Home > Criminal Justice, New Judgments and Cases to Watch > Debating the role of the Special Criminal Court

Debating the role of the Special Criminal Court

The Association of Garda Superintendents held their annual conference yesterday and the issue of the use of the Special Criminal Court was discussed. Supt Jim Smith, President of the Association, called for greater use of the Special Criminal Court in gangland cases for fear of jury intimidation. He referred in particular to a recent incident where lists with the names and addresses of jury members were found during a search on the home of an associate of a leading gangland criminal. In this special post Vicky Conway and Fergal Davis explore the pros and cons of this suggestion.

Vicky Conway writes:
The case referred to at the AGS conference yesterday and the finding of a list of jurors’ names is indeed a very worrying development. On the back of this the Association expressed the view that the [non-jury] Special Criminal Court could be used more and thereby negate the danger to jurors.

By way of background the Criminal Justice (Amendment) Act 2009 scheduled a number of organised crime offences, meaning that they must be tried before the Special Criminal Court. The DPP retains the power to direct any other offence to the Special Criminal if he feels the ordinary courts ‘are unable to secure the effective administration of justice.’

The use of the Special Criminal Court is controversial in Ireland, both because of the denial of the right to trial by jury and because it has now existed in Ireland on an emergency basis, without regulating legislation, for close to 40 years. International bodies such as the UN have expressed concern at its continued existence given the Peace Process in Northern Ireland. It must of course be conceeded that when real threats are posed to jurors questions must be asked about the operation of the jury system, but that should not automatically mean that in non-emergency situations we deny citizens of this State their rights.

In the context of the facts as recounted yesterday (re a list of names and addresses being found in a criminal’s home) the appeal of the Special Criminal Court is great. However, this author would urge caution before coming to that conclusion. An investigation into how those lists came into that person’s hands must be conducted swiftly. The regulations around who has access to those lists then need to be reconsidered. In response to AGS’s statement yesterday the Minister for Justice stated that at present defence lawyers have access to these lists as they are entitled to know whether neighbours or friends are on the panel. This could clearly be tightened up and such checks could be performed independently. This is perhaps symptomatic of the general situation, whereby the Special Criminal Court is resorted to when other action could be taken to protect jurors.

Fergal Davis writes:
The Association of Garda Superintendents has advocated broader use of the Special Criminal Court. To the best of my knowledge they made no mention of my previous post on the subject but we live in hope.

The use of the Special Criminal Court in “gangland” cases is not as clear cut as might at first be assumed. A kneejerk rejection of non-jury trial would be foolish. The Special Criminal Court is constitutionally and legislatively anticipated by Article 38.3.1˚ of Bunreacht na hÉireann and S.35(2) of the Offences Against the State Act 1939 which determines that the court may hear cases where ‘the ordinary courts are inadequate’. Where a substantial risk of jury intimidation exists the ordinary courts are inadequate. If a criminal organisation, whether that be a terrorist organisation or a criminal gang, can obtain a list of names and addresses of juror members this gives rise to concerns about the protection afforded by the State to those jurors. Such a situation results in three problems:

  1. The State owes a duty of care to jurors whom they have placed in a position of danger. If the State cannot guarantee their security it should not ask individual citizens to fulfill this role.
  2. As Lord Diplock has observed, ‘a frightened juror is a bad juror even though his own safety and that of his family may not actually be at risk’. (INQUIRY INTO LEGISLATION AGAINST TERRORISM, 1996, Cm. 3420) If jurors believe that their details might not be secure this perception could understandably alarm juries and undermine their ability to function effectively.
  3. The Special Criminal Court has been used in non-subversive cases since 1942. The Court was used to try Black market offences during ‘the Emergency’ when it was believed by the then Attorney General (and future President) Cearbhall Ó’Dálaigh that while swift and severe punishment was required in cases of rationing offences juries would be unwilling to convict (Fergal Davis (2007) The history & development of the Special Criminal Court, pp 96-99).

So, there is precedent and possible justification for utilising this ‘extraordinary’ court. Furthermore, although the use of juries is to be valued because it

…always retains a republican character in that it entrusts the actual control of society into the hands of the ruled, or some of them, rather than into those of the rulers… (Alexis de Tocqueville, Democracy in America, trans. GE Bevan (2003) pp 317-18)

This does not, in and of itself justify the use of juries where such use would entrust the control of society to those criminals who can exercise some control over the jury.

On the other hand, there is no need to throw the baby out with the bath water. The Special Criminal Courts may be justified but this does not mean we ought to employ it at the drop of a hat. The jury – as an institution – has much to commend it. Juries add legitimacy to the decisions of courts precisely because they involve the governed in the process of governing. If they can function they ought to function and so, before resorting to the Special Criminal Court we should first consider other means through which we could strengthen the jury system – being more selective in the information we release regarding jury panels might be a less intrusive means of resolving this problem. But in the final analysis if trial by jury is unable to deliver a fair trial then we should be willing to set it aside and the Special Criminal Court provides a ready alternative.

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  1. April 16, 2010 at 4:24 am

    Thanks both of you for your views on this. I think in the end of the day there is more that unites the two perspectives than perhaps divides them in this particular context (although maybe not on the SCC itself in more general terms). I don’t know a huge amount about solicitors’ disciplinary regulations, but the Law Society of Ireland is generally a very effective body from the perspective of self-regulation and the imposition of sanctions for breaches of ethics codes etc. I wonder whether, rather than go for the SCC, we might instead look to the far less extreme and potentially equally effective possibility of ensuring that solicitors are precluded from handing over the list of potential jurors to clients. This doesn’t mean they can’t go through the list with the client just to see whether any names ring a bell, but it might be a way of finding a balance between the accused’s capacity to make objections for cause to potential jurors and the duty of the state to protect jurors from intimidation and, as a consequence, ensure the integrity of trial by jury where it is taking place?

  2. Colin King
    April 16, 2010 at 8:48 am

    Out of interest, is there any evidence as to how widespread juror intimidation is? Apart from some anecdotal observations last year about it being rampant, what do we know about the extent of intimidation in Ireland?

    • April 16, 2010 at 9:04 am

      The evidence is entirely anecdotal and that used prior to the 2009 Act was widely discounted afterward.

      Such evidence as there is appears to amount to the observations of Paul Williams in court; for example that the presence of a particular individual in the court room may constitute intimidation of witnesses and jurors due to that individual’s notoriety for violence.

      Incidentally, there was a remarkably one-sided discussion about these issues on a recent TV3 Midweek show (might be available on their website).

  3. April 16, 2010 at 8:59 am

    The juror list incident was quite shocking and may warrant, as Fiona suggests, a Law Society investigation. But there has been quite a deal of scaremongering on the issue of jury intimidation, particularly in the run up to the Criminal Justice (Amendment) Act 2009. One such allegation was the inappropriate passing of information by a solicitor to accused persons. After the Act was passed, a DPP investigation found no grounds for a prosecution and a Law Society similarly found that the allegation was without basis.

    The gang dossiers appear to have gone nowhere, the Gardaí did not swoop after the Act was commenced. Indeed, since that Act and the surveillance legislation were passed, little has happened.

    Around the time of the enactment of the 2009 Act there was an opinion piece in one of the papers (though I can’t remember which one) which made the very valid point that the SCC was set up on an emergency basis to deal with specific organisations who rejected and challenged the existence of the Irish State.

    Do these gangs pose a greater danger to the State? If the SCC is relied on in this instance, rather than addressing problems with criminal investigation and prosecution by ordinary means, will we not have to resort to the SCC on an ever-increasing basis?

  4. Fergal Davis
    April 16, 2010 at 9:13 am

    The issue of jury intimidation is always tricky. Our inability to interview jurors and conduct academic research into the workings of the jury mean that we often rely on anecdotal evidence – and the odd spectacular news story.

    In the 1930’s, prior to the introduction of Article 2A, the view that republican trials were resulting in widespread jury intimidation was based on a general perception that the IRA was an active menace – public drilling demonstrating strength, a few cases where juries failed to convict in the face of overwhelming evidence, and a boycott on the sale of British goods being enforced by the IRA led to a perception of lawlessness – one example being an armed raid on a travelling cinema where the raiders (members of the IRA) attacked the cinema and stole cinema reels for the film Gallipoli (presumably for glorifying the British army).

    So the history of non-jury trial in Ireland is a constant tale of non-jury trial being introduced without any quantitative or genuine qualitative evidence to support the contention that jury intimidation exists. This is why effective judicial review of the DPP’s decision to certify that the ordinary courts are inadequate in any particular case is required. Up to this point the courts have taken a rather restrictive view of their role in judicial review of the DPP’s certificate.

  5. Liz Campbell
    April 16, 2010 at 9:20 am

    There is a real absence of empirical data on juror intimdation in Ireland (and more broadly on witness intimidation). By their nature these threats won’t necessarily come to the attention of the authorities but it’s remarkable that policies are being made and applied on the basis of anecdote and supposition. Indeed, the Committee to Review the Offences Against The State Acts (http://www.inis.gov.ie/en/JELR/hederman%20report.pdf/Files/hederman%20report.pdf) claimed that juries are “distinctly uncomfortable” in cases involving organised crime and that attempts have been made to tamper with juries in high-profile criminal trials in the ordinary courts, without citing any (even redacted) evidence/research. In a slightly different context, when previous inconsistent statements were proposed, an anecdotal statement of the Limerick State Prosecutor was relied upon, namely that one in ten criminal cases could not be successfully prosecuted in Limerick in 2004 because of intimidation.

    The use of the SCC against gangs is just a further example of the State neatly using legislation introduced for one grave problem (which constituted a emergency) in another context, which although serious, doesn’t threaten the State as such. Until recently, no other common law jurisdiction had come to the conclusion that the risk of jury intimidation warrants non-jury trials – without the scheme provided for in the Offences Against The State Act 1939, it is questionable whether legislation would have been enacted to dispense with jury trials for those suspected of “organised” criminality. However, given that the Criminal Justice Act 2003 permits non-jury trials to be held in England and Wales where there is a “real and present danger” that jury tampering will take place and where it is in the interests of justice, Ireland may no longer remain an “outlier” in this respect.

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