Dowdall v DPP, The Minister for Justice, Dáil Éireann, Ireland and The Attorney General, Hutch v DPP, Minister for Justice, Dáil Éireann and Seanad Eireann, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell,Mr. Justice Gerard Hogan
• Judgment Date: 29 July 2022
• Neutral Citation: [2022] IESC 36
• Court: Supreme Court
• Docket Number: S:AP:IE:2022:000031

Between/

Jonathan Dowdall

Applicant

and

Director of Public Prosecutions, The Minister for Justice, Dail Eireann, Ireland and The Attorney General

Resdpondents

Gerard Hutch

Applicant

and

Director of Public Prosecutions, Minister for Justice, Dail Eireann and Seanad Eireann, Ireland and The Attorney General

Respondents

[2022] IESC 36

O'Donnell CJ

Charleton J

O'Malley J

Hogan J

Murray J

S:AP:IE:2022:000031

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Trial – Murder – Jurisdiction – Appellants challenging their return for trial before the Special Criminal Court – Whether the Special Criminal Court had full jurisdiction to try the appellants

Facts: The appellants, Mr Dowdall and Mr Hutch, were brought before Special Criminal Court No. 1 charged with the murder of Mr Byrne at the Regency Hotel, Swords Road, Whitehall, Dublin 9 on 5 February, 2016. The appellants sought to challenge their return for trial before the Special Criminal Court by way of application to the High Court. That challenge was rejected on 11 February, 2022 ([2022] IEHC 81). The appellants applied for and were granted leave to appeal directly to the Supreme Court on 11 May, 2022 ([2022] IESCDET 61). The submissions of the appellants focused on two broad issues: (i) whether there is any temporal limitation on the operation of the Special Criminal Court; and (ii) whether there is, first, a duty on Dáil Éireann/the Executive to keep the necessity of having the Special Criminal Court under continuous review and, second, whether they have failed in this duty.

Held by the Court that it could not be said that either Part V of the Offences Against the State Act 1939, or the Special Criminal Court, must be understood to be subject to an implied condition of temporariness, or non-permanence, so that at some unspecified point before a proclamation under s. 35(4) or an annulment under s. 35(5), the Court would lose jurisdiction to try offences. The Court held that the circumstances under which Part V comes into force and the Court is established, and the circumstances in which Part V ceases, and with it the establishment of the Court, were precisely identified in the Act. The Court held that so long as a proclamation has been made under s. 35(2) which has not been annulled under s. 35(5) and no countervailing proclamation made under s. 35(4) then Part V is in force and the Court is validly established and no additional condition of non-permanence can be implied. The Court held that the obligation to keep the situation under review exists because of the obligation to act bona fide in relation to the functions under s. 35(4) and having regard to the structure of the Act, and the constitutional designation of courts established under Art. 34 as ordinary courts, and, therefore, the norm. The Court held that no formality is required. The Court held that if the Government is open to the possibility of making it a determination under s. 35(4) the duty would be fulfilled. The Court held that in this case, much more was done. While the Court concluded that the Dáil was under no similar duty as a matter of law, the circumstances were kept under review by that body not least by the annual consideration of the renewal of the provisions of the Offences Against the State (Amendment) Act 1998.

The Court held that the Special Criminal Court had full jurisdiction to try the appellants on the charges in question. As the appellants had failed in the case advanced by them in the application, the Court held that their respective trials could proceed. The Court dismissed the appeals.

Appeals dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 29th day of July 2022

Introduction

1 . On 26th May 1972 the Government issued a Proclamation under s. 35(2) of the Offences against the State Act 1939 (“the 1939 Act”) bringing Part V of that Act into force: see generally, Davis, The History and Development of the Special Criminal Court 1922–2005 (Dublin, 2005) at 131–133. The effect of this Proclamation was that the Government expressed itself to have been satisfied that the ordinary courts were “inadequate to secure the effective administration of justice and the preservation of public peace and order.” This paved the way for the establishment of the non-jury Special Criminal Court.

2 . Over 50 years later the Special Criminal Court remains in operation. In this appeal the applicants contend that the continued operation of the Special Criminal Court is ultra vires s. 35(2) of the 1939 Act. In essence their case is that the Proclamation was implicitly time-limited and that in enacting s. 35 the Oireachtas could never have been taken to permit the Government to issue what in practice amounts to an open-ended Proclamation of this kind.

3 . One can take judicial notice of the fact that the Proclamation was made in May 1972 against the backdrop of the increasing use of para-military violence by illegal organisations and attacks directed against the institutions of State. Over that time the workload of the Special Criminal Court has changed, so that it nowadays deals with many cases which have a background in organised crime. It is, however, important also to state that, the issue ratione temporis aside, the validity of this Proclamation has not, as such, been challenged in these proceedings. Nor has the constitutionality of Part V in general or s. 35 in particular been put at issue.

4 . Any one who cherishes the right to right to jury trial will, of course, in one sense regret the existence of the Special Criminal Court. But that Court itself has evolved in significant ways over the years. Its predecessor was, of course, the Constitution (Special Powers) Tribunal first established under Article 2A of the Constitution of the Irish Free State (as inserted by Constitution (Amendment No. 17) Act 1931) in October 1931. That Tribunal consisted of three military officers from whom there was no right of appeal. The Tribunal was, moreover, at liberty to impose any sentence it thought appropriate (including the death penalty), even if such was not provided for under the ordinary law. It was no wonder that members of this Court considered that the “extreme rigour” of Article 2A was such that “its provisions pass far beyond anything having the semblance of legal procedure” and that the “judicial mind was staggered at the very complete departure from legal methods in use in these Courts”: see The State (Ryan) v. Lennon [1935] IR 170 at 237–238, per Murnaghan J.

5 . Much was changed by both Article 38.3.1 of the Constitution and the Offences against the State Act 1939: the Special Criminal Court had to be established by law. Article 38.3.2 further required that the “constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.” The Court as so established was, moreover, a statute-based court with no inherent jurisdiction: see, e.g., The People (Director of Public Prosecutions) v. Rice [1979] IR 15 at 20, per Henchy J.

6 . Precisely as required by Article 38.3.2, the jurisdiction of the Court was carefully prescribed by ss. 46 and 47 of the 1939 Act. Article 38.3.2 further requires that the procedure of the Court be prescribed by law. Section 41(4) of the 1939 Act accordingly gives effect to this constitutional requirement in that it provides that the practice and procedure and the rules of evidence applicable to a trial in the Central Criminal Court “shall apply to every trial by a Special Criminal Court”. Provision is also now made for an unrestricted right of appeal by any convicted person to the Court of Appeal: see s.44 of the 1939 Act (as inserted by s. 32 of the Criminal Procedure Act 2010).

7 . In other instances, the potential rigour of the 1939 Act has been leavened by either judicial decision or by the application of constitutional principles. Thus, for example, the provisions of s. 34 of the 1939 Act providing for the mandatory disqualification and loss of pension imposed on persons convicted before the Special Criminal Court were found unconstitutional by this Court: see Cox v. Ireland [1992] 2 IR 503. While Article 38.6 provides that the specific guarantees contained in Article 34 and Article 35 do not apply to judges of the Special Criminal Court, any such trials must nonetheless be conducted in due course of law for the purposes of Article 38.1. Judicial independence is, of course, an essential hallmark of that guarantee and this Court has already confirmed that all of the judges of that Court enjoy such a guarantee: see Eccles v. Ireland [1985] IR 545.

8 . While the 1939 Act still contains certain provisions which might, perhaps, with advantage be reviewed by the Oireachtas, the key fact is that the modern day Special Criminal Court is a three judge court staffed by professional judges who are – and must be – independent of the executive. They are required by s. 41(4) of the 1939 Act to apply the ordinary rules of evidence and criminal procedure. They give detailed reasons for their conclusions and there is an unrestricted right of appeal against conviction and sentence to the Court of Appeal.

Section 35 of the 1939 Act

9 . This is the general context against which the operation of the Proclamation made under s. 35(2) of the 1939 Act falls to be considered. Here it may be useful to note the wording of s. 35(2), s. 35(4) and s. 35(5) in particular: 10. Section 35(2) provides:

“If and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this Part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this Part of this Act shall come into force…”

11 . Section 35(4)...