The State (McCarthy) v Lennon and Others

• Jurisdiction: Ireland
• Judgment Date: 03 April 1936
• Date: 03 April 1936
• Court: Supreme Court (Irish Free State)

The State (McCarthy) v. Lennon and Others

THE STATE (at the prosecution of William McCarthy)

and

MICHAEL LENNON, Governor of Arbour Hill Military Detention Barracks, and the MEMBERS OF THE CONSTITUTION (SPECIAL POWERS) TRIBUNAL (1)

High Court.

Supreme Court.

Evidence - Admissibility - Statement made by accused person after arrest - Statement made in answer to questions put by member of the Civic Guard under powers conferred by Constitution (Amendment No. 17) Act, 1931 (No. 37 of 1931), sect. 15 - Penalty imposed by the Act for not answering questions - Effect of Act on admissibility of statement - Nemo tenetur se ipsum accusare - Art. 2a of the Constitution - Constitution of the Irish Free State ((Saorstát Éireann éireann) Act (No. 1 of 1922), Sch. I, Arts. 2a and 73.

The Constitution (Amendment No. 17) Act, 1931, provides that the Constitution shall be amended by the insertion therein, immediately after Art. 2 thereof, of the Article set forth in the Schedule to the Act, the said Article to be numbered "2a." By sect. 2 of Part I of the Schedule to the Act, Art. 3 and every subsequent Article of the Constitution shall be read and construed subject to the provisions of Art. 2a, and in case of any inconsistency between Art. 2a and Art. 3 or any subsequent Article, Art. 2ashall prevail. Part II of the Schedule established a tribunal to be known as the "Constitution (Special Powers) Tribunal" consisting of five officers of the Defence Forces of the Irish Free State upon whom are conferred very wide powers as to the trial of offences and the infliction of punishment (including the death penalty). Part III of the Schedule deals with "Special Powers for the Police." Sect. 15 of Part III provides:—

15.—(1) Whenever a person is detained on suspicion under this Article [i.e., Art. 2a] it shall be lawful for any member of the Gárda Síochána, while such person is so detained, to do all or any of the following things, that is to say:—

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) to demand of such person . . . a full account of his movements and actions during any specified period;

• (e) to demand of such person all or any information in his possession in relation to the commission or intended commission by another person of any of the offences mentioned in the Appendix to this Article.

(2) Every person detained on suspicion under this Article who, while he is so detained, does any of the following things, that is to say:—

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) when an account of his movements or actions is demanded of him under this section by a member of the Gárda Síochána, fails or refuses to give such account or gives an account which is false, incomplete, inaccurate, or misleading; or

• (d) when any information in his possession is demanded of him under this section by a member of the Gárda Síochána, fails or refuses to give such information or gives information which is false, incomplete, inaccurate, or misleading;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

shall be guilty of an offence triable by the Tribunal [the Constitution (Special Powers) Tribunal] and shall be liable on conviction thereof to suffer such punishment as the Tribunal shall think proper to inflict.

M. was tried before the Constitution (Special Powers) Tribunal on certain charges, was found guilty and sentenced to imprisonment. At the trial

evidence was given that members of the Civic Guard, pursuant to sect. 15 of Art. 2a of the Constitution, demanded from M. an account of his movements and actions during a specified period, and that a statement made by him in answer thereto was produced and proved. This statement was made by M. after his arrest and after the provisions of sect. 15 of Art. 2a had been read to him by a member of the Civic Guard. M. having obtained a conditional order for habeas corpus, and also for certiorari to quash the order of the Tribunal, applied to have the conditional order made absolute. It was admitted that there was substantially no evidence to justify the conviction of M. by the Tribunal except this statement of his. Counsel on his behalf objected to the admission of this statement in evidence on the ground that it was not voluntary, being made under compulsion by reason of the punishment to which persons declining to answer questions put to them pursuant to sect. 15 of Art. 2a rendered themselves liable.

Held by the High Court (Sullivan P., Hanna and O'Byrne JJ.), and, on appeal, by the Supreme Court (FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting), that the statement was lawfully taken in pursuance of the provisions of sect. 15 of Art. 2a, and that, having regard to the scope and object of that Article, the statement was admissible in evidence, and accordingly the conditional order must be discharged.

R. v. Scott, 7 Cox, C. C. 164, applied.

Habeas Corpus and Certiorari.

The prosecutor, William McCarthy, moved to make absolute a conditional order for habeas corpus and certiorarigranted on the 29th day of November, 1935.

The conditional order directed that "an order of habeas corpus ad subjiciendum do issue to the Military Governor of Arbour Hill Detention Barracks to have before the High Court of Justice or a Judge thereof the body of the said William McCarthy being taken and detained under his custody as is said, together with the day and cause of his being taken and detained, to undergo and receive all such matters and things as the said Court or Judge shall consider of and concerning him in this behalf.

And it is further ordered that an order of certiorarido issue directed to the members of the Constitution (Special Powers) Tribunal to send before the Court for the purpose of being quashed:

All and singular records of conviction of whatsoever trespasses and contempts whereof the said William McCarthy was on the 4th day of July, 1935, convicted on the hearing of certain offences set forth in the schedule to the order of the said Tribunal, dated the 25th day of July, 1935, and entitled: 'The Attorney-General v. William McCarthy and Denis Condon,' on the grounds (as tocertiorari):—

1. That the conviction was without and in excess of jurisdiction in that the said conviction was grounded on statements found by the said Tribunal to be statements which were not free and voluntary, and there was no other evidence on which a conviction could be founded, and the Tribunal, having acted on such statements, acted without evidence, and the conviction has no basis in law on which it can be supported.

2. The conduct of the proceedings and the findings of the said Tribunal and the said conviction are contrary to natural justice, to the law, to the Constitution, and without jurisdiction for the reasons stated in paragraph 1 above mentioned.

3. The prosecutor was not duly tried as alleged in the order of conviction for the reasons stated in the said paragraph 1.

4. The order of conviction is bad on its face in that it does not show on its face that the persons who tried the said prosecutor had any lawful authority to try him or to proceed to conviction."

The conditional order had been obtained by the prosecutor on the affidavit of Donal Joseph O'Mahony, his solicitor, who stated that the said William McCarthy was arrested on the 5th day of June, 1935, by detective officer Donovan and Guard Duffy. Subsequent to the arrest of the said William McCarthy, sect. 15 of Art. 2a of the Constitution was read to him. Consequent on the reading to him of the said section, and on hearing the alleged meaning of the said section, as stated by detective officer James Moore, the said William McCarthy answered a number of questions. On a date subsequent to his arrest, the said William McCarthy received a notice or order of trial before the Constitution (Special Powers) Tribunal setting out the offences upon which he would be charged at the said trial. Attached to the said notice or order were particulars of the evidence which would be offered in respect of the said offences at the said trial and a copy of a statement alleged to have been tendered as a voluntary statement by the said William McCarthy to detective officer James Moore while the said William McCarthy was detained under Art. 2a of the Constitution. On the 4th July, 1935, the said William McCarthy was brought in custody before the Constitution (Special Powers) Tribunal and charged with the said offences. Counsel on behalf of the said William McCarthy objected to the admission of the statement above referred to, and the Tribunal stated that the said statement, taken as alleged, was not free and voluntary. The only evidence produced against the said William McCarthy was the said statement.

The following were the offences with which the prosecutor was charged:—

First Charge.—statement of offence:—Being members of an unlawful association within the meaning of sect. 19 of Art. 2a of the Constitution, contrary to sect. 20 of said Art. 2a. Particulars of offence:—William McCarthy and Denis Condon on the 4th day of June, 1935, at Glanworth, in the County of Cork, were members of an unlawful association which promoted the commission of offences, namely, the breaking of telegraph wires which were part of the public telegraph system of Saorstát Éireann éireann.

Second Charge.—statement of offence:—Breaking telegraph wires, contrary to sect. 37 of the Malicious Damage Act, 1861.

After the above details of the offences charged, the following statement was added:—

"An Executive Minister has certified in writing under his hand that to the best of his belief the acts, and each of such acts, constituting the said offence, were done with the object of impeding the machinery of Government."

The said William McCarthy was convicted and sentenced by the Tribunal as set out in their order. He was imprisoned in Arbour Hill Detention Barracks, Dublin.

Prior to his trial, a notice was served...