State (Sheerin) v Kennedy and Others

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

The State (Sheerin) v. Kennedy.

THE STATE (at the Prosecution of FRANCIS JAMES SHEERIN)

and

MICHAEL KENNEDY,Governor of Saint Patrick's Institution,DISTRICT JUSTICE MICHAEL O'CALLAGHANand THE ATTORNEY GENERAL. In the Matter of the Courts of Justice Acts, 1924 to 1960, and in the Matter of the Courts (Supplemental Provisions) Acts, 1961 and 1962, and in the Matter of the Criminal Justice Acts, 1951 to 1960, and in the Matter of the Constitution (1)

THE STATE (at the Prosecution of DAVID McGARRY)

and

Same

THE STATE (at the Prosecution of JOHN O'HANLON)

and

Same

Supreme Court.

Constitution of Ireland - Statute - Whether enactment in force before Constitution came into operation was inconsistent with provisions of Constitution - Case stated - Question of validity of such enactment referred to Supreme Court pursuant to Article 40 of Constitution - Absence of jurisdiction to make such reference - Question to be determined under Article 50 of Constitution - Constitution of Ireland, Articles 40 and 50—Prevention of Crime Act, 1908 (8 Edw. 7, c. 59), s. 2.

Constitution of Ireland - Criminal law - Youthful offender - Conviction in court of summary jurisdiction - Offence punishable by three months' imprisonment under enactment creating offence - Same offence punishable by three years' institutional detention under separate enactment - Whether minor offence - Whether enactment authorising such detention inconsistent with provisions of Constitution - Constitution of Ireland, Articles 38 and50 - Children Act, 1908 (8 Edw. 7, c. 67), ss. 71, 72 - Prevention of Crime Act, 1908 (8 Edw. 7, c. 59), 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 said 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 ó dálaighO'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 said 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 answered that question affirmatively;

3, That the matters of the said conditional orders should be remitted to the Judge to proceed thereon accordingly.

Sect. 71 of the Children Act, 1908, provides inter alia that upon summary conviction for an offence under that section a youthful offender who is 17 or more years old shall be liable to be sentenced to a term of imprisonment not exceeding 3 months. Sect. 72 of the said Act contains similar provisions relating to an offence under that section. Sect. 2 of the Prevention of Crime Act, 1908, provides inter alia that a youthful offender who has been convicted of either of such offences in a Court of summary jurisdiction may be sentenced to detention in St. Patrick's Institution for a term of not less than 2 years nor more than 3 years. The prosecutor, O'H., when 18 years old, was convicted in the District Court of an offence under s. 71 of the Children Act, 1908, and of an offence under s. 72 of that Act and was sentenced by the District Justice to be detained in St. Patrick's Institution for two concurrent terms of two years. He thereupon obtained in the High Court conditional orders of certiorari and habeas corpus on the ground that the District Justice had no power to order his detention for such periods in St. Patrick's Institution. The High Court ordered that the conditional orders be made absolute and the respondents appealed from that order to the Supreme Court.

Held by the Supreme Court ( Ó Dálaigh C.J., Lavery, Haugh, Walsh and ó dálaighO'Keeffe JJ.) 1, that the most important factor in determining whether or not an offence is a minor offence within the meaning of Article 38 of the Constitution is the punishment which can be imposed for the commission of the offence, and for that purpose detention in St. Patrick's Institution for a period of time is equivalent to imprisonment for the same period;

2, That an offence which is punishable by 3 years' detention in St. Patrick's Institution is not a minor offence within the meaning of Article 38 of the Constitution;

3, That the terms of s. 2 of the Prevention of Crime Act, 1908, assuming that the section was in force immediately prior to the date when the Constitution came into operation, were inconsistent with the provisions of section 5 of Article 38 of the Constitution and did not continue in force after that date pursuant to Article 50.

The appeal was accordingly dismissed.

Semble: The provisions of s. 7 of the Prevention of Crime Act, 1908 (enabling the Minister for Justice to commute the unexpired residue of the term of detention of a person detained in St. Patrick's Institution to such term of imprisonment, with or without hard labour, not exceeding such unexpired residue as the Minister may determine) are inconsistent with the provisions of the Constitution in so far as they purport to enable the Minister to impose a sentence of hard labour.

Certiorari and Habeas Corpus.

The prosecutor, Francis James Sheerin, was born on the 10th March, 1948. On the 17th September, 1965, when he was 17 years old, he pleaded guilty in the District Court to an offence under s. 71 of the Children Act, 1908; he was convicted and sentenced by the District Justice to be detained in St. Patrick's Institution for a period of two years pursuant to the provisions of s. 2 of the Prevention of Crime Act, 1908, as amended by s. 11, sub-s. 1, of the Criminal Justice Administration Act, 1914. On the 21st January, 1966, he applied for, and obtained, in the High Court (Mr. Justice Henchy) conditional orders of certiorari and habeas corpus ad subjiciendum, with a view to having the order of the District Justice quashed and securing his release from custody, on the ground that the District Justice had no lawful jurisdiction to sentence him to two years' detention in St. Patrick's Institution. Cause was shown against the conditional orders by the Governor of the said institution and by Superintendent Hugh Barr. The prosecutor then brought a motion in the High Court (Mr. Justice Kenny) to have the conditional orders made absolute, notwithstanding cause shown.

The prosecutor, David McGarry, was born on the 6th November, 1946. On the 17th September, 1965, when he was 18 years old, he pleaded guilty to, and was convicted in the District Court of, an offence under s. 71 of the Children Act, 1908, and he was sentenced by the District Justice to be detained in St. Patrick's Institution for a period of two years pursuant to s. 2 of the Prevention of Crime Act, 1908, as amended. He then applied for, and obtained, in the High Court (Mr. Justice Murnaghan) conditional orders of certiorariand habeas corpus on the 14th January, 1966. The further proceedings affecting McGarry were similar to those stated (supra) in the proceedings instituted by the prosecutor, Sheerin.

Mr. Justice Kenny, during the hearing of the motions brought by the prosecutors, Sheerin and McGarry, directed those prosecutors to serve notices on the Attorney General pursuant to Order 60 of the Rules of the Superior Courts and the Attorney General thereafter appeared, by solicitor and counsel, in these proceedings. Kenny J. decided (a)that he was satisfied that the prosecutors, Sheerin and McGarry, were being detained in St. Patrick's Institution in accordance with s. 2 of the Prevention of Crime Act, 1908, as amended; (b) that the offence created by s. 71 of the Children Act, 1908, was not a minor offence; and (c) that s. 2 of the Prevention of Crime Act, 1908, as amended, was invalid having regard to the provisions of the Constitution. In reliance upon the provisions of Article 40, section 4, sub-section 3, of the Constitution, he then stated two similar Cases in each of which he recorded his said decisions and posed, for determination by the Supreme Court, the question:—"Whether I was correct in deciding that s. 2 of the Prevention of Crime Act, 1908, as amended, is invalid having regard to the provisions of the Constitution.

The prosecutor, John O'Hanlon, was born on the 1st July, 1947. On the 21st July, 1965, when he was 18 years old, he pleaded guilty to, and was convicted in the District Court of, an offence under s. 71 of the Children Act, 1908, and of an offence under s. 72 of that Act. He was sentenced by the District Justice to be detained in St. Patrick's Institution for two concurrent periods of two years...