LAST WEEK the Special Criminal Court convicted John Dundon of the brutal murder of Shane Geoghegan. There is little in the way of public discussion about the court – which tries defendants without a jury. Historically used to try terrorism cases in the 1970s, its remit was formally extended to include organised crime in 2009.
Its defenders say that its current form allows it to be free from the threat of intimidation of witnesses and jurors. But is it really necessary to maintain a court that has been criticised by the UN, Amnesty International, the Irish Human Rights Commission and the Irish Council for Civil Liberties? Could these convictions be obtained without railroading normal principles of justice?
The Special Criminal Court’s existence is provided for by Article 38.3.1 of the Constitution, and by the Offences against the State Act 1939. The latter Act broadly states that:
“If and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order….the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this Part of this Act shall come into force.”
Since the early 70s, the government has used this provision to try terrorism offences in the Special Criminal Court, and other offences where it was considered by the Attorney General that the ordinary courts were “inadequate.” When the Criminal Justice (Amendment) Act was introduced four years ago, organised crime offences also formally came under the scope of the Court.
Critics of the current system complain that the SCC is not supported by any dedicated primary piece of legislation, and no legislative guidance exists to define when the ordinary courts may be deemed “inadequate” by any particular government, or for what reasons.
The Special Criminal Court exists effectively on an emergency footing that has not changed since its inception in the aftermath of the outbreak of the Troubles in Northern Ireland.
Even before the powers of the court were extended in 2009, the idea was attacked by some within the legal sector.
Former Director of Public Prosecutions James Hamilton said he had “no doubt that a widespread use of the Special Criminal Court to try cases involving organised crime would amount to a weakening of the jury system and would tend to establish the Special Criminal Court as a permanent institution of the State. It would also run counter to the intention to phase out the use of the Special Criminal Court which was a feature of the Belfast Agreement.”
The existence of this court breaches the fundamental right to trial by jury. When originally established, it is likely that the Court was designed to allow for trial where the government suspected it would be impossible to avoid the possibility of juries selected at random being overly sympathetic to Republican defendants.
However, the justification for the court now rests mainly on the argument that it is necessary to protect jurors and witnesses from intimidation. Importantly, nothing exists legislatively or constitutionally to prevent it evolving in any different direction in years to come.
In a recent article on TheJournal.ie, Aaron McKenna suggested that the Special Criminal Court was necessary to protect witnesses from intimidation. However, witnesses are required to give evidence in the Special Criminal Court just as they are in every other court. The absence of a jury has no impact on the potential for witnesses to be intimidated. Indeed, the man who fired the bullet that killed Shane Geoghegan was convicted by an ordinary court.
Since 2006, every court of criminal trial from the Circuit Criminal Court upwards has been empowered to accept statements given to Gardaí by witnesses into evidence. This is even the case in situations where that witness ultimately refuses to give evidence in court, denies making the statement at all or attempts to give evidence that is materially at odds with what he or she said to Gardaí on a previous occasion. This is a wide ranging power that has resulted in convictions of many defendants in many different courts.
The 2006 legislation already aims to remove the influence of any such intimidation during the course of a trial, and has been effective in doing so in the ordinary courts. There is no reason to believe that it could not be similarly used in trials for offences relating to organised crime.
For a system of jury trial to be effective at all, jury members must be free to conduct their duty without fear of intimidation or influence from external factors, and must be at liberty to make their decision on the strength of the evidence in the case alone.
In 2009 Minister for Justice Dermot Ahern accepted that no records have ever been maintained by the State in relation to the intimidation of jurors. However, even if nobody has ever been convicted in relation to such behaviour, this does not mean that it does not take place.
It therefore falls to the State to introduce mechanisms to protect citizens doing their duty as jurors within the criminal justice system – but the State has never attempted to do this.
Rather than the Special Criminal Court being an option of absolute last resort, it has evolved into a court of first instance. It is used where there is the slightest suggestion that due to the nature of the offence itself (rather than any evidence specific to the person accused), jurors might be intimidated. For certain offences, the default position is that the ordinary courts are inadequate, and they must be tried in the Special Criminal Court unless the DPP directs otherwise.
Without any evidence connecting an accused person or even associates of his to jury intimidation (whether actual or anticipated), this is a capitulation on the part of the State and an acceptance that our jury system cannot be fortified and protected sufficiently to deal with such threats.
Other avenues to prevent juror intimidation could and should be explored, as they have been in other jurisdictions. Jury sequestering during the course of a trial and separate rooms for a jury to view a trial by video-link are both possible.
The process of jury selection could be re-evaluated, particularly in the context of the advent of social media. It is easier now than ever before to make direct contact with someone you do not know if you have their name and address, and to avoid being traced while doing so. But a reconsideration of this process, which could even extend to a limited use of anonymous juries or a withholding of juror addresses is something that has never been explored by any government of this State.
It is easy to argue in the face of appalling atrocities such as the murder of Shane Geoghegan that State power to tackle terrorism and organised crime should be increased and that the ordinary citizen has no proper role to play in securing the prosecution of these crimes. But these rights are all of our rights, and as we read about the arrest of Glenn Greenwald’s partner in the UK under anti-terrorism laws we should remember that their erosion in the face of the State is not something that should be taken lightly.
Perhaps it is more effective, and quicker, and cheaper, to convict these defendants in a court without a jury. Those who disagree with the statement that everyone is innocent until proven guilty are likely to believe that.
For those who don’t, the continued existence of this Court in its current incarnation is an indication of the State’s easy sacrifice of the fundamental tenets of criminal justice that protect us all in the name of defeating thuggery – a sacrifice that cannot be justified by the evidence or by any argument that all other options have already been tried and have failed.
Jane Horgan-Jones is a practising barrister and a Labour Party Councillor on Dublin City Council, representing the Clontarf ward.
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