The Gazette 1976

J UNE /J U LY 1976

GAZETTE

the grounds should also include a claim that Sections 6 and 7 of the Act were contrary to the constitut- ional rights of the prosecutors, Mr. Justice McMahon asked him to supply the Registrar with the grounds he wished to put forward, and he directed service on the Board and on the Chief State Solicitor on behalf of the Attorney General. Crummey v. Censorship of Publica- tions Board — McMahon J. — 10th December, 1976. Note—The Judgment in thise case is not available. EXTRADITION Judge hits at crimes in the name of Patriotism. In the High Court in Dublin on 10 December Mr. Justice Butler re- ferred to petty criminals trying to draw around themselves a mantle of Irish republicanism and patriotism in order to avoid proper prosecution for criminal offences which had absolutely no political connection. In refusing to prohibit the extra- dition of a man wanted in Preston, England, on a charge of stealing a quantity of tuna fish, he said that this was such a case. "In my view, Irish republicanism and Irish nationalism has a long, proud and chivalrous history, but in recent years numerous crimes have been committed in its name", he said. "Enough unchivalrous and des- picable acts have been done with- out petty criminals getting in on the act, and trying to draw around themselves a mantle of Irish re- publicanism and patriotism in order to avoid proper prosecution for criminal offences which had absol- utely no political connection". Ordering the extradition of Sam- uel Hughes, Lismore, Co- Waterford, the Judge awarded the Attorney General the costs of the motion- and said he would give double costs against the applicant, if he could. "I am quite satisfied that there are no grounds, whatever, that he will be prosecuted for any offence, other than the offence charged in the warrant", the Judge added. Mr- Justice Butler said the case being made by the British author- ities was that Hughes had taken part in the hijacking of two lorries, con- taining quantities of tuna fish, an- oraks and pullovers and that his share of the venture amounted to about £8,000. Not only was he (Judge) not sat-

isfied but he positively disbelieved and, found as a fact, that at no time was Hughes suspected by the Eng- lish authorities of being engaged in any IRA activities. He found the only interest the English police had in him was in connection with activ- ities concerning receiving stolen goods- "I am quite satisfied there are no grounds, whatever, for believing that he will be prosecuted for any offence other than the offence charg- ed in the warrant. The State (Hughes) v. Attorney General. — Butler J. — unreported — 10th December, 1976. (Judgment not available). PRACTICE Prison Governor ordered to allow visits by Solicitor. The President of the High Court, Mr. Justice Finlay, on 17 December made an order directing the Gov- ernor of Portaloise Prison to admit a Dublin Solicitor, Mr- Patrick McCartan, to the prison to conduct an interview or interviews on reason- able conditions and at reasonable times with Eddie Gallagher, who is serving a 20-year-sentence for kid- napping Dr. Herrema. The conditions require that Mr- McCartan, on notification of his request for such interviews, should indicate to the Governor the general nature of the legal business con- cerned. In the event of Mr. McCar- tan being unaware of the general nature of this, the visit would be allowed on an assurance by him that the interview had been requested by the prisoner, and that to Mr- McCartan's knowledge and belief it was a bona fide request for legal assistance. The application for the order arose from the failure of Mr. McCartan to get a second interview with Gallagher in the prison last month after the prisoner had re- quested legal aid. His counsel, Mr. Patrick McEn- tee, SC, told the Court that on a Thursday Mr. McCartan received word from Portlaoise that he was excluded from visiting on Saturday. The President said there was a rule that a member of the legal pro- fession could interview a prisoner within the sight but out of the hear- ing of prison staff. That rule was meaningless if prison staff were to be allowed to take from a solicitor the written instructions he had got from his client and read them- "You 39

The ban, said Mr. Crummey, might endanger the existence of the company in that it was of lim- ited value to supply contraceptives, in accordance with the decision of the Supreme Court in McGee v. the Attorney General (1974) I- R- 284, without being able also to provide the necessary information to persons wishing to use contraceptives. He asked that the Censorship Board's order be quashed as it was contrary to natural justice and con- trary to the Constitution, and he set out a number of grounds. Among these was a claim that the Board, in making its decision, was exercis- ing a judicial function; it was an unlawful violation of the right of freedom of expression and freedom of opinion and it interfered with the right to marital privacy, which involved the right to determine the size of one's family and the right to have access to contraceptives. He claimed that the result might be un- wanted pregnancies. No grounds whatsoever had been given by the Board to justify the in- decent and obscene label applied to this booklet and the booklet could not in any way come within this definition. It was for the public good that the booklet be distributed. Mr. O'Hanlon said there were several grounds of challenge open, One was whether the Act permitted the Board to prohibit the sale and distribution of a booklet which contained nothing more than material in relation to methods of contraception which had been recognised by the Supreme Court in the case of McGee v. the Attorney General I. R. 284 to be permissable and lawful in this country- The Supreme Court had also recognised that it was permissible to import contraceptives devices, and to that extent the lawfulness of the activity was recognised by the decision- "If the booklet contains nothing further than information of an educational nature in relation to these matters, and if the Act is wide enough to permit a finding by the Board of indecency and obscenity against such a publication and a total banning of its distribution, it is submitted that such a power vested in the Board would seem to be in conflict with the constitutional guarantees contained in Articles 40 to 42 of the Constitution", said Mr. O'Hanlon. Mr. Justice McMahon said it was clear that the issues raised should be fully considered and therefore a conditional order would be issued. When Mr. O'Hanlon asked that