The Supreme Court has agreed to hear appeals by Gerard 'The Monk' Hutch and former Sinn Féin Councillor Jonathan Dowdall over a refusal to halt their trial before the non-jury Special Criminal Court later this year.
Mr Hutch (58), with an address at Clontarf, Dublin 3, represented by Ferrys Solicitors, is charged in connection with the murder of David Byrne at the Regency Hotel, Whitehall, Dublin, on February 5th 2016. He and Mr Dowdall (44), a co-accused of Navan Road, Cabra, Dublin, lost separate High Court applications earlier this year aimed at quashing the DPP's decision to try them before the SCC.
The core claim in their challenges was they are entitled to trial by jury and should not be tried under what effectively amounts to emergency legislation introduced during the Northern Ireland conflict.
The SCC, they argued, has essentially and unlawfully become a permanent court within the Irish legal system. The present iteration of the SCC is based on a 1972 proclamation to combat terrorism and it is not legally permissible for that court to try them 50 years later for alleged organised crime activities, they claimed.
The State argued there was no time limit found in the Offences Against the State Act 1939 for a proclamation setting up a non-jury court. As long as it was determined the ordinary courts were inadequate to secure the effective administration of justice in certain cases, the Executive was entitled to continue the operation of the SCC, it submitted.
In dismissing the actions, Mr Justice Anthony Barr held there was no time limit on the use of the non-jury court based on the applicable legislation. The question as to whether the ordinary courts are adequate to secure the effective administration of justice was "a purely political question" and, given judicial deference to executive action, it was not a matter for the court to make a judgment on that issue, he held.
Both accused applied for a ‘leapfrog’ appeal, one direct to the Supreme Court rather than the normal route via the Court of Appeal, against the High Court decision.
There is no automatic right to a ‘leapfrog’ appeal but a panel of Supreme Court judges has now determined both applications meet the criteria for such an appeal.
The criteria require the Supreme Court to be satisfied there are exceptional circumstances warranting a direct appeal and that the decision involves a matter of general public importance and/or that an appeal is necessary in the interests of justice.
The applicants argued the Government may only make a proclamation bringing into effect a non-jury court as a temporary and emergency measure and the current political and security landscape does not permit the operation of such a court.
In its determination on Wednesday, the Supreme Court said it considers there are exceptional circumstances warranting a direct appeal and there are matters of general public importance the court ought to determine.
The court particularly noted it has not yet had the opportunity to determine the proper interpretation of the 1939 Act and the question of whether the current SCC is ultra vires [in excess of the powers of ]that Act.
It considered these issues were of general importance not only to the applicants but also to the public, as the determinations of the issues would likely impact other applicants tried before the SCC.
For reasons including the proceedings are of a time-sensitive nature, the court also considered there are exceptional circumstances warranting a direct appeal.