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Recent Irish Cases
No reference can be made by the Attorney Gen-
eral to the Supreme Court under Section 34
of
the Criminal Procedure Act 1967 from a judg-
ment of the Special Criminal Court as no verdict
is involved.
The Attorney-General has referred a question of law
to the Supreme Court under S.34 of the Criminal Pro-
cedure Act 1967. During the trial of the two accused
for offences under the Official Secrets Act 1963, the
Special Criminal Court ruled that the original docu-
ments to which the charges related must be produced
in Court, and that secondary evidence of them would
not be accepted. T h e Attorney-General resolutely re-
fused to produce these documents, and consequently,
at the end of the prosecution, as the Court took the
view that there was no evidence against the accused,
acquitted each of them of the offences charged. The
question submitted under S.34 of the 1967 Act was
whether the Judges of the Special Criminal Court had
acted correctly in these submissions.
Th e Court must first decide whether S.34 can be
applied at all to a criminal trial without a jury before
the Special Criminal Court. T h e S&etion states that
"where, on a question of law, a verdict in favour of an
accused person is found by direction of the Trial Judge,
the Attorney-General may, without prejudice to the
verdict in favour of the accused, refer the question of
law to the Supreme Court for determination". It fol-
lows that, for the section to apply, there must first be
a question of law upon which a direction is given by
the Trial Judge, in pursuance of which, a verdict is
found. A Direction of the Trial Judge presupposes the
existence of somebody whom he can direct and whose
duty it is to find a verdict—in other words a. jury.
Accordingly Section 34 does not apply to questions of
law arising out of a trial before the Special Criminal
Court.
Per
Hervchy
J.—S.34 represents an important restrict-
ion on the rights of an accused person and an im-
portant enlargement in the rights of the Attorney-
General in he circumstances contemplated. Before its
enactment, the verdict of a jury was final and unim-
peachable in every respect, and beyond the reach of
further judicial inquiry. Nevertheless it is provided
that the decision of the Supreme Court shall be with-
out prejudice to the verdict in favour of the accused.
It is to be noted that while the Attorney-General
may argue against the direction and while the trial
Judge may be consulted beforehand by the Attorney
before he settles the statement of the question to be
referred, the section gives no say whatever to the per-
son in whose favour the verdict was given in the pre-
paration of t he post-conviction proceedings which may
lead to a change in the legal basis of the verdict. In
England and in Northern Ireland, unlike here— (1)
T h e acquitted person is given the right to present an
argument o n the hearing of the reference; and (2) if
he appears by counsel, it shall be construed strictly.
S.34 plainly envisages a trial by jury, and not a Court
who must give a single majority decision, and who
has tried a case summarily—-S.34 limits the Attorney-
General's power of reference to a question of law on
which the verdict o f . t he jury was directed by the trial
judge, and not to prior questions of law, which may
have had a bearing, because of their effect on the evid-
ential content of the trial.
The People v Crinnion and Wyman—Supreme
Court (O'Higgins C. J., Walsh and Henchy JJ.
Separate judgments by each Judge—unreported
—14 July, 1975.
Sections
2
and 3 of the Forcible Entry and Oc-
cupation Act, 1971 are not unconstitutional.
The plaintiff and 7 others occupied a room in Iveagh
House, Dublin, on 30 September, 1971, and remained
in occupation thereof for H hours until removed by
Gardai. In respect of this sit in, she was prosecuted
under Section 3 of the Prohibition of Forcible Entry and
Occupation Act, 1971. The-defendant obtained an ad-
journment of the case in the District Court in
order to test by declaration the constitutionality of
some sections of this Act. This action was heard by
O'Keeffe P. who dismissed it. The plaintiff then ap-
pealed to the Supreme Court.
Th e Court held: —
(1) That in S.l of the 1971 Act, the words "any
person having an estate or interest in land" means
"having an estate or interest in the land in question".
(2) It is submitted that a landlord, mortgagee or
remainderman, although not entitled to immediate
occupation, would not be guilty of forcible entry by
virtue of the definition of "owner" in Section 1. It is
contended that what would be a crime under the Act
if done by a person with no estate or interest in the
land forcibly entered or occupied would not be a crime
under the Act if done by a person not in occupation
but who had an estate or interest in the land even
though he had no
bona-fide
claim of right. This was
alleged to constitute "discrimination" contrary to Art-
icle 4 0 ( 1) of 4he Constitution. Both the submission
and contention are rejected.
(3) From the definition pf "forcibly" in S.I, it is con-
tended that the person affected by the forcible entry
must have rights, in relation to property capable of be-
ing exercised by him, and a mortgagee or reversioner is
unlikely to have an immediate right of entry. Here the
owner of the land is the person whose immediate right
to occupy the land, or to enter upon it by virtue of some
estate or interest, has been interfered with. The per-
son will normally be the lawful occupier.
There is not in Section 2 or 3 of the Act any dis-
crimination, unfair or otherwise against what are
termed "the landless classes". The mischief against
which the Act seeks to provide is the forcible entry
upon and remaining in forcible occupation of land.
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