BUSINESS + POLITICS
The Special Criminal Court Review: A need for change?
26th February 2021
The Special Criminal Court has been in operation in Ireland since 1972. On the 16th of February, Minister for Justice, Helen McEntee, announced a three-month review of the Special Criminal Court and all Offences Against the State Acts, which govern the court by an expert review group.
Article 38.3 of our constitution, Bunreacht na hÉireann, states that “special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.”
The Special Criminal Court was first established in 1939, mere days prior to Germany invading Poland, and remained in place for the duration of World War II, until 1946. The Special Criminal Court was again invoked in 1961 following attacks by the IRA in Northern Ireland but was promptly revoked in 1962 when the IRA ceased guerrilla warfare. The current court in operation today was invoked in 1972, to ensure justice amidst the paramilitary activity of the Troubles.
In 2016, Sinn Féin claimed that they would abolish the court, once in government, as part of their election campaign, while on the other hand Fianna Fáil have long acclaimed the Special Criminal Court. These parties’ opposing views on the matter beg the question, why is the court considered so controversial?
The root of the issue centres around the terminology used in Article 38.3, the Special Criminal Court should only be in existence when the “ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.” Section 35 (4) of the Offences Against the State Act 1939 provides that “if at any time…the Government is satisfied that the ordinary courts are adequate to secure the effective administration of justice and the preservation of public peace and order, the Government shall make and publish a proclamation declaring that [the Special Criminal Court] shall cease to be in force.”
Despite the fact that the court ought only be functioning when the ordinary courts are inadequate in securing justice, the court has now been in existence for 48 years, and a second court was established in 2016 to deal with the backlog of gangland cases.
The 1939 Act imposes a duty on the Oireachtas to not only monitor the scheduled offences that may be tried before the Special Criminal Court, but also the adequacy of ordinary courts in facilitating the administration of justice. It is most concerning that the last official review occurred almost twenty years ago, in 2002. Former Irish president, Mary Robinson, has noted that the lack of monitoring has led to an impression amongst the general public that the “Special Criminal Court is part of the ordinary administration of justice and has become a permanent figure in the judicial structure.”
“there is limited right to appeal and only a minute number of barristers regularly appear before, and are familiar with the court, which limits the options of those in custody.”
Criminologists Kilcommins and Vaughan have explored the results of the 2002 review. Whilst the court has shown that it successfully combats organised crime, questions may be raised regarding the State’s commitment to constitutional rights. The importance of a trial by jury is vested in Article 38.5 of Bunreacht na hÉireann, “save in the case of the trial of offences under section 2, section 3 or section 4 of this Article, no person shall be tried on any criminal charge without a jury.” Though it is permissible for offences classified as scheduled offences under the 1939 Act to be tried in the juryless Special Criminal Court without conflicting with our constitution, the Director of Public Prosecutions (DPP) has great discretion that can potentially be regarded as conflicting with the constitution. The DPP has the discretion to choose which cases may be heard in the court under sections 46 and 47 of the 1939 Act.
Previous defendants have chosen to appeal to international bodies such as the United Nations due to their alleged denial of their right to trial by jury and thus the right to equality before the law (article 26 of the International Covenant on Civil and Political Rights). In Kavanagh v Ireland, the Human Rights Committee “consider[ed] that the State party has failed to demonstrate that the decision to try the author before the Special Criminal Court was based upon reasonable and objective grounds. Accordingly, the Committee conclude[d] that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated.” Furthermore, Mary Robinson has highlighted the absence of safeguards available to those on trial in the Special Criminal Court, there is limited right to appeal and only a minute number of barristers regularly appear before, and are familiar with the court, which limits the options of those in custody.
On the other hand, the Special Criminal Court is favourably regarded as producing fairer, more correct results as jury intimidation is eradicated.
The expert review group is set to analyse all advantages and disadvantages of the Special Criminal Court’s continued operation, but as of now, the question remains, are the ordinary courts still inadequate in ensuring justice or is there a need for change?
Featured Photo by DubhEire on Wikipedia Commons