A Dublin man charged with assault and false imprisonment of Quinn Industrial Holdings director Kevin Lunney has initiated a High Court challenge disputing the Special Criminal Court's jurisdiction to hear his trial.
Alan O’Brien (39), Shelmalier Road, East Wall, claims the DPP’s decision he should not be tried before a jury represents a significant curtailment of his constitutional rights.
Mr O’Brien, along with three others, 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.
He has brought a judicial review action aimed at preventing his trial before the Special Criminal Court (SCC), due to commence early next year.
He is the second of the four accused to challenge the SCC’s jurisdiction.
Last month, the High Court granted permission to another man, who cannot be named for legal reasons, to bring an action on similar grounds.
Represented by Berard Condon SC and Karl Monahan BL, instructed by John Quinn Solicitors, Mr O’Brien claims the DPP decided, in accordance with the 1939 Offences Against the State Act, the ordinary courts could not hear his trial and that he and his co-accused should be tried on what are non-scheduled offences before the SCC.
Mr Monahan said the legislative gateway used by the DPP to allow his client be tried before the SCC was introduced in 1972 during the Troubles.
The Supreme Court had in 1996 described that particular legislation as "temporary, emergency legislation," now for place for almost 50 years.
It was not appropriate his client be tried under temporary legislation, counsel said. No legislative adjustments to the relevant parts of the 1939 Act have been made since the Supreme Court’s 1996 ruling, he added.
This trial should only take place under laws that have appropriate regard to the fact the relevant measures are no longer temporary, counsel added.
The failure to convert the temporary emergency measures regarding the SCC into a permanent situation amounts to a failure by the State to properly safeguard his client’s constitutional rights, he argued.
In judicial review proceedings against the Minister for Justice, the Director of Public Prosecutions, Ireland and the Attorney General, Mr O'Brien seeks various declarations, including 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 constitutional rights.
He claims the SCC lacks jurisdiction to hear the trial and the Oireachtas has failed 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.
Mr Justice Charles Meenan ruled the application for leave to bring the challenge should be made on notice to lawyers for the State and the DPP and he returned the matter to later this month.