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validity of the orders made were challenged on two
grounds (1) that there was no evidence before District
Jstice Breathnach which would entitle him to conclude
that the youth was of unruly character and (2) that
sine there was no place under the Act for the detention
on last November 16th, the district justice could not on
that date validly certify that he was of so unruly charac-
ter that he could not be detained in such a place.
Section 102 (3) of the Children's Act, said Mr.
Justice Finlay, provided that a young person shall not
be sentenced to imprisonment for an offence or com-
mitted to prison in default of payment of a fine,
damages or costs unless the Court certified that the
young person was of so unruly a character that he
could not be detained in a place of detention provided
under that part of the Act, or that he was of so de-
praved a character that he was not a fit person to be
so detained.
Mr. Justice Finlay said he was not concerned with
the weight of evidence on which the District Justice
decided that the youth was of unruly character, nor
with the correctness of that decision. He could only be
concerned with the question : "Was there any evidence
before him on which he could reach such a decision?"
He took the view that the nature of the crimes was of
itself some evidence on which such a decision could be
reached. It was probable, though he did not need
expressly so to decide, that District Justice Breathnach
was, in addition, entitled to rely on the certificate
previously issued by District Justice Kennedy. He there-
fore rejected the argument that the order was bad for
a total want of evidence of the character of the appli-
cant.
If, however, the certificate issued by the District
Justice required any consideration of the character of
the applicant related to a specific place of detention,
it seemed to him impossible for the district justice to
have reached a judicial decision on that issue when no
such place of detention existed. In the circumstances
he held that the District Justice could not decide, and
therefore could not validly certify, that the applicant
was of so unruly a character that he could not with
safety, or as a practical matter, be detained in a place
of detention provided under the Act.
"In short, my decision is that it is impossible to
certify that a person by reason of the nature of his
character, is incapable of being detained in a specified
place when no such place exists," he said.
The youth was allowed his costs.
(The Irish Times,
13 January 1973.)
[The State (Hanley) v. District Justice Breathnach
and Governor of Mountjoy (Finlay J.); unreported;
12 January 1973.]
£400 damages for wrongful arrest—Solicitor held for
five weeks.
A Belfast solicitor, Mr. Oliver J. Kelly (26) was
awarded £400 damages in the Ulster High Court on
Thursday for wrongful arrest and false imprisonment.
The award was made against Mr. Brian Faulkner,
former Premier, who was at that time also Minister of
Home Affairs; against the Ministry of Home Affairs;
the Police Authority; the Chief Constable of the R.U.C.,
Sir Graham Shillington; and against the British Minis-
try of Defence.
The decision will affect many other similar cases, and
there are at least 400 claims for damages and false
arrest and wrongful imprisonment which could come
before the courts.
Thursday's award to Mr. Kelly was made by Mr.
Justice Gibson, as compensation for the period of five
weeks during which the applicant was detained in
Crumlin Road prison.
The judge rejected Mr. Kelly's claim for damages
for his subsequent internment from September 14th,
1971, giving his opinion that the internment was law-
ful.
Mr. Justice Gibson granted a stay of execution of the
order for payment of compensation for the Crumlin
Road prison detention for six weeks, to enable the
Crown to consider an appeal.
Holding that the internment from September 14th,
1971, was lawful, as all the objections raised to the
validity of the internment order were without subs-
tance, the judge said that the applicant's remedy against
the defendants lay in damages for his arrest and un-
lawful detention in Crumlin Road prison for about five
weeks.
Mr. Kelly had clajmed damages—examplary damages
—on the grounds that the conduct of the defendants,
being servants of the Crown, was oppressive, arbitrary,
or unconstitutional.
The judge, however, said that he thought it appro-
priate to award exemplary damages against persons
filling public positions only where they had acted, not
just illegally, but also deliberately or recklessly or with
malice.
In his opinion, exemplary damages ought to be re-
served to punish the "insolence of office."
In the present case, however, the judge held that the
illegality consisted in the defendants failing to specify
the regulation or the suspicion which impelled the
arrest. Each arresting officer had acted successively in
good faith and without any conscious or obvious in-
fringement of the plaintiff's rights, or of the law.
Mr. Justice Gibson said that the arrest of a citizen
without a warrant was a matter which excited the
anxious scrutiny of courts at any time, and perhaps
particularly so when it was claimed to have been done
under legislation conferring such wide-ranging powers.
It did not follow, however, that the unusual character
of the jurisdiction under which the arrest was made
involved the award of exemplary damages on any basis
which would not be justified where less fundamental
rights were involved, or in which a more normal pro-
cedure had been overstepped.
He therefore rejected the claim for exemplary
damages.
The judge said that Mr. Kelly had not suffered any
fiancial loss during the five weeks of unlawful cap-
tivity and his studies were not seriously impeded,
judging by the fact that later, while still in custody,
he was enabled to sit for his final professional examina-
tions as a solicitor, which he passed.
The judge said that, accepting that there were
grounds upon which Mr. Kelly could have been validly
arrested, it followed that there was no reason for think-
ing that he was confined in the company of people
whose political views were inimical to his own, and,
indeed, he had not claimed any particular source of
distress on that account.
On the other hand, Mr. Justice Gibson went on, he
was taking into account the fact that Mr. Kelly had
been arrested in the middle of the night, the vexation
and perhaps humiliation of the circumstances of his
arrest in the presence of his recently reunited family,
and the interrogation and the frustration and depriva-
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