The Gazette 1975

Recent Irish Cases No reference can be made by the Attorney Gen- eral to the Supreme Court under Section 34 of the Criminal Procedure Act 1967 from a judg- ment of the Special Criminal Court as no verdict is involved. The Attorney-General has referred a question of law to the Supreme Court under S.34 of the Criminal Pro- cedure Act 1967. During the trial of the two accused for offences under the Official Secrets Act 1963, the Special Criminal Court ruled that the original docu- ments to which the charges related must be produced in Court, and that secondary evidence of them would not be accepted. T h e Attorney-General resolutely re- fused to produce these documents, and consequently, at the end of the prosecution, as the Court took the view that there was no evidence against the accused, acquitted each of them of the offences charged. The question submitted under S.34 of the 1967 Act was whether the Judges of the Special Criminal Court had acted correctly in these submissions. Th e Court must first decide whether S.34 can be applied at all to a criminal trial without a jury before the Special Criminal Court. T h e S&etion states that "where, on a question of law, a verdict in favour of an accused person is found by direction of the Trial Judge, the Attorney-General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination". It fol- lows that, for the section to apply, there must first be a question of law upon which a direction is given by the Trial Judge, in pursuance of which, a verdict is found. A Direction of the Trial Judge presupposes the existence of somebody whom he can direct and whose duty it is to find a verdict—in other words a. jury. Accordingly Section 34 does not apply to questions of law arising out of a trial before the Special Criminal Court. Per Hervchy J.—S.34 represents an important restrict- ion on the rights of an accused person and an im- portant enlargement in the rights of the Attorney- General in he circumstances contemplated. Before its enactment, the verdict of a jury was final and unim- peachable in every respect, and beyond the reach of further judicial inquiry. Nevertheless it is provided that the decision of the Supreme Court shall be with- out prejudice to the verdict in favour of the accused. It is to be noted that while the Attorney-General may argue against the direction and while the trial Judge may be consulted beforehand by the Attorney before he settles the statement of the question to be referred, the section gives no say whatever to the per- son in whose favour the verdict was given in the pre- paration of t he post-conviction proceedings which may lead to a change in the legal basis of the verdict. In England and in Northern Ireland, unlike here— (1) T h e acquitted person is given the right to present an argument o n the hearing of the reference; and (2) if he appears by counsel, it shall be construed strictly.

S.34 plainly envisages a trial by jury, and not a Court who must give a single majority decision, and who has tried a case summarily—-S.34 limits the Attorney- General's power of reference to a question of law on which the verdict o f . t he jury was directed by the trial judge, and not to prior questions of law, which may have had a bearing, because of their effect on the evid- ential content of the trial. The People v Crinnion and Wyman—Supreme Court (O'Higgins C. J., Walsh and Henchy JJ. Separate judgments by each Judge—unreported —14 July, 1975. The plaintiff and 7 others occupied a room in Iveagh House, Dublin, on 30 September, 1971, and remained in occupation thereof for H hours until removed by Gardai. In respect of this sit in, she was prosecuted under Section 3 of the Prohibition of Forcible Entry and Occupation Act, 1971. The-defendant obtained an ad- journment of the case in the District Court in order to test by declaration the constitutionality of some sections of this Act. This action was heard by O'Keeffe P. who dismissed it. The plaintiff then ap- pealed to the Supreme Court. Th e Court held: — (1) That in S.l of the 1971 Act, the words "any person having an estate or interest in land" means "having an estate or interest in the land in question". (2) It is submitted that a landlord, mortgagee or remainderman, although not entitled to immediate occupation, would not be guilty of forcible entry by virtue of the definition of "owner" in Section 1. It is contended that what would be a crime under the Act if done by a person with no estate or interest in the land forcibly entered or occupied would not be a crime under the Act if done by a person not in occupation but who had an estate or interest in the land even though he had no bona-fide claim of right. This was alleged to constitute "discrimination" contrary to Art- icle 4 0 ( 1) of 4he Constitution. Both the submission and contention are rejected. (3) From the definition pf "forcibly" in S.I, it is con- tended that the person affected by the forcible entry must have rights, in relation to property capable of be- ing exercised by him, and a mortgagee or reversioner is unlikely to have an immediate right of entry. Here the owner of the land is the person whose immediate right to occupy the land, or to enter upon it by virtue of some estate or interest, has been interfered with. The per- son will normally be the lawful occupier. There is not in Section 2 or 3 of the Act any dis- crimination, unfair or otherwise against what are termed "the landless classes". The mischief against which the Act seeks to provide is the forcible entry upon and remaining in forcible occupation of land. .205 Sections 2 and 3 of the Forcible Entry and Oc- cupation Act, 1971 are not unconstitutional.