27 January 2005 Edition
Spotlight on Special Court as Gardaí are charged with perjury
BY SEÁN BRADY
The Court of Criminal Appeal's overturning of the conviction of Colm Murphy has highlighted, once again, the nature of the notorious, non-jury Special Criminal Court.
Murphy was jailed at the Special Court in 2002 for conspiring to cause the Omagh explosion in August 1998. Appeal court judges on Friday 21 January supported Murphy's claim that the conviction was unsafe and a retrial has been ordered.
Justice Nicholas Kearns, the presiding judge, said the court had decided that Murphy's conviction was unsafe on two grounds. The first concerned the Special Court's approach to the alteration of police interview notes and the evidence given in this respect by two Garda officers, subsequently charged with perjury. Kearns said the second ground was the Special Court's invasion of Murphy's presumption of innocence in relation to his previous convictions.
For ten years, the Irish Council for Civil Liberties (ICCL) has called on the government to scrap the non-jury Special Criminal Court in line with its various commitments in relation to the Peace Process.
The Special Court has been criticised by, among others, Amnesty International and the United Nations Human Rights Committee. The UN body said in July 1993 that there was no justification for the continued use of the Special Criminal Court.
Literally thousands of people have been tried by the court since it was re-established in 1972. Some of the most controversial convictions in Irish legal history were delivered by it, including the Sallins Mail Train and the Peter Pringle cases.
With the advent of the Peace Process, a new development in the use of the Special Crimnal Court has been the number of cases tried by it which have had no political connections. Since the cessation in 1994, the intention of the state has been to use the Court for criminal trials and controversial cases, such as those involving members of the anti-drugs movement in Dublin, thus abolishing jury trial by the back door.
Established under draconian "emergency" legislation, the Special Criminal Court undermines the notion of justice in the 26 Counties, just as the Diplock Courts have done in the Six Counties. It does away with the principle of "innocent until proven guilty", as those who come before it are convicted on the word of a Garda or on undisclosed or secret 'evidence'.
The Special Court formed an important element in an array of repressive legislation enacted by Dublin Governments in the early 1970s in response to the outbreak of conflict in the North and pressure from the British to act against republicans. This saw the rapid absorption of the 26-County state into Britain's counter-insurgency strategy in Ireland and witnessed the imposition of media censorship, Garda abuse of detainees and the general erosion of civil liberties. Sinn Féin has for years campaigned on the issue of emergency powers and their abuse in the 26 Counties.
Secret Garda files
Late last year and for the first time in history, the Special Criminal Court examined secret Garda files relating to the trial of two Dublin republicans, Niall Binead and Kenneth O'Donohue. The head of the Garda Special Branch, Detective Chief Superintendent Philip Kelly, brought three 'files' to court, which were examined by the three judges in private in their chambers. After this examination the files were sealed by the members of the court and returned to the Gardaí. It was the first time in an IRA membership trial that the court has inspected secret Garda files on the accused. After examining these files, Justice Diarmuid O' Donovan, presiding, said the court was satisfied Kelly had adequate information that each of the accused was a member of the IRA. This case in particular highlighted the Kafkaesque nature of the court and its operation as a mere conveyor belt for imprisoning political suspects.
Ten years into the Peace Process there has been no progress on the issue of criminal justice in the Southern state. In fact, the current Minister for Justice has declared his intention to expand rather than shut down the Special Criminal Court.
Sinn Féin recently tabled a Dáil Bill to repeal the Offences Against the State Acts 1939-1998, arguing that repressive legislation has no place in a democratic state in the 21st Century. This is particularly the case given that the country is ten years into the Peace Process, eight years into a continuous IRA cessation, and seven years after the conclusion of the Good Friday Agreement, which stipulates that these laws should be reviewed, reformed and dispensed with as circumstances permit.
In the context of a review of the Good Friday Agreement, Sinn Féin published its repeal Bill to remind the government of its responsibility and to urge members of the Opposition to confront their own creeping complacency, by which they have allowed repressive emergency legislation to become part of the ordinary law.