The Supreme Court has dismissed appeals by Jonathan Dowdall and Gerard Hutch challenging their trials before the Special Criminal Court, ruling that the court retains jurisdiction to hear the murder charges against them.
The appeals concerned the Government’s 1972 proclamation bringing Part V of the Offences Against the State Act 1939 into force. The appellants argued that the Special Criminal Court was meant to be temporary and had become unlawful after operating for about 50 years. They also argued that the Government and Dáil Éireann had a duty to conduct regular reviews of whether the court remained necessary.
The court rejected the claim that the Act imposed a time limit or an implied requirement that the Special Criminal Court cease to operate after a period of time. It said Part V remains in force until the Government makes a counter-proclamation under section 35(4), or Dáil Éireann annuls the original proclamation under section 35(5). The court said no additional condition of non-permanence could be read into the Act.
The judgment said the Government has a duty to keep circumstances under review so it can carry out its statutory function in good faith. If the Government becomes satisfied that the ordinary courts are adequate to secure the administration of justice and public peace and order, it must make and publish a proclamation ending Part V. But the Act does not require a formal review process or reviews at fixed intervals. The court said Dáil Éireann has the power to annul the proclamation but is under no equivalent legal duty to review it.
The court also said the substance or merits of the Government’s decision are not for the court to reassess in these appeals. The challenges concerned the interpretation of the Act, not the validity of the 1972 proclamation. The court noted that challenges can be brought at different stages, but these appeals did not raise a challenge to the proclamation itself.
The Supreme Court concluded that the appellants’ challenge failed, the Special Criminal Court had full jurisdiction to try them on the charges, and their trials could proceed. It dismissed both appeals. The judgment also declined to permit the Irish Human Rights and Equality Commission to participate as an amicus curiae, finding that its submissions raised issues outside the dispute before the court.