In the Irish Courts
| Published date | 01 January 1977 |
| Date | 01 January 1977 |
| DOI | 10.1177/002201837704100109 |
| Subject Matter | Article |
In
the Irish Courts
Comments
on
Cases
DETAINER
IN LEGAL
CUSTODY
R. (O'Neill) v. National Insurance Commissioners
In the earlier
National
Insurance
Acts, it was provided
that
a
person
was disqualified from receiving a
retirement
pension if he was
"undergoing
penal
servitude,
imprisonment
or detention in legal cus-
tody".
From
at
least the
year
1941, the Commissioners imposed a
restricted
meaning
on
that
phrase.
In R(S) 20/53, acommissioner held
that
the words
"detention
in legal
custody"
cannot
bear
their
full
meaning,
since this
would
include
penal
servitude
and
imprisonment
and
so
render
those
latter
terms superfluous. In 1954,
Lord
Goddard
C.].
said
(albeit obiter) in R. v. National
Insurance
Commissioner
(1954,3
All
E.R. 292,294; 19J.G.L. 88)
that
"legal
custody"
means
custody by
virtue
of
adecision
and
order
of
a
competent
court,
whether
that
custody
be
imprisonment
or
other
form
of
detention. No reason was
suggested for this
limitation
upon
the
ordinary
meaning
of the words.
The
pratice
of
the
Commissioners
has
always been not to
apply
the
phrase
to a
person
who
is an
involuntary
patient
in a
mental
institution.
In R(S) 3/55, the commissioner held
that
the
phrase
did
not
apply
to a
young
person
detained
in
an
industrial
school
and
later
transferred to
an
institution
for defectives.
The
result
of
this practice is seen in the
categorical
statement
in
Halsbury's
Laws
of
England,
vol. 27.
para.
f354
that
"undergoing
...
detention
in legal
custody"
means
"deten-
tion by
the
order
of a
court
exercising
criminal
jurisdiction
in accor-
dance
with
criminal
law."
In R. (O'Neill) v. National
Insurance
Commissioners
(1974,
N.I. 76), a
person
was
arrested
in
Northern
Ireland
in
purported
exercise
of
powers conferred by the Regulations
made
under
the Civil Authorities
(Special Powers)
Act
of
1922. An
interment
order
was served on
him
and
he was
detained
first in prison
and
then
in the
Internment
Centre
at
Long
Kesh.
The
Northern
Ireland
Commissioners held
that
he was
entitled
to receive his
retirement
pension
during
internment.
The
insurance
officer
thereupon
sought
orders
of
certiorari
and
mandamus
to
have
the
Commissioners'
decision
quashed.
The
relevant
statu
te, the
National
Insurance
Act
(Northern
Ireland),
1968, disqualifies aperson
from benefit
ifhe
is
undergoing
"imprisonment
or
detention
in legal
custody".
It
will be
remarked
that
the earlier
statutes
related to
penal
servitude,
imprisonment
or legal custody.
It
could be
argued
that
the
words
"penal
servitude
or
imprisonment"
create agenus
of
custody
following conviction
of
crime, so
that,
as
an
earlier commissioner held,
59
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