Special Criminal Court undermines constitutional rights, warns civil liberties watchdog

The Irish Council for Civil Liberties has repeated its call for the immediate abolition of the court, which has previously been criticised by Amnesty International and the UN

At the Special Criminal Court, gardaí can claim privilege and refuse to give important documents to the defence. Gardaí may also present their belief that someone is guilty without having to show any other evidence. Negative inferences may be drawn from a suspect’s silence.

The Irish Council for Civil Liberties has outlined its opposition to non-jury trials, including at Ireland's Special Criminal Court, describing them as an "intolerable interference with constitutional rights".

ICCL published its submission to the independent review group on the Offences Against the State Act on Monday, stating the rights group had "fundamental difficulties with the court, including the denial of the right to trial by jury, failure to disclose evidence to the defence, and the use of ‘belief’ evidence".

ICCL has repeated its call for the immediate abolition of the court, which has previously been criticised by Amnesty International and the UN.

An independent review group established by then-justice minister Charlie Flanagan is examining the court 50 years after its establishment as an emergency measure.

At the Special Criminal Court, gardaí can claim privilege and refuse to give important documents to the defence. Gardaí may also present their belief that someone is guilty without having to show any other evidence. Negative inferences may be drawn from a suspect’s silence. 

ICCL said such practices "are clearly contrary to fair trial rights and should end immediately".

ICCL executive director Liam Herrick said the right to a trial by a jury of your peers lies at the heart of our constitutional protection of a fair trial.

"More than 20 years after the end of the conflict in Northern Ireland, the continuing existence of a special non-jury court in Ireland is an intolerable interference with constitutional fair trial rights," he said.

It cannot be justified on practical or legal grounds. As other legal systems have shown, any problems with jury or witness intimidation can be addressed through other means.”

The statement lays out areas of particular concern: the lack of a jury; the dual role of judges as both judge and jury; the extensive powers of the DPP; claims of privilege by gardaí; and the acceptance of beliefs and inferences as evidence.

"ICCL believes there is little evidence to suggest that jury intimidation is widespread, but if so, this is an issue which should be addressed by measures such as anonymous juries and by legislation at every level of our courts system. It is inappropriate and out of line with the practices and protections of an adversarial, common-law jurisdiction for judges to act as both judge and juror at the Special," the statement added.

"The DPP’s power to decide what cases go to the court is far too broad and immensely difficult to challenge. The DPP should have to provide the reasons they are sending a case to the Special, and those reasons should be open to challenge."

The statement came just two days after the Sinn Féin ardfheis voted to change the party's stance on non-jury courts.

The main opposition party is now in favour of the court in "exceptional circumstances" in which they have repeatedly noted gangland crime as a major issue.

On Sunday, Mary Lou McDonald said she believed that paramilitary gangs claiming to be the IRA should be tried in a reformed non-jury court.

Younger members in the party told the ardfheis it is the "taming" of Sinn Féin by the establishment.