The Gazette 1980

1980

JULY-AUGUST

GAZETTE

continued detention the place where the Prosecutor happened to be when, because of illness, he could not attend in court, and that the District Justice did not need to specify the place of detention save to effect a change. Held (per Gannon J.): (1) That the District Court Order of 13 October 1978 was not bad on its face and was not made without or in excess of jurisdiction, as that order of remand made pursuant to Section 24(4) of the Criminal Procedure Act 1967 was not an adjudication of a judicial nature but was adminis- trative only and none of the grounds of objection to that order were pertinent to such an administrative order. Per Gannon J. "The provision of a place for detention of a person under an order of commital by the court, whether as a convicted person or as a person awaiting trial follow- ing a determination that there is, prima facie, evidence to justify holding a trial, is a function of the executive authority of the State. I do not think an order of the District Justice is bad merely on the grounds that it does not specify the place of detention, but it may be bad if it should direct the detention to be in a place not per- mitted by law." At no time was the District Justice required to, nor did he, in fact, either determine the nature or effect of evidence in support of the charge, or determine whether the Prosecutor was "unfit to plead" under Section 207 of the Mental Treatment Act 1945 — both of which would have been judicial functions. Per Gannon J. "A decision as to whether a person is "unfit to plead" is a judicial decision founded on medical evidence and is not a medical decision. The determina- tion of that issue is a judicial function which should be per- formed in a judicial manner upon proper notice to the Prosecutor with proper opportunity for him, if required, to be adequately repre- sented and should not be post- poned indefinitely at the instance initially of the Minister for Justice and thereafter by medical officers."

The case shown was allowed and the conditional order of certiorari was discharged. (2) That, as the only warrant for his authority offered by the director of the Central Mental Hospital (first respondent) for the detention there of the Prosecutor was the order of the Minister for Justice made on the 12 May 1975, and, as that ministerial order was effective only for the limited period (i.e. until the next remand on 15 May 1975) stated in it, and, as no further or subsequent order had been made by the Minister, there was no valid or sufficient warrant of authority for detention by the director and the continued detention of the Prosecutor there had not been justified in law. The pur- ported cause shown against the conditional order of Habeas Corpus was disallowed and an order for the release of the Prosecutor pursuant to Article 40.4.2. of the Constitution issued. The State (Caseley) v. Daly and O'Sullivan - High Court (per Gannon J.) - 19 February 1979— unreported. An assurance given as an element in a "package" settlement of a claim for increased remuneration dependent on the outcome of other employees' negotiations then being determined by the Labour Court formed part of a binding Contract between the employee and the employer through his Union which negotiated the settle- ment. The Plaintiff was an experimental officer in the employment of the Defendant and one of a group classified as "technicians" for the purposes of his conditions of employ- ment. In early 1970 a claim for increased remuneration for a two year period up to 1st April, 1972, was made and negotiated by officers of the AUEW (TASS) of which Union the Plaintiff was a member. When these direct negotiations broke down the parties met under the auspices of the conciliation depart- ment of the Labour Court. Negotia- tions then proceeded between the parties by way of correspondence, CONTRACT OF EMPLOYMENT

"And I did adjudge that evidence of Dr. E. H. that due to illness (the Prosecutor) could not appear in court. Might be fit for court in three months. Remand 12/1/79 at 10.30 a.m." Also on 6 November, 1978, the Prosecutor was granted a Condi- tional Order of Habeas Corpus ad subjiciendum, directed to the first Respondent, the director of the Central mental Hospital. It was argued on behalf of the Prosecutor that the confinement authorised by the Order of the Minister for Justice of 12 May 1975 was expressed to be for the duration only of the remand in custody to 15 May 1975, directed by the District Court Order of 9 May 1975; that in that respect the order of the Minister conformed precisely to the terms of Section 13 of the 1875 Act as restricted and adapted in accordance with the judgment of the Supreme Court in The State ("C") v. The Minister for Justice, [1967] I.R. 106, at pp. 113 and 123; that the order of 13 October 1978, was defec- tive in that it did not specify the place of detention for the period of remand, and was made in excess of jurisdic- tion insofar as it purported to authorise the detention to be in the Central Mental Hospital or any- where other than in a prison; that the effect of Section 13 of the 1875 Act, as construed by the Supreme Court in The State ("C") v. The Minister for Justice (supra) was that a new and further order under Section 13 was necessary in respect of each period of remand, provided such remand be "for further examination"; that, on the authority of The State ("C") v. Daly, 11977] I.R. 312, the District Justice had no authority to commit the Prosecutor to the Central Mental Hospital for detention there and that his order of 13 October 1978 could not be a sufficient warrant for the continued detention of the Prose- cutor in that hospital. It was argued on behalf of the Respondents that the District Court Order of 13 October 1978 and preceding orders had been made prusuant to Section 24 of the Criminal Procedure Act, 1967, the effect of which section was that the District Justice, when continuing the remand in custody of the Prosecutor, had to adopt as the place of