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Debating the role of the Special Criminal Court

April 15, 2010 6 comments

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.

Capacity to Undertake Jury Service

March 31, 2010 2 comments

The Law Reform Commission’s Consultation Paper on Jury Service launched by the DPP earlier this week recommends removal of the discriminatory provisions in the Juries Act 1976 (as amended) which exclude persons with disabilities from jury service.  The DPP was supportive of the recommendations of the Law Reform Commission in this regard.  The general outline of the Consultation Paper and provisional recommendations are set out in this earlier HRiL blog post. Read more…

Kenny on Carson & Ors. v The United Kingdom

March 29, 2010 1 comment

We are delighted to welcome this guest contribution from Jo Kenny, Legal Officer at the Public Interest Law Alliance (PILA), a project of the Free Legal Advice Centres (FLAC). You can learn more about Jo on our guest contributors page.

On 16th March 2010 the Grand Chamber of the European Court of Human Rights delivered its judgment in Carson & Ors. –v- the United Kingdom (Application No.42184/05). This is the end of Mrs Carson’s long road in challenging UK state pension policy.

Mrs Carson emigrated to South Africa and subsequently retired there. She had previously worked in the UK and made full contributions to the UK state pension. Indeed she continued to make such contributions on leaving. However when her state pension came into payment, it was not index-linked – it was frozen and would not be uprated to reflect the effect of inflation. The UK does not index-link state pensions paid in South Africa. The question for the Grand Chamber was whether this policy unlawfully discriminated against Mrs Carson on the basis of her place of residence, in breach of Article 14 in conjunction with Article 1 Protocol 1. Read more…

Modernising Jury Selection: Law Reform Commission’s Consultation Paper on Jury Selection

March 29, 2010 2 comments

 

The Director of Public Prosecutions will launch the Law Reform Commission’s Consultation Paper on Jury Service this evening.   The Consultation Paper will be available here this afternoon.  The Commission is examining jury service as part of its Third Programme of Law Reform 2008-2014.  It received a large number of submissions as part of its consultation on its work programme in 2007 calling for a review and modernisation of the law regulating juries.   This is the first substantive review of jury service in Ireland since the introduction of the Juries Act 1976 (which was based largely on recommendations contained in Reports of the Committee on Court Practice and Procedure, 1965)

Read more…

“Romeo and Juliet”: Gender discrimination law challenge rejected

March 26, 2010 2 comments

The High Court has today rejected a challenge to the Criminal Law (Sexual Offences) Act, 2006 which was based on a claim of gender discrimination. The case involved a young man, now aged 18, who had sexual intercourse with a girl of 14 when he himself was 15.

The legislation in question provides for the offences of “defilement of a child under 15 years of age” (s. 2) and “defilement of a child under 17 years of age” (s. 3). Under both of these provisions it is an offence to engage in a sexual act with a child under the relevant age. However, s. 5 of the 2006 Act states that

A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.

The claim before  the High Court was that the 2006 Act involved old-fashioned gender discrimination, which had no legitimate justification. Read more…

BNP Constitution is Unlawful

March 12, 2010 Leave a comment

The British Nationalist Party’s new rules on admission to the party were held to be unlawful in a case before Judge Collins in the Central London County Court today.

The BNP voted on 14 Feburary 2010 to amend the 11th ‘edition’ of their constitution to permit ‘non-white’ members of the public to join the party. However, all prospective members would be required to adhere to the BNP manifesto. The new edition of the constitution has not been made publicly available but was sent to the Equality and Human Rights Commission (EHRC) for consideration. Today’s court judgment arises from an action brought by the EHRC on foot of its analysis of the new document. The BNP webpage for the 11th edition contains the following proviso:

This Constitution, the 11th edition, ceased to operate on 14th February 2010, when an Extraordinary General Meeting of the BNP, following on from an in principle decision taken by the Voting Members at last autumn’s Annual Conference, voted by an overwhelming majority to adopt a new version 12.1. The new Constitution, while building on the now defunct one, is massively expanded and far fit for purpose. It will be published shortly after the court hearing with the Equalities Commission on March 9th.

The EHRC action was taken on the basis of section 1B of the Race Relations Act 1976 (as amended). The judgment comes as the Government has announced that there will be no ban on members of the BNP serving as teachers in schools.

EU Data Retention: Death of a Directive?

March 8, 2010 2 comments

The Data Retention Directive was adopted in the aftermath of the public transport attacks in London in July 2005. It requires telecommunications service providers to retain user traffic data for all telecommunications users for a period of six months to two years. The Directive has been highly criticised for requiring generalised data surveillance within the EU and thus infringing privacy of EU citizens.

Since its adoption, the Directive has been challenged in several Member States. The German Administrative Court of Wiesbaden, Supreme Administrative Court of Bulgaria and Romanian Constitutional Court had all found some or all of the measure to be unlawful. Furthermore, Sweden has been on the receiving end of an enforcement action by the Commission for its failure to implement the measure. The Swedish Government continues to equivocate as the matter is likely to be contentious in the upcoming General Election there. However, as widely reported (Irish TimesFinancial Times), the German Federal Constitutional Court has now dealt what may be the death blow to the measure.

Read more…

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