State (Sheerin) v Kennedy and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 28 July 1966
• Date: 28 July 1966

(S.C.)

State (Sheerin)

and

Kennedy and Others

Validity - Pre-treaty statute - Repugnancy to Constitution - Jurisdiction of High Court to state case as to validity - Offence punishable by three years detention in institution - Whether detention equivalent to imprisonment - Whether a minor offence - Power given to Minister to commute sentence of detention to imprisonment - Whether constitutional - Constitution of Ireland, Art. 38, 40, 50 - Children Act, 1908, ss. 71, 72 - Prevention of Crime Act, 1908, ss. 2, 7.

Under Article 40, section 4, sub-section 3, of the Constitution, the High Court, where it is satisfied that a person is being detained in accordance with a law but that such law is invalid having regard to the provisions of the Constitution, shall refer the question of the validity of such law to the Supreme Court by way of case stated. The prosecutors, S. and McG., had each been convicted of an offence under s. 71 of the Children Act, 1908, and each of them had been sentenced by the District Justice to be detained in St. Patrick's Institution for the term of two years as authorised by s. 2 of the Prevention of Crime Act, 1908. They each obtained in the High Court conditional orders of certiorari and habeas corpus on the ground that the District Justice had no jurisdiction to impose such sentences in view of the provisions of Article 38, section 5, of the Constitution. During the hearings of the motions to have the conditional orders made absolute, the High Court Judge decided that s. 2 of the Prevention of Crime Act, 1908, was "invalid" having regard to the provisions of the Constitution and, relying upon the provisions of Article 40, stated two cases for the opinion of the Supreme Court in which he asked whether he was correct in so deciding. Held by the Supreme Court ( Ó Dálaigh C.J., Lavery, Haugh, Walsh and O'Keeffe JJ.), 1, that, assuming s. 2 of the Prevention of Crime Act, 1908, to have been in force immediately prior to the date when the Constitution came into operation, the provisions of Article 40 of the Constitution did not empower the High Court to refer to the Supreme Court by way of case stated a question concerning the validity of an enactment which was in force prior to such date; 2, that, on the same assumption, the real question was whether or not, applying the test provided in Article 50, the terms of s. 2 of the Act of 1908 were inconsistent with the provisions of the Constitution and that the Judge, in effect, had...