The Supreme Court has refused Alan Harte leave to appeal directly from a High Court decision on a three-month time limit for judicial review applications. It said he had not shown exceptional circumstances warranting a direct appeal and that an appeal already lodged in the Court of Appeal should proceed.
In a judgment delivered electronically on 9 February 2024, Ms Justice O’Malley said the Court had a real question about whether an earlier Supreme Court ruling made Harte’s proceedings moot. But the issue had not been argued in the High Court, and the Court considered it undesirable to address it for the first time at the leave stage or in a substantive appeal.
The application concerned a 2011 amendment to Order 84, rule 21 of the Rules of the Superior Courts. It requires applications for all judicial review reliefs to begin within three months, with an extension possible for “good and sufficient reason”. Harte argued that such time limits could only be imposed by primary legislation and that the statutory authority for the rules committee to make court rules breached the Constitution. The High Court dismissed his challenge in April 2023.
The proceedings arose after Harte was charged in 2019 with serious offences connected with the false imprisonment of and assault on a businessman in County Cavan. The Director of Public Prosecutions certified in March 2020 that the ordinary courts were inadequate in his case, and he was returned for trial to the Special Criminal Court. Harte later sought judicial review challenging the continuing constitutional validity of that court, but the High Court dismissed that separate case in March 2021 because he had not established grounds to extend the time for bringing it. He did not appeal that decision. He was convicted in November 2021 and sentenced to 30 years’ imprisonment the following month.
The Supreme Court noted that it had unanimously rejected similar claims about the Special Criminal Court’s continued operation in Dowdall and Hutch in 2022. Harte accepted that, even if the earlier judicial review had proceeded, that ruling meant he could not have succeeded in it. He argued that he could still obtain a declaration about his access-to-court rights and potentially costs or damages. The respondents submitted that he could obtain no benefit and that the case was moot.
The Supreme Court did not decide whether the proceedings were moot. It refused leave for a direct appeal because the constitutional criteria for a leapfrog appeal were not met. The separate appeal Harte had lodged in the Court of Appeal was to proceed.