The Gazette 1977

GAZE1TE

DECEMBER1977

RECENT IRISH CASES Summaries ofjudgments prepared by Walter Beatty, Henry St. John Blake, John Buckley, Colum Gavan Duffy, and Michael Staines.

Justice did not establish this, the certificate is invalid and, therefore, the District Justice went outside her jurisdiction when she sentenced the accused to imprisonment. Her order should, therefore, be quashed by certiorari. The State (Holland) v. District Justice Eileen Kennedy and Governor, Mountjoy Prison. Supreme Court (O'Higgins C. J., Henchy J. and Kenny J.) — unreported—26 April, 1977. NATURAL JUSTICE Attempt of Trade Union to remove its Financial General Secretary from office declared null and void. The plaintiff Union sought a declaration that the defendant, who was its Financial General Secretary prior to the proceedings, had ceased to hold the office of Financial General Secretary of the Union while the defendant counterclaimed for a declaration: (i) That he had been at all material times and still was validly in office as the Financial General Secretary of the Union, and, (ii) That his purported removal from office was null and void by reason of the fact that meetings of the Resident Executive of the Union and its Executive Council which ultimately decided on the defendant's removal from office were not convened in accordance with the Rules of the plaintiff Union and that the procedures adopted thereat were unfair and contrary to the principles of Natural Justice in that (a) the defendant was not informed of the charges to be made against him, and, (b) he was not given an adequate opportunity of answering the said charges. The defendant also claimed damages for wrongful dismissal. The evidence indicated that for some time prior to the 2 March, 1977, that there had been a dispute between the defendant and the Resident Executive and the Executive Council of the plaintiff Union with regard to the manner in which the defendant was carrying out his functions as Financial General Secretary. At a meeting of the Resident Executive on the 2 March, 1977, the defendant's position was discussed and there was a complaint by officials of the plaintiff

Union with regard to the difficulty they were having in obtaining a refund from the defendant, in his official position, of expenses incurred by them in the course of their work. It was proposed and unanimously approved by those present at that meeting that a meeting of the Executive Council would be convened for the 11 March, 1977, at which certain charges would be brought aginst the defendant, and that the members of the Resident Executive would attend for the purpose of supporting the charges. The defendant was informed by letter dated the 4 March, 1977, that the Resident Executive had met on the 2 March, 1977, and the the defendant was summoned to attend the next meeting of the Resident Executive on the 9 March, 1977, to answer certain charges specified in the letter such as being absent from work without notification of his excuse for three days prior to and including the 2 March; failing to up-date the Branch Registers; failing to supply accounts of the plaintiff Union for the six previous years to the Resident Executive and Executive Council for endorsement; failing to attend promptly at the plaintiff Union Office as stipulated under Rule and by showing contempt, by his conduct at Executive meetings of the Union. The defendant was furthermore charged with attending less than half the meetings of the Executive over the previous twelve months and failing to discharge Union delegation expenses for a special conference of the I.C.T.U. held on the 22 February, 1977, in proper time and thereby causing the Union and its appointed delegates to be omitted from the Official I.C.T.U. circular. All these matters, it was contended, brought the Union into disrepute. Hamilton J. confirmed his satisfaction that the letter of the 4 March was posted to the defendant at his home on the 5 March, 1977, but was not delivered until after the defendant had left to go on holidays to the United States. He was also satisfied that a copy of this letter was delivered personally to the defendant at his Union office on the 5 March, 1977, between 1.00 p.m. and 1.15 p.m. The defendant left for the United .States on the 6 March, 1977, in accordance with arrangements made by him prior to the postal receipt of the letter dated the 4 March, 1977. The defendant was accordingly not present at the meetings of the 17

CERTIORARI CRIMINAL LAW

Section 102 of the Children's Act 1908. Actual evidence that the accused is "unruly" is essential before a young person can be committed to prison. Martin Holland was convicted in the Childrens' Court of an assault. Under Section 102 of the Childrens' Act 1908 the Court must certify that a young person (i.e., aged 15-17 years) is "of so unruly a character that he cannot be detained in a place of detention provided under this part of the Ac t . . . " The District Justice, without hearing any evidence as to the character of the accused (except the prosecuting Guard's testimony that he had no previous convictions), made the certificate and then sentenced him to one month in Mountjoy Jail. On appeal from an order of Hamilton J., making absolute a conditional order of certiorari quashing the order of the District Justice, held (per Henchy J.) (1) Before making such a certificate, the District Justice must be satisfied that the accused " is of so unruly a character (not that he has been so unruly) that he cannot be (not ought not to be) detained in the provided place of detention". Whereas the facts of the assault showed that the accused had been on one occasion violently aggressive, these facts, unrelated to any evidence of a behavioural pattern, could not justify the making of the certificate. (2) Proceeding by certiorari (and not by appeal) was the correct procedure in this case. The District Justice had, indeed, jurisdiction to hear the prosecution but the sentence of imprisonment was based on a certificate devoid of legal validity and, therefore, imposed without jurisdiction. Per Kenny J. (It is not sufficient that the evidence establishes that the young person is of an unruly character — it must further establish that he is so unruly that he cannot be detained in the place of detention. Since the evidence before the District