Cover story
As mentioned earlier, the DPP may transfer nonscheduled offences to the court if he believes that in a certain case the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. No other reason need be given. The certificate is not subject to judicial review unless there is evidence of mala fides. This creates a catch-22 situation for the accused, as it is virtually impossible to provide evidence of mala fides when the reason for the transfer does not have to be disclosed. The subject of judicial review of the DPP’s certificate was primarily addressed in Savage v the DPP ([1982]) ILRM 385). Relying on In re McCurtain ([1941] IR 83), the judge held that the only function of the judiciary in this area was to
t? ascertain whether the certificate was valid in that it was issued by the DPP and that he had reached an opinion as expressed in that certificate. Nevertheless, the basis on which the opinion was formed is not subject to review: ‘the opinion of the AG is not reviewable by the courts’, he said. In submitting the reasoning as to why the certificate of the DPP should not be subject to judicial review, Laffoy J, relying on Savage v the DPP in the High Court decision of Kavanagh v Ireland ([1996] IR 321), stated that: ‘the revealing of such information in open court ... would be a security impossibility’. But, as commentators have argued, this concern could be met by following the ruling in Murphy v Dublin Corporation ([1972] IR 215) under which court proceedings which include sensitive material from a security point of view may be held in camera. However, in the case of O’Reilly & Judge v
DPP ([1984] ILRM 229), it was held that ‘based on the terms of article 38(3)(1) of the constitution and the authorities to date, the opinion of the DPP is not reviewable by the courts, whether in open court or as private investigation’. Moreover, the certificate is not reviewable even in cases that have no subversive elements or security hazards. In Byrne v Dempsey (unreported, Supreme Court, March 1999), the plaintiffs argued that the DPP’s decision should be subject to review by the courts as ‘the upholders and protectors of the constitutional rights of the citizens’. Once again, it was held that the power of the DPP to transfer cases derived from the legislature, which vested this power solely in the executive. The court held that in the absence of mala fides the DPP cannot be called upon to explain his decision or give reasons for it nor the sources of information on which it was based. So the law in this area has remained stagnant, with little leeway given to the judiciary to interfere in the DPP’s decisions. The defendant is given no chance to defend his right to jury trial, as he cannot avail of any opportunity to dispute the allegation that the ordinary courts are inadequate to secure justice in his case. It is by this route that many of the ordinary criminal cases are transferred to the Special Criminal Court. The SCC and ordinary crime The Irish Council for Civil Liberties has documented the wide range of ordinary crime that has been charged before the court via the DPP’s certificate. Charges such as arson, the unlawful taking of a motor car, receiving a stolen caravan and its contents, and the theft of cigarettes and £150 from a small shop have all been heard before the Special Criminal Court. The contention that the act
Law Society Gazette July 2001
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