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GAZETTE
January-February 1976
The plaintiffs appealed to the
Supreme Court from the refusal of
Hamilton J. to grant them an
Injunction and requested a plenary
hearing. Whitty, Donegan and the
ITGWU cross-appealed against that
part of Hamilton J's judgment
which found:
(a) that no trade dispute was in
existence at the material time.
(b) that a trade union of itself was
not entitled to engage in a
trade
dispute
w i t h
an
employer.
The Supreme Court, having re-
viewed the evidence, found:
(1) That no injunction was sought
against C.I.E. or British Rail,
who had accordingly given no
evidence.
(2) That the plaintiffs, though in-
vited to do so by Hamilton J.,
had tendered no oral evidence.
(3) In the result, the composition
of evidence in the case, which
was partly oral, and partly on
affidavit, has been unsatisfac-
tory, particularly as no plead-
ings had been issued as to
what exact points were to be
tried.
(4) Although allegations were made
of breaches of contract, the
nature of these contracts was
never disclosed, nor were par-
ticulars given of the parties
who had signed them, or the
extent of the
obligations
undertaken.
(5) There was a suggestion that
C.I.E. and British Rail had
been intimidated or coerced
into a refusal to carry Opel
cars.
(6) The evidence as to the
existence of a trade dispute
was very sparse.
(7) As the Court cannot in the
circumstances decide anything,
the plaintiffs are entitled to a
Plenary Hearing, where all the
issues will be examined in
full.
Accordingly Hamilton J's find-
ings are reversed, and the appeal
is allowed for a full hearing.
Reg. Armstrong Motors Ltd. v. Coras
Iompalr Eireann, British Rail, Whitty,
Donegan and the Irish Transport and
General Workers Union
(1) Hamilton J. — unreported — 2nd
December, 1975.
(2) Supreme Court (O'Higgins C. J.,
Walsh, Henchy, Griffin and Kenny
JJ.) per the Chief Justice —
unreported—16th December, 1975.
The Special Criminal Court cannot
convict an accused of an offence
other than one for which he has
been indicted.
The accused seeks leave to appeal
against his conviction in the
Special Criminal Court for an
assault with intent to rob; he had
not been charged with this offence
in the indictment, but with rob-
bery with aggravation contrary to
S.23 of the Larceny Act 1916. He
was acquitted on this count, but
S.44 (1) of the Larceny Act 1916
was invoked to convict him of
assault with intent to rob. The
accused contends (1) that the Court
had no jurisdiction to invoke
S.44(l), and (2) that certain finger-
print evidence which was the main
foundation of the conviction, was
an inadequate identification of the
applicant.
Although robbery is not a
scheduled offence under Part V of
the Offences against the State Act
1939, the Attorney General had
certified under S.47(2) of that Act
that the ordinary Courts were in-
adequate to secure the effective
administration of justice in rela-
tion to the trial of the applicant,
and
accordingly
the
Special
Criminal Court was sanctioned to
try the accused.
The net point is whether the
alternative verdict of guilty allowed
by S.44(l) of the Larceny Act 1916,
can be said to be (1) part of the
practice and procedure of the
Central Criminal Court, or (2)
whether it is a matter of jurisdic-
tion, in which case the Special
Criminal Court would have no
power to bring in such a verdict.
In The State (OTlaherty) v.
OTloinn — (1954) I.R. 295 — the
following
broad definition
of
"practice and procedure" was given
by Kingsmill Moore J.: "the manner
in which, or
the machinery
whereby effect is given to a sub-
stantive power which is either
conferred on a Court by Statute or
inherent in its jurisdiction". The
prosecution is required by S.41(4)
of the Offences against the State
Act 1939 to follow as far as prac-
ticable the same procedure as the
Central Criminal Court. It is clear
that S.41(4) is the machinery to
enable a trial before the Special
Criminal Court (including prelimi-
nary interlocutory and consequen-
tial matters) to proceed along
known lines to a verdict of guilty
or not guilty, including the form
of indictments, the documents to
be served, the procedure for secur-
ing attendance in Court, and the
manner in which evidence is to be
taken. However, the substantive
jurisdiction is contained in S.43(l)
of the Larceny Act 1916, which
cannot be construed as part of the
practice and procedure of the
Central Criminal Court. As part of
the determination itself, it is a
matter of jurisdiction. S.41 of the
Offences against the State Act
1939 does not endow the Special
Criminal Court with a jurisdiction
to convict the accused of an
offence other than one for which
he has been indicted. Accordingly
the appeal is allowed, both as to
conviction and sentence, which are
quashed, and the accused is dis-
charged.
People (D.P.P.) v. James Rice —
Court of Criminal Appeal (Henchy,
Murnaghan and McMahon JJ.) per
Henchy J. — unreported — 12th
November, 1975.
It is for the Special Criminal Court
to decide on the evidence whether
claims of privilege should be enter-
tained, and whether the opinion of
Garda Superintendent as to mem-
bership of an illegal organisation
is justified.
The accused, a vocational teacher
in Co. Meath, was convicted of
membership of an illegal organis-
ation, and sentenced to 12 months
imprisonment
by
the
Special
Criminal Court. The appeal was
taken on the grounds (1) whether
the claim of privilege put forward
and sustained by the Court was
justified, and (2) whether the Court
would convict on the restricted
evidence permitted by S.3(2) of the
Offences against the State Act
1972. It was necessary for the
Court to consider carefully the
evidence in relation to the docu-
ments concerned and that there
should be an adjudication by the
Court upon such evidence. The
evidence related to confidential
reports between the Chief Super-
intendent and the men under his
command about subversives; the
nature of these documents had
been mentioned to the Court. In
this case, the evidence of the
Superintendent had not been chal-
lenged by the defence, and the
Court had properly decided that
the documents were privileged.
S.3(2) of the Offences against the
State Act stated that the Court
could act on the belief of a Chief
Superintendent as to whether an
accused belonged to an illegal or-
ganisation or not. This was the
law of the land, and the Court
could not apparently entertain any
views with regard to the merits or
otherwise of that Section. (The