Murphy v Ireland & Ors: DPP’s decision to send trial to the Special Criminal Court can be reviewed only on grounds of mala fides

lady-justice-greenCourt dismisses appeal against the DPP’s decision to certify Murphy’s trial, for failure to file a correct tax return, to be tried before the Special Criminal Court (SCC). Although the Court held that the DPP is required to state reasons why an offence that would otherwise be tried before a jury should be tried before the SCC, there is no requirement that the DPP outline the details of information which informed the decision, provide an oral hearing or allow the cross-examination of witnesses on the matter.

Background

The DPP charged Murphy with failure to file a correct tax return. Under s46(2) of the Offences Against the State Act 1939, the DPP certified the trial for hearing before the Special Crominal Court, as it was his opinion that the ordinary courts were “inadequate to secure the effective administration of justice”. Murphy appealed that decision claiming that s 46(2) of the 1939 Act is repugnant to the Constitution, as it allowed him to be treated unequally before the law to others charged with the same offence. He also claimed that the DPP had acted in breach of his right to fair procedure under the Constitution and the ECHR by failing to inform him of the reasons for the decision, the information which informed the decision and refusing him the an oral hearing on the matter. Murphy further claimed that the DPP’s actions breached the principle of audi alter partem and that, although the decision could be challenged on grounds of mala fides, it is impossible to challenge the decision without information on how the decision was reached.

Judgment

O’Donnell J delivered a unanimous decision for a five panel Court, (here). The Court held “that trial by jury is not just a fundamental right of the citizen it is a vital constitutional obligation on the State”[15]. But Article 38.3 of the Constitution makes specific provision for trial before the Special Criminal Court where “the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order”. That is subject to Article 38.1: No person shall be tried on any criminal charge save in due course of law.

The Court held that, in line with precedent, the DPP’s decision to certify a case for hearing by the SCC is not the administration of justice but the exercise of an executive function of government [20]. The Court has previously held that such a decision by the DPP is not a breach of audi alter partem [24]. Those decisions are limited to review except in exceptional cases where there may be mala fides [25]. The rational for decision makers providing reasons for decisions is to facilitate judicial review, so where review is limited, the need for disclosure of reasons is limited also. In addition, requiring the DPP to disclose reasons for decisions may require him to place in open court information which it may be vital for the security of the State not to disclose.

On the issue of whether the DPP’s decision was a breach of Murphy’s right to be treated equally before the law, the Court held that the Constitution allows different people to be treated differently and he was treated differently because he is different from others who would be tried before a jury for the same offence: “He is a person in respect of whom a public officer entrusted with this responsibility in succession to the Law Officer of the State has concluded that the ordinary courts are inadequate to secure the administration of justice in this case” [35].

On the issue of whether s 46(2) of the 1939 Act is incompatible with the ECHR, the Court held that the ECHR does not  guarantee a right to trial by jury and Article 38 of the Constitution guarantees for trial in due course of law. Regardless of any decision made under s 46(2) of the 1939 Act, a defendant is guaranteed a fair trial in compliance with the ECHR. Therefore no ECHR rights are breached by the DPP refusing to give reasons for decisions.

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