State (Royle) v Kelly

• Jurisdiction: Ireland
• Judgment Date: 05 April 1974
• Date: 05 April 1974
• Docket Number: [1972. No. 92 SS.]
• Court: Supreme Court

The State (Royle) v. Kelly

THE STATE (at the Prosecution of WILLIAM ROYLE)

and

EDMOND J. KELLY

[1972. No. 92 SS.]

Supreme Court

State Side - Habeas corpus - Detention - Validity - Legal aid - Accused not represented at trial - Conviction and imprisonment - Whether habeas corpus appropriate remedy - Criminal Justice (Legal Aid) Regulations, 1965 (S.I. No. 12),reg. 7(1) - Constitution of Ireland, 1937, Article 40, s. 4,sub-s. 2.

The prosecutor was charged with having committed an offence contrary to s. 23, sub-s. 1 (a), of the Larceny Act, 1916, and he was returned for trial to the Special Criminal Court. The court granted the prosecutor a certificate for free legal aid and assigned to him a solicitor, with liberty to retain one counsel. The solicitor withdrew from his assignment. The prosecutor was informed of the withdrawal and that it was desirable that he should nominate another solicitor from the legal-aid panel. The prosecutor did not apply to have another solicitor assigned but tried to insist upon his original solicitor being re-assigned, which the court refused to do. At his trial a month later, the prosecutor was not represented by solicitor or counsel; he was convicted and sentenced to two years imprisonment. A warrant was issued in execution of that sentence, and the prosecutor was delivered into the custody of the respondent pursuant to the warrant. The prosecutor applied for an order of habeas corpus and the High Court made an order requiring the respondent to certify in writing the grounds of the prosecutor's detention. In his certificate the respondent relied upon the warrant of the Special Criminal Court. The High Court was of opinion that the trial had been unsatisfactory and that the warrant did not justify the detention of the prosecutor and, accordingly, that court made an order of habeas corpus and the prosecutor was released. On appeal by the respondent it was

Held by the Supreme Court (FitzGerald C.J., Walsh and Henchy JJ.) in allowing the appeal, 1, even if it be conceded that the trial had been unsatisfactory, the matters of which the prosecutor complained were not irregularities or procedural deficiencies of a character which invalidated any essential step in the proceedings leading to the sentence imposed on him.

2. Accordingly, whether or not they constituted suitable material on which to rely for the purposes of an appeal against his conviction, the grounds of the prosecutor's complaint were not sufficient to procure his release in habeas corpus proceedings under the Constitution.

3. A court which has power to assign a solicitor under the free legal-aid scheme is not bound to assign the solicitor nominated by the applicant.

Appeal from the High Court.

Part V of the Offences against the State Act, 1939, was brought into force by a proclamation made by the Government on the 26th May, 1972. The Special Criminal Court was established by the Government on the 30th May, 1972. The facts have been summarised in the headnote and they appear in the judgment of Walsh J. post.On the 19th December, 1972, the Special Criminal Court assigned a solicitor, with liberty to retain one counsel, to act for William Royle (the prosecutor) in the preparation and conduct of his defence to a charge that he had committed an offence contrary to s. 23, sub-s. 1(a), of the Larceny Act, 1916. The assignment was made pursuant to rule 28 of the Special Criminal Court Rules, 1972 (S.I. No. 147). The first paragraph of Regulation 7 of the Criminal Justice (Legal Aid) Regulations, 1965 (S.I. No. 12) provides:—"(1) Upon the grant of a certificate for free legal aid, the court granting the certificate shall, having taken into consideration the representations (if any) of the person to whom the certificate was granted, assign to him a solicitor from the appropriate list kept pursuant to Regulation 4 of these Regulations to act for him in the preparation and conduct of his case."

Article 38, s. 1, of the Constitution of Ireland states:—"1. No person shall be tried on any criminal charge save in due course of law."

Article 40, s. 4, sub-ss. 1 and 2, of the Constitution provide:—

"1 No citizen shall be deprived of his personal liberty save in accordance with law.

2 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."

On the 5th March, 1973, the High Court (Gannon J.) made an order in accordance with Article 40, s. 4, sub-s. 2, of the Constitution directing the governor of Mountjoy Prison (the respondent) to certify in writing the grounds of the prosecutor's detention. In his certificate the respondent relied upon a warrant dated the 23rd February, 1973, and issued by the Special Criminal Court. On the 7th May, 1973, the High Court (Butler J.) made an order as follows:—"And the Court being of the opinion and so adjudging that the return to the order of the 5th day of March, 1973, is insufficient to justify the detention of the prosecutor in Mountjoy Prison doth order that the prosecutor be forthwith released from such detention."The respondent appealed to the Supreme Court and that court made an order setting aside the...