Alan Harte has launched a High Court challenge aimed at setting aside both the conviction and the 30-year prison sentence he received from the Special Criminal Court for his role in the kidnap and attack on businessman Kevin Lunney.
In his action, Harte challenges the constitutionality of Section 40 of the 1939 Offences Against the State Act which directs that a person who comes before the three-judge court cannot be told if they have been convicted by a majority decision or a unanimous decision.
The 1939 Act provides for the establishment of the non-jury Special Criminal Court (SCC).
Last year, Harte (41) was sentenced to 30 years in prison by the SCC for committing serious harm on and falsely imprisoning the Quinn Industrial Holdings (QIH) director at a yard in Drumbrade, Ballinagh, Co Cavan in September 2019.
Harte claims he does not know if all three judges of that court found him guilty, or if he was convicted on a majority decision.
This, it is claimed, is in contrast to a jury trial, where since 1984 at least ten jurors must decide if an accused is guilty or not guilty of an offence.
A simple 2-1 majority decision of the SCC, it is submitted, is a major divergence from what is required from a jury hearing a criminal trial.
Section 40, Harte's lawyers claim, annuls the constitutional guarantees of equality, and amounts to a form of unacceptable discrimination.
The fact that Section 40 prevents the announcement whether the SCC's verdict is unanimous, or a majority decision breaches the constitutional requirement that justice be administered in public, it is claimed.
He has brought judicial review proceedings challenging the constitutionality of the section against Special Criminal Court, the Director of Public Prosecutions, Ireland and the Attorney General.
Constitutional rights
Represented by Michael O Higgins SC, with Michael Hourigan Bl Harte seeks various orders including an order setting aside the conviction and sentence imposed on him by the SCC.
He also seeks declarations including that Section 40 of the 1939 Act breaches the Irish Constitution because it does not allow an accused person to be informed if they have been convicted by a majority or unanimous decision of the SCC.
He further seeks a declaration from the court that his trial before the SCC was unfair, not in accordance with the law and in breach of his constitutional rights.
The matter came before Mr Justice Charles Meenan on Monday, who adjourned the ex-parte application for permission to bring the challenge.
The judge said he wanted further submissions from Mr Harte's lawyers on the legal issues raised in the action before deciding on whether to grant leave.
The issues include the identification to the court of precisely which of Harte's Constitutional rights were affected by the fact he did not know if he had been convicted on a majority decision or a unanimous decision of the SCC.
Mr O'Higgins said his side will furnish those submissions to the court.
The case will be mentioned before the court in two weeks' time.
