The State (O) v O'Brien

• Jurisdiction: Ireland
• Judgment Date: 20 December 1973
• Date: 20 December 1973
• Docket Number: [1968. No. 32 SS.]
• Court: Supreme Court

Supreme Court

[1968. No. 32 SS.]

The State (O.) v. O'Brien

THE STATE (At the Prosecution of O.)

and

EVELEEN O'BRIEN

Constitution - Statute - Validity - Youthful offender convicted of murder - Sentence - Detention during pleasure of Government - Selection of punishment part of administration of justice - Judicial function - Habeas corpus - Children Act, 1908 (8 Edw. 7, c. 67), ss. 103, 131, 133 - Constitution of Ireland, 1937, Articles 6, 13, 34, 49, 50.

Habeas Corpus.

The respondent was the governor of the Central Mental Hospital. On the 17th April, 1956, the prosecutor was arraigned in the Central Criminal Court on an indictment for murder, to which he pleaded not guilty. On the 19th April the jury returned a verdict of guilty and the trial judge sentenced the prosecutor "to be detained until the pleasure of the Government be made known concerning him." The trial judge refused an application for a certificate giving leave to appeal. On the same day the court issued its warrant which authorised the superintendent of Marlborough House, a remand home for juveniles, to receive the prosecutor and detain him. On the date of his conviction and sentence the prosecutor was under the age of 17 years and was a "young person" within the meaning of ss. 103 and 131 of the Children Act, 1908, as amended by s. 29 of the Children Act, 1941.

Section 103 of the Act of 1908 states that:— "Sentence of death shall not be pronounced on or recorded against a child or young person, but in lieu thereof the court shall sentence the child or young person to be detained during His Majesty's pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and on such conditions as the Chief Secretary may direct, and whilst so detained shall be deemed to be in legal custody." Section 133 of the Act of 1908 provides that, in its application to Ireland, the Chief Secretary shall be substituted for the Secretary of State and that "the powers which may be exercised by His Majesty may be exercised as to Ireland by the Lord Lieutenant." Sections 1 and 2 of the Offences against the Person Act, 1861, provided that a person convicted of murder should suffer death as a felon, and that upon every conviction for murder the court shall pronounce sentence of death and that the same may be carried into execution. Section 1 of the Criminal Justice Act, 1964, states that a person shall not be liable to suffer death for any offence other than treason and capital murder; and s. 2 of the Act of 1964 enacts that a person who, apart from that Act, would be liable to suffer death, shall be liable to penal servitude for life. By s. 5 of the Act of 1964, ss. 1 and 2 of the Act of 1861 were amended by the substitution of "capital murder" for "murder."

On the 2nd May, 1956, the Minister for Justice made an order which was stated to be made pursuant to s. 17(3) of the Criminal Justice Administration Act, 1914, and to every other power him enabling and which, having recited that the prosecutor had attained the age of 17 years, directed that he should be removed to Mountjoy Prison and detained there until further order. On the 15th May, 1956, the Minister for Justice made an order which was stated to be made pursuant to s. 3 of the Prevention of Crime Act, 1908, and which directed that the prosecutor be removed to St. Patrick's, Clonmel (a Borstal institution). On the 14th August, 1956, the Minister for Justice made an order which was stated to be made pursuant to s. 17 of the Act of 1914 as amended by s. 43 of that Act and as adapted by s. 11 of the Adaptation of Enactments Act, 1922, which order directed that the prosecutor be removed to the modified Borstal class at Mountjoy Prison. On the 11th July, 1957, the Minister for Justice made an order which was stated to be made pursuant to the Criminal Lunatics (Ireland) Act, 1838, and the Act of 1922 and every other power him enabling, and which recited that it had been certified that the prosecutor was being detained in custody in the Borstal section of Mountjoy Prison "under sentence of imprisonment", and which recited that two doctors by a certificate dated the 8th July, 1957, had certified that the prosecutor had become insane; this order directed that the prosecutor be removed into the custody of the governor of the Central Asylum, Dundrum (later named the Central Mental Hospital) to be detained there until he should be either remitted to the Borstal section of Mountjoy Prison or discharged by order of the Minister for Justice for the time being.

On the 29th January, 1968, the prosecutor was still in the custody of the governor of the Central Mental Hospital when, on that date, he wrote to the High Court claiming that his detention was unlawful and seeking an order of habeas corpus for his release. After examining the warrant and the other orders mentioned supra, the High Court made an order on the 15th February, 1968, refusing the application made in the letter of the 29th January. During the following months of 1968 the prosecutor conducted further correspondence with the High Court. On the 17th December, 1968, he applied in person to the Court of Criminal Appeal (pursuant to notices dated the 17th October) for an enlargement of the period allowed for applying for leave to appeal against his conviction and sentence of the 19th April, 1956, and also for such leave to appeal. The Court of Criminal Appeal, having heard the prosecutor and counsel for the Attorney General, refused the application for the enlargement of such period and that court also refused to certify pursuant to s. 29 of the Courts of Justice Act, 1924, that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. As a result of further correspondence with the prosecutor a letter dated the 16th June, 1969, was sent to him from the High Court informing him that his recent correspondence had not disclosed any new grounds for an order of habeas corpus.

By letter of the 17th June, 1969, the prosecutor made a further application to the High Court for an order of habeas corpus and that court on the 15th July made an order in open court refusing the application and ruling that the prosecutor's attendance in court was not necessary. On the 17th November the prosecutor appealed, ex parteand in person, to the Supreme Court from the order of the 15th July and the hearing of the appeal commenced on the 17th November but was adjourned on that day to enable notice of the appeal to be given to the Attorney General and to the governor of the Central Mental Hospital. The hearing of that appeal was resumed on the 21st November in the presence of the prosecutor and of counsel for the Attorney General and for the said governor and, after argument, was adjourned to the 5th December when the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh, Budd, FitzGerald and McLoughlin JJ.) made an order pursuant to Article 40 of the Constitution of Ireland, 1937, calling upon the governor of the Central Mental Hospital to produce the body of the prosecutor before the High Court at 11 o'clock on the 15th December and to certify in writing to the High Court the grounds of the prosecutor's detention. The order of the Supreme Court made on the 5th December specified the grounds of appeal, which had been advanced by the prosecutor, as follows:— "That the sentence imposed upon the prosecutor (s. 3 of the Children Act, 1908) is unconstitutional for the following reasons: (a) it is contrary to the constitutional maxim that all citizens are equal under the law; (b) no terminal date is fixed; (c) the nature and duration of the sentence to be undergone is determined by the executive and not by a judicial authority." By a certificate dated the 12th December the governor of the Central Mental Hospital certified in writing the grounds of the prosecutor's detention by summarising the contents of, and exhibiting, the order of the Minister for Justice dated the 11th July, 1957, and the warrant dated the 19th April, 1956, of the Central Criminal Court. The prosecutor was duly produced before the High Court on the 15th December, 1969, and the issue was argued before O'Keeffe P. on the 7th, 10th and 17th April, 1970.

By its order of the 27th April, 1970, the High Court directed that the prosecutor be released from detention forthwith; on the next day, after the order had been served on the respondent, the prosecutor was released from detention. The respondent appealed to the Supreme Court from the judgment and order of the High Court.

Section 103 of the Children Act, 1908, provides that a sentence of death shall not be pronounced against a young person but that in lieu thereof the court shall sentence the young person to be detained"during His Majesty's pleasure" and that, if so sentenced, the young person shall be detained in such place and on such conditions as the Chief Secretary may direct and that, while so detained, the young person shall be deemed to be in legal custody. Section 133 of the Act of 1908 provides that the powers which may be exercised by"His Majesty" may be exercised as to Ireland by the Lord Lieutenant.

In the year 1956 the prosecutor, being a "young person" within the Act of 1908, was convicted on indictment for murder and was sentenced to be detained "until the pleasure of the Government be made known." In 1957 he was certified to be insane and thereafter he was detained in the Central Mental Hospital. In 1969 the prosecutor applied to the High Court for an order of habeas corpus.

Held by O'Keeffe P., in directing the release of the prosecutor, that the power to select punishment was an integral part of the administration of justice in criminal cases and that the phrase"during His Majesty's pleasure" in s. 103 (as adapted by s. 133) of the Act of 1908, by purporting...