Dowdall v Director of Public Prosecutions & Ors (Approved)

Factual and Procedural Background

On 26 May 1972 the Government issued a proclamation under s. 35(2) of the Offences Against the State Act 1939, thereby activating Part V of that Act and establishing the non-jury Special Criminal Court. Over half a century later the Court remains in operation. The present appeal was brought by two Applicants who contend that the proclamation was implicitly time-limited and that its continued operation, without renewal, is ultra vires s. 35(2). The Supreme Court, constituted by Judge Hogan and four other members, delivered judgment on 29 July 2022.

Legal Issues Presented

1. Whether the 1972 proclamation establishing the Special Criminal Court has an open-ended duration or, instead, expired by implication, rendering the Court’s continued operation ultra vires s. 35(2) of the 1939 Act.
2. Whether the Government’s power to rescind the proclamation under s. 35(4) is subject to judicial review.
3. Whether the Dáil’s power to annul the proclamation under s. 35(5) is a non-justiciable political power.

Arguments of the Parties

Applicants’ Arguments

• The 1972 proclamation was not intended to subsist indefinitely; it must be construed as time-limited.
• Nothing in s. 35 suggests the Oireachtas authorised an open-ended suspension of jury trial.
• Consequently, the continuing operation of the Special Criminal Court is unlawful.

The opinion does not contain a detailed account of the Respondents’ legal arguments.

Table of Precedents Cited

Court’s Reasoning and Analysis

Judge Hogan began by outlining the constitutional and statutory framework governing the Special Criminal Court. Sections 35(2) and 35(4) restrict the Government’s discretion: a proclamation may be issued only when the Government is satisfied that the ordinary courts are inadequate, and may be rescinded only when it is satisfied of their adequacy. By contrast, s. 35(5) confers an unfettered, purely political power on the Dáil to annul the proclamation at any time.

The Court distinguished this tightly bounded executive power from the broader, non-justiciable parliamentary power. Because s. 35(2) and s. 35(4) embed clear statutory standards, the Government’s decisions under those subsections are judicially reviewable. However, the Applicants did not mount any challenge to the Government’s failure to issue a rescinding proclamation under s. 35(4). Their case targeted the proclamation’s duration itself.

The Court rejected the contention that the 1972 proclamation was implicitly time-limited. Section 35 contains no temporal restriction; instead, the proclamation endures “unless and until” it is rescinded by the Government pursuant to s. 35(4) or annulled by the Dáil under s. 35(5). Accordingly, the proclamation remains valid and the Special Criminal Court continues lawfully to sit.

Holding and Implications

Appeal Dismissed.

The 1972 proclamation remains in force, and the Special Criminal Court continues to operate lawfully. The decision clarifies that (i) the Government’s power to rescind under s. 35(4) is reviewable against statutory criteria, while (ii) the Dáil’s power to annul under s. 35(5) is a non-justiciable political discretion. No new constitutional principle was created, but the judgment consolidates the legal understanding of the proclamation’s duration and the distinct roles of the executive and legislature.