Guest Contribution: Davis on Non-Jury Trial

We are delighted to welcome this guest contribution from Dr Fergal Davis, a lecturer in Lancaster University School of Law. You can find out more about Fergal on the Guest Contributor page.

The Special Criminal Court – is this the lamp which shows that freedom lives?

(With apologies to Lord Devlin)

On Tuesday of this week a trial will begin in the Royal Courts of Justice, London.  This particular trial is attracting some notice because ‘for the first time in about 400 years, a trial on very serious criminal charges, for which the accused, if found guilty, will spend years in prison, is to be held without a jury’. (The Guardian). Of course many trials in the UK are held with juries on a daily basis before magistrates and Crown Court Judges but the UK Criminal Justice Act 2003 allows for serious cases to be heard without a jury where the nature of the trial is too complex for a jury to comprehend or where ‘there is evidence of a real and present danger that jury tampering would take place’. I have argued elsewhere (Guardian Comment is Free column) that circumstances exist whereby jury trial is incapable of securing a fair trial and that in those circumstances the right to a fair trial should supersede the right to trial by jury.  It is my, somewhat contentious, belief that the Irish experience with the Special Criminal Court (with some suitable amendments) ought to be held up as a positive model for securing the right to a fair trial.

The Special Criminal Court has two key strengths.  Firstly, under s.41(4) of the Offences Against the State Act, 1939 (OAS, 1939) the ordinary rules of evidence apply – the same rules which are applicable in the Central Criminal Court. This is significant because it is the rules of evidence which guarantee a fair trial.

The guarantee that ‘as far as is practicable’ the same rules of evidence will apply is important and the UK Criminal justice Act, 2003 secures this by creating a non-jury court which is simply a branch of the ordinary Crown Court – it is the Crown Court sitting without a jury.  This is based on the ‘Diplock Court’ model which, in accordance with s.2(1) of the Northern Ireland (Emergency Provisions) Act 1973, created a division of the Belfast Crown Court sitting sans jury.

However, the Special Criminal Court model is superior specifically because it is not simply a branch of an existing ‘ordinary court’.  S.35(2) OAS, 1939 determines that the court hears cases where ‘the ordinary courts are inadequate’. This mirrors Article 38.3.1˚ of the Constitution.

By allowing for a ‘special’ trial procedure the Irish Constitution and its legislature acknowledged that in certain circumstances jury trial does not equate to a fair trial; by creating a ‘special’ court they also acknowledged that this should stand apart from the usual criminal justice process – that the removal of the jury while acceptable is a departure from the norm.  Unfortunately, Irish parliamentary scrutiny of the necessity to maintain the Special Criminal Court has been lax – the court has existed permanently since 1972 and there has only been one formal review in 2002.  In the UK context the Joint Committee on Human Rights might be better placed to conduct ongoing and thorough scrutiny.

The Special Criminal Court is not without flaws but as a model of non-jury trial but it is superior to the British legislation.  In seeking to maintain as ‘normal’ a process as possible the UK model fails to adequately address the ‘special’ nature of these non-jury trials and runs a greater risk of normalization.  Upon In 1972 a source close to the Belfast Brigade of the Provisional IRA declared that the proposed Northern Irish legislation was the same as that in the Republic: ‘the only difference … is that the one in Dublin is written in Irish’ (Aitken, “New laws will tighten net on terrorists”, The Guardian, 21 December 1972).  Such a statement makes good copy but there is a significant difference between an extraordinary regime operating within and without the normal criminal process.