Court upholds Special Criminal Court majority verdict rule as constitutional under Articles 38, 40.1, and 34.1.

APPROVED

NO REDACTIONS NECESSARY

THE COURT OF APPEAL

JUDICIAL REVIEW

Court of Appeal Record Number: 2023 277

High Court Record Number: 2022 No 114 JR

Edwards J. Neutral Citation Number [2025] IECA 249

Butler J. Hyland J.

BETWEEN/

ALAN HARTE

APPLICANT/ APPELLANT

-AND-

THE SPECIAL CRIMINAL COURT, THE DIRECTOR OF PUBLIC PROSECUTIONS,

IRELAND and THE ATTORNEY GENERAL

RESPONDENTS/ RESPONDENTS

Judgment of Ms. Justice Hyland delivered on the 3 day of December, 2025

INTRODUCTION

1. This case concerns a challenge to s. 40 of the Offences Against the State Act 1939 (the “1939 Act”). That provides that every question before a Special Criminal Court shall be determined according to the opinion of the majority of the members of the Court and that no disclosure shall be made as to whether the determination was or was not unanimous. The Appellant, who is serving a 30 year sentence imposed by the Special Criminal Court, challenges the constitutionality of s. 40 by way of judicial review, arguing that it breaches Articles 38, 40.1 and 34.1 of the Constitution, and seeks an order setting aside his conviction and sentence. The trial judge (Bolger J.) [2023] IEHC 538 rejected the Appellant’s complaints, holding that s. 40 was in conformity with the Constitution. This is an appeal against her decision.

2. It is useful to describe at the outset the parameters of the challenge. It is not a complaint about the absence of a jury on the Special Criminal Court. The compatibility of a nonjury court with Article 38 is well established (see for example the decision of the Supreme Court in Murphy v Ireland [2014] 1 IR 198). Nor is there any complaint made based on Article 6 of the European Convention on Human Rights (although, as the trial judge pointed out, the delivery of majority verdicts in a criminal trial has been found to be compatible with the European Convention). Rather, it is a rather net challenge to the constitutionality of what I will describe as the “single guilty verdict not requiring unanimity”. For the reasons identified in this judgment, I conclude that the appellant must fail in his appeal.

RELEVANT LEGISLATIVE PROVISIONS

3. Section 40 is in the following terms:

(1) “The determination of every question before a Special Criminal Court shall be according to the opinion of the majority of the members of such Special Criminal Court present at and taking part in such determination, but no member or officer of such Court shall disclose whether any such determination was or was not unanimous or, where such determination was not unanimous, the opinion of any individual member of such Court.

(2) Every decision of a Special Criminal Court shall be pronounced by such one member of the Court as the Court shall determine, and no other member of the Court shall pronounce or indicate his concurrence in or dissent from such

decision.”

FACTS

4. The facts of this case are straightforward. The Appellant was charged on 26 November 2019 with one count of false imprisonment and one count of causing serious harm contrary to ss. 4 and 15 of the Non-Fatal Offences Against the Person Act 1997. These are non-scheduled offences. This means that the DPP, if she wishes them tried in the Special Criminal Court, is obliged under s. 48(a) of the 1939 Act to certify that in her opinion the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such a person on such charge. The DPP so certified on 26 March 2020 and there was no challenge to this certification. The trial of the Appellant and three other accused commenced before the Special Criminal Court on 31 May 2020 pursuant to Part V of the 1939 Act. The Court found the Appellant guilty on 8 November 2021 and the sentence of 30 years imprisonment was imposed on 20 December 2021, backdated to 26 November 2019, being the date upon which the Appellant had entered custody. The Appellant is currently serving that sentence.

5. On 21 February 2022, the Appellant sought leave to apply for judicial review in the within proceedings. Leave to apply for judicial review was granted by Meenan J. on 24 May 2022. The Statement of Opposition was lodged on 1 June 2022. Following the hearing, judgment was delivered on 2 October 2023.

ALLEGED BREACH OF ARTICLE 38 BY SINGLE GUILTY VERDICT

6. The core argument made by the Appellant is that s. 40 breaches Article 38, in particular the guarantee in Article 38.1 that no person shall be tried on any criminal charge save in due course of law, largely because the position in respect of majority verdicts in the Special Criminal Court differs from that in an ordinary trial. A majority verdict by a jury is permitted by s. 25 of the 1984 Act, which provides that the verdict of a jury in criminal proceedings need not be unanimous in a case where there are not fewer than 11 jurors if

10 of them agree on the verdict. Counsel for the Appellant rightly accepts that this means he cannot argue that a majority verdict per se, in the context of a non-jury court, is in breach of what was described by Henchy J. in King v. Attorney General [1981] IR 233 as being the “fundamental norms of the legal order postulated by the Constitution”. However, that concession, although necessarily made, forces the Appellant to walk a difficult path in arguing that, although majority verdicts per se are permissible, a conviction based on a majority verdict in the Special Criminal Court, being normally two out of three judges i.e. 66% of the Court, is unconstitutional, whereas a conviction based on ten out of eleven jurors i.e. 83% is constitutional.

7. His approach to this conundrum is to rely on the decisions in O'Callaghan v. Attorney General in the High Court [1992] 1 IR 538 and the Supreme Court [1993] 2 IR 17. In O’Callaghan, the Supreme Court upheld the decision of the High Court and found that a requirement of unanimity was not essential to the purpose of trial by jury and that s. 25 of the 1984 Act did not breach the Constitution. The Appellant has seized upon one line in the decision of Blayney J. in the High Court to the effect that “a decision might lose its character of being a decision of the jury if the majority required was substantially lowered”: Before addressing why the Appellant’s reliance on O’Callaghan is misplaced, I should summarise the findings of the trial judge on this argument.

8. The trial judge starts her analysis on the alleged breach of Article 38 by noting that the proposition that the law entitles the Appellant to the same trial in a non-jury court as afforded to an accused person before a jury court does not sit comfortably with the provisions of Article 38.3, which allows special courts to be established by law in certain circumstances. She observes that nothing in Article 38 addresses how a majority verdict should be delivered, that there is no constitutional prohibition on a qualified majority verdict, and that Article 38.3 would permit a court to be made up of a single judge or a

decision-maker if that was the wish or intention of the Oireachtas. She notes that qualified majority verdicts are acceptable features of the constitutional order, and consistent with the jurisprudence of the ECHR. She points out that the requirement under Article 38.1 that all persons be tried in due course of law does not mean that an accused person before the Special Criminal Court has the same right to the same treatment as that afforded to a person tried in an ordinary court, and any other analysis would render the existence of Article 38.3 pointless. More generally, she notes that it is a matter for the Oireachtas to determine whether a Special Criminal Court should be established under Article 38.3 and for the Government to determine by proclamation whether it should continue to exist or should cease, noting the legality of that process was upheld by Barrington J. in Kavanagh v. Ireland [1996] 1 IR 321. She refers to the process whereby the DPP certifies whether a prosecution should proceed before the Special Criminal Court.

9. She notes that a person prosecuted before the Special Criminal Court is in a different legal position to a person prosecuted before a jury court by virtue of the existence of the Government Proclamation and the exercise by the DPP of the powers vested in her by it, citing O'Donnell J. (as he then was) in Murphy v Ireland [2014] 1 IR 198. She concludes that where a person is validly tried before a Special Criminal Court, there is a lawful basis for a person prosecuted to be subjected to a different trial process provided they are tried in due course of law in accordance with Article 38.1.

Analysis

10. I agree with the fundamental point made by the trial judge: Article 38.1 does not require a trial of a person before the Special Criminal Court to be equivalent to a jury trial – what it requires is that the person will be tried in due course of law. Article 38.5 specifically exempts offences tried by special courts from the requirement that the trial should be by jury. The Appellant has sought to argue that O’Callaghan prevents a non-jury court from delivering a single guilty verdict as that would be below some (unspecified) minimum standard of certainty and therefore will not be in accordance with law. But when one looks at the passage from which the Appellant has extracted one sentence, one can see the fallacy underpinning the argument: the entire focus of Blayney’s comments (approved of by the Supreme Court) is upon the decision of the jury. The passage is in the following terms: “Nowhere in any of these dicta is a statement to be found that unanimity was an essential ingredient in trial by jury. On the contrary, Walsh J. was clearly of the opinion that it was not. And there appears to emerge a fairly clear consensus that the essence of trial by jury is that the decision as to the guilt or innocence of the accused is made by a group of his fellow citizens and not by a judge or a number of judges. If that is so, is a trial any less a trial by jury because the decision of the accused's fellow citizens, instead of being unanimous, is taken by a substantial majority? In my opinion it is not. The guilt or innocence of the accused is still being decided by the jury. But obviously the extent of the majority is important. Just as Walsh J. said in de Búrca v. The Attorney General [1976] I.R. 38, that a jury might lose its character if the numbers composing it were too greatly reduced, so also a

decision might lose its character of being a decision of the jury if the majority required was substantially lowered. But where the majority has to be at least a majority of 10, it seems to me that it cannot be objected that a

decision by such a majority is not the decision of the jury. I am of opinion accordingly that a criminal trial does not cease to be a trial by jury in accordance with Article 38, s. 5 because the decision of the jury may be by a majority of at least 10 of the jurors.

11. One sees from that quote that Blayney J. was considering the question as to whether the majority decision permitted by s.25 results in a trial that loses its substance as a trial by jury. A similar point is made in Kelly on the Irish Constitution (Bloomsbury Professional, 5th edn. 2018) where it is suggested that certain irreducible components of jury trials cannot be substantially changed without breaching the intent of Article 38.5 (“no person shall be tried on a criminal charge without a jury”).

12. But - to state the obvious - this is not a jury trial. A non-jury trial does not have the character of a jury trial for obvious reasons. Considering what type of majority verdict would rob a jury trial of its essential nature is irrelevant to a consideration of the constitutionality of a non-jury trial. The latter is of an entirely different nature to the former. When viewed in this light, the Appellant’s attempt to rely on the O’Callaghan

decision falls away.

13. The Appellant argues that merely because he is not entitled to a process identical to that in a jury trial does not justify conferring upon him lesser rights than a person not tried before the Special Criminal Court and that there is a threshold which must be maintained for the process to adhere to constitutional requirements. He suggests that allowing for what he describes as “procedural differences” (paragraph 30 of the Appellant’s written submissions), does not permit of there being “a chasm between the size of the majority required to convict in the respective scenarios”. In short, he suggests that there must be a parity or essential similarity between a jury trial and a non-jury trial in relation to the question of a majority verdict, and that by failing to recognise this, the trial judge erred in her approach.

14. But that approach fails to recognise the distinct and particular nature of a trial before the Special Criminal Court, as underpinned by Articles 38.3. Article 38.3.1° provides that special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order. Article 38.3.2° provides that the constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.

15. The nature of a trial before the Special Criminal Court has been explained in some detail by O’Donnell J. (as he then was) in the case of Murphy. That case concerned a tax offence that was certified by the DPP as being appropriate to be tried in the Special Criminal Court. The appellant challenged the constitutionality of various provisions of the 1939 Act. O’Donnell J. starts the discussion by accepting that trial before the Special Criminal Court is an exception to the constitutional norm of trial by jury but goes on to point out that it is an exception which is itself constitutional in nature. He points out that Article

38.5 is not phrased as many other provisions in the Constitution are, i.e. in terms where a provision is stated but then qualified by the possibility of legislation. Rather, the exception permitting a trial without a jury for cases coming under Article 38.3 is provided for in the Constitution in pursuit of constitutional objectives.

16. O’Donnell J. observes that in respect of special courts established under Article 38.3, the Constitution not only explicitly provides for their establishment but identifies the circumstances in which they may be established, namely that it has been determined that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. He identifies the question raised by the appeal as whether the provisions of the 1939 Act were compatible with the dictates of fairness postulated by the Constitution.

17. Returning to this case, the Appellant is entitled to come to court and to argue that s. 40 is not compatible with the dictates of fairness postulated by the Constitution. But his argument as to why this is so, is based upon a flawed comparison with jury trials. He makes no other argument as to why a majority verdict in the context of a non-jury trial is against the fundamental norms of the legal order postulated by the Constitution and thus not in accordance with due course of law.

18. His reference to a “chasm” between the size of the majority required to convict in the respective scenarios is difficult to accept, given that the difference in percentage terms is between 66% and 83%. More fundamentally, his argument fails to recognise the radical nature of the special courts identified under Article 38. Despite a jury being described in Murphy as not just a fundamental right of the citizen but a vital constitutional obligation on the State, Article 38.5 explicitly permits non-jury trials before a Special Criminal Court. Nor, as pointed out by the trial judge, are trials before special courts established under Article 38.3 required to be before a judge appointed under Article 34. Any consideration of whether a particular aspect of a trial before the Special Criminal Court breaches fundamental principles of fairness protected by Article 38 cannot ignore the extent to which Article 38 itself permits special courts to depart from various protections in Article 38 including trial by jury, trial before a judge appointed under the Constitution and trial otherwise than in public.

19. The Appellant argues that he is being “conferred with lesser rights” than a person being tried before a jury because of s.40. But that argument is premised upon the idea that nonjury trials must closely resemble jury trials, and a departure must be treated as being a breach of fundamental constitutional norms. There is no basis for such a requirement. A jury and a non-jury trial differ in many fundamental ways. In People v. O’Shea [1982] IR 384, Henchy J. describes the essential of a jury trial: “The bitter Irish race-memory of politically appointed and Executiveoriented judges, of the suspension of jury trial in times of popular revolt, of the substitution therefor of summary trial or detention without trial, of catand mouse releases from such detention, of packed juries and sometimes corrupt judges and prosecutors, had long implanted in the consciousness of the people and, therefore, in the minds of their political representatives, the conviction that the best way of preventing an individual from suffering a wrong conviction for an offence was to allow him to “put himself upon his country”, that is to say, to allow him to be tried for that offence by a fair, impartial and representative jury, sitting in a court presided over by an impartial and independent judge appointed under the Constitution, who would see that all the requirements for a fair and proper jury trial would be observed.”

20. The indices of a non-jury trial are entirely different. No explanation is given by the Appellant as to why the provisions in relation to the delivery of a majority verdict should be essentially the same despite the enormously different context. He does not explain what right is attacked or under threat by a person being convicted in the Special Criminal Court having persuaded two judges and not a third, given the nature of the Special Criminal Court as specified by Article 38.

21. A subsidiary argument is made to the effect that a majority verdict is not required to secure the effective administration of justice and the preservation of public peace and order. But this is to misunderstand the nature of Article 38.3. As O’Donnell J. points out in Murphy, Article 38 does not mean a person is entitled to challenge any given feature of the Special Criminal Court on the basis that the feature in question is not necessary to ensure the effective administration of justice and the preservation of peace and order. The question is whether the Oireachtas has decided that ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. Once that has been determined, then the Oireachtas is entitled to establish special courts. The decision in Kavanagh makes it clear that the question as to whether the ordinary courts are adequate to secure the effective administration of justice is primarily a political question with which the courts should be extremely reluctant to interfere.

22. Accordingly, the Appellant has failed to establish any error of law in the trial judge’s reasoning. I uphold her findings and reject this ground of appeal.

ARTICLE 40.1 – MAJORITY VERDICT

23. I turn next to the equality argument raised by the Appellant i.e. that there is a difference in treatment in respect of the permissible majority verdict between a person subject to an ordinary jury trial and one subject to a trial in the Special Criminal Court.

24. In addressing this issue, the trial judge referred to the decisions in Murphy and in Donnelly v Minister for Social Protection [2023] 2 IR 415. In the latter case, the Supreme Court considered in detail the criteria that must be met to establish a breach of Article

40.1. The trial judge noted the courts cannot be and are not required to be blind to a difference in treatment mandated by the Constitution. She points out that the Appellant is not in a similar or comparable position to a person who is tried before the jury courts because he is subjected to a process that is provided for by Article 38.3 of the Constitution.

Analysis

25. The Appellant has failed to identify any error in the approach of the trial judge. Returning to the decision in Murphy, the appellant in that case also asserted a breach of Article

40.1. At paragraph 35 of his judgment, O’Donnell J. observes that the principle of equality in general terms requires that like persons should be treated alike and different persons treated differently by reference to the manner in which they are distinct. He accepted that the plaintiff was treated differently from other persons charged with offences against the Taxes Consolidation Act 1997 on the basis that he was being tried in the Special Criminal Court and others would not be. But O’Donnell J. concludes that the plaintiff was not only different to such persons in an important respect, but legally distinct, being a person in respect of whom a public officer has concluded that the ordinary courts are inadequate to secure the administration of justice in this case. He further notes that the difference in treatment between the plaintiff and other persons charged with the same offences is precisely and directly related to this difference. As a consequence of the certificate of the Director, he is not to be tried in the ordinary courts, and instead, to be tried in the Special Criminal Court. O’Donnell J. notes that the distinction is not grounded merely in statute but is expressly contemplated and indeed provided for in the terms of the Constitution itself and that Article 38 in its terms contemplates a differentiation being made between those who will receive trial by jury and those in respect of whom has been determined in accordance with law that the ordinary courts are inadequate to secure the administration of justice. In those circumstances, he concludes that the differentiation, made in accordance with the dictates of the Constitution, could not offend Article 40.1, and points out that the plaintiff’s complaint is not grounded in any impermissible differentiation. He further notes that analysing the case in terms of equality rather than substantive rights only adds a further redundant, and possibly confusing, stage to the analysis.

26. A similar observation may be made here. Murphy concerned a complaint that the plaintiff had not received a trial by jury: this case concerns a complaint that the Appellant was treated differently to a person being tried by a jury in a specific respect i.e. he can be convicted on a lower percentage majority than a person in an ordinary court. But he has failed to meet the first requirement of a discrimination claim: the identification of an appropriate comparator. The Appellant is not being tried before a jury and his situation is not comparable to a person being tried before a jury. Applying the principles identified in Murphy, that is a function of the fact that a person in his situation i.e. who has been the subject of a decision by the Director, is in a legally different position to a person not so subject. The Appellant cannot compare himself with the person who has not been the subject of such consideration by the Director. He is legally different, and that difference is expressly contemplated by Articles 38.3.1 and 38.3.2.

27. The very wording of those provisions makes it clear that courts established under these sub-Articles are different, and that different rules will be prescribed by law for them in respect of their constitution, powers, jurisdictions and procedure. They clearly do not require to be established in a way that is comparable to ordinary courts, since ordinary courts have been deemed inadequate to secure the effective administration of justice and the preservation of public peace and order.

28. In those circumstances, as pointed out by the trial judge, the attempt to establish a comparator, being a person who is tried by a jury, is doomed to failure. The Appellant cannot identify a comparator and therefore there is no basis upon which to engage in an equality analysis. The Appellant is not in the same or a comparable position to a person tried by a jury and there is no breach of the Appellant’s constitutional right to equality since the difference originates in, and is mandated by, the Constitution itself.

29. That means that I do not need to consider the arguments of the Appellant seeking to outrule justifications for what he characterises as an impermissible difference in treatment, since the question of justifying differential treatment of a similarly situated person simply does not arise. Accordingly, I uphold the trial judge’s ruling in this respect.

ARTICLE 38/ARTICLE 34: DISCLOSURE

30. The final point made by the Appellant – upon which considerable emphasis was placed at the hearing – is that the prohibition in s. 40 on disclosing whether the determination was unanimous, or arrived at by majority verdict, is unconstitutional by reference to Articles 34.1 and 38.6 which respectively provide as follows: “Article 34.1: Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public. Article 38.6: The provisions of Articles 34 and 35 of this Constitution shall not apply to any court or tribunal set up under section 3 or section 4 of this Article.”

31. The trial judge concluded that there were no constitutional requirements for trials before the Special Criminal Court to take place in public, that the approach of the Special Criminal Court in not disclosing whether its verdicts were unanimous or by majority did not contravene the Appellant’s rights, that majority decisions were no less binding than unanimous decisions and were given no less weight by appeal courts, and that any right the Appellant had to appeal was not infringed by the nature of the decision given. Finally, she referred to what she describes as the comprehensive decision of the Special Criminal Court in this case that was available to the Appellant, noting that this vindicated the Appellant’s right to a reasoned decision and a fair trial without the need to disclose any dissenting decision that may have existed.

32. The Appellant has invoked the principle identified in Article 34.1, i.e. that justice shall be administered in public, but has failed to avert to the carve-out of special courts from that principle expressed in Article 38.6. This underscores the fundamentally different character of a trial before a special court as compared to a standard trial by jury.

33. The dis-application of Article 34.1 effected by Article 38.6 means that, in a case of a court or tribunal established under Article 38, justice does not require to be administered in courts established by law by judges appointed in the manner provided by the Constitution and that the trials may be held by other decision makers. Equally, it permits the trial to be held otherwise than in public. Accordingly, the entire argument is misplaced since the Appellant is not entitled to rely on Article 34.1.

34. To the extent that the Appellant seeks to rely upon a standalone principle of transparency to justify his argument that the Special Criminal Court must disclose whether the

decision was unanimous, or given by majority, his failure to acknowledge and address the express disapplication of the constitutional requirement that justice be administered in public for trials before a Special Court is deeply problematic. In my view, if the entire trial can be held in private – an approach clearly at odds with the concept of transparency relied upon as a constitutional principle by the Appellant - it critically undermines the claim that the accused must be told whether the verdict was unanimous or by majority. The Appellant does not avert to the carve-out or seek to explain how the existence of the carve-out sits comfortably with his asserted principle of transparency. Nor does he anchor the principle of transparency in the Constitution or explain why he argues it is a constitutional principle.

35. Further, the Appellant does not explain why, on his case, even leaving aside the carveout, Article 38 requires the Special Criminal Court to disclose how a verdict decision was reached. As the trial judge points out, from the Appellant’s point of view, there is no difference between a majority decision as compared to a unanimous one. He cannot point to a benefit to him in knowing the nature of the decision or a detriment in not knowing. He might argue that it is desirable for reasons of transparency that he knows whether one judge dissented: but he has failed to point to a breach of the Constitution in the present regime, and as discussed below, this court’s review is limited to legality.

36. Moreover, there are analogues with the approach adopted by s.40 of the 1939 Act in this respect in other areas of the law. Article 26.2 of the Constitution provides that on an Article 26 reference, the decision of the majority of the judges shall be the decision of the court and shall be pronounced by one of those judges and no other opinion, whether assenting or dissenting, shall be pronounced and nor shall the existence of any such other opinion be disclosed. Similarly, s. 8(7) of the Court of Appeal Act 2014, makes it clear that no assenting or dissenting opinion shall be pronounced or the existence of same disclosed, providing: “Where the Court of Appeal is exercising its jurisdiction in respect of a criminal matter before it, then unless the matter is one which involves a question as to the validity of any law having regard to the provisions of the Constitution, the decision of the majority of the judges of the Court hearing the case shall be the decision of the Court of Appeal and it shall be pronounced by such one of the judges of the Court as that Court shall direct and no other opinion whether assenting or dissenting shall be pronounced, nor shall the existence of any such other opinion be disclosed”.

37. The Appellant has pointed out that these situations are not comparable to a verdict of the Special Criminal Court because neither in an Article 26 reference nor an appeal is the court the arbiter of fact, unlike the Special Criminal Court. I fully accept that: but the Appellant has failed to explain why it is in breach of Article 38, or indeed any other provision of the Constitution, for a decision -making body that is finding facts to give a single verdict.

38. For all those reasons, I uphold the decision of the trial judge on this point also.

CONCLUSIONS OF REVIEW BODIES

39. Finally, I should deal with the Appellant’s reliance upon the the reports of two committees on the Special Criminal Court; the first in 2004, chaired by Judge Hederman, and the second in 2023, chaired by Judge Peart, both of which concluded that the law ought to be changed so that the possibility of a majority verdict be removed and replaced with a requirement of unanimity. Unsurprisingly, the Appellant has laid considerable emphasis on those recommendations. The Appellant observes in his submissions that the conclusions of what he describes as two “august bodies who have carried out an exhaustive review”, removes the possibility that his arguments can be lightly dismissed, and that their conclusions are persuasive.

40. Even absent the recommendations of those two bodies, the Appellant is entitled, as is every other appellant that has obtained leave to seek judicial review challenging the constitutionality of legislation, to have those arguments heard, considered and determined with care by the trial judge and by this court on appeal. However, I do not accept that the reports are persuasive in the sense intended: the reports do not put in issue the legality of s. 40. Accordingly, the conclusions of the reports are relevant to desirability, as opposed to legality: the Appellant cannot mount a challenge on this basis. I express no view on the observations or recommendations of either Committee: this court is not an arbitrator of what is desirable or preferable. The only role of the court is to consider whether the trial judge erred in law in her conclusion that s. 40 is compatible with the Constitution. For the reasons set out above, I have concluded she did not.

CONCLUSION

41. For the foregoing reasons, the Appellant is unsuccessful in his appeal. Presumptively, the Respondents are entitled to the costs of the appeal. If the Appellant wishes to argue for a different outcome, he should file and serve a short, written submission of not more than 1,500 words within 14 days from the date of delivery of this judgment, after which the Respondents will have a further 14 days in which to file and serve replying submissions of similar length.

42. Since this judgment is delivered electronically, I am authorised by Edwards and Butler JJ. to state that they agree with it and with the orders proposed above.