The Gazette 1976

GAZETTE

1976

largely in institutions after a broken

marriage of his parents. He has de-

veloped an agressive and continuous

hostility to authority. He is also en-

dowed with reckless physical cour-

age, and can easily climb on to the

roofs of prisons and hospitals. He

has repeatedly swallowed metal

objects, such as bed springs, which

have seriously impaired his health.

He militantly resists all forms of

discipline and seeks by all available

means to escape from detention. He

has on a number of occasions been

certified as insane, and been trans-

ferred for periods of a month to the

Central Mental Hospital, Dundrum.

While in prison, he has for most of

the time been kept in solitary con-

finement, and is deprived of cutlery

and a bed to sleep on. No effective

therapy could be carried out in

Dundrum, owing to his very violent

behaviour there. Insofar as he is

allowed to associate with other

prisoners or patients, he has a bad

effect on them. The only effective

remedy would be compulsory de-

tention in a specialised psychiatric

unit which does not exist in Ireland.

(1) His counsel has submitted

that the right to bodily integrity is

unenumerated

constitutional

right. This imposes on the Executive

an obligation to protect his health

as far as possible. This submission is

established by the Supreme Court

Ryan v. Attorney General

(1965)

I.R.294. If the Executive, in exer-

cise of a lawful warrant, imprisons

an individual, the Executive has an

undoubted duty to protect the

health of all persons in custody as

well as possible. The medical re-

quirements of the applicant have at

all times been met by the Governor

of the Prison, and he is regularly

visited by the Medical Officer. Any

restraints placed on the applicant

have been done so as to diminish

the possibility of the prisoner harm-

ing himself.

(2) Counsel contended that even

if the European Convention of

Human Rights is not part of the

substantive law of the State, the

freedom from torture, inhuman and

degrading treatment and punish-

ment guaranteed by it is an un-

enumerated constitutional

right.

Accordingly the present detention of

the applicant is unlawful.

If, as stated by Kenny J. in

Ryan

v. Attorney General

(1965) I.R. at

p. 313—the unenumerated per-

sonal rights guaranteed by Article

40 follow in whole or in part from

the Christian and democratic nature

of the State, it necessarily follows

that these rights include freedom

from torture, inhuman and degrad-

ing treatment and punishment. Fin-

lay P. states that, despite the un-

doubted harsh conditions inflicted

of necessity in this case on the appli-

cant, these do not constitute in-

human and degrading treatment

and he is satisfied that these restric-

tions are neither punitive or malic-

ious. The entire concept of torture

and of inhuman and degrading

treatment is evil in its purpose and

consequence, and is manifested by

revenge and retaliation. But this

concept cannot possibly be asso-

ciated with the necessary steps to

prevent self-destruction.

The application to make absolute

the Conditional Order of

Habeas

Corpus

will accordingly be refused.

The State (Crawley) v. The Governor

of Mountjoy Prison — Finlay P. — un-

reported — 13th April, 1976.

CUSTODY

At the express request of the two

boys, ail order transferring their cus-

tody to the father is made.

The facts of this case before Kenny

J. were fully reported in May, 1972,

Gazette

at page 147. It will be re-

called that Kenny J. awarded the

custody of the two boys, the only

children, to the father. On 8th

December, 1974, the Supreme Court

awarded custody of the boys to the

mother, due to the father's alleged

misconduct. (See March, 1975,

Gazette,

p. 47). The boys in June,

1975, were aged 14£ and 11 years.

The wife issued a summons to have

the husband committed to prison

for breach of the custody order.

Apart from the parents, the boys

were interviewed separately by the

Judge, and expressed a strong desire

to remain with their father. In view

of the wife's hysterical behaviour,

the application to commit the hus-

band is dismissed and the custody

of the two boys is awarded to the

husband.

Waters v. Waters (No. 2) — Kenny J.

— unreported — 8th June, 1975.

CUSTOMS

Direction given to accused in Cus-

toms offences because evidence of

possession and control not provided.

The accused is charged with being

knowingly concerned in a fraudulent

evasion of Customs laws in relation

to the importation of pig food, such

importation being prohibited by the

Agricultural Produce (Cereals) Act

1938, and at the same time being

knowingly concerned in dealing with

the said goods with intent to de-

fraud. The accused lives on a farm

near Dundalk contiguous to the

Northern Ireland border. On 11th

September, 1971, a Customs Officer

armed with a search warrant visited

his farm. The accused was not then

at the farm, but his brother was

interviewed by the Customs Officer,

who produced the warrant, which

merely empowered the Customs

Officer to search the premises of the

accused. The Customs Officer found

234 sacks of pig meal, which were

taken and removed to the Customs

Garage at Dundalk. The Customs

Officer offered no evidence to show

that the house and property con-

cerned in fact belonged to the

accused.

The solicitor for the accused,

when the evidence of the prosecution

was concluded, requested a direction

for an acquittal on the grounds : (1)

The absence of evidence of owner-

ship or its contents; (2) the absence

of evidence of the goods in question

by the accused; (3) the failure to

show that the goods were imported

without a licence. If proof is not

forthcoming to the title to the

premises, which is conceded, the

prosecution must prove that the

goods were in the possession or

control of the accused. Any slender

evidence of control points not to the

accused, but to his brother. The pro-

secution tried to contend that S.20

of the Finance Act 1930 was applic-

able. Under this Section, a Customs

Officer may require any person in

whose possession or control the goods

are found to give to such officer all

information relevant to the importa-

tion, and if imported, the person by

whom and the place and time at

which they were so imported. The

evidence here does not establish

conclusively that the accused should

negative his guilt. Accordingly a

direction will be granted, and the

jury will be directed to acquit the

accused.

People (A.-G.) v. Patrick Murphy —

Doyle J., sitting in the Central Criminal

Court — unreported — 14th Januarv,

1976.