A man accused of false imprisonment and assault wants the High Court to declare that the Special Criminal Court, where he is facing trial, was only set up on a temporary basis 49 years ago.
The man, who cannot be identified by order of the High Court, is seeking a declaration that a proclamation setting up the special court in 1972 is only effective as a temporary measure
He also seeks a declaration the circumstances giving rise to the proclamation - namly the then threat from paramilitaries to the State - meant the court could no longer be described as temporary given the considerable elapse of time involved.
The DPP, Minister for Justice and the State opposed the application and say it effectively seeks to quash the proclamation which set up the court. Dail Eireann, which is ultimately responsible for legislation setting up the court under the Offences Against the State Act 1939, a notice party to the case, also opposed the application.
On Wednesday, Mr Justice Anthony Barr reserved his decision.
The court heard the reason the man was granted anonymity was because he is facing separate serious charges in a jury trial.
Michael O’Higgins SC, for the man, said his client was first brought before the District Court on the false imprisonment and assault charges and four months later the DPP applied for him to be sent forward to the Special Criminal Court (SCC). The reasons given included he was a member of a criminal organisation and may interfere with witnesses.
The SCC was almost exclusively used to deal with paramilitary related crimes between 1972 and 2008. Provision was made for a second SCC to be set up in 2004 and those two courts are now “out the door” with the number of cases they deal with, he said.
The effect of the 1972 proclamation was the court has “run for 49 years and shows no sign of abating” despite some discussion about winding it down as a result of the Belfast Agreement.
‘Nonsensical notion’
Counsel said their argument was the 1972 proclamation only permits for a temporary setting up of the court and, if it was to be made permanent, that would require further legislation.
While his side was not advocating this, it was for the State parties to take what steps it believed were required in this regard, he said.
He rejected claims by the State that would mean the quashing of the court, arguing this was unfairly “catastrophising” the position. Any decision of the High Court in favour of his client could easily be cured by the State, he said.
His client would still face the serious charges he is currently facing, counsel said. The charges would “not go away” but it would simply be a question of what venue he is tried in.
Remy Farrell SC,for the DPP and the State, said the man was not entitled to the declarations on grounds including delay in seeking them.
It was little more than an assertion by the applicant to say, because the setting up of the court can be undone, the State must do it. It was a “nonsensical notion”, counsel said.
No attempt had been made by the applicant to identify any principled basis for his “extraordinary” approach to the relevant legislation, he said.
The effect of a statutory interpretation which the court was being asked to give had not been made clear, he said.
Francis Kieran BL, for Dáil Éireann, said their view was the position of the Special Criminal Court was a political and not a legal matter.