State (Gilsenan) v McMorrow

• Jurisdiction: Ireland
• Judge: Henchy J.,KENNY J.:
• Judgment Date: 27 January 1978
• Neutral Citation: 1978 WJSC-SC 611
• Court: Supreme Court
• Docket Number: [1976 No. 402 SS.],No. 402 S.S./1976
• Date: 27 January 1978

1978 WJSC-SC 611

THE SUPREME COURT

No. 402 S.S./1976

STATE (GILSENAN) v. McMORROW

THE STATE (GILSENAN)

v.

DISTRICT JUSTICE McMORROW

Affirming High 16. 5. 77

1 Judgment of Henchy J.delivered the 27th January 1978 [Griffin J. and Parke J. concurring]

2 Joachim Gilsenan has been returned for trial to the Circuit Court on eight charges. All of the charges are laid under s. 33(4) of the Larceny Act, 1916. In each of four of them he is charged with having in his possession without Lawful excuse a motor car "knowing the said property to have been stolen in Northern Ireland". In each of the other four, which are alternative charges, he is charged with receiving a motor car "knowing the same to have been stolen in NorthernIreland".

3 The present proceedings were instituted by him in the High Court for the purpose of having quashed on certiorari the order of the District Court returning him for trial on those charges. He was granted a conditional order of certiorari, but, on the hearing of the application to have that order made absolute, Gannon J. allowed the cause shown by the District Justice and discharged the conditional order. This appeal is from thatorder.

4 The appeal has been argued on the single ground that there isnosuch geographical area known to the law of this State as Northern Ireland. It has been submitted that the expression could be said to encompass some of the Northern parts of the area over which this State exercises jurisdiction. Gannon J. had no hesitation in rejecting this ground of objection. Neither have I.

5 It is true that there is (since 1937) no general statutory interpretation or adaptation of the expression "Northern Ireland", but the frequency with which it occurs in our statutes, the unambiguous way in which it has been so used to identify the six counties over which this State does not exercise jurisdiction, and the clearly displayed intention of the legislature in such use that the courts of this State should give judicial recognition to the identify of the territory comprehended by the expression, would, apart from any other considerations, make it impossible for our courts to say that "Northern Ireland" is other than an officially recognized and clear appellation for the part of this island which has remained within the United Kingdom of Great Britain and Northern Ireland.

6 To give but one example. The Criminal Law (Jurisdiction) Act, 1976, which expresses itself to be "an Act to extend the criminal law of the State to certain acts done in Northern Ireland", provides in s. 2(1) that "where a person does in Northern Ireland an act that, ifdone in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence". The distinction between the State (which was named "Ireland" by the Constitution but which may be identified by the official description of the "Republic of Ireland" given to it by the Republic of Ireland Act, 1948) and Northern Ireland was so clear to the legislature that a definition of Northern Ireland was not deemed necessary to be included in the Act. A charge under the section I have quoted would clearly not be invalid if it were laid as having been committed in Northern Ireland. It could not be held, without, disregarding the legislative intent, that Northern Ireland is so vague or uncertain a geographical description that it could be said to overlap, or to be capable of being confused with, any part of the territory to which the laws of this State apply.

7 In my opinion the courts are bound to take judicial notice of the expression "Northern Ireland" as connoting the part of this island which is outside the functioning jurisdiction of the State which has been given the statutory description of "the Republic ofIreland".

8 The rejection of this ground is sufficient to dispose of this appeal. However, in the course of argument a point arose as to the range of application of s.33(4) of the Larceny Act, 1916, as modified. To deal with this point a full Court was convened and, for the purpose of that aspect of the appeal, counsel for the District Justiceappearedinstructed on behalf of the Attorney General and the Director of PublicProsecutions.

9 The point is this. In the unreported case of The People (Attorney General) v. Davidson and Rutledge (1947) the Court of Criminal Appeal held that "the United Kingdom" as used in s. 33(4) of the Larceny Act, 1916, must now be read, as a result of statutory adaptation, as connoting this State (which in the Constitution is given the name "Ireland", but which, to avoid ambiguity, I shall refer to by its statutory description of "the Republic of Ireland"). On the other hand, in a further appeal taken in the same case this Court held in effect that "the United Kingdom" as used in s. 33(4) is now to be read as the area represented by Great Britain and the Republic of Ireland. (I refer to the Supreme Court of 1947 as "this Court" because although, like the other courts of the State, it had not yet been established for the purpose of Art. 34 of the Constitution, in terms of the jurisdiction involved it is not to be distinguished from the Court as established by the Courts (Establishment and Constitution) Act, 1961).

10 S. 33(4) of the Larceny Act, 1916 provides as follows:

11 "Every person who, without lawful excuse, knowing the same to have been stolen or obtained in any way whatsoever under such circumstances that if the act had been committed in the UnitedKingdom the person committing it would have been guilty of felony or misdemeanour, receives or has in his possession any property so stolen or obtained outside the United Kingdom, shall be guilty of an offence of the like degree (whether felony or misdemeanour) and on conviction there of liable to penal servitude for any term not exceeding sevenyears".

12 In the absence of adaptation of the expression "the United Kingdom", this subsection would have lapsed on both sides of the Irish Sea on the coming into operation of the Constitution of Saorstat Eireann ( anglice The Irish Free State) in 1922; for that event brought to an end the United Kingdom (i.e. of Great Britain and Ireland) which had come into existence with the Act of Union, 1800. By way of adaptation, the parliament of Saorstat Eireann enacted s. 3 of the Adaptation of Enactments Act, 1922:

13 "For the purpose of the construction of any British Statute the name "Ireland", whether used alone or in conjunction with the expression "Great Britain", or by implication as being included in the expression "United Kingdom", shall mean Saorstat Eireann".

14 The range of adaptation effected by the section was this:

15 1. Whenever one finds the name "Ireland" alone in a British Statute, one reads it as meaning Saorstat Eireann.

16 2. Whenever one finds the expression "Great Britain and Ireland" in a British statute, one reads it as meaning Great Britain and Saorstat Eireann.

17 3. Whenever one finds the expression "United Kingdom" (i.e. of Great Britain and Ireland) in a British Statute, one reads it as meaning Great Britain and Ireland) in a British and...