[1981] 1 I. R. 233 Neville Francis King



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[1981]
1 I.R.

King v. The Attorney General
O'Higgins C.J.

247
S.C.

of this Act; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by evidence on oath of one or more credible witness or witnesses) to the house of correction, there to be kept to hard labour for any time not exceeding three calendar months . . ."

Section 15 of the Act of 1871, amended s. 4 of the Act of 1824 in certain respects, including the following:—

". . . that in proving the intent to commit a felony it shall not be necessary to show that the person suspected was guilty of any particular act or acts tending to show his purpose or intent, and he may be convicted if from the circumstances of the case, and from his known character as proved to the justice of the peace or court before whom or which he is brought, it appears to such justice or court that his intent was to commit a felony; and the provisions of the said section, as amended by this section, shall be in force in Scotland and Ireland . . ."

By s. 7 of the Act of 1891 the provisions of s. 4 of the Act of 1824 were further amended by extending the portion already quoted to include "every suspected person or reputed thief loitering about or in any of the said places and with the said intent."

For convenience I shall refer to the quoted portion of s. 4 of the Act of 1824, with the addition of the two amendments effected by the Acts of 1871 and 1891, as "the questioned provision." Where I mention "the impugned provisions," I will be referring to the entire of s. 4 of the Act of 1824 and to the other two statutory provisions which amended and extended it.

The aim of the plaintiff's proceedings was to establish the inconsistency of the questioned provision with the Constitution. This would result, it was hoped, in the invalidation of the two convictions for loitering with intent. By establishing the inconsistency of the questioned provision, the plaintiff hoped to have s. 15 of the Act of 1871 (which applied it and all of s. 4 to Ireland) also declared inconsistent with the Constitution. This would have resulted in the invalidation of the conviction for being in possession of housebreaking implements, because the statutory basis for that conviction would have disappeared. Alternatively, and in any event, the plaintiff sought to argue that other provisions of s. 4 of the Act of 1824 were inconsistent with the Constitution and that, because this was so, the whole section should be declared inoperative.







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