451 / 462
GAZETTE
SEPTEMBER
1992
matic weapons with intent to endanger life
and with false imprisonment. He escaped
from custody in Crumlin Road Prison on 10
June 1981, two days before the conclusion of
his trial for these offences, and he was con-
victed in his absence. The longest sentence
he recieved was for five years. He was ar-
rested in this State in January 1982 and charged
with and convicted of offences arising from
his escape from custody, pursuant to the
Criminal Law (Jurisdiction) Act 1976. In Oc-
tober 1989, the District Court ordered his
extradition to Northern Ireland in relation to
the 1981 convictions. The applicant sought
his release pursuant to s.50 of the 1965 Act.
In the course of the hearing, an undertaking
was given that the applicant would only be
required to serve the balance of his 1981
sentence and that the term served in respect
of the convictions in this State would be taken
into account.
HELD
by Lynch J dismissing the
applicant's claims: (1) the 1987 Act was not
inconsistent with Article 15.5 of the Constitu-
tion since it did not create a retrospective
criminal act but involved the exclusion of
certain offences from being regarded as po-
litical offences and thus merely developed
the law on political offences; (2) the aims and
purposes ofthe IRA, in connection with which
the offences in question had been committed,
involved an attempt to overthrow the institu-
tions established by the Constitution, but
since the particular offences with which the
applicant had been involved might not have
had such a purpose they could be regarded as
political within s.50ofthe 1965 Act, subject
to the 1987 Act.
Finucanev McMahon
[1990]
ILRM 505; [1990] 1 IR 165 applied; (3) since
the circumstances of the applicant's posses-
sion of the automatic weapons involved in
the offences alleged did not, at that time,
involve a present danger to persons, the pos-
session offence did not fall within the exclu-
sion in s.3(3)(a) of the 1987 Act (which states
that the political exemption shall not apply to
possession of firearms 'if such use endangers
persons') and he was thus entitled to rely on
the political exemption in respect of that
offence; (4) the offence of false imprisonment
with which the applicant was involved was a
'serious false imprisonment' within s.3(3)(a)
of the 1987 Act and thus the appl icant was not
entitled to rely on the political offence ex-
emption in s.50 of the 1965 Act in respect of
that offence and his extradition should be
ordered. On appeal, the only issues raised
were whether the possession of firearms fell
within the terms of s.3(3)(a) of the 1987 Act
and the effect of the undertaking given by the
Northern authorities.
HELD
by the Supreme
Court (Finlay CJ, Hamilton P, Hederman,
McCarthy and Egan JJ) allowing the appeal:
(1) the exclusion in s.3(3)(a) should be strictly
construed and since it referred to the use of
firearms in the present tense it should not be
interpreted as applying to the case where
firearms possession might in the future en-
danger persons; if that had been the intention
of the Oireachtas, it could have used clear
language to indicate that intention; (2) since
the Northern authorities had undertaken that
the applicant would only serve the balance of
his five year sentence, taking account of the
sentence served in this State, the effect at this
stage was that the applicant would be re-
leased immediately on rendition to Northern
Ireland, and since the courts would not act in
vain his release should be ordered.
Quaere
(per
McCarthy J): whether a requesting State
should be encouraged to give undertakings
that its laws would not be enforced in respect
of a citizen of its own State. Dicta in
Bourke
v Attorney General
[1972] IR 36 approved.
McKee 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 - Extradition Act 1965, s.50 -
Extradition (European Convention on the Suppression of
Terrorism) Act 1987, s.3
The applicant had been charged in the courts
of Northern Ireland with possession of auto-
matic weapons with intent to endanger life.
He escaped from custody in Crumlin Road
Prison on 10 June 1981, two days before the
conclusion of his trial for these offences, and
he was convicted in his absence. He was
arrested in this State in December 1981 and
charged with and convicted of offences aris-
ing from his escape from custody, pursuant to
the Criminal Law (Jurisdiction) Act 1976. In
October 1989, the District Court ordered his
extradition to Northern Ireland in relation to
the 1981 convictions. The applicant sought
his release pursuant to s.50 of the 1965 Act.
HELD
by Lynch J granting the applicant's
claim and ordering his release: (1) the 1987
Act was not inconsistent with Article 15.5 of
the Constitution since it did not create a
retrospective criminal act but involved the
exclusion of certain offences from being re-
garded as political offences and thus merely
developed the law on political offences; (2)
since it had not been established that the
particular offences with which the applicant
had been involved were intended to over-
throw the Constitution, they could be re-
garded as political within s.50 of the 1965
Act, subject to the 1987 Act.
Finucane v
McMahonl
1990] ILRM 505; [1990] 1 IR 165
applied; (3) as the circumstances of the appli-
cant's possession of the automatic weapons
involved in the offences alleged did not, at
that time, involve a present danger to persons,
the possession offence did not fall within the
exclusion in s.3(3)(a) of the 1987 Act (which
states that the political exemption shall not
apply to possession of firearms 'if such use
endangers persons') and he was thus entitled
to rely on the pol itical exemption in respect of
that offence, and was thus entitled to his
release. On appeal, the only issue was whether
the possession offence fell within s.3(3)(a) of
the 1987 Act.
HELD
by the Supreme Court
(Finlay CJ, Hamilton P, Hederman, McCarthy
and Egan JJ) dismissing the appeal: the exclu-
sion in s.3(3)(a) should be strictly construed
and since it referred to the use of firearms in
the present tense it should not be interpreted
as apply i ng to the case where fi rearms posses-
sion might in the future endanger persons; if
that had been the intention of the Oireachtas,
it could have used clear language to indicate
that intention.
Sloan v Culligan
(Supreme
Court, 15 November 1991) (supra) applied.
Keady v Garda Commissioner Supreme Court
26 November 1991
GARDA SIOCHANA - DISCIPLINARY INQUIRY -
WHETHER EXERCISING JUDICIAL POWER - MEMBER
CHARGEDWITH CRIMINAL OFFENCES - SUBSEQUENT
ENTRY OF NOLLE PROSEQUI - DISCIPLINARY CHARGES
PROCEEDED WITH - WHETHER INVALID - Constitution,
Article 34.1 - Garda Siochana (Discipline) Regulations
1971, Reg.6, Schedule
The plaintiff, then a member of the Carda
Siochana, was charged with a number of
offences relating to claims in respect of night
duty while a member of the Carda. Having
opted for trial on indictment, a nolle prosequi
was subsequently entered. Disciplinary pro-
ceedings under the 1971 Regulations were
then instituted against the plaintiff arising out
of the same facts which had given rise to the
criminal proceedings. The plaintiff was dis-
missed from the Carda arising from these
proceedings. The plaintiff challenged the va-
lidity of these proceedings. Costello J dis-
missed the claim (High Court, 1 December
1988) (1989) 7 ILT Digest 260. On appeal
HELD
by the Supreme Court (Finlay CJ,
Hederman, McCarthy, O'Flaherty and Egan
JJ) dismissing the appeal: (1) the requirement
in Article 38 that all criminal matters must be
tried in die course of law in the courts did not
preclude the investigation of such claims
before administrative or domestic tribunals
such as that constituted under the 1971 Regu-
lations.
The State (Murray) v McRann
[1979]
IR 133 approved; (2) the reference in the
Schedule to the 1971 Regulations to criminal
conduct in respect of which there was a
conviction in the courts did not preclude the
investigation of conduct with criminal con-
notations under separate headings, as oc-
curred in the instant case.
Semble:
no argu-
ment was addressed as to a possible estoppel
arising; (3) the inquiry under the 1971 Regu-
lations did not constitute an administation of
justice within Article 34.1 since there was no
determination as such (though the proceed-
ings must be conducted in a judicial manner
in accordance with fair procedures), and al-
though the plaintiff was deprived of a particu-
lar means of earning his livelihood, he was
not deprived of any qualification in the proc-
ess. I n
re the Solicitors Act 1954 [
1960] IR 2 39
and
K. v An Bord Altranais
[1990] 2 IR 396
distinguished.
Treacy v Dublin Corporatiion Supreme Court
26 November 1991
LOCAL GOVERNMENT - SANITARY AUTHORITY -
POWER TO ENTER AND DEMOLISH DANGEROUS
BUILDING - ADJOINING TERRACED BUILDING HAV-
ING EASEMENT OF SUPPORT - WHETHER SANITARY
AUTHORITY OBLIGED TO CONTINUE EXISTING SUP-
PORT - Local Government (Sanitary Services) Act 1964,
s.3(2)(a)
The defendant Corporation, as sanitary au-
thority, declared a building to be dangerous
within the meaning of the 1964 Act. Under
s.3 of the 1964 Act, it gave notice in March
1988 to the plaintiff, the occupier of the
adjoining building, of its intention to enter
and demolish the dangerous building. The
plaintiff obtained an interim injunction re-
straining such demolition unless the defend-
ant provided the plaintiff's building with ad-
equate support and protection against the
weather. It was accepted that the plaintiff's
premises enjoyed an easement of support
from the dangerous bu i Id i ng. Costel lo J granted
a permanent injunction in the terms sought.
On appeal by the Corporation
HELD
by the
Supreme Court (Finlay CJ, Hederman,
McCarthy, O'Flaherty and Egan JJ) dismissing
the appeal: (1) where the Corporation exer-
cises its power to demolish a dangerous build-
ing under s.3 of the 1964 Act, this cannot be
done unless existing easements of support are
protected, since otherwise the Corporation
would be in breach of its overall obligation
3