The High Court has cleared the way for the fixing of a date for the trial of Regency Hotel murder accused Jonathan Dowdall.
The former Sinn Féin councillor is charged with the murder of David Byrne at the Regency Hotel, in Whitehall, Dublin 9 on February 5th, 2016.
Earlier this year he launched a High Court challenge against the jurisdiction of the non-jury Special Criminal Court to hear his trial. The trial had been stayed by the High Court, pending the outcome of his challenge.
At the High Court on Wednesday Mr Justice Brian O'Moore ruled that the stay could be lifted.
The court's decision allows the Special Criminal Court to fix a hearing date for Mr Dowdall's trial, which is likely to occur sometime in either July 2022 or October 2022.
The DPP applied to the court to have the stay lifted, on grounds including that it was likely that the High Court would have decided the matter before July 2022.
The DPP, represented by Remmy Farrell SC, had argued that with the stay in place no trial date could be fixed, and the matter would be delayed even further. Its counsel said that there would be no prejudice to the accused if a trial could be fixed.
Jury trial
If Mr Dowdall was successful in his High Court action the Special Criminal Court "would be no more," counsel said, and he would then be tried before a judge and jury at the Central Criminal Court.
The application was opposed. Michael O'Higgins SC for Mr Dowdall said that the normal practise in such cases was that trials are stayed pending the outcome of the high court challenge.
Counsel said it was very likely that the outcome of the case would be appealed ad could end up being ultimately decided by the Supreme Court.
Mr Justice O'Moore said that he was satisfied in this particular case to lift the stay previously granted. At this stage in the legal process, he could not take into account how long any appeal might take to hear.
The judge said that in order to facilitate a possible date for the criminal trial in July or October 2022 he was making direction to ensure that the hearing of the High Court action is fixed as soon as possible.
The Judge said he wants to avoid a scenario where Mr Dowdall's action was decided either too close to, or after the proposed criminal trial date in July or October 2022.
Mr Dowdall's High Court action arises out of a decision made last April, when the DPP certified that under the 1939 Offences Against the State Act the accused's trial should not proceed before an ordinary court, and that he be tried before the non-jury Special Criminal Court.
Mr Dowdall of Navan Road, Cabra, Dublin, who had been an elected member of Dublin City Council, claims he should not be tried before the Special Criminal Court.
Constitutional rights
The DPP's decision, he claims, amounts to a breach of his constitutional rights and is in breach of his rights under the European Convention on Human Rights (ECHR).
He claims that while the state is entitled to set up the Special Criminal Court, the Oireachtas has failed to enact legislation to permit the establishment of a permanent Special Criminal Court.
The legislation being used by the DPP to allow Mr Dowdall go before ethe non-jury court, was introduced in 1972 during the Troubles, it is claimed.
That legislation, it is claimed is temporary in nature, and was brought into being as an emergency provision.
It is claimed that Mr Dowdall should not have been sent forward and tried before the non-jury court, under temporary legislation.
The failure by the State to convert the temporary emergency measures regarding the Special Criminal Court into a permanent situation amounts to a failure to properly safeguard Mr Dowdall's rights including his right to the presumption of innocence, it is further claimed.
Judicial review
In judicial review proceedings against the Director of Public Prosecutions, The Minister for Justice, Dail Eireann, Ireland and the Attorney General, Mr Dowdall seeks various orders and declarations from the court.
He seeks an order prohibiting his trial from proceeding before the Special Criminal Court.
He also seeks declarations including that his trial before the Special Criminal Court, is unlawful, outside the powers of the 1939 Offences Against the State Act, and violates his constitutional and ECHR rights.
He further seeks a declaration that the failure by the State to enact anything other than temporary measures in respect of procedures for the trial of persons before the Special Criminal Court also breaches his rights.
The action is opposed by all of the respondents.
