On 29 July, the Supreme Court handed down a ruling in a case examining the interpretation of the Offences against the State Act 1939 (as amended) as it relates to the ongoing existence of the non-jury Special Criminal Court (the “SCC”).
The case concerned the pending trials of Gerard Hutch and ex-Sinn Féin councillor, Jonathan Dowdall before the non-jury Special Criminal Court. The two defendants appealed a High Court decision that they can be tried for murder before the SCC. The Supreme Court granted them leave to appeal the High Court judgment on the basis that there was a need to clarify the law on this matter of general public importance. In a unanimous decision the five-judge Supreme Court cleared the way for their trial to proceed before the SCC.
The accused were both charged with the murder of 33-year-old David Byrne at the Regency Hotel in Dublin on 5 February 2016. They deny the charges.
The defendants’ lawyers had argued that their trials before the SCC would be unlawful because the SCC has become a de facto permanent court when in fact the relevant legislation only provides that it be temporary. The argument was made in an appeal by the defendants, who are charged with murder, against an earlier High Court decision rejecting their challenge over the trials being heard before the SCC. The High Court found the temporary/permanent argument was a political question and therefore not justiciable before a court. It was also found that if the decision to continue the SCC is made without bad faith, or absent mala fides, then the courts could not intervene.
In its decision the Supreme Court comprised of the Chief Justice, Mr Justice Donal O'Donnell, Mr Justice Peter Charleton, Ms Justice Iseult O'Malley, Mr Justice Gerard Hogan, and Mr Justice Brian Murray upheld the High Court's findings and dismissed the appeal.
Giving the Supreme Court's decision Mr Justice O'Donnell said that the 1939 Offences against the State Act does not contain "a test of permanence," by which to gauge the lawfulness of the existence of the SCC. He said the test of lawfulness of the SCC, which is contained in the law, was whether or not the Government is of the opinion that the ordinary courts are adequate to secure the administration of justice and the preservation of public peace and order. The Supreme Court also found that no duty attaches to Dáil Éireann to continuously review the necessity of the SCC. Mr Justice O'Donnell said the formal review process of the SCC contended for by the defendants in this case was not required.
Read the judgment of Mr Justice O’Donnell, Chief Justice here