Executive Director of the Irish Council for Civil Liberties (ICCL) Liam Herrick has stated that the Special Criminal Court weakens the right to a fair trial and that such non-jury, emergency criminal courts are a breach of citizens' fundamental rights.
This comes as Sinn Féin adopted a new, supportive, stance towards non-jury courts at their ard fheis whilst a Government-appointed expert review group is still currently reviewing the need for such courts. This appears somewhat premature from the opposition party states Mr Herrick.
One of the most often cited reasons that have been offered in favour of non-jury courts is the potential for jury intimidation in these cases. Yet, jury intimidation is prevalent across all of our courts, from the Special Criminal Courts to the Central Criminal and Circuit Courts. Plus, the fact that a Court is being held ex-jury does not mean that any potential witnesses that would be called are protected from intimidation, or worse. If you can have witnesses, the very people who can make or break a case, in a Court then you should be able to have a jury. The fact that the Special Criminal Court hears very few cases reduces the credibility of the witness intimidation argument.
Mr Herrick argues that jury intimidation is something that could be dealt with through legislation and could cover all of our courts. He also points out that it is repugnant to the Constitutional right to a fair trial, under Article 38.1, that the opinion of a police officer can be enough to convict a person of membership of an illegal organisation; something the United Nations has called Ireland out on before.
He further observes that whilst in most cases you will hear the term gangland, or subversives, or bad people, the fact of the matter is that anybody can find themselves being tried without a jury. There are no limits or criteria on who may be sent for trial at the Special Criminal Court. It is entirely at the discretion of the DPP and the prosecutor does not have to give any reasons for it, making it extremely difficult to challenge.
Herrick notes that there have been cases tried in the ordinary courts that involved paramilitary organisations and there have been cases held in the Special Criminal Court that involved a missed tax return. It's a farce and, given that we are now 20 years on from the cessation of conflict in the North of Ireland, such non-jury courts, established for the purpose of dealing with the actors in that conflict, must surely be disestablished now.
"Whereas small dissident and organised crime groups clearly pose particular challenges to the criminal justice system, such challenges can be overcome within the ordinary courts without breaching fundamental principles of fairness. Serious terrorist offences are not unique to Ireland; if other jurisdictions, including the United States, trust their ordinary courts to try these offences why don’t we?," he said.
"Sinn Féin’s decision to end its opposition to non-jury trials offers the opportunity to depoliticise our discussions around the Court and view its practices through a human rights lens. The protection of human rights cannot be selectively applied; the denial of fair trial protections for any person is a failure of our criminal justice system as a whole.
The Special Criminal Court should be abolished and the right to a fair trial restored for all," he concluded.
Liam Herrick is executive director of the Irish Council for Civil Liberties. The source article for this piece first appeared in the Irish Examiner.