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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.