The Supreme Court has dismissed an appeal aimed at halting the pending trials of Gerry Hutch and ex-Sinn Féin councillor Jonathan Dowdall before the non-jury Special Criminal Court (SCC).
In what was a unanimous decision on Friday morning the five judge Supreme Court cleared the way for the two men’s trial to proceed before the SCC.
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.
The men’s lawyers had argued that their trials before the SCC would be unlawful because the SCC has become a de facto permanent court when the relevant legislation only provides that it be temporary.
The argument was made in an appeal by the two men, who are charged with murder, against an earlier High Court decision rejecting their challenge over the trials being heard before the SCC.
The High Court found the temporary/permanent argument was a political question and therefore not justiciable before a court.
If the decision to continue the SCC is made without bad faith, or absent mala fides, then the courts could not intervene, it was also found.
In its decision the Supreme Court comprised of the Chief Justice Mr Justice Donal O’Donnell, Mr Justice Peter Charleton, Ms Justice Iseult O’Malley, Mr Justice Gerard Hogan, and Mr Justice Brian Murray upheld the High Court’s findings and dismissed the appeal.
Giving the Supreme Court’s decision the Chief Justice said that the 1939 Offences Against the State Act does not contain “a test of permanence,” by which to gauge the lawfulness of the existence of the SCC.
The Chief Justice said the test of lawfulness of the SCC, which is contained in the law, was whether or not the Government is of the opinion that the ordinary courts are adequate to secure the administration of justice and the preservation of public peace and order.
The Supreme Court also found that no duty attaches to the to Dail Eireann to continuously review he necessity of the SCC.
The formal review process of the SCC contented for by the applicants in this case, the Chief Justice said, was not required.
The court in its decision also ruled that the Irish Human Rights and Equality Commission did not meet the legal requirements to be formally joined as an amicus curiae or friend to the court in the proceedings.