Sir , – During the course of the general election campaign, there was extensive discussion of the retention and role of the Special Criminal Court. Given the importance which has been attached to retaining the court by some parties and commentators, one might be forgiven for thinking that “the Special” has assumed some sort of quasi-constitutional status in our legal system.
In fact, the Special Criminal Court is an exceptional court which operates outside the general constitutional and international standards of the right to a fair trial. Article 38 of the Constitution empowers the Oireachtas to establish “special courts” when the “ordinary courts are inadequate to secure the effective administration of justice”. Its use, therefore, is premised on a supposed inadequacy of our justice system to deal with emergency circumstances.
The current court was established in 1972 at the height of the conflict in Northern Ireland as a response to what was believed to be an existential threat to this State. Even then, it was highly contentious, and throughout its history, lawyers, human rights organisations and international bodies have challenged its use.
The Irish Council for Civil Liberties (ICCL) has consistently challenged the use of a non-jury court as a denial of constitutional and human rights, as has Amnesty International and the UN Human Rights Committee. Judge Anthony Hederman chaired an independent review of the Offences Against the State Act between 1999 and 2001, after which he, along with Profs Dermot Walsh and William Binchy issued a minority report opposing the continuing use of the court.
Jury intimidation is the main justification put forward for continuance of the court but alternative solutions to this problem exist in many other common-law countries, such as anonymous juries, screening juries from public view, and using video-links to juries at different locations.
Perhaps the strongest argument for a review of the Special Court and the Offences Against the State Act relates to the changing nature of the problem they seek to address. The conflict in Northern Ireland ended more than 20 years ago. Today, foreign governments, international terrorism, and cyber-attacks present new dangers that require sophisticated responses. Reflecting the shifting reality of terrorism and security, the Commission on the Future of Policing has recommended new strategic intelligence structures and new systems of intelligence oversight. In the context of a rapidly changing global security situation, surely it is worth exploring if there are more effective means of fighting terrorism and serious crime that do not require us to sacrifice our constitutional rights. – Yours, etc,
LIAM HERRICK,
Executive Director,
Irish Council for
Civil Liberties,
Usher’s Quay,
The Liberties,
Dublin 8.