2 November 2021
The Irish Council for Civil Liberties says the Special Criminal Court presents an insuperable obstacle to the right to a fair trial. As we publish our submission to the Independent Review Group on the Offences Against the State Act, we highlight the fundamental difficulties with the Court including the denial of the right to trial by jury, failure to disclose evidence to the defence, and the use of ‘belief’ evidence.
ICCL Executive Director Liam Herrick said:
“The right to a trial by a jury of your peers lies at the heart of our constitutional protection of a fair trial. More than twenty years after the end of the conflict in Northern Ireland, the continuing existence of a special non-jury court in Ireland is an intolerable interference with constitutional fair trial rights. It cannot be justified on practical or legal grounds. As other legal systems have shown, any problems with jury or witness intimidation can be addressed through other means.”
The Independent Review Group established by the Minister for Justice is examining the Court half a century after its establishment as an emergency measure. In our submission, ICCL is calling for the immediate abolition of the Court.
We highlight six areas of particular concern: the lack of a jury; the dual role of judges as both judge and jury; the extensive powers of the DPP; claims of privilege by gardaí; and the acceptance of beliefs and inferences as evidence.
The right to a trial by a jury of one’s peers is a strongly-protected Constitutional right in Ireland. ICCL believes there is little evidence to suggest that jury intimidation is widespread, but if so, this is an issue which should be addressed by measures such as anonymous juries and by legislation at every level of our courts system. It is inappropriate and out of line with the practices and protections of an adversarial, common-law jurisdiction for judges to act as both judge and juror at the Special.
The DPP’s power to decide what cases go to the Court is far too broad and immensely difficult to challenge. The DPP should have to provide the reasons they are sending a case to the Special, and those reasons should be open to challenge.
At the Special, gardaí can claim privilege and refuse to give important documents to the defence. Gardaí may also present their belief that someone is guilty without having to show any other evidence. Negative inferences may be drawn from a suspect’s silence. These practices are clearly contrary to fair trial rights and should end immediately.
ICCL’s favoured course of action is the abolition of the Court, with the consideration of alternative means of ensuring the safety of juries and witnesses. Pending the abolition of the Court ICCL also proposes immediate reforms in how the Court currently operates.
ENDS/
The Irish Council for Civil Liberties (ICCL) is Ireland’s oldest independent human rights campaigning organisation. We monitor, educate and campaign to secure human rights for everyone in Ireland.
For comment: Liam Herrick or Gemma McLoughlin-Burke
For media queries: sinead.nolan@iccl.ie