The High Court has refused two judicial review applications challenging the continued operation of the Special Criminal Court, ruling that the law sets no time limit on the proclamation that brought its governing provisions into force.
Jonathan Dowdall and Gerard Hutch brought the cases after being sent for trial before Special Criminal Court No. 1 on murder charges relating to David Byrne’s death at the Regency Hotel in Dublin on 9 February 2016. The judgment says the trials were scheduled to begin on 3 October 2022. The applicants challenged the continued use of the court, not the original making of the 1972 proclamation or its establishment.
They argued that Part V of the Offences Against the State Act 1939 was intended as temporary emergency legislation, and that a court operating under the 1972 proclamation for 50 years had become permanent and unlawful. They also argued that the Government and Dáil Éireann had failed to review whether the court remained necessary, and sought declarations barring their trials there.
The State respondents submitted that the Act contains no temporal limit and that the adequacy of ordinary courts is a political question for the Government. They also argued that the applicants had not shown a failure to review the need for the court. Dáil Éireann said the relevant statutory provision gave it a right to annul a proclamation, rather than a duty to conduct periodic reviews.
Mr Justice Barr found that section 35 of the 1939 Act contains no time limit or sunset clause. He said the word “temporary” does not appear in the section and rejected the argument that the proclamation had to expire after an unspecified period. He also said the political judgment about whether ordinary courts are adequate belongs to the Government, and that the court could not order the proclamation to be rescinded on the basis argued.
The judge held that the Special Criminal Court may hear scheduled offences and non-scheduled offences certified by the Director of Public Prosecutions, whether or not they relate to subversive activity. He concluded there was no legal basis to prevent the DPP from certifying the applicants’ murder trials for the Special Criminal Court.
On review, the judge ruled that the executive’s decisions were not justiciable on the grounds advanced. He added that, even if review could be examined by the court, the evidence showed continuing consideration of the issue, including a 2002 committee report, later legislation and resolutions, the establishment of a second Special Criminal Court, and an expert review begun in February 2021. He also found no basis for relief against Dáil Éireann.
The court refused all relief sought. It did not determine costs or the terms of the final order in this judgment; parties were given two weeks to make written submissions on those matters.