State failed to grant redress despite UN committee decision, court told

Despite a judgment by a United Nations committee that the decision to try a Dublin man before the non-jury Special Criminal Court contravened his right to equality before the law, the State has failed to grant him redress, the Supreme Court was told yesterday.

Joseph Kavanagh (43), of Benbulben Road, Crumlin, is seeking leave from the court to take proceedings aimed at quashing his conviction and securing his release.

Kavanagh has been imprisoned since 1997 and has about two years left to serve of a 12-year sentence imposed for offences connected to the kidnapping of former National Irish Bank chief executive, Mr Jim Lacey, in 1993.

Last April, the UN Human Rights Committee, established under the UN Covenant on Civil and Political Rights - to which Ireland is a party - found that Kavangh's rights under Article 26 of the Covenant to equality before the law and to equal protection had been violated through the decision to try him before the non-jury Special Criminal Court.

The committee also stated Kavanagh should be granted an effective remedy for that violation.

Last June, the High Court refused to grant leave to Kavanagh to take a judicial review action. Mr Justice Finnegan said he was not satisfied Kavanagh had established an arguable case for judicial review or that the views of the committee could be said to be a judicial determination.

Moving Kavanagh's appeal against that refusal yesterday, Dr Michael Forde SC, for Kavanagh, argued his client has a right to equality before the law. If a decision was taken to try a citizen before an exceptional court, objectively verifiable reasons had to be given for that decision. The DPP had offered no reasons. There had to be some objective justification. There was no legislation stipulating the decision of the DPP could not be questioned.

Opposing the appeal, Mr Paul O'Higgins SC, for the State, said there was no guarantee of unqualified equality before the law offered by either the Constitution or the UN covenant. Kavanagh could not base a legitimate expectation on what the UN committee might say.

The Chief Justice, Mr Justice Keane, said the five-judge court would reserve its decision.