The Gazette 1973

validity of the orders made were challenged on two grounds (1) that there was no evidence before District Jstice Breathnach which would entitle him to conclude that the youth was of unruly character and (2) that sine there was no place under the Act for the detention on last November 16th, the district justice could not on that date validly certify that he was of so unruly charac- ter that he could not be detained in such a place. Section 102 (3) of the Children's Act, said Mr. Justice Finlay, provided that a young person shall not be sentenced to imprisonment for an offence or com- mitted to prison in default of payment of a fine, damages or costs unless the Court certified that the young person was of so unruly a character that he could not be detained in a place of detention provided under that part of the Act, or that he was of so de- praved a character that he was not a fit person to be so detained. Mr. Justice Finlay said he was not concerned with the weight of evidence on which the District Justice decided that the youth was of unruly character, nor with the correctness of that decision. He could only be concerned with the question : "Was there any evidence before him on which he could reach such a decision?" He took the view that the nature of the crimes was of itself some evidence on which such a decision could be reached. It was probable, though he did not need expressly so to decide, that District Justice Breathnach was, in addition, entitled to rely on the certificate previously issued by District Justice Kennedy. He there- fore rejected the argument that the order was bad for a total want of evidence of the character of the appli- cant. If, however, the certificate issued by the District Justice required any consideration of the character of the applicant related to a specific place of detention, it seemed to him impossible for the district justice to have reached a judicial decision on that issue when no such place of detention existed. In the circumstances he held that the District Justice could not decide, and therefore could not validly certify, that the applicant was of so unruly a character that he could not with safety, or as a practical matter, be detained in a place of detention provided under the Act. "In short, my decision is that it is impossible to certify that a person by reason of the nature of his character, is incapable of being detained in a specified place when no such place exists," he said. The youth was allowed his costs. (The Irish Times, 13 January 1973.) [The State (Hanley) v. District Justice Breathnach and Governor of Mountjoy (Finlay J.); unreported; 12 January 1973.] £400 damages for wrongful arrest—Solicitor held for five weeks. A Belfast solicitor, Mr. Oliver J. Kelly (26) was awarded £400 damages in the Ulster High Court on Thursday for wrongful arrest and false imprisonment. The award was made against Mr. Brian Faulkner, former Premier, who was at that time also Minister of Home Affairs; against the Ministry of Home Affairs; the Police Authority; the Chief Constable of the R.U.C., Sir Graham Shillington; and against the British Minis- try of Defence. The decision will affect many other similar cases, and there are at least 400 claims for damages and false arrest and wrongful imprisonment which could come before the courts.

Thursday's award to Mr. Kelly was made by Mr. Justice Gibson, as compensation for the period of five weeks during which the applicant was detained in Crumlin Road prison. The judge rejected Mr. Kelly's claim for damages for his subsequent internment from September 14th, 1971, giving his opinion that the internment was law- ful. Mr. Justice Gibson granted a stay of execution of the order for payment of compensation for the Crumlin Road prison detention for six weeks, to enable the Crown to consider an appeal. Holding that the internment from September 14th, 1971, was lawful, as all the objections raised to the validity of the internment order were without subs- tance, the judge said that the applicant's remedy against the defendants lay in damages for his arrest and un- lawful detention in Crumlin Road prison for about five weeks. Mr. Kelly had clajmed damages—examplary damages —on the grounds that the conduct of the defendants, being servants of the Crown, was oppressive, arbitrary, or unconstitutional. The judge, however, said that he thought it appro- priate to award exemplary damages against persons filling public positions only where they had acted, not just illegally, but also deliberately or recklessly or with malice. In his opinion, exemplary damages ought to be re- served to punish the "insolence of office." In the present case, however, the judge held that the illegality consisted in the defendants failing to specify the regulation or the suspicion which impelled the arrest. Each arresting officer had acted successively in good faith and without any conscious or obvious in- fringement of the plaintiff's rights, or of the law. Mr. Justice Gibson said that the arrest of a citizen without a warrant was a matter which excited the anxious scrutiny of courts at any time, and perhaps particularly so when it was claimed to have been done under legislation conferring such wide-ranging powers. It did not follow, however, that the unusual character of the jurisdiction under which the arrest was made involved the award of exemplary damages on any basis which would not be justified where less fundamental rights were involved, or in which a more normal pro- cedure had been overstepped. He therefore rejected the claim for exemplary damages. The judge said that Mr. Kelly had not suffered any fiancial loss during the five weeks of unlawful cap- tivity and his studies were not seriously impeded, judging by the fact that later, while still in custody, he was enabled to sit for his final professional examina- tions as a solicitor, which he passed. The judge said that, accepting that there were grounds upon which Mr. Kelly could have been validly arrested, it followed that there was no reason for think- ing that he was confined in the company of people whose political views were inimical to his own, and, indeed, he had not claimed any particular source of distress on that account. On the other hand, Mr. Justice Gibson went on, he was taking into account the fact that Mr. Kelly had been arrested in the middle of the night, the vexation and perhaps humiliation of the circumstances of his arrest in the presence of his recently reunited family, and the interrogation and the frustration and depriva- (continued on page 36) 32