The High Court has reserved its decision in Alan Harte’s challenge aimed at setting aside both the conviction and the 30-year prison sentence he received from the Special Criminal Court (SCC) for his role in the kidnapping and attack on businessman Kevin Lunney.
In his action Harte challenges the constitutionality of section 40 of the 1939 Offences Against the State Act which directs that a person who comes before the three-judge court cannot be told if they have been convicted by a majority decision or a unanimous decision.
The 1939 Act provides for the establishment of the non-jury SCC.
His action is against the SCC, the Director of Public Prosecutions (DPP), the State and the Attorney General.
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The application is opposed by the respondents, who argue the legislation challenged is constitutional.
The action opened before Ms Justice Marguerite Bolger on Thursday.
Following the conclusion of submissions from the parties, the judge reserved her decision and said she would deliver her judgment at a later date.
Represented by Michael O’Higgins SC, with Michael Hourigan BL, instructed by solicitor John Quinn, Harte is seeking an order setting aside the conviction and sentence imposed on him by the SCC.
He further seeks a declaration from the court that his trial before the SCC was unfair, not in accordance with the law and in breach of his constitutional rights.
Opening the case, Mr O’Higgins told the court that the issues raised are novel.
Counsel said his client was tried for offences before the SCC that would normally go before a jury at the Circuit Criminal Court. The standard of proof required to either convict or acquit his client should be mirrored, he said.
Counsel said that a majority decision of a three-judge SCC should not be considered to have the same weight as even a majority decision of a jury of either 10-2 or 11-1. This scenario is not equitable, counsel submitted.
Counsel also accepted that any remedy or alterations to the allegedly unconstitutional sections would be a matter for the Oireachtas.
In reply, Remy Farrell SC, for the respondents, said the conviction and sentence imposed should remain undisturbed.
There is no requirement for the SCC, a non-jury court that evolved from military tribunals that can make decisions on a 2-1 majority, to mirror the number of jurors required to bring in verdicts in criminal trials, counsel submitted.
In 2021, Harte (aged 42) was sentenced to 30 years in prison by the SCC for committing serious harm to and falsely imprisoning the Quinn Industrial Holdings director Kevin Lunney at a yard in Drumbrade, Ballinagh, Co Cavan, in September 2019.
Due to section 40 of the 1939 Act, Harte claims, he does not know if all three judges of the SCC found him guilty, or if he was convicted on a majority decision.
This, it is claimed, is in contrast to a jury trial, where since 1984 at least ten jurors must decide if an accused is guilty or not guilty of an offence they have been tried for.
A simple 2-1 majority decision of the SCC, it is submitted, is a major divergence from what is required from a jury hearing a criminal trial.
Section 40, Harte’s lawyers claim, annuls the constitutional guarantees of equality, and amounts to a form of unacceptable discrimination.