State (Gilliland) v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: FINLAY C.J.,HEDERMAN J.,McCARTHY J.,FINLAYC.J.
• Judgment Date: 01 January 1987
• Neutral Citation: [1986] IESC 3
• Docket Number: [1985 No. 95 SS]
• Date: 01 January 1987

GILLILAND v. GOVERNOR OF MOUNTJOY

IN THE MATTER OF ARTICLE 40.4.3 OF THE CONSTITUTION

BETWEEN

THE STATE AT THE PROSECUTION OF JAMES HILDAGEGILLILAND

Prosecutor

and

THE GOVERNOR OF MOUNTJOY PRISON

Respondent

[1986] IESC 3

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

72/86

THE SUPREME COURT

Synopsis:

CONSTITUTION

Personal rights

Liberty - Detention of complainant - Inquiry by High Court - That court satisfied that complainant detained in accordance with a law but that such law invalid having regard to provisions of the Constitution - Complainant detained under Part 2 of Act of 1965 as apparently applied in relation to U.S.A. by Government order made under s.8 of the Act - High Court referred to the Supreme Court by Case Stated the question of the validity of the Government order - Preliminary issues arose at hearing of Case Stated - Issue of whether the Government order was a law within the meaning of Article 40.4.3, thus enabling the High Court to exercise its jurisdiction to state a Case pursuant to Article 40.4.3 - Issue of whether, if High Court had jurisdiction to state the Case, the determination of the question so referred to the Supreme Court would be a decision of the Supreme Court on a question of the validity of a law having regard to the provisions of the Constitution, within the meaning of Article 34.4.5, to be pronounced by one member of the Supreme Court - Held, in determining the preliminary issues, that the Government order was a law within the meaning of Article 40.4.3 and of Article 34.4.5 - Case stated by Barrington J. (see 1985 Index, p. 5, col. 3) - ~See~ also Constitution, international relations - Extradition Act, 1965 (Part 2)(No. 20) Order, 1984 - Articles 34, 40 - (72/86 - Supreme Court - 24/7/86) - [1987] IR 226 [1987] ILRM 278

|The State (Gilliland) v. Governor of Mountjoy Prison|

WORDS AND PHRASES

"Law"

Order - Government order - Order authorised by statute - Existing domestic statute governing law of extradition - Provision of statute enabling Government to make order applying statute in relation to foreign country with which extradition agreement has been made - Preliminary issues - Held that Government order was a law within meaning of Article 40.4.3 and of Article 34.4.5 of the Constitution - Extradition Act, 1965, s.8 - Constitution of Ireland, 1937, Articles 34, 40 - (72/86 - Supreme Court - 24/7/86) -[1987] IR 226 [1987] ILRM 278

|The State (Gilliland) v. Governor of Mountjoy Prison|

CONSTITUTION

International relations

International agreement - Terms - Charge upon public funds - Terms of agreement not approved by Dail Eireann in accordance with Article 29.5.2 - State not bound by agreement - Extradition agreement between Ireland and U.S.A. - Section 8 of Act of 1965 confers power on Government to make an order applying Part 2 of Act in relation to foreign country - Condition precedent being existence of extradition agreement between Ireland and that country - Order of 1984 made by Government for purpose of applying Part 2 of Act of 1965 in relation to U.S.A. - Case stated by High Court in which question of validity of Order of 1984 was referred to Supreme Court - Judgment of the Court - Held that article 17 of the extradition agreement involved a charge upon public funds and that the State was not bound by the agreement as the terms thereof had not been approved by Dail Eireann - Held that the Order of 1984 was invalid having regard to the provisions of Article 29.5.2 which require such approval - Case stated by Barrington J. (see 1985 Index, p. 5, col. 3) - Extradition Act, 1965 (Part 2)(No. 20) Order, 1984 - Extradition Act, 1965, s.8 - Articles 29, 40 - (72/86 - Supreme Court - 24/7/86) - [1987] IR 226 [1987] ILRM 278

|The State (Gilliland) v. Governor of Mountjoy Prison|

WORDS AND PHRASES

"Charge upon public funds"

Extradition agreement - Agreement between Ireland and U.S.A. - Article 17 of agreement involving such charge - Terms of agreement not approved by Dail Eireann - State not bound by agreement - Invalidity of Government order applying Part 2 of Act of 1965 in relation to U.S.A. - Case stated by Barrington J. (see 1985 Index, p. 5, col. 3) - Judgment of the Court - Extradition Act, 1965, s.8 - Articles 29, 40 - (72/86 - Supreme Court - 24/7/86) - [1987] IR 226 [1987] ILRM 278

|The State (Gilliland) v. Governor of Mountjoy Prison|

1 JUDGMENT delivered on the 24th day of July 1986by FINLAY C.J. [Henchy J. Griffin J Conc]

2 This is a Case Stated by Barrington J. pursuant to Article 40.4.3 of the Constitution for the opinion of the Supreme Court as to whether a law consisting of the " Extradition Act 1965(Part II) (No. 20) Order 1984 being S.I. No. 300 of 1984 is invalid having regard to the provisions of Article 29.5.2 of the Constitution by reason of the fact that the terms of the Treaty on Extradition between Ireland and the United States ofAmerica were not approved by Dail Eireann.

3 Certain preliminary issues arise which it is necessary for the members of this Court to decide before considering the question raised in the Case stated. They are:

4 1. Whether the Statutory Instrument referred to in the Case Stated is a "law" within the meaning of Article 40.4.3 so as to give jurisdiction to this Court to answer the question raised.

5 2. If the Statutory Instrument is a law within that Article, is it also a "law" within the meaning of Article 34.4.5. making it necessary that the decision of the Court should be a singledecision?

6 The facts and statutory provisions relevant to the determination of these issues are as follows.

7 The Applicant was at the time of his application to Barrington J. for an inquiry under Article 40 of the Constitution as to the legality of his detention, detained in pursuance of an Order made by the District Court under Section 29 of the Extradition Act 1965. That Order wasmade on an assumption that Part II of the Act of 1965 applied to the United States of America which was the requesting country. A Treaty of Extradition between Ireland and the United States was signed subject to ratification on behalf of both Governments on the 13th July 1983. It was subsequently ratified on behalf of Ireland by the Minister for Foreign Affairs on the 14th November 1984 and was also duly ratified on behalf of the United States of America.

8 The Government, on the 20th November 1984, in exercise of the powers conferred on them by Section 8 of the Extradition Act 1965, having recited the making and ratification of that Treaty, applied Part II of the Extradition Act 1965in relation to the United States of America.

9 Section 9 of the Act of 1965 provides as follows:

"Where a country, in relation to which this Part applies, duly requests the surrender of a person who has been proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall,subject to and in accordance with the provisions of this Part be surrendered to that country."

10 The Treaty was laid before Dail Eireann and Seanad Eireann but no resolution was passed by Dail Eireann approving of its terms.

11 The decision of Barrington J. leading to the stating by him of the case under Article 40.4.3 was that the Treaty was an international agreement involving a charge upon public funds within the meaning of Article 29.5.2 of the Constitution and that its terms not having been approved by Dail Eireann it did not accordingly bind the State. He held that as a consequence the Order made by the Government was invalid having regard to the provisions of the Constitution, in that it purported by applying the provisions of the Act of 1965 and, in particular, Sections 8 and 9 thereof, to the United States of America to bind the State with theTreaty.

12 The provisions of Article 40.4.3 are as follows:

"Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an Order in that behalf made under thisSection, and the Court is satisfied that such person is being detained in accordance with the law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of Case Stated and may at the time of such reference or at any time thereafter allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it."

13 Section 8(1) of the Act of 1965 which is at the commencement of Part II of the Act, provides as follows:

"Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an Extradition Agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment, or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, the Government may by order apply this Part in relation to thatcountry."

14 The remainder of Part II of the Act, consisting of thirty-two further Sections, constitutes a complete and comprehensive code for the extradition of persons fromthe State.

15 By virtue of Section 4 of the Act of 1965 every Order made by the Government under the Act, including, of course, Orders made by the Government under Section 8 of the Act, must be laid before each House of the Oireachtas as soon as may be after it is made and may be annulled by a resolution passed by either House within the next twenty-one days on which that House has sat after the Order is laid before it.

16 The provisions of Article 40.4.3 of the Constitution were considered by this Court in The State (Sheerin) v. Kennedy 1965 I.R. In that case a Judge of the High Court had stated a case on the hearing of an application...