THE SUPREME COURT
310/98 & 311/98
HAMILTON C.J.
O’FLAHERTY J.
DENHAM J.
BARRINGTON J.
BARRON J.

BETWEEN:
RONALD BYRNE and BERNARD DEMPSEY
Appellants/Applicants
and

THE GOVERNMENT OF IRELAND, THE ATTORNEY GENERAL, THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE SPECIAL CRIMINAL COURT
Respondents
Judgment delivered on the 11th day of March 1999 by Hamilton C.J. [Nem. Diss.]

The above named Appellants, Ronald Byrne and Bernard Dempsey, have appealed against orders made by the High Court (Geoghegan J.) on the 21st day

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of October, 1998 whereby he refused each of them liberty to apply by way of judicial review for

(i)	A declaration that the certificate issued by the third named Respondent and dated the 17th day of July 1998 certifying that in the opinion of the third named Respondent the ordinary Courts are inadequate to secure the effective administration of justice and preservation of public peace and order in relation to the trial of the Applicant herein on the charges set out in the schedule to the said certificate is invalid;

(ii)	A declaration that the prosecution of the Applicant herein before the fourth named Respondent unfairly discriminates against the Applicant in contravention of Article 40(1) of the Constitution and/or Article 14 and/or Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or Articles 14 and 26 of the International Covenant on Civil and Political Rights.

The grounds upon which such reliefs were sought were set forth in the Statement of Grounds as follows:-
“1. There is no factual basis for the third named Respondent’s opinion that the ordinary Courts are inadequate to secure the effective administration of justice and preservation of public peace and order in relation to the trial of the Applicant herein on the charges

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set out in the schedule to the said certificates. There is nothing in the nature of the alleged offences for which the Applicant is to be tried which would suggest a connection with subversive or paramilitary organisations. The Applicant is not a member of any subversive or paramilitary organisation and has not been charged with such membership. Nothing has occurred in the course of these proceedings to date in respect of these charges to suggest that attempts would be made by or on behalf of the Applicant herein, to interfere with or improperly influence any jury empanelled to try these charges.

2.	There is no factual basis for the third named Respondent distinguishing between the Applicant herein and the great majority of his co-accused, nine of whom have been returned for trial to the ordinary courts. In the premises the Applicant has been denied his right to equality before the law as guaranteed by Article 40.] and/or Articles 14 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or Articles 14 and 26 of the International Covenant on Civil and Political Rights.”

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(4)

The certificates issued by the third named Respondent referred to in the aforesaid Declarations were in the following terms:

“Certificate of the Director of Public Prosecutions pursuant to Section 46(2) of the above Act.

I, Eamonn M Barnes, Director of Public Prosecutions, hereby certify that the ordinary Courts are, in my opinion, inadequate to secure the effective administration of justice and preservation of public peace and order in relation to the trial of the above named person on the charges set out in the Schedule hereto, being charges for indictable offences which are not scheduled offences under the above named Act.

Schedule

“1.	For that you the said accused on the 14th day of May, 1996 at Basin Street Upper, Dublin 8, known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan District committed a violent disorder in that you with other persons namely John Fitzpatrick Stephen Carney, William Kenny, Andrew Kelly, Christopher O’Shea, Bernard Dempsey, Mark Alford, Mark Cooke, Hugh Byrne, John Kenny, Martin Glynn present together used or threatened to use unlawful violence and such conduct taken together, was such as would cause a person of reasonable

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firmness present at the said place to fear for his or another persons safety.

Contrary to Section 15 of the Criminal Justice (Public Order) Act, 1994.

2.	For that you the said accused on the 14th day of May, 1996 at Basin Street Upper, Dublin 8 known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan District did unlawfully assault one Alan Byrne thereby occasioning him actual bodily harm.

Contrary to Section 47 of the Offences Against the Person Act, 1861.

3.	For that you the said accused on the 14th day of May, 1996 at Basin Street Upper, Dublin 8 known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan District did unlawfully kill one Joseph Dwyer.

Contrary to Common Law.”

The facts relevant to and legal issues raised in these appeals are identical and both appeals were heard together.

The relevant facts are deposed to in the affidavits sworn by the Appellants’ Solicitor and are as follows:-

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The Applicants were charged on the 17th December 1996 by the third named Respondent in the Dublin Metropolitan District Court with three offences, namely, the manslaughter of Joseph Dwyer; assault occasioning actual bodily harm to one Alan Byrne contrary to Section 47 of the Offences Against the Person Act, 1861; and violent disorder contrary to Section 15 of the Criminal Justice (Public Order) Act, 1994. The said offences are indictable offences which are not scheduled under the Offences Against the State Act, 1939. I beg to refer to copies of the Charge Sheets which I have pinned together and upon which marked with the letters ‘IMP] ‘I have endorsed my name prior to the swearing hereof

On the same and succeeding dates twelve other men were charged with the same offences in the Dublin Metropolitan District Court, namely Stephen Carney, John Fitzpatrick, Bernard Dempsey, Christopher O’Shea, Mark Alford, Mark Cooke, John Kenny and William Kenny, Andrew Kelly, Hugh Byrne, Martin Glynn and Desmond Whelan.

The Applicant and his co-accused were remanded from time to time in the District Court. On divers date following the 11th of May 1998 depositions were taken from a number of witnesses. On

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the 24th of July 1998, the District Court sent forward all accused for trial except for Desmond Whelan who had died in the intervening period. Nine of the Applicant’s co-accused were sent forward for trial to the Central Criminal Court. On that date and for the first time, it was indicated that the third named Respondent had certified, in respect of the Applicant and two of his co-accused, that in his opinion the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order. The certificate in respect of the Applicant herein is dated the 17th of July 1998 and was made pursuant to Section 46(2) of the Offences Against the State Act, 1939, Part V I beg to refer to a copy of the said Certificate upon which marked with the letters ‘MF2’ I have endorsed my name prior to the swearing hereof As a result of the said certificate the Applicant herein was sent forward for trial to the Special Criminal Court.

As appears from counsel’s note of the extempore judgment of Geoghegan J. which said note was approved by the learned trial judge, the learned trial judge in dismissing the application made on behalf of Ronald Byrne held -

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“that having regard to the decision in Kavanagh .v. Ireland [1996] 1 IR 321, the Courts had a very limited function in relation to reviewing a decision of the third named respondent to send an accused for trial to the Special Criminal Court;
That such review was limited to situations where a prima facie case was established that the third named Respondent had acted mala fides or had employed an improper motive or policy in sending the accused for trial to the Special Criminal Court;
That notwithstanding that a number of the applicant ‘s co-accused had been returned for jury trial while the applicant had been returned for trial in the Special Criminal Court, a prima facie case had not been made out that the third named Respondent had improperly exercised his discretion to issue a certificate pursuant to Section 46(2) of the Offences Against the State Act, 1939 and accordingly the application for leave to seek judicial review of the third named Respondent would be refused.”

On the same basis the learned trial judge dismissed the application made on behalf of Bernard Dempsey.

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(9)

Both applicants have appealed against the judgment of the trial judge on the grounds that -

1.	That the learned trial judge erred in law in holding that the decision in Kavanagh .v. Ireland [1996] 1 IR 321 had disposed of all the issues in the present application and that the application should be refused.

2.	That the learned trial judge erred in law in ruling that the Applicant did not raise a prima facie case of unconstitutional discrimination contrary to Article 40.1 of the Constitution.

Provisions of Constitution relevant to the Appeal

Article 38

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.

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

4.	l° 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 court-martial or other military tribunal for an offence cognisable by the civil courts unless such offence is within the jurisdiction of any court-martial 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.

Article 40

1.	All citizens shall, as human persons, be held equal before the law.

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This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

Statutory provisions relevant to the Appeal

Section 46(2) of the Offences against the State Act, 1939 provides as follows:-
“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 receives informations in relation to such charge and 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.”

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Section 3(1) of the Prosecution of Offences Act, 1974 provides as follows:-

“Subject to the provisions of this Act, the Director shall perform all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the Attorney General immediately before the commencement of this section and references to the Attorney General in any statute or statutory instrument in force immediately before such commencement shall be construed accordingly.”

By virtue of the provisions of this subsection the functions vested in the Attorney General by Section 46(2) of the Offences Against the State Act, 1939 were vested in the Director of Public Prosecutions.

Section 2 of the Prosecution of Offences Act, 1974 provides as follows:-
“(4) The Director shall be a civil servant in the Civil Service of the State”

(5) The Director shall be independent in the performance of his functions.”

Submissions on behalf of the Appellants

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(13)

It is submitted on behalf of the Appellants, and each of them that 
1.(a) the Appellants, and each of them, enjoyed a constitutional right not to be tried on the criminal charges preferred against them without a jury;

(b)	the opinion of the Director of Public Prosecutions that the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of each of the Appellants on the said charges and the issue of the certificates in respect thereof in accordance with the provisions of Section 46(2) of the Offences Against the State Act, 1939 had the effect of depriving the Appellants and each of them of their alleged constitutional right to trial by jury;

(c)	having regard to the said effect of the formulation of such opinion by the Director of Public Prosecutions and the issue of such certificates in pursuance thereof viz, the deprivation of the constitutional right to trial by jury, such opinion and the consequent decision of the D.P.P., should be subject to

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review of the Courts as the upholders and protectors of the constitutional rights of the citizens;

(d)	all such decision should be subject to review by the Courts for the purpose of ascertaining on an objective basis Whether or not the constitutional rights of persons affected thereby are unnecessarily interfered with or abridged and such review should not be limited to cases where it is established that the decisions were made mala fides;

(e)	in the absence of such power of review, the courts would not be in a position to decide whether any citizens constitutional rights were being unnecessarily interfered with.

2.	The decision of the Director of Public Prosecutions to certify that the ordinary courts were, in his opinion, inadequate to secure the effective administration of justice and preservation of public peace and order in relation to the trial of the appellants on the charges set out in the Schedule thereto while at the same time not so certifying in respect of the other accused and permitting their return for trial to the Central Criminal Court where they would be tried in respect of the same offences before a Judge and Jury unfairly discriminated against the Appellants and each of them contrary to the provisions of Article 40.1 of the Constitution;

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3.	The circumstances and issues raised in the instant differed from those in the case of Kavanagh .v. Ireland [1996] IR 321 and the learned trial judge erred in law in relying on this decision and in refusing the Appellant’s application for leave to seek relief by way of judicial review.

Kavanagh .v. Ireland [1996] IR 321

In the course of his judgment in this case Barrington J. stated at page 353 thereof:-
“Article 38 of the Constitution provides that no person is to be tried on any criminal charge save in due course of law. Article 38, s. 5 provides that, subject to certain exceptions, no person is to be tried on any criminal charge without a jury. One of the exceptions is contained in Article 38, s. 3 which provides as follows: -

‘(1) Special courts may be established by law for the trial of offences 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.

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(2) The Constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.’

It is clear from the statement that special courts may be established ‘by law’ that the power to decide whether such courts should be established is vested in the legislature in which is invested the sole and exclusive power of making laws for the State. See Article 15, section 2.

The question of whether the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order is to be determined ‘in accordance with such law’.

The law in question is the Offences Against the State Act, 1939. This Act provides at s. 35, sub-s. 2 as follows:-

‘If and whenever and so often as 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 that it is therefore necessary that this part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this part of this Act shall come into force’.

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Sub-section 4 of the same section provides that if at anytime while Part V of the Act is in force, the Government is satisfied that the ordinary courts are adequate to secure the effective administration of justice and the preservation of public peace and order, the Government shall make and publish a proclamation declaring that Part V of the Act shall cease to be in force and thereupon Part V shall forthwith cease to be in force.

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 have been 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.

The question of whether the ordinary courts are or are not adequate to secure the effective administration of justice and the

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preservation of public peace and order is primarily a political question, and, for that reason, is left to the legislature and the executive, the fact that the control intended is primarily apolitical control is underlined by s. 35, sub-s. 5 which provides that it shall be lawful for Dáil Éireann, at anytime where Part V of the Act is in force, to pass a resolution annulling the proclamation by virtue of which Part V was brought into force and that thereupon such proclamation shall be annulled and Part V shall cease to be in force but without prejudice to the validity of anything previously done thereunder.”

At a later stage in the course of his judgment he stated at page 360 that:-
“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.”

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In the course of his judgment in the same case, Keane J. stated at page 365:-

“For the reasons elaborated by Barrington J in his judgment, I am also satisfied that the applicant has failed to discharge the onus upon him of establishing that, in deciding to maintain Part V in force, the government were invading or infringing the constitutional rights of individual citizens, including the applicant. The maintenance in being of a special criminal court, the existence of which is expressly envisaged by the Constitution, where, in the judgment of the Government, the ordinary courts are inadequate in specified cases to secure the effective administration of justice and the preservation of public peace and order is not, of itself such an invasion or infringement.”

The other members of the Court agreed with these judgments.

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

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effective administration of justice and the preservation of public peace and order is primarily a political question, and, for that reason, 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.

The question of mala fides or improper motives does not arise in the instant case and in fact have been expressly disallowed by Counsel on behalf of the Appellants.

The submission made on behalf of the Appellants that all decisions of the Director of Public Prosecutions made pursuant to the provisions of Sections 46 and 47 of the Offences Against the State Act, 1939 are subject to review by the courts for the purpose of obtaining an objective assessment as to whether or not the ordinary courts are inadequate in specified cases to secure the effective administration of justice and the preservation of public peace and order would, if accepted, involve the courts in determining whether or not the ordinary courts are effective for the said purpose.

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(21)

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 his appeal on this ground.

It was further submitted on behalf of the Appellants that the decision of the Director of Public Prosecutions to issue the impugned certificates in respect of them and each of them amounted to unfair discrimination against them and contrary to the provisions of Section 40.1 of the Constitution having regard to the fact that no such certificate was issued in respect of the other accused who were returned for trial to the Central Criminal Court.

In the course of his judgment in The State (Keegan) . v. Stardust Victims Tribunal [1987] ILRM 202 Henchy J. stated:-
“I would accept that Article 40.1 of the Constitution requires that people who appear before the Courts in essentially the same circumstances should be dealt with in essentially the same manner; see McMahon .v. Leahy [1984] IR 525.”

In McMahon .v. Leahy, which case concerned an application for extradition, O’Higgins C.J. stated in the course of his judgment:-

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“Almost eight years after the commission of the offence, the warrant with which these proceedings are concerned has been issued and the State seeks to justify its enforcement on grounds which it either abandoned as being unsound or which it expressly declined to argue in relation to the other four persons concerned. Such discriminatory treatment of one individual appears unfair, smacks of injustice and certainly requires explanation.”

In the course of his submissions counsel on behalf of the Appellant relies on these statements.

There is no doubt that the circumstances of each of the accused is the same insofar as each of the accused has been charged with the same offences arising out of the same set of circumstances.

What distinguishes the Appellants from their co-accused is that, in respect of them only, the Director of Public Prosecutions has certified that the ordinary court are inadequate to secure the effective administration of justice and the preservation of public peace and order. This is a power which is expressly conferred upon him by Section 46 of the Offences Against the State Act, 1939 as amended. The Section, as amended, provides that the Director of

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Public Prosecutions may issue a certificate 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. Such a certificate can only be issued by the Director of Public Prosecutions while there is in force a Government Proclamation stating that 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 under the provisions of Section 35 of the Offences Against the State Act, 1939. But, while such a proclamation is in force, the Director of Public Prosecutions is directly authorised by Statute to issue such a certificate and thereby to make such a distinction between citizens. There has been no submission in this case that either Section 35 or Section 46 of the Offences Against the State Act, 1939 is unconstitutional or that the Director has acted mala fide in issuing such a certificate.

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).

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(24)

Under these circumstances no arguable ground for judicial review has been established and I would affirm the order of the learned trial judge.