A top-level independent review group is expected to issue its long-awaited report within weeks on the continuing operation of the non-jury Special Criminal Court (SCC).
Sources anticipate the group, headed by retired Court of Appeal judge Michael Peart, will stop short of recommending abolition of the controversial SCC but there is an expectation of proposals for reform.
The three-judge SCC’s acquittal this week of Gerard Hutch of the murder of David Byrne at the Regency Hotel pushed the court into media headlines and refocused attention on its future.
Hutch went all the way to the Supreme Court in a failed bid to prevent his trial before the SCC and to secure a trial before a jury. He was not the first accused individual to bring such a challenge and is unlikely to be the last.
Why was Gerard Hutch tried for murder?
Gerard Hutch fails in bid to get State to pay legal costs following acquittal in Regency trial
Inside the Gerard Hutch PR machine: ‘Whether it was intentional or not, he did very well at marketing himself’
Gerard Hutch departs for Spain a month after acquittal of Regency Hotel murder
The SCC has its roots in emergency legislation dating back to 1939. A decade earlier, the Juries Act 1929 had provided for special protections for juries such as secrecy of the jury panel in certain criminal trials, and clearing the court during criminal trials, but the Act was never commenced and was later abandoned in favour of a special court and non-jury trials.
The current iteration of the SCC was established by government proclamation in 1972.
While the numbers appearing before it in connection with subversive offences dramatically declined in recent decades, the remit of the court, due to concerns about potential intimidation of juries by organised crime gangs, has been expanded to include so-called gangland offences.
Criticism
The continued existence of the SCC has been criticised over decades by some politicians and national and international human rights groups including the Irish Human Rights and Equality Commission, the Irish Council for Civil Liberties, the UN Human Rights Group and Amnesty International.
The concerns include the effective permanency of the court in non-emergency circumstances; deprivation of a jury trial; the role of the Director of Public Prosecutions in directing, irrespective of the offence, cases towards it rather than the ordinary courts; and different rules governing the disclosure and admissibility of evidence which mean the same panel of SCC judges decide on the admissibility of evidence before deciding guilt or innocence.
The ICCL has argued that if gardaí are to effectively police they must be placed in a position to fully enforce the existing criminal laws, especially in cases where attempts are made to intimidate key witnesses. The emphasis should be on intelligence-led and community-based policing, coupled with improved witness and jury protection, rather than “undermining the rule of law” by continuing the SCC, it said.
Alternatives to the SCC are available and are used in many countries – such as anonymous juries, screening juries from public view, special protection of juries during trial and using video links to juries at different locations, it has stated.
The use of the SCC, according to the ICCL, does not solve the issue of witnesses having to testify at such trials, meaning it is arguable the threat posed by subversive groups and crime gangs is still there. The fact that the SCC may make the prosecution of some offences easier is not a justification for it continuing, it said.
[ Why was Gerard Hutch tried for murder?Opens in new window ]
[ Michael McDowell: Very real questions for DPP following Gerard Hutch murder trialOpens in new window ]
Submissions from the ICCL were among several made to the Peart review, established by the Government in February 2021 to examine all aspects of the Offences Against the State Acts (OASA), the legislation underpinning the court’s operation, having regard to factors including the current threat posed by domestic/international terrorism and organised crime, the duty to deliver a fair and effective criminal justice systems and Ireland’s domestic and international law obligations. Its report is expected to be provided to the Minister for Justice within weeks, perhaps next month.
The Peart review is only the second review of the SCC. The Hederman review made a series of recommendations in 2002 for reform, but few have been implemented. Recommendations of the Law Reform Commission on jury service and juror protection have also not been implemented.
The number of cases before the SCC effectively trebled between 2015 and 2020, rising from 45 to 136 cases.
The Criminal Justice (Amendment) Act 2009, enacted against a background of gang violence, provided for new offences including directing or participating in organised crime gang activities to be dealt with by the SCC, unless the DPP directs otherwise.
The number of terrorist offences dealt with by the SCC has fallen substantially, from 24 in 2015 to one in 2018, two in 2019 and one in 2020. Most of its current caseload is derived from the activities of organised crime gangs and the volume of those led to a decision to establish a second SCC in 2016. The SCC has a high conviction rate, averaging more than 90 per cent annually.
Some critics want abolition of the court while others favour reformed procedures, including introducing anonymised juries and having different panels of SCC judges decide issues of disclosure and guilt/innocence. The position now involves the same panel deciding what evidence is admissible to it before going on to decide guilt or innocence.
Proposals for reform
In her submission to the Peart review, barrister Alice Harrison, author of an award-winning book on the SCC, The Special Criminal Court: Practice and Procedure, advanced several proposals for reform.
The SCC’s “embeddedness and de-facto permanency in our criminal justice system” are among several features of the OASA legislation that require attention, she wrote.
A situation has arisen where emergency powers have “become normalised” and this required that “even greater care” be taken to ensure the SCC’s expansion is not to the detriment of the rights of accused persons, she submitted.
Ms Harrison expressed disappointment the debate surrounding the SCC has primarily revolved around two poles; jury or non-jury trial, with “little political discussion” of intermediate alternatives for protecting juries. Her proposals include for annual reviews of the functioning of the SCC – there have been just two to date, including the Peart review – and a requirement for the DPP to seek leave from a superior courts judge in respect of each case being directed to the SCC.
Other proposals include repeal of section 52 of the 1939 OASA which makes it an offence for a person detained under the Act to fail to answer questions relating to their movements and the commission/intended commission by another person of an offence. Section 52 has been found constitutional by the Irish courts but has twice been found to be incompatible with an individual’s fair trial rights under article six of the European Convention on Human Rights
Last summer, when seeking the annual renewal of the OASA legislation and the 2009 Act, Minister for Justice Helen McEntee said the most recent Garda security report underlined the SCC is needed to deal with the threat from dissident paramilitary groups and organised crime.
The relevant provisions of the 2009 Act were enacted in response to the justice system considered to be under serious threat from organised crime gangs, she said. It was “imperative” in 2009 that the criminal justice system was robust enough to withstand the assault placed upon it through intimidation and violence, she said. “That imperative remains.”
In the year to May 2022, 16 individuals were convicted in the SCC of offences to which the 2009 Act applies, she noted.
Fianna Fáil Justice spokesman Jim O’Callaghan, a senior counsel, said the measures under the 2009 Act have proven “extremely effective” in combating gangland violence, with many criminals convicted under its provisions. He said, “regrettably”, the SCC and the extension of the underpinning law was necessary.
There is “nothing exceptional”, about serious criminal trials taking place without a jury, it happens in other countries across Europe, the TD said. He wanted to see juries used “as much as possible”, believing they provide a greater system of protection.
The reason for the SCC is to protect ordinary men and women being exposed to intimidation and threats, he said. “Gangs here have murdered children and journalists and have intimidated witnesses”. He was sceptical of the idea of anonymous juries, saying that, for a trial to be fair, the jury should be in the same room as witnesses and the judge and, once court is over, jurors have to go home.
Threat
Several Opposition politicians were concerned about the appropriateness of addressing the threat posed by organised crime/terrorism through the annual ‘nodding through’ of the OASA.
Sinn Féin TD Martin Kenny said reform of the SCC and the OASA is required, noting the legislation is “decades old and is an emergency provision” but has been repeatedly passed by successive governments since the 1960s.
It is “completely out of step” with judicial best practice that the prosecutor, the DPP, would decide what cases would go before a non- jury court by virtue of the category of the offence. Each case should be decided on its merits and, to comply with basic international standards, objective grounds should be given for a decision about what court should try an accused, he said.
While welcoming the Peart review, he said Sinn Féin was disappointed it had “not made more progress”.
Social Democrats TD Catherine Murphy took the view the SCC was needed 50 years ago and has been needed since but argued what is required is a “multifaceted approach”. There is an issue with gangland crime but the State needs to enact alternative provisions for juries, as in other jurisdictions, and a “proactive policing model”, she said.
Once the Peart review is complete, there must be a debate on how to address the problems, she said. She did not accept the level of organised crime is “more extreme” here than other jurisdictions that exist without a comparable court. Other jurisdictions can deal with the issues and protect juries and witnesses but she was not confident of a “proactive approach” from Government to this.
Labour Party TD Brendan Howlin said the House was told in summer 2021 the Peart review report was “imminent” and he had expected at this stage to be debating “specific legal changes” that would set aside emergency provisions and set out the matters to be a feature of permanent law and whether there is a case to be made for establishment of non- jury trials.
Such trials may be necessary due to jury intimidation and other factors but that should be set out in permanent law rather than a recurring motion “on the pretext that, every so often, somebody, somewhere will review it and that might impinge on it”.
Most TDs, he noted, supported renewal of the legislation but he believed a clear majority wanted 2022 to be “the last year for a pro-forma presentation” with the simple expectation the House would “nod through” the annual renewal. He hoped, when the matter comes around again in 2023, that “robust law” will be debated.
