Guilty until proven innocent?
ICCL hosted a webinar on 26th of January 2022 to launch our campaign and coalition against the Special Criminal Court. ICCL’s Doireann Ansbro outlined our position on the court recapping the fair trial concerns and stating that our ordinary courts prove every day they are capable of delivering justice in serious matters. Extending emergency measures beyond emergency times permits mission creep. In 2009 the Special Criminal Court was expanded to include organised crime. What will it be in 2029? Protesters posing threat to public peace and order? Normalising exceptional measures is always dangerous.
Osgur Breatnach was wrongfully convicted at the Special Criminal Court for the Sallins Mail Train robbery. Osgur took us back to 1978 and the first day of his trial,
Now, armed soldiers at a checkpoint trained their loaded weapons on me and interrogated my destination and interest in the Special Court before letting me by. How could members of the public get passed this intimidating blockade to exercise their right to attend any public trial- or would they want to, I wondered.
Today and intimidating garda security checkpoint remains in front of the Special Criminal Court in the Criminal Courts of Justice. Osgur was under no illusion about the trial he would receive before the Special,
It is a basic tenant of a fair trial that a prisoner should have the expectation of receiving a fair trial. I had the opposite expectation. I was well aware of the unjust trials that went on in the Court, publicised by media reports and Mary Robinson’s thesis which called the court a ‘sentencing tribunal.’
Osgur recounted his experience of the trial process and explained in eloquent terms the injustices he suffered. He was convicted and sentenced to 12 years penal servitude on the basis of a forced confession, one which was obtained under torture. Despite his evidence to the contrary the Special Court found in favour of the State’s evidence that his injuries were self-inflicted. He is adamant that had he been before a jury, his fate would have differed,
The Special Criminal Court is an integral part of a triumvirate of repressive apparatus against Irish citizens: the government that perpetuates it; the police who use it and the Court itself that administers its own special version of so-called “justice”.
Nancy Hollander is an internationally renowned criminal defence lawyer. She is well-known for being a “terrorist lawyer – and proud of it” as she told the New York Times this is because,
…in my defense of every client, I am defending the United States Constitution and the laws and treaties to which it is bound, and I am defending the rule of law. If I am a terrorist lawyer, I also am a rule-of-law lawyer, a constitutional lawyer and a treaty lawyer.
Nancy’s work securing the release of Guantánamo Bay prisoner Mohamedou Ould Slahi’s was fictionalised in the Hollywood film The Mauritanian. However, Nancy has also appeared before the Special Criminal Court so she offered her comparative perspective. She was defiant in her call for the abolition of the Special Criminal Court. She recounted her shock to find out during her time on the McKevitt defence that belief evidence could be used to convict in the Special Criminal Court. As she put it “no one should be convicted on the belief of another”.
Nancy spoke of a similar problem in the US in the military commissions in Guantánamo Bay which were set up outside of the jurisdiction and constitutional protections of the US in the emergency situation following 9/11.
Nancy warned of what happens when special courts and their unfair, unconstitutional practices seep into the ordinary courts. She spoke of a case she tried in the ordinary courts in which she defended the largest Muslim charity in the US, Holy Land Foundation. That case was extremely difficult to challenge given the use of secret evidence. This is the risk of operating special courts with lower standards of evidence outside of the ordinary justice system, the unfair procedure gradually seep into the ordinary courts.
Secret of “privileged” evidence is very problematic in the Special Criminal Court. In the Speical, an accused can be convicted on the belief of a police officer the information grounding the belief often being covered by a blanket privilege.
Nancy stated that,
…the Special Criminal Court should be abolished for the same reasons that the military commissions set up in Guantánamo Bay should be abolished and any other “emergency court” because they're never emergency courts. They always start out as emergency courts… There is an immediate presumption of guilt in a “special” criminal court.
Both Ireland and the US are common law systems. Comparing the common law system to the civil law system Nancy opined,
In the inquisitorial system that they have on the continent is a very different system. They can give up juries because they have other protections. We can't.