Every year, the Oireachtas votes to continue emergency powers which have been in use since 1972. This involves passing a declaration that Ireland’s ordinary courts are inadequate to effectively administer justice, justifying the existence of the Special Criminal Court, a court that violates people’s right to a trial by jury, right to silence, and right to a fair trial.
The Special Criminal Court was first established under the Offences Against the State Act in 1939 to prevent the IRA from destabilising the new State. The current version of the court was introduced in 1972 as an emergency response to the Troubles and has been in continuous operation ever since. It was opposed at the time by human rights defenders, including Mary Robinson, a founder of ICCL, who were concerned that the court was becoming a permanent fixture of the Irish criminal justice system.
In 1976, in the midst of the Troubles, ICCL was founded “to promote human rights, to protect civil liberties, recover them where they have been removed, and enlarge them where they have been diminished”. Throughout our history, we have consistently highlighted the human rights infringements of the Special Criminal Court and called for it to be abolished.
What was once a temporary measure introduced by a State in turmoil has now been continuously in operation since 1972. Since then its use has expanded, from tackling a threat of terrorism to, since 2006, organised crime.
Ireland’s gradual expansion and abuse of emergency powers to deal with terrorism and ‘subversive crime’ have come in for international criticism for decades. The UN Human Rights Committee called for the overhaul of the Special Criminal Court in 1993, 2000, 2008, 2013 and 2014. In 2000, it recommended that “steps should be taken to end the jurisdiction of the Special Criminal Court”.
The Special Criminal Court operates without a jury. The right to trial by jury is a fundamental part of the right to a fair trial as guaranteed by Article 38.1 of the Constitution. Trial by jury is a cornerstone of the criminal justice system and it ensures that the innocence or guilt of a person is determined by twelve of their peers, randomly chosen people representing all parts of Irish society.
In 1972, the Government introduced a controversial provision which allowed for uncorroborated opinions of a Chief Superintendent of An Garda Síochána to be treated as fact in cases before the court. No evidence needs to be provided by the garda in support of their opinion. This practice continues to the current day.
The right to silence is a human right and a fundamental part of criminal trials. In the Special Criminal Court, if a person accused of a crime remains silent, this can be used as evidence supporting the case against them. By effectively denying the person their right to silence, the risk of miscarriage of justice is high, as well as forcing people to participate in the case against them. For more information on miscarriage of justice in the Special Criminal Court, see ICCL’s work on the case of the Sallins Men.
The main justification put forward by supporters of the Special Criminal Court for its annual renewal is the possibility of that a jury could be interfered with. This problem exists in countries all over the world, which instead of resorting to an emergency court have introduced measures to protect jurors. These include:
- Using anonymous juries,
- Screening juries from public view,
- Special protection of juries during trials, and
- Using video links to juries in different locations.
Terrorism and organised crime will always be a threat faced by Ireland, as they are in every country, it is not an acceptable justification for maintaining an emergency court that infringes on human rights. Unlike in 1939, Ireland is now a mature, stable democracy with an established court system capable of handling cases related to terrorism and organised crime.
Since 2000, two different Review Groups have been established by the government to examine the Offences Against the State Acts and the Special Criminal Court.
The report of the first Review Group was published in 2002. To date, none of its recommendations have been implemented.
In June 2023, a second Independent Review Group appointed by Minister for Justice, Helen McEntee, published a majority and minority report. One year on, and the Minister hasn’t substantially responded to the report, never mind implementing its recommendations.
The reports and their calls for reform cannot be left to gather dust as the previous report was.
ICCL continues to call for the Special Criminal Court to be abolished and the jury system to be reformed to protect jurors with proportionate measures ensuring human rights are not interfered with.
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