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.

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.