The State (Burke) v Lennon and Attorney General

Judgment Date15 December 1940
Date15 December 1940
CourtSupreme Court
(H.C., S.C.),
The State (Burke)
Lennon and the Attorney-General

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 and55

  1. 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 Garda Siochana 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...

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36 cases
  • State (Browne) v Feran
    • Ireland
    • Supreme Court
    • 24 July 1967
    ...Industry and CommerceIR [1929] I.R. 582 and Attorney-General (Fahy) v. BruenIR [1936] I.R. 750 approved. The State (Burke) v. LennonIR [1940] I.R. 136 not applied. 2. That the appeal should be dismissed as the conviction and order of the District Court did not show jurisdiction on its face.......
  • The State (Walsh and Others) v Lennon and Others
    • Ireland
    • Supreme Court
    • 27 January 1942
    ... ... , as in no case had it been decided that the entering of a nolle prosequi by the Attorney-General was a bar to another indictment for the same offence, and it was well established that the ... ...
  • People (Attorney General) v Kennedy
    • Ireland
    • Supreme Court
    • 21 December 1946
    ... ... An appeal is given by s. 44 of the Offences Against the State Act, 1939, to any person convicted before the Special Criminal Court, and by s. 44, sub-s. 2, of ... if comprehensive, are not adequate to alter the law having regard to dicta in The State (Burke) v. Lennon and the Attorney-General (4) ... I felt this reasoning of counsel rather persuasive and I ... ...
  • DPP v F.E. (No 2)
    • Ireland
    • Supreme Court
    • 26 February 2020
    ...To put this decision in context it is necessary to give a brief history of the prior relevant case-law. In The State (Burke) v. Lennon [1940] I.R. 136 the then Supreme Court held that under the terms of Article 34 as it then stood there could be no appeal against the granting of an absolute......
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3 books & journal articles
  • The Human Rights Act and Juridification: Saving Democracy from Law
    • United Kingdom
    • Politics No. 30-2, June 2010
    • 1 June 2010
    ...Press.Somek, A. (2007), ‘Kelsen Lives’, The European Journal of International Law 18(3), pp. 409–451.The State (Burke) v. Lennon [1940] Irish Reports 136.Travis, A. (2009a), ‘Most Control Orders Likely to Be Revoked after Terror Suspect Freed’, The Guardian,7 September, available at: http:/......
  • The Origins of the Irish Constitution, 1928?1941 by Gerard Hogan
    • Ireland
    • Hibernian Law Journal No. 12-2013, January 2013
    • 1 January 2013 2 State (Ryan) v Lennon [1935] I.R. 170 3 Re Art 26 and the School Attendance Bill 1942 [1943] I.R. 334 4 State (Burke) v Lennon [1940] I.R. 136 Book Reviews.indd 135 11/06/2013 10:46 136 DAVID GWYNN MORGAN And yet such a view would, in my opinion, postulate a starker difference betwee......
  • George Gavan Duffy
    • Ireland
    • Irish Judicial Studies Journal No. 2-2, July 2002
    • 1 July 2002
    ...of Merchant’s Quay Church were ringing eleven o’clock, would adjourn for a light lunch at 1 p.m., and resume the court hearing from 2 16[1940] I.R. 136. 17(1933) 67 I.L.T.R. 2002] George Gavan Duffy 18 p.m. to 4 p.m. He would usually get home at about 5 p.m. and would relax for an hour with......

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