The Gazette 1992

GAZETTE

SEPTEMBER

1992

that no interference with the judicial domain

is involved and the same considerations ap-

ply to matters which may in the future be-

come the subject of civil proceedings; (5) the

Tribunal might in practice affect the due

course of a criminal trial which might later

arise from the matters under its consideration,

but such could be overcome by the observ-

ance of fair procedures, and the Tribunal was

not prohibited from inquiring into matters

which might in the future be the subject

matter of criminal proceedings; nor was the

Tribunal precluded from inquiring into the

circumstances surrounding past criminal pros-

ecutions, provided it did not purport to re-

open such prosecutions. In

reHaughey

[1971

]

IR 217 referred to; dicta in

Victoria vAustralia

Building Contractors and Building Labourers

Federation

(1981 -82) 152 CLR 26 approved;

(6) where, as in the instant case, there was no

challenge to the opinion expressed in the

resolutions of the Houses of the Oireachtas

that it was in the public interest to inquire into

the allegations concerned here, the Tribunal

was not precluded from inquiring into dis-

putes between private parties.

Watkins v

United States,

354 US 178 (1956) referred to;

(7) there was no rule of law requiring the

Tribunal to observe the rules of evidence, but

since it must observe fair procedures it might

be required to hear parties affected by the

admission of hearsay, as it had indicated in

the instant case; nor was there an obligation

on the Tribunal to hear evidence in advance

of testimony being given at a public hearing

of the Tribunal, although the Tribunal indi-

cated that in most instances it would attempt

to obtain statements in advance from wit-

nesses; (8) the Tribunal was entitled, in the

absence of any indication to the contrary, to

inquire into all of the allegations made in the

Oireachtas and on the television documen-

tary and no ground had been established

which would restrict the allegations intowhich

the Tribunal could inquire. On appeal by the

applicants HELD by the Supreme Court (Finlay

CJ, Hederman, McCarthy, O'Flaherty and

Egan JJ) dismissing the appeal: (1) the pre-

sumption of constitutionality, deriving from

the respect of one organ of government for

another, should be held to apply mutatis

mutandis to the resolutions passed by the

Houses of the Oireachtas as it does to Acts of

the Oireachtas.

Dicta

East Donegal Co-Op

Ltd vAttorney General

[ 1970] IR 317 appl ied;

(2) the proceedings of the Tribunal had none

of the ingredients of a criminal trial within the

meaning of Article 38 of the Constitution.

Dicta

Deaton vAttorney General

[1963] IR

170 and

The State (Murray) vMcRann

[1979]

IR 133 applied; (3) the Tribunal was not

engaged in the administration of justice within

the meaning of Article 34, since although it

might be engaged in a controversy as to the

existence of legal rights or the violation of the

law, it would not make legally binding

determinations but would report its findings

of fact to the legislature in vacuo; and the

powers conferred on the Tribunal by s.6 of the

1979 Act allowed it to operate more effec-

tively, but did not in any way involve the

administration of justice.

Dicta

McDonald

v Bordna gCon

[1965] IR 217 applied;

dicta

Victoria v Australia Building Contractors

and Building Labourers Federation

(1981 -82)

152 CLR 26 approved; (4) the Court should

apply a presumption that the Tribunal would

apply fair procedures in accordance with

Article 40.3; (5) the submission that the Tribu-

nal's activities could prejudice the appli-

cants' fair trial if criminal proceedings were

brought against them did not invalidate the

resolutions establishing the Tribunal; but the

courts retained full jurisdiction to prevent an

injustice occurring should an argument be

made by an accused concerning pre-trial

publicity.

Magee v Culligan High Court, 25 January

1991; Supreme Court, 15 November 1991

CRIMINAL LAV2 - EXTRADITION - POLITICAL OFFENCE

- EXCLUSION BY LEGISLATION OF CERTAIN OFFENCES

FROM BEING CONSIDERED POLITICAL OFFENCES -

WHETHER AMOUNTING TO CREATION OF RETRO-

SPECTIVE CRIMINAL ACT - WHETHER CONSISTENT

WITH CONSTITUTION - FIREARMS OFFENCES - .

WHETHER POLITICAL - ADMINISTRATION OF JUSTICE

-TEMPORARY JUDGEOF DISTRICT COURT-WHETHER

INDEPENDENT - RISK OF ILL-TREATMENT - WHETHER

ESTABLISHED - ESTOPPEL - DELAY - Courts of Justice Act

1936, s.51 - Courts (Supplemental Provisions) Act 1961,

s.48(8) - Extradition (European Convention on the Sup-

pression of Terrorism) Act 1987 - Constitution, Articles

15.5,35, 36.iii, 40.3,

The applicant had been charged in the courts

of Northern Ireland with murder and attempted

murder of members of the British army. The

deaths had involved the use of an M60 ma-

chine gun. The applicant escaped from cus-

tody in Crumlin Road Prison on 10 June 1981,

two days before the conclusion of his trial for

the offences referred to, and hewas convicted

in his absence. The applicant was arrested in

the State in January 1982 and was charged

with and convicted of offences arising from

his escape from custody, pursuant to the

provisions of the Criminal Law (Jurisdiction)

Act 1976. He was sentenced to 10 years

imprisonment on foot of these convictions.

On 23 October 1989, a temporary Justice of

the District Court ordered the applicant's

delivery to Northern Ireland on foot of war-

rants seeking his extradition in respect of the

1981 murder and attempted murder convic-

tions. The applicant sought judicial review of

thisdecision. The applicant argued, interalia,

that the 1987 Act created retrospective crimi-

nal liability contrary to Article 15.5 of the

Constitution by excluding offences involving

the use of automatic firearems from the defi-

nition of political offences within s.50 of the

1965 Act.

HELD

by Lynch J dismissing the

application: (1) the 1987 Act was not incon-

sistent with Article 15.5 of the Constitution,

since it did not create a retrospective criminal

act but involved the exclusion of certain

offences form being regarded as political

offences and thus merely developed the law

on political offences; and assuming that the

1987 Act deprived the appl icant of a right not

to serve a sentence of imprisonment, such

was not a right protected under Article 40.3 of

the Constitution and so the removal of the

protection of the political offence exception

by the 1987 Act in respect of the offences for

which the applicant had been convicted was

not unconstitutional; (2) s.51 of the 1936 Act,

which provides for the appointment of tem-

porary Justices of the District Court, and which

was re-enacted to apply to the present District

Court by s.48(8) of the 1961 Act, must be

presumed constitutional and in the absence

of any evidence in the instant case that the

power to appoint had been used in an im-

proper manner, the applicant had not estab-

lished that s.51 was inconsistent with the

Constitution; (3) having considered the evi-

dence, the applicant had not established that

he would be ill-treated if returned to Northern

Ireland; (4) the delay in seeking the appli-

cant's extradition arose from his imprison-

ment in the

State.on

foot of his 1982 convic-

tion and thus no ground relating to delay had

been made out; (5) the Northern authorities

were not estopped from seeking extradition

since they did not seek extradition in respect

of the applicant's prison escape and they had

given undertakingsthattheterm served inthis

State would be taken into account, and there

was therefore nothing oppressive or unjust

involved in the extradition within the mean-

ing of s.50(2)(bbb) of the 1965 Act, as inserted

by the 1987 Act; (6) the offences relating to

possession of firearms could be regarded as

political offences within s.50 of the 1965 Act,

since although they were committed on be-

half of the IRA they did not as such involve

subversion of the Constitution, but this was

subject to the provisions of the 1987 Act.

Finucane v McMahon

[1990] ILRM 505;

[1990] 1 IR 165 applied; (7) since the firearms

offences had resulted in the commission of

murder, the application of the political of-

fence exemption was precluded by s.3(3)(a)(v)

of the 1987 Act and the plaintiff's application

for release under s.50 of the 1965 Act would

therefore be dismissed. On appeal by the

applicant on the constitutional issues HELD

by the Supreme Court (Finlay CJ, Hamilton P,

Hederman, McCarthy and Egan JJ) dismissing

the appeal: (1) Article 15.5 of the Constitution

did not contain any general prohibition against

retrospective legislation, but only against leg-

islation which declares acts retrospectively to

be infringements of the law; and since the

1987 Act did not declare any act to be an

infringement of the law but merely made a

statutory amendment to a developing juris-

prudence, it could not infringe Article 15.5;

(2) the appl icant did not have any vested right

to be dealt with in accordance with any law

which might have applied in 1982, and fair

procedures required only that the application

for his extradition would be dealt with in

accordance with the law applicable at the

time of the appl ication, and thus the use of the

1987 Act in the instant case did not involve

the State in infringing the applicant's rights

under Article 40.3; (3) although the Judge of

the District Court in the instant case was a

temporary Judge within s.51 of the 1936 Act,

this did not in any way affect his independ-

ence of function under Article 35.2 of the

Constitution since his warrant of appoint-

ment was held under the President and for the

period of his appointment he was free in the

exercise of his functions; and the fact that as

a temporary Judge his removal was not sub-

ject to the same protections as for permanent

members of the judiciary did not affect his

independence and was a permitted regula-

tion of the business of the courts under Article

36.iii.

Sloan v Culligan High Court, 25 January

1991; Supreme Court, 15 November 1991

CRIMINAL LAW - EXTRADITION - POLITICAL OFFENCE

- EXCLUSION BY LEGISLATION OF CERTAIN OFFENCES

FROM BEING CONSIDERED POLITICAL OFFENCES -

WHETHER AMOUNTING TO CREATION OF RETRO-

SPECTIVE CRIMINAL ACT - FIREARMS OFFENCES -

WHETHER POLITICAL - UNDERTAKING BY REQUEST-

ING AUTHORITY CONCERNING BALANCE OF SEN-

TENCE BALANCE HAVING EXPIRED - RELEASE OR-

DERED - Constitution, Article 15.5 - Extradition Act 1965,

s.50 - Extradition (European Convention on the Suppres-

sion of Terrorism) Act 1987, s.3

The applicant had been charged in the courts

of Northern Ireland with possession of auto-