Tormey v Ireland

 
FREE EXCERPT

1985 WJSC-SC 1565

The Supreme Court

Henchy J.

Griffin J.

McCarthy J.

Barrington J.

Carroll J.

No. 1760P./1982
(191/84)
TORMEY v. IRELAND
Philip Tormey
v.
Ireland and the Attorney General

Citations:

CONSTITUTION ART 26

CONSTITUTION ART 34

CONSTITUTION ART 34.2

CONSTITUTION ART 34.2.1

CONSTITUTION ART 34.3.1

CONSTITUTION ART 34.3.3

CONSTITUTION ART 34.3.4

CONSTITUTION ART 34.4.6

CONSTITUTION ART 36

CONSTITUTION ART 37

CONSTITUTION ART 38.2

CONSTITUTION ART 38.4.1

CONSTITUTION ART 38.5

CONSTITUTION ART 40.1

COURTS ACT 1964 S6

COURTS ACT 1981 S31

COURTS ACT 1981 S31(1)

COURTS ACT 1981 S32(1)

COURTS OF JUSTICE ACT 1924

COURTS OF JUSTICE ACT 1924 S54

CRIMINAL PROCEDURE ACT 1967 S8

FINANCE ACT 1963 S34(8)

LARCENY ACT 1916 S20(1)(iv)(a)

OFFENCES AGAINST THE STATE ACT 1939

Synopsis:

CONSTITUTION

Statute

Validity — High Court — Jurisdiction — Whether diminished — Enactment conferring jurisdiction, in respect of specified subject, on court of limited jurisdiction — Criminal law — Trial — Venue — Indictable offence — Accused sent forward for trial in Circuit Court — Former right of accused to obtain order transferring trial to High Court - Abolition of that right — Whether lawful exclusion of High Court jurisdiction — Courts Act, 1981, s. 32 — (191/84 - Supreme Court - 16/5/85).

Tormey v. Ireland

CRIMINAL LAW

Trial

Venue — Indictable offence — Accused sent forward for trial in Circuit Court — Former right of accused to obtain order transferring trial to High Court - Abolition of that right — Whether lawful exclusion of High Court jurisdiction — Courts Act, 1981, s. 32 — (191/84 - Supreme Court - 16/5/85).

Tormey v. Ireland

HIGH COURT

Jurisdiction

Limits — Constitution — Courts of limited jurisdiction — Enactment conferring jurisdiction, in respect of specified subject, on court of limited jurisdiction — Criminal law — Trial — Venue — Indictable offence — Accused sent forward for trial in Circuit Court — Former right of accused to obtain order transferring trial to High Court - Abolition of that right — Whether lawful exclusion of High Court jurisdiction — Courts Act, 1981, s. 32 — (191/84 - Supreme Court - 16/5/85).

Tormey v. Ireland

CONSTITUTION

Statute

Validity — High Court — Jurisdiction — Whether diminished — Enactment conferring jurisdiction, in respect of specified subject, on court of limited jurisdiction — Criminal law — Trial — Venue — Indictable offence — Accused sent forward for trial in Circuit Court — Former right of accused to obtain order transferring trial to High Court - Abolition of that right — Whether lawful exclusion of High Court jurisdiction — Courts Act, 1981, s. 32 — (191/84 - Supreme Court - 16/5/85).

Tormey v. Ireland

CRIMINAL LAW

Trial

Venue — Indictable offence — Accused sent forward for trial in Circuit Court — Former right of accused to obtain order transferring trial to High Court - Abolition of that right — Whether lawful exclusion of High Court jurisdiction — Courts Act, 1981, s. 32 — (191/84 - Supreme Court - 16/5/85).

Tormey v. Ireland

HIGH COURT

Jurisdiction

Limits — Constitution — Courts of limited jurisdiction — Enactment conferring jurisdiction, in respect of specified subject, on court of limited jurisdiction — Criminal law — Trial — Venue — Indictable offence — Accused sent forward for trial in Circuit Court — Former right of accused to obtain order transferring trial to High Court - Abolition of that right — Whether lawful exclusion of High Court jurisdiction — Courts Act, 1981, s. 32 — (191/84 - Supreme Court - 16/5/85).

Tormey v. Ireland

1

Judgment of the Court delivered the 16th day of May 1985 by Henchy J.

2

The plaintiff has been sent forward for trial to the Dublin Circuit Court on a charge of having fraudulently converted to his own use a cheque for "9,376, contrary to s. 20(1)(iv)(a) of the Larceny Act, 1916. The result of the order of the District Court sending him forward is that his trial must take place in the Dublin Circuit Court, for, as the law now stands, he has no right to have his trial transferred to the Central Criminal Court (which is the name given by statute to the High Court when exercising such criminal jurisdiction). The nub of his complaint in the present proceedings is that the imposition on him of a trial in the Circuit Court, while withholding from him right to a trial in the High Court, is an unconstitutionality.

3

The offence with which the plaintiff stands charged is clearly not a minor offence within the meaning of Art. 38.2 of the Constitution. It therefore could not be tried summarily. In compliance with Art. 38.5 it must be tried with a jury.

4

The order of the District Court sending the plaintiff forward for trial by jury in the Dublin Circuit Court was made under s. 8 of the Criminal Procedure Act, 1967, after a preliminary investigation of the offence charged. The validity of that order has not been impugned in any way.

5

On the passing of the Courts of Justice Act, 1924, a person sent forward for trial to the Circuit Court was entitled, in a specified class of cases and in specified circumstances, to have his trial transferred to the Central Criminal Court. The right of transfer was held to have been given by s. 54 of the Courts of Justice Act, 1924, which provided that "the Attorney General or the accused person shall be entitled on application to have any case, the maximum penalty in which exceeds one year's imprisonment or five years” penal servitude, sent forward to ..... the Central Criminal Court." That section was construed as giving an irrebuttable right to a transfer, but only in cases of the gravity specified.

6

S. 54 of the 1924 Act remained (apart from the special cases governed by s. 34(8) of the Finance Act, 1963) the only vehicle of transfer until it was repealed by s. 6 of the Courts Act, 1964. That section gave a new right of transfer and extended it to all cases where a person had been sent forward for trial to the Circuit Court. That right of transfer was given to both the Attorney General and the accused, and it was provided that the application for a transfer was to be granted by the relevant judge of the Circuit Court if the party making the application, not less than seven days before making it, notified the accused or the Attorney General, as the case might be, of the application. In any other case, the grant or refusal of the application was to be in the discretion of the judge and his decision was made unappealable. If there were less than seven days between the date on which the accused was sent forward for trial and the date of the commencement of the trial, it was provided that the application was to be granted.

7

S. 6 of the 1964 Act was the sole vehicle of transfer until it was repealed by the Courts Act, 1981. The present right of transfer is contained in s. 31 of the latter Act. The effect of the provisions of s.31 and of the repeal of s. 6 of the 1964 Act is to abolish completely the right of transfer to the Central Criminal Court. Instead, where a person is sent forward for trial to the Circuit Court sitting other than within the Dublin Circuit, provision is...

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