Kavanagh v Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1996
• Date: 01 January 1996

(H.C., S.C.)

Kavanagh

and

Ireland

- Attorney General representing to United Nations Committee that preservation of special scheme necessitated by "ongoing campaign related to the problem of Northern Ireland" - Whether representation giving rise to legitimate expectation not to be prosecuted under special scheme for alleged offences not having subversive or paramilitary connection.

Article 38, s. 3, sub-s. 1 of the Constitution of Ireland, 1937, provides as follows:- "Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order." Part V of the Offences Against the State Act, 1939, contains provisions relating to special criminal courts. Section 35, sub-s. 2 of the Act of 1939 provides that if 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 Part V should come into force" it "may" make and publish a proclamation declaring that it is satisfied as aforesaid and ordering that Part V of the Act shall come into force; and sub-s. 3 provides that Part V shall come into force upon the making and publication of such proclamation. Sub-section 4 provides that if, while Part V is in force, the Government is satisfied that the ordinary courts are adequate to secure the effective administration of justice and the preservation of public peace and order, it "shall" make and publish a proclamation declaring that Part V shall cease to be in force. Further, sub-s. 5 provides that it shall be lawful for Dáil Éireann to pass a resolution annulling a proclamation under sub-section 2. By virtue of s. 36, sub-s. 1 of the Act of 1939, if 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 in relation to particular offences, it may by order declare that such offences are scheduled offences for the purposes of Part V; by virtue of sub-s. 3, the government may by order declare that a scheduled offence shall cease to be a scheduled offence. By virtue of s. 47, sub-s. 1 of the Act of 1939, as amended, a person may be charged with a scheduled offence before the Special Criminal Court and be tried by that court...