Separate challenges by Gerard "The Monk" Hutch and former Sinn Féin councillor Jonathan Dowdall aimed at preventing their non-jury trial on charges of the murder of a member of the Kinahan gang are due to open at the High Court today.
Both men claim the decision to send them forward for trial before the three-judge Special Criminal Court breaches their fair trial rights under the Constitution and the European Convention on Human Rights.
They also claim the Oireachtas is required, but has failed, to carry out any meaningful review to ensure the continuation of non-jury courts here, on foot of emergency legislation dating back to 1939, is a necessary restriction on the constitutional right to trial by jury.
In their separate judicial review proceedings, being heard together, they want the High Court to make orders preventing their trials from proceeding before the Special Criminal Court.
The two have been charged with the murder of Kinahan gang member David Byrne at the Regency Hotel in February 2016. Mr Byrne (34), from Crumlin, was shot dead at the hotel on the Swords Road during a boxing weigh-in.
The shooting happened after the venue was raided by a man dressed as a woman and another wearing a flat cap, who were armed with handguns, followed by three people dressed in tactical-style Garda uniforms carrying assault rifles.
Non-jury trial
Mr Hutch, of The Paddocks, Clontarf, Dublin 3, and Mr Dowdall (43), with an address at Navan Road, Cabra, Dublin 7, previously secured leave from the High Court to bring their separate judicial review proceedings, listed for hearing on Tuesday.
In his action, Mr Hutch claims his trial, scheduled for October with other co-accused, cannot fairly proceed before a court established on foot of a declaration issued in 1972 during the Northern Ireland Troubles, which purportedly continued in force temporary emergency legislation introduced in 1939, allowing for non-jury trial.
The Oireachtas has failed to enact legislation to permit the establishment of a permanent Special Criminal Court, he claims.
Part V of the Offences Against the State Act 1939, which envisaged the establishment of special criminal courts and permits trial before non-jury courts, does not permit the setting up of a special court “that operates in perpetuity”, it is argued.
The Special Criminal Court, his lawyers say, continues under the 1972 declaration despite very significant changes in the security and political landscape since then.
There is nothing about the particular facts of his prosecution that speak to temporary or emergency circumstances, he contends.
His case is against the Director of Public Prosecutions, the Minister for Justice, Dáil Éireann and Seanad Éireann, Ireland and the Attorney General. In opposing the orders sought, the respondents are expected to rely, among other grounds, on the separation of powers between the executive and judiciary.
