Supreme Court to hear Hutch and Dowdall appeals against decision to try them at Special Criminal Court
12 May 2022
THE SUPREME COURT has agreed to hear appeals by Gerry “The Monk” Hutch and ex-Sinn Fein councillor Jonathan Dowdall aimed at preventing their trials before the non-jury Special Criminal Court (SCC) on charges of murder arising out of the Regency Hotel attack in 2016 from going ahead.
Earlier this year Mr Justice Anthony Barr in the High Court ruled that having considered all the various arguments raised by the parties he had reached the conclusion that their action aimed at preventing their trials proceeding before the SCC “must be refused.”
The men’s lawyer applied to the Supreme Court to hear their appeals against that decision.
In a written determination a three-judge panel comprised of Mr Justice Peter Charleton, Mr Justice Seamus Woulfe and Mr Justice Gerard Hogan held that the appeal had raised a matter of public importance which should be determined by the court.
The court also agreed that the exceptional circumstances exist to grant the two men a ‘leap-frog’ appeal, meaning that their action will be heard directly by the Supreme Court rather than the Court of Appeal.
The Supreme Court accepted that the appeals raise issues concerning the proper interpretation of the 1939 Offences Against the State Act, and if the Special Criminal Court is outside the legal authority of that Act.
The two have argued that their appeal raises questions of general public importance intituling if the SCC is lawfully in existence at present and whether it is lawful to try an accused person before that court.
The appeal also raises issues about the permanence of the SCC as an institution, and the interpretation of emergency powers contained in the 1939 Act.
The State, in its submissions to the Supreme Court, rejected their claims that the appeals raise matters of public importance.
The SCC, it was claimed, is required to secure the effective administration of justice and the preservation of peace.
No date has been fixed for the hearing of the appeals.
Regency Hotel murder
Hutch (58), who was extradited from Spain, and former Dublin City councillor Jonathan Dowdall (44), of Navan Road, Dublin, are both charged with the murder of David Byrne (33) at the Whitehall, Dublin, hotel on 5 February, 2016.
In their judicial review proceedings they both sought declarations from the High Court that their trials before the SCC would be unlawful and in breach of their fundamental rights because the SCC is operating as a permanent court when it was only set up on a temporary basis nearly 50 years ago.
Their actions were against the Minister for Justice, Dail Eireann, Ireland and the Attorney General, while Seanad Eireann is also a respondent in the Hutch case.
They also sought various declarations including that a trial before the SCC, is unlawful, outside the powers of the 1939 Offences Against the State Act and violates their constitutional and European Convention rights.
They further claimed the failure by the State to enact anything other than temporary measures in respect of procedures for the trial of persons before the SCC also breaches their rights.
They claimed that they should not be tried under what amounts to temporary legislation introduced in 1972 during the Troubles in response to an emergency situation, at the time but has since been extended to deal with serious organised crime.
The respondents denied their claims and say, among other things, there is a failure by the men to adequately, or at all, to particularise the legal basis for the reliefs they seek.
‘No sunset clause’
In his judgement in February Mr Justice Barr had said that the case centred around a proper interpretation of a certain section of the 1939 Offences Against the State Act.
Having considered all the various parties’ submissions the court had reached the conclusion that it must refuse all the forms of relief sought by the applicants.
The court did not accept the applicants’ argument that the legislation challenged was temporary nor had any temporal limit.
There was “no sunset clause” in the Act, whereby it could only exist beyond a given date after its inception, on a resolution of either the government or the Dail, the judge added.
The judge added that the DPP was entitled to certify that certain offences can be tried before the SCC once the DPP held the requisite opinion that the ordinary courts are inadequate to secure the effective administration of justice.
There was he added no basis in law preventing the DPP from seeking to have the applicants’ trials go before the SCC, he added.
The judge also rejected the applicants claims that that there was a lack of any effective review of the relevant provisions under the 1939 Act.
The judge said that it had been argued that in 1972 the SCC was set up to primarily deal with offences connected to subversive organisations.
They argued as the SCC currently deals with gangland or organised crimes the regulations governing that court introduced 50 years ago should have been replaced with updated ones.
The judge said that the DPP is entitled to have certain matters go before the SCC for trial, even if they do not have any subversive connections.
The court was satisfied that the decisions made by the Government in 1972, and by successive governments regarding the SCC was “a political question”, and not something justiciable before the courts.
While there were some circumstances where a court can review the actions by the executive, he said.
However, he was satisfied that “noting had been established” in these actions which would “warrant the court trespassing into “the sphere that is essentially the business of the executive.”
The judge added that there was no basis upon which to make any declarations against the Dail Eireann.
It had previously been agreed that Hutch had no case to make against Seanad Eireann, the judge noted.