The State (Burke) v Lennon and Attorney General

• Jurisdiction: Ireland
• Judgment Date: 15 December 1940
• Date: 15 December 1940
• Court: Supreme Court

(H.C., S.C.),

The State (Burke)

and

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...