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AUGUST 1976
the offences bear upon the peace, order and good
government of the Legislative State. The Court has
no doubt that the offences described in the Schedule
to this Bill, which include murder, manslaughter, arson,
kidnapping, false imprisonment, malicious damage,
robbery and offences in connection with explosives
firearms and the unlawful seizure of aircraft and vehi-
cles, bear upon the peace, order and good government
of the State, particularly as they are committed within
the "national territory" as defined by Article 2 of the
Constitution.
I l l Repugnancy with Article 38 of the Constitution
It is asserted that the Bill confers jurisdiction on
the Special Criminal Court to try the scheduled
offences. This is alleged to be repugnant to the Con-
stitution on one of these two grounds'.-
(i) That, if the constituent acts of an offence are
committed outside the State, no such offence could
affect the administration of justice or the preservation
of public peace and order within the Sate.
(ii) In the alternative, if this statement in (i) were
not correct, it is still possible to envisage circumstances
surrounding the commission of particular offences under
the Bill, which would render these incapable of affecting
the administration of justice or preservation of public
peace and order within the State. Article 38 (3) of the
Constitution provides for the establishment of Special
Courts if it is determined that the ordinary Courts are
inadequate to secure the effective administration of
justice, and the preservation of public peace and order.
Under S.35 of the Offences Against the State Act 1939,
the CGovernment can make a proclamation declaring the
existence of such state of affairs, and can then set up
a Special Criminal Court under Part V of the 1939
Act. This Special Criminal Court, when established, is
only entitled to try offences set out in Sections 36, 37,
45, 46, 47 and 48 of the Act. These offences are:-
(1) S.36 enables the Government to declare any
offence of any particular class a scheduled offence,
provided they are satisfied that the ordinary Courts
arc inadequate to secure the effective administration
of justice. The Government must be equally satisfied
that the ordinary Courts are so effective, in order to
alter any declaration in relation to any scheduled
offence.
(2) By S.37, attempting, or conspiring, or inciting
to commit, or aiding, and abetting a scheduled offence,
shall he deemed itself to he a scheduled offence.
(3) S. 45 relates to the procedure in the District Court
in relation to scheduled offences. If a person charged
with a scheduled offence is brought before the District
Court, and the Attorney General so requests, that person
will he sent forward for trial to the Special Criminal
Court. In the case of an indictable scheduled offence, at
the request of the Attorney, the accused will be sent
forward to the Special Criminal Court. Pending the
hearing by the Special Criminal Court, the High Court
may grant hail to the accused.
(4) By S. 46, if an accused is brought before a District
Justice charged with a non-scheduled offence, and the
Attorney-General produces a written Certificate to the
effect that the ordinary Courts are inadequate to securc
the administration of justice, and the preservation of
public order, then the Justice shall send forward the
accused in custody, or by consent, on bail, to the
Special Criminal Court.
(5) By S.47 if it is intended to charge a person with
a scheduled offence, the Attorney General may direct
that such a person shall he brought forward direct to
the Special Criminal Court without any preliminary
investigation in the District Court. This procedure may
also he adopted in the case of a non-scheduled offence,
if the Attorney General certifies that the circumstances
warrant it. If the accused does not appear after notice
before the Special Criminal Court, that Court may
issue a warrant for his arrest.
(6) By S.46, if an accused has been sent forward
by a District Justice, to the Circuit or Central Criminal
Court, and the Attorney General issues a certificate
that the ordinary Courts are inadequate to secure the
administration of justice and the maintenance of order
in his case, then the Attorney General may apply to
the High Court for an order that the trial of the
accused he transferred to the Special Criminal Court.
A copy of the High Court Order shall he served on
the accused and the County Registrar. The accused
shall then lie brought before the Special Criminal Court
at the designated time.
It follows that even if this contested Bill were enacted,
it cannot confer on the Special Criminal Court any new
jurisdiction to try any offence. Before any such offence
could come within the purview of the Special Criminal
Court, it would he necessary either for the Government
to declare under S.36 of the 1939 Act that such offence
is a scheduled offence, or in a special case relating to
the trial of a particular person, for the Attorney
General to certify that the ordinary Courts are in-
adequate to try such offence.
The Supreme Court has an obligation to he alert in
upholding constitutional rights, and must determine
wheher, in enacting this 1975 Bill, it would create any
special offence triable by a Special Court as a result of
an action by the Government or the Attorney General.
The pre-condition for the Government to schedule an
offence, or for the Attorney General to issue a Certifi-
cate is that, for the specified offence or for the
particular trial to he effective that the Courts are
inadequate to secure the maintenance of order and
peace. Many factors could go to the formulation of
such an opinion, such as a general state of unrest
within the State, or the nature of the crime alleged.
There appears to he no justification for singling out
any of these factors, and then asserting that, because
the acts which constitute an offence were committed
outside the State, that no such declaration or certi-
ficate could be issued. It follows that contention
No. (1) based on this ground is unsustainable. In Re
McCurtain — (1941) I.R. 83 — decided that it was
constitutional for the Oireachtas to have provided in
the 1939 Act that the question of the inadequacy of
the ordinary Courts he decided by a Proclamation of
the Government or by a Certificate of the Attorney
General. The Court does not decide in what circum-
stances it would he entitled to review any such Pro-
clamation or Certificate.
The question of opinion whether the ordinary Courts
were inadequate to secure the maintenance of order
would he appropriate is not the correct one. The test
must be whether it would he impossible to envisage
any case of an offence against the Bill in which that
opinion, if formed, would be justified and appropriate.
It is quite clear that if an organisation within the
State were engaged in intimidating jurymen and were
tried here for acts committed either within or outside
the State, such an opinion could properly he formed.
Note:- In the State (Burke) v. Lennon (1940) I.R. 147,
Gavan Duffy J. held that only a Judge could be
satisfied whether certain steps could be taken, as this
term involved a judicial determination strictly limited
to judicial power.
Clause 10 of the abortive Sunningdale Agreement
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