Review calls for 'improved' non-jury court to replace Special Criminal Court

Gerry "The Monk" Hutch outside the Special Criminal Court, Dublin, after he was found not guilty of the murder of David Byrne at a hotel in Dublin in 2016. 

A new and “improved” permanent non-jury court should replace the existing ‘emergency’ Special Criminal Court, with tighter laws over its use, the majority report of an expert review group has said.

But a conflicting minority report said it “simply cannot support” the proposals and described changes as “largely cosmetic”.

The Special Criminal Court, and the legislation governing it, has been the subject of a Government-ordered review by a six-person committee, including chair Justice Michael Peart.

The court has been operating on an ‘emergency’ basis for 50 years, traditionally dealing with terrorist offences, but, in more recent times, mainly concerned with organised crime.

The continuation of the court is dependent on an annual vote in the Oireachtas.

Justice Minister Helen McEntee has said the two reports must be “thoroughly considered”, but stressed it was “absolutely vital” the Offences Against the State Acts be renewed next week.

The Special Criminal Court has been the venue of dramatic criminal cases, including the trials of the John Gilligan gang, the Kinahan crime cartel and its hit teams, and prosecutions for the Regency Hotel attack, including the recent unsuccessful prosecution of Gerry ‘The Monk’ Hutch.

Both reports agreed on repealing the Offences Against the State Acts, but differed on what should replace it.

The 225-page majority report was signed off by Mr Justice Peart, Anne-Marie Lawlor SC, former attorney gcounsel Caitlín Ní Fhlaitheartaigh, and ex-Department of Justice deputy head Ken O’Leary.

Calling for a new permanent non-jury court, it said there would be “a stricter approach overall, with more checks and balances”.

It recommended:

• New non-jury court “should be available in principle to try any serious criminal offence” but only used in “exceptional circumstances” with adequate safeguards for the accused;
• Current “scheduled offences” that are sent to the court should be abolished and replaced with an “assessment” of the circumstances of each case;
• Power to decide what cases are sent to the non-jury court “should remain with the DPP alone”, but a judge should review the system;
• New specific provisions regulating how the DPP’s decision is to be made. 

The report said key features of the legislation should be retained, including “belief” evidence of a chief superintendent and inferences drawn from the silence of an accused — but with the provision that the latter can’t be used to corroborate belief evidence.

It said they attached “considerable weight” to submissions from the relevant agencies that there were “serious ongoing concerns” for the safety of jurors.

“In all the circumstances, we have arrived at the conclusion that there is an ongoing need for a non-jury court, as envisaged by the Constitution,” it said.

The minority report, by University of Galway Law Professor Donncha O’Connell and senior law lecturer at University of Birmingham Alan Greene, said: “Rather than becoming a normalised or permanent fixture of the court system we believe that non-jury courts should be used only in circumstances where there is a real and present danger of jury intimidation or tampering.” 

It said the majority recommendation that the non-court could be used for “any serious offence” where the ordinary courts were deemed inadequate was “too great a change” and could go “well beyond” terrorism and organised crime.

It said An Garda Síochána was unable to provide any statistics on jury intimidation and therefore it was not possible to determine the threat and the need for a non-jury court.

It said they “disagreed profoundly” that use of the court should only be a matter for the DPP and said a judge should make the call.

It said a review by a judge of the system was just “a veneer of pointless oversight”.