The Gazette 1976

233 / 274

GAZETTE JUNE/JULY 1976
time the Solicitors had withdrawn
the co-operation from the opera-
tion of the regulations under the
Criminal Justice (Legal Aid) Act,
1962, and this was known to the
Distirct Justice. He adjourned the
matter to the 6th day of January,
1975, and subsequently to the 13th
day of January, 1975, and then to
the 29th day of January, 1975, on
none of which occasions any
Solicitor appeared. The District
Justice thereupon proceeded to try
and sentence both of the accused.
The accused Heafy did not apply
for Legal Aid under the provisions
of the Act either on the
occasion of his conviction or on
the occasion of his sentence, nor
was Legal Aid granted. On the 7th
day of February, 1975, the Prose-
cutor Foran applied for and ob-
tained Three Conditional Orders of
Certiorari directed to District
Justice O'Reilly in respect of each
of the three orders of convictions
of the Prosecutor which had been
made on the 29th day of January,
1975. On the 21st day of February,
1975, the Prosecutor Healy applied
for and obtained a Conditional
Order of Certiorari in respect of
the three Orders of District Justice
O'Relly made on the 29th day of
January, 1975. On the 4th day of
March, 1975, the Prosecutor Healy
applied for and obtained a Con-
ditional Order of Certiorari in
respect of the order made by Dis-
trict Justice Kennedy on the 15th
day of January, 1975.
Upon Motion on behalf of both
the Prosecutors to have the Con-
ditional orders made absolute it
was held by Mr. Justice Gannon as
follows:—
1. Having granted a Legal Aid
Certificate under the provisions of
the Criminal Justice (Legal Aid)
Act, 1962, a Trial proceeded with
in the absence of Legal Represen-
tation is not conducted in due
course of Law as required by Article
38.1 of the Constitution and a con-
viction resulting from such a Trial
should be quashed.
2. An accused has no basic
natural or Constitutional right to
be informed of the procedures
open to him under the Criminal
Justice (Legal Aid) Act, 1962.
3. The said Act does not create
any rights nor confer any entitle-
ment on an accused person to be
represented in Court by a legal
practitioner.
4. In order that a Trial may be
conducted in due course of law
within the meaning of Article 38.1.
of the Constitution there must be
an application of the basic prin-
ciples of justice inherent in the
proper course of the exercise of the
judical function.
Mr. Justice Gannon quashed all
of the orders made by District
Justice O'Reilly, but upheld the
conviction made by District Justice
Kennedy.
Upon appeal to the Supreme
Court, in which Judgment was
given on the 18th day of March,
1976, it was held that all convic-
tions should be quashed. The full
Supreme Court reserved their
reasons for a later time.
The State (Anthony Foran) v. D. J.
Thomas P. O'Reilly, The Governor of
St. Patrick's Institution, & Ors; The
State (John Healy) v. Ditto; The
State (John Healy) v. District Justice
Kennedy, The Governor of St.
Patrick's Institution & Ors. — 18
March, 1976.
NATURAL JUSTICE
Order of Certiorari granted against
Social Welfare Deciding Officer
who deliberately fails to observe
the principle of Natural Justice.
The Prosecutor, aged 39 years, a
married man with a family of five
children whose ages ranged from
4 to 14 years had always been in
gainful employment (save for a very
short period) until the 1st day of
June, 1975, when he became un-
employed. Since then he received
Pay Related Benefit under the
Social Welfare Acts, and sub-
sequently unemployment benefit.
On the 27th day of February,
1976, when he called to the Labour
Exchange at Werburgh Street he
was handed a Notice of Disallow-
ance which stated that it had been
decided by a Deciding Officer that
Unemployment benefit was not
payable to him. At no time was the
Prosecutor given any notice of the
intention of the Labour Exchange
the servant or agent of the Defen-
dant, to disallow him the un-
employment benefit as would have
enabled him to have made repre-
sentations in his own defence, nor
was he in fact given any oppor-
tunity of making any representa-
tions in his defence. The Prose-
cutor stated in an Affidavit that
without unemployment benefit he
had no means of support whatso-
ever for his wife and his family,
consequently his family and he
must prepare for a very much
reduced standard of living and
indeed prospects of great hardship.
In his Affidavit the Prosecutor
stated that he had been informed
by his legal advisers that the func-
tions and powers conferred upon
the Defendant and his duly
appointed deciding officers by sec-
tion 42 of the Social Welfare Act,
1952, were of a Judicial nature and
that the purported decision to dis-
allow him benefit constituted a
denial of natural and constitutional
justice and was a serious infringe-
ment of his constitutional rights as
an Irish Citizen.
Upon Motion on behalf of the
Prosecutor the President of the
High Court granted the Con-
ditional Order of Certiorai against
the Minister for Social Welfare to
send the said decision and all
records and entries relating thereto
before the Court for the purposes
of quashing the same.
This Conditional Order was
granted on 1st day of March, 1976.
On the 15th day of March, 1976,
by Consent Mr. Justice Butler
made absolute this Conditional
Order of Certiorari.
The State (Frank Crummey) v. The
Minister for Social Welfare & The
Attorney General — No. 70 S.C. —
1976.
CRIMINAL LAW
Protest over jail visits
A Dublin High Court judge on
8th April, 1976, expressed the view
that the hours during which a
solicitor may see a prisoner on
remand in Mountjoy Prison on
weekdays were not reasonable and
suggested that the Dublin solicitors,
the Bar Association and the
authorities should resolve the
matter among themselves on a
reasonable basis rather than ask
him to make a formal ruling.
Mr. Justice Butler, was being
asked by Mr. Patrick McCartan, a
Dublin solicitor, to make absolute
a conditional order already ob-
tained by him against the governor
of the prison directing that he be
allowed see prisoners between 6
and 8 p.m., on the grounds that it
was not always possible for him to
get to the prison before 5.30 p.m.
Adjourning the application, by
consent, until May 3, for mention,
Mr. Justice Butler said he had read
the affidavits of responsible mem-
bers of the solicitors' profession,
assisting the State in its criminal
business, and asked: "Should they
not be accommodated reason-
ably?"
Mr. Justice Butler said that in
view of the affidavits of five solici-
tors the present attitude of the
authorities would appear, prima
facie, to be unreasonable.
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