TWO men charged with the unlawful killing of heroin addict Josey Dwyer in Dublin three years ago may be tried before the non-jury Special Criminal Court, the Supreme Court decided yesterday.
The men - Mr Ronald Byrne, a taxi-driver, of Lower Drumcondra Road, and Mr Bernard Dempsey, of Marrowbone Lane Flats - had claimed they were being unfairly discriminated against because nine others charged with the same offence will be tried before a judge and jury at the Central Criminal Court. All 11 men are charged with the unlawful killing of Mr Dwyer and assault on Mr Alan Byrne at Basin Lane, Dublin, on May 14th, 1996.
A twelfth man charged with the same offences has since died.
Delivering the decision of the five-judge court, the Chief Justice, Mr Justice Hamilton, said the two men were distinguished from their co-accused by a certificate from the DPP which stated that, in their case, the ordinary courts were inadequate.
This was a power expressly conferred on the DPP by Section 46 of the Offences Against the State Act 1939, as amended, he said.
The certificate could only be issued by the DPP while there was in force a government proclamation stating the government was satisfied that the ordinary courts were inadequate to secure effective administration of justice and the preservation of public peace and order under Section 35 of the 1939 Act.
Mr Byrne and Mr Dempsey claimed there was no factual basis for the DPP's opinion that the ordinary courts were inadequate in relation to their trials.
They said there was no basis for distinguishing them from the great majority of the co-accused.
The two failed in their High Court challenge to proceeding to trial before the Special Criminal Court. They appealed to the Supreme Court on the basis that they were entitled to a jury trial.
Mr Justice Hamilton said a 1996 Supreme Court decision in Kavanagh v Ireland established that the question of whether the ordinary courts were or were not adequate to secure the administration of justice was primarily a political question which, for that reason, was left to the legislature and executive.
He said the certificates or directions of the DPP under the Offences against the State Act would not be subject to judicial review in the absence of improper motives and such a claim did not arise in the appeal before the court.
The two men had argued that all DPP decisions were subject to court review for the purpose of getting an objective assessment as to whether the ordinary courts were inadequate in specified cases to secure the effective administration of justice.