The State (Dowling) v Brennan and Kingston (No. 1)

• Jurisdiction: Ireland
• Judgment Date: 09 April 1937
• Date: 09 April 1937
• Court: High Court (Irish Free State)

The State (Dowling) v. Brennan and Kingston

THE STATE (at the prosecution of THOMAS HENRY DOWLING)

and

GARRETT BRENNAN,Assistant Commissioner of the Garda Síochána, and STATION SERGEANT RICHARD C. KINGSTON (1)

High Court.

Jurisdiction - Irish Free State citizen - Charge of failing to maintain wife and child in Scotland - Warrant to apprehend issued in Scotland sent to Irish Free State - Warrant endorsed by Assistant Commissioner of Civic Guard - Alleged offender apprehended thereunder - Validity of endorsement of warrant - Whether superior officers of Civic Guard hold equivalent rank to, or exercise corresponding functions to the superior officers of the Royal Irish Constabulary - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922, Sch. I, Art. 73 - Habeas corpus - Petty Sessions (Ir.) Act, 1851 - Whether sect. 29 in force in Irish Free State - Effect of Article 73 of the Constitution - Adaptation of Enactments Act, 1922 (No. 2 of 1922), sect. 11 - Gárda Síochána (Temporary Provisions) Act, 1923 (No. 37 of 1923), sect. 21 - Gárda Síochána Act,1924 (No. 25 of 1924), sect. 19 - Whether affidavit sworn in Scotland sufficient "proof upon oath" of signature to warrant - Bail - Jurisdiction of the Court to grant bail on an application for habeas corpus.

The applicant, a citizen of the Irish Free State resident in Dublin, was apprehended in Dublin by a member of the Civic Guard on a warrant issued by the Sheriff Substitute of the Sheriff Court of Lanarkshire, Scotland. The warrant stated the charge against the applicant as of failing, contrary to the Poor Law (Scotland) Act, 1845, to maintain his wife and child in Glasgow whereby they became chargeable to the City of Glasgow. The applicant had never been within the jurisdiction of the Scottish Courts. The warrant was endorsed for execution in Dublin by an Assistant Commissioner of the Civic Guard purporting to act under sect. 29 of the Petty Sessions (Ir.) Act, 1851. The applicant was lodged in the Bridewell Prison pending his removal to Scotland. While so detained he obtained a conditional order of habeas corpus. On the application to the Court (Maguire P., Hanna and Gavan Duffy JJ.) to make absolute the conditional order notwithstanding cause shown:

Held by Hanna and Gavan Duffy JJ.; Maguire P. dissenting, that, as it had not been proved that the Assistant Commissioner of the Civic Guard who had endorsed the warrant had authority to do so, the conditional order must be made absolute.

Maguire P. and Hanna J. were of opinion that sect. 29 of the Petty Sessions (Ir.) Act, 1851, is in force in the Irish Free State by virtue of Art. 73 of the Constitution (Gavan Duffy J. not expressing a definite opinion on this point).

Maguire P. and Hanna J. were further of opinion that the requirements of the Petty Sessions (Ir.) Act, 1851, as to the proof upon oath of the signature to the Scottish warrant was complied with by the production of an affidavit sworn in Scotland verifying the signature (Gavan Duffy J. expressing no opinion on this point).

Validity of the warrant discussed.

Habeas Corpus.

The prosecutor, Thomas Henry Dowling, was, on the 15th day of March, 1937, arrested at his place of employment in Moore Street, in the City of Dublin, by Detective Officer Thomas Cryan of the Detective Branch of the Garda Síochána, on a warrant issued for his arrest by the Sheriff

Substitute of the Sheriff Court of Lanarkshire, at Glasgow, and he was brought to the Bridewell Prison, where he was detained pending the arrival of an escort from Scotland. The material parts of the warrant upon which the applicant was apprehended were as follows:—

"Under the Summary Jurisdiction (Scotland) Act, 1908. In the Sheriff Court of Lanarkshire at Glasgow. 6th March, 1937.

The Complaint of Robert Paton Ramsay, Inspector of the Poor of the City of Glasgow.

Thomas Henry Dowling, otherwise known as Henry Dowling, (30), a Tailor's Presser, whose present address is to the Complainer unknown, you are charged at the instance of the Complainer that on 27th January, 1937, in the City of Glasgow, you did neglect to maintain your wife, Margaret Stevenson, or Dowling, and child, James Dowling aged 2 years, whereby they became chargeable to the said City of Glasgow on 5th February, 1937, and continued to be and are presently so chargeable, contrary to the Poor Law (Scotland) Act, 1845, section 80, whereby you are liable to punishment by fine or imprisonment with or without hard labour, at the discretion of the Court.

Robert P. Ramsay, Complainer.

Glasgow, 6th March, 1937. The Court grants Warrant to apprehend the accused.

S. G. Kermack, Sheriff Substitute."

On the back of the warrant were the words following:—

"Solemn Declaration. I, Walter Gillie of Glasgow, of the County of Lanark, one of the officers of the Sheriff Court, of the said County of Lanark, having been solemnly sworn and examined on oath depose that the signature 'S. G. Kermack' to the within warrant is in the handwriting of Stuart Grace Kermack, Esquire, Advocate, one of the Sheriff-Substitutes of the Sheriff Court. of the aforesaid County of Lanark.

Walter Gillie,

Sheriff Officer.

Declared before me at Glasgow this 6th day of March, 1937.

W. B. Hunter, J.P.

One of His Majesty's Justices of the Peace for the County of the City of Glasgow."

On the back of the warrant, also, was the endorsement of Assistant Commissioner Brennan of the Civic Guard as follows:—

"Proof upon oath having this day been produced before me that the signature 'S. G. Kermack' to the within warrant is in the handwriting of the Sheriff Substitute within mentioned, I hereby endorse the within warrant for execution in the Metropolitan Area of Dublin.

(Signed) Garrett Brennan,

Assistant Commissioner, Garda Síochána.

The Superintendent,	This 11th day of March, 1937."
Detective Branch,
Dublin Castle."

On the 16th day of March, 1937, counsel on behalf of the prosecutor, Thomas Henry Dowling, applied for, and obtained from the President of the High Court, a conditional order of habeas corpus directed to Garrett Brennan, Assistant Commissioner of the Civic Guard, and Station Sergeant Richard C. Kingston, officer in charge of the Bridewell Police Station. On the 18th day of March, 1937, application was made to the President of the High Court that the prosecutor be admitted to bail. At the hearing of this application Robert Paton Ramsay, the Complainer named in the Scotch warrant, was represented by counsel, and in the order then made granting bail, it was directed that both the bail order and the conditional order of habeas corpus should be served upon Robert Paton Ramsay.

Two affidavits, one made by Thomas Cryan, of the Detective Branch of the Civic Guard, and the other by Assistant Commissioner Garrett Brennan, were filed, by way of showing cause, on the 31st March, 1937.

The application to make absolute the conditional order of habeas corpus came before the Court on the 6th day of April, 1937, and at the conclusion of the first day's hearing counsel on behalf of the prosecutor asked the Court to admit the prosecutor again to bail. This application was granted by the Court (vide post judgment of Hanna J.).

Cur. adv. vult.

Maguire P. :—

This case comes before the Court on an application by one, Thomas Henry Dowling, to make absolute a conditional order of habeas corpus ad subjiciendum made by me on the 16th day of March last.

The prosecutor, it is stated, is a citizen of the Irish Free State living in Dublin. On the 15th day of March last he was arrested by Detective Officer Thomas Cryan of the Gárda Síochána at premises in Moore Street, Dublin, where he was engaged as a tailor's presser. He was informed that his arrest was made on the authority of a warrant issued by the Sheriff Substitute of the Sheriff Court of Lanarkshire at Glasgow for his having neglected to maintain his wife and child there, and that he would be detained pending the arrival of an escort from Glasgow. He was brought to the Bridewell Station where he was detained. To the charge mentioned he says he has a good defence in law. Application was made for a conditional order of habeas corpus, and, as I have stated, the order which it is now sought to make absolute was made on the 16th March last.

The main grounds upon which this application is made are as follows:—

It is argued, firstly, that there is not now in force in Saorstát Éireann éireann any law or statute empowering any authority in the Saorstát to endorse a warrant issued in Scotland so as to give it currency in the Saorstát.

Secondly, it is argued that, if there is jurisdiction or authority in any person to endorse warrants of a Scottish Court for execution here, Assistant Commissioner Brennan is not a person having such authority.

Thirdly, it is argued that, assuming he has such authority, Assistant Commissioner Brennan has not complied with the requirement of sects. 28 and 29 of the Petty Sessions (Ireland) Act, 1851.

Other grounds as regards the validity of the warrant are also relied on. To these I shall refer later.

It is admitted that, prior to the creation of the Irish Free State, the warrants issued by Courts in Scotland, England and other places could be given efficacy so as to make them current here if they were backed by any of the persons mentioned in sect. 29 of the Petty Sessions (Ir.) Act, 1851.

The argument that this procedure no longer has sanction here falls under two heads. Firstly, it is argued that sect. 29 could not be kept in force by Article 73 of the Constitution because it was not, in so far as it authorised the backing of warrants by the Inspector-General or Deputy Inspector-General of the Constabulary, in force on the coming into operation of the Constitution. This argument was based on the fact that the Royal Irish Constabulary was not at any time transferred to the Provisional Government, and was disbanded by...