The Gazette 1976

GAZETTE

J UN E/J U LY

1976

limitation set by S. 5 of the Crim- inal Justice Act 1951, which applies as much to District Court Appeals in the Circuit Court as to proceed- ings in the District Court. However a sentence of detention in St. Patrick's is not classified as imprisonment but is a separate and distinct form of penal detention in- stituted by the Criminal Justice Act 1960. When the offender came be- fore Judge Martin, he was already in Mountjoy Prison serving the concurrent sentences to which he had been sentenced on 18th Feb- ruary, '976. In those circumstances, the overlaping sentence of 12 months detention in St. Patrick's could not stand, as such a sentence was allowable only in lieu of im- prisonment, and the Judge had no power to make the order he did, as S. 13 of the Criminal Justice Act 1960 only empowers detention in St. Patrick's in lieu of penal servit- ude and imprisonment. The purpose of St. Patrick's which replaces the former Borstal is a special unit for young male offenders between 16 and 21 years, which aims at their reformation and the prevention of crime, while prisons exist primarily for the penal detention of convicted criminals Another effect of Judge Martin's Order was that, having served a sentence in Mountjoy Prison, the accused would subsequently be a fit subject for St. Patrick's. No Court has jurisdiction to make such an Order. Accordingly McMahon J.'s Order that a Certiorari be issued is affirmed, and the appeal is dis- missed. The State (Richard White) v. Circuit Judge Martin—Supreme Court (Henchy, Griffin and Parke JJ.) per Mcnchy J. — unreported— 21st October, 1976. DAMAGES Plaintiff living in uninhabitable house entitled to damages for inconvenience, and for loss due to increase in price. The plaintiff and her family had gone into occupation of a house which the defendant had built for her. This house was shortly after- wards found to have serious defects, and subsequently became to all in- tents and purposes uninhabitable. The plaintiff then sued the builder defendant, and a settlement was reached between the parties on 10th 29

RECENT IRISH CASES

CRIMINAL LAW — PRACTICE

CONTEMPT OF COURT Conditional Order of sequestrat- ion made against periodical company and of attachment against its editor in respect of letters criticising Special Criminal Court. Appeal against refusal of Finlay P. to issue a conditional order of attachment against Hibernia Nat- ional Review Ltd. and its editor, John Mulcahy for publishing letters from Mr. O'Donohoe and Mr. Henry dealing with the trial and conviction of Noel and Marie Murray by the Special Criminal Court. Mr. O'Donohoe, of the Stu- dent's Christian Movement in Trin- ity College, had stated that "they were tried without jury and virtual- ly without evidence in circumstances which, to say the very least, cast strong doubts on the machinations of both Gardai and Government to procure a guilty verdict." Mr. Henry suggested that the Special Criminal Court conducted a travesty of a trial, that they did not give the ac- cused the benefit of the doubt, and that the only evidence against the accused was their own statements. It is quite valid criticism to de- bate the retention of the death pen- alty, any provision of the Offences against the State Acts, and the es- tablishment of the Special Criminal Court. In the prosecution case, there was evidence fully reported in the press that a gun was found in Mr. Murray's house, for which he accepted responsibility, and that the bullet which killed the Garda was fired from this gun. Accordingly Mr. Henry's statement that the only evidence against the Murrays was their statements was a complete misrepresentation of the evidence, and thus a contempt of Court. The Court will make no order against Mr. O'Donohoe, but will make a conditional order of seques- tration against the Hibernia Co., and a conditional order of attach- ment against Mr. Mulcahy. The company and Mr. Mulcahy will have 21 days from the date of the service of the order to show cause why the conditional order should not be made absolute. The State (Director of Public Prosecutions) v. Hibernia Nat- ional Review Ltd., Mulcahy and O'Donohoe — Supreme Court (O'Higgins C. J., Kenny and Parke JJ. per Kenny J. — unreported— 14th July, 1976.

A Circuit Judge, on appeal from the District Court, may not im- pose a sentence of detention in St. Patrick's Institution to fol- low a sentence of imprisonment. This appeal is a test case. The question is whether a Circuit Court Judge, when hearing an appeal from a District Court in a criminal case, is bound by the same sentencing limitations imposed on the District Court by S. 5 of the Criminal Jus- tice Act 1951. The effect of this Section is that, where two or more sentences passed by the District Court are ordered to run consec- utively, the aggregate term of im- prisonment shall not exceed twelve months. The prosecutor in these Certiorari proceedings was convicted and sen- tenced in the District Court on 18th February, *976 in respect of 14 offences. He was sentenced to 12 months imprisonment in respect of 12 offences, and to 3 months each in respect of the other 2 offences, all sentences to run concurrently. He appealed to the Circuit Court, which set aside the 2 concurrent sentences of 12 months imprison- ment, which were accordingly affirmed by the Circuit Court on 6th July, 1976. Apart from these sentences, White had been convicted on 25th August, 1975, on a charge of assault, and sentenced to 12 months detention in St. Patrick's Institution, as he was under 17 years of age then. On ap- peal to the Circuit Court the sen- tence was affirmed on 12th March, 1976, but Judge Martin ordered that this sentence was to start to run from the expiration of the cumul- ative sentence of 12 months im- prisonment in Mountjoy Jail impos- ed on 18th February, 1976. The applicant applied for an order of Certiorari to quash the order made by Circuit Judge Martin, on the ground that such order was made without jurisdiction, as being in breach of the sentencing limitat- ion set out by S. 5 of the Criminal Justice Act 1951. McMahon J. duly granted this order of Certiorari and quashed the sentence of detention in St. Patrick's Institution. An appeal has been taken to try to reverse McMahon J.'s decision. There is no doubt that, if Judge Martin had imposed a sentence of imprisonment which was to run from the termination of the cumul- ative term of 12 months imprison- ment, it would have breached the