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Judgment
Title:
Murphy -v- Ireland & ors
Neutral Citation:
[2014] IESC 19
Supreme Court Record Number:
463/11
High Court Record Number:
2008 9139 P
Date of Delivery:
03/11/2014
Court:
Supreme Court
Composition of Court:
Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell Donal J.
Judgment by:
O'Donnell J.
Status:
Approved
Result:
Dismiss
Judgments by
Link to Judgment
Concurring
O'Donnell Donal J.
Denham C.J., Murray J., Hardiman J., Fennelly J.



THE SUPREME COURT
463/2011

Denham C.J.
Murray J.
Hardiman J.
Fennelly J.
O’Donnell J.
      Between:
Thomas Murphy
Plaintiff/Appellant
And

Ireland, The Attorney General and the

Director of Public Prosecutions

Defendants/Respondents

Judgment of the Court delivered the 11th of March 2014 by Mr Justice O’Donnell.

1. On the 8th of November 2007 the plaintiff Thomas Murphy was charged with the offence of failing, being a chargeable person, without reasonable excuse to furnish a return in the prescribed form of his income, profits or gains, or the sources of income, profits or gains to the Collector General as required by s.951 of the Taxes Consolidation Act 1997 (hereinafter “the 1997 Act”) and thus, it is alleged, contrary to s.1078(2)(g)(i) of the same Act (as amended).

2. The offence created by s.1078(2)(g)(i) of the 1997 Act is an offence triable either way. The third named defendant, the Director of Public Prosecutions (hereinafter “the Director”), proposed to have the plaintiff tried on indictment and a book of evidence was served on him at Ardee District Court on the 19th of December 2007. On the same occasion, the District Court was informed that the Director had issued a certificate pursuant to s.46(2) of the Offences Against the State Act 1939 (hereinafter “the 1939 Act”) on the 17th of December 2007. That certificate set out the offences with which the plaintiff was accused and was in the following terms:

      “Offences Against the State Act 1939.

      Director of Public Prosecution Prosecutor

      Thomas Murphy Accused

      Certificate of the Director of Public Prosecutions pursuant to s.46(2) of the above entitled Act, as amended by s.11 of the Criminal Justice Act 1999.

      I, James Hamilton, Director of Public Prosecutions, hereby certify that the ordinary Courts are, in my opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy on the charges set out in the schedule hereto, being indictable offences which are not schedules offences for the purposes of Part V of the above named Act.”

On the 10th of January 2008 an order was made by the District Court Judge returning a date for trial to a sitting of the Special Criminal Court.

3. The plaintiff brought judicial review proceedings to challenge the return for trial because certain technical defects in the order had been amended in proceedings in which the plaintiff had not been represented. Accordingly, on the 19th of November 2008, the High Court made an order quashing the return for trial. The effect of this was formal and procedural: it was accepted that a proper return for trial could be made and the trial proceed. However, the plaintiff took no steps to seek to challenge by judicial review the certificate of the Director of the 17th of December 2007. Instead, on the 5th of November 2008 (and therefore just shortly before the hearing in the High Court on the challenge to the return for trial) a plenary summons was issued by the plaintiff seeking declaratory relief. The endorsement of claim was in the following terms:

“1. A Declaration that section 46(2) of the Offences Against the State Act 1939, as amended, is repugnant to the provisions of the Constitution of Ireland, 1937.

2. A Declaration that section 46(2) of the Offences Against the State Act, 1939, as amended, is incompatible with the State’s obligations under the European Convention on Human Rights as provided for by the European Convention of Human Rights Act, 2003.

3. A Declaration that the third named Defendant has acted otherwise than in accordance with law and in breach of the rights of the Plaintiff under the Constitution of Ireland, 1937 and the European Convention on Human Rights.

4. An Order by way of an Interim Injunction restraining the third named Defendant from prosecuting the Plaintiff on foot of the Bill of Indictment at present pending before the Special Criminal Court pending the determination of the within proceedings or further Order of this Honourable Court.

5. Interlocutory relief in terms of paragraph 4.

6. Such further or other Order as shall seem meet or appropriate.

7. The costs of these proceedings.”

In the event, no application was made for the injunctions outlined in paragraphs 4 and 5 of the plenary summons. A statement of claim was delivered. The essential contention set out therein was contained at paragraph 8 in the following terms:

“Despite request in writing the third named defendant failed, neglected, and/or refused to inform the Plaintiff of the reason(s) for the issuing of the said certificate and has further failed, neglected, and/or refused to provide the Plaintiff with any information used by him to reach the decision to issue the said certificate.”

4. The statement of claim also contained a composite plea that s.46(2) was repugnant to the Constitution and incompatible with the European Convention on Human Rights (hereinafter the “Convention”) and further, that the Director had acted otherwise than in accordance with the law and in breach of the plaintiff’s constitutional and convention rights in issuing the certificate and in “failing to inform the Plaintiff of the reasons therefore and/or failing to provide the Plaintiff with the information used to reach the said decision and further failing to hear the Plaintiff”. (para. 9)

5. Particulars of the above plea were set out which it is desirable to again set out in full:

      “a. Section 46(2) of the 1939 Act fails to guarantee the Plaintiff’s right to be held equal before the law.

      b. Section 46(2) of the 1939 Act fails to guarantee the Plaintiff’s right to a fair trial in due course of law and/or a trial on an indictable matter before a jury of his peers.

      c. The decision of the Director of Public Prosecutions to exercise the powers conferred under s.46(2) may well be based upon alleged facts which are untrue and/or inaccurate. Furthermore, the disclosure of the existence of such alleged facts may not have the effect of compromising any individual’s security, or the security of the State. Notwithstanding, there is no obligation under the Director of Public Prosecutions to disclose the material, nor is there any method by which he can be compelled so to disclose.

      d. Section 46(2) makes no provisions for notifying the Plaintiff of the intention to issue a certificate and makes no provision to allow the Plaintiff to be heard before a certificate is issued and/or to allow the Plaintiff to be heard once a certificate is issued.

      e. The decision to remove the right to trial by jury is done unilaterally. It is in breach of the audi alteram partem principle, and furthermore such breach occurs in circumstances where there is no onus on the Director of Public Prosecutions to demonstrate that there is any need to withhold the information upon which the decision is based from the plaintiff.

      f. The decision affects a fundamental right of the plaintiff. It was taken in secrecy and, in circumstances where the Director of Public Prosecutions is not obliged to account for how or why the said decision was taken. Indeed, the only circumstances upon which a court might likely intervene is where malafides is demonstrated. However, in circumstances where the plaintiff will have no access to the material upon which the decision is based, it would be impossible to demonstrate that the decision has been so motivated.

      g. Section 46(2) makes no provision for the provision of information to the Plaintiff to allow for a meaningful assessment of the lawfulness of the decision to issue the certificate. Further, and in the alternative, while the section does not prohibit the release of such information the decision of the third named Defendant to refuse to provide same is otherwise than in accordance with the law represents a positive attack on the rights of the Plaintiff.

      h. Further and in the alternative, the inflexibility of the third named Defendant in relation to his policy to refuse to give reasons is inconsistent with the Constitution and incompatible with the State’s obligations under the European Convention and renders the decision to deprive the Plaintiff of his right to trial by jury effectively non-justiciable.

      i. Section 46(2) of the Offences Against the State Act, 1939 fails to provide for a right of appeal or review in relation to a decision with far reaching effects on the fundamental rights of the Plaintiff.

      j. The third named Defendant has acted arbitrarily and/or unreasonably in reaching the decision to issue the said certificate and/or has acted on the basis of improper motive and has abused the process of the Courts in so doing. Further, the third named Defendant has failed to have regard to a special obligation to ensure a trial in due course of law and has adopted a course subversive of the Plaintiff’s constitutional and convention rights and has acted in a discriminatory manner.”

It is necessary to observe at this point that the plea contained in subparagraph j was withdrawn at the hearing in the High Court.
      “k. If there are circumstances which would justify taking a decision in secret and not informing the plaintiff of the basis upon which it is made, the same could only be justified in particular and exceptional circumstances, and where it was demonstrated that the material upon which the decision was based would be harmful to an individual or to the security of the State if disclosed to him.

      l. The Plaintiff reserves the right to serve further particulars.”

6. A notice of particulars was served in April 2009. More than one year later, on the 26th of April of 2010, replies were forthcoming. Thereafter, two months later a defence was filed. It raised a number of preliminary objections contending that the proceedings were an impermissible collateral challenge to the Director’s certificate, that the plaintiff did not have locus standi to challenge the validity of s.46(2) and that the statement of claim disclosed no reasonable course of action and was frivolous or vexatious and an abuse of the process. Without prejudice to those pleas, the defence also was a full traverse and denial of the matters pleaded in the statement of claim.

7. The matter came on for hearing in the High Court in June 2011. On that occasion no evidence was called and the hearing consisted entirely of legal argument. In November 2011 judgment was delivered dismissing the plaintiff’s claim on the grounds that he did not have locus standi. The case was appealed to this court. No application for priority was made. A preliminary issue was listed on the question of locus standi. The court indicated its view that the plaintiff had locus standi to challenge s.46(2) of the 1939 Act and directed an early hearing of the substantive appeal.

8. Before addressing the important substantive matters raised in this appeal it is, necessary to address the unsatisfactory procedural history of this case. It is now more than six years since charges were preferred in the District Court on behalf of the people of Ireland by the officer entrusted by statute with the bringing of prosecutions. However, no step has been taken in relation to the trial of the matters charged because of the existence of these proceedings. It is entirely unacceptable that this should be the case. There is a strong public interest in the speedy prosecution of offences. There is also a strong individual interest on the part of a person who maintains their innocence in having the issue tried and determined as soon as possible. It is unsatisfactory that uncertainty, and the possibility of a trial, should hang over a person for such a period. It is equally unsatisfactory, if a challenge is unsuccessful, that a trial should commence many years later, with the inevitable possibility that witnesses will no longer be available or if available that their recollection of disputed facts may be less clear. It is necessary to recall the observations made by Walsh J. in State (Lynch) v. Cooney [1982] I.R. 337 at page 373:

“The Court has often indicated that the quicker the procedure available the better for everyone. This Court has had many unfortunate examples of matters being held up for very long periods because the parties chose, as a matter of tactics, to initiate plenary proceedings rather than other speedier procedure to challenge the validity of an Act of the Oireachtas. The result has been that, on a number of occasions, proceedings in courts all over the country (particularly in the District Court) have been held up not only for months but for years pending the final resolution of the long drawn plenary proceedings. In matters which will have a very wide impact if the challenge to the validity of an Act should succeed, it is desirable that the proceedings should be initiated and determined in the quickest possible manner.”

9. It is not necessary that every challenge to the constitutional validity of an Act of the Oireachtas be commenced by plenary summons. Such a course is preferable where it is anticipated that a significant amount of oral evidence will be necessary and where the process of exchange of pleadings can then identify the issues to which evidence may be directed, and refine the legal issues in dispute. In this case it is worth recalling that no evidence was called at all. But where plenary procedure is adopted, then it is essential that the matters be prosecuted with urgency and with a timetable which ensures that the matter is determined promptly so as to occasion the shortest possible delay to any pending criminal trial, and indeed to ensure that the state of uncertainty which must necessarily effect other trials on the same offence, or by the same procedure, is resolved, one way or another, as soon as possible. The superior courts are over burdened and significantly under resourced but they should, and do, give priority to cases of systemic importance or which are causing delays in criminal trials. However, to accomplish this, the courts must be aware of the case and its importance for other cases. There is a clear obligation on the parties to bring the matter to the courts’ attention and to seek expedition at the earliest possible stage. Furthermore, I do not consider that it should be taken for granted that a trial, and indeed any subsequent trial in which the same point can be said to arise, should be allowed to be adjourned as a matter of course pending the outcome of the challenge. That would be to give an applicant the benefit of an injunction without any application to, or consideration by, a court. Such an acceptance could involve in effect the suspension or disapplication of law enacted by the Oireachtas and entitled to the presumption of constitutionality. Prima facie, the bringing of this prosecution was a compliance with the law which continues to be binding unless declared repugnant to the Constitution by the only courts with constitutional power to do so. If the law is not enforced over a protracted period, but subsequently the challenge is rejected, there will have been great damage to the system of law enforcement that is not capable of calculation or repair. It is necessary for both parties to such a case to understand the constitutional values in issue and to cooperate in agreeing a speedy timetable to ensure the case is disposed of as soon as possible.

10. Section 46 of the Offences Against the State Act 1939, as amended provides as follows:

“(1) Whenever a person is brought before a justice of the District Court charged with an offence which is not a scheduled offence and which such justice has jurisdiction to dispose of summarily, such justice shall, if the Attorney-General so requests and certifies in writing that the ordinary courts are in his opinion inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, send such person (in custody or on bail) for trial by a Special Criminal Court on such charge.

(2) Whenever a person is brought before a justice of the District Court charged with an indictable offence which is not a scheduled offence and such justice sends such person forward for trial on such charge, such justice shall, if an application in this behalf is made to him by or on behalf of the Attorney-General grounded on the certificate of the Attorney-General that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, send such person forward in custody or, with the consent of the Attorney-General, at liberty on bail for trial by a Special Criminal Court on such charge.

(3) Where under this section a person is sent or sent forward in custody for trial by a Special Criminal Court, it shall be lawful for the High Court, on the application of such person, to allow him to be at liberty on such bail (with or without sureties) as the High Court shall fix for his due attendance before the proper Special Criminal Court for trial on the charge on which he was so sent forward.”

11. The section can be usefully understood in the context of Part V of the Act set against the background of the Constitution and in particular Article 38 thereof. Part V of the Act is entitled “Special Criminal Courts”. It is provided by s.35(2) that Part V will only come into force when the Government is “satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order” and has made and published a proclamation to that effect. Section 36 of the Act provides for certain offences to be scheduled for the purpose of this Act. However, s.36(3) provides that where the government is satisfied that the effective administration of justice can be secured through the ordinary courts in relation to particular offences, it may deschedule such offences. Section 41 provides that the practice and procedure applicable to a trial of a person on indictment in the Central Criminal Court shall, so far as practicable, apply to a trial in the Special Criminal Court. Section 44 provides for appeal to the Court of Criminal Appeal. Sections 45, 46 and 47 and 48 deal with the mechanism for bringing offences before the Special Criminal Court. Section 45 deals with scheduled offences and provides that where such cases are brought before the ordinary courts, the courts shall, unless the Attorney General (and now the Director of Public Prosecutions) requests otherwise, return the matter for trial to the Special Criminal Court. Section 46 deals with non-scheduled offences and permits those matters to be brought before the Special Criminal Court only on certificate of the Attorney General (and now the Director of public Prosecutions). Section 47 provides for a similar mechanism to apply where it is intended to charge a person directly before the Special Criminal Court. Thus, in the case of scheduled offences, the Director may direct that a person be charged before the Special Criminal Court “if he so thinks proper”. In the case of a non-scheduled offence under s.47(2) the Attorney General/Director of Public Prosecutions must certify that the ordinary courts are in his opinion inadequate to secure the effective administration of justice and the preservation of peace and order in relation to the trial of such person. Finally, s.48 deals with the situation where a person has been sent forward for trial to either the Central Criminal Court or the Circuit Court. In such circumstances the same procedure applies, and in the case of scheduled offences, if the Director of Public Prosecutions directs, and in the case of non-scheduled offences, if the Director of Public Prosecutions positively certifies, the case is transferred to the Special Criminal Court.

12. The structure of the Act is clear. Before a person is tried in the Special Criminal Court it is necessary first that the Government must declare that the ordinary courts are inadequate to secure the administration of justice. Thereafter, the legislation distinguishes between scheduled offences and non-scheduled offences in providing a different default position. Scheduled offences are presumptively directed towards trial in the Special Criminal Court whereas non-scheduled offences will only be tried after positive certification to that effect. But in each case, the relevant officer must direct his mind to the question of the adequacy of the ordinary courts to secure the administration of justice in the particular case. In the case of scheduled offences, the Director must direct or request a trial in the Special Criminal Court. In the case of non-scheduled offences, he or she must certify that the ordinary courts are, in his or her opinion, inadequate to secure the administration of justice and the preservation of public peace and order “in relation to the trial of such person on such charge”. While therefore, the plaintiff’s claim is addressed to s.46(2) of the Act since that was the section invoked in his case, it is clear that the argument made is of wider application and is capable of being made in respect of other provisions of the Act.

13. The Offences Against the State Act was enacted shortly after the coming into force of the Constitution in circumstances which are well known. It is an important, though a regrettable fact, that for almost the entire life of the Constitution, and indeed since the foundation of the State, legislation providing for some form of emergency powers and trial in a Special Criminal Court has been part of the legislative code of this State. That in turn reflects a fact which cannot be avoided, that since the foundation of the State there have been organisations active within it, at different times, and with different degrees of force, which have denied the legitimacy of the State and the administration of justice within it, and consider violence, criminal conduct, and if necessary the intimidation and/or persuasion of witnesses and jurors, as acceptable tactics in pursuit of their aims. The background to the Special Criminal Court is set out in the evidence of a Detective Superintendent, and recorded in the judgment of McMahon J. in Redmond v. Ireland & the Attorney General [2009] IEHC 201 as follows:

“Referring to the increased activities and attacks of the I.R.A. in the 1930s he explained the necessity for the introduction of the Offences Against the State Act in 1939. The I.R.A. was declared to be an unlawful organisation and that suppression order still continues in this jurisdiction. In detailed evidence to the court he gave a brief history of the I.R.A. and the emergence of a breakaway faction in around 1969, now known as the Provisional I.R.A.. Having outlined the objectives of the I.R.A. he gave a description of the treatment meted out to people who are suspected of assisting police investigations, which included interrogation and torture sometimes resulting in execution. The fact that it is an oath bound secret organisation divided into cells creates problems for the gardaí making it very difficult to infiltrate the organisation and gather evidence to prosecute member volunteers. The organisation is very energetic in trying to identify members of the public who provide information to the police and are very assiduous in collecting evidence including closely examining books of evidence to identify any such persons. If anyone is identified in this manner it usually results in serious torture or death. This represents a serious problem for the gardaí who bring prosecutions before the ordinary courts where witness and jury intimidation was not unknown.”

14. It is necessary to set Article 38.3 of the Constitution in its context in Article 38 as a whole. That Article provides as follows:

“1 No person shall be tried on any criminal charge save in due course of law.

2 Minor offences may be tried by courts of summary jurisdiction.

3 1° Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

2° The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.

4 1° Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion.

2° A member of the Defence Forces not on active service shall not be tried by any courtmartial or other military tribunal for an offence cognisable by the civil courts unless such offence is within the jurisdiction of any courtmartial or other military tribunal under any law for the enforcement of military discipline.

5 Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.

6 The provisions of Articles 34 and 35 of this Constitution shall not apply to any court or tribunal set up under section 3 or section 4 of this Article”

15. Article 38 is part of the section of the Constitution dealing with the courts and the administration of justice. The provisions of Article 38.1 are absolute and are not qualified by the succeeding sub-articles. Any person who is tried on a criminal charge must be tried “in due course of law” whatever the court in which that person is tried. The concept of “due course of law” comes with an impressive lineage in the common law tradition. It undoubtedly imposes limitations on the manner in which courts may be established, procedures adopted and cases tried. For present purposes the important sub articles are 2, 3 and 5. Again, there can be no doubt that the Constitution intended that trial by jury would be the standard template by reference to which all criminal trials are to be measured. The constitutional importance of trial by jury transcends the fact that such trials are very much the exception rather than the norm today. Most criminal trials are summary trials in the District Court and even the majority of trials on indictment are resolved by pleas of guilty. But in summary trials the standards applied are those derived from trial on indictment before a jury. Trial by jury is both an important constitutional right of the citizen and a constitutional obligation on the State. It derives its constitutional importance not just from its impressive place in the history of the common law, but also because it provides for the direct involvement of the people in the administration of justice. This was explained most eloquently by Henchy J. in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384 at pages 432-433:

“The bitter Irish race-memory of politically appointed and Executive-oriented judges, of the suspension of jury trial in times of popular revolt, of the substitution therefor of summary trial or detention without trial, of cat-and-mouse releases from such detention, of packed juries and sometimes corrupt judges and prosecutors, had long implanted in the consciousness of the people and, therefore, in the minds of their political representatives, the conviction that the best way of preventing an individual from suffering a wrong conviction for an offence was to allow him to 'put himself upon his country', that is to say, to allow him to be tried for that offence by a fair, impartial and representative jury, sitting in a court presided over by an impartial and independent judge appointed under the Constitution, who would see that all the requirements for a fair and proper jury trial would not be observed, so that, amongst other things, if the jury's verdict were one of not guilty, the accused could leave court with the absolute assurance that he would never again 'be vexed' for the same charge.

If one were to scrutinise the debates in Parliament and the records of the written and spoken argument for and against the draft Constitution in 1937, I venture to think that one would not find the hint of an opinion, either from the proponents or opponents of the Constitution, that a verdict of not guilty, emanating from a jury trial mandated by Article 38, s. 5, could be reopened by appeal or otherwise. Indeed, if such opinion had been expressed by any reputable person or body, it is to be arguably contended that the Constitution would never have been enacted by the people.”

It is doubtful if this passage can be improved upon by any gloss or paraphrasing. There is no doubt that in those circumstances provided for under the Constitution, trial by jury is not just a fundamental right of the citizen, it is a vital constitutional obligation on the State.

16. It is not necessary to take issue with the description of summary trial in the District Court, or trial before the Special Criminal Court, as exceptions to a constitutional norm of trial by jury. But if so, it is important to identify the nature of the exception, and the manner in which it is provided for. It is an exception which is itself constitutional in its nature. Article 38.5 is not phrased, as many other provisions in the Constitution are, in terms where a provision is stated but then qualified by the possibility of legislation. The Article does not for example provide: “save in such cases as may be provided for by law no person shall be tried on a criminal charge without a jury. If it were so, then the analysis of any law providing for trial other than by jury would be straightforward. A law providing for any such exception would be narrowly construed to ensure minimal impairment of the constitutional right.

17. Here however, an exception is not merely contemplated by the Constitution. It is provided for in the Constitution in pursuit of constitutional objectives. In the relatively uncontroversial case of a trial of minor offences in the courts of summary jurisdiction, it would be incorrect to describe any accused person as having been deprived of a constitutional right to a trial by jury. In those circumstances, the Constitution expressly contemplates that the trial in due course of law may take place in a court of summary jurisdiction. In the case of special courts established under Article 38.3 the Constitution not only explicitly provides for their establishment, but also identifies the circumstances in which they may be established, namely that it has been determined that “the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order”. Preservation of peace and order is itself an important objective of the Constitution. Peace and order are part of the common good and social order which the Constitution seeks to promote. The effective administration of justice is a fundamental component of the Constitution and part of the separation of powers upon which the State is founded. Courts which cannot secure the effective administration of justice are unable to perform the constitutional function imposed upon them by Article 34 of the Constitution. A trial, for example, where jurors are unwilling or unable because of intimidation or other influence, to adjudicate upon the case solely on the basis of the law and the evidence, as they are sworn to do, is not the administration of justice under Article 34. Any such trial is not a trial in due course of law to which the individual accused and the people are entitled by the Constitution. For that critical situation, the Constitution prescribes its own remedy in Article 34.3: “Special courts may be established by law for the trial of offences”.

18. It is no longer the case, as was indeed suggested at the time of the Article 26 reference of the Offences Against the State Amendment Act 1940, that it would be sufficient compliance with the constitutional requirement that a matter be determined “by law” if it was possible to point to legislation, in this case establishing a special court, providing for determination that the ordinary courts were inadequate to secure the effective administration of justice. Any such “law” as is contemplated by Article 38(3) must mean in the words of Henchy J. in King v. The Attorney General [1981] I.R. 233 “without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution” (p. 257). The question in this case therefore becomes whether the provisions of the Offences Against the State Act 1939 are compatible with the dictates of fairness postulated by the Constitution. In this case, that claim has been formulated by reference to an alleged entitlement to receive reasons for the Director’s decision and see or obtain the information upon which it was based, and if necessary to have a hearing. There are many circumstances in which some or all of this may be required. In order to consider whether that is the case in respect of decisions under Part V of the Offences Against the State Act 1939 it is necessary to consider briefly the extensive case law on that topic, and the question of the law relating to the review of prosecutorial decisions more generally.

19 As Professor James Casey observed in The Irish law Officers: Roles and Responsibilities of the Attorney General and the Director of Public Prosecutions (Round Hall; Dublin; 1996) page 288, the law relating to a decision of the Director of Public Prosecutions to direct a trial in the Special Criminal Court by any of the statutory routes available under the Offences Against the State Act 1939 is “but a particular application of the general rule – that the Director’s exercise of discretion can be reviewed in very limited circumstances only”. It is necessary therefore to consider the law relating to Part V of the Offences Against the State Act in the context of the law relating to the review of decisions of the Director of Public Prosecutions more generally.

20. The earliest challenge to the provisions of Part V came almost immediately after its enactment. In MacCurtain [1941] I.R. 83 the court rejected the argument of the issue of a certificate pursuant to s.46(2) was the administration of justice. Since the law in this area is its own reflection of the ebb and flow of subversive violence in this State and Northern Ireland, it is not surprising that the next case was in 1972 where in The State (Bollard) v. Special Criminal Court (Unreported, High Court, Kenny J., 20th September 1972), in a decision upheld ex tempore by the Supreme Court, held that it was constitutional for the Oireachtas to provide that the question of the inadequacy of the ordinary court should be dealt with by the proclamation of the Government and certificate of the Attorney General. In Savage & McOwen v. The Director of Public Prosecutions [1982] I.L.R.M. 385 (hereinafter “Savage”) there was a specific challenge to the power exercised under s.46(2). Finlay P. deduced from MacCurtain the conclusion that it was “peculiarly and exclusively a matter for the Attorney General” (p. 388) to certify the inadequacy of the ordinary courts which was not reviewable by the courts. Quite apart from his views as to precedent he supported that conclusion by his own analysis and by having regard to certain practical considerations:

“[If the decision was reviewable] it would be necessary for the director in order to uphold the certificate he issued and for the Special Criminal Court to have jurisdiction over the case which on his certificate has been sent forward for trial by it to reveal in open court in litigation at the instance of the accused person himself all of the information, knowledge and facts upon which he informed his opinion. This would obviously, as a practical matter, entirely make impossible the operation of Part V of the Act of 1939 for the trial of any non scheduled offence by the Special Criminal Court whilst it is established and in existence. The revealing of such information in open court under conditions under which persons are seeking to overthrow the established organs of the State would be a security impossibility and to interpret s.46 sub-s 2 of the Act of 1939 so as to make that necessary would be to vitiate the entire of that sub-section.”

As will become apparent the absoluteness of this statement was qualified somewhat by the same judge in The State (McCormack) v. Curran [1987] I.L.R.M. 225 in which he set out limited grounds for review of the Director’s decision but the underlying rationale articulated in Savage has remained central to the approach of the courts in this jurisdiction, and finds echoes in the approach taken in other jurisdictions.

21. In O’Reilly & Judge v. The Director of Public Prosecutions [1984] I.L.R.M. 224 there was a challenge to the powers of the Director under s.47 to direct charge before the Special Criminal Court on certificate and s.48 which permits transfers from the Central Criminal Court or Circuit Court on certificate from the Director. All grounds were rejected. At page 229 of the report, Carroll J. dealt with the argument that “the court should enquire into the reasons to determine if there were any grounds for reaching the opinion”. She adopted the reasoning of Finlay P. in Savage to the effect that to so interpret s.46(2) would be to require the investigation of reasons in open court which would vitiate the entire subsection. Carroll J. also rejected the argument that the court could make an investigation into the certificate of the Director in private:

“I am of opinion, based on the terms of Article 38(3)(1) of the Constitution and the authorities to date, that the opinion of the DPP is not reviewable by the courts, whether in open court or as a private investigation”. (p. 229)

22. In The State (McCormack) v. Curran the Superior Courts had to deal with the general reviewability of decisions of the Director of Public Prosecutions in prosecutorial matters. In that case, the plaintiff wished to be tried in this jurisdiction under the Criminal Law (Jurisdiction) Act 1975 rather than in Northern Ireland. The Director of Public Prosecutions refused to prosecute him. The High Court (Barr J.) and a unanimous Supreme Court rejected the claim that he was entitled to review the decision of the Director of Public Prosecutions in part on the authority o f the earlier decisions on Part V of the Offences Against the State Act. However, the court qualified the earlier absolute statement made in Savage and held that the Director’s actions were not entirely outside the scope of review by the courts. Finlay C.J. said:

“If … it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court.” (p. 237)

In the light of subsequent decisions of this court quashing decisions of the Director, it is necessary to qualify that statement so as to provide that a decision of the Director is reviewable if it can be demonstrated that it was reached mala fides or influenced by improper motive or improper policy, or other exceptional circumstances. However, as so qualified, the decision in The State (McCormack) v. Curran has remained the law. In H. v. The Director of Public Prosecutions [1994] 2 I.R. 589, the High Court held that while the Director of Public Prosecutions could not in general be compelled to explain or give reasons, such an obligation could arise once a decision was challenged. The High Court relied on the decision in International Fishing Vessels Ltd. v. Minister for the Marine [1989] I.R. 149 (hereinafter “International Fishing”) which is one of the foundation cases on the domestic law of the duty to give reasons. However, the Supreme Court unanimously overturned this decision. O’Flaherty J. upheld the submission that the Director was not obliged to give reasons. He particularly distinguished the International Fishing case because of the limited scope of reviewability of the Director’s decisions:

“Thus, Blayney J. [in International Fishing Vessels Ltd] starts from the premise of the decision of the Minister is open to full judicial review. However, it is clear from the decision in The State (McCormack) v Curran [1987] I.L.R.M. 225 that the discretion of the Director of Public Prosecutions is reviewable only in certain circumstances as set out by Finlay C.J. … .

It would seem then that as the duty to reasons stems from a need to facilitate full judicial review, the limited intervention available in the context of decisions of the Director obviates the necessity to disclose reasons.” (p. 603)

Denham J. (as she then was) held that since the facts did not exclude the reasonable possibility of a proper and valid decision then, citing McCormack the DPP “cannot be called upon to explain his decision or to give reasons for it nor the sources of the information upon which it is based.”

23. Kavanagh v. The Government of Ireland [1996] 1 I.R. 321 was a comprehensive challenge both to the powers of the Government to bring Part V of the 1939 Act into operation by declaring that the ordinary courts were inadequate to secure the administration of justice, and of the powers of certification of a non-scheduled offence pursuant to s.47(2). In the High Court, Laffoy J. reviewed the authorities. Of particular note is that the applicant sought to argue that The State (McCormack) v. Curran and H v. The Director of Public Prosecutions should be distinguished because they did not affect any established fundamental constitutional rights whereas in this case it was argued that the Director of Public Prosecution’s opinion under s.47(2) “affects the applicant’s fundamental constitutional right to a trial by jury” (p. 339). Laffoy J. rejected this argument concluding that:

“[I]t is implicit in the passage from the judgment of Finlay C.J. in The State (McCormack) v. Curran [1987] I.L.R.M. 225 … that while public policy considerations do not entirely preclude reviewability of a decision of the Director, it is public policy considerations which give rise to the limited extent of the review permissible. The Director’s certificate under s.47, sub-s.2, in my view, belongs to a category of decisions which the Supreme Court, on policy grounds, has held to be reviewable only to a limited extent, and accordingly, in my view on the authority of the State (McCormack) v. Curran … and H. v. The Director of Public Prosecutions … the Director’s certificate is not reviewable in the absence of evidence of mala fides on the part of the Director or that he was influenced by an improper motive or improper policy.” (p. 339)

Laffoy J. also rejected the plaintiff’s contention that he had suffered discrimination contrary to Article 40.1 of the Constitution on the grounds that he was not receiving the same mode of trial as was afforded to others charged with the same offences. On appeal the Supreme Court upheld the judgment of the High Court. It appears that most of the argument in the Supreme Court was focussed on the Government’s declaration that the ordinary courts were inadequate. Barrington J. observed however:

“It is clear therefore that under our system the question of whether special criminal courts should be established is a matter for the legislature and the question of whether the Part of the Offences Against the State Act, 1939, providing for the establishment of special criminal courts should be brought into force or should cease to be in force is a matter for the Government. Provided these powers are being exercised in a bona fide manner the ordinary courts have no function in relation to them. There is a certain logic in this as the question under consideration is the adequacy or otherwise of the ordinary courts to secure the effective administration of justice and the preservation of public peace and order.” (p.354)

At page 360 he stated:

“This judgment has attempted to stress that the primary control over the powers of the Government under Article 38, s.3 of the Constitution and under Part V of the Offences Against the State Act, 1939, is a political control. This means that normally the proclamations of the Government under s.35, sub-ss. 2 and 4 of the Offences Against the State Act, 1939, or the certificates or directions of the Director of Public Prosecutions under s.47 of the same Act will not be subject to judicial review in the absence of evidence of mala fides.”

It is perhaps worth noting that by describing this as the normal rule, Barrington J. did not exclude the possibility of review in exceptional circumstances.

24. Ward v. The Government of Ireland & Ors (Unreported, Supreme Court, 18th December 1987) was a challenge to the issue of a certificate in a case which was acknowledged not to involve subversive elements. In the Supreme Court, Lynch J. (Keane C.J. and Barron J. concurring) stated that the Director of Public Prosecutions was:

“… [s]imply deciding that it is proper the Appellant should be tried by a bench of three judges rather than by one judge and a jury where in either event identical rules of law will be applicable. …In issuing a certificate under Section 47 of the 1939 Act it must be presumed prima facie that the DPP issues the certificate in order to secure a proper trial of the Appellant untrammelled by possible intimidation of the court of trial. The maxim audi alteram partem does not arise in relation to the DPP’s function in issuing the certificate. That maxim must of course be given full scope at the Appellant’s trial by whatever court he is tried. To suggest that there should be a sort of preliminary trial as to the court to try the Appellant for the offence for which he is charged is untenable.” (p. 5)

25. In Byrne & Dempsey v. The Government of Ireland, The Attorney General, The Director of Public Prosecutions and the Special Criminal Court (Unreported, Supreme Court, 11th of March 1999, Hamilton C.J.) the Supreme Court upheld the refusal by Geoghegan J. of leave to seek judicial review of the decision to direct trial in the Special Criminal Court. A central feature of the submissions was the reliance on the constitutional right not to be tried on a criminal charge other than by a jury. It was thus contended that s.46(2) had the effect of depriving the appellants of their alleged constitutional rights to trial by jury and accordingly the opinion and consequent decisions of the Director of Public Prosecutions should be subject to review by the courts. In rejecting this contention the court observed:

“While the court in Kavanagh’s case was concerned with issues broader than the issues involved in the instant case, the judgments delivered therein, with which all the members of the Court agreed, clearly established that the question of whether the ordinary courts are or are not adequate to secure the effective administration of justice and the preservation of public peace and order is primarily a political question, and, for that reason, it is left to the legislature and the executive and that normally, the certificates or directions of the Director of Public Prosecutions under either Section 46 or 47 of the Offences Against the State Act will not be subject to judicial review in the absence of mala fides or improper motives.” (p. 19)

The court observed that the submission of the appellant would involve the courts in either determining (or reviewing a decision) whether or not the ordinary courts are effective for the said purpose. The court continued:

“This was clearly not the intention of the legislature and I am satisfied that it has not been established by the Appellants that there is even an arguable case to support the submission and I would reject the appeal on this ground.” (p. 21)

Again the court rejected an argument that there was an inequality under Article 40.1 by reason of the fact that in the particular case, the plaintiff’s co-accuseds were being tried in the ordinary courts. The court concluded:

“In the absence of a prima facie case of mala fides in the issue by the Director of Public Prosecutions of the certificate, he cannot be called upon to explain his decision or give the reasons for it nor the sources of the information upon which it was based (vide State (McCormack) v. Curran [1987] ILRM at page 237).” (p. 23)

26. In Eviston v. The Director of Public Prosecutions [2002] 3 I.R. 260 the Supreme Court took the step of quashing the decision of the Director to prosecute the applicant where the Director had reversed an earlier decision not to prosecute after receiving representations from the family of the victim and in circumstances causing great stress to the accused. This important case establishes that the grounds of review of a prosecutorial decision are not limited to the grounds set out in The State (McCormack) v. Curran. It has been followed and applied in a number of subsequent cases

27. It is instructive to consider at this point how this matter has been considered in comparable jurisdictions. In R v. Panel on Take overs and Mergers, Ex parte Al-Fayed [1992] B.C.C. 524, Steyn L.J. (as he was) said of the reviewability of decisions of the Director of Public Prosecutions:

“[I]t seems to me that, in the absence of evidence of fraud, corruption or mala fides, judicial review will not be allowed to probe its decision to charge individuals in criminal proceedings. The law must take a practical view of the limits of judicial review. It would be unworkable to extend judicial review into this field.” (p. 536)

This echoes the observations made by Finlay P. ten years earlier in Savage. The law on review of prosecutorial decisions was reviewed and succinctly stated by the late Lord Bingham in Sharma v. Brown-Antoine [2007] 1 W.L.R. 780 at page 788:

“It is … well established that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy. The language of the cases show a uniform approach: ‘rare in the extreme’ (R v Inland Revenue Comrs Ex p Mead …); ‘sparingly exercised’ (R v Dirctor of Public Prosecutions, Ex p C …); ‘very hesitant’ (Kostuch v Attorney General of Alberta …); ‘very rare indeed’ R( Pepushi)v Crown Prosecution Service …); ‘very rarely’: R(Bermingham) v Director of Serious Fraud Office … . In R v Director of Public Prosecutions, Ex p Kebiline Lord Steyn said:

          “My lords, I would rule that absent dishonesty or mala fides or an exceptional circumstances, the decision of the Director to consent to the prosecution of the applicants is not amendable to judicial review.”
It would seem therefore, that post Eviston v. The Director of Public Prosecutions the law in Ireland in relation to the general reviewability of prosecutorial decisions is similar to that in the United Kingdom and for very similar reasons.

28. It is perhaps trite to observe that the conflict which engulfed Northern Ireland more than 40 years ago has been the proximate cause of both the increase in subversive activity in this State, and the legislative response to it. Both matters have inevitably found their way to these courts. The decisions of courts over the last 40 years provide their own insight into the manner in which a democratic state has struggled with the threat posed by organised subversion and the challenges it poses to a state founded on the rule of law. In Northern Ireland the Emergency Provisions Act 1973 introduced a non-jury court for the trial of scheduled offences. The legislative provisions were amended from time to time but the essential structure remained the same until 2007 and the passage of the Justice and Security (Northern Ireland) Act 2007 which was itself a reflection of the improvement in the political and security climate in Northern Ireland. Prior to 2007 scheduled offences were to be tried by a judge alone. There was however, provision under which the Attorney General could certify that any individual offence would not be treated as such. In 2007 the default position was reversed. Henceforth, offences were presumptively to be tried before a jury, but there was provision under which the Director of Public Prosecutions for Northern Ireland could certify that any trial was to be conducted without a jury if he was satisfied that there was a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. The conditions under which the Director could be so satisfied were set out in some detail but essentially involved suspicion of membership or association with a prescribed organisation and suspicion that the offence was committed on behalf of the prescribed organisation and that the offence was committed to any extent as a result of a response to political hostility of a person or group to another. Essentially therefore, since 1973 to date, a decision must be made by the Director of Public Prosecutions for Northern Ireland, either negative or positive, which can result in a trial occurring before a non jury court.

29. In In Re Shuker [2004] N.I.Q.B. 20 a Divisional Court composed of Kerr L.C.J. and Campbell L.J. considered a challenge to the decision of the Attorney General to exercise his power not to deschedule an offence, the consequence of which was that the trial would occur before a judge alone. A central ground advanced was the claim that the applicants’ rights under Article 6 of the European Convention on Human Rights were engaged by the making of the decision whether their trial should be by a judge alone and that the procedure adopted by the Attorney General in deciding whether to deschedule the applicants’ case failed to comply with the requirements of that Article. On behalf of the Attorney General it was argued that his decision was immune from judicial review. However, the Divisional Court rejected that contention considering that “this species of decision is justiciable but there are significant constraints of the extent of review that may be undertaken” (para. 7). The court referred to an extract from Fordham’s Judicial Review Handbook (para. 32.2) in the following terms:

“Modified grounds. A measure or decision, although amenable to judicial review, may because of its nature or subject matter be reviewable: (1) only on some of the recognised grounds; or (2) on recognised grounds of which one or more are to be applied in a specially adapted way. Not that there are any neat pigeonholes or rigid adjustments. For, in truth, all grounds for judicial review are invariably contextual and capable of modification so as to accommodate the interest of justice in the particular context and circumstances under review.” (p. 16)

The court relied on the observations of Steyn L.J. in R v. Panel on Takeovers and Mergers, Ex parte Al-Fayed already set out and the observations of the same judge in Elguzouli-DAF v. Commissioner of Police of the Metropolis & Ors; McBrearty v. Minister for Defence & Ors. [1995] Q.B. 335 at page 346:

“Given the nature of the prosecution process it is, however, right to say that the scope for such judicial review proceedings is very limited indeed: Wiseman v. Borneman [1971] A.C. 297.”

Kerr L.C.J. in In Re Shuker observed “the cases where it has been held that judicial review will not lie to challenge the decision of prosecuting authority have been essentially pragmatic in their reasoning” (p. 23). There is here a clear echo of the approach taken by Finlay P. in Savage. Holding therefore that while the decision was justiciable the court concluded:

“[I]t is not a process which is suitable for the full panoply of judicial review superintendence. In particular, we do not consider that the decision is amenable to review on the basis that it failed to comply with the requirements of procedural fairness.

The exercise involved in deciding whether offences should be de-scheduled is in some respects akin to the decision whether to prosecute. It involves the evaluation of the material that will frequently be of a sensitive nature and the assessment of recommendations made by or on behalf of the Director of Public Prosecutions based on his appraisal of matters that may not be admissible in evidence or whose disclosure would be against the public interest. This is par excellence a procedure on which the courts should be reluctant to intrude. It is, moreover, a task that has been entrusted by Parliament to the Attorney General and while this will not in all circumstances render judicial review impermissible, it signifies a further reason for reticence.” (para. 25-26)

The courts concluded that the rights the applicants may enjoy in relation to the decision whether a trial should take place before a jury did not come within the ambit of Article 6 relying in this regard on R. (on the application of Holding & Barnes Plc) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 W.L.R. 139 and Begum v. Tower Hamlets LBC [2003] UKHL 5.

30. In 2010 The Northern Ireland Court of Appeal (Morgan L.C.J., Girvan L.J. and Weatherup J.) had to consider a challenge to a positive certification for trial in a non-jury court pursuant to s.1 of the Justice and Security (Northern Ireland) Act 2007 (Arthurs’ Application [2010] N.I.C.A. 75). Section 7 of that Act provided that no court could entertain proceedings questioning, whether by way of judicial review or otherwise, any decision or purported decision of the Director of Public Prosecutions in relation to the issuance of certificates accepting grants of dishonesty, bad faith or other exceptional circumstances. That provision was however subject to s.7(1) of the Human Rights Act 1998 providing for claims that a public authority had infringed convention rights. In this case it was argued that there was procedural unfairness that infringed Article 6(1) of the Convention. Girvan L.J. pointed out that the decision that the defendants’ trial should be by way of trial before a judge alone would not deprive the defendants of a fair trial. The Director’s certificate was not decisive in any issue that fell to be determined in the trial and did not of itself undermine the right of an applicant to a fair trial. The court observed that:

“The right of an indicted defendant to a jury trial is a right recognised by the common law and it is a right which is commonly described as being in the nature of a constitutional right insofar as any right can be described as constitutional in an unwritten constitution which is based on the principle of Parliamentary supremacy.” (para. 31)

Nevertheless, the court held that the right of the defendant to a fair trial before an independent and impartial tribunal pursuant to Article 6 was not interfered with. The court also rejected the challenge on the fair procedures grounds. Applying In Re Shuker the court observed that “not every decision making process … demands procedural fairness in the sense of requiring the decision maker to consult the party affected or to make him aware of the nature of the evidence being relied on when reaching a decision adverse to him” (para. 33). The statutory conditions contained in the 2007 Act involved matters of impression and evaluation and judgment on the part of the Director. The nature of that exercise did not lend itself either to the full panoply of judicial review or the implication of a duty to seek or receive representation before the Director formed a suspicion. Finally, Girvan L.J. made observations which may be applied with equal force to this case. He observed that it was highly desirable that any challenge should be brought before the arraignment in a criminal trial to allow the arraignment to be adjourned. That would leave open the possibility of the Director reconsidering a certificate following a successful challenge:

“Clearly in the interests of a fair and expeditious trial the Divisional Court should impose a strict timetable in relation to the challenge so as to ensure that the interference with the progress of the trial is as limited as possible. In the present case neither party demonstrated the requisite degree of urgency which the situation demanded.” (para. 35)

31. It is an interesting feature of this case that the law of Ireland, Northern Ireland and Great Britain applying a broadly similar analysis comes to a largely similar result. The question of an entitlement to reasons is intertwined with the availability of judicial review. The requirements of procedural fairness are dictated by the particular circumstances: there is no one size fits all. It cannot be said that the decision of the Director of Public Prosecutions in relation to prosecutions generally, or when deciding on a trial in a non-jury court, is beyond the scope of judicial review. By the same token, that review, and any consequent obligation to provide reasons, is limited. There is here, as in other areas of the law, a tension between supposed demands of logic, and those of pragmatism and experience. That is normally a healthy tension which encourages a review of the solution reached and at times, incremental changes in the balance fixed by the law. But any solution which does not at least recognise and address the values on each side of the balance, can only achieve the comfort of such clarity and certainty at the price of forfeiting respect.

32. While the argument in this case became focussed principally on the question of reasons and fair procedures it is necessary to address, even briefly, some other arguments which were made. First it was contended that s.46(2) was in breach of the principle of equality before the law guaranteed by Article 40.1 of the Constitution. The argument here was, at least superficially, quite simple. It was suggested that the plaintiff here was being treated differently from another person charged with the same offence who would be tried before a jury. This it was said was a breach of the guarantee of equality before the law.

33. Article 40.1 is a guarantee of equality before the law. It is a fundamental right guaranteed by the Constitution and unlike many of the other provisions in the 1937 Constitution, has no counterpart in the 1922 Constitution. It is perhaps not insignificant that it is placed at the outset of the fundamental rights section of the Constitution. It set an egalitarian and essentially republican tone which is perhaps reinforced by the specific provisions of Article 40.2 prohibiting titles of nobility and honour. It is therefore a vital and essential component of the constitutional order.

34. However, the guarantee of equality before the law is expressed in terms of such equality “as human persons”. That phrase was problematic in the early period of constitutional interpretation and on occasion gave rise to interpretations which, applied rigorously, might have robbed the guarantee of much, if not all, of its content. It is however, increasingly understood that it is intended to refer to those immutable characteristics of human beings, or choices made in relation to their status, which are central to their identity and sense of self and which on occasions have given rise, whether in Ireland or elsewhere, to prejudice, discrimination or stereotyping. As Walsh J. observed in Quinn’s Supermarket v Attorney General [1972] I.R.1:

“[Article 40.1] is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals’, or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community”. (pp. 13-14)

Matters such as gender, race, religion, marital status and political affiliation, while not all immutable characteristics, can nevertheless be said to be intrinsic to human beings’ sense of themselves. Differentiation on any of these grounds, while not prohibited, must be demonstrated to comply with the principles of equality. This is the sense in which the principle of equality is most commonly employed in constitutions and international instruments. It is plain however, that no discrimination on such grounds exists, or is alleged, in this case.

35. Nonetheless, Article 40.1 is in general terms and accordingly it may be that significant differentiations between citizens, although not based on any of the grounds set out above, may still fall foul of the provision if they cannot be justified. It is unnecessary here to seek to determine the level of scrutiny the Constitution would require to be applied to any particular differentiation in the absence of one of the factors identified above. The principle of equality in general terms requires that like persons should be treated alike, and different persons treated differently, by reference to the manner in which they are distinct. Here it is plain that the plaintiff is being treated differently from other persons charged with offences against the Taxes Consolidation Act. The plaintiff maintains that he is in this respect the same as those other persons. But looked at less narrowly, it is clear that the plaintiff is not only different to such persons in an important respect, but is legally distinct. He is a person in respect of whom a public officer entrusted with this responsibility in succession to the Law Officer of the State has concluded that the ordinary courts are inadequate to secure the administration of justice in this case. Moreover the difference in treatment between the plaintiff and another person charged with the same offences before the Circuit Court is precisely and directly related to this difference. As a consequence of the certificate of the Director of Public Prosecutions he is not to be tried in the ordinary courts (which are in the opinion of the Director inadequate to secure the administration of justice) and instead is to be tried in the Special Criminal Court. If this differentiation was grounded in statute it would be more than sufficient to explain the differential of treatment. Equality analysis does not engage in the merits of the treatment, simply in its equality. But here, the distinction is not grounded merely in statute but is expressly contemplated, and indeed provided for, in the terms of the Constitution itself. Article 38, in its terms, contemplates a differentiation being made between those who will receive trial by jury, and those in respect of whom it has been determined in accordance with law that the ordinary courts are inadequate to secure the administration of justice. The differentiation made in accordance with the dictates of the Constitution could not offend Article 40.1.

36. Notwithstanding the power and importance of equality analysis, this is but one further example of a case where the plaintiff’s complaint is not in truth grounded in any impermissible differentiation, and where analysing the case in terms of equality rather than substantive rights only adds a further redundant, and possibly confusing, stage to the analysis. If the plaintiff in this case has a right to trial by jury in this case, or if fair procedures dictate that he is entitled to reasons, the disclosure of information, and a hearing, then he is entitled to succeed on those grounds irrespective of whether or not other people have accorded such rights. In the circumstances, the equality argument here cannot succeed. It is necessary therefore to turn to the question of whether the plaintiff has a right to receive reasons, make representations and have a hearing before a decision is made having the effect that his trial will take place in the Special Criminal Court.

European Convention on Human Rights
37. The plaintiff contends that the provisions of s.46(2) of the 1939 Act are incompatible with the European Convention on Human Rights (hereinafter “the Convention”) and accordingly seeks a declaration of incompatibility pursuant to s.2 of the European Convention on Human Rights Act 2002. The Convention, under Article 6, guarantees a fair trial on criminal charges but does not purport to specify the manner in which such trial should be provided, and in particular it does not itself confer a right to trial by jury in any circumstances. This is unsurprising given the wide variety of legal systems and criminal procedures which apply in Member States of the Council of Europe. Article 14 of the Convention prohibits discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or status. This prohibition however, only extends to a prohibition in relation to the enjoyment of the other rights and freedoms guaranteed by the Convention. Thus, in important respects the provisions of the Convention are less directly applicable to the arguments raised here. In the present case, Article 38.1 of the Irish Constitution is a continuing and absolute guarantee that any trial on a criminal charge must be carried out in due course of law which on its face is full compliance with the requirements of Article 6 of the Convention. In the circumstances, it is not apparent that the claim of a breach of the Convention adds anything of substance to the plaintiff’s claim under the Constitution. It was to that issue that most argument was addressed.

38. A central plank upon which the plaintiff’s legal argument rested was the contention that the decision of the Director of Public Prosecutions was in effect, unreviewable. A court should be slow to accept this proposition in general but particularly from a plaintiff who had not sought to challenge or otherwise review the Director’s decision. In fact, even a superficial review of decided cases over the last 15 years shows that the Director’s decision is reviewable both in theory and in fact. Prosecutorial decisions of the Director of Public Prosecutions have been challenged on a number of occasions. See by way of example only: Eviston v. The Director of Public Prosecutions, Dunphy v. The Director of Public Prosecutions [2005] 3 I.R. 585, Cunningham v. The President of the Circuit Court [2006] 3 I.R. 541, Hobson v. The Director of Public Prosecutions [2006] 4 I.R. 239, L.O’N. v. The Director of Public Prosecutions [2007] 4 I.R. 481, N.S. v. Anderson [2008] 3 I.R. 417, R.G.G. v. The Director of Public Prosecutions [2008] 3 I.R. 732, Keane v D.P.P [2009] 1 I.R.260. G.E. v. The Director of Public Prosecutions [2009] 1 I.R. 801 and Carlin v. The Director of Public Prosecutions [2010] 3 I.R. 547. On three of those occasions, in Eviston v. The Director of Public Prosecutions, L.O’N. v. The Director of Public Prosecutions and Keane v. The Director of Public Prosecutions, such challenges have succeeded. In all cases, the applicant sought to adduce facts which made the decision of the Director at least questionable. In Carlin v. The Director of Public Prosecutions, this court explained that the decision of the Director of Public Prosecutions, though in a narrow and sensitive area, was still subject to the obligation of fair procedures. As Denham J. put it:

“It is essential that [the DPP] remain independent. However, he is subject to the constitutional requirement of fair procedures. While the fair procedures appropriate at the investigation stage of a prosecution are not equivalent to those at trial in a court of law, the process requires to be constitutionally firm.” (para. 9)

That obligation arose in particular when facts were put before the court which would throw substantial doubt upon the decision made. It is however essential, as observed in other areas of judicial review, that any applicant should engage with the facts of the case. Even then it has been established that the plaintiff is not entirely dependent on the evidence available from his or her own resources. In an exceptional case the court was prepared to grant limited discovery in advance of a judicial review challenge to a decision of the Director. See, for example, Dunphy v. The Director of Public Prosecutions, and Cunningham v. The President of the Circuit Court. Thus the courts have rejected any contention that a decision of the Director is unreviewable and have, in exceptional but real and justifiable cases, been prepared to review and if necessary quash such a decision. The fact that a jurisdiction is for good reason narrow, does not mean that it should be dismissed as non-existent. On the contrary such an outcome should direct attention to the considerations limiting review. In these cases a careful balance has been struck between a general principle restricting review and specific circumstances in which it will be permitted. This is particularly important in the present context since as O’Flaherty J. observed in H. v. The Director of Public Prosecutions, any obligation to give reasons is closely linked to the reviewability of the decision.

Reasons
39. In Mallak v. The Minister for Justice, Equality & Law Reform [2012] IESC 59 (hereinafter “Mallak”) Fennelly J. sought to identify a rule of general application in administrative decision making. In an elegant passage at paragraphs 66 and 67 he said as follows:

“In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.

Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them.”

40. However, the decision in Mallak was rather more nuanced than a simple citation that these paragraphs would suggest. The judgment points to s.18(2) of the Freedom of Information Act 1997 which introduced in to Irish law a statutory entitlement to reasons. However, the Director of Public Prosecutions is not subject to that Act in respect of prosecutorial decisions. Mallak undoubtedly brings the common law on the duty to give reasons into line with the obligations of statute, but it does not address the question whether the common law requires decision makers to go further than the statutory requirement. Put another way, the considerations which underpin the limitation and the scope of the statutory right to reasons may also be effective at common law. The decision in Mallak refers, without disapproval, to the decision in Eviston v. The Director of Public Prosecutions and also to The State (Lynch) v. Cooney where there was limited right of review and no reasons were provided until the High Court hearing. Perhaps most notably, the decision in Mallak contemplated the possibility at paragraph 77 that a decision maker could comply with the requirements of the law not by disclosing reasons but rather by “providing justification” for refusing to do so.

41. The obligation to give reasons is, as has been observed, dependent upon and a reflection of, the reviewability of the decision and the scope of that review. The decision made here is at the end of the spectrum where review is most limited and attenuated. This is because of the subject matter of the decision, the sensitivity of the matters routinely considered, and the fact that the end result of a decision to prosecute will be a trial in open court pursuant to the dictates of Article 38.1. The category of reasons which apply in the context of the Offences Against the State Act are reasonably well known. They are in part contained in the decision of the government to bring Part V into operation on the grounds that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and also in the Director of Public Prosecution’s certificate that those conditions mean that the administration of justice and preservation of peace and order cannot be secured in the individual case. There is, as Barrington J. observed, in Kavanagh, certain logic to these matters not being the subject matter of a court decision. Casey in The Irish Law Officers observes at page 302:

“Since the Constitution expressly contemplates the establishment of special criminal reports, there can be no question as to their validity. Given this, it is necessary to provide some means of selecting the cases to be tried in those courts. It is obviously impossible to draw up a list of “Special Criminal Court offences”. The scheduled offences goes some way in that direction but since virtually any offence may be committed for political reasons … there must be some way of segregating appropriate cases and directing their trial in the Special Criminal Court. It is difficult to see how this can be done otherwise than by vesting discretionary authority in the public prosecutor”.

42. It also follows from the decision of the government and the certificate of the Director of Public Prosecutions that it is highly likely that the reason why the Director of Public Prosecutions considered that the ordinary courts are not adequate to secure the administration of justice in the particular case must relate to the connections of the individual with organisations which are prepared to interfere with the administration of justice. Nevertheless, trial by jury is a constitutional requirement in those cases to which it applies. A decision which has the effect of removing a case which would otherwise be tried by a jury to be tried by a judge or judges alone is a decision which must comply with the dictates of the Constitution. Accordingly, the Court considers that it is necessary in such a case that the Director of Public Prosecutions, if requested, should either give such reason, or, as contemplated in Mallak, justify a refusal to do so. While this, in most cases, may be an entirely predictable step, it is nevertheless an important one in an area where there is a significant limit on the jurisdiction of the courts and it is desirable that such an obligation should be required where that duty to give reasons can be complied with without damage to the other public interests involved.

43. Where the Director is making a decision that is subject to only limited review by a court and has the result that a trial which would otherwise take place before a jury would be heard without a jury, then the Director is under a duty to give reasons for that decision which extends to why he or she considers that the ordinary courts are not suitable for a trial of this accused. As indicated in Mallak, in an appropriate case it may be sufficient to state that no reason can be given without impairing national security. A statement of reasons that the Director of Public Prosecutions believes the accused to be a member of, or associated with, an organisation that is prepared to interfere with the administration of justice, or even justifying the non-delivery of such reasons, will be sufficient unless the accused challenges the decision and provides sufficient information to the court, to presumptively undermine the Director’s reasons. As, for example occurred in The State (Lynch) v. Cooney, it may be permissible at that stage for the Director to amplify and explain any reasons if thought desirable. It follows however that the entitlement to obtain such reasons does not carry with it any right contended for by the plaintiff to obtain the gist of information grounding such a decision, or to have a hearing or to make submissions before a decision is made. The facts and argument in a case such as this lie in a fairly narrow compass. The question in any case is whether the Director of Public Prosecutions was entitled to consider that the ordinary courts were inadequate to secure the administration of justice in a particular case. Review of such a decision should be the exception and never the routine, and only when an accused person can put forward a substantial case that the decision making process has miscarried. The legal position outlined above balances the desirability of reasoned decision making to strengthen the administration of justice with the necessity to ensure that the process is tightly controlled to avoid routine disclosure and review which could undermine it.

Conclusion
44. When the Director of Public Prosecutions is making the sole decision on whether a case which would otherwise be tried before a jury should be tried before the Special Criminal Court, and where the Director’s decision is not subject to appeal or review, then fair procedures requires that the accused be provided with the Director’s reasons for considering that the ordinary courts are not sufficient to secure the administration of justice in the particular case. By contrast, since a decision to direct trial in the District Court on an offence triable either way is always subject to review and decision by the District Judge who can refuse jurisdiction, such a decision does not require any reasons or hearing. Like the decision in Mallak, the conclusion here has no implications for the constitutional validity of the section. Since s. 46(2) does not prescribe the procedure to be followed or preclude the giving of reasons, there is no constitutional invalidity in the section as it currently stands. There is, moreover, in the view of the Court, no entitlement to obtain the gist of the information upon which the Director’s conclusion is arrived at, and no requirement to have an oral hearing, cross-examination of witnesses or to provide for submissions. It also follows that this decision has no impact on the trial of the plaintiff. The certificate in this case was issued in November 2007. It was not challenged within the time limited by the Rules of the Superior Courts, or indeed at all. The certificate accordingly stands as a valid certificate beyond challenge and on which the Special Criminal Court is entitled to, and must, act. Accordingly, the plaintiff’s trial should proceed, and the claim for declarations of invalidity will be dismissed.











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