High Court rejects ‘full-blown attack’ on law setting up Special Criminal Court

A High Court judge has rejected a legal challenge involving a "full-blown attack" on the legislation governing the setting up of the non-jury Special Criminal Court (SCC).

Mr Justice Anthony Barr ruled that a man who brought the legal challenge had not done so within the required time limits and had not shown good and sufficient reasons for extending that permitted time.

The man, who is charged with false imprisonment and assault, is facing trial before the SCC after the DPP made an application to a district court for him to be sent there rather than to the ordinary circuit court. The reasons given included that he was a member of a criminal organisation and that he may interfere with witnesses.

He cannot be named by order of the court because he is also facing separate serious charges in a jury trial.

He brought a High Court application seeking a declaration that the SCC was only set up on a temporary basis 49 years ago and was therefore only effective as a temporary measure.

He also sought a declaration that the circumstances giving rise to the proclamation setting up the SCC meant the court could no longer be described as temporary given the considerable elapse of time involved.

The DPP, the Minister for Justice and the State opposed the application. Dáil Éireann, which is ultimately responsible for legislation setting up the court, was a notice party in the case and also opposed the application.

The man’s lawyers rejected claims by the State side that, if the challenge was successful, it would mean the quashing of the court. Any decision of the High Court in favour of the man could easily be cured by the State and the charges he faces would not be going away, it was argued.

The State parties argued the declarations sought by the man should not be granted because of the far-reaching consequences of doing so.

‘Without substance’

In his judgment, Mr Justice Barr said it had been argued on the man’s behalf that the man was merely seeking declaratory relief and had not sought a stay on the prosecution against him, as well as that there were no third-party rights affected by his proceedings.

The judge said this argument was “without substance”, and he referred to the State side’s argument that there would be far-reaching consequences.

While the application had been framed as the seeking of declarations, that did “not obscure the fact that it is in effect a full-blown attack” on the 1939 Offences Against the State Act provisions which first set up the SCC, the judge said.

There was no evidence that the man or his solicitor had even considered challenging the SCC within the required three-month time period from when the decision to try him in the SCC was made, the judge said. There was also no evidence the lawyer and his client were prevented from consulting with one another in time so that they could do so.

The judge was not satisfied that circumstances that resulted in a failure to bring the challenge within time were outside the man’s control.

This application had been brought out of time and it was not appropriate in the circumstances to grant an extension of time to allow it be brought, he said.