The Gazette 1971

tional requirement of trial by jury in all criminal offences except minor offences tried in the district court. The invalid provision is one which sought to punish a witness who refused to testify or produce documents or did anything which, if it were in a court, would amount to contempt of court. The effect of the judgment also renders unconstitu- tional similar or identical provisions in the Tribunals of Inquiry (Evidence) Act, 1921 (under which such in- quiries as the u 7 Days", the S.S.R. Shares and the Locke Tribunal were held—the Restrictive Trade Prac- tices Act, 1923, the Solicitors' Acts, the Control of Prices Act, 1937, and the Mineral Development Act, 1940). On the other hand, the court found to be unexcep- tionable the procedure set out in the Local Govern- ment Act 1941 and the Local Government (Planning and Development) Act, 1963. Dealing with another aspect of the appeal the Chief Justice, Mr. Justice Walsh, Mr. Justice Budd and Mr. Justice Fitzgerald held that Mr. Haughey had been wrongly denied the right to have Chief Superintendent Fleming cross-examined. Criminal Charge Giving the judgment of the court on the constitutional issue, the Chief Justice said that the major question raised by this appeal was the validity of Section 3 (4) of the Committee of Public Accounts of Dail Eireann (Privilege and Procedure) Act, 1970, having regard to the provisions of Article 38 of the Constitution. The relevant parts of Article 38 were in sections two and five which, read together, provided that no person should be tried on any criminal charge without a jury, save for minor offences which might be tried in courts of summary jurisdiction. Regarding Section 3 (4) of the Act, the Chief Justice said that the penalty authorised for the offence which was in question in this case was such penalty as could be imposed for contempt of the High Court. Contempt of court was a Common Law misdemeanour and as such was punishable by both imprisonment and fine at discretion, that was, without statutory limit. The offence which Section 3 (4) had created was a non-minor offence. The sentence imposed by the High Court was six months imprisonment and this would be within the range of penalty appropriate in the case of a minor offence. The present case was not a contempt of court case, but an ordinary criminal prosecution. The Public Accounts Committee had departed from the strict wording of the section which spoke of "certifying the offence" and, instead, certified that an offence had been committed by the witness. Judicial Function The trial of a criminal offence was an exercise of judicial power and was a function of the courts, not of a committee of the Legislature. The Committee of Public Accounts was not a court and its members were not judges. The Constitution of Ireland was founded on the doctrine of the tripartite division of the powers of government—legislative, executive and judicial. For a statute to confer on a committee of the Legislature a power to try a criminal offence would be repugnant to the Constitution and invalid and a conviction by such committee and any sentence pursuant thereto could not stand. Moreover, the courts could not, under the Constitu- tion, be used as appendages or auxiliaries to enforce the purported convictions of other tribunals. The Cons- titution vested the judicial power of government solely

in the courts and reserved exclusively to the courts the power to try persons on criminal charges. Trial, con- viction and sentence were indivisible parts of the exer- cise of this power. The Chief Justice said : "The impugned sub-section does not purport to make the offence here in question 'contempt of court'; it does no more than direct that the offence—an ordinary criminal offence—shall be punished in like manner as if the offender had been guilty of contempt of court. That is to say, it defines the punishment of the offence by reference to the punishment of contempt of Court of the High Court. "Moreover, it would not be competent for the Oireachtas to declare contempt of a committee of the Oireachtas to be contempt of the High Court. This is an equation that could not be made under the doctrine of the tripartite separation of the powers of govern- ment." Trial by Jury The jurisdiction of the High Court to try criminal offences was in accordance with the provisions of Article 38, section 5, a jurisdiction to try them only with a jury. Mr. Haughey was tried summarily. This concluded the judgment of the Supreme Court on the constitutionality of the Act. The Chief Justice then delivered his judgment on questions which were independent of the constitutionality of the Act. Mr. Justice Walsh and Mr. Justice Budd agreed with the Chief Justice's judgment. Dealing with Mr. Haughey's objections to part of the Committee's terms of reference, the Chief Justice said the examination of the expenditure of monies belonging to the Irish Red Cross Society, not being money granted by the Dail to meet public expenditure, was not a matter which, as such, fell within the jurisdiction of the Committee of Public Accounts. Beyond the Scope If, however, monies issued from the Dail Vote, were lodged in a bank account and Irish Red Cross Society monies were transferred to that account, forming a mixed fund, then for the purpose of segregating the funds the expenditure of the monies of the Irish Red Cross Society might incidentally be disclosed but, upon the monies being duly segregated, any further examina- tion into the expenditure into the Irish Red Cross Society monies would be outside the functions of the Committee of Public Accounts as defined in Standing Order 127. Mr. Haughey, he said, had also objected to any examination whatsoever into the expenditure of the grant-in-aid even though conducted within the terms of Standing Order 127 on the ground that the Standing Orders relative to Public Business had not been adopted by the Dail after the 1937 Constitution. The Chief Justice said it was surprising that the new Dail did not formally adopt a new body of Standing Orders after the Constitution came into force on Decem- ber 29th, 1937, and had not since done so. Instead the new House, it appeared, had continued to operate under the Standing Orders of the old Dáil Eireann, subject to amendment. In his opinion the Committee had authority to ad- minister an oath. In a criminal trial evidence must be given orally; a statute may authorise otherwise but the Act in this instance had made no exceptions. The High Court, therefore, should not have allowed the afRdavid evi- dence of the Chairman of the Committee. Mr. Haughey, in his opinion, was wrongly denied the right to cross-examine. 91