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O'Shea v. Ireland [1998] IESC 23 (29th July, 1998)
AN
CHÚIRT UACHTARACH
THE
SUPREME COURT
O'Flaherty
J,
Keane
J,
Lynch
J,
(66/98)
BETWEEN
COLM
O'SHEA
Applicant
.V.
IRELAND,
THE
GOVERNOR OF PORTLAOISE PRISON
Respondents
Judgment
(ex-tempore) delivered on the 29th day of
July,
1998, by O'Flaherty
J.
This
is an appeal by applicant herein from the order of Kelly
J.
of
27th March, 1998, refusing him leave to apply for an order pursuant to Article
40.4.2° of the Constitution. The applicant is currently serving forty
years penal servitude, having been previously sentenced to death upon
conviction of the capital murder, in 1980, of a member of an garda siochana in
the course of his duty, the said death sentence having been commuted by the
President of Ireland on the advice of the government.
1. The
applicant sought an enquiry under Article 40.4.2° of the Constitution on
the grounds that:
-2-
contrary
to the Treaty for European Union, the International Bill of Human Rights, the
law and Constitution, and
(2) The
Presidential order, by which he is currently imprisoned, is bad on its face, in
that it cites no authority or law.
2. Mr.
Justice Kelly in course of his judgment rejected both of these grounds. As
regards the first one, he said he could find no basis in law for the complaint
and refused to order an enquiry into the legality of the applicant's detention.
3. As
regards the second he said:
"In
making the order that he did the President clearly exercised his entitlement
under Article 13.6 of the Constitution which reads: -
'The
right of pardon and the power to commute or remit punishment imposed by any
court exercising criminal jurisdiction are hereby vested in the President, but
such power of commutation or remission may, except in capital cases, also be
conferred by law on other authorities."'
4. The
learned High Court judge goes on to say:
"The
power to commute or remit punishment in capital cases can only be exercised by
the President, acting on the advice of the Government. I reject the contention
that the Presidential order is bad on its face because it does not cite any
authority or law. It
-3-
does
not have to. I also reject the other complaint that is made under this heading."
5. That
was the learned High Court judge's conclusion. I think he was right in all
respects and I would dismiss the appeal.
Ex-temp
346
JO'F
- DO'C
© 1998 Irish Supreme Court
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