The State (Walsh and Others) v Lennon and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 27 January 1942
• Date: 27 January 1942

The State (Walsh and Others) v. Lennon and Others.

In the Matter of the Application of MICHAEL WALSH AND OTHERS for relief by way of habeas corpus; and in the Matter of THE STATE (at the prosecution of MICHAEL WALSH, GEORGE PLANT, JOSEPH O'CONNOR and PATRICK DAVERN)

and

COMMANDANT MICHAEL LENNON, Governor of Arbour Hill Military Detention Barracks and THE PRESIDENT AND MEMBERS of a Military Court established under the Emergency Powers Orders (1)

High Court

Supreme Court

Constitution - Habeas corpus - 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.

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 established by the Emergency Powers (No. 41 F) Order, 1940, to be tried on a charge of murder, these Orders having been made under the Emergency Powers Act, 1939, and the Emergency Powers (Amendment) (No. 2) Act, 1940. The validity of Order (No. 41 of 1940) and of the said two Acts was established inIn re McGrath and Harte, [1941] I. R. 68, but the validity of Order (No. 41 F of 1941) was challenged on an application by the accused for orders of habeas corpus and prohibition.

It was contended on their behalf that this Order was ultra vires as it directed that the Military Court, which was to try the accused, was to try them together, and so precluded the Court from exercising its discretion and control over its own procedure; further, that all the accused had been

brought before a Special Criminal Court and charged with the said murder, and, after their trials had proceeded for some time, a nolle prosequi had been entered against each of them.

Held by the Supreme Court that, having regard to Art. 28, s. 3, sub-s. 3, of the Constitution and the provisions of s. 2, sub-s. 1, of the Emergency Powers Act, 1939, and of s. 3 of the Emergency Powers (Amendment) (No. 2) Act, 1940, the Order was within the powers conferred and could not be impugned; the argument based on the entering of a nolle prosequibeing unsustainable, as in no case had it been decided that the entering of anolle prosequi by the Attorney-General was a bar to another indictment for the same offence, and it was well established that the discharge of an accused person under a nolle prosequi did not amount to an acquittal, nor had the law in this respect been altered by s. 12 of the Criminal Justice (Administration) Act, 1924.

The Emergency Powers (No. 139) Order, 1941, alters the laws of evidence as to the admission of statements, and allows a Military Court, if it considers it proper that it should not be bound by any rule of evidence, whether statutary or at common law, not to be bound by such rule. It was contended on behalf of the accused that this Order constituted such a fundamental change in the law of evidence as to deprive the Military Court of the attributes of a judicial tribunal, and prevented that Court from carrying out such a trial as was contemplated by s. 3 of the Emergency Powers (Amendment) (No. 2) Act, 1940.

Held by the Supreme Court that this contention was unsustainable as the Military Court could not be deprived of its jurisdiction and the exercise of its powers by reason of alterations in the laws of evidence to be recognised by that Court.

Accordingly the order of the High Court, dismissing the applications of the accused for orders of habeas corpus and prohibition, must be affirmed, and their appeal therefrom dismissed.

Habeas corpus and prohibition.

On the 1st January, 1942, an application was made on behalf of the prosecutors, George Plant, Joseph O'Connor, Michael Walsh and Patrick Davern, to Black J. for a conditional order of habeas corpus, directed to Commandant Lennon, the Military Governor of Arbour Hill Military Detention Barracks, and for a conditional order of prohibition directed to the President and members of a Military Court established by the Emergency Powers Orders, No. 41 of 1940 and No. 41 F of 1941 to prohibit them from hearing, entertaining or proceeding with a charge against the above-named prosecutors for the murder of Michael Devereux on or about the 28th day of September, 1940, in the County of Tipperary.

Black J. granted the conditional order.

George Plant had been sentenced to two years imprisonment on the 23rd of December, 1940. On the 9th November, 1941, he was charged before the Special Criminal Court with the murder of Michael Devereux; the trial began on the 9th December but on the 11th December, counsel on behalf of the Attorney-General entered a nolle prosequi,and he was discharged. On the 31st December, 1941, he was charged before a Military Court with the same offence.

The proceedings against Joseph O'Connor were substantially the same as those in the case of Plant.

Patrick Davern was charged with the murder of Michael Devereux on 10th December, 1941, and the Special Criminal Court fixed the date of his trial for the 6th January, 1942.

Michael Walsh was charged on the 10th December, 1941, with counselling, procuring and commanding Plant to murder Devereux, but on the 18th December counsel for the Attorney-General intimated that it was not intended to proceed with the charge preferred against him, but that he would be charged as a principal in the murder of Devereux.

On the 18th of December, 1941, the Special Criminal Court ordered Walsh to be tried separately from Davern. On the 31st December, 1941, Walsh was charged before a Military Court with the murder of Michael Devereux. On the 5th of January, 1942, Walsh and Davern appeared before the Special Criminal Court but counsel on behalf of the Attorney-General entered a nolle prosequi on all charges. By the Emergency Powers Order (No. 41 F of 1941), dated the 31st December, 1941, the four prosecutors were ordered to be brought before a Military Court established by the Emergency Powers Order, (No. 41 of 1940), and there to be tried together for the murder of Michael Devereux.

By the Emergency Powers (No. 139) Order, 1941, dated the 30th December, 1941, after making provision for the reading of statements made by any person, whether the person making the statement gives evidence or not, it was provided by Art. 5:—"Without prejudice to the particular provisions made by the foregoing Articles of this Order, if, on any occasion during a trial before a Court to which this Order applies, the Court considers it proper that it should not be bound by any rule of evidence, whether statutory or at common law, the Court shall not be bound by such rule." The Order is set out below. (1).

On January 13th the application to make absolute the conditional order was heard.

Cur. adv. vult.

Maguire P.:—

George Plant, Joseph O'Connor, Michael Walsh and Patrick Davern, the prosecutors in this case, are at present detained in Arbour Hill Military Detention Barracks awaiting trial on a charge of murder before a Military Court established under Emergency Powers (No. 41) Order, 1940.

Application is made on their behalf to the Court for an

order of habeas corpus, directed to the Governor of the Detention Barracks in which they are held, and for an order of prohibition, directed to the President and members of the Military Court, before whom it has been ordered by Emergency Order, (No. 41 F of 1941), that they are to be tried.

The right to make application for habeas corpus is based upon the right of the citizen to personal liberty, while the application of the prosecutors for prohibition is based upon their right that they shall not be tried on a criminal charge save in due course of law.

The right to personal liberty is guaranteed by Art. 40, s. 4, sub-s. 1, of the Constitution, while the right to apply to the Court for release from...