R v Secretary of State for Home Affairs ex parte O'Brien
Encyclopedia
R v Secretary of State for Home Affairs ex parte O'Brien [1923] 2 KB 361 was a 1923 test case
in English law
that sought to have the internment and deportation of Irish nationalist sympathisers earlier that year declared legally invalid. In March 1923 between 80 and 100 suspected Irish nationalists in Britain were arrested by the police and sent to the Irish Free State
under the Restoration of Order in Ireland Act 1920
(ROIA). One of the detainees, Art O'Brien, challenged his detention in a test case at the Divisional Court
. The case eventually went to both the Court of Appeal
and House of Lords
, who decided that the internments were illegal because the Irish Free State was an independent nation and so British Acts of Parliament no longer applied to it.
The decision effectively illegalised the ROIA and led to the immediate release of O'Brien and the other detained individuals, who sued the British Government for false imprisonment. The government pushed through the Restoration of Order in Ireland (Indemnity) Act 1923, which limited the money they had to pay the detainees, who eventually received £43,000. O'Brien himself was re-arrested and found guilty of sedition
, and was imprisoned until 1924.
the Irish Free State
was set up as an independent British Dominion
covering most of the island of Ireland
. After a brief civil war
between the pro-Free State forces and members of the Irish Republican Army
(IRA) who wanted any independent nation to cover the entire island the status of the Irish Free State was confirmed, and the IRA forced underground. The IRA had supporters in the United Kingdom, working openly as the Irish Self-Determination League
(ISDL), and the Free State government shared the names of these supporters with the British authorities, who kept a close eye on them. Between February and March they provided information on individuals that they said were part of widespread plots against the Irish Free State being prepared on British soil. On 11 March 1923 the police in Britain arrested IRA sympathisers living in Britain including Art O'Brien, the head of the ISDL. Sources disagree on numbers, giving either approximately eighty or approximately 100. The arrested men were placed on special trains and sent to Liverpool, where they were transferred to Dublin via a Royal Navy
destroyer. It later transpired that not only were many British citizens (Art O'Brien himself had been born in England), at least six had never even been to Ireland before.
The next day the arrests were publicly queried in the House of Commons, and a Labour backbencher Jack Jones started a debate on the subject in the afternoon. W.C. Bridgeman, the Home Secretary
, said that he had directly ordered the police to arrest the ISDL members under the Restoration of Order in Ireland Act 1920
, and that he had consulted the Attorney General
who considered it legal.
s for one of the deported men, Art O'Brien, got in contact with Sir Patrick Hastings
KC, a Member of Parliament for the Labour Party
and a noted barrister
. On 23 March 1923 Hastings represented O'Brien in front of a Divisional Court
consisting of Mr Justice Avory
and Mr Justice Salter
to apply for a writ of habeas corpus
for O'Brien as a test case to allow the release of the others. The initial hearing did not go anywhere because Hastings was unable to provide an affidavit from O'Brien (who was in Mountjoy Prison
), which was required for a writ of habeas corpus to be considered, but by the time the hearing was resumed on 10 April he had managed to obtain one. Hastings argued that because the Irish Free State was an independent nation the British laws governing it, such as the 1920 act, were effectively repealed. In addition the Home Secretary
had no power to order an individual to be detained overseas because he had no control over what happened to them there.
The court eventually declared that they could not issue a writ, because the Habeas Corpus Act 1862
prevented them from issuing a writ to any colony possessing a court which could also issue a writ. Since Ireland possessed such a court, the English Divisional Court could not act. Hastings attempted to argue that the writ could be issued against the Home Secretary but this also failed, since the Home Secretary did not actually possess O'Brien.
and argued on 23 and 24 April. The Court of Appeal reversed the Divisional Court
's decision. The court decided that the Restoration of Order in Ireland Act 1920
had been implicitly repealed when the Irish Free State
, an independent nation, came into existence. In addition it was not proper for the Home Secretary to order the detention and deportation of someone overseas, since they had no control over what happened to them. It was completely appropriate to issue a writ of habeas corpus
against the Home Secretary because, even though he did not physically have O'Brien, he was considered responsible for him. The Home Secretary was accordingly ordered to produce O'Brien before the court on 16 May.
He appealed to the House of Lords
, who decided (led by Lord Birkenhead
) that they did not have the jurisdiction to hear the appeal, since a rule of English law specifies that once a writ of habeas corpus is issued (as it was by the Court of Appeal) no superior court can overrule it. After a further attempt to keep O'Brien in custody (simply by not letting him out of prison) he was finally released on 16 May.
whittled it down when it was being prepared so that it would only limit compensation rather than remove it entirely. A tribunal was set up under Lord Atkin
to assess damages, and the sympathisers as a whole were eventually paid £43,000. Art O'Brien himself was arrested soon after release and convicted of sedition
. He was released in 1924.
Test case (law)
In case law, a test case is a legal action whose purpose is to set a precedent. An example of a test case might be a legal entity who files a lawsuit in order to see if the court considers a certain law or a certain legal precedent applicable in specific circumstances...
in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
that sought to have the internment and deportation of Irish nationalist sympathisers earlier that year declared legally invalid. In March 1923 between 80 and 100 suspected Irish nationalists in Britain were arrested by the police and sent to the Irish Free State
Irish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
under the Restoration of Order in Ireland Act 1920
Restoration of Order in Ireland Act 1920
The Restoration of Order in Ireland Act 1920 was an Act of the Parliament of the United Kingdom passed on 9 August 1920 to address the collapse of the British civilian administration in Ireland during the Irish War of Independence....
(ROIA). One of the detainees, Art O'Brien, challenged his detention in a test case at the Divisional Court
Divisional Court
A Divisional Court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...
. The case eventually went to both the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
and House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
, who decided that the internments were illegal because the Irish Free State was an independent nation and so British Acts of Parliament no longer applied to it.
The decision effectively illegalised the ROIA and led to the immediate release of O'Brien and the other detained individuals, who sued the British Government for false imprisonment. The government pushed through the Restoration of Order in Ireland (Indemnity) Act 1923, which limited the money they had to pay the detainees, who eventually received £43,000. O'Brien himself was re-arrested and found guilty of sedition
Sedition
In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
, and was imprisoned until 1924.
Background
Following the Irish War of IndependenceIrish War of Independence
The Irish War of Independence , Anglo-Irish War, Black and Tan War, or Tan War was a guerrilla war mounted by the Irish Republican Army against the British government and its forces in Ireland. It began in January 1919, following the Irish Republic's declaration of independence. Both sides agreed...
the Irish Free State
Irish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
was set up as an independent British Dominion
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
covering most of the island of Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
. After a brief civil war
Irish Civil War
The Irish Civil War was a conflict that accompanied the establishment of the Irish Free State as an entity independent from the United Kingdom within the British Empire....
between the pro-Free State forces and members of the Irish Republican Army
Irish Republican Army (1922–1969)
The original Irish Republican Army fought a guerrilla war against British rule in Ireland in the Irish War of Independence 1919–1921. Following the signing of the Anglo-Irish Treaty on 6 December 1921, the IRA in the 26 counties that were to become the Irish Free State split between supporters and...
(IRA) who wanted any independent nation to cover the entire island the status of the Irish Free State was confirmed, and the IRA forced underground. The IRA had supporters in the United Kingdom, working openly as the Irish Self-Determination League
Irish Self-Determination League
The Irish Self-Determination League of Great Britain was established in London in 1919. Membership peaked at around 20,000 in and was confined to those of Irish birth or descent resident in Great Britain....
(ISDL), and the Free State government shared the names of these supporters with the British authorities, who kept a close eye on them. Between February and March they provided information on individuals that they said were part of widespread plots against the Irish Free State being prepared on British soil. On 11 March 1923 the police in Britain arrested IRA sympathisers living in Britain including Art O'Brien, the head of the ISDL. Sources disagree on numbers, giving either approximately eighty or approximately 100. The arrested men were placed on special trains and sent to Liverpool, where they were transferred to Dublin via a Royal Navy
Royal Navy
The Royal Navy is the naval warfare service branch of the British Armed Forces. Founded in the 16th century, it is the oldest service branch and is known as the Senior Service...
destroyer. It later transpired that not only were many British citizens (Art O'Brien himself had been born in England), at least six had never even been to Ireland before.
The next day the arrests were publicly queried in the House of Commons, and a Labour backbencher Jack Jones started a debate on the subject in the afternoon. W.C. Bridgeman, the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
, said that he had directly ordered the police to arrest the ISDL members under the Restoration of Order in Ireland Act 1920
Restoration of Order in Ireland Act 1920
The Restoration of Order in Ireland Act 1920 was an Act of the Parliament of the United Kingdom passed on 9 August 1920 to address the collapse of the British civilian administration in Ireland during the Irish War of Independence....
, and that he had consulted the Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
who considered it legal.
Divisional Court
A few days after the arrests the solicitorSolicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s for one of the deported men, Art O'Brien, got in contact with Sir Patrick Hastings
Patrick Hastings
Sir Patrick Gardiner Hastings KC was a British barrister and politician noted for his long and highly successful career as a barrister and his short stint as Attorney General. He was educated at Charterhouse School until 1896, when his family moved to continental Europe...
KC, a Member of Parliament for the Labour Party
Labour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
and a noted barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
. On 23 March 1923 Hastings represented O'Brien in front of a Divisional Court
Divisional Court
A Divisional Court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...
consisting of Mr Justice Avory
Horace Avory
Sir Horace Edmund Avory was an English criminal lawyer, jurist and Privy Counsellor.-Biography:He was the son of Henry Avory, clerk of the Central Criminal Court. He was educated at King's College London, and Corpus Christi College, Cambridge, where he was captain of boats and took the degree of...
and Mr Justice Salter
Arthur Salter (judge)
Sir Arthur Clavell Salter KC was a British Conservative Party politician and judge who sat as a Judge of the High Court of Justice. Born to Henry Salter and his wife Henrietta, Salter was educated at Wimborne Grammar School and King's College, London, where he studied arts and law...
to apply for a writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
for O'Brien as a test case to allow the release of the others. The initial hearing did not go anywhere because Hastings was unable to provide an affidavit from O'Brien (who was in Mountjoy Prison
Mountjoy Prison
Mountjoy Prison , founded as Mountjoy Gaol, nicknamed The Joy, is a medium security prison located in Phibsboro in the centre of Dublin, Ireland. It has the largest prison population in Ireland.The current prison governor is Mr...
), which was required for a writ of habeas corpus to be considered, but by the time the hearing was resumed on 10 April he had managed to obtain one. Hastings argued that because the Irish Free State was an independent nation the British laws governing it, such as the 1920 act, were effectively repealed. In addition the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
had no power to order an individual to be detained overseas because he had no control over what happened to them there.
The court eventually declared that they could not issue a writ, because the Habeas Corpus Act 1862
Habeas Corpus Act 1862
The Habeas Corpus Act 1862 was an Act of the Parliament of the United Kingdom that limited the right of the English courts to issue writs of habeas corpus in British colonies or dominions...
prevented them from issuing a writ to any colony possessing a court which could also issue a writ. Since Ireland possessed such a court, the English Divisional Court could not act. Hastings attempted to argue that the writ could be issued against the Home Secretary but this also failed, since the Home Secretary did not actually possess O'Brien.
Court of Appeal and House of Lords
The decision was then appealed to the Court of AppealCourt of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
and argued on 23 and 24 April. The Court of Appeal reversed the Divisional Court
Divisional Court
A Divisional Court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...
's decision. The court decided that the Restoration of Order in Ireland Act 1920
Restoration of Order in Ireland Act 1920
The Restoration of Order in Ireland Act 1920 was an Act of the Parliament of the United Kingdom passed on 9 August 1920 to address the collapse of the British civilian administration in Ireland during the Irish War of Independence....
had been implicitly repealed when the Irish Free State
Irish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
, an independent nation, came into existence. In addition it was not proper for the Home Secretary to order the detention and deportation of someone overseas, since they had no control over what happened to them. It was completely appropriate to issue a writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
against the Home Secretary because, even though he did not physically have O'Brien, he was considered responsible for him. The Home Secretary was accordingly ordered to produce O'Brien before the court on 16 May.
He appealed to the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
, who decided (led by Lord Birkenhead
F. E. Smith, 1st Earl of Birkenhead
Frederick Edwin Smith, 1st Earl of Birkenhead GCSI, PC, KC , best known to history as F. E. Smith , was a British Conservative statesman and lawyer of the early 20th century. He was a skilled orator, noted for his staunch opposition to Irish nationalism, his wit, pugnacious views, and hard living...
) that they did not have the jurisdiction to hear the appeal, since a rule of English law specifies that once a writ of habeas corpus is issued (as it was by the Court of Appeal) no superior court can overrule it. After a further attempt to keep O'Brien in custody (simply by not letting him out of prison) he was finally released on 16 May.
Aftermath
O'Brien immediately sued the British Government for false imprisonment, and to avoid any liability the government prepared the Restoration of Order in Ireland (Indemnity) Act 1923 which would indemnify them against any claims for damages by the imprisoned sympathisers. The Labour PartyLabour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
whittled it down when it was being prepared so that it would only limit compensation rather than remove it entirely. A tribunal was set up under Lord Atkin
James Atkin, Baron Atkin
James Richard Atkin, Baron Atkin was a lawyer and judge of Australian-Welsh origin, who practised in England and Wales...
to assess damages, and the sympathisers as a whole were eventually paid £43,000. Art O'Brien himself was arrested soon after release and convicted of sedition
Sedition
In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
. He was released in 1924.