The Gazette 1976

NOVEMBER 1976

GAZETTE

John Boyle O'Reilly spent a year on a road gang in Bunbury in Western Australia in 1868. He left, or rather absconded, in early 1869 but h= brought with him a fond memory of Australia and of the bright reign that it would have in the coming years-

ject to the pre-condition that the accused would have to surrender himself in custody to the security forces of Northern Ireland. If he were a fugitive from that jurisdiction this is a "right" that he might be loathe to exercise. Should he waive the right to be present either personally or through solicitor and counsel, nevertheless, the evidence can be taken and may be admitted in evidence before the Court when it returns to resume its proceedings within the juried : ction. Chief Justice O'Higgins, delivering the judgment of the Court, posed the question: "Does the fact that he can be present only whilst in custody frustrate the exercise of that right?" He answered: "If all the evidence of his trial were to be given at the trial his freedom of movement would in any event be restricted because he would be in the custody of the Court. That he should also be in custody when it is nece r sary for part of the evidence to be taken outside the State in his presence seems to be a reasonable compromise. Does the fact that in order to exercise his right he is obbged to go to Northern Ireland and put himself beyond the protection of the State in itself constitute too high a price to pay for the exercise of that right? It cannot be overlooked that he is to be in the custody and therefore under the protection of the police of Northern Ireland, and that he is guar- anteed immunity from detention or legal process while so there. As in any event, his sobcitor or counsel may represent him, the Court is of the opinion that in this respect the provis ; ons of this section do not offend the provis ; ons of the Constitution and are not repug- nant thereto in the manner submitted". This brief review, therefore, will demonstrate that for the past 10 to 15 years we have had a period of judicial dynamism. Compared with the inertia that had often surrounded the courts prior to that in this re- gard we appeared at times to be on a forensic roller- coaster. There has been a retreat in other parts of the world from this particular type of dynamism. The question has been asked: Do we have the same trend here? When you are in the arena, you know the state of play but there is hardly time to ask the category to which the particular match conforms. However, if I were to guess I would say there is a judicial drawing of breath before an attempt is made to scale further heights. Perhaps, that, in itself, is no bad thing. There are always protagonists for both sides. As Lord Devlin has said recently:- "There is always a host of new ideas galloping around the outskirts of a society's thought. All of them seek admiss'on but each must first win its spurs; the law at first resists, but will sub- mit to a conquerer and become his servant. In a changing society (and free societies that are com- pcred of two or more generations are always changing because it is their nature to do so) the law acts as a valve. New policies must gather strength before they can force an entry; when they are admitted and absorbed into the consensus, the legal system should expand to hold them, as also it should contract to squeeze out old policies which have lost the consensus they once ob- tained".-" I hope that you will not think us too chauvinistic in claim ; ng strong links of history and a common legal system with you. Many of those who took part in the 1848 rebellion made their way, by accident or de- sign to Australia.

16. (1972) I.R. 416 17. Prosecution of Offences Act 1974 (No. 22 of 1974). There have only been 22 appeals from the Court of Criminal Appeal to the Supreme Court; see Mr. Justice Walsh's review of them all in The People (Attorney General) v. Giles (1974) I.R. 422. 18. (1975) I.R. 1. 19. (1974) 1 All E.R. 87. 20. Purtill v. Athlorue UDC (1968) I.R. 205. 21. Donovan v. Landy''s Ltd. (1963) I.R. 441. 22. (1965) I.R. 642. 23. Ibid at 652. 24. The State (Browne) v. Fearon (1967) I.R. 147. 25. (1953) I.R. 33. 26. Report to the Secretary of State for the Home Depart- ment of the Departmental Committee on Evidence of Identification in Criminal Cases, H.C. April, 26, 1976. Sec Dr. Glanville Williams's critique of the Report: Evidence of Identification : The Devlin Report (1976) Criminal Law Review 407. 27. (1966) I.R. 501. 28. e.g.. Burns v. Irish Fibres Ltd. (1967) I I TR 172; Sexton v. O'Keeffe (1966) I.R. 204; O'Leary v. O'Connell (1968) I.R. 1949. In contrast to the English position illustrated in Mitchell v. Mulholland (1972) 1 Q.B. 65 C.A. 29. O'Leary v. O'Connell (1968) I.R. 149 per Mr. Justice Walsh at p. 156. 30. Hurley v. Imokilly Co-Operative Limited (Supreme Court; 29th March, 1973 — unreported). 31. Mairin. de Burca v. Attorney General (unreported). 32. Juries Act, 1976 (no. 4 of 1976). 33. The State (Quinn) v. Ryan 1965 I.R. 70. 34. McDonald v. Bord na gCon (1965) I.R. 217 and East Donegal Co-Operative v. Attorney General (1970) 317. 35. Foreward in Dr. Leo Kohn's The Constitution of the Irish Free State (London 1932). See essay "The Courts and the Constitution in Catholic Ireland" in Judicial Review by Edward McWhinney (University of Toronto Press 4th Ed. 1968). 36. Buckley and others (Sinn Fein) v. Attorney General and another (1950) I.R. 67. 37. Buckley and others v. Attorney-General — (1950) I.R. 67. General (1974) I.R. 284. 41. See Vol. VIII "The Irish Jurist" (University College Dublin). 42. 1974 I.R. 284 at 310. 43. (1971) I.R. 217. 44. The President is largely an honorary office. The two powers that he can exercise in his absolute discretion are the power to refer Bills to the Supreme Court, dis- cussed above and the right to refuse to dissolve the Dail (House of Representatives) at the request of Prime Minister who has ceased to retain a parliamentary majority. 46. The single judgment rule applies also where the validity of a law having regard to the provisions of the Con- stitution is challenged in the Courts in the ordinary way. Article 34 4. 5°. This applies only to legislation enacted since the Constitution came into force; with regard to pre-constitution legislation there is no such restriction; see, for example The State (Quin.n) v. Ryan (1965) I.R. 70. 47. (1965) I.R. 70 at 127. 38. Byrne v. Ireland — (1972) I.R. 241. 39. O'Brien v. Keogh (1972) I.R. 144. 40. McGee v. Attorney

48. (1940) .I.R. 470. 49. (1942) I.R. 334. 50. (1961) I.R. 169.

51. Judgment delivered 6th May, 1976; as yet unreported. 52. Judgment delivered 15th October 1976, as yet unreported

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