A man charged with the assault and false imprisonment of Quinn Industrial Holdings director Kevin Lunney has brought a High Court challenge against the Special Criminal Court’s jurisdiction to hear his trial.
The man, who cannot be named for legal reasons, claims the DPP’s decision that he should not be tried before a jury represents a significant curtailment of his constitutional rights.
The man is accused of falsely imprisoning and causing serious harm contrary to sections 4 and 14 of the 1997 Non-Fatal Offences Against the Person Act to Mr Lunney at Drumbrade, Ballinagh, Co Cavan on September 17th, 2019.
The man, along with three other co-accused, was sent forward for trial before the non-jury Special Criminal Court in March of this year. The trial is due to commence early next year and is expected to last for several weeks.
Represented by Michael O’ Higgins SC with Michael Hourigan BL, instructed by John Quinn Solicitors, the man has brought judicial review proceedings before the High Court challenging the decision that he should be tried before the non-jury court.
Mr O’Higgins said that the DPP had certified in accordance with the 1939 Offences Against the State Act that the ordinary courts could not hear the trial and that the man should be tried on what are non-scheduled offences before the Special Criminal Court.
Counsel said the man’s trial will take place under what has been described by the Supreme Court in a 1996 decision as “temporary emergency legislation,” that has been in place for almost 50 years.
Counsel said that the legislative gateway being used by the DPP allowing his client to be tried before the Special Criminal Court was introduced in 1972 during the Troubles.
No legislative adjustments to the relevant parts of the 1939 Act have taken place since the Supreme Court’s decision, it is argued. It was not appropriate that the man be tried under temporary legislation, counsel said.
The man’s trial should only take place under laws that have appropriate regard to the fact the relevant measures are no longer temporary.
Counsel said the failure to convert the temporary emergency measures regarding Special Courts into a permanent situation amounts to a failure by the State to properly safeguard his client’s constitutional rights.
The man also claims that his loss of a right to trial before a jury is such that clear criteria and guidance also needs to be set out in legislation as to the circumstances under which the DPP is entitled to conclude that the ordinary courts are inadequate.
In judicial review proceedings against the Minister for Justice, the Director of Public Prosecutions, Ireland and the Attorney General he seeks various declarations including that proclamations under section 35(2) of the 1939 Act is only a temporary measure.
He also seeks a declaration that the failure by the Oireachtas to enact anything other than temporary measures in respect of those being tried before Special Courts amounts to a breach of those persons’ constitutional rights.
The man further seeks a declaration that there has been a failure by the Oireachtas to give adequate guidance or set out the criteria to determine when ordinary courts cannot be used and which categories of cases should go before non-jury courts.
On Friday afternoon Mr Justice Tony O’Connor granted the man permission, on an ex-parte (one side only) basis, to bring his challenge. The matter was made returnable to a date in September.