By Owen Reid
The Supreme Court has rejected an attempt by Joseph Kavanagh to use a United Nations human rights finding as a basis for overturning his conviction by the Special Criminal Court.
Kavanagh appealed after the High Court refused him leave to seek judicial review. He sought, in substance, to have his conviction quashed and argued that provisions of the Offences against the State Act 1939 were incompatible with Ireland's obligations under the UN Covenant on Civil and Political Rights.
He had been arrested in July 1994 over offences connected with the kidnapping and imprisonment of a senior manager of a banking company. The Director of Public Prosecutions used powers under section 47 of the 1939 Act to have the case tried in the Special Criminal Court rather than the ordinary courts.
Kavanagh was convicted there on October 29, 1997 of robbery, possession of a firearm with intent to commit false imprisonment, and demanding money with menaces. He received concurrent sentences of 12 years, 12 years and five years, backdated to July 20, 1994.
Before his trial, Kavanagh had complained to the UN Human Rights Committee. The committee later concluded that Ireland had violated Article 26 of the Covenant because the State had failed to demonstrate that the decision to try him before the Special Criminal Court was based on reasonable and objective grounds.
In the Supreme Court, Kavanagh argued that principles of international law and the State's adherence to the Covenant could be relied upon through Article 29 of the Constitution. He also argued that Ireland's ratification of the Covenant and its Optional Protocol created a legitimate expectation that effect would be given to the committee's views.
Mr Justice Fennelly rejected those arguments. He held that Article 29 did not give individuals enforceable rights arising from unincorporated international agreements and that the committee's views could not override a conviction entered by an Irish court.
The court also held that the doctrine of legitimate expectation could not be used indirectly to achieve a result that the Constitution prevented directly. Kavanagh had therefore failed to establish an arguable case for judicial review, and his appeal was dismissed.