The Irish Human Rights and Equality Commission (IHREC) appeared before the Supreme Court this week in the case of two men who are appealing a High Court decision that they can be tried for murder before the non-jury Special Criminal Court.

Earlier this year, Mr Justice Anthony Barr rejected a challenge by Gerry Hutch and Jonathan Dowdall to the continued existence of the Special Criminal Court.

The Supreme Court granted leave to appeal, on the grounds that there was a need to clarify the law on this matter of public importance, which should be determined by the court.

IHREC was given approval to appear before the Supreme Court as amicus curiae (friend of the court).

The two men’s challenge focuses on section 35(2) of the Offences Against the State Act 1939, which allows the Government to make a proclamation bringing into existence the Special Criminal Court.

It permits a proclamation to be made, however, only for a temporary period, to cater for a particular state emergency. The Special Criminal Court was established by an order made by the Government on the 30 May 1972.

Courts’ role of review

IHREC argued before the court that the decision of successive Governments to maintain the 1972 proclamation in force had resulted in special courts becoming an “accepted and normalised feature” of life in the State.

It argued that the “obligation to provide a reasoned, objective justification” for using special courts applied “not just to individual prosecutorial decisions, but to the justification for use of the proclamation power”.

As a result, the commission submitted that a failure by the courts to acknowledge their role in reviewing the duties of the Government under the 1939 act would have “a seriously detrimental effect on the protection of the constitutional right to trial by jury”.

IHREC said that the courts should bring these powers of review to bear when the operation of a proclamation was due for consideration, and examine “whether the reasonableness and proportionality of the measure” had been demonstrated.

The Supreme Court has reserved its decision.