In the Irish Courts
| Published date | 01 October 1956 |
| DOI | 10.1177/002201835602000407 |
| Date | 01 October 1956 |
| Subject Matter | Article |
In the Irish Courts
SUPREME
COURT
IN
EIRE
CHALLENGE TO
THE
JURISDICTION
The State v. Minister for Justice &ors.
INthis case (90 I.L.T.R. 116),
"the
points of law admit of a
clear answer" (per Murnaghan J.).
The
case is for this
reason the more remarkable as an instance of a fight to
the
last ditch on legal technicalities.
The
accused had been con-
victed before Judge McCarthy in the Circuit Criminal Court
in
Dublin
of unlawfully and maliciously setting fire to certain
premises with intent to injure and defraud and of conspiracy.
He was sentenced to three years' penal servitude. His applica-
tion for leave to appeal to the Court of Criminal Appeal
and
to the Supreme
Court
having been refused, he was lodged in
Portlaoighise gaol. He then obtained awrit of habeas corpus,
which he asked
the
High
Court
to make absolute on the ground
that
his imprisonment was illegal by virtue of the fact
that
the
judge
who tried and sentenced him had not been appointed in
the
proper constitutional manner. He argued, in
the
first
place,
that
the constitution envisaged the setting up of new
courts, and that the power to fill vacancies contained therein
must
refer to such courts only, so that there was no power to
fill vacancies in courts which had merely been allowed to
continue as an interim measure.
To
this the Supreme Court
replied:
"It
is impossible for courts to exercise jurisdiction
without judges
and
we know that since 1937 many vacancies
have occurred and few of the Judges then in officecontinue in
office at the present time".
This, one may say so with respect, is not an answer to
the
accused's argument; and it does not follow
that
(as the
Court
suggested)
"the
appointment of the Circuit Court Judge
on the occasion in question was not only permissible,
but
obligatory".
The
accused argued, in the second place,
that
the Judge's appointment had, in any event, been wrongly
374
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