The Irish Human Rights and Equality Commission (IHREC) has been joined as a participant in appeals by Gerry Hutch and ex-Sinn Féin councillor Jonathan Dowdall over having to be tried before the non-jury Special Criminal Court (SCC).
On Friday, a three-judge Supreme Court granted IHREC permission to become what is known as an “amicus curiae” — a friend to the court — in the appeals by the men against a High Court decision earlier this year which found they could be tried before the SCC.
The central issue in the challenge was whether or not the SCC was a temporary court as provided by the Offences Against the State Act 1939 or a permanent court. The High Court found the issue raised was a political question and therefore not justiciable before a court.
Hutch (58), who was extradited from Spain, and former Dublin city councillor Dowdall (44), of Navan Road, Dublin, are both charged with the murder of David Byrne (33) at the Regency Hotel in Dublin on February 5th, 2016. They deny the charges.
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Following the High Court decision in February, the Supreme Court agreed to hear a direct appeal to it, which would bypass the Court of Appeal, after finding it raised a matter of public importance.
Subsequently, IHREC asked the Supreme Court to be joined as an amicus. IHREC said it would seek to address whether the High Court was correct in holding that a decision of the government to make the proclamation setting up the SCC under the Offences Against the State Act was non-justiciable.
In an affidavit, IHREC chief commissioner Sinéad Gaffney submitted that the High Court finding must be assessed in the light of a Supreme Court judgment delivered some two weeks before the Hutch/Dowdall decision.
In that separate case (Burke versus the Minister for Education), the Supreme Court essentially clarified the test to be applied when it is alleged that an exercise of executive power has infringed a guaranteed personal right of an individual.
The IHREC submitted that the lawfulness of the government proclamation setting up the SCC was fully justiciable and the power of the courts to review cannot be constrained.
On Friday, Chief Justice Donal O’Donnell, sitting with Mr Justice Peter Charleton and Mr Justice Séamus Woulfe, said it was not at all clear in advance of this case that the arguments made by the IHREC come under the “normal rubric” or that it would have an impact on this matter.
However, he said that on balance it was desirable for the court to consider it. The court was disposed to granting IHREC leave to participate as an amicus but was reserving the question as to whether the matters raised can be considered in advance of the appeal, which is due to be heard next month.
Earlier, Patrick Gageby SC, on behalf of IHREC, said his client’s submissions were not to impede the appeal but if the appeal was to proceed it seemed to his side this was a matter of public importance identified by the Supreme Court which, without those submissions, would mean the case would only be partly heard.
Remy Farrell SC, for the DPP and the Minister for Justice, said the case made by the Hutch/Dowdall parties was different from that made by IHREC.
It was surprising the IHREC had not made its application at an earlier stage, he said. It is also open to the IHREC to open its own litigation on the matter it was now canvassing and it was “highly problematic” that it was being parachuted into this appeal, he said.