The Gazette 1976

1976

GAZETTE

the said goods with intent to de- fraud. The accused lives on a farm near Dundalk contiguous to the Northern Ireland border. On 11th September, 1971, a Customs Officer armed with a search warrant visited his farm. The accused was not then at the farm, but his brother was interviewed by the Customs Officer, who produced the warrant, which merely empowered the Customs Officer to search the premises of the accused. The Customs Officer found 234 sacks of pig meal, which were taken and removed to the Customs Garage at Dundalk. The Customs Officer offered no evidence to show that the house and property con- cerned in fact belonged to the accused. The solicitor for the accused, when the evidence of the prosecution was concluded, requested a direction for an acquittal on the grounds : (1) The absence of evidence of owner- ship or its contents; (2) the absence of evidence of the goods in question by the accused; (3) the failure to show that the goods were imported without a licence. If proof is not forthcoming to the title to the premises, which is conceded, the prosecution must prove that the goods were in the possession or control of the accused. Any slender evidence of control points not to the accused, but to his brother. The pro- secution tried to contend that S.20 of the Finance Act 1930 was applic- able. Under this Section, a Customs Officer may require any person in whose possession or control the goods are found to give to such officer all information relevant to the importa- tion, and if imported, the person by whom and the place and time at which they were so imported. The evidence here does not establish conclusively that the accused should negative his guilt. Accordingly a direction will be granted, and the jury will be directed to acquit the accused. People (A.-G.) v. Patrick Murphy — Doyle J., sitting in the Central Criminal Court — unreported — 14th Januarv, 1976.

ing treatment and punishment. Fin- lay P. states that, despite the un- doubted harsh conditions inflicted of necessity in this case on the appli- cant, these do not constitute in- human and degrading treatment and he is satisfied that these restric- tions are neither punitive or malic- ious. The entire concept of torture and of inhuman and degrading treatment is evil in its purpose and consequence, and is manifested by revenge and retaliation. But this concept cannot possibly be asso- ciated with the necessary steps to prevent self-destruction. The application to make absolute the Conditional Order of Habeas Corpus will accordingly be refused. The State (Crawley) v. The Governor of Mountjoy Prison — Finlay P. — un- reported — 13th April, 1976. CUSTODY At the express request of the two boys, ail order transferring their cus- tody to the father is made. The facts of this case before Kenny J. were fully reported in May, 1972, Gazette at page 147. It will be re- called that Kenny J. awarded the custody of the two boys, the only children, to the father. On 8th December, 1974, the Supreme Court awarded custody of the boys to the mother, due to the father's alleged misconduct. (See March, 1975, Gazette, p. 47). The boys in June, 1975, were aged 14£ and 11 years. The wife issued a summons to have the husband committed to prison for breach of the custody order. Apart from the parents, the boys were interviewed separately by the Judge, and expressed a strong desire to remain with their father. In view of the wife's hysterical behaviour, the application to commit the hus- band is dismissed and the custody of the two boys is awarded to the husband. CUSTOMS Direction given to accused in Cus- toms offences because evidence of possession and control not provided. The accused is charged with being knowingly concerned in a fraudulent evasion of Customs laws in relation to the importation of pig food, such importation being prohibited by the Agricultural Produce (Cereals) Act 1938, and at the same time being knowingly concerned in dealing with Waters v. Waters (No. 2) — Kenny J. — unreported — 8th June, 1975.

largely in institutions after a broken marriage of his parents. He has de- veloped an agressive and continuous hostility to authority. He is also en- dowed with reckless physical cour- age, and can easily climb on to the roofs of prisons and hospitals. He has repeatedly swallowed metal objects, such as bed springs, which have seriously impaired his health. He militantly resists all forms of discipline and seeks by all available means to escape from detention. He has on a number of occasions been certified as insane, and been trans- ferred for periods of a month to the Central Mental Hospital, Dundrum. While in prison, he has for most of the time been kept in solitary con- finement, and is deprived of cutlery and a bed to sleep on. No effective therapy could be carried out in Dundrum, owing to his very violent behaviour there. Insofar as he is allowed to associate with other prisoners or patients, he has a bad effect on them. The only effective remedy would be compulsory de- tention in a specialised psychiatric unit which does not exist in Ireland. (1) His counsel has submitted that the right to bodily integrity is an unenumerated constitutional right. This imposes on the Executive an obligation to protect his health as far as possible. This submission is established by the Supreme Court in Ryan v. Attorney General (1965) I.R.294. If the Executive, in exer- cise of a lawful warrant, imprisons an individual, the Executive has an undoubted duty to protect the health of all persons in custody as well as possible. The medical re- quirements of the applicant have at all times been met by the Governor of the Prison, and he is regularly visited by the Medical Officer. Any restraints placed on the applicant have been done so as to diminish the possibility of the prisoner harm- ing himself. (2) Counsel contended that even if the European Convention of Human Rights is not part of the substantive law of the State, the freedom from torture, inhuman and degrading treatment and punish- ment guaranteed by it is an un- enumerated constitutional right. Accordingly the present detention of the applicant is unlawful. If, as stated by Kenny J. in Ryan v. Attorney General (1965) I.R. at p. 313—the unenumerated per- sonal rights guaranteed by Article 40 follow in whole or in part from the Christian and democratic nature of the State, it necessarily follows that these rights include freedom from torture, inhuman and degrad- 1 6