Byrne & Dempsey v Ireland and Others

JurisdictionIreland
CourtSupreme Court
JudgeHamilton C.J.
Judgment Date11 March 1999
Neutral Citation[1999] IESC 36
Date11 March 1999

[1999] IESC 36

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

BARRINGTON J.

BARRON J.

310/98
311/98
BYRNE & DEMPSEY v. IRELAND & ORS

BETWEEN:

RONALD BYRNE
Appellant/Applicant

and

BERNARD DEMPSEY
Appellant/Applicant

and

THE GOVERNMENT OF IRELAND, THE ATTORNEY GENERAL, THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE SPECIAL CRIMINAL COURT
Respondents

Citations:

CONSTITUTION ART 40.1

EUROPEAN CONVENTION FOR PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION FOR PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 14

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 26

OFFENCES AGAINST THE STATE ACT 1939 S46(2)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S15

OFFENCES AGAINST THE PERSON ACT 1861 S47

KAVANAGH V IRELAND 1996 1 IR 321

CONSTITUTION ART 38

CONSTITUTION ART 40

PROSECUTION OF OFFENCES ACT 1974 S3(1)

PROSECUTION OF OFFENCES ACT 1974 S2(4)

PROSECUTION OF OFFENCES ACT 1974 S2(5)

OFFENCES AGAINST THE STATE ACT 1939 S46

OFFENCES AGAINST THE STATE ACT 1939 S47

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1987 ILRM 202

MCMAHON V LEAHY 1984 IR 525

OFFENCES AGAINST THE STATE ACT 1939 S35

MCCORMACK, STATE V CURRAN 1987 ILRM 237

Synopsis:

Criminal Law

Criminal law; venue of trial; Director of Public Prosecutions certifying offences for trial in Special Criminal Court; appellants had been charged with manslaughter, assault and violent disorder; nine of appellants' co-accused were sent forward for trial to the Central Criminal Court; appellants had been sent forward for trial to the Special Criminal Court as a result of a certificate issued by the third named respondent stating that in relation to the appellants the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order; appellants had been refused liberty to apply for judicial review; appellants seeking a declaration that the certificate is invalid and contrary to the Constitution; whether there is an arguable case that review by the courts of the decisions of the Director of Public Prosecutions are subject to review by the courts for the purpose of obtaining an objective assessment as to whether or not the ordinary courts are inadequate; whether the decision of the third named respondent to issue the certificates amounted to unfair discrimination against them contrary to the provisions of Article 40.1 of the Constitution; Art 38 of the Constitution; s.46(2), Offences against the State Act, 1939; ss.2 & 3(1), Prosecution of Offences Act, 1974.

Held: Appeal dismissed.

Byrne & Dempsey v. Ireland & Ors - Supreme Court: Hamilton C. J., O'Flaherty J., Denham J., - Barrington J., Barron J. - 11/03/1999

The applicants faced criminal charges in a trial before the Special Criminal Court. The applicants initiated judicial review proceedings seeking to challenge the decision of the Director of Public Prosecutions certifying them for trial before the Special Criminal Court. The relief sought by the applicants was refused by Geoghegan J in the High Court and the applicants appealed. Hamilton CJ, delivering judgment, held that the question of whether the ordinary courts were adequate to secure the effective administration of justice was a political one. The issuing of certificates by the Director of Public Prosecutions was normally not subject to judicial review unless mala fides could be proved. No arguable ground for judicial review had been established and accordingly the order of the High Court dismissing the application would be affirmed.

1

[NEM DISS]Hamilton C.J.

Hamilton C.J.
2

The above named Appellants, Ronald Byrne and Bernard Dempsey, have appealed against orders made by the High Court (Geoghegan J.) on the 21st day of October, 1998 whereby he refused each of them liberty to apply by way of judicial review for

3

(i) A declaration that the certificate issued by the third named Respondent and dated the 17th day of July 1998 certifying that in the opinion of the third named Respondent the ordinary Courts are inadequate to secure the effective administration of justice and preservation of public peace and order in relation to the trial of the Applicant herein on the charges set out in the schedule to the said certificate is invalid;

4

(ii) A declaration that the prosecution of the Applicant herein before the fourth named Respondent unfairly discriminates against the Applicant in contravention of Article 40(1) of the Constitution and/or Article 14 and/or Article 6 of the European Convention for theProtection of Human Rights and Fundamental Freedoms and/or Articles 14and 26 of the International Covenant on Civil and Political Rights.

5

The grounds upon which such reliefs were sought were set forth in the Statement of Grounds as follows:-

6

2 "1. There is no factual basis for the third named Respondent's opinion that the ordinary Courts are inadequate to secure the effective administration of justice and preservation of public peace and order in relation to the trial of the Applicant herein on the charges set out in the schedule to the said certificates. There is nothing in the nature of the alleged offences for which the Applicant is to be tried which would suggest a connection with subversive or paramilitary organisations. The Applicant is not a member of any subversive or paramilitary organisation and has not been charged with such membership. Nothing has occurred in the course of these proceedings to date in respect of these charges to suggest that attempts would be made by or on behalf of the Applicant herein, to interfere with or improperly influence any jury empanelled to try these charges.

7

2. There is no factual basis for the third named Respondent distinguishing between the Applicant herein and the great majority of his co-accused, nine of whom have been returned for trial to the ordinary courts. In the premises the Applicant has been denied his right to equality before the law as guaranteed by Article 40.1 and/or Articles 14 and 6 of the European Convention for the Protection of Human Rightsand Fundamental Freedoms and/or Articles 14 and 26 of the International Covenant on Civil and Political Rights."

8

The certificates issued by the third named Respondent referred to in the aforesaid Declarations were in the following terms:

9

"Certificate of the Director of Public Prosecutions pursuant to Section 46(2) of the above Act.

10

I, Eamonn M. Barnes, Director of Public Prosecutions, hereby certify that the ordinary Courts are, in my opinion, inadequate to secure the effective administration of justice and preservation of public peace and order in relation to the trial of the above named person on the charges set out in the Schedule hereto, being charges for indictable offences which are not scheduled offences under the above named Act.

Schedule
11

2 "1. For that you the said accused on the 14th day of May, 1996 at Basin Street Upper, Dublin 8, known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan District committed a violent disorder in that you with other persons namely John Fitzpatrick, Stephen Carney, William Kenny, Andrew Kelly, Christopher O'Shea, Bernard Dempsey, Mark Alford, Mark Cooke, Hugh Byrne, John Kenny, Martin Glynn present together used or threatened to use unlawful violence and such conduct taken together, was such as would cause a person of reasonable firmness present at the said place to fear for his or another persons safety.

12

Contrary to Section 15 of the Criminal Justice (Public Order) Act,1994.

13

2. For that you the said accused on the 14th day of May, 1996 at Basin Street Upper, Dublin 8 known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan District did unlawfully assault one Alan Byrne thereby occasioning him actual bodily harm.

14

Contrary to Section 47 of the Offences Against the Person Act, 1861.

15

3. For that you the said accused on the 14th day of May, 1996 at Basin Street Upper, Dublin 8 known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan District did unlawfully kill one Joseph Dwyer.

Contrary to Common Law."
16

The facts relevant to and legal issues raised in these appeals are identical and both appeals were heard together.

17

The relevant facts are deposed to in the affidavits sworn by the Appellants' Solicitor and are as follows:-

18

The Applicants were charged on the 17th December 1996 by the third named Respondent in the Dublin Metropolitan District Court with three offences, namely, the manslaughter of Joseph Dwyer; assault occasioning actual bodily harm to one Alan Byrne contrary to Section 47 of the Offences Against the Person Act, 1861; and violent disorder contrary to Section 15 of the Criminal Justice (Public Order) Act,1994. The said offences are indictable offences which are not scheduled under the Offences Against the State Act,1939. I beg to refer to copies of the Charge Sheets which I have pinned together and upon which marked with the letters “MF1” I have endorsed my name prior to the swearing hereof.

19

On the same and succeeding dates twelve other men were charged with the same offences in the Dublin Metropolitan District Court, namely Stephen Carney, John Fitzpatrick, Bernard Dempsey, Christopher O'Shea, Mark Alford, Mark Cooke, John Kenny and William Kenny, Andrew Kelly, Hugh Byrne, Martin Glynn and Desmond Whelan.

20

The Applicant and his co-accused were remanded from time to time in the District Court. On divers date following the 11th of May 1998 depositions were taken from a number of witnesses. On the 24th of July 1998, the District Court sent forward all accused for trial except for Desmond Whelan who had died in the intervening period. Nine of the Applicant's co-accused were sent forward for trial to the Central Criminal Court....

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1 cases
  • Gilligan v Ireland
    • Ireland
    • Supreme Court
    • 24 October 2000
    ...... 1996 1 IR 321 MACCURTAIN, IN RE 1941 IR 83 DPP V QUILLIGAN 1986 IR 495 BYRNE & DEMPSEY V IRELAND UNREP SUPREME 11.3.1999 OFFENCES AGAINST THE STATE ACT 1939 S35(2) ...83; Kavanagh v. The Government of Ireland and Others [1996] 1I.R. 321; D.P.P. V. Quilligan [1986] I.R. 495 and Byrne v. Dempsey (Unreported, Supreme ......

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