A Dublin man charged with the assault and false imprisonment of Quinn Industrial Holdings Director Kevin Lunney has brought a High Court challenge against the Special Criminal Court's jurisdiction to hear his trial.
Alan O’Brien (aged 39), of Shelmalier Road, East Wall claims that the DPP's decision that he should not be tried before a jury represents a significant curtailment of his constitutional rights.
Mr O'Brien, along with three others is accused of falsely imprisoning and causing serious harm contrary to sections 4 and 14 of the 1997 Non-Fatal Offences Against the Person Act to Mr Lunney at Drumbrade, Ballinagh, Co. Cavan, on September 17, 2019.
He has brought a judicial review action aimed at preventing his trial before the Special Criminal Court (SCC), due to commence early next year, from taking place.
Mr O'Brien is the second of the four accused men to challenge the SCC's jurisdiction to hear the trial. Last month the High Court granted permission to another man, who cannot be named for legal reasons, to bring an action that raises similar grounds.
Represented by Berard Condon SC, Karl Monahan Bl instructed by John Quinn Solicitors, Mr O'Brien claims the DPP decided, in accordance with the 1939 Offences Against the State Act, that the ordinary courts could not hear his trial.
The DPP ruled that Mr O'Brien and his co-accused should be tried on what are non-scheduled offences before the SCC.
Counsel said that legislative gateway used by the DPP to allow his client be tried before the SCC was introduced in 1972 during the Troubles.
Mr Monahan said in 1996 the Supreme Court had in 1996 described that particular legislation as "temporary, emergency legislation," that has been in place for almost 50 years.
It was not appropriate that the man be tried under temporary legislation, counsel said, adding that no legislative adjustments to the relevant parts of the 1939 Act have been made since the Supreme Court's 1996 ruling.
The man's trial should only take place under laws that have appropriate regard to the fact the relevant measures are no longer temporary, counsel added.
Counsel said the failure to convert the temporary emergency measures regarding the SCC into a permanent situation amounts to a failure by the State to properly safeguard his client's constitutional rights.
In judicial review proceedings against the Minister for Justice, the Director of Public Prosecutions, Ireland and the Attorney General, Mr O'Brien seeks various declarations including that proclamations under Section 35(2) of the 1939 Act are only a temporary measure.
He also seeks a declaration that the failure by the Oireachtas to enact anything other than temporary measures in respect of those being tried before Special Courts amounts to a breach of those persons' constitutional rights.
He further seeks declarations that the SCC lacks the jurisdiction to hear the trial, and there has been a failure by the Oireachtas to give adequate guidance or set out the criteria to determine when ordinary courts cannot be used and which categories of cases should go before non-jury courts.
Today, Mr Justice Charles Meenan ruled that the application for permission to bring the challenge should be made on notice to lawyers for the State and the DPP.
The matter was made returnable to a date in September.