The Supreme Court has been asked to rule that the pending trials of Gerry Hutch and former Sinn Féin councilman Jonathan Dowdall in the Special Criminal Court Without a Jury (SCC) would be unlawful.
This is because the SCC has become a de facto permanent court, although the relevant legislation only provides that it is temporary, the five-judge Supreme Court heard.
The argument was made in an appeal by the two men, charged with murder, against a High Court decision dismissing their challenge to the SCC.
The High Court found that the temporary/permanent dispute was a political issue and therefore non-negotiable in court. It was also noted that if the decision to continue the SCC is made without bad faith or lack of breach of trust, then the courts could not intervene.
Hutch, 58, who was extradited from Spain, and former Dublin Councilor Dowdall, 44, of Navan Road, Dublin, will both be charged with the murder of David Byrne, 33, at the Regency Hotel in Dublin on February 5, 2016, which they deny the allegations.
Michael O’Higgins SC, in submissions on behalf of Mr Dowdall, argued that if the Court finds that the SCC operates as a permanent court, it is operating outside the powers provided for in the Offenses Against the State Act 1939, under which it first was configuration.
There is also a duty to keep tabs on the role of the SCC by the government and the Dáil, and failing to do so will result in the court acting outside its powers, he said.
Although it matters not how much time has passed that makes something permanent, almost 50 years since the proclamation establishing what is now the SCC, it does not operate on a temporary basis, but has turned into a permanent court and is in “expansion mode “. “, he said.
Brendan Grehan SC argued for Mr. Hutch that the executive branch and the state had misconstrued legislation allowing the denial of the right to a jury trial. It is not an acceptable state of affairs to supplant the jurisdiction of the courts to intervene when it is ultimately up to the Supreme Court to decide what a law means, he said.
Patrick Gageby SC of the Irish Human Rights and Equality Commission, who was granted permission to attend the appeal as an amicus curiae (friend of the court), said his client’s main concern was whether the finding that the Proclamation (establishment of the SCC ) was purely political as long as the government seriously believed that it was not inadmissible.
The Commission argued that it was fully justiciable and that the courts’ power of review could not be restricted.
Mr Gageby also said the question of whether the ordinary courts were inadequate to try certain crimes was “very factual” and not a question of high politics or the state’s sovereign power.
It is also an issue of legal protections for juries in cases where regular juries are not considered adequate, he said. It is noteworthy that over the past 50 years, the laws protecting and supporting juries have changed remarkably little to ensure they are free from adverse influences, he said.
Remy Farrell SC, for the DPP and the Attorney General, said his side recognizes the unusual nature and structure of the provision that the SCC provides, as it allows for its own inception based on the circumstances in force at the time.
In relation to the issue of jury intimidation, the relevant standard is not whether intimidation has occurred, but whether the ordinary courts are adequate for certain offences. The question of whether there should be a review of the SCC or how often a review should take place is a purely political decision, he said.
Shane Murphy SC, for the Oireachtas, Attorney General and Ireland, said Section 35.5 of the Offenses Against the State Act gives the Oireachtas the right to pass an Order repealing the SCC should it be deemed necessary. However, there is no evidence that the Oireachtas have failed in this regard and there has in fact been no attempt at annulment, he said.
Presiding Judge Donal O’Donnell said the court would reserve its decision.
https://www.independent.ie/irish-news/courts/gerry-hutch-and-jonathan-dowdall-claim-non-jury-trials-over-regency-murder-are-unlawful-41816131.html Gerry Hutch and Jonathan Dowdall claim Regency murder trial without jury ‘unlawful’