The Special Criminal Court

Following the shooting in the Regency Hotel on Friday the 5th of February, and what the Gardaí believe was a reprisal shooting in Ballybough on Tuesday the 9th of February, the Special Criminal Court has become a hot topic in the upcoming general election. Sinn Fein are calling for the abolition of the Special Criminal Court. However, Fine Gael, in the wake of the recent shootings, announced that a second Special Criminal Court will open in April of this year to help alleviate the Court’s caseload.

The Special Criminal Court was initially established by the Dail, under the Offences Against the State Act 1939, to prevent the IRA from undermining Ireland’s neutrality during World War II and the ‘Emergency’. The Dail’s power to establish such a court stemmed from article 38 of the Irish Constitution which empowers the Dail to establish special courts when the ordinary courts are deemed insufficient to effectively deal with the administration of justice. The current Special Criminal Court dates from 1972 and was intended to handle cases relating to the ‘Troubles’ which had just begun in Northern Ireland.

Initially, the Court was established to deal with crimes of a terrorist nature, and other scheduled offences which are outlined in the Offences Against the State Act 1972. However, since the Provisional IRA ceasefire in 1990, the Court’s scope has been extended to include organised crime cases, such as the cases of the drug gang members who murdered Veronica Guerin.

The Court itself is composed of a three judge-panel, with these judges being appointed by the Government. The Court sits without a jury and all verdicts are decided by the judges. However, verdicts need not be unanimous, a simple majority is sufficient. The rationale behind the decision for the Court to sit without a jury relates to the type of cases heard by the Court. It is feared that in terrorist cases, or serious organised crime cases, there is a high risk of jury intimidation which could influence the administration of justice.

Sinn Fein have been vociferous in their calls for the Special Criminal Court to be abolished, particularly in the weeks since the shooting at the Regency Hotel. Many people dismiss Sinn Fein’s position as they believe it stems from the fact that members of the Sinn Fein party have themselves been tried and convicted by the Court, such as Martin McGuinness in 1973. However, Sinn Fein are not the only ones advocating the end of the Special Criminal Court. In 2000, the United Nations Human Rights Committee recommended that Ireland take steps to bring the jurisdiction of the Special Criminal Court to an end. This opinion has been echoed by the Irish Council for Civil Liberties as well as Amnesty International.

The reason these organisations, and Sinn Fein, are calling for the end of the Court’s jurisdiction is principally related to the fact that the Court sits without a jury. All of the major human rights instruments in force today state that everyone is entitled to a fair trial. Many individuals, organisations and courts see this fundamental human right to a fair trial as including the right to a jury trial. The Irish Constitution, in article 38.5, holds that no one shall be tried without a jury, save in cases of minor offences, special court offences, and military tribunals.

Thus, the problem seems simple. Individuals tried for criminal offences have a right to a jury trial, however, it is feared that individuals involved in certain types of crimes have the potential to intimidate jurors and obstruct the administration of justice. In these cases, protecting the individual’s right to a fair trial could ultimately prevent justice from being carried out. The Special Criminal Court was established to avoid this problem. However, by attempting to guarantee the administration of justice, the Court interferes with the accused’s right to a fair trial, which in turn hinders the administration of justice.

Given that the existence of the Special Criminal Court infringes on the human right to a fair trial, in order to maintain the Court’s jurisdiction, the Government must be absolutely certain that the ordinary courts are insufficient to effectively administer justice. To date, the argument that the individuals tried in the Special Criminal Court have the power to intimidate jurors and influence their verdict has been heavily relied on the maintain the Court’s jurisdiction. However, one potential solution to this problem would be to allow a jury to watch the trial from a location other than the court room. In this situation, the individual on trial would enjoy their right to a fair trial and there would be little or no threat of the jury being intimidated as they remain anonymous. Furthermore, it seems arbitrary to say that there is a risk of jury intimidation in Special Criminal Court cases but that the judges who hear the case, and decide upon the verdict, are immune to this intimidation. If an individual has the potential to intimidate and influence jurors, they will have a similar potential to intimidate or influence judges. The judges’ gown and collar do not make them invulnerable to intimidation. As such, it seems that this argument in favour of maintaining the Court’s jurisdiction is not as solid as its proponents would make out.

According to section 35.4 and 35.5 of the Offences Against the State Act 1939, the Government has the power to terminate the Special Criminal Court if it deems that the ordinary courts are once again able to effectively administer justice. Thus, whatever party, or parties, form the Government following the general election, they will need a convincing argument for or against the maintenance of the Special Criminal Court. The Court’s future is a particularly important issue in the current climate amid fears that there could be a serious escalation in organised crime in the Dublin area following the events in recent weeks.

Caoimhin O Madagain

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