The Gazette 1977

OCTOBER- 1977

GAZETTE

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." 12 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, 13 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." 14 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.'" 5 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" . . .'" 6 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

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". 9 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." 10 "Preventive justice", as it is called, received recent judicial scrutiny in Attorney-General v O'Callaghan 11 in 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

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