Tag: Ireland

Attorney-General v Whelan; 20 Dec 1933

References: [1934] IR 518, [1933] IEHC 1
Links: Bailii
Coram: Murnaghan J
Ratio:(Court of Criminal Appeal – Ireland) The appellant had been tried as part of a conspiracy to steal and to receive stolen good. He was acquitted of the conspiracy, but now appealed against his conviction for theft despite his assertion that he acted only under coercion.
Held: He was acquitted: ‘ It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats. ‘
This case cites:

  • Cited – Oldcastle’s Case
    In a case of treason immediate fear of death can be a justification. . .
  • Cited – Alexander MacGrowther’s Case ([1746] Fost 13, Commonlii, [1746] EngR 782, (1746) Fost 13, (1746) 168 ER 8)
    In the rule that necessity might be a defence to a criminal charge, the distinction was drawn between threats directed against the person and threats upon property. ‘The only force that doth excuse is a force upon the person, and present fear of . .
  • Cited – Rex -v- Stratton ((1779) 21 How St Tr 1045)
    It was just possible to imagine cases in which the expediency of breaking the law was so overwhelming that people might be justified in breaking it. The rule could be extended to cases of treason upon a general principle that it could to be extended . .

(This list may be incomplete)
This case is cited by:

  • Cited – Hasan, Regina -v- HL (Bailii, [2005] UKHL 22, Times 21-Mar-05, House of Lords)
    The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .

(This list may be incomplete)

Last Update: 09-Jun-16
Ref: 223665

Dundon v The Governor of Cloverhill Prison; 19 Dec 2005

References: [2006] 1 IR 518, [2005] IESC 83, [2006] 1 ILRM 321
Links: Bailii
Coram: Murray CJ, Denham J, Hardiman J. Geoghegan J, Fennelly J
(Supreme Court of Ireland) The UK had issued a European arrest warrant in relation to the appellant. On 11 February 2004 he was arrested in Ireland and remanded in custody. 93 days later, following various adjournments of which some had been at his request, the High Court made an order for his surrender. On 16 March 2005, thus following a significant further delay, the Supreme Court dismissed his appeal. He forthwith issued fresh proceedings in which, by reference to his rights under the Irish Constitution, he challenged the lawfulness of his continued detention after the expiry of 60 days following his arrest. Ireland had transposed the Decision into its law by the European Arrest Warrant Act 2003.
Held: Section 16(10) did not automatically entitle the appellant to release on the expiry of 60 days (nor, by analogy, did section 16(11) have that effect on the expiry of 90 days) from the date of his arrest. The terms of section 10 of the Irish Act provided: ‘Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person –
(a) against whom that state intends to bring proceedings for the offence to which the . . warrant relates, or
(b) . . that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.’ The appellant argued that, even if the terms of section 16(10) and (11) of that Act were not strong enough to secure the success of his appeal, the effect of section 10 was to bring the whole of the Decision into Irish law and that an overall reading of the Decision entitled him to release, and that, whereas section 16(10) and (11) place time limits of 60 and 90 days on the making only of the decision by the High Court, Article 17(3) and (4) of the Decision requires that the ‘final’ decision be made within those limits; and, by reference thereto, he appears also to have relied upon the significant further delay between the making of the order for his surrender and the hearing of his appeal. The terms of section 10 of the Irish Act required the Court to appraise the Decision in detail. Denham J described the time limits of 60 days and 90 days in Article 17(3) and (4) of the Decision as ‘exhortation’; and Geoghegan J explained that they were set ‘with a view to internal discipline within the member states and not with a view to conferring individual rights in individual cases’..
Statutes: Council Framework Decision of 13th June 2002
This case is cited by: