1 February 2016 Edition
Time to scrap the Special Criminal Court
Jury-less courts have no place in modern Ireland
‘Unjustified that this court’s procedures suspend fundamental fair trial guarantees, including the right to trial by jury’ – Irish Council for Civil Liberties
THE SPECIAL CRIMINAL COURT in Dublin was established on 26 May 1972 under the Offences Against the State Act. It allowed courts consisting of three judges – without a jury – to try and jail individuals accused of membership of banned organisations such as the IRA.
The Offences Against the State Act itself had been introduced in 1939 as a reaction to the ongoing activities by the Irish Republican Army during the the Second World War.
When the conflict in the North exploded, the then Fianna Fáil Justice Minister, Des O’Malley, had planned to introduce internment without trial by the end of 1970. However, the huge blowback experienced by the British in the North, widespread international condemnation, and unease within sections of his own party caused O’Malley to row back and instead move towards the establishment of a special court with no jury to try republicans accused of being in the IRA. While claiming that the rationale for not having a jury was the alleged intimidation of juries, at the time the Justice Minister failed to cite one single example of where this had occurred. In most cases the word of a senior ranking Garda was enough to convict many of those on trial.
The Special Criminal Court is back in the news following the conviction of Louth republican Thomas Murphy on charges of tax evasion. Tom Murphy has strongly contested the charges. Sinn Féin, which has routinely opposed the renewal of the Offences Against the State Act in the Dáil, questioned why someone being prosecuted in relation to tax matters was being tried in the Special Criminal Court when such cases are almost always settled via a negotiation between the individual or organisation with the Revenue Commissioners.
For example, this occurred in 2001 when Fine Gael (under the leadership of now Finance Minister Michael Noonan) was forced to pay £111,110 to Revenue after admitting giving £120,000 worth of payments in under-the-counter cash to its staff over a nine-year period.
In relation to Tom Murphy’s case, Sinn Féin leader Gerry Adams said:
“We have seen many prominent figures, including TDs, accused of tax irregularities. Unlike Tom Murphy, they will not be denied their constitutional and civil rights.”
So unusual was it for a tax case to be heard in the court that, ahead of sentencing Tom Murphy, it had to request guidance on sanctions from the Office of the Director of Public Prosecutions on the case.
Immediately, newspapers attempted to conflate Gerry Adams’s criticism of the non-jury Special Criminal Court with support for non-payment of tax.
Nothing could be further from the truth.
• Former Justice Minister Des O’Malley and Former President Mary Robinson
Gerry Adams simply questioned the chances of a person who has been continuously demonised in the media to receive a fair trial in a draconian non-jury court which has been condemned by the United Nations Human Rights Council. The UNHRC stated more than 15 years ago that “steps should be taken to end the jurisdiction of the Special Criminal Court”.
Sinn Féin and the UN Human Rights Council are not the only organisations which oppose the outdated Special Criminal Court.
Roisín Pillay, a senior adviser with the International Commission of Jurists in Europe, criticised its continued existence, saying:
“The Special Criminal Court was set up to deal with a special threat of terrorism, but it is becoming part of the wider legal system and ends up being used for purposes not related to terrorism.
“A parallel system of justice is worrying.”
This is a view which has been aired as far back as December 1974 when barrister Mary Robinson – later President of Ireland and United Nations High Commissioner for Human Rights – condemned abuses by the Special Criminal Court, particularly its increasing use to try those not involved in armed organisations. In one instance, a dance hall owner who was accused of hiring somebody to burn down a rival’s premises appeared before the court.
In 2008, speaking at the McCluskey Summer School in Carlingford, County Louth, Mary Robinson said she was “sympathetic to the critique of the Special Criminal Court” by an audience member that it was operating a form of internment. She added:
“There is a need for serious analysis of the potential for corruption in the powers given to the court.”
Irish Council for Civil Liberties Executive Director Mark Kelly said in October 2015:
“The Special Criminal Court was created as an extraordinary court in extraordinary times; however, no reasonable person could today claim that there is a public emergency threatening the life of the nation. It is therefore unjustified that this court’s procedures suspend fundamental fair trial guarantees, including the right to trial by jury.”
The Special Criminal Court has always been a stain on Ireland’s reputation. The arguments espoused by proponents for its continued existence during the conflict are no longer there.