The State (Duggan) v Tapley

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 12 December 1952
• Date: 12 December 1952
• Docket Number: Case No. 109

The State (Duggan) v. Tapley

THE STATE (at the Prosecution of JOHN JOSEPH DUGGAN)

and

SERGEANT HENRY TAPLEY, Garda Siochana, and In the Matter of the COURTS OF JUSTICE ACTS, 1924 to 1936, and In the Matter of THE CONSTITUTION (1)

High Court.

Supreme Court.

Jurisdiction - Habeas corpus - Arrest - Irish citizen residing and domiciled in Ireland - Charge of offence in London contrary to the Larceny Act, 1916,s. 32 - English warrant endorsed for execution in Ireland by Deputy Commissioner of the Garda Siochana - Arrest of citizen under warrant - Validity of endorsement of warrant - Extradition - Whether Petty Sessions (Ireland) Act, 1851, s. 29, ceased to be operative in Ireland by virtue of the coming into operation of the Constitution - Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict., c. 93) s. 29 - Constitution of Ireland, Articles 1, 5, 6, 9, 29, 40, 50 - Petty Sessions (Ireland) Act, 1851, Adaptation Order,1938 (Stat. R. & O., 1938, No. 300).

Sect. 29 of the Petty Sessions (Ireland) Act, 1851, as adapted by the Petty Sessions (Ireland) Act, 1851, Adaptation Order, 1938, provides inter alia that whenever any person against whom any warrant shall be issued by any Justice in England for any crime or offence, shall reside or be in Ireland, it shall be lawful for the Commissioner or a Deputy Commissioner of the Garda Siochana or for any Justice [in Ireland] to endorse the warrant authorising its execution within his jurisdiction.

On the 28th October, 1950, the prosecutor was taken into custody by a member of the Garda Siochana on a warrant issued by a magistrate of the London Metropolitan Police Courts and duly endorsed for execution in Ireland by a Deputy Commissioner of the Garda Siochana. The prosecutor was brought to, and detained in, the Bridewell, in Dublin, for the purpose of being handed over to the British police authorities. The prosecutor obtained a conditional order of habeas corpus ad subjiciendum, directed to the Station Sergeant of the Bridewell, and, on the application to make absolute the said conditional order it was

Held by the Supreme Court (affirming the order of the High Court) that the cause shown should be allowed and the conditional order discharged.

Held further, by the Supreme Court that there is no generally recognised principle of international law which forbids the surrender in accordance with the Petty Sessions (Ireland) Act, 1851, s. 29, to Great Britain of persons, whether they are Irish citizens or others, to answer a charge of a criminal offence.

Held further, by the Supreme Court, that reciprocity is not a condition of a valid law of extradition and the operation of s. 29 of the Petty Sessions (Ireland) Act, 1851, is not dependent on the existence of similar legislation in Great Britain.

Habeas Corpus.

Application to make absolute, notwithstanding cause shown, a conditional order of habeas corpus ad subjiciendum,dated the 29th October, 1950, directed to Sergeant Henry Tapley, Bridewell, in the City of Dublin.

On the 27th October, 1950, a warrant was issued by a magistrate of the London Metropolitan Police Courts for the arrest of John Joseph Duggan, the prosecutor, on a charge that on the 5th March, 1949, at 15 Cavendish Square, London, W.1., he did unlawfully with intent to defraud by false pretences obtain from the Worcester City Council the

sum of £105 0s. 0d., contrary to the provisions of s. 32, sub-s. 1, of the Larceny Act, 1916. The said warrant was brought to Dublin and was there endorsed, under s. 29 of the Petty Sessions (Ireland) Act, 1951 (as adapted by the Petty Sessions (Ireland) Act, 1851, Adaptation Order, 1938), by Garret Brennan, a Deputy Commissioner of the Garda Siochana, who authorised its execution in the County of Kildare. The prosecutor was arrested on the warrant by a member of the Garda Siochana on the 28th October, 1950, in Naas, County Kildare, and was brought to, and detained in, the Bridewell, in Dublin, for the purpose of being handed over to the British police authorities for conveyance to London to answer the said charge. On the 29th October, 1950, a conditional order of habeas corpus ad subjiciendumwas granted to the prosecutor by Kingsmill Moore J. On the application to the High Court to make absolute the conditional order, the prosecutor claimed that s. 29 of the Petty Sessions (Ireland) Act. 1851, ceased to be in force in Ireland as from the 29th December, 1937, when the Constitution of the Irish Free State was repealed. On cause being shown by the respondent, Sergeant Henry Tapley, the Court allowed the cause shown and discharged the conditional order.

From this decision the prosecutor appealed to the Supreme Court (3) on the ground that the High Court was wrong in law in discharging the conditional order and in refusing to make the said conditional order absolute.

Cur. adv. vult.

Gavan Duffy P. :—

Joseph Duggan, who appears to be an Irish citizen, residing and domiciled here, applies for habeas corpus. A warrant of arrest has been issued against him by a magistrate in London on a charge of obtaining money in London by false pretences with intent to defraud and that warrant has been indorsed for execution, and has been executed by his arrest in the County of Kildare, and his transfer to Dublin, whence it is proposed to take him to London to answer the said charge; the procedure followed is that authorised by s. 29 of the Petty Sessions (Ireland) Act, 1851; the charge is laid under s. 32 of the Larceny Act, 1916, which happens also to be law in Ireland, and the offence is an ordinary"extraditable crime." Mr. Michael Ryan, counsel for Duggan, has addressed to this Court a learned and elaborate argument designed to show that s. 29 of the Act of 1851 has ceased to be in force since the 29th day of December, 1937, when the present Constitution came into force and the Constitution of 1922 was repealed. Besides Article 40 of the Constitution (habeas corpus), he relies on Articles 1 and 5 (sovereignty), 6 (origin and exercise of powers of government), 9 (citizenship), 48 (repeal of former Constitution), and 29 (international relations); while Mr. McGilligan, showing cause, relies on the language of Article 29 and on Article 50, 1, which declares that, subject to the Constitution and to the extent to which they are not inconsistent therewith, the laws in force shall continue to be of full force and effect until repealed or amended by enactment of the Oireachtas. The Constitution of 1922 contained (in Article 73) a similar enactment for the continuance of the laws in force and, having carefully considered the argument for the prosecutor, I fail to discern in the present case anything in law (except Article 29 of the Constitution) to distinguish it in principle from the case of The State (Dowling) v. Kingston. (No. 2)(1);that was a very much stronger case for the man aggrieved, but the Supreme Court held, shortly before the present Constitution came into force, that s. 29 of the Act of 1851 continued in force; that decision is binding on this Court and appears to me to apply, despite the constitutional change in the position of the State. I shall therefore confine myself in the main to an examination of Article 29, governing our international relations.

The Act of 1851 provides (ss. 10 and 27) for the indorsement, to give it effect in England, of an Irish warrant of arrest against a man who is to be found in England; then, by s. 29, it makes corresponding provisions for English warrants against accuse persons who are in Ireland; the effect is to empower a high police officer—or a Justice, here—on mere proof of the signature of the issuing Justice, to indorse the English warrant for execution locally in Ireland; under s. 31 the indorsed warrant is sufficient authority for the arrest of the person sought and for his conveyance before the Justice who issued the warrant. The Act of 1851 was passed by the Queen, Lords and Commons of the United Kingdom of Great Britain and Ireland, exercising jurisdiction over both countries as a consitutional unit; the constitutional changes since 1920 have completely altered that position, with the result that s. 29 of the Act (if still in force) has become an international measure and would retain that character even if the Act made no reciprocal provision. One curious result

of the constitutional changes is that no authority now has jurisdiction to indorse for execution here a warrant issued by a magistrate in the Six Counties, no adaptation of the law having been made for that purpose: O'Boyle and Rodgersv. Attorney-General and O'Duffy(1). I fear that offenders seeking to use that decision as a charter of immunity must put a severe strain on the law-abiding police authorities of the Border counties.

Neither the Republic of Ireland Act, 1948, nor the (British) Ireland Act, 1949, appear to help Mr. Ryan, nor does the fact that we now send ambassadors abroad, and I come to Article 29 of the Constitution, which reads as follows:—

"INTERNATIONAL RELATIONS."

Article 29.

1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.

2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.

3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States."

I omit clause 4 as being immaterial in the present case.

"5. 1 Every international agreement to which the State becomes a party shall be laid before Dáil Éireann éireann.

"2 The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of agreement shall have been approved by Dáil Éireann éireann.

"3 This section shall not apply to agreements or conventions of a technical and administrative character.

6. No international...