Establishment of Special Criminal Court by ‘temporary’ proclamation in 1972 was still valid

O'Donnell CJ (nem diss): Criminal law - special courts - Article 38.3.1° of the Constitution - exception to rule that persons be tried by jury - Offences Against the State Act, 1939, s. 35 - establishment of Special Criminal Court (SCC) by proclamation in 1972 - second SCC in 2016 - accused charged with murder - certification from DPP that ordinary courts inadequate to secure administration of justice - judicial review - challenge to return for trial before SCC - refusal of relief in High Court - appeal to Supreme Court - SCC intended to be temporary in nature - nature of emergency - court of permanent character - whether a temporal limit on operation of court - whether duty on Dail Eireann to keep necessity of SCC under continuous review - language of 1939 Act -

"I think it is a permissible starting point to observe, that it would indeed be startling if the Oireachtas, in the course of passing legislation to deal with a perceived and serious threat to the existence of the State itself, and permitting for the establishment of a Special Criminal Court because of the possibility contemplated by the Constitution, that the circumstances may be such that the ordinary courts were inadequate to secure the administration of justice, would nevertheless, construct the Court on such a precarious, vague and inherently uncertain foundation."

"It follows from the above that it is possible to raise challenges at a number of different stages in this process. Here, the challenge is relatively narrow and relates only to the interpretation of s. 35, and the question of any implied duty to keep the position under review to permit the powers under s.35 to be exercised. It is apparent from the analysis already set out that the applicants’ contention is misconceived and misconstrues the Act as understood in its constitutional setting. It cannot be said that either Part V of the Act, or the Special Criminal Court, must be understood to be subject to an implied condition of temporariness, or non-permanence, so that at some unspecified point before a proclamation under s. 35(4) or an annulment under s. 35(5), the Court would lose jurisdiction to try offences. The circumstances under which Part V comes into force and the Court is established, and the circumstances in which Part V ceases, and with it the establishment of the Court, are precisely identified in the Act. So long as a proclamation has been made under s. 35(2) which has not been annulled under s. 35(5) and no countervailing proclamation made under s. 35(4) then Part V is in force and the Court is validly established and no additional condition of non-permanence can be implied."

"The obligation to keep the situation under review exists because of the obligation to act bona fide in relation to the functions under s. 35(4) and having regard to the structure of the Act, and the constitutional designation of courts established under Art. 34 as ordinary courts, and, therefore, the norm. No formality is, however, required. If the Government is open to the possibility of making it a determination under s. 35(4) the duty would be fulfilled. In this case, much more was done. While I have concluded the Dáil is under no similar duty as a matter of law, it is clear that the circumstances are kept under review by that body not least by the annual consideration of the renewal of the provisions of the 1998 Act."

Hogan J (concurring):

"To my mind, however, it is clear from the language of s. 35(4) that the Government is not at large when it comes to rescinding any such Proclamation. The Government may only rescind the Proclamation when it is satisfied that the ordinary courts are in fact adequate to secure the effective administration of justice and the preservation of public peace and order."

"All of this means, therefore, that the Dáil has been given a pure political power by s. 35(5), the exercise of which power is not constrained by any cognisable legal standards or criteria. This power accordingly stands in the same general category of powers suchas, for example, the right to vote confidence in the Taoiseach for the purposes of Article28.10. To my mind, the exercise (or the non-exercise) of such a power, unfettered by legal standards, essentially stands outside the category of reviewable legal powers."

"The applicants here have not challenged the failure of the Government to revoke theProclamation under s. 35(4). Here I agree with all that the Chief Justice has already saidwith regard to the nature of the executive power. This is rather a statutory power whichthe Oireachtas has vested in the Government and it is one which does not involve theexercise of executive power of the State under Article 28.2 of the Constitution. It would, of course, have been open to the applicants to challenge the failure of the Governmentto exercise its s. 35(4) powers, but there is no such challenge in the present proceedings."