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GAZETTE
NOVEMBER 1976
ject to the pre-condition that the accused would have
to surrender himself in custody to the security forces of
Northern Ireland. If he were a fugitive from
that jurisdiction this is a "right" that he might
be loathe to exercise. Should he waive the right
to be present either personally or through solicitor
and counsel, nevertheless, the evidence can be taken
and may be admitted in evidence before the Court
when it returns to resume its proceedings within the
juried
:
ction. Chief Justice O'Higgins, delivering the
judgment of the Court, posed the question: "Does the
fact that he can be present only whilst in custody
frustrate the exercise of that right?" He answered:
"If all the evidence of his trial were to be given at the
trial his freedom of movement would in any event be
restricted because he would be in the custody of the
Court. That he should also be in custody when it is
nece
r
sary for part of the evidence to be taken outside
the State in his presence seems to be a reasonable
compromise. Does the fact that in order to exercise
his right he is obbged to go to Northern Ireland and
put himself beyond the protection of the State in itself
constitute too high a price to pay for the exercise of
that right? It cannot be overlooked that he is to be
in the custody and therefore under the protection of
the police of Northern Ireland, and that he is guar-
anteed immunity from detention or legal process while
so there. As in any event, his sobcitor or counsel may
represent him, the Court is of the opinion that in this
respect the provis
;
ons of this section do not offend
the provis
;
ons of the Constitution and are not repug-
nant thereto in the manner submitted".
This brief review, therefore, will demonstrate that
for the past 10 to 15 years we have had a period of
judicial dynamism. Compared with the inertia that had
often surrounded the courts prior to that in this re-
gard we appeared at times to be on a forensic roller-
coaster. There has been a retreat in other parts of
the world from this particular type of dynamism. The
question has been asked: Do we have the same trend
here? When you are in the arena, you know the state
of play but there is hardly time to ask the category
to which the particular match conforms. However, if
I were to guess I would say there is a judicial drawing
of breath before an attempt is made to scale further
heights.
Perhaps, that, in itself, is no bad thing. There are
always protagonists for both sides. As Lord Devlin
has said recently:-
"There is always a host of new ideas galloping
around the outskirts of a society's thought. All
of them seek admiss'on but each must first
win its spurs; the law at first resists, but will sub-
mit to a conquerer and become his servant. In a
changing society (and free societies that are com-
pcred of two or more generations are always
changing because it is their nature to do so) the
law acts as a valve. New policies must gather
strength before they can force an entry; when
they are admitted and absorbed into the consensus,
the legal system should expand to hold them, as
also it should contract to squeeze out old policies
which have lost the consensus they once ob-
tained".-"
I hope that you will not think us too chauvinistic
in claim
;
ng strong links of history and a common legal
system with you. Many of those who took part in
the 1848 rebellion made their way, by accident or de-
sign to Australia.
John Boyle O'Reilly spent a year on a road gang
in Bunbury in Western Australia in 1868. He left, or
rather absconded, in early 1869 but h= brought with
him a fond memory of Australia and of the bright
reign that it would have in the coming years-
16. (1972) I.R. 416
17. Prosecution of Offences Act 1974 (No. 22 of 1974).
There have only been 22 appeals from the Court of
Criminal Appeal to the Supreme Court; see Mr. Justice
Walsh's review of them all in
The People
(Attorney
General) v. Giles
(1974) I.R. 422.
18. (1975) I.R. 1.
19. (1974) 1 All E.R. 87.
20.
Purtill v. Athlorue UDC
(1968) I.R. 205.
21.
Donovan
v. Landy''s Ltd.
(1963) I.R. 441.
22. (1965) I.R. 642.
23.
Ibid
at 652.
24.
The State (Browne) v. Fearon
(1967) I.R. 147.
25. (1953) I.R. 33.
26. Report to the Secretary of State for the Home Depart-
ment of the Departmental Committee on Evidence of
Identification in Criminal Cases, H.C. April, 26, 1976.
Sec Dr. Glanville Williams's critique of the Report:
Evidence
of Identification
: The Devlin Report
(1976)
Criminal Law Review 407.
27. (1966) I.R. 501.
28.
e.g.. Burns v. Irish Fibres Ltd.
(1967) I I TR 172;
Sexton
v. O'Keeffe
(1966) I.R. 204;
O'Leary
v.
O'Connell
(1968) I.R. 1949. In contrast to the English position
illustrated in
Mitchell
v. Mulholland
(1972) 1 Q.B. 65
C.A.
29.
O'Leary v. O'Connell
(1968) I.R. 149 per Mr. Justice
Walsh at p. 156.
30.
Hurley
v. Imokilly
Co-Operative
Limited
(Supreme
Court; 29th March, 1973 — unreported).
31.
Mairin. de Burca v. Attorney
General
(unreported).
32. Juries Act, 1976 (no. 4 of 1976).
33.
The State (Quinn) v. Ryan
1965 I.R. 70.
34.
McDonald
v. Bord na gCon
(1965) I.R. 217 and
East
Donegal Co-Operative
v. Attorney
General
(1970) 317.
35. Foreward in Dr. Leo Kohn's
The Constitution
of the
Irish Free State
(London 1932). See essay "The Courts
and the Constitution in Catholic Ireland" in
Judicial
Review
by Edward McWhinney (University of Toronto
Press 4th Ed. 1968).
36.
Buckley and others (Sinn Fein) v. Attorney General and
another
(1950) I.R. 67.
37.
Buckley and others v. Attorney-General
— (1950) I.R. 67.
38.
Byrne v. Ireland
— (1972) I.R. 241.
39.
O'Brien v. Keogh
(1972) I.R. 144.
40.
McGee v. Attorney
General
(1974) I.R. 284.
41. See Vol. VIII "The Irish Jurist" (University College
Dublin).
42. 1974 I.R. 284 at 310.
43. (1971) I.R. 217.
44. The President is largely an honorary office. The two
powers that he can exercise in his absolute discretion
are the power to refer Bills to the Supreme Court, dis-
cussed above and the right to refuse to dissolve the Dail
(House of Representatives) at the request of Prime
Minister who has ceased to retain a parliamentary
majority.
46. The single judgment rule applies also where the validity
of a law having regard to the provisions of the Con-
stitution is challenged in the Courts in the ordinary
way. Article 34 4. 5°. This applies only to legislation
enacted since the Constitution came into force; with
regard to pre-constitution legislation there is no such
restriction; see, for example
The State (Quin.n) v. Ryan
(1965) I.R. 70.
47. (1965) I.R. 70 at 127.
48. (1940) .I.R. 470.
49. (1942) I.R. 334.
50. (1961) I.R. 169.
51. Judgment delivered 6th May, 1976; as yet unreported.
52. Judgment delivered 15th October 1976, as yet unreported
194