9 August 2001 Edition

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Committee recommends Special Court be retained

At long last, the committee set up two years ago under the Good Friday Agreement to review the Offences Against the State Acts (OASAs) and the continued existence of the Special Criminal Court (SCC), delivered its interim report last week to the Oireachtas and UN Human Rights Committee.

To the amazement of those concerned with human rights, the committee failed to reach a unanimous recommendation to disband the Special Court, but in a majority report recommended it be retained.

The committee's recommendations, with some small qualifications to the effect that the necessity for the court be kept under continual review, must present some embarrassment to the government, which is committed under the Agreement to dismantling the extraordinary judicial powers of the OASAs, which are quite unacceptable by international human rights standards.

There has been repeated international condemnation of the continued existence of the Special Court, since 1993, when Ireland was first examined by the UN Human Rights Committee (UNHRC) in Geneva. This committee has been unequivocal in its recommendation that the existence of the Special Court and the use of the OASAs offended against the International Covenant on Civil and Political Rights (ICCPR), which was ratified by the state in 1989.

Again last year the committee, in its second examination of the Attorney General, who was grilled for two separate seven-hour sessions last July by the UNHRC, repeated its call for an end to the jurisdiction of the Special Criminal Court.

Things became more urgent last year with the successful case brought by a convicted criminal to the UN Human Rights Committee. He challenged the decision by the DPP to refer his case to the Special Court on the basis of a certificate without any right to review the DPP's decision or any need for the DPP to give reason or just cause for his decision.

The OASA relies on an inequality before the law with discriminatory access to jury trial, without even the opportunity for review or redress, and is thus in breach of the minimum standards of human rights of equality before the law.

Justice Minister John O'Donoghue presented the committee's interim report, which is not yet published, to the Oireachtas on Wednesday 1 August. Despite their two-year study, the committee could not reach a unanimous conclusion on what should be done with the Special Court, though they did all agree that the DPP's decision to refer certain cases to it should be reviewable.

Justice Anthony Hederman, who chaired the committee, supported by Professors William Binchy and Dermot Walsh, took the view that the Special Court should be abolished. They determined that the right to trial by jury is the very cornerstone of our criminal justice system, and no argument could sustain its retention.

Furthermore, they argued, other states with an `organised crime problem' had not resorted to the abolition of trial by jury, nor was the existence of the SCC in any way a deterrent to `organised criminal activity'. The problem of intimidation of juries, should it arise, could be dealt with in the same way as the protection of witnesses is dealt with.

The majority on the committee, however, Senior Counsels Eamon Leahy and Gerard Hogan, former Garda Commissioner P.J. Moran, and four government representatives (from the Departments of Justice, Defence, Foreign Affairs and the office of the Attorney General) took the view that the court should be retained because of the supposed threat from paramilitaries and organised criminal gangs.

Four of the nine-member committee were members of the government's executive branch rather than members of the judiciary or experts in human rights or jurisprudence. It raises questions about the government's commitment to human rights.

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