The Supreme Court dismissed Thomas Murphy’s challenge to the constitutionality of the law allowing a case to be sent to the Special Criminal Court, while holding that the Director of Public Prosecutions must give reasons, or justify refusing to do so, when requested to explain such a certificate.
The judgment, delivered by Mr Justice Donal O’Donnell on 11 March 2014, concerned a certificate issued under section 46(2) of the Offences Against the State Act 1939. Murphy had been charged in 2007 with failing, without reasonable excuse, to file a required tax return. The Director sought trial on indictment and certified that the ordinary courts were inadequate to secure the effective administration of justice and preserve public peace and order in his case.
Murphy argued that the law was unconstitutional and incompatible with the European Convention on Human Rights. He said he had not been told why the certificate was issued or given the information on which it was based, and contended that he should have been heard before the decision. The High Court dismissed his claim for lack of standing. On appeal, the Supreme Court accepted that he had standing to challenge the law and proceeded to consider the substance of the appeal.
The court held that a person whose case is directed to the Special Criminal Court may, on request, receive the Director’s reasons for considering the ordinary courts unsuitable, or an explanation for withholding them. It said a statement that reasons cannot be provided without impairing national security may be sufficient. If an accused person then presents substantial information that presumptively undermines the stated reasons, the decision may be open to limited review.
The ruling did not grant a right to the gist of the underlying information, a hearing, or an opportunity to make submissions before a certificate is issued. The court said review should be exceptional, rather than routine, given the sensitivity of the material and the limited grounds on which prosecutorial decisions can be reviewed.
The Supreme Court also rejected the constitutional and Convention challenges. It held that section 46(2) did not itself prescribe a procedure that prevented reasons being given, and therefore was not constitutionally invalid. It found no basis for Murphy’s equality argument and said the Convention claim added nothing material to his constitutional case.
The court stressed that Murphy had not challenged his certificate within the time allowed by court rules, or at all. It therefore remained valid, and the Special Criminal Court was required to act on it. The court said Murphy’s trial should proceed and dismissed his claim for declarations of invalidity. The judgment also criticised the delay: more than six years had passed since the charge, with no step taken towards trial while the proceedings were pending.