Introduction

The case of Harte v The Special Criminal Court & Ors ([2023] IEHC 538) presents a significant judicial review concerning the procedures of the Special Criminal Court (SCC) in Ireland. Alan Harte, the plaintiff, challenged his prosecution before the SCC, seeking declarations that certain provisions of the Offences Against the State Act 1939 violate the Irish Constitution. Key issues revolved around the acceptance of two-thirds majority verdicts and the non-disclosure of whether verdicts were unanimous or by majority. The defendants included the Special Criminal Court, the Director of Public Prosecutions, the state of Ireland, and the Attorney General.

Summary of the Judgment

Delivered by Ms. Justice Bolger on October 2, 2023, the High Court dismissed Alan Harte's application for judicial review. The court found that the provisions of Section 40 of the Offences Against the State Act 1939, which permit two-thirds majority verdicts and prohibit disclosure of the unanimity of verdicts, do not breach Articles 34.1, 38, and 40.1 of the Irish Constitution. Consequently, Harte's conviction and sentence of thirty years imprisonment were upheld.

Analysis

Precedents Cited

Justice Bolger referenced several key precedents to support the court's decision:

• Twomey and Cameron v. United Kingdom ([2009], [2012]) – Highlighted the acceptability of qualified majority verdicts within the European Convention on Human Rights (ECHR) framework.
• Kavanagh v. Ireland ([1996] I.R. 321) – Affirmed the legality of the SCC's establishment and operations under governmental proclamations.
• Murphy v. Ireland ([2014] IESC 19) – Clarified that exceptions to jury trials, such as those provided by Article 38.3, are themselves constitutional.
• Donnelly & Anor v. Minister for Social Protection & Ors ([2022] IESC 31) – Outlined the principles for interpreting Article 40.1, emphasizing protection against arbitrary discrimination.
• An Blascaod Mór Teo v. Commissioner for Public Works (No. 3) ([1999] IESC 4) – Emphasized the egalitarian nature of Article 40.1.

Legal Reasoning

The court's legal reasoning centered on the permissive nature of Article 38.3 of the Constitution, which allows for the establishment of special courts under specific circumstances. Justice Bolger determined that the provisions of Section 40 do not conflict with constitutional mandates because:

• The Constitution does not specify the required proportion for majority verdicts, thereby permitting legislative discretion.
• The Special Criminal Court operates under a lawful framework established by both statute and constitutional provisions.
• Dissenting opinions and the unanimity of verdicts are not constitutionally mandated to be disclosed in this context, as protected by Article 38.6.
• The procedures of the SCC are consistent with principles of natural and constitutional justice, ensuring fair trials without necessitating identical processes to ordinary jury courts.

Furthermore, the court assessed the argument under Article 40.1 regarding equality before the law. It concluded that the differential treatment between the SCC and ordinary courts is constitutionally sanctioned and does not constitute unjustifiable discrimination.

Impact

This judgment reaffirms the constitutionality of the Special Criminal Court's procedures, particularly the use of two-thirds majority verdicts and the non-disclosure of verdict unanimity. It sets a clear precedent that:

• Legislative provisions allowing for majority verdicts in special courts are constitutionally valid.
• The requirement to disclose whether verdicts are unanimous is not a constitutional right in the context of SCC proceedings.
• The differentiation between SCC and ordinary courts is maintained as a permissible exception under the Constitution.

Future cases challenging the procedural aspects of the SCC may reference this judgment to uphold the court's established practices. Additionally, it may influence legislative discussions regarding potential reforms of the Offences Against the State Act 1939.

Complex Concepts Simplified

Special Criminal Court (SCC)

The SCC is a non-jury court in Ireland established to handle cases deemed sensitive, often related to organized crime or terrorism, where ordinary courts may be inadequate for the effective administration of justice.

Two-Thirds Majority Verdict

Unlike unanimity required in typical jury verdicts, the SCC allows for a verdict to be reached if two-thirds of the judges agree. This is intended to facilitate decision-making in complex or high-stakes cases.

Article 38.3 of the Constitution

This article permits the establishment of special courts for specific circumstances, granting legislative authority to deviate from standard judicial procedures when necessary for public peace and order.

Article 40.1 - Equality Before the Law

Guarantees that all citizens are treated equally under the law, prohibiting arbitrary or discriminatory treatment unless justified by legitimate legislative purposes.

Conclusion

The High Court's decision in Harte v The Special Criminal Court & Ors robustly upholds the constitutional framework governing Ireland's Special Criminal Court. By affirming the legitimacy of two-thirds majority verdicts and the non-disclosure of unanimity, the judgment reinforces the court's capacity to administer justice effectively in complex and sensitive cases. This ruling not only preserves the procedural integrity of the SCC but also delineates the boundaries of constitutional rights concerning trial processes in specialized judicial settings. As such, it significantly impacts the landscape of criminal justice in Ireland, ensuring that the mechanisms for maintaining public peace and order remain constitutionally sound.