Judges at the Special Criminal Court trial of four men accused of falsely imprisoning Quinn Industrial Holdings executive Kevin Lunney have dismissed an argument that it did not have jurisdiction to hear the case.
The trial will resume on Wednesday at 11.20am for arraignment.
Michael O’Higgins SC, for one of the four accused, brought an application before the court on Tuesday relating to “jurisdictional matters”.
In his argument, Mr O’Higgins made two substantive points.
The first was that the establishment of the Special Criminal Court, by Government proclamation in 1972, was envisioned as a temporary provision for an emergency situation.
More than 50 years on, he submitted, the situation is no longer temporary, and as such the court is now operating outside the ambit in which the Oireachtas prescribed the Special Criminal Court to come into being.
His second point was that the basis for sending cases to the Special Criminal Court, being that the ordinary courts are inadequate to deal with the case before them, is not a decision taken in a vacuum.
He argued that decision should rest with the Oireachtas, but is being taken by the director of public prosecutions (DPP).
He said that “by allowing the DPP to decide which scheduled offences are tried here, you inadvertently achieve a result where the Oireachtas is no longer deciding if the courts are inadequate”.
He said the role of the Oireachtas has been “effectively disengaged and placed at nought”.
He argued that the court “through inadvertence and an ad hoc structure” has crossed a line beyond what was envisioned in the establishment of the court.
If the court accepted his argument that the court is now a permanent institution, Mr O’Higgins said, then it did not have a legal basis for conducting a trial.
Responding, Sean Guerin SC for the DPP, said the defence was making an argument under the “flimsiest of pretexts”.
He said it was not based on statute or the constitution, but on a passing comment by Mr Justice Barrington in a previous case.
He said the jurisdiction of the court is set out in the Offences Against the State Act of 1939, which sets out that the SCC shall have jurisdiction to try any person brought before the court lawfully.
He said the court statute was clear that a person can be lawfully directed by the DPP to appear before the court.
Mr Justice Tony Hunt, presiding, with Judge Gerard Griffin and Judge David McHugh, dismissed the claim that the court did not have jurisdiction to hear the case.
He said it was “undoubtedly the case” that the court had jurisdiction to hear the matters before it.
“The jurisdiction of the court is not displaced and therefore the court will continue in the ordinary way,” he said.
He further found that the question surrounding the establishment of the court was beyond the remit of the Special Criminal Court.
He said the question invited them "into the political thicket", and the court was not permitted to go there.
The court will resume at 11.20am on Wednesday to hear the arraignments.
The father-of-six claims he was then physically assaulted before being left by the side of a road in Cavan, two and a half hours later.
Four men are accused of false imprisonment and assault causing serious harm: Luke O’Reilly from Mullahoran Lower, Kilcogy, Co Cavan; Darren Redmond and Alan O’Brien, both from East Wall in Dublin; and a fourth man who cannot be named for legal reasons.
Mr Lunney was abducted close to his home in Co Fermanagh on the evening of September 17.
The businessman had his leg broken, was doused in bleach and the letters QIH were carved into his chest before he was dumped on a roadside in Co Cavan.