The Gazette 1976

AUGUST 1976

investigation in the District Court. This procedure may also he adopted in the case of a non-scheduled offence, if the Attorney General certifies that the circumstances warrant it. If the accused does not appear after notice before the Special Criminal Court, that Court may issue a warrant for his arrest. (6) By S.46, if an accused has been sent forward by a District Justice, to the Circuit or Central Criminal Court, and the Attorney General issues a certificate that the ordinary Courts are inadequate to secure the administration of justice and the maintenance of order in his case, then the Attorney General may apply to the High Court for an order that the trial of the accused he transferred to the Special Criminal Court. A copy of the High Court Order shall he served on the accused and the County Registrar. The accused shall then lie brought before the Special Criminal Court at the designated time. It follows that even if this contested Bill were enacted, it cannot confer on the Special Criminal Court any new jurisdiction to try any offence. Before any such offence could come within the purview of the Special Criminal Court, it would he necessary either for the Government to declare under S.36 of the 1939 Act that such offence is a scheduled offence, or in a special case relating to the trial of a particular person, for the Attorney General to certify that the ordinary Courts are in- adequate to try such offence. The Supreme Court has an obligation to he alert in upholding constitutional rights, and must determine wheher, in enacting this 1975 Bill, it would create any special offence triable by a Special Court as a result of an action by the Government or the Attorney General. The pre-condition for the Government to schedule an offence, or for the Attorney General to issue a Certifi- cate is that, for the specified offence or for the particular trial to he effective that the Courts are inadequate to secure the maintenance of order and peace. Many factors could go to the formulation of such an opinion, such as a general state of unrest within the State, or the nature of the crime alleged. There appears to he no justification for singling out any of these factors, and then asserting that, because the acts which constitute an offence were committed outside the State, that no such declaration or certi- ficate could be issued. It follows that contention No. (1) based on this ground is unsustainable. In Re McCurtain — (1941) I.R. 83 — decided that it was constitutional for the Oireachtas to have provided in the 1939 Act that the question of the inadequacy of the ordinary Courts he decided by a Proclamation of the Government or by a Certificate of the Attorney General. The Court does not decide in what circum- stances it would he entitled to review any such Pro- clamation or Certificate. The question of opinion whether the ordinary Courts were inadequate to secure the maintenance of order would he appropriate is not the correct one. The test must be whether it would he impossible to envisage any case of an offence against the Bill in which that opinion, if formed, would be justified and appropriate. It is quite clear that if an organisation within the State were engaged in intimidating jurymen and were tried here for acts committed either within or outside the State, such an opinion could properly he formed. Note:- In the State (Burke) v. Lennon (1940) I.R. 147, Gavan Duffy J. held that only a Judge could be satisfied whether certain steps could be taken, as this term involved a judicial determination strictly limited to judicial power. Clause 10 of the abortive Sunningdale Agreement

the offences bear upon the peace, order and good government of the Legislative State. The Court has no doubt that the offences described in the Schedule to this Bill, which include murder, manslaughter, arson, kidnapping, false imprisonment, malicious damage, robbery and offences in connection with explosives firearms and the unlawful seizure of aircraft and vehi- cles, bear upon the peace, order and good government of the State, particularly as they are committed within the "national territory" as defined by Article 2 of the Constitution. I l l Repugnancy with Article 38 of the Constitution It is asserted that the Bill confers jurisdiction on the Special Criminal Court to try the scheduled offences. This is alleged to be repugnant to the Con- stitution on one of these two grounds'.- (i) That, if the constituent acts of an offence are committed outside the State, no such offence could affect the administration of justice or the preservation of public peace and order within the Sate. (ii) In the alternative, if this statement in (i) were not correct, it is still possible to envisage circumstances surrounding the commission of particular offences under the Bill, which would render these incapable of affecting the administration of justice or preservation of public peace and order within the State. Article 38 (3) of the Constitution provides for the establishment of Special Courts if it is determined that the ordinary Courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order. Under S.35 of the Offences Against the State Act 1939, the CGovernment can make a proclamation declaring the existence of such state of affairs, and can then set up a Special Criminal Court under Part V of the 1939 Act. This Special Criminal Court, when established, is only entitled to try offences set out in Sections 36, 37, 45, 46, 47 and 48 of the Act. These offences are:- (1) S.36 enables the Government to declare any offence of any particular class a scheduled offence, provided they are satisfied that the ordinary Courts arc inadequate to secure the effective administration of justice. The Government must be equally satisfied that the ordinary Courts are so effective, in order to alter any declaration in relation to any scheduled offence. (2) By S.37, attempting, or conspiring, or inciting to commit, or aiding, and abetting a scheduled offence, shall he deemed itself to he a scheduled offence. (3) S. 45 relates to the procedure in the District Court in relation to scheduled offences. If a person charged with a scheduled offence is brought before the District Court, and the Attorney General so requests, that person will he sent forward for trial to the Special Criminal Court. In the case of an indictable scheduled offence, at the request of the Attorney, the accused will be sent forward to the Special Criminal Court. Pending the hearing by the Special Criminal Court, the High Court may grant hail to the accused. (4) By S. 46, if an accused is brought before a District Justice charged with a non-scheduled offence, and the Attorney-General produces a written Certificate to the effect that the ordinary Courts are inadequate to securc the administration of justice, and the preservation of public order, then the Justice shall send forward the accused in custody, or by consent, on bail, to the Special Criminal Court. (5) By S.47 if it is intended to charge a person with a scheduled offence, the Attorney General may direct that such a person shall he brought forward direct to the Special Criminal Court without any preliminary

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