The Gazette 1992

GAZETTE

SEPTEMBER

1992

matic weapons with intent to endanger life and with false imprisonment. He escaped from custody in Crumlin Road Prison on 10 June 1981, two days before the conclusion of his trial for these offences, and he was con- victed in his absence. The longest sentence he recieved was for five years. He was ar- rested in this State in January 1982 and charged with and convicted of offences arising from his escape from custody, pursuant to the Criminal Law (Jurisdiction) Act 1976. In Oc- tober 1989, the District Court ordered his extradition to Northern Ireland in relation to the 1981 convictions. The applicant sought his release pursuant to s.50 of the 1965 Act. In the course of the hearing, an undertaking was given that the applicant would only be required to serve the balance of his 1981 sentence and that the term served in respect of the convictions in this State would be taken into account. HELD by Lynch J dismissing the applicant's claims: (1) the 1987 Act was not inconsistent with Article 15.5 of the Constitu- tion since it did not create a retrospective criminal act but involved the exclusion of certain offences from being regarded as po- litical offences and thus merely developed the law on political offences; (2) the aims and purposes ofthe IRA, in connection with which the offences in question had been committed, involved an attempt to overthrow the institu- tions established by the Constitution, but since the particular offences with which the applicant had been involved might not have had such a purpose they could be regarded as political within s.50ofthe 1965 Act, subject to the 1987 Act. Finucanev McMahon [1990] ILRM 505; [1990] 1 IR 165 applied; (3) since the circumstances of the applicant's posses- sion of the automatic weapons involved in the offences alleged did not, at that time, involve a present danger to persons, the pos- session offence did not fall within the exclu- sion in s.3(3)(a) of the 1987 Act (which states that the political exemption shall not apply to possession of firearms 'if such use endangers persons') and he was thus entitled to rely on the political exemption in respect of that offence; (4) the offence of false imprisonment with which the applicant was involved was a 'serious false imprisonment' within s.3(3)(a) of the 1987 Act and thus the appl icant was not entitled to rely on the political offence ex- emption in s.50 of the 1965 Act in respect of that offence and his extradition should be ordered. On appeal, the only issues raised were whether the possession of firearms fell within the terms of s.3(3)(a) of the 1987 Act and the effect of the undertaking given by the Northern authorities. HELD by the Supreme Court (Finlay CJ, Hamilton P, Hederman, McCarthy and Egan JJ) allowing the appeal: (1) the exclusion in s.3(3)(a) should be strictly construed and since it referred to the use of firearms in the present tense it should not be interpreted as applying to the case where firearms possession might in the future en- danger persons; if that had been the intention of the Oireachtas, it could have used clear language to indicate that intention; (2) since the Northern authorities had undertaken that the applicant would only serve the balance of his five year sentence, taking account of the sentence served in this State, the effect at this stage was that the applicant would be re- leased immediately on rendition to Northern Ireland, and since the courts would not act in vain his release should be ordered. Quaere

(per McCarthy J): whether a requesting State should be encouraged to give undertakings that its laws would not be enforced in respect of a citizen of its own State. Dicta in Bourke v Attorney General [1972] IR 36 approved. McKee v Culligan High Court, 25 January 1991; Supreme Court, 15 November 1991 CRIMINAL LAW - EXTRADITION - POLITICAL OFFENCE - EXCLUSION BY LEGISLATION OF CERTAIN OFFENCES FROM BEING CONSIDERED POLITICAL OFFENCES - WHETHER AMOUNTING TO CREATION OF RETRO- SPECTIVE CRIMINAL ACT - FIREARMS OFFENCES - WHETHER POLITICAL - Extradition Act 1965, s.50 - Extradition (European Convention on the Suppression of Terrorism) Act 1987, s.3 The applicant had been charged in the courts of Northern Ireland with possession of auto- matic weapons with intent to endanger life. He escaped from custody in Crumlin Road Prison on 10 June 1981, two days before the conclusion of his trial for these offences, and he was convicted in his absence. He was arrested in this State in December 1981 and charged with and convicted of offences aris- ing from his escape from custody, pursuant to the Criminal Law (Jurisdiction) Act 1976. In October 1989, the District Court ordered his extradition to Northern Ireland in relation to the 1981 convictions. The applicant sought his release pursuant to s.50 of the 1965 Act. HELD by Lynch J granting the applicant's claim and ordering his release: (1) the 1987 Act was not inconsistent with Article 15.5 of the Constitution since it did not create a retrospective criminal act but involved the exclusion of certain offences from being re- garded as political offences and thus merely developed the law on political offences; (2) since it had not been established that the particular offences with which the applicant had been involved were intended to over- throw the Constitution, they could be re- garded as political within s.50 of the 1965 Act, subject to the 1987 Act. Finucane v McMahonl 1990] ILRM 505; [1990] 1 IR 165 applied; (3) as the circumstances of the appli- cant's possession of the automatic weapons involved in the offences alleged did not, at that time, involve a present danger to persons, the possession offence did not fall within the exclusion in s.3(3)(a) of the 1987 Act (which states that the political exemption shall not apply to possession of firearms 'if such use endangers persons') and he was thus entitled to rely on the pol itical exemption in respect of that offence, and was thus entitled to his release. On appeal, the only issue was whether the possession offence fell within s.3(3)(a) of the 1987 Act. HELD by the Supreme Court (Finlay CJ, Hamilton P, Hederman, McCarthy and Egan JJ) dismissing the appeal: the exclu- sion in s.3(3)(a) should be strictly construed and since it referred to the use of firearms in the present tense it should not be interpreted as apply i ng to the case where fi rearms posses- sion might in the future endanger persons; if that had been the intention of the Oireachtas, it could have used clear language to indicate that intention. Sloan v Culligan (Supreme Court, 15 November 1991) (supra) applied. Keady v Garda Commissioner Supreme Court 26 November 1991 GARDA SIOCHANA - DISCIPLINARY INQUIRY - WHETHER EXERCISING JUDICIAL POWER - MEMBER CHARGEDWITH CRIMINAL OFFENCES - SUBSEQUENT ENTRY OF NOLLE PROSEQUI - DISCIPLINARY CHARGES PROCEEDED WITH - WHETHER INVALID - Constitution, Article 34.1 - Garda Siochana (Discipline) Regulations

1971, Reg.6, Schedule The plaintiff, then a member of the Carda Siochana, was charged with a number of offences relating to claims in respect of night duty while a member of the Carda. Having opted for trial on indictment, a nolle prosequi was subsequently entered. Disciplinary pro- ceedings under the 1971 Regulations were then instituted against the plaintiff arising out of the same facts which had given rise to the criminal proceedings. The plaintiff was dis- missed from the Carda arising from these proceedings. The plaintiff challenged the va- lidity of these proceedings. Costello J dis- missed the claim (High Court, 1 December 1988) (1989) 7 ILT Digest 260. On appeal HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismissing the appeal: (1) the requirement in Article 38 that all criminal matters must be tried in die course of law in the courts did not preclude the investigation of such claims before administrative or domestic tribunals such as that constituted under the 1971 Regu- lations. The State (Murray) v McRann [1979] IR 133 approved; (2) the reference in the Schedule to the 1971 Regulations to criminal conduct in respect of which there was a conviction in the courts did not preclude the investigation of conduct with criminal con- notations under separate headings, as oc- curred in the instant case. Semble: no argu- ment was addressed as to a possible estoppel arising; (3) the inquiry under the 1971 Regu- lations did not constitute an administation of justice within Article 34.1 since there was no determination as such (though the proceed- ings must be conducted in a judicial manner in accordance with fair procedures), and al- though the plaintiff was deprived of a particu- lar means of earning his livelihood, he was not deprived of any qualification in the proc- ess. I n re the Solicitors Act 1954 [ 1960] IR 2 39 and K. v An Bord Altranais [1990] 2 IR 396 distinguished. The defendant Corporation, as sanitary au- thority, declared a building to be dangerous within the meaning of the 1964 Act. Under s.3 of the 1964 Act, it gave notice in March 1988 to the plaintiff, the occupier of the adjoining building, of its intention to enter and demolish the dangerous building. The plaintiff obtained an interim injunction re- straining such demolition unless the defend- ant provided the plaintiff's building with ad- equate support and protection against the weather. It was accepted that the plaintiff's premises enjoyed an easement of support from the dangerous bu i Id i ng. Costel lo J granted a permanent injunction in the terms sought. On appeal by the Corporation HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismissing the appeal: (1) where the Corporation exer- cises its power to demolish a dangerous build- ing under s.3 of the 1964 Act, this cannot be done unless existing easements of support are protected, since otherwise the Corporation would be in breach of its overall obligation Treacy v Dublin Corporatiion Supreme Court 26 November 1991 LOCAL GOVERNMENT - SANITARY AUTHORITY - POWER TO ENTER AND DEMOLISH DANGEROUS BUILDING - ADJOINING TERRACED BUILDING HAV- ING EASEMENT OF SUPPORT - WHETHER SANITARY AUTHORITY OBLIGED TO CONTINUE EXISTING SUP- PORT - Local Government (Sanitary Services) Act 1964, s.3(2)(a)

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