132 / 346
GAZETTE
JULY/AUGUST
1983
from the perspective of critical moral philosophy involved
in constitutional analysis. Thirdly, the
O Callaghan
2
premise resists an attempt to collapse the distinction
between criminal punishment and civil commitment. In a
criminal case, the subjective approach does not employ all
the factors relevant to the mental composition that might
suggest future dangerousness. The judicial process focuses
on a definite quality — the offender's intent — associated
with a past occurrence. Without an awareness of this
attribute the court would be incapable of framing conclu-
sions as to the harm-producing potential of the conduct,
the blameworthiness of the offender, nor even the
magnitude of the harm caused to the victim. Accordingly,
the very factors that compelled the Supreme Court to
question preventive detention in
O'Callaghan
would make
it morally troublesome to eschew the concern with subjec-
tive intention.
Conclusion
This article is not intended to suggest that correct
principles of criminal justice emerge full-blown from the
Constitution. It is common sense that constructive
analysis of constitutional principles in the domain of
criminal justice begins
in medias res.
For example, we
adhere to many important carryovers from common law
doctrine.
w
However, my stance has been that all elements
of our system of criminal justice must be evaluated in the
light of basic constitutional values. Central values are the
freedom and dignity of the individual as a morally autono-
mous personality. Implicit in this is the view that those
who assert that the Constitution should be kept off-limits in
a review of the criminal process have matters askew.
Recently, attacks have been directed at the constitutional
constraints on police powers on the basis that they
diminish the efficiency of the criminal law and its enforce-
ment.
40
Disregarding the point that that is precisely what
the Constitution is designed to do, the critics also fail to
take the moral philosophy of
O'Callaghan
seriously. And,
as I have attempted to show, the moral perspective
operative in that case governs the legislative power with
regard to the definition of crime. •
Footnotes
M wish to thank Raymond Byrne, BCL, LLM, Barristcr-at-Law, who
contributed to my understanding of the matters considered in this article.
I, of course, am solely responsible for its faults.
1. See J. M. Kellv,
The Irish Constitution
, pp. 286 IT.
2. [1966| I.R. 501.
3.
IhiJ.,
at 513-4.
4.
IN J.,
at 508-9.
5.
Ibid.,
at 513 (emphasis is added).
6. Laurcncc H. Tribe, "An Ounce of Detention: Preventive Justice in
the World of John Mitchell", (1970) 56 l'a. I.. Rev. 371, 404.
7.
Ibid.
, at p. 379.
8. [1966] I.R. 501, 517.
9. In our legal system the principle has been regarded as a more or less
self-evident requirement of justice: scc/LG.
r. Cunningham
[1932|
I .R. 28, where O'Byrne J. declared that the court "must have regard
to the fundamental doctrine recognised in the courts that the crimi-
nal law must be certain and specific, and that no person is to be
punished unless and until he has been convicted of an offence recog-
nised bv law a£ a crime and punishable as such". See also
The People
v. Edge
[1943] I.R. 125.
10. Unreported, High Court (McWilliam J ), 24 October 1
-9/8;
and
unreported, Supreme Court, 31 July 1980.
II. As amended and applied in Ireland by the Prevention of Crimes Act,
1871, and the Penal Servitude Act, 1891.
12. At p. 12 McWilliam J.'s judgment.
13. The majority invalidated three of the claimants' convictions.
McWilliam J. had invalidated two.
14. At pp. 7 and 8 of Hency J.'s judgment (Griffin and Parke JJ. con-
curring).
15. See
The Moralitv of Law
(1964) p. 53.
16. 283 U.S. 25, 27 (1931).
17. See,
e.g., People v. Murray
[1977] I.R. 368 (homicide);
People v.
MacEoin
[ 1978] I.R. 365 (manslaughter) and
People v. Dwver
[1972
I.R. 416 (self-defence).
18. H.L.A. Hart,
Punishment and Responsibility,
(Oxford, 1968) p. 182
19.
Ibid.,
at p. 140; see also the judgment of Stephen J. in
R. v. Tolsot.
(1889) 23 Q.B.D. 168.
20.
Ibid.,
at p. 147.
21.
Ibid.,
at pp. 150-151.
22. An example of an excuse is the defence of insanity. Self-defence is an
example of a justification.
23. See Barbara Wooton,
Social Science and Social Pathologv,
esp. Ch.
VIII.
24. Hart,
Punishment and Responsibility,
p. 181.
25. See
Doyle v. Wicklow County Council
[1974] I.R. 55. See also R. J.
O'Hanlon,
"Not Guilty Because
of
Insanity"
3 /r.
Jur.
(N.S.)
61. In
The People (Attorney General) v. Hayes
(Central Criminal Court, 30
November 1967), Henchy J., noting that "legal sanity does not
necessarily coincide with what medical men would call insanity",
said "but if it is open to the jury to say, as say they must, on the
evidence, that this man understood the nature and quality of his act,
and understood its wrongfulness, morally and legally, but that
nevertheless he was debarred from refraining from assaulting his
wife fatally because of a defect of reason, due to his illness, it seems to
me that it would be unjust, in the circumstances of this case not to
allow the jury to consider the case on these grounds".
26.
State (Heah) v. Donoghue
[1976| I.R. 325, 353.
27. In
Melling V. O Mathgamhna
[1962| I.R. 1, at 48.
28. [1963) I.R. 170.
29.
Ibid.,
at 182-183.
30.
Ibid.,
at 182-183.
31. See Cesare Beccaria,
An Essay on Crimes and Punishment
26 (London
1767).
32. See George Fletcher,
Rethinking Criminal Law
(Boston 1978).
33.
Ibid.,
at pp. 115-116. Fletcher argues, for example, that "manifest
criminality" requires that larceny be found only where the conduct
"bears the mark of a forcible or stealthful act of thieving" (at p. 86).
34.
Ibid.,
at p. 118.
35.
Ibid.,
at p. 389.
36.
Ibid.,
at p. 120.
37.
Ibid.,
at p. 170.
38.
Ibid.,
at p. 171.
39.
e.g.,
the presumption of innocence.
40. See McLaughlin "Legal Constraints in Criminal Investigation"
(1981) XVI
Ir. Jur. (NS)
217.
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