Alan Harte v The Superior Court Rules Committee, The Minister for Justice, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms Justice O'Malley
• Judgment Date: 09 February 2024
• Neutral Citation: [2024] IESC 2
• Court: Supreme Court
• Docket Number: Record No.: 2023/73

Between

Alan Harte

Applicant

and

The Superior Court Rules Committee, The Minister for Justice, Ireland and The Attorney General

Respondents

[2024] IESC 2

O'Malley J.

Baker J.

Hogan J.

Record No.: 2023/73

THE SUPREME COURT AN CHÚIRT UACHTARACH

Judgment ofMs Justice O'Malleydelivered electronically on the 9 ^th of February 2024

Introduction

1 The applicant has applied for leave to appeal to this Court against the decision of Hyland J. delivered on the 17 ^th April 2023 ( Harte v. Superior Court Rules Committee [2023] IEHC 192). As summarised in that judgment, the case made by the applicant was that S.I. 691/2011 was ultra vires the rule making power of the Superior Court Rules Committee under s.36 of the Courts of Justice Act 1924 as amended (the “1924 Act”); that s.36 itself was in breach of Article 15.2.1° of the Constitution; and that the applicant's constitutional right of access to the courts was impermissibly restricted by S.I. 691/2011. The trial judge dismissed the challenge on all grounds.

2 This Court, having considered the application for leave to appeal, did not immediately determine the matter but directed that it be listed for oral hearing. In those circumstances, the Court's decision is delivered by way of judgment rather than determination.

Background

3 The issues raised in the application arise in the following context. The applicant was charged in November 2019 with serious offences in connection with the false imprisonment of and assault on a businessman in Co. Cavan. On the 26 ^th March 2020 the Director of Public Prosecutions conveyed to the applicant and to the District Court that she had certified, pursuant to the provisions of the Offences against the State Act 1939, that in her opinion the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order in the case. The applicant was accordingly returned for trial to the Special Criminal Court. It appears that he considered, but ultimately did not initiate, a judicial review challenge to the certificate.

4 On the 14 ^th August 2020 the applicant was given leave to challenge the continuing constitutional validity of the Special Criminal Court by way of judicial review. His case, essentially, was that Part V of the Offences Against the State Act 1939 was intended to be used only for temporary, emergency purposes but had in fact been operating on a permanent basis since the Part V proclamation currently in place was made in 1972. Those proceedings will be referred to here as “the Part V judicial review”. The primary reliefs sought were:

• (1) A declaration that any proclamation pursuant to s.35(2) of the Offences Against the State Act 1939 is only effective as a temporary measure.

• (2) A declaration that the circumstances giving rise to the proclamation made by the Oireachtas pursuant to s.35(2) in 1972 can no longer be described as temporary, having regard to the considerable elapse of time.

• (3) A declaration that the failure by the Oireachtas to enact anything other than temporary measures in respect of procedures for the trial of persons coming before special courts amounts to a breach of the right of the plaintiff under Article 38 of the Constitution.

• (4) A declaration that the legislation enacted by the Oireachtas fails to give adequate guidance or set out sufficient criteria to determine when ordinary courts are inadequate and which categories of cases are appropriately dealt with before non-jury courts.

5 The applicant also sought, if necessary, an extension of time within which to bring the proceedings. The Director of Public Prosecutions argued that the application was out of time, having regard to the provisions of O.84 r.21, and that no adequate reason had been given for an extension of time as required by that rule.

6 By judgment delivered on the 24 ^th March 2021, Barr J. agreed with the Director and held, for the reasons set out in the judgment, that the applicant had not shown either that there were good and sufficient reasons for extending the time, or that the circumstances resulting in his failure to make the application within time were outside his control or could not have been reasonably anticipated by him (see H. v. Director of Public Prosecutions[2021] IEHC 215).

7 The applicant did not appeal that decision. He was convicted by the Special Criminal Court on the 8 ^th November 2021, and sentenced to 30 years imprisonment on the 20 ^th December 2021.

8 On the 9 ^th November 2021 the applicant obtained leave to initiate the within proceedings. Separately, on the 24 ^th May 2022 he instituted judicial review proceedings challenging the constitutionality of s.40 of the Offences Against the State Act 1939 (which makes provision for majority convictions in the Special Criminal Court). That latter challenge was dismissed in the High Court on the 22 ^nd October 2023 (Bolger J. – see Harte v. Special Criminal Court[2023] IEHC 538). Leave to appeal directly to this Court from the High Court was refused (see [2023] IESCDET 146) and the matter is now pending before the Court of Appeal.

9 Meanwhile, on the 29 ^th July 2022 this Court delivered judgment in Dowdall v. Director of Public Prosecutions & ors.; Hutch v. Director of Public Prosecutions & ors.[2022] IESC 36. The appellants in those proceedings had sought declaratory reliefs in more or less identical terms to those set out above in relation to this applicant's unsuccessful Part V judicial review. This Court unanimously rejected the claims.

The proceedings

10 The statutory instrument under challenge, made by the Superior Courts Rules Committee in 2011, amended the provisions of O.84 r.21 of the Rules of the Superior Courts. The...