THE SPECIAL CRIMINAL Court was the focus of a lengthy exchange in the leaders’ debate earlier this week on RTÉ with Sinn Féin president Mary Lou McDonald repeatedly asked to clarify her party’s position on it.
Fine Gael leader Leo Varadkar ruled out a coalition with the republican party because of its view on the court. Meanwhile his Fianna Fáil counterpart Micheál Martin said Sinn Féin always votes against the Offences Against the State Act, which legislates for the court, on instruction from “their IRA old comrades”.
In her response, McDonald said the abolition of the court is not in the Sinn Féin manifesto and she supports the judicial system, the gardaí and all of the apparatus of the state. She also said Varadkar raising the issue of the court was a “clarion call of desperation”.
So, what is the court?
Simply put, it’s a three-judge criminal court that deals with terrorist and organised crime cases. Significantly, the court has no jury in order to avoid any potential intimidation of jury members.
This has led to criticism from human rights groups because it goes against the right to a jury trial, which is guaranteed in the Irish Constitution.
Why was it set up?
To answer that we have to go all the way back to the eve of the Second World War when the IRA declared war on Britain and launched a bombing campaign in January 1939.
In a bid to clamp down on the offensive, the Éamon de Valera-led government introduced the Offences Against the State Act which gave the government the power to declare any organisation unlawful.
The act also made provision for the Special Criminal Court and it was first established in August 1939, just eight days before Germany invaded Poland and triggered World War II.
This first version of the court consisted of five army officers and it sat until 1946.
The IRA’s campaign of attacks on the Northern Ireland border in the latter half of the 1950s prompted the brief reconvening of the court between 1961 and ’62.
The IRA called off the guerrilla attacks a short time later and the court was mothballed again. This was the last time that military officers sat on the bench.
When violence again erupted on the island of Ireland with the outbreak of the Troubles, the court was brought out of cold storage in 1972 to combat the danger paramilitary activity posed to the state.
As with the previous times it was set up, the court was installed as an emergency measure in response to the threat of paramilitary activity.
It has now been in place for 48 years with its brief expanding to include organised crime in recent decades.
A second court was established in 2016, due to a backlog of cases and a surge in gangland violence, however its number of cases recently declined.
The roots of courts with special powers go back to the formation of the Irish State: the 1922 Constitution of the Irish Free State had provision for non-jury trials and internment, while the suspension of juries goes back even further, taking place when Ireland was under British rule.
What kind of cases does it deal with?
The court has a system of ‘scheduled’ and ‘non-scheduled’ offences that it deals with. Subversive crimes like possession of explosives or firearms and membership of an unlawful organisation are considered scheduled offences and are automatically directed towards the court, unless the Director of Public Offences decides otherwise.
The DPP can also direct other charges to the court if she believes that the ordinary courts are inadequate to effectively administer justice.
Thomas ‘Slab’ Murphy’s trial for non-filing of tax returns is an example of a non-scheduled offence that came before the court.
Despite still largely dealing with cases related to the IRA, organised crime has been an increasing portion of the courts workload in recent years. It has seen a number of high profile cases involving gangland figures and has a notably high conviction rate.
Earlier this week the court found a 37-year-old man guilty of being part of a Kinahan Cartel plot to murder a Dublin man.
What can it do?
As well as holding non-jury trials the court has a range of special powers including the ability to accept ‘belief-evidence’. This provision allows the belief of a Garda Chief Superintendent that a person is a member of an illegal organisation to be used as evidence of that persons’ membership.
This power has been protested by civil liberties groups since it was introduced in 1972 but its constitutionality has been consistently upheld by the courts.
The court can also make ‘inferences from silence’. Introduced in an Oireachtas amendment following the 1998 Omagh bombing, this power means that a negative inference can be taken from a suspect’s silence while being questioned by the gardaí over a charge that they are a member of an illegal organisation.
What is Sinn Féin’s position?
Sinn Féin’s stance on the court has undergone a notable shift during this election campaign. The party has called for the court to be abolished as far back as 2002 (at the latest) and in the 2016 race the party pledged to “repeal the Offences Against the State Acts”.
Speaking in the annual Dáil debate on the act last year, Donnchadh Ó Laoghaire, the party’s Cork South-Central TD, said that the act and the court are “ineffective relics of a conflict era” and called for the right to a jury to be protected.
However, as McDonald noted in Tuesday’s debate, the 2020 manifesto does not call for the court to be wound up.
She said:
I accept that we need mechanisms and special powers. What we have been calling for for the last four years is for a review led by a High Court judge to ensure that the courts, the gardaí the DPP’s office have the full resources that they need to keep people safe.
The Sinn Féin leader went further on Virgin Media News last night, saying she does not want the court abolished.
Who else is against it?
Several organisations including the United Nations, Amnesty and the Irish Council on Civil Liberties (ICCL) have long-standing opposition to the court. The UN first said it was “not justified” in 1993 and it has repeated that stance several times in the decades since.
Commenting on the court in November 2018, the UN’s counter-terrorism expert, professor Fionnuala Ní Aoláin, said:
The island of Ireland, more so than many parts of the world, has experienced emergency law, emergency practice and the seepage of the exceptional into the ordinary in ways that has not served the rule of law nor the protection of human rights well.
The ICCL has repeatedly called for the court’s abolition, opposed its expansion in 2009 and the establishment of the second court in 2016.
The human rights group was founded by Mary Robinson in 1976 and the former President of Ireland has criticised the court several times over the decades.
Is it going anywhere?
Despite the noted opposition, the amendments to the Offences Against the State Act which allow the court to exist are routinely passed by the Oireachtas when they are voted on every year.
In the 2019 debate, justice minister Charlie Flanagan said that the gardaí recommended that the court would be required for some time to come. The minister said:
We all look forward to the day when the Special Criminal Court is no longer needed, but regrettably we are not there yet.
In her book on the court, barrister and Maynooth University law lecturer Alice Harrison writes that, despite being established as an emergency measure, the court now has “de-facto permanency” in the Irish criminal justice system.
“While the majority of trials in the Special Criminal Court continue to involve subversive activity, prosecution of organised crime in the court is increasing and a situation has now arisen where emergency powers have become normalised,” she wrote.
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