In the Irish Courts
| Published date | 01 April 1957 |
| Date | 01 April 1957 |
| DOI | http://doi.org/10.1177/002201835702100206 |
| Subject Matter | Article |
In the Irish Courts
SUPREME
COURT
IN
EIRE
THE
POWER
TO REMAND
The State (O'Flaherty) v. O'Flynn
Is
the
power to remand in custody merely amatterof 'practice
and
procedure'?
This
question divided the opinions of the
Bench in The State (O'Flaherty) v. O'Flynn (90
I.L.T.R.
179),
in which the length of a remand which may be made by a
District Justice was in issue. By s. 21 of the Indictable Offences
(Ireland) Act, 1849 (as amended in 1914), it is provided
that
the
length of a remand in custody made by a Justice is not to
exceed eight days. By Rule 55 (4) of the District
Court
Rules,
1948, however, it is laid down
that
aJustice may remand a
person in custody for
not
more
than
fifteen days. These
Rules were made by a Rule-making Committee established
by s. 70 of the Courts of Justice Act, 1924, s. 91 of which
enacts
that
that
Committee may make Rules
"for
regulating
(inter alia) the practice
and
procedure of
the
District
Court
generally ...
and
the
adaptation
or
modification of any statute
that
may be necessary for any of the matters aforesaid
and
all
subsidiary matters". Purporting to exercise its powers
under
this section,
the
Committee issued Rule 1(3) in
the
terms
that
"where
the Rules conflict with any statute in force at the date
of
the
making of these Rules such statute may be modified or
adapted to the extent of such conflict".
In
O'Flynn's case (supra), Davitt J. held, in the High
Court,
that
Rule 55 (4), permitting aremand for fifteen days,
was ultra vires in so far as it permitted aremand beyond the
eight days allowed in the Act. He so held on
the
ground
that
remanding aperson in custody is more
than
aquestion of
practice
and
procedure, so that
the
Committee's power to
make Rules relating to those matters could
not
be called an aid
in
support
of the Rule.
On
appeal to the Supreme Court, this
opinion was upheld,
but
Maguire C.J. dissented on
the
ground
that
"the
power given is wide
and
...
intended to empower
the
Committee to alter as it deems necessary provisions in
148
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