The State (Burke) v Lennon and Attorney General

JurisdictionIreland
CourtSupreme Court
Judgment Date15 December 1940
Date15 December 1940

Supreme Court.

The State (Burke) v. Lennon and the Attorney-General.
THE STATE (at the Prosecution of REDMOND BURKE)
and
CAPT. LENNON, Governor of Arbour Hill Barracks, and THE ATTORNEY-GENERAL

Habeas Corpus - Internment without trial - Warrant under hand of Minister - Validity of warrant - Proclamation condition precedent to issue of warrant - No statement in warrant that proclamation was made and published - Jurisdiction of the Minister to issue warrant - Whether Minister"satisfied" that conditions precedent fulfilled - Whether Minister acting judicially or ministerially - Legality of internment - Whether statutory power to order internment is repugnant to the Constitution - Order of High Court for release of prisoner - No right of appeal to Supreme Court against order of release - Constitution of 1937, Arts. 5, 6, 9, 13, 15, 24, 28, 29, 30, 34, 35, 37, 38, 40, 41, 42, 43 and 44 - Offences Against the State Act, 1939 (No. 13 of 1939), ss. 2, 12, 35, 54 and 55.

Habeas Corpus.

On the 15th day of September, 1939, James Burke was arrested in Ballinrobe and on the following day was removed to Dublin and brought to Arbour Hill Military Detention Barracks.

A warrant, dated the 16th day of September, 1939, was issued in the following terms:—

"I, Gerald Boland, a Minister of State, in exercise of the powers conferred on me by section 55 of the Offences Against the State Act, 1939 (No. 13 of 1939), and being satisfied that James Burke of Friarsquarter, Ballinrobe, Co. Mayo, is engaged in activities calculated to prejudice the preservation of the security of the State do by this warrant order the arrest and detention of the said James Burke under the said section.

(Signed) Gerald Boland,

A Minister of State."

On the 26th November, 1939, Redmond Burke, a brother of the said James Burke, served a notice of motion of an application to be made to Gavan Duffy J. on the 28th November, 1939, for an order that an order of habeas corpus ad subjiciendum do issue, directed to Capt. M. J. Lennon, Commandant and Governor of Arbour Hill Military Detention Barracks in the City of Dublin, demanding him to have the body of the said James Burke before the Court (Mr. Justice Gavan Duffy) on a date to be named in the order, on the ground that the arrest and imprisonment of the said James Burke were illegal. The notice of motion further stated that, "if on the hearing of the said application it be submitted or contended by the respondents herein, or either of them, that all, or any, of the acts complained of were done pursuant to the provisions of the Offences Against the State Act, 1939 (No. 13 of 1939) (which submission will be denied), it will be submitted and contended on behalf of the above-named James Burke that the Offences Against the State Act, 1939, is, or such provisions thereof as may be relied upon by the respondents, or either of them, are invalid on the ground that the said Act is, or the said provisions thereof are, in every or any respect repugnant to the Constitution or to any provision thereof."

The application was grounded on the affidavit of the said James Burke sworn on the 22nd day of November, 1939, and on the affidavit of George P. M. Hogan, solicitor, sworn on the same date.

The material facts which appeared from the affidavit of James Burke (hereinafter referred to as "the applicant")were as follows:—

On the 15th day of September, 1939, two members of the Gárda Síochána entered the shop in Ballinrobe where the applicant was employed and told him that he was wanted in the barracks, whereupon he was escorted to the Gárda Barracks at Ballinrobe. At the said barracks the applicant was searched by another member of the Gárda Síochána in the presence of a superintendent. At about 1.0 a.m. on the following morning the applicant was placed in a cell in the said barracks. The applicant was put into a motor car at about 2.0 p.m. on the same day and brought to Dublin. The said motor car on arrival in Dublin first stopped at Green Street Gárda Barracks, and, following some delay there, the said motor car proceeded to Arbour Hill Military Detention Barracks, where the applicant, after being searched again, was placed in a cell.

About ten days after his arrival at the said Arbour Hill Military Detention Barracks the applicant on entering his cell after daily exercise found a typewritten document on the table, which purported to be a copy of s. 59 of the Offences Against the State, Act, 1939. Some days later on returning from the exercise yard the applicant found another typewritten document purporting to contain prison regulations. No document of any kind was served on the applicant or on any one on his behalf save these two documents left in his cell. Since the date of the arrest of the applicant he had not been tried or charged with any offence, and no order or warrant was served upon him, and he was not informed that any order or warrant had been made or issued for his arrest or imprisonment, or that he would be charged. At no time was the applicant told why he had been arrested or imprisoned or for how long he would be kept. The applicant has been imprisoned in Arbour Hill Military Detention Barracks since the 16th of September, 1939, and was still detained there.

From the judgment of Gavan Duffy J. and his order directing the release of the applicant (3), the Attorney-General and Captain Lennon lodged an appeal to the Supreme Court (4).

A preliminary objection having been taken on behalf of the respondent to the jurisdiction of the Court to entertain the appeal, the Court decided to hear argument on the question of jurisdiction before proceeding further with the appeal.

Art. 40, clause 4, of the Constitution provides:—

"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 that he is being unlawfully detained, the High Court and any and every Judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay and to certify in writing as to the cause of the detention, and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law."

Sect. 55 of the Offences Against the State Act, 1939, which is contained in Part VI of the Act, provides:—

"(1) Whenever a Minister of State is satisfied that any particular person is engaged in activities calculated to prejudice the preservation of the peace, order, or security of the State, such Minister may by warrant under his hand order the arrest and detention of such person under this section.

(2) Any member of the Gárda Síochána may arrest without other warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section.

(3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens."

It having been contended, on an application for an order of habeas corpus, that the above section was contrary to the Constitution:

Gavan Duffy J. was of opinion that a law for the internment of a citizen, without charge or hearing, outside the protection of our criminal jurisprudence and outside even the special Courts, for activities calculated to prejudice the security of the State, does not respect the citizen's right to personal liberty, and the power to intern on suspicion or without trial was fundamentally inconsistant with the right to personal liberty as expressed in the Constitution; further, that a Minister, in signing a warrant under the section, was not only acting judicially but was also administering justice, which was also contrary to the Constitution.

And Gavan Duffy J. held that a warrant which purported to be made by the Minister for Justice in exercise of the powers conferred on him by the above s. 55 of the Offences against the State Act, 1939, but which contained no statement that the Government had made and published the proclamation authorised by the preceding section (s. 54) and which was necessary to bring Part VI of the Act into operation, and which contained no reference to s. 54 which might justify the Court in reading a reference to an existing proclamation into the warrant, did not show jurisdiction and was, therefore, bad on its face, Gavan Duffy J. having held that such a warrant amounted to a conviction, an order to arrest and a warrant of committal.

Where, therefore, a person was detained under such a warrant his detention was illegal, and Gavan Duffy J. on an application for an order of habeas corpus ordered his release under Art. 40 of the Constitution.

On appeal to the Supreme Court (Sullivan C.J., Murnaghan, Meredith, Geoghegan and Johnston JJ.) that Court, Johnston J. dissenting, held that an appeal did not lie.

Cox v. Hakes,ELR 15 App. Cas. 506, applied by a majority of the Supreme Court.

Cur. adv. vult.

Gavan Duffy J.:

Seamus Burke, a spirit grocer and provision merchant, of Ballinrobe, Co. Mayo, who is an Irish citizen, applies for an order of habeas corpus, on the ground that he is being unlawfully detained by the Governor of Arbour Hill Military Detention Barracks, Dublin, being interned in the Barracks without trial.

The Governor justifies on a warrant emanating from the Minister for Justice under s. 55 (authorising internment under certain circumstances) of the Offences Against the State Act, 1939 (No. 13 of 1939), and the Regulations made under that Act.

I shall speak throughout of Seamus Burke as the applicant; he has made an...

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