Paul Hosford: Politicians should be able to question the use of the Special Criminal Court
High security at the Special Criminal Court in 2023 for the murder trial of Gerry “The Monk” Hutch. 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. File picture: Collins Courts
A future presidential candidate once wrote of the Special Criminal Court: "It is a precondition to the lawful establishment of Special Courts that the ordinary courts are found to be inadequate, and a condition of their validity that this inadequacy continues throughout the duration of such Special Courts.
"This places a burden of responsibility on the Oireachtas to monitor the situation closely, and to determine from time to time whether in fact the ordinary courts are still inadequate for the administration of justice in certain circumstances. At the moment the Oireachtas shirks this responsibility
"The absence of any such monitoring by the Oireachtas or accountability by the Government has resulted in a very serious implication which is certainly not in the spirit of Article 38 of the Constitution. It creates the impression — never intended by the Constitution — that the Special Criminal Court is part of the ordinary administration of justice and has become a permanent fixture in the judicial structure."
Those words, written as part of a review of the court while in the Oireachtas, did not end the presidential campaign. In fact, Mary Robinson did pretty well.
The issue of the non-jury court came up once again in an election this week, being raised during Newstalk's presidential debate between Catherine Connolly and Heather Humphreys.
Ms Connolly repeated her long-held position that the court should be abolished, prompting headlines that suggest the pair had "clashed" on the issue.
There was, of course, another element to the question in this case — Ms Connolly's previous hiring of a woman convicted at the court of firearms offences — but the attempts to make support or a lack thereof of the court an election issue has been ongoing for some time.
In the 2020 general election, it was frequently used as a stick to beat Sinn Féin with. That party has long opposed the court, but has begun moderating its stance.
In 2021, its leadership tabled a motion in support of non-jury courts meaning that Sinn Féin will, in government, commit to the option for use of the court where required in exceptional circumstances.
The party moved to abstaining from votes on the issue, leading to one situation this year where its justice spokesman Matt Carthy denied missing the vote due to a "tactical wee". Then-justice minister Helen McEntee said in 2023 that the party "cannot be trusted with our criminal justice system" in response to an amendment calling on the minister to implement the recommendations of the independent review as soon as possible instead of continuing with the Criminal Justice Act in its current form.
"As minister for justice, I have too much respect for An Garda Síochána, the DPP, and the courts to do so," she said.
Sinn Féin's justice spokesperson at that time, Pa Daly, said the emergency legislation was introduced in an "era of executions and military tribunals".
"Nobody can argue with any substance that the circumstances that gave rise to the introduction of this emergency legislation exist today," he said.
Last year, when Independent Ireland voted against the legislation, Fine Gael junior minister Alan Dillon said that they had "sided against the public and gardaí".
It is a common political tactic to position anyone who raises concerns about the court as unworthy of office, but this is not a fringe view and discussion on the use of a non-jury court should be possible because it runs contrary to a cornerstone of criminal justice — trial by a jury of one's peers.
The Irish Council for Civil Liberties and Amnesty International object to the court's use. The UN Human Rights Committee called for the overhaul of the court in 1993, 2000, 2008, 2013 and 2014.
First established under the Offences Against the State Act in 1939 as a measure to ward off threats to the new state by the IRA, the current version of the court was introduced in 1972 as an emergency response to the Troubles and has been in continuous operation ever since.
Since 2006, it has been used in gangland cases where there are fears around jury selection. Its continuation is reliant on a vote of the Oireachtas.
In 2023, a majority of an expert review group said a new and “improved” permanent non-jury court should replace the existing "emergency" version, with tighter laws over its use. But a conflicting minority report said it “simply cannot support” the proposals and described changes as “largely cosmetic”.
That minority — Professor Donncha O’Connell of University of Galway School of Law and Dr Alan Greene of Birmingham Law School — wrote in at the time that the court had a "spectacularly consistent conviction rate" and raised concerns about changing its operations.
"Our considered view is that the recommendations of the majority are unlikely to lead to a reduction in the use of non-jury courts," they said, adding that the continued use of belief evidence, where the belief or opinion evidence of a senior garda would continue to be admissible, should end.
The pair added that they had "found no reason to explain why the PSNI is able to secure convictions for membership offences in Northern Ireland without recourse to belief evidence — while An Garda Síochána continues to insist upon the need for such evidence to be admitted in the south".
But Professor O'Connell and Dr Greene also warned about politicising the courts, saying that to do so would be to weaken them.
"Courts must be independent of the other branches of government. Their legitimacy is dependent upon their independence and impartiality. The more extravagantly politicians make a political spectacle out of support for the Special Criminal Court, the more they undermine its legitimacy.
The minority report authors say "so-called emergency powers have a nasty habit of becoming permanent everywhere" and that non-jury trials should take place in cases such as jury tampering or intimidation but that a jury trial should be the "gold standard".
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.
There are no arguments that certain trials would have been nearly impossible to facilitate without the court. It is a perfectly reasonable and defensible position to be in favour of its use. As Mr Dillon points out in his 2024 statement, some important convictions have been secured at the court.
But it is not beyond critique.
And it is not a moral or political failing to have reservations about a part of societal architecture that has been subject to so many calls for change.
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