THOMAS “SLAB” Murphy is challenging in the High Court the constitutionality of a law under which tax charges against him are to be dealt with by the non-jury Special Criminal Court.
Mr Murphy (60), Ballybinaby, Hackballscross, Co Louth, is being prosecuted for failing to furnish tax returns for the years from 1996/97 to 2004. The charges were brought in November 2007 following an investigation by the Criminal Assets Bureau. That prosecution is on hold pending the outcome of review proceedings by Mr Murphy which opened yesterday before Mr Justice Daniel Herbert.
His lawyers claim the decision to try him before the Special Criminal Court rather than before a jury breaches his rights under the Constitution and European Convention on Human Rights (ECHR). They say the decision was taken by the DPP in secrecy with no explanation or reasons given. The State and the DPP deny the claims.
Michael O’Higgins SC, for Mr Murphy, said the power to try someone before the Special Criminal Court comes from the 1939 Offences Against the State Act as provided for under Article 38.3.1 of the Constitution, which allows for special courts to “secure the effective administration of justice”.
The Act provided for trials related to the circumstances of a particular individual, or related to a certain type of offence that might alter the DPP’s view in order to secure justice, he said.
What was at issue in this case was whether or not the power conferred under the Act is constitutional or alternatively incompatible with the ECHR, counsel said.
Mr O’Higgins said his side wrote to the DPP in 2008 asking for an explanation of how the decision to certify a trial before the SCC was arrived at. They were told the decision was taken in accordance with statutory provisions and case law and the DPP was not required to explain his decision.
Mr Murphy’s lawyers wrote again, saying while the DPP was not obliged to give reasons that did not mean they could not be given. A one-line reply was received referring to the previous DPP letter. Mr O’Higgins said the manner in which the power conferred on the DPP to certify trial in a special court involved a conferral of absolute power where there was no accountability.
Michael Collins SC, for the State, said the issuing of a certificate (for a Special Criminal Court trial) was an administrative function. It was open to the plaintiff to challenge the issuing of the certificate at the time but he had not done so. The case continues.