Murphy v Ireland & ors

Factual and Procedural Background

The Plaintiff was charged on 8 November 2007 with failing to furnish a tax return contrary to the Taxes Consolidation Act 1997. Because the offence is triable either way, the Director of Public Prosecutions (“the Director”) opted for trial on indictment and, on 17 December 2007, issued a certificate under s. 46(2) of the Offences Against the State Act 1939 declaring that the ordinary courts were inadequate to secure the effective administration of justice. On 10 January 2008 the District Court returned the Plaintiff for trial before the Special Criminal Court.

The Plaintiff first sought judicial review of defects in that return; the High Court quashed the return for purely technical reasons but left the Director’s certificate untouched. Instead of judicially reviewing the certificate, the Plaintiff issued a plenary summons on 5 November 2008 seeking, inter alia, declarations that s. 46(2) is unconstitutional and incompatible with the European Convention on Human Rights (“ECHR”), and that the Director acted unlawfully by refusing to disclose reasons for the certificate.

Pleadings continued slowly until June 2011, when the High Court (without hearing evidence) dismissed the action for want of locus standi. The Supreme Court restored standing and ordered an expedited substantive appeal, which resulted in the present judgment dated 11 March 2014.

Legal Issues Presented

1. Is s. 46(2) of the Offences Against the State Act 1939 repugnant to the Constitution?
2. Is s. 46(2) incompatible with the State’s obligations under the ECHR?
3. Does constitutional or Convention law require the Director to give reasons, disclose underlying information, or provide a hearing before issuing a certificate that diverts a case from jury trial to the Special Criminal Court?
4. Does the Plaintiff suffer unconstitutional inequality by being tried without a jury while others charged with the same statutory offence are tried before a jury?

Arguments of the Parties

Plaintiff's Arguments

• s. 46(2) violates the right to equality, the right to a fair trial, and the right to jury trial guaranteed by the Constitution and the ECHR.
• The Director acted ultra vires and breached fair-procedures principles by issuing the certificate in secret, refusing to give reasons, refusing disclosure of materials, and denying the Plaintiff an opportunity to be heard.
• Because the decision is unreviewable in practice, meaningful constitutional scrutiny requires disclosure and a right to participate.
• The legislative scheme discriminates against the Plaintiff vis-à-vis other tax-offence defendants who retain a jury trial.

Respondents' Arguments

• The plenary summons constitutes an impermissible collateral attack on a valid prosecutorial certificate.
• Under longstanding authority, decisions to certify for the Special Criminal Court are reviewable only for mala fides, improper motive, or other exceptional circumstances; no such facts are pleaded.
• The Constitution itself creates the special-court exception and therefore no inequality or jury-trial violation arises.
• s. 46(2) is ECHR-compliant because Article 6 does not guarantee jury trial and the Plaintiff will still receive a trial “in due course of law.”

Table of Precedents Cited

Court's Reasoning and Analysis

1. Procedural delay: The Court criticised the six-year hiatus between charge and appeal, re-affirming the constitutional and public-interest imperative of a prompt criminal trial.

2. Constitutional framework: Article 38 presumes jury trial but expressly permits special courts where the ordinary courts are “inadequate.” Thus, diverting a case to the Special Criminal Court is not per se unconstitutional.

3. Reviewability of certificates: Surveying Irish, UK and Northern-Irish authority, the Court held that certificates are reviewable only for mala fides, improper motive, or other “exceptional circumstances,” reflecting practical and security realities.

4. Duty to give reasons: Building on Mallak, the Court recognised a limited obligation on the Director—when requested—to state why he considers the ordinary courts inadequate in the particular case. However, the obligation may be discharged by a brief assertion (e.g., suspected links to organisations willing to interfere with justice) or, where necessary, by justifying nondisclosure on national-security grounds. The duty does not extend to revealing the evidential “gist,” holding a hearing, or permitting representations.

5. Equality claim: Article 40.1 safeguards equality based on characteristics intrinsic to human dignity. The differential treatment here flows directly from a constitutional mechanism (Article 38.3) and therefore does not breach equality guarantees.

6. ECHR claim: Article 6 does not mandate jury trial. Because Article 38.1 already guarantees trial “in due course of law,” the Plaintiff’s Convention argument adds nothing.

7. Application to the Plaintiff: The certificate was issued in 2007 and never challenged within time; thus it stands. Any newly-recognised duty to give reasons operates prospectively and does not invalidate the existing certificate.

Holding and Implications

CLAIM DISMISSED.

The Supreme Court upheld the constitutionality and Convention-compatibility of s. 46(2) but declared that, going forward, the Director must provide a succinct reason (or justified refusal) when a certificate diverts a case from jury trial. The Plaintiff’s certificate remains valid and his trial before the Special Criminal Court may proceed. The ruling clarifies prosecutorial duties without setting aside the legislative scheme or disturbing existing precedent on the limited reviewability of such certificates.