LIBERTY OF THE SUBJECT.

Press, Volume LIX, Issue 17812, 11 July 1923, Page 9

LIBERTY OF THE SUBJECT.

ART O'BRIEN HABEAS CORPUS WRIT. IMPORTANT STATEMENT BY LORD BIRKENHEAD. (BT CAE' r. - PRESS ASSOCIATION—COITKTQKT.) (AUSTRALIAN' AND N.Z CABLE ASSOCIATION.) (Received July 10th. 8.55 p.m.) LONDON, July 9. The Earl of Birkenhead has delivered the reasons why the House of Lords had no jurisdiction to hear tho Home Secretary's appeal in the Art O'Brisn case. Lord Brk nhe.id ; a d the r Li'dships were not authorised to vxaituno the arguments in law whereby in + li® lower Courts the Attorney-General attempted to justify these prowedings. 'lne most important rule in connexion with a habeas corpus writ was that wliL-H lays it dowti that if «v writ has oneo been directed to issue and ft discharge has b en ordervd by a comp t-nt Court, no appeal lies to. any superior Court. . Correlative with this rule was that which permits unsuccessful applicants for a writ of haboa§ corpus to apply i'rom Court .to Court to the highest tribunal in the land. Tho Homo Secretary, by forcibly handing over the applicant to the' Freo State Government thereby disub.ed tho Court of Appeal lrom effectively ordering the discharge of Art O'Brien, and deprived him of an ancient constitutional privilege. Lord Birkenhead added that th© argument submitted 011 "behalf of tho Home Secretary was the most remarkab.e lie had ever heard or wad li0;u tne lips 01 the Executive in attempting to pronounce upon tUo liberty of the subject. AN important judgment. The Court of Appeal, composed oi Lords Justices Banjos, tScrutton, a-ad Atkiu, on ALay yth gave judgment upaJ. the application tor a writ ot nuUoaa corpus 111 die case ot Mr .Art secretary ot tiie Irisli seli-Ufcttoi'inuMvr tion i«eugue, wuo, uuiier ua o±der niaua by Mr i>. lUgoiua.i, uio lionui S-CiOrtViy,; was trout iwgisinu Free state. Ui'ieu has sinoe found gudty and stmwnooa to «. to. 111 of imprisonment for a-4nioua Tho liomo Socrctaj'y i>Ut'PuiU:d :to act under it (iij, m«<ie in suiuioo ot uie Kestorawou oi Oiueiv i»i Ireland Act, lv&O. Lord Justice uankea said that tut* applicant's coaipiaintr was that tiie order under whicn lie was un-erned iri' the irisu jj'ree otate was not warianied by tne regulation under wbicn it w'us purported 10 ue tnaue. ixie re&uiaupn was one of those originally znaue uiiuer the defence ot ihe Aveiiiu Act, anu. but for tne passing of tno ■ Restoration of. Order :iu "Ireland Act the oraervvould have expired; The questions for cision in the present case miglit. toe. .divided into three heads: —• ' ■ (1) 'Whether, since the establishment of the Irish t .bree St&ta, 'an order could lawtully be made by tne Home Secretary tor the internment in that btate of a person residing in England. ( : (2) Whether, if it c6uld bo lawfully, ' made, it was in compliance with, ' tiMr .: regulation. ' , 1 (3) Whether an application foir ft writ of habeas corpus directed to the, Hop),© Secretin y \\~as the proper prttceodjng in this ease, . V The iHuty of the Court was dear." Tfee? liberty of the subject was in qttfißtiottjf and the Court must enquire close# 1 as 'to whether the order tor internment, was or was not lawtully made, 'ln-hia opinion, since-jthe establishment or th®, Irjsh Free State, ano?det* could not? properly be mado by the Home Secret, tary for the internment of a pejreop in the Irish Free State. \> { b* In the first place, ihe order depriVeps the Executive m this country of'.thfl'. right to direct the release of terned person; secondly, the effect.'of, the order was to subject the person to restrictions other thao,\tlwf^s indicated, in. the regulation ; and, thirct;ly, tho • interned person was - depriye4> of the particular form of control wfticH< was pirescribed by the regulatio^J" fact, no order for internment ■ ud|;tha/ Irish IPree State could be made ( would ; comply with the regulation. Then came thQ question whether ;Jlu order :?or a writ of habeas corpus conld: properly be made directed to the,. Honeys Secretary, having regard to the.cpSrw tention of the Attorney-General that, the applicant having been deported>na interned In the Irish Free State,. it«e| Home Secretary had no. further over !bim. It would seem from/ tlip Home Secretary *8 answers to questidiiß] in Parliament that he was- thejn the impression that he had. not.\hii3: control, but according to his affidavit, made in these proceedings<Mr .O'Biietf was now under the control of an opB;; cial of the Fr69 State Government.: U Therefore, the question could <not,lb4, properly disposed' of unless . thi' . nilfl.: T)iai for a writ of habeas corpus were made absolute. That would give <,tb9i Home an opportunity , olmaking his position clear. The ordet nisi therefore would be madd absolute.. In conclusion, said Lord Justice; Bankos, it would not be out of place to observe that the practice of - lating by Order-in-Council was tfne, which led to difficulties and of which the present case WW an illustration. Lord Justice Scrutton, in said that the appeal raised questions! of great importance regarding , the liberty of tho subject, a • matter on, which English law was anxiously care-,, fui, and which English judges were keen to uphold. This care was not to. be exercised less vigilantly because ,t%e, subject whose liberty was in question, might not be particularly meritoriojw. And iche subject was entitled only be deprived of his liberty by one process of law, although that due process,;, if taken, would probably send hub to,prison. A man undoubtedly guilty off murder must yet be released if due processes of the law had not been fol- - lowed in his conviction. It was quite possible, even probable, that the aub' ject in this case was guilty of high: treason, yet he • was still entitled ,0)SJt:» to be deprived of his liberty by due, . processes of law. 1 , It was decided by the House J of,. Lords on May 16th, by a majority, that,, that tribunal had no jurisdiction to en-y,! tertain the appeal of the Home tary from the decision of the : Court/ of Appeal. The Earl of Birkenhead, : Viscount Knlay, Lord Duneflln, Atkinson, and Lord Shaw sat tothe a*ppeaL , . ..