Dáil Éireann debate -
Friday, 2 Mar 1923

Vol. 2 No. 36

[ WRITTEN ANSWERS. ] - A PRISONER'S TRIAL.

SEOIRSE GHABHAIN UI DHUBHTHAIGH

To ask the Minister for Defence whether he is aware:—

(1) That Michael Kilroy was taken prisoner near Newport on 24th November, 1922, and confined in Custume Barracks, Athlone, until about the 1st day of February, 1923, when he was removed to Mountjoy Prison, Dublin.

(2) That on the 8th February, 1923, the prisoner was handed a charge sheet, containing three charges alleged to have been incurred near Newport, on 24th November, 1922.

(3) That on the 9th February, 1923, the prisoner wrote to the Prison Governor, asking for facilities to prepare his defence, but that the first intimation received by the prisoner's solicitor of his desire to instruct him was given to the solicitor at 5 o'clock in the afternoon of 13th February, 1923, whereas the trial of the prisoner was fixed for and took place at 11 o'clock on 14th February, 1923.

(4) That accordingly no fair opportunity was given to the solicitor to prepare the prisoner's defence.

(5) That an application for an adjournment of the trial to enable the defence to be prepared was made on behalf of the prisoner to the Military Tribunal, and refused.

(6) That one of the preliminary objections, taken on behalf of the prisoner, to the proceedings was that the Court was convened by a person other than the Officer Commanding the area in which the offences were charged to have been committed, as required by the regulations as to the trial of civilians by Military Tribunals; that the objection was over-ruled on the ground that a special order had been made taking the case out of this regulation; that such order was not produced, and was not proved in any way; and that such an order, if made, would be ultra vires and void; and

(7) That all civil courts are open or capable of being held in Dublin; and whether, upon these facts, he will see the propriety of having the proceedings in question set aside and quashed.

General MULCAHY

The answers to the first and second parts of the question are in the affirmative.

With regard to the third and fourth parts of the question:—The officer who delivered the charge sheet to the accused asked him upon doing so whether he wished to have a solicitor to defend him, and if so, to give the name of any solicitor so that facilities could be given such solicitor to interview the accused and prepare his defence. The accused replied that he did not wish to be defended and stated that he would not recognise the court. At the same time he mentioned the names of some military witnesses he desired to have summoned. The accused subsequently wrote two letters to the Governor of Mountjoy Gaol. In one of these he asked for a copy of the regulations under which he was to be tried. These were duly furnished him. In neither letter did the accused ask for an interview with any counsel or solicitor nor did he give the name of any counsel or solicitor whom he wished to defend him. It was not until the 13th February that the accused wrote a letter to Mr. Sean O h-Uadhaigh regarding his defence. This was immediately transmitted to Mr. h-Uadhaigh, as a result of which Mr. Conor Maguire, counsel for the accused, interviewed the accused at 10.20 a.m. upon the 14th February. The delay in communicating with his legal advisers was due to the hesitation of the accused in deciding whether he would be defended or not. It may be added that the trial of the accused was postponed from the 9th February to the 14th February, to endeavour to secure the attendance of military witnesses mentioned by the accused.

With regard to the fifth part of the question: the application for an adjournment was made at the trial. Counsel for the accused, when asked for the grounds of his application, stated that he wished to have certain witnesses present to prove an alibi upon the first charge. The Legal Officer stated that he intended to direct an acquittal upon the first charge owing to lack of evidence to sustain it and an acquittal was directed. As no sufficient grounds for granting an adjournment were stated, and in view of the facts already stated, the application was refused. It may be added that the accused, though he might have done so, did not give evidence to deny any of the charges.

With regard to the sixth part of the question: Upon the 12th February an Order was made by the Army Council providing that their previous Regulations as to Military Courts being convened by the General Officer Commanding the Command in which the offence was alleged to have been committed, should not apply to the trial of the accused, and expressly authorising the General Officer Commanding the Dublin Command to convene a Court for the trial of the accused. Counsel objected to this Order as being ultra vires because it was not laid upon the Table of An Dáil for four days as provided by the Army Emergency Powers Resolution of An Dáil. As this provision obviously applied only to Regulations the breach of which was triable as an offence by Military Court, the objection was over-ruled. The Order of the Army Council was not required to be proved as the Court held that they were satisfied as to their jurisdiction and would not require the presence of the Army Council as witnesses to prove their Order. The Court made a note of the objection so that it could be considered by the Army Council when the proceedings of the Court came before the Army Council for confirmation. It may be added that between the time the accused was arrested and the date of his trial the Commands were reorganised, the area and character of the old Western Command in which the offences charged against the accused were alleged to have been committed being entirely altered.

With regard to the seventh part of the question, I would refer to the answer given to the previous question of the Deputy for County Dublin upon the same point.