The Gazette 1977

GAZETTE

OCTOBER- 1977

Minister's opinion. The Act left the form of the writ

intact, but effectively swept away the substance. In sum,

the primary safeguard available to a detainee under S.4 is

the Detention Commission, composed of legally qualified

and experienced persons, with power to obtain

documents, and the decisions of which are binding on the

Government. There is no guarantee offered to the

Commission by the instrument creating it as to whether

proof on the balance of probabilities or beyond

reasonable doubt would be required. The Diplock

Commission seems to presume the latter in respect of the

present Northern Ireland procedures.

The Emergency Powers Act, 1976, has already been

discussed. The practical thinking behind detention

without trial as a means to control terrorist violence was

stated by the Taosieach in the following extract from the

debate on the Bill in Dail Eireann:

"Experience has shown that the period of 48 hours

during which persons can now be held in custody

under the law is often insufficient for the completion

of Garda inquiries in relation to serious offences of

the type in question. We have seen that the

organisation and execution of such offences can

extend widely over the country and involve a

substantial number of persons. The security

authorities consider that the extended period

available for questioning suspects—as information

becomes available in the course of inquiries—would

unquestionably help to bring to justice the

perpetrators of a significantly greater number of

offences before they can carry out further outrages.

The Government consider that in dealing with

ruthless paramilitary organisations, the necessary

limitation of individual liberty is fully justified".

Internment is ostensibly designed to contribute to the

collection of adequate evidence to secure convictions, and

to prevent criminal acts pending the achievement of these

convictions. That this represented Government policy in

relation to the 1940 Act was insisted upon in 1957 by the

then Minister for Justice, Mr. Oscar Traynor. He said

that internment under the Act was preventive, and denied

that it was being used by the Government as punishment:

"When satisfactory evidence of the commission of

offences is obtainable, the persons concerned are

charged with such offences, and, if convicted and

sentenced, suffer the punishment imposed by the

Courts. There is no question of substituting

detention for punitive imprisonment."

"Preventive justice", as it is called, received recent

judicial scrutiny in

Attorney-General v O'Callaghan

1966, in which Walsh J. condemned it as offensive to the

constitutional guarantee of personal liberty, and

envisaged its operation only in very definite

circumstances of national emergency:

"In this country it would be quite contrary to the

concept of personal liberty enshrined in the

Constitution, that any person should be punished in

respect of any matter upon which he has not been

convicted or that in any circumstance he should be

deprived of his liberty upon only the belief that he

will commit offences if left at liberty, save in the

most extraordinary circumstances spelled out by the

162

Oireachtas and then only to secure the preservation

of public peace and order or the public safety and

the preservation of the State or in some situation

akin to that."

It is unlikely that the judgments in

O'Callaghan's

case are

to be read as casting doubt on the constitutional validity

of the ancient jurisdiction to bind a person over to be of

good behaviour, and it must be presumed that the Court

confined itself to forms of preventive justice involving as a

direct consequence the deprivation of the individual's

liberty. Observations in the case on the Offences Against

the State Act, 1940, are consequently of considerable

interest. The Court appears to have treated detention

under this Act as a legitimate, although exceptional, form

of preventive justice, upholding the controversial verdict

of its predecessor given in

In Re Article 26 and the

Offences Against the State (Amendment) Bill, 1940,

which brusquely decide that

" . . . the detention is not in the nature of a

punishment, but is a precautionary measure taken

for the purpose of preserving the public peace and

order and the security of the State."

The willingness of the later Court to at least tacitly

approve of the definition of the interment without trial

procedure as "preventive justice" proves especially

disquieting in the light of Gavan Duffy J.'s scornful

rejection of the contention that detention without trial of a

person suspected of being engaged in treasonable

activities was preventive only, stated in

Burke's

case, and

which has received the almost unanimous preference of

commentators. An examination of S.55 of the Offences

Against the State Act, 1939, moved him to reach the

following conclusion:

" . . . indefinite internment under Part VI of the Act

is indistinguishable from punishment for engaging in

the activities in question, and . . . the decision of a

Minister of State to order the arrest and internment

of a man under S.55 is equivalent to a judgment

pronounced against the internee for his dangerous

activities.'"

Gavan Duffy J. used the facts of

Burke's

case to present an

inductive analysis of how the punitive potential of S.55

was being actively realised. Burke was originally arrested

under S.l2 of the 1939 Act for "being in possession of

seditious and incriminating documents", as defined in

S.2. When the Minister for Justice was appraised of the

circumstances of the defendant's arrest, he signed a

warrant for Burke's arrest and detention under S.55 of

the Act. The judge sharply criticised the practice:

"The inescapable conclusion . . . is that the

Executive Authority of the State, having under the

Act the right to prosecute for the alleged offence,

elected to take the alternative course of directing the

indefinite imprisonment without trial for the

"activity" of possessing seditious or incriminating

documents. And I am quite seriously asked to hold

that this internment was not punishment at all, but

merely a "deterrent" . . .'"

The 1966 approbation is made more extraordinary by the

following passage from the judgment of O Dalaigh C.J., in

which he points to a feature of the Offences Against the

State Act which would make the label "preventive