R v Secretary of State for Home Affairs, ex p O'Brien

Last updated

R v Secretary of State for Home Affairs ex parte O'Brien [1923] 2 KB 361 was a 1923 test case in English law that sought to have the internment and deportation of Irish nationalist sympathisers earlier that year declared legally invalid. In March 1923 between 80 and 100 suspected Irish nationalists in Britain were arrested by the police and sent to the Irish Free State under the Restoration of Order in Ireland Act 1920 (ROIA). One of the detainees, Art O'Brien, challenged his detention in a test case at a divisional court. The case eventually went to both the Court of Appeal and House of Lords, who decided that the internments were illegal because the Irish Free State was an independent nation and so British acts of Parliament no longer applied to it.

Contents

The decision effectively illegalised the ROIA and led to the immediate release of O'Brien and the other detained individuals, who sued the British Government for false imprisonment. The government pushed through the Restoration of Order in Ireland (Indemnity) Act 1923, which limited the money they had to pay the detainees, who eventually received £43,000. O'Brien himself was re-arrested and found guilty of sedition, and was imprisoned until 1924.

Background

Following the Irish War of Independence the Irish Free State was set up as an independent British Dominion covering most of the island of Ireland. After a brief civil war between the pro-Free State forces and members of the Irish Republican Army (IRA) who wanted any independent nation to cover the entire island the status of the Irish Free State was confirmed, and the IRA forced underground. [1] The IRA had supporters in the United Kingdom, working openly as the Irish Self-Determination League (ISDL), and the Free State government shared the names of these supporters with the British authorities, who kept a close eye on them. [1] Between February and March they provided information on individuals that they said were part of widespread plots against the Irish Free State being prepared on British soil. [2] On 11 March 1923 the police in Britain arrested IRA sympathisers living in Britain including Art O'Brien, the head of the ISDL. [3] Sources disagree on numbers, giving either approximately eighty [4] or approximately 100. [3] The arrested men were placed on special trains and sent to Liverpool, where they were transferred to Dublin via a Royal Navy destroyer. [4] It later transpired that not only were many British citizens (Art O'Brien himself had been born in England), [5] at least six had never even been to Ireland before. [3]

The next day the arrests were publicly queried in the House of Commons, and a Labour backbencher Jack Jones started a debate on the subject in the afternoon. W.C. Bridgeman, the Home Secretary, said that he had directly ordered the police to arrest the ISDL members under the Restoration of Order in Ireland Act 1920, and that he had consulted the Attorney General who considered it legal. [3]

Divisional court

A few days after the arrests the solicitors for one of the deported men, Art O'Brien, got in contact with Sir Patrick Hastings KC, a Member of Parliament for the Labour Party and a noted barrister. [6] On 23 March 1923 Hastings represented O'Brien in front of a divisional court consisting of Mr Justice Avory and Mr Justice Salter to apply for a writ of habeas corpus for O'Brien as a test case to allow the release of the others. The initial hearing did not go anywhere because Hastings was unable to provide an affidavit from O'Brien (who was in Mountjoy Prison), [5] which was required for a writ of habeas corpus to be considered, but by the time the hearing was resumed on 10 April he had managed to obtain one. [6] Hastings argued that because the Irish Free State was an independent nation the British laws governing it, such as the 1920 act, were effectively repealed. [7] In addition the Home Secretary had no power to order an individual to be detained overseas because he had no control over what happened to them there. [7]

The court eventually declared that they could not issue a writ, because the Habeas Corpus Act 1862 prevented them from issuing a writ to any colony possessing a court which could also issue a writ. Since Ireland possessed such a court, the English divisional court could not act. [7] Hastings attempted to argue that the writ could be issued against the Home Secretary but this also failed, since the Home Secretary did not actually possess O'Brien. [8]

Court of Appeal and House of Lords

The decision was then appealed to the Court of Appeal and argued on 23 and 24 April. [8] The Court of Appeal reversed the divisional court's decision. [9] The court decided that the Restoration of Order in Ireland Act 1920 had been implicitly repealed when the Irish Free State, an independent nation, came into existence. In addition it was not proper for the Home Secretary to order the detention and deportation of someone overseas, since they had no control over what happened to them. [10] It was completely appropriate to issue a writ of habeas corpus against the Home Secretary because, even though he did not physically have O'Brien, he was considered responsible for him. [8] The Home Secretary was accordingly ordered to produce O'Brien before the court on 16 May. [11]

He appealed to the House of Lords, who decided (led by Lord Birkenhead) that they did not have the jurisdiction to hear the appeal, [11] since a rule of English law specifies that once a writ of habeas corpus is issued (as it was by the Court of Appeal) no superior court can overrule it. [12] After a further attempt to keep O'Brien in custody (simply by not letting him out of prison) [4] he was finally released on 16 May. [11]

Aftermath

O'Brien immediately sued the British Government for false imprisonment, and to avoid any liability the government prepared the Restoration of Order in Ireland (Indemnity) Act 1923 which would indemnify them against any claims for damages by the imprisoned sympathisers. [10] The Labour Party whittled it down when it was being prepared so that it would only limit compensation rather than remove it entirely. [11] A tribunal was set up under Lord Atkin to assess damages, and the sympathisers as a whole were eventually paid £43,000. [10] Art O'Brien himself was arrested soon after release and convicted of sedition. [13] He was released in 1924. [10]

Related Research Articles

Habeas corpus is a recourse in law by which a report can be made to a court in the events of unlawful detention or imprisonment, requesting that the court order the person's custodian to bring the prisoner to court, to determine whether their detention is lawful.

<i>Ex parte Merryman</i> United States legal case

Ex parte Merryman, 17 F. Cas. 144 (No. 9487), was a controversial U.S. federal court case that arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus" under the Constitution's Suspension Clause, when Congress was in recess and therefore unavailable to do so itself. More generally, the case raised questions about the ability of the executive branch to decline to enforce judicial decisions when the executive believes them to be erroneous and harmful to its own legal powers.

A writ of coram nobis is a legal order allowing a court to correct its original judgment upon discovery of a fundamental error that did not appear in the records of the original judgment's proceedings and that would have prevented the judgment from being pronounced. The term coram nobis is Latin for "before us" and the meaning of its full form, quae coram nobis resident, is "which [things] remain in our presence". The writ of coram nobis originated in the courts of common law in the English legal system during the sixteenth century.

<span class="mw-page-title-main">Patrick Hastings</span> English barrister and politician (1880–1952)

Sir Patrick Gardiner Hastings was an English barrister and politician noted for his long and highly successful career as a barrister and his short stint as Attorney General. He was educated at Charterhouse School until 1896, when his family moved to continental Europe. There he learnt to shoot and ride horses, allowing him to join the Suffolk Imperial Yeomanry during the Second Boer War. After demobilisation he worked briefly as an apprentice to an engineer in Wales before moving to London to become a barrister. Hastings joined the Middle Temple as a student on 4 November 1901, and after two years of saving money for the call to the bar he qualified as a barrister on 15 June 1904.

Stephen Hayes was a member and leader of the Irish Republican Army from April 1939 to June 1941.

<span class="mw-page-title-main">Ignatius O'Brien, 1st Baron Shandon</span> Irish lawyer and politician

Ignatius John O'Brien, 1st Baron Shandon,, known as Sir Ignatius O'Brien, Bt, between 1916 and 1918, was an Irish lawyer and politician. He served as Lord Chancellor of Ireland between 1913 and 1918.

In United States law, habeas corpus is a recourse challenging the reasons or conditions of a person's confinement under color of law. A petition for habeas corpus is filed with a court that has jurisdiction over the custodian, and if granted, a writ is issued directing the custodian to bring the confined person before the court for examination into those reasons or conditions. The Suspension Clause of the United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which demands that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Peter Barnes was born in Banagher, King's County (Offaly). As a young man Barnes joined Fianna Éireann and in 1924 became a member of the Irish Republican Army (IRA).

Boumediene v. Bush, 553 U.S. 723 (2008), was a writ of habeas corpus petition made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba. Guantánamo Bay is not formally part of the United States, and under the terms of the 1903 lease between the United States and Cuba, Cuba retained ultimate sovereignty over the territory, while the United States exercises complete jurisdiction and control. The case was consolidated with habeas petition Al Odah v. United States. It challenged the legality of Boumediene's detention at the United States Naval Station military base in Guantanamo Bay, Cuba as well as the constitutionality of the Military Commissions Act of 2006. Oral arguments on the combined cases were heard by the Supreme Court on December 5, 2007.

In United States law, habeas corpus is a recourse challenging the reasons or conditions of a person's detention under color of law. The Guantanamo Bay detention camp is a United States military prison located within Guantanamo Bay Naval Base. A persistent standard of indefinite detention without trial and incidents of torture led the operations of the Guantanamo Bay detention camp to be challenged internationally as an affront to international human rights, and challenged domestically as a violation of the Due Process Clause of the Fifth and Fourteenth amendments of the United States Constitution, including the right of petition for habeas corpus. On 19 February 2002, Guantanamo detainees petitioned in federal court for a writ of habeas corpus to review the legality of their detention.

In the Philippines, amparo and habeas data are prerogative writs to supplement the inefficacy of the writ of habeas corpus. Amparo means 'protection,' while habeas data is 'access to information.' Both writs were conceived to solve the extensive Philippine extrajudicial killings and forced disappearances since 1999.

The Irish Self-Determination League of Great Britain (ISDL) was established in London in 1919. Membership peaked at around 20,000 in and was confined to those of Irish birth or descent resident in Great Britain. In May 1920 a similar organisation led by Katherine Hughes was established in Montreal, The Irish Self-Determination League of Canada and Newfoundland.

<span class="mw-page-title-main">Restoration of Order in Ireland Act 1920</span> United Kingdom legislation

The Restoration of Order in Ireland Act 1920 was an Act of the Parliament of the United Kingdom passed on 9 August 1920 to address the collapse of the British civilian administration in Ireland during the Irish War of Independence.

<span class="mw-page-title-main">Habeas Corpus Act 1862</span> United Kingdom legislation

The Habeas Corpus Act 1862 is an act of the Parliament of the United Kingdom that limited the right of the English courts to issue writs of habeas corpus in British colonies or dominions. The act was passed in response to Ex parte Anderson, a case in the Canadian courts in which the English Court of King's Bench attempted to issue a writ of habeas corpus and have Anderson appear before an English judge. While the court issued the writ, it felt that setting such a precedent would interfere with the "higher degree of Colonial independence". As a result, the act was passed, receiving royal assent on 16 May 1862.

Charles Andrew O'Connor was an Irish judge who served as a Judge of the Supreme Court from 1924 to 1925. His judgment in a habeas corpus case of R. (Egan) v. Macready is still influential.

Ex parte Crow Dog, 109 U.S. 556 (1883), is a landmark decision of the Supreme Court of the United States that followed the death of one member of a Native American tribe at the hands of another on reservation land. Crow Dog was a member of the Brulé band of the Lakota Sioux. On August 5, 1881 he shot and killed Spotted Tail, a Lakota chief; there are different accounts of the background to the killing. The tribal council dealt with the incident according to Sioux tradition, and Crow Dog paid restitution to the dead man's family. However, the U.S. authorities then prosecuted Crow Dog for murder in a federal court. He was found guilty and sentenced to hang.

<span class="mw-page-title-main">Habeas Corpus Suspension Act (1863)</span> American Law during the Civil War

The Habeas Corpus Suspension Act, 12 Stat. 755 (1863), entitled An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases, was an Act of Congress that authorized the president of the United States to suspend the right of habeas corpus in response to the American Civil War and provided for the release of political prisoners. It began in the House of Representatives as an indemnity bill, introduced on December 5, 1862, releasing the president and his subordinates from any liability for having suspended habeas corpus without congressional approval. The Senate amended the House's bill, and the compromise reported out of the conference committee altered it to qualify the indemnity and to suspend habeas corpus on Congress's own authority. Abraham Lincoln signed the bill into law on March 3, 1863, and suspended habeas corpus under the authority it granted him six months later. The suspension was partially lifted with the issuance of Proclamation 148 by Andrew Johnson, and the Act became inoperative with the end of the Civil War. The exceptions to Johnson's Proclamation 148 were the States of Virginia, Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas, and Texas, the District of Columbia, and the Territories of New Mexico and Arizona.

Thomas Harte was the first of seven Irish Republican Army (IRA) members executed by Irish forces in Mountjoy Prison and Portlaoise Prison prisons between 1940 and 1944.

Patrick MacGrath was born into an old Dublin republican family and took part in the 1916 Rising, as did two of his brothers. He was sent to Frongoch Internment Camp after the 1916 Rising and served his time there. He was a senior member of the Irish Republican Army (IRA), hunger striker, IRA Director of Operations and Training during its major bombing/sabotage in England and was the first of six IRA men executed by the Irish Government between 1940–1944. After participating in the Easter Rebellion, MacGrath remained in the IRA, rising in rank and becoming a major leader within the organisation.

References

  1. 1 2 Hyde (1960) p.123
  2. ↑ Chandler (1924) p.273
  3. 1 2 3 4 Hyde (1960) p.124
  4. 1 2 3 Amato (2002) p.32
  5. 1 2 Chandler (1924) p.274
  6. 1 2 Hyde (1960) p.126
  7. 1 2 3 Hyde (1960) p.127
  8. 1 2 3 Hyde (1960) p.128
  9. ↑ Bonner (2007) p.80
  10. 1 2 3 4 Amato (2002) p.33
  11. 1 2 3 4 Hyde (1960) p.129
  12. ↑ Chandler (1924) p.276
  13. ↑ Bonner (2007) p.81

Bibliography

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.