The Supreme Court has unanimously ruled Thomas "Slab" Murphy has the right to challenge 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 on nine charges of failing to furnish tax returns for the years from 1996/97 to 2004.
The charges, which the State accepted during the case were non-scheduled indictable offences, were brought in November 2007 following an investigation by the Criminal Assets Bureau (CAB).
In a High Court judgment of November 2011, Mr Justice Daniel Herbert ruled Mr Murphy had not established the necessary legal standing to bring the challenge.
When Mr Murphy's appeal against that finding came before the five judge Supreme Court today, the Chief Justice, Mrs Justice Susan Denham, indicated at the outset the court did not need to hear arguments as it had a "clear view" Mr Murphy had the necessary legal standing.
The court found it "difficult to understand" why Mr Murphy would not have legal standing when he was charged with offences and the Director of Public Prosecutions (DPP) had issued a certificate for his trial before the Special Criminal Court, she said. The situation was "so manifest" that the court was "totally satisfied" Mr Murphy had legal standing.
The Chief Justice stressed the court was anxious to deal with the substantive constitutional issue raised by Mr Murphy and fixed July 29th for hearing submissions on that.
When Remy Farrell SC, for Mr Murphy sought his costs of the appeal on the legal standing point, Mrs Justice Denham said the court would reserve the issue of costs to the end of the appeal.
In his action, Mr Murphy claims the decision to try him before the non-jury court rather than before a jury in the ordinary courts breached his rights under the Constitution and European Convention on Human Rights (ECHR), including to fair procedures, his good name and equality before the law.
The decision was taken by the DPP in secrecy with no explanation or reasons given, he argues. When his lawyers wrote to the DPP in 2008 asking why the decision to certify a trial before the Special Criminal Court was arrived at, they were told it was taken in accordance with relevant statutory provisions and case law and the DPP was not required to state reasons.
Mr Murphy argues the power conferred on the DPP under Section 46 of the Offences Against the State Act to certify trial in a special court involves an excessive conferral of absolute power with no screening, transparency or accountability.
Nothing is known about how the DPP reaches that decision and, unlike other countries, there are no procedures here allowing that decision to be reviewed, it is argued.
If Section 46 means the DPP can certify a trial before the SCC without having to give reasons, then Section 46 is unconstitutional, he contends.
