Alternatives to abolishing Special Criminal Court proposed 

Alternatives to abolishing Special Criminal Court proposed 

The Special Criminal Court, a non-jury court with different rules of evidence and procedures to the ordinary courts, has been criticised by domestic and international rights bodies. Picture: iStock

Use of an anonymised jury in the Special Criminal Court (SCC) has been suggested as one of a number of alternatives to abolishing the controversial court.

Other measures aimed at reforming the three-judge court include the use of video links for juries, housed in secure locations, as well as independent barristers to view controversial evidence.

The SCC, a non-jury court with different rules of evidence and procedures to the ordinary courts, has been the subject of regular criticism from domestic and international rights bodies.

Last February, the Government set up a high-level review, tasked with examining the legislation underpinning the court and the current threat posed by domestic and international terrorism and organised crime.

As reported in the Irish Examiner last month, use of the court has increased in recent years, with a five-fold jump between 2015 to 2020, from 45 cases to 136. This has been driven by so-called ‘gangland offences’.

One paper in the Irish Criminal Law Journal argued for the abolition of the court, but another said reform was an alternative.

Barrister Gemma McLoughlin-Burke said that, as well as being a non-jury court, there were serious problems around disclosure and admissibility of evidence.

This often centres on the opinion of a chief superintendent that a person is a member of a terrorist group being accepted as evidence.

Claims of privilege

She said that much of the evidence by the gardaí will be subject to claims of privilege. She said this raises the question of the “dual role” of the court: both assessing whether or not evidence should be admitted for it to consider and determining the guilt or innocence of the defendant.

Ms McLoughlin-Burke said that the SCC had a conviction rate of 94% in 2018, compared to 38% in the circuit courts and 62% in the Central Criminal Court.

She said there were “many alternatives” to the current dual role of the SCC:

  • Preliminary trial hearings, where one of the two judge panels in the SCC could hear issues of law separate to the panel conducting the trial;
  • UK-style special advocates — third-party barristers who could review controversial material and give an opinion on privilege;
  • Introduction of a jury, with protections, such as anonymised juries, and use of video links for the juries to view proceedings from secure locations.

“There is no reason why juries, which are appropriately protected, cannot be introduced into the court,” said Ms McLoughlin-Burke. 

“This would resolve any issues in relation to the dual role of the court and would improve procedural fairness for accused persons without going so far as to abolish the court in its entirety.” 

Emergency powers 'normalised'

In a second paper, Colm Scott-Byrne called for the abolition of the court, saying the use of what were supposed to be emergency powers had “become normalised”.

He said no evidence has been produced which demonstrates that the ordinary courts are inadequate to prosecute the cases before the SCC.

He said the UN Human Rights Committee, the Irish Council for Civil Liberties, and Amnesty have consistently challenged use of the court.

The barrister said issues of jury intimidation in the ordinary courts could be addressed by anonymous juries, screening juries from public view, special protection of juries during trials, and using video links.

He said that the Mexican drug baron 'El Chapo' Guzman, head of the world’s most powerful cartel, was tried by a jury.

He said the increased use of video links in courts during the pandemic showed the potential of remote juries.

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