The State (Dowling) v Kingston (No. 2)

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date28 Jul 1937

High Court.

Supreme Court.

The State (Dowling) v. Kingston (No. 2).
THE STATE (at the prosecution of THOMAS HENRY DOWLING)
and
RICHARD C. KINGSTON,and in the Matter of the Courts of Justice Act, 1924, and in the Matter of the Constitution (No. 2) (1)

Jurisdiction - Irish Free State citizen - Domiciled in Dublin - Charge of failing to maintain wife and child in Scotland contrary to the Poor Law (Scotland) Act, 1845, sect. 80 - Warrant to apprehend issued in Scotland and sent to Irish Free State - Warrant endorsed by District Justice for Dublin Metropolitan Area - Arrest thereunder - Validity of endorsement of warrant - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922), Sch. I, Arts. 1, 2, 3, 6, 64, 73, 75 - Sovereignty of State - Criminal jurisdiction - Privileges of citizens under the Constitution of the Irish Free State - Petty Sessions (Ir.) Act, 1851 - Whether sect. 29 in force in Irish Free State - Effect of Art. 73 of the Constitution - Adaptation of Enactments Act, 1922 (No. 2of 1922), sects. 6, 9 - District Justices (Temporary Provisions) Act, 1923 (No. 6of 1923), sect. 4 - Courts of Justice Act, 1924 (No. 10 of 1924), sects. 77, 78 -Whether functions of District Justice include jurisdiction of former Justices of the Peace when not sitting at Petty Sessions - "Judicial Power of the Irish Free State" - Habeas Corpus - Practice - Application for order - Whether applicant entitled to make successive applications to different Judges of the High Court - Art. 6 of Constitution - Construction of words "Courts and any and every Judge" - Dissenting judgment in favour of person in custody - Whether sufficient to entitle prisoner to be released - Habeas Corpus Act (Ir.), 1781 (21 & 22 Geo. 3, c. 11), sect. 5

Motion on notice to make absolute, notwithstanding cause shown, a conditional order dated 9th April, 1937, for the issue of an order of habeas corpus directed to Richard C. Kingston, Station Sergeant, Bridewell Station, Inns Quay, Dublin.

The conditional order was obtained on the affidavit of the prosecutor, Thomas Henry Dowling, in which, having stated that he was then residing at 40 Mountjoy Square, Dublin, and was a tailor's presser, he set out the facts prior to his previous arrest and his subsequent discharge from custody on the 9th April last. These facts are stated in the report of the case, ante, p. 483. His affidavit then continued as follows:—

"13. A few hours subsequent to my said discharge I was again arrested by Detective Officer Cryan at my place of employment aforesaid. The said Detective Officer told me he had another warrant from Glasgow for my arrest. He showed me the warrant and he read it to me. I was then cautioned by the said Detective Officer and I made no reply to him. The said warrant was a warrant similar to the warrant upon which I was first arrested, and the complaint therein was similar to the complaint mentioned in the first warrant. As far as I remember the date of this warrant was the 8th day of April, 1937, and it was issued by a Sheriff Substitute in Glasgow. The said warrant was endorsed or 'backed' in the Irish Free State by Edward J. Little, one of the Justices assigned to the Dublin District Court and was directed to the Chief Superintendent of the Metropolitan Division of the Gárda Síochána and his assistants. The said warrant was directed by Superintendent Ennis to the said Detective Officer for execution. The said Detective Officer then took me to the Bridewell Police Station, Inns Quay, Dublin, and handed me over to Station Sergeant Richard C. Kingston where, and by whom, I am at present detained. I am aware that a police escort from Glasgow is at present in Dublin to whom I am to be handed over this evening to be conveyed by him as a prisoner to Scotland outside the jurisdiction of the Courts of the Irish Free State. I am informed by my solicitor and believe that the original warrant upon which I have been now arrested is in the possession of the police authorities here and that he (my solicitor) has applied to the said authorities and to the Chief State Solicitor for a copy of the said warrant, but same is not yet forthcoming. I beg to refer to the said warrant when produced.

14. I am a citizen of the Irish Free State, and I reside, and have always resided, within the area of the Irish Free State, and I never resided in Scotland, nor did I have a home or residence there at any time. I say that I have not committed any offence in Scotland nor in the Irish Free State in respect of the matters alleged in the said warrant and I say that the issue of the said warrant in Scotland and the endorsement or 'backing' thereof by the said Edward J. Little in the Irish Free State are without, and in excess of, jurisdiction, and an invasion of my rights as a citizen of the Irish Free State, and as such citizen I claim the protection of the Courts of my State against my said arrest and imprisonment and my deportation to another jurisdiction, and I rely upon the provisions of Article 6 of the Constitution of the Irish Free State."

Cause was shown against making absolute the conditional order by the filing of two affidavits; one by Superintendent Ennis and the other by Detective Officer Cryan. Both affidavits dealt merely with the procedure followed in arresting Dowling and are immaterial for the purposes of this report.

The prosecutor appealed from the order of the High Court to the Supreme Court (1). The two grounds of appeal are set out in the judgment of Sullivan C.J.

A warrant was issued by a Sheriff Substitute in Scotland on 6th March, 1937, for the arrest of D., a citizen of the Irish Free State, whose address was therein stated to be "unknown," the charge being that on the 27th January, 1937, in the city of Glasgow, he neglected to maintain his wife and child whereby they became chargeable to the said city on the 5th February, 1937. This warrant was brought to Dublin and was there endorsed, under sect. 29 of the Petty Sessions (Ireland) Act, 1851, by an Assistant Commissioner of the Civic Guard who authorised a member of the Civic Guard to execute it. D. was arrested on this warrant on the 15th March, 1937, in Dublin, where he was living, and on the following day he obtained a conditional order of habeas corpus which was made absolute on the 9th April, 1937, and thereupon he was discharged from custody, (reported antep. 483). A few hours after his discharge he was again arrested on another warrant. This warrant was issued by a Sheriff Substitute in Scotland on the 8th April, 1937, and was endorsed under sect. 29 of the Petty Sessions (Ir.) Act, 1851, on the 9th April, 1937, by one of the District Justices in the Dublin Metropolitan District Court Area, who authorised the Civic Guard to execute it. The warrant was for the arrest of D., therein stated to be residing at an address in Dublin, the charge being that on the 3rd February, 1937, and subsequent dates in the city of Glasgow, he neglected to maintain his wife and child, being able so to do, whereby they became chargeable to the Corporation of the said city of Glasgow on the 5th February, 1937, Later, on the same day D. obtained a conditional order of habeas corpus and, on the hearing of the application to make absolute the conditional order:—

Held by the Supreme Court:—

1. That the jurisdiction conferred on the District Court by sect. 78 of the Courts of Justice Act, 1924, is not limited to the performance of judicial

acts as distinct from ministerial acts, but the section transferred to the District Court inter alia all the powers formerly exercisable by a Justice of Peace when not sitting at Petty Sessions. Accordingly the endorsement of the warrant by the District Justice was authorised by the section.

2. That sect. 29 of the Petty Sessions (Ir.) Act, 1851, is not inconsistent with the Constitution, and continues to be of full force and effect by virtue of Art. 73 of the Constitution.

3. That the general rule that the judgment of the majority of the members of a Court constitutes the judgment of the Court applies also in proceedings for an order of habeas corpus, and a prisoner is not entitled to be released by virtue of the judgment of a dissenting member of the Court.

Accordingly the conditional order was discharged.

Decision of the High Court (Maguire P. and Hanna J., Gavan Duffy J., dissenting) affirmed.

The State (Kennedy) v. LittleIR [1931] I. R. 39, and The State (Nangle)v. Sligo County CouncilIR[1931] I. R. 166 applied.

Cur. adv. vult.

Maguire P. :—

This case comes before the Court on an application to make absolute a conditional order of habeas corpus ad subjiciendum made by Mr. Justice Gavan Duffy in the High Court on the 9th day of April last.

The prosecutor, Thomas Henry Dowling, had been arrested in Dublin on the 15th March last on the authority of a warrant issued by one of the Sheriff Substitutes of the Sheriff's Court of Lanarkshire at Glasgow which was"backed" for execution here by Assistant Commissioner Brennan of the Gárda Síochána. The charge set out in the warrant was that the prosecutor on the 29th January, 1937, in the City of Glasgow did neglect to maintain his wife and child, whereby they became chargeable to the said City of Glasgow and continued to be, and were so chargeable.

An application on behalf of the prosecutor for a conditional order of habeas corpus ad subjiciendum was granted by the High Court and was made absolute on the 9th of April, 1937. Dowling was thereupon discharged from custody. On the same day he was arrested on the authority of a warrant, dated the 8th day of April, 1937, issued by the order of one of the Sheriff Substitutes of the same Court at Glasgow "backed" for execution here by Edward J. Little one of the Justices of the District Court assigned to the Dublin Metropolitan District (No. 31). The charge in the said warrant set forth is that the prosecutor did on the 3rd day of...

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