Court's existence challenged in appeal


JUDGMENT was reserved yesterday in a Supreme Court appeal brought by a man charged following the kidnapping of Mr James Lacey against the High Court's dismissal of his claim that the Special Criminal Court should cease to exist.

Joseph Kavanagh (39), unemployed, of Benbulben Street, Crumlin, Dublin, was arrested in July 1994 on charges in connection with the false imprisonment of Mr Lacey, at that time chief executive of the National Irish Bank, and other persons on November 2nd, 1993, at Blackrock, Co Dublin.

Miss Justice Laffoy, who dismissed his action in October 1995, said the question as to the adequacy or otherwise of the ordinary courts was a matter for the government and Dail Eireann to decide.

Mr Kavanagh has contended that kidnapping cases tried before (the Special Criminal Court were all of a paramilitary nature. More ordinary cases of a kidnapping nature had been prosecuted before a judge and jury. The most noteworthy of those was the kidnapping of Ms Jennifer Guinness.

During the High Court hearing, Mr Michael Hanahoe, solicitor for Mr Kavanagh, in an affidavit said that profound changes in security since 1992 meant there was no longer any justification for the continued existence of a Special Criminal Court which deprived the accused of the right to trial by a jury.

During yesterday's appeal, Dr Michael Forde SC, for Mr Kavanagh, said they were flabbergasted by the evidence presented by the State during the High Court hearing. He referred to the affidavit of Mr Paul Hickey, principal officer of the Department of Justice.

A civil servant, he claimed, was not in a position to know the Government's thinking in relation to the continued existence of the Special Criminal Court. An affidavit by a Government minister should have been made instead.

Garda Chief Supt James McHugh said in an affidavit that he had personal experience of incidents of interference with and was aware of Garda investigations concerning intimidation of jurors which were inhibited because the jurors in question expressed fear to such a degree that they were unwilling to give evidence.

But, Dr Forde said, Chief Supt McHugh gave no names or dates to back up his allegations. He believed that the court could direct the Government to consider whether it was satisfied that conditions still warranted the existence of the Special Criminal Court. The Government should not have a licence to stick its head in the sand for 25 years.

Mr Edward Comyn SC, for the State, said the Government was not obliged to justify the continued existence of the Special Criminal Court. The courts did not enjoy the power to substitute their view of whether the ordinary courts were adequate to secure the effective administration of justice or the preservation of the public peace for that formed by the Government. Neither did they enjoy the power to assess the reasonableness or otherwise of that determination.