The Supreme Court yesterday reserved judgment on Mr John Gilligan's appeal against the High Court's refusal to grant him leave to challenge a decision of the DPP.
The DPP had concluded that Mr Gilligan's trial on a charge of murdering journalist Veronica Guerin should proceed before the non-jury Special Criminal Court, and not before a judge and jury.
Mr Gilligan (48) was extradited to Ireland from Britain last February on a charge of murdering Ms Guerin. He is due to go on trial on this and other charges related to drugs and firearms offences at the Special Criminal Court on November 21st.
In the Supreme Court yesterday, Mr Michael O'Higgins SC, for Mr Gilligan, accepted the Government was entitled to set up the Special Criminal Court under Section 35 of the 1939 Offences Against the State Act and that it had done so under the terms of a proclamation which carried the presumption of constitutionality.
Counsel accepted the special court was entitled to try both subversive and non-subversive offences. However, he said, in the late 1980s or early 1990s, new problems arose in Irish society with drugs flowing into the country, with some people becoming very wealthy as a result and becoming part of well-organised gangs.
If the Government got advice that the best way of tackling this was by trying such people before the Special Criminal Court then a new proclamation was called for, counsel argued.
Mr O'Higgins said Mr Gilligan was seeking a declaration that the proclamation was no longer valid. It might have been right at the time to deal with the circumstances then prevailing, but it was not introduced with a view to dealing with organised crime or drug dealers.
There was a mandatory requirement on the Government to revoke such a proclamation if the circumstances under which it originally was set up no longer obtained.
On the DPP's decision to certify his client's trial for the Special Criminal Court, counsel said Mr Gilligan did not know on what basis this decision was reached - whether it was by committee, as a result of policy, whether it varied from case to case, or what sources he may have relied upon in reaching the decision.
If the DPP's decision was unreviewable in practice, it meant that there was no mechanism in place to de-certify a decision of the DPP if the circumstances on which he based his decision were found to have changed.
Mr O'Higgins said if Mr Gilligan secured leave to mount a judicial review challenge to the DPP's decision, he believed the matter could be fully ventilated before Christmas.
Ms Justice Denham, presiding, with Mr Justice Murphy and Mr Justice Geoghegan, said the court was reserving judgment and would endeavour to give it as soon as possible.