Supreme Court hears Hutch appeal for refusal to close murder trial

The Supreme Court has agreed to hear appeals from Gerard ‘The Monk’ Hutch and former Sinn Féin councilor Jonathan Dowdall over a refusal to stop their trial before the non-jury Special Criminal Court later this year.

Hutch (58), whose address is Clontarf, Dublin 3, represented by Ferrys Solicitors, is being charged in connection with the murder of David Byrne at the Regency Hotel, Whitehall, Dublin, on 5 February 2016. He and Mr Dowdall (44) , a co-defendant from Navan Road, Cabra, Dublin, earlier this year lost separate Supreme Court appeals aimed at overturning the DPP’s decision to try them before the SCC.

The core claim in their challenges was that they are entitled to a jury trial and should not be tried under what is essentially emergency legislation introduced during the conflict in Northern Ireland.

The SCC, they argued, has essentially and unlawfully become a permanent court within the Irish legal system. The current version of the SCC is based on a 1972 proclamation to fight terrorism, and it is not legal for that court to try them 50 years later for alleged organized crime activities, they claimed.

The State argued that no time limit was found in the Offenses Against the State Act 1939 for a proclamation to establish a non-jury court. As long as the ordinary courts were determined to be insufficient to ensure effective administration of justice in certain cases, the Executive was entitled to continue the operation of the SCC, it argued.

By dismissing the claims, Mr. Judge Anthony Barr ruled that there was no time limit on the use of the non-jury court under applicable law. The question of whether the ordinary courts are fit to ensure effective administration of justice was “a purely political matter” and, given the respect of the executive, it was not for the court to rule on that issue. held.

Both accused filed a leapfrog appeal, one directly to the Supreme Court rather than through the normal Court of Appeals, against the Supreme Court decision.

There is no automatic right to a leapfrog appeal, but a panel of Supreme Court justices has now determined that both applications meet the criteria for such an appeal.

The criteria require that the Supreme Court is convinced that there are exceptional circumstances that justify a direct appeal and that the decision concerns a matter of general public interest and/or that appeal is necessary in the interests of justice.

The applicants argued that the government may only issue a proclamation that a non-jury court becomes effective as a temporary and emergency measure, and the current political and security landscape does not permit the operation of such a court.

In its ruling on Wednesday, the Supreme Court said it believes there are exceptional circumstances that warrant a direct appeal and that there are matters of general public interest for the court to consider.

In particular, the court noted that it has not yet had an opportunity to determine the correct interpretation of the 1939 Act and whether the current SCC is ultra vires [in excess of the powers of ]that law.

It considered that these issues were of general interest not only to the applicants but also to the public, as the determination of the issues would likely have implications for other applicants tried before the SCC.

Because the procedure is time-sensitive, among other things, the court considers that there are exceptional circumstances that justify a direct appeal.

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