THE MAJORITY OF an expert group on the State’s counter-terrorism laws has recommended that the Special Criminal Court be replaced with a new court that has additional safeguards and transparency.
The majority’s report also called for the Offences Against the State Act to be “repealed in its entirety” and parts of it to be re-enacted within other laws with a “significant” amount of amendments.
However, a minority review from the same expert group took a different viewing, saying that a permanent non-jury court would be “constitutionally inappropriate”.
The Special Criminal Court (SCC) is a three-judge criminal court, without a jury, that deals with terrorist and organised crime cases. The court has no jury in order to avoid any potential intimidation of its members.
The court is enabled by the Offences Against the State Act, the first of which was published in 1939 to prosecute members of the IRA and declare any similar organisations unlawful.
More recently, the court has been used to deal with the deadly rise in gang-land crime and organised criminal enterprises.
The legislation and its court have been criticised by Amnesty International, the United Nations and The Irish Council of Civil Liberties over the last number of decades.
The majority’s review recommends that the court in its current form be replaced with a new, non-jury court that has additional measures and regulations over its use.
The review said that it seemed to the majority of the group that the use of a non-jury court is “justified” and that the court is needed to counter “a real risk to juror intimidations”.
However, the review added that there is “an absence of concrete evidence” of the nature and extent of the risk posed to jurors today.
The review added that a non-jury court should only be used in “an exceptional case”.
One way that the review recommended this be done is through abolishing ‘scheduled offences’ – where certain offences are automatically tried by a non-jury court – and placing the decision onto the Director of Public Prosecutions (DPP).
As an additional safeguard, the majority review recommended the appointment of a judge that would review whether the correct procedure was followed by the DPP and that the decision was made based on of the evidence of the case alone.
This would mean, under the new court, that the DPP would decide whether it is suitable that a citizen, who stands accused of a crime, be tried in a non-jury court based on the evidence in the particular case, regardless of the case’s threat to national security.
Accompanying the majority review, there is also a minority review who believe the establishment of a permanent non-jury court is “constitutionally inappropriate”.
The minority review said: “Just because something can be done does not mean it should be done – we differ from our colleagues in the majority in our approach to decisions of the Irish Supreme Court regarding the existence and use of the Special Criminal Court and its operations.”
Commenting on the recommendation to replace the SCC with a new special court Minister for Justice Helen McEntee said: “The Special Criminal Court eliminates the very real risk to jurors and potential jurors posed by subversives and organised criminal groups.”
“And, while it is of course the case that trial by jury must be preserved to the greatest extent possible, we cannot ignore the threat posed to the security of the State by such groups. It is also the case that the Special Criminal Court is only used in limited circumstances for the most serious criminal cases, with 25 cases tried there in 2020 and 2021.”
McEntee said that the recommendation from the review group “requires serious consideration” due to the importance of the SCC and its place in the Irish judicial system.
As well as non-jury trials, the SCC has special powers to accept ‘belief-evidence’. This allows the belief of a Garda Chief Superintendent that a person is a member of an illegal organisation to be used and accepted as evidence of that person’s membership.
While the majority’s report recommends that new legislation be created to provide more regulation around the use of non-jury courts, they have deemed the continuation of belief-evidence “appropriate”.
While the report says that belief-evidence can continue to be used, it adds that someone must not be prosecuted “solely on the basis of that evidence”.
“[...] Such evidence must be supported by some other evidence that implicates
the accused in the offence charged,” the report added.
The majority of the group said another 1940 amendment, which gave Gardaí power to arrest and detain someone without a trial, should also be “repealed in its entirety” and should not be re-enacted or replaced with any new legislation.
Additionally, sections relating to “inferences from silence” (where someone refuses to recount their movements) and interference with the course of justice must also not be re-enacted or replaced.
The expert review, chaired by ex-Court of Appeal Judge Michael Peart, was called for by the minister in 2021 after she felt it was “timely” and would “complement” the Department of Justice’s work to deliver on the Programme for Government.
The group were updated on the ongoing security in the state including domestic and international terrorism, organised crime and “the growth of right-wing extremism”.
In considering the use of the court, the review group took the length of time since the introduction of the Offences Against the State Acts, the need for the laws, the threat posed by terrorism and organised crime, and the need for more modern frameworks.
The majority of the group recommended that aspects of the current laws be re-enacted and placed elsewhere in the state’s legislation.
It said some of the acts that should be re-enacted included sections referring to the obstruction of Government or the President and interferece with the military or gardaí, being in charge of an unlawful organisation and withholding information.
McEntee, who thanked the work of the review group and Peart as chair, added that she appreciated “the dedicated effort and input of all the members”.
The Justice Minister said that while the while laws and the Special Criminal Court have “served us and continue to serve us well”, it is “important that we take the time to consider carefully how best to proceed”.
“With this in mind I have asked my officials to consult with other relevant Departments and the Garda Commissioner, the Office of the DPP and the Courts Service to inform the preparation of a substantive response for consideration by Government in due course,” she added.
There is much to digest and reflect on in the majority’s package of recommendations and also in the perspective of the minority.”
Additionally, the Minster has asked to consult with the Irish Human Right and Equality Commission to “ensure that a broad human rights perspective is captured”.
Last month, Minister Simon Harris, who took over as Justice Minister while McEntee was on maternity leave, received approval to propose the resolutions to extend the legislation.
A Government spokesperson said Harris considered that there remained “a real and persistent threat from terrorist activity, primarily from so-called ‘dissident’ republican paramilitary groups”.
The legislation, which must voted on every 12 months, is set to come before the Dáil and Seanad before the summer recess, and now that McEntee has returned it is her responsibility to bring forward the motions.
McEntee said she expects to bring the motions to cabinet next week and added it is “absolutely vital” that the state continue to annually renew the act.
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