The Gazette 1976

January-February 1976

GAZETTE

other than one for which he has been indicted. The accused seeks leave to appeal against his conviction in the Special Criminal Court for an assault with intent to rob; he had not been charged with this offence in the indictment, but with rob- bery with aggravation contrary to S.23 of the Larceny Act 1916. He was acquitted on this count, but S.44 (1) of the Larceny Act 1916 was invoked to convict him of assault with intent to rob. The accused contends (1) that the Court had no jurisdiction to invoke S.44(l), and (2) that certain finger- print evidence which was the main foundation of the conviction, was an inadequate identification of the applicant. Although robbery is not a scheduled offence under Part V of the Offences against the State Act 1939, the Attorney General had certified under S.47(2) of that Act that the ordinary Courts were in- adequate to secure the effective administration of justice in rela- tion to the trial of the applicant, and accordingly the Special Criminal Court was sanctioned to try the accused. The net point is whether the alternative verdict of guilty allowed by S.44(l) of the Larceny Act 1916, can be said to be (1) part of the practice and procedure of the Central Criminal Court, or (2) whether it is a matter of jurisdic- tion, in which case the Special Criminal Court would have no power to bring in such a verdict. In The State (OTlaherty) v. OTloinn — (1954) I.R. 295 — the following broad definition of "practice and procedure" was given by Kingsmill Moore J.: "the manner in which, or the machinery whereby effect is given to a sub- stantive power which is either conferred on a Court by Statute or inherent in its jurisdiction". The prosecution is required by S.41(4) of the Offences against the State Act 1939 to follow as far as prac- ticable the same procedure as the Central Criminal Court. It is clear that S.41(4) is the machinery to enable a trial before the Special Criminal Court (including prelimi- nary interlocutory and consequen- tial matters) to proceed along known lines to a verdict of guilty or not guilty, including the form of indictments, the documents to be served, the procedure for secur- ing attendance in Court, and the manner in which evidence is to be taken. However, the substantive jurisdiction is contained in S.43(l)

of the Larceny Act 1916, which cannot be construed as part of the practice and procedure of the Central Criminal Court. As part of the determination itself, it is a matter of jurisdiction. S.41 of the Offences against the State Act 1939 does not endow the Special Criminal Court with a jurisdiction to convict the accused of an offence other than one for which he has been indicted. Accordingly the appeal is allowed, both as to conviction and sentence, which are quashed, and the accused is dis- charged. People (D.P.P.) v. James Rice — Court of Criminal Appeal (Henchy, Murnaghan and McMahon JJ.) per Henchy J. — unreported — 12th November, 1975. It is for the Special Criminal Court to decide on the evidence whether claims of privilege should be enter- tained, and whether the opinion of Garda Superintendent as to mem- bership of an illegal organisation is justified. The accused, a vocational teacher in Co. Meath, was convicted of membership of an illegal organis- ation, and sentenced to 12 months imprisonment by the Special Criminal Court. The appeal was taken on the grounds (1) whether the claim of privilege put forward and sustained by the Court was justified, and (2) whether the Court would convict on the restricted evidence permitted by S.3(2) of the Offences against the State Act 1972. It was necessary for the Court to consider carefully the evidence in relation to the docu- ments concerned and that there should be an adjudication by the Court upon such evidence. The evidence related to confidential reports between the Chief Super- intendent and the men under his command about subversives; the nature of these documents had been mentioned to the Court. In this case, the evidence of the Superintendent had not been chal- lenged by the defence, and the Court had properly decided that the documents were privileged. S.3(2) of the Offences against the State Act stated that the Court could act on the belief of a Chief Superintendent as to whether an accused belonged to an illegal or- ganisation or not. This was the law of the land, and the Court could not apparently entertain any views with regard to the merits or otherwise of that Section. (The

The plaintiffs appealed to the Supreme Court from the refusal of Hamilton J. to grant them an Injunction and requested a plenary hearing. Whitty, Donegan and the ITGWU cross-appealed against that part of Hamilton J's judgment which found: (a) that no trade dispute was in existence at the material time. (b) that a trade union of itself was not entitled to engage in a trade dispute w i t h an employer. The Supreme Court, having re- viewed the evidence, found: (1) That no injunction was sought against C.I.E. or British Rail, who had accordingly given no evidence. (2) That the plaintiffs, though in- vited to do so by Hamilton J., had tendered no oral evidence. (3) In the result, the composition of evidence in the case, which was partly oral, and partly on affidavit, has been unsatisfac- tory, particularly as no plead- ings had been issued as to what exact points were to be tried. (4) Although allegations were made of breaches of contract, the nature of these contracts was never disclosed, nor were par- ticulars given of the parties who had signed them, or the extent of the obligations undertaken. (5) There was a suggestion that C.I.E. and British Rail had been intimidated or coerced into a refusal to carry Opel cars. (6) The evidence as to the existence of a trade dispute was very sparse. (7) As the Court cannot in the circumstances decide anything, the plaintiffs are entitled to a Plenary Hearing, where all the issues will be examined in full. Accordingly Hamilton J's find- ings are reversed, and the appeal is allowed for a full hearing. Reg. Armstrong Motors Ltd. v. Coras Iompalr Eireann, British Rail, Whitty, Donegan and the Irish Transport and General Workers Union (1) Hamilton J. — unreported — 2nd December, 1975. (2) Supreme Court (O'Higgins C. J., Walsh, Henchy, Griffin and Kenny JJ.) per the Chief Justice — unreported—16th December, 1975.

The Special Criminal Court cannot convict an accused of an offence