The Supreme Court appeal by Jonathan Dowdall and Gerard Hutch challenging the continued operation of the Special Criminal Court should be dismissed, Gerard Hogan J concluded in a judgment delivered on 29 July 2022. He found that the Government’s 1972 proclamation bringing Part V of the Offences against the State Act 1939 into force remains in operation, so the Special Criminal Court remains lawfully in operation.
The applicants argued that the proclamation was implicitly time-limited and that the Oireachtas had not authorised an open-ended measure. Hogan J said the appeal concerned the duration of the proclamation. The validity of the proclamation on other grounds, and the constitutionality of Part V or section 35 of the 1939 Act, had not been challenged.
Under section 35(4), the Government must revoke the proclamation if it is satisfied that the ordinary courts are adequate to secure the effective administration of justice and preservation of public peace and order. Hogan J concluded that the Government’s decision, or failure, to use that power is subject to judicial review because it is governed by a statutory standard. But he said the applicants had not challenged the Government’s failure to revoke the proclamation under that subsection.
The judgment distinguished that power from the Dáil’s authority under section 35(5) to annul the proclamation. Hogan J said the Dáil may do so for political reasons without first finding that the ordinary courts are adequate; that power is not governed by legal criteria and presents a non-justiciable controversy.
Hogan J concluded that a proclamation under section 35(2) continues unless the Government revokes it under section 35(4), or the Dáil annuls it under section 35(5). He said the original proclamation remained in force and that, as a result, the Special Criminal Court was lawfully operating. He stated that he would dismiss the appeal. The supplied judgment excerpt does not establish the disposition of the appeal by the Supreme Court as a whole.