THE trail which led by way of Milford District Court Donegal, and which seems likely to conclude in the High Court or the Supreme Court, began in the Mullaghmore Interpretative Centre in Co Clare.

One of the grounds on which the protesters attacked the building of Mullaghmore, in a case called Howard, decided in 1993, was that the Office of Public Works did not have planning permission for this development. Until this case, it was assumed that there was a general rule of interpretation, i.e. that where an Act of the Oireachtas did not expressly say that it bound the organs of the State, the State was excluded from its scope.

Thus the State was not caught by the planning law. When the Howard case overturned this interpretation it was necessary to change the planning laws. This was done, in 1993 by making it clear that the State, including the courts, would be subject to the planning law and by establishing the process by which this was to be done.

The new law provided that only developments by the State after June 1, 1994 were subject to planning control. "Development" is, of course, the basic concept in planning. Apart from buildings, the term also embraces "a material change " in the use of a building.

In the case of a change from - as in the present episode - a hotel to a court, it might just be possible to argue that there is no material change in use since noise and movement of various types are generated in similar proportions by the two types of use.

However, the argument that there is no material change of use when a hotel comes to be used as a courthouse would probably fail. One significant point is that the noise and movement would be occurring at different times of day.

Thus it follows that the OPW and probably the Minister for Justice were, technically speaking, committing an offence by using certain hotels as courthouses without planning permission. Accordingly, it was sensible for the Attorney General to advise the Government to apply for planning permission retrospectively or, if you prefer, "permission to retain".

However, the heart of the matter is that Judge Thomas Fitzpatrick in Donegal took the view that the courthouse was infringing the planning law and concluded that the charges before him should be struck out.

It is probable, I believe, that this step was incorrect. The planning code is a specialised statutory system designed to protect the environment. If a court's sitting constitutes a minor infringement of it, it does not follow that the court is conducting an unfair or improper trial.

There is, in my view, a clear distinction between those matters which affect the formality and propriety of the trial and matters relevant to the courthouse and its impact on the external environment!

Another set of circumstances which do not affect a fair trial is the situation in which a High Court order has been obtained directing the Minister for Justice to repair a courthouse which is not in air adequate state of repair. Even where such an order has been obtained, it has not been suggested, I believe, that the trials conducted in the courthouse while it was in a state of disrepair were invalid.

Let us remember that the planning code is a self contained regime which generally does not affect other areas of the law.

But, as was more or less said by Laurel and Hardy in another context, "Another fine mess we've got into".

What is to be done? It seems an authoritative decision of the High Court, and possibly the Supreme Court, is necessary in order to allay the doubt which has bee raised in respect of cases already heard, as well as those to be heard in the future, by the district judge's ruling.

ONE possible form of proceeding might be an application for judicial review, brought by the Attorney General as guardian of the people's legal rights (not as Government lawyer) against Judge Fitzpatrick, directing him to hear the 250 summonses struck out.

Unfortunately, and ironically, it is reported that the premises in which he was sitting had been in use as a court since before 1994 and consequently no permission was needed for this use. So, a case brought against Judge Fitzpatrick would risk succeeding on the planning point only and not yielding a ruling on the more important point which is whether there is a link between unlawfulness under the planning code and on the other hand convictions in a trial held in a courthouse without planning permission.

This is an important point because it calls into question hundreds of convictions secured in a dozen or so premises, the use of which changed to courthouses after 1994. (One should add, incidentally, that if any such case as this were to hold that the trial was invalid, there would be nothing to stop people accused from being retried on the basis that, in law, they never had been tried. That is the law although, in practice, it might be thought unfair to bring fresh proceedings.)

A better course might be to seed a declaration, by way of judicial review, that one of the convictions secured in one of the dozen courthouses was valid. But the trouble with this is that it would look very odd to be seeking a declaration that an apparently valid conviction was in fact valid. No doubt this is a technical problem which is causing the Attorney General's Office some perplexity.