Jonathan Dowdall v DPP, The Minister for Justice and Equality, Dáil Éireann, Ireland and The Attorney General

JurisdictionIreland
JudgeMr. Justice Barr
Judgment Date11 February 2022
Neutral Citation[2022] IEHC 81
CourtHigh Court
Docket Number[Record No. 2021/657 JR]
Between
Jonathan Dowdall
Applicant
and
The Director of Public Prosecutions, The Minister for Justice and Equality, Dáil Éireann, Ireland and The Attorney General
Respondents
Between
Gerard Hutch
Applicant
and
The Director of Public Prosecutions, The Minister for Justice and Equality, Dáil Éireann, Seanad Éireann, Ireland and The Attorney General
Respondents

[2022] IEHC 81

[Record No. 2021/657 JR]

[Record No. 2021/898 JR]

THE HIGH COURT

Special Criminal Court – Offences Against the State Act 1939 s. 35 – Proclamation – Applicants challenging the continued existence of the Special Criminal Court – Whether s. 35(2) of the Offences Against the State Act 1939 only permits a proclamation to be made for a temporary period of time to cater for a particular state of emergency

Facts: Each of the applicants, Mr Dowdall and Mr Hutch, were brought before Special Criminal Court No. 1 on different dates and were there charged with the murder of one Mr Byrne, contrary to common law, at the Regency Hotel, Swords Road, Whitehall, Dublin 9 on 9th February, 2016. On each occasion, a solicitor for the first respondent, the Director of Public Prosecutions (DPP), informed the Special Criminal Court that the first respondent had certified pursuant to s. 47(2) of the Offences Against the State Act 1939 that the ordinary courts were in her opinion inadequate to secure the administration of justice and the preservation of public peace in relation to the trial of the applicants and that it was intended to try the applicants before the Special Criminal Court. Books of evidence were served on the applicants and a trial date had been set for their trial before the Special Criminal Court for 3rd October, 2022. The applicants challenged their return for trial before the Special Criminal Court on the basis that that court was brought into existence by a proclamation of the government made on 26th May, 1972, bringing Part V of the 1939 Act into force. The Special Criminal Court was brought into existence on the following day. The applicants submitted that s. 35(2) of the 1939 Act only permits a proclamation to be made for a temporary period of time to cater for a particular state of emergency. The applicants submitted that as the Special Criminal Court established under the proclamation made in 1972 had been in existence for fifty years, it could not be seen as being temporary. It was submitted that the court was of a permanent character and was therefore ultra vires the provisions of the 1939 Act. The applicants also submitted that the executive and Dáil Éireann were under a duty to keep under review the necessity for the continued existence of the proclamation and the Special Criminal Court. They asserted that the respondents and each of them, had failed to carry out any periodic review of the necessity of maintaining in force the provisions of Part V of the 1939 Act.

Held by the High Court that it was not persuaded that on a true interpretation of s. 35 of the 1939 Act, there is any temporal limitation on the length of time for which a proclamation bringing Part V of the Act into force, can last. The Court was satisfied that once a proclamation is in place, the DPP is entitled to certify that certain offences be tried before the Special Criminal Court once she holds the requisite opinion that the ordinary courts are inadequate to secure the effective administration of justice. The applicants had not persuaded the Court that there was any basis in law to prevent the first respondent certifying that their trials on the charge of murder should be tried before the Special Criminal Court. Turning to the issue in relation to the alleged lack of review of the provisions provided for under Part V of the 1939 Act, the Court was satisfied that both the decision made by the government in 1972 to introduce the proclamation and the decision made by successive governments thereafter to continue the proclamation and the provisions of Part V of the 1939 Act in force, is a political question, which is not justiciable before the courts. In relation to the third respondent, being Dáil Éireann, the Court was satisfied that there was no basis upon which to make any declaration against that body.

The Court refused all of the reliefs sought by the applicants in their respective notices of motion.

Reliefs refused.

JUDGMENT of Mr. Justice Barr delivered electronically on the 11th day of February, 2022

Introduction
1

These two cases were heard together as they raised identical challenges to the continued existence of the Special Criminal Court.

2

Each of the applicants were brought before Special Criminal Court No. 1 on different dates and were there charged with the murder of one David Byrne, contrary to common law, at the Regency Hotel, Swords Road, Whitehall, Dublin 9 on 9th February, 2016.

3

On each occasion, a solicitor for the first respondent informed the Special Criminal Court that the first respondent had certified pursuant to s.47(2) of the Offences Against the State Act 1939 (hereafter “the 1939 Act”), that the ordinary courts were in her opinion inadequate to secure the administration of justice and the preservation of public peace in relation to the trial of the applicants and that it was intended to try the applicants before the Special Criminal Court.

4

Books of evidence were served on the applicants and a trial date has been set for their trial before the Special Criminal Court for 3rd October, 2022.

5

In essence, the applicants challenge their return for trial before the Special Criminal Court on the basis that that court was brought into existence by a proclamation of the government made on 26th May, 1972, bringing Part V of the 1939 Act into force. The current Special Criminal Court was brought into existence on the following day. The applicants submit that s.35(2) of the 1939 Act only permits a proclamation to be made for a temporary period of time to cater for a particular state of emergency.

6

The applicants submit that as the present Special Criminal Court established under the proclamation made in 1972, has been in existence for fifty years, it cannot be seen as being temporary. It is submitted that the court is of a permanent character and is therefore ultra vires the provisions of the 1939 Act.

7

The applicants also submit that the executive and Dáil Éireann are under a duty to keep under review the necessity for the continued existence of the proclamation and the Special Criminal Court. They assert that the respondents and each of them, have failed to carry out any periodic review of the necessity of maintaining in force the provisions of Part V of the 1939 Act.

8

In response, the State respondents submitted that s.35(2) of the 1939 Act, does not contain any temporal limitation on the duration of a proclamation, or the Special Criminal Court brought into existence on foot of it. They submit that the only condition concerning the lawfulness of the making of the proclamation, and its continuance in existence, is that the executive should be of opinion 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 necessary that Part V of the 1939 Act should be continued in force. It was submitted that as long as the government continue to be of that opinion, they are entitled to maintain Part V in force.

9

Insofar as it was argued that the 1972 proclamation was made by the executive to cater for subversive criminal activity at that time, such that the continued use of the Special Criminal Court to try offences loosely described as being connected to “gangland crime” or “subversive crime” was unlawful, it was submitted that the case law of the Supreme Court has made it clear that once a proclamation is lawfully in force, the provisions provided for in Part V of the 1939 Act, can be utilised for any scheduled offences, or for any non-scheduled offence once certified by the DPP pursuant to s.47(2), irrespective of whether the offence was connected to subversive activity or not.

10

The respondents submitted that the issue of whether the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order, was a question of opinion that resided solely within the political domain. As such, it was submitted that the holding of such opinion by the executive, was not a matter that was justiciable before the courts. Similarly, in relation to the issue of the duty to review the necessity for the continuance in operation of Part V of the Act, or the Special Criminal Court; it was submitted that that was not a matter that was justiciable before the courts, as it resided within the sphere of competence of the executive.

11

On behalf of the third named respondent, being Dáil Éireann, it was submitted that insofar as any case was made against it, there was no duty on Dáil Éireann to carry out any periodic review of the necessity for the continuance in operation of the proclamation; s.35(5) did not create a duty but created a right, which was exercisable by Dáil Éireann in the event that they reached a certain opinion, whereby they could pass a resolution annulling the proclamation. It was submitted that it was not a justiciable issue that could be determined by the courts, as to whether Dáil Éireann should or should not pass such a resolution.

12

Without prejudice to that submission, counsel submitted that in passing annual resolutions under the Offences Against the State ( Amendment) Act 1998 and in passing resolutions pursuant to the Criminal Justice (Amendment) Act 2009, it was clear that the third named respondent had in fact reviewed the question of the necessity for the continued existence of the Special Criminal Court. Accordingly, it was submitted that there was no case made out of any breach of duty on the part of the...

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