February 16, 2011
By Staff Reporter
By Andrew Bushe
DUBLIN – The continuation of the three-judge no-jury Special Criminal Court has been backed by the majority of members of a special government review group whose report was published by Justice Minister Michael McDowell.
However a minority of the group, headed by chairman Judge Anthony Hederman, say trial by jury is the cornerstone of the criminal law system and they want the court and the internment powers in the Offences Against
the State Act (OASA) scrapped.
In their dissenting view the three members of the 13-strong group say they consider the arguments in support of the very existence of the court do not stand up to scrutiny, “in the light of constitutional values and human rights norms”.
They said that all that had been indicated was a belief, “based on an assessment of the undoubtedly violent and intimidatory disposition of certain criminals, that these criminals might successfully intimidate juries if they or their associates were tried by jury.”
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“It is worth noting that no other common law jurisdiction has come to the conclusion that the risk of jury intimidation warrants non-jury trial in a special criminal court.
“Whilst Ireland unfortunately has experienced the growth of organized crime in recent years, it is not plausible to suggest that, in contrast to other common law jurisdictions such as the United States of America, England and Australia, Irish social conditions are so perilous as to warrant dispensing with jury trial.”
Following the signing of the 1998 Good Friday peace agreement, the Government agreed to a wide-ranging review of the OASA laws from 1939-98. The review body examined the legislation “with a view to both reform and dispensing with those elements no longer required as circumstances permit”.
A number of the measures in the legislation are opposed by minority and dissenting members of the group in the lengthy report.
McDowell said the report will help focus the debate on the laws before he brings proposals to the cabinet.
“The fact that there are different views expressed about various very substantial issues does not diminish the value of the report, rather it enhances it.”
McDowell said there were important issues involved concerning “the balance to be struck between national and international security on the one hand and the civil liberties and individual rights on the other”.
The Minister said jury courts were fundamental to the values of the constitution but the safety of the people was supreme. At the moment, there
were people with an evil agenda who wanted to unravel the peace process.
The report recommends the Oireachtas should regularly review the future of the special court.
In addition to being used to deal with paramilitaries, in recent years the court has also been hearing cases involving leading figures in organized criminal gangs where there might be a risk of intimidation of juries.
The court grew out of a system of military courts set up in 1931 to deal with subversives and has been subjected to repeated challenges both in Irish and international courts.
It was established under the 1939 OASA and has sat during IRA campaigns in 1939-46, 1961-61 and from May 1972 to date.
The legislation was toughened following the 1998 Omagh bombing with Garda powers to detain a suspect without charge increased from 48 to 72 hours and new offences brought.
In addition to threats to juries, the court was established because judges could be relied on not to be swayed by political views from
convicting where a politically inspired offence was involved.
The workload of the court has declined since its busiest year in 1973, when it dealt with 286 trials.