Graham Dwyer challenge and Lisa Smith trial to feature in new law term

The fallout from the Covid-19 pandemic and Brexit, large-scale housing plans, and the final mother and baby homes investigation report all feature in cases before the civil courts in the new law term.

In the criminal courts, the pandemic has resulted in delays getting some witness trials on, but former Defence Forces member Lisa Smith is due to stand trial in the Special Criminal Court (SCC) in January next on charges of membership of the Islamic State group and with financing terrorism.

Two men face trial before the SCC next April on charges of the murder of teenager Keane Mulready Woods in a house in Rathmullan Park, Drogheda, on January 12th or 13th, 2020. The accused are Paul Crosby (25), of Rathmullan Park, Drogheda, and Gerard Cruise (47), with addresses in Dublin 1 and Rathmullan Park.

An appeal by a teenager, who can be identified only as Boy B, against his conviction for the murder of schoolgirl Ana Kriégel at an abandoned farmhouse in Lucan on May 14th, 2018 is expected to come before the Court of Appeal within the coming year. A second boy, Boy A, was convicted of the girl's murder and of aggravated sexual assault.

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In the Commercial Court, huge interest is anticipated in a judgment expected later this year concerning the precise amounts that insurer FBD must pay to four bars who took successful test cases over its refusal to pay out for business interruption resulting from the pandemic. The court’s decision on core issues concerning quantum (damages payable) has implications for thousands of pubs and other businesses across the country.

Lawyers are also speculating that the ending of the moratorium on evictions during the pandemic could spark more litigation between landlords and commercial tenants.

The High Court's strategic housing and planning lists are expected to be busier than ever, with several new challenges looming over fast-track permissions for high-rise apartment developments, particularly in Dublin and Wicklow. Proposed developments in Killiney and at Drogheda's Scotch Hall are among those subject of challenge.

Lead challenges

The High Court will hear two lead challenges this term by two former residents of mother and baby homes over the final report of the Commission of Investigation into Mother and Baby Homes. The outcome of those cases, taken by retired nurse Philomena Lee, who lives in England, and by Galway-based Mary Harney will potentially affect six similar challenges.

The applicants argue the commission’s final report does not accurately reflect their evidence to it and breaches their rights to fair procedures and natural and constitutional justice. Other issues include the nature of a redress scheme and the constitutionality of provisions of the 2004 Act.

Judgment is also due from the High Court on the significant challenge by Green Party TD Patrick Costello over the constitutionality of aspects of the Comprehensive Economic Trade Agreement (Ceta) between the EU and Canada. Mr Costello claims provisions for “investor courts” to decide complaints by Canadians who invest in EU member states amounts to an impermissible “transfer of sovereignty” by the Government. His concerns include no limit placed on the value of compensation which may be awarded under the investor tribunal system.

Proceedings by international aid charity Bóthar over alleged misappropriation of its monies by its former chief executive David Moloney are due back before the High Court in October. Bóthar previously secured freezing orders preventing Mr Moloney reducing his assets below a value of €1.1 million. Mr Moloney, of Clino, Newport, Co Tipperary, has admitted misappropriating, for his personal use, large amounts of monies donated to the charity. He says he never lodged the monies in the bank nor kept any of the cash taken, but spent it on things such as family holidays and on his friends.

He claims much of what was misappropriated was paid to others, including the charity’s founder Peter Ireton, who died following a personal tragedy at his home in Limerick last April.

The Supreme Court will consider, on receiving a ruling by the EU Court of Justice of the EU (CJEU) expected late this year, its final decision on the State's appeal over a key High Court ruling upholding convicted murderer Graham Dwyer's challenge to a 2011 data retention law. If the Supreme Court dismisses the State's appeal, Dwyer is expected to rely on that ruling as part of his bid to overturn his 2015 conviction for the murder of childcare worker Elaine O'Hara.

Referral

Brexit is at the centre of another significant referral by the Supreme Court to the CJEU. This concerns whether there is any legal basis, post Brexit, for the continuance of the European Arrest Warrant system for the surrender of people between Ireland and the UK. The referral was made in appeals by two men who argue they cannot be surrendered to the UK on grounds there is no legal basis for the continuance of the EAW system between here and the UK. The outcome has implications for many similar cases.

In October, the Supreme Court will hear appeals by the Minister for Education against rulings in favour of two home-schooled students who challenged their exclusion from the calculated grades process.

The Court of Appeal continues to speedily process a high volume of appeals, having substantially reduced waiting times after clearing a backlog inherited from the Supreme Court some years ago. Its registrar Owen Duffy says urgent appeals are heard expeditiously while all appellants can potentially get a hearing in the next law term following their filing of their applications.

While a date has yet to be set for Aaron Brady's appeal against his conviction for the murder of Detective Garda Adrian Donohoe at Lordship Credit Union in Co Louth on January 25th, 2013, it is expected to be heard by the court next year. Brady (30), with a last address at New Road, Crossmaglen, Co Armagh, was convicted last October and jailed for a minimum 40 years.

The Central Criminal Court trial of Stephen Silver (44), of Aughaward, Foxford, Co Mayo, who is accused of the murder of Detective Garda Colm Horkan in a shooting in Castlerea, Co Roscommon on June 17th, 2020, has been fixed for June next year.

The courts are expected to resume hearings in the context of the “new normal”, with numbers attending hearings to remain restricted and mask wearing and social distancing still required.

While it is expected there will be more physical hearings, some court lists are likely to continue to be dealt with remotely.