The State (Walsh and Others) v Lennon and Others

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