinement of such person in the asylum until he should have been certified as being sane, whereupon the Lord Lieutenant was thereby authorised to make an order directing that such person be remitted to his original place of confinement and brought before the justice.

The prosecutor was brought before the District Court and charged with having committed indictable offences and, in the course of the preliminary investigation of the charges, that Court on the 6th September, 1965, remanded the prosecutor in custody to St. Patrick's Institution until the 13th September, 1965; and the prosecutor was taken to that institution. On the 10th September, 1965, he was certified to be insane, and on the same day he was removed from that institution to St. Brendan's Hospital as directed by the Minister for Justice (as the successor of the Lord Lieutenant) in an order made by him pursuant to s. 13 of the Act of 1875. On the 22nd September, 1965, the prosecutor was transferred from that hospital to the Central Mental Hospital pursuant to an order of the said Minister made under the provisions of s. 8, sub-s. 2, of the Criminal Justice Act, 1960, which authorises such transfer where a person is so detained under s. 13 of the Act of 1875. The District Court was thus prevented from exercising its jurisdiction in relation to such charges on the return date of such remand.

The prosecutor obtained in the High Court a conditional order of habeas corpus and, cause having been shown against that order by the said Minister and by the Governor of the Central Mental Hospital, the High Court allowed the cause shown and discharged the conditional order. On appeal from the High Court it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh, Walsh, Budd and FitzGerald JJ.) 1, that the powers conferred on the Lord Lieutenant by s. 13 of the Act of 1875, insofar as they are still exercisable, are exercisable by the Minister for Justice.

2. That such powers are not part of the executive power of the State within the meaning of Article 28, section 2, of the Constitution of Ireland.

3. That the District Court is a court established by law in accordance with the provisions of the Constitution and that a District Justice is exercising the judicial power to administer justice conferred on the judges of such courts by the Constitution when, acting within his jurisdiction, he conducts a preliminary investigation of the issues raised by a charge that an accused has committed an indictable offence and when he remands the accused in custody during such investigation.

The State (Shanahan) v. Attorney General [1964] I. R. 239 considered.

4. That the provisions of s. 13 of the Act of 1875 which would prevent an accused person from appearing before the District Court on the return date of his remand constitute a legislative interference with an exercise of the judicial power to administer justice.

5. That, assuming such provisions of s. 13 of the Act of 1875 to have been in force immediately prior to the date when the Constitution came into operation, those provisions did not continue in force thereafter pursuant to Article 50 of the Constitution as they are inconsistent with the provisions of the Constitution.

6. That, accordingly, the conditional order of habeas corpus should be made absolute.

Semble: Where a person, who is believed to be of unsound mind, is already under proper care and control, the provisions of s. 165 of the Mental Treatment Act, 1945, do not authorise a member of the Gárda Síochána to take such person into custody and to remove him to a Gárda Síochána station, nor do they authorise the frustration of an order of the District Court.

Habeas Corpus

On the 17th May, 1965, when the prosecutor was about 17 years old, he was charged in the District Court with an offence under s. 51 of the Malicious Damage Act, 1861, and appeared in Court. On the same day District Justice Farrell made an order remanding the prosecutor in custody to St. Patrick's Institution until the 24th May, 1965; and the District Justice asked for a medical report upon the condition of the prosecutor. A medical report, dated the 22nd May, 1965, was furnished to the District Court by the medical officer of that institution in the following terms:—"I have the honour to report that I have examined (the prosecutor). He is very retarded, unable to read or write, or name the month of the year. He can give only a halting account of himself and shows memory impairment. He appears to have very little appreciation of the gravity of the charge preferred against him and admitted that he cannot control his actions. In my view, a course of treatment in a mental hospital would benefit him, and I recommend certification. His general health is satisfactory." On the 24th May, the remand day, the Governor of St. Patrick's Institution sent the prosecutor in custody to the District Court, but he never reached the Court because he was taken by the Gardai to the Bridewell Garda Station pursuant to s. 165 of the Mental Treatment Act, 1945, which provides:—"(1) Where a member of the Gárda Síochána is of opinion that it is necessary that a person believed to be of unsound mind should, for the public safety or the safety of the person himself, be placed forthwith under care and control, he may take the person into custody and remove him to a Gárda Síochána station . . . (2) Where a member of the Gárda Síochána removes a person under this section, he shall apply forthwith in the prescribed form to a registered medical practitioner (not being a registered medical practitioner disqualified in relation to the person) for a recommendation . . . for the reception and detention of the person as a person of unsound mind in a district mental hospital . . ." Later on the same day the prosecutor was brought to St. Brendan's Hospital and was there examined and admitted by the Resident Medical Officer. On the same day District Justice Shaw made the following entry on the prosecutor's charge sheet:—"The defendant having been committed to St. Brendan's Hospital this 24th May 1965, the Court orders—adjourn generally with liberty to re-enter." On the 7th July, 1965, the prosecutor was discharged from St. Brendan's Hospital into the care of his mother.

On the 30th August, 1965, the prosecutor was arrested and charged in the District Court with offences under ss. 6 and 7 of the Malicious Damage Act, 1861, and under s. 26 (1) of the Larceny Act, 1916, which offences were alleged to have been committed on the 10th April and the 28th August, 1965. The prosecutor appeared in Court on the 30th August and he was remanded in custody to St. Patrick's Institution until the 6th September, 1965 by District Justice Farrell, who requested a medical report upon the condition of the prosecutor. On the 3rd September, 1965, the medical officer at St. Patrick's Institution examined the prosecutor and reported that he required treatment in a mental hospital, and the medical officer recommended certification.

On the 6th September, 1965, the prosecutor appeared in the District Court before District Justice Shaw upon all the charges already mentioned and the District Justice remanded the prosecutor in custody to St. Patrick's Institution until the 13th September, 1965.

On the 10th September, 1965, two doctors examined the prosecutor in St. Patrick's Institution and certified that "he has become insane and we are of opinion that his case may be considered as likely to derive benefit from treatment in a mental hospital," and they expressed their opinion that he was probably insane upon committal, and on the same day the Minister for Justice made an order in the following terms:—

"WHEREAS it has been certified by Michael Kennedy, Governor of St. Patrick's Institution, by a certificate in writing under his hand dated 10th day of September, 1965, that (the prosecutor) is detained in custody in the said Institution, having been remanded for further examination by District Justice Samuel Shaw;

AND WHEREAS during the period of such remand (the prosecutor) has been certified by Dr. T. A. Moynihan and Dr. J. E. Donohoe by a certificate in writing under their hands dated 10th day of September, 1965, to be of unsound mind;

NOW THE MINISTER FOR JUSTICE, by virtue of the Lunatic Asylums (Ireland) Act, 1875, as adapted, hereby orders and directs that (the prosecutor) shall be removed to St. Brendan's Hospital, Upper Grangegorman, Dublin, now under your charge, there to remain in confinement until further order; and you are hereby required to receive (the...