The High Court has declined to consider a challenge to the Director of Public Prosecutions’ refusal to explain why a certificate was issued sending Thomas Murphy’s tax-related charges for trial before the Special Criminal Court. Mr Justice Herbert ruled that Murphy had not established legal standing to maintain the action because he presented no evidence about facts or prejudice specific to his own case.
Murphy was charged in November 2007 with failing, as a chargeable person, to file prescribed returns for seven tax periods between 1996/1997 and 2003/2004. The offences were admitted to be non-scheduled indictable offences. In December 2007, the DPP issued a certificate under section 46(2) of the Offences Against the State Act 1939, and the District Court sent Murphy forward for trial before the Special Criminal Court in January 2008.
That return for trial was later quashed in separate judicial review proceedings, and the matter was remitted to the District Court for rehearing. The present action concerned the certificate, which remained in force.
Murphy sought declarations that section 46(2) was unconstitutional and incompatible with the State’s obligations under the European Convention on Human Rights. He also challenged the DPP’s refusal to provide reasons for issuing the certificate, arguing that the decision affected his claimed right to trial by judge and jury and left him unable to assess or challenge its basis. These were the plaintiff’s claims; the court did not determine their merits.
The defendants raised preliminary objections, including that Murphy lacked standing and that his case was an impermissible collateral challenge. They argued that he had provided no evidence showing why the certificate might have been issued in his circumstances or how the absence of reasons had prejudiced him. No oral or affidavit evidence was presented at the hearing.
The judge found that the court could not decide the case by accepting counsel’s assertions or making assumptions about Murphy’s circumstances. He said the reasons for a certificate of this kind could be capable of being recognised by the recipient without express confirmation, but the decisive problem was that Murphy had not put his own facts before the court. He had not even sworn that he lacked connections or involvement that might have been relevant to the certificate. The judge rejected the argument that requiring such evidence meant Murphy was being asked to prove a negative.
The judge also noted that Murphy’s pleaded allegations of improper motive, arbitrariness and related misconduct had been abandoned at the hearing. He concluded that Murphy lacked legal capacity to pursue a general claim that the DPP must give reasons in every such case and declined to consider the action further. The judgment did not decide the constitutional or Convention challenges, nor did it make a finding about why the certificate was issued.