The State (Walsh and Others) v Lennon and Others

JurisdictionIreland
Judgment Date27 January 1942
Date27 January 1942
CourtSupreme Court
(H.C., S.C.),
The State (Walsh and Others)
and
Lennon and Others

Emergency Powers -"Time of war" - Extension of definition by First Amendment of the Constitution - Jurisdiction of High Court in "time of war" to grant order of habeas corpus - Common law right of subject - Whether merged in Constitution -Emergency Powers Orders - Order directing Military Court to try four accused persons together -Whether Order precluded Military Court from exercising control over its own procedure -Validity of Order - Order directing that Military Court should not be bound by any rule of evidence -Validity of Order - Effect of entering a nolle prosequi - No bar to a subsequent indictment for the same offence - Emergency Powers Act, 1939 (No. 28 of 1939), s. 2 - Emergency Powers (Amendment) (No. 2) Act, 1940 (No. 16 of 1940), s. 3 - Emergency Powers (No. 41) Order, 1940 -Emergency Powers (No. 139) Order, 1941 -Emergency Powers (No. 41 F) Order, 1941 -Criminal Justice (Administration) Act, 1924 (No. 44 of 1924), s. 12.

  1. Art. 28, s. 3, sub-s. 3, of the Constitution provides: —"Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in pursuance of any such law." By the First Amendment of the Constitution Act, 1939, this sub-section of Art. 28 was amended by the addition at the end of the sub-section of the following words: —"In this sub-section 'time of war' includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State." Each of the Houses of the Oireachtas passed a resolution in the terms of the foregoing sub-section, so that a "time of war" existed within the meaning of the sub-section and accordingly the sub-section became operative. Held by the Supreme Court that an application for an order of habeas corpus could be entertained by the High Court and, on appeal, by the Supreme Court, where it appeared that the applicant was detained pursuant to a law to which the said sub-section applied. By the Emergency Powers (No. 41 F) Order, 1941, four accused persons were ordered to be brought before a Military Court...

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6 cases
  • XY v Clinical Director of St Patricks University Hospital and Another
    • Ireland
    • High Court
    • 8 d5 Junho d5 2012
    ...3 IR 328 2008 2 ILRM 114 2008/14/2866 2008 IEHC 5 COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)(A) WALSH & ORS, STATE v LENNON & ORS 1942 IR 112 ZWANN & ORS, IN RE 1981 IR 395 1981 ILRM 333 1981/12/2305 R LTD, IN RE 1989 IR 126 1989 ILRM 757 1989/8/2304 X (D) v JUDGE BUTTIMER UNREP......
  • Frank Ward v DPP and Judge Connellan
    • Ireland
    • High Court
    • 15 d3 Junho d3 2005
    ...EVIDENCE & PRACTICE 2002 CONLON v KELLY & DPP & SMYTH 2002 1 IR 10 2001 2 ILRM 198 WALSH CRIMINAL PROCEDURE 2002 737 WALSH, STATE v LENNON 1942 IR 112 AG, PEOPLE v WALSH 1 FREWEN 363 O'CONNELL, STATE v FAWSITT 1986 IR 362 F (B) v DPP 2001 1 IR 656 P (P) v DPP 2000 1 IR 403 C (P) v DPP 1......
  • X (R ) Q M A & C X M v Minister for Justice and Others
    • Ireland
    • High Court
    • 10 d5 Dezembro d5 2010
    ...1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71 EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1) WALSH & ORS, STATE v LENNON & ORS 1942 IR 112 CONSTITUTION ART 29.6 MCD (J) v L (P) & M (B) 2010 1 ILRM 461 2009/34/8411 2009 IESC 81 CONSTITUTION ART 41 CONSTITUTION ART 41.3.1 FERRITER JUD......
  • Minister for Home Affairs, Malaysia and Others; Yeap Hock Seng @ Ah Seng
    • Malaysia
    • High Court (Malaysia)
    • 1 d3 Janeiro d3 1975
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2 books & journal articles
  • Selectivity in prosecution in the district court
    • Ireland
    • Irish Judicial Studies Journal No. 2-9, July 2009
    • 1 d3 Julho d3 2009
    ...Criminal Court [1982] I.L.R.M. 284. 79 O’Malley, The Criminal Process , ch. 12 para. 12.3.6 at n. 128; The State (Walsh) v. Lennon [1942] I.R. 112. 80 O’Malley, The Criminal Process , ch. 12 para 12.37. 81 In Aidan Reade and Judge Reilly and the D.P.P. (Supreme Court, unreported, Macken J.,......
  • George Gavan Duffy
    • Ireland
    • Irish Judicial Studies Journal No. 2-2, July 2002
    • 1 d1 Julho d1 2002
    ...70-71. 22[1940] I.R. 136. 23Golding, George Gavan Duffy 1882-1951 : A Legal Biography, p. 109-115. 24[1941] I.R. 83. 25[1941] I.R. 68. 26[1942] I.R. 112. 21 Judicial Studies Institute Journal and ultimately no less than four of the plaintiffs were executed by de Valera’s government. The pos......

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