BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Supreme Court of Ireland Decisions

You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Shea v. Ireland [1998] IESC 23 (29th July, 1998)
Cite as: [1998] IESC 23

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]

O'Shea v. Ireland [1998] IESC 23 (29th July, 1998)



O'Flaherty J,
Keane J,
Lynch J,





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:

(1) The actions of Ireland through its operation of the Offences Against the State Act, 1939, and of the President of Ireland are

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

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


© 1998 Irish Supreme Court

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII