Article 38, Section 5 of the Irish Constitution provides for trial by jury for those accused of criminal charges. This article applies except for cases involving minor offences, military tribunals, and as described in Section 3, Subsection 1, “cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.” In line with this constitutional article and the Offences Against the State Act of 1939, the Irish government established the Special Criminal Court to handle “scheduled offences” as determined by the Attorney General. The Special Criminal Court should be abolished because it is a draconian juryless court, which is utilized by the Irish government in order to guarantee convictions and deny the chance of a fair trial.
The Offences Against the State Act of 1939, Section 38, formally established the Special Criminal Court against the backdrop of the beginning of World War Two and rising IRA activity. The Court has been in operation from 1939-1946, 1961-1962, and 1972 to the present. Each establishment of the Special Criminal Court was justified under “emergency” measures, most recently due to The Troubles in Northern Ireland. Such emergency measures were never intended to be used on such a permanent basis, as it negates the whole concept of emergency measures and ushers in a different standard of law. It is incredibly ironic that the Special Criminal Court was created by former IRA members in order to prosecute subsequent IRA members. Today, the Special Criminal Court is used primarily to prosecute organized crime, and is still used to prosecute Irish Republicans.
The Special Criminal Court regularly comes under fire from human rights groups for its apparent irregularities in a democratic society. In 1993, the United Nations Human Rights Conference determined that the Special Criminal Court was not justified under the present circumstances – 27 years after this UN report, the vast majority of republican and loyalist paramilitaries have ceased their campaigns, and yet the Irish government continues to exploit their emergency powers. Emergency powers are a bending of the rules to suit a particular situation, but when emergency powers go beyond a temporary measure, they create a de facto two-tiered system of law. The Irish Constitution has allowed these circumstances to arise, so comparatively, the United States Constitution provides a much more equitable justice system.
The United States Constitution provides for fair trials in Article Three, and in the Fifth and Sixth Amendments in the Bill of Rights. Article Three of the Constitution states, “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed…”.The Fifth Amendment states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…”, and the Sixth Amendment, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” These provisions for speedy and public trials by impartial juries, in the area where the crime was committed, were born out of the Americans’ experiences of British law during the Revolution, when British soldiers on trial for heinous crimes were whisked away to England, where they would almost certainly dismiss the charges. This led to the Americans demanding for the accused to be held accountable in their own area, and further, made sure that no person accused of serious crimes would have to stand before a judge alone, rather, they would stand before a judge and jury, with a legal representative.
The system Americans developed necessitates more honesty, as it is possible to bribe, persuade, or intimidate judges whose careers depend on how they rule cases, but it is much more difficult to bribe, persuade, or intimidate both judges and a panel of jurors. In the Offences Against the State Act of 1939, Article 39(2) specifies that Special Criminal Court judges are removable by the government at will. In line with Eccles v. Ireland, judges cannot be removed because the government disagrees with how they rule in cases, but in reality, the fact that a judge’s job security depends on their government’s satisfaction lingers over them. If the Special Criminal Court is to remain, lifetime appointments, as in American federal courts, or fixed tenures would allow for more freedom of judgement without fear of reprisal.
When reading the judicial section of the American Constitution alongside the judicial section of the Irish Constitution, the American Constitution’s fundamentals are shown to be much more decisive in terms of not permitting exceptions to what was described. The only exception the American Constitution has to their rules is their stipulations for military cases, which the Irish Constitution also stipulates. However, the Irish Constitution goes the extra step in leaving the door open for emergency provisions. With the Irish Constitution being passed in 1937 and the Offences Against the State Act being passed in 1939, one might speculate if the framers of the Irish Constitution anticipated or even collaborated to create the opportunity for such matters in the Constitution, and then followed up with the establishment of the emergency courts just a short time later.
In addition to the lack of a jury, another abnormality the Special Criminal Court permits is a weaker standard of evidence while convicting people of felonies. The Irish Council for Civil Liberties condemned this double standard, and noted that Special Criminal Court judges are allowed to “draw ‘inferences’ or draw conclusions from indications of fact rather than from actual facts…”. In the case of DPP v. McKevitt, one of the documents disclosed in discovery showed that Gardai Chief Superintendent Jennings suggested that a report, which made him look bad, should be disposed of. The report was not disposed of, but the fact that the police and prosecution can withhold any and all evidence from the defense under the guise of “security” and “protection of confidential information” makes the due process look dubious at best. Another aspect of this abnormal standard of evidence relates to membership of unlawful organisations. Under Section 3(2) Offences Against the State (Amendment) Act 1972, a Gardai Chief Superintendent’s opinion – just their opinion – that a person is a member of an unlawful organization is considered admissible as evidence. Amnesty International condemned the fact that an opinion, which could be coming from information given by a paid informant, or a subordinate, is admissible. This runs counter to the right of a defendant to question witnesses enshrined in the European Convention on Human Rights, Article 6.D.
In the Criminal Justice (Amendment) Act 2009, Section 8 copper fastened the Special Criminal Court, declaring that “the ordinary courts are inadequate to secure the effective ‘administration of justice and the preservation of public peace and order’ in relation to a number of offences.” The Irish government’s claim that these special courts are needed to prevent potential juror intimidation belies the fact that measures such as added security, and/or sequestered juries could adequately address these problems. From 2001 to 2018 in the United States, federal civilian courts convicted almost 700 people on terrorism charges, including the 1993 WTC bomber and a nephew of Osama bin Laden, with zero attacks in retribution in the prosecuting districts. Guantanamo Bay may come to mind here, but it is important to contrast Guantanamo, which is openly a military detention center, as opposed to a civilian court of law, which the Special Criminal Court claims to be. As of this writing Guantanamo Bay holds 39 detainees.
The two-tiered standard of law that the Special Criminal Court has manifested brings very real consequences. With an 89% conviction rate, the Special Criminal Court exists as an almost surefire way to send the accused to prison, which, no matter your feelings on how terrorism and gangland cases should be tried, should bring into question this courts credibility. The Irish Constitution has been in effect for 83 years, and of those years, in 56 of them we have witnessed the government claim that we need “temporary” emergency measures to combat scheduled offences. This is a travesty and flies in the face of what is considered a democratic society with an independent judiciary.
Up until last week, Sinn Fein was the only major Irish political party officially opposed to the Special Criminal Court, though in the past few years their voting record in the Dail transitioned from nay votes to abstention when the time came annually to renew the emergency powers. During The Troubles, when the party was publicly known as the political wing of the Provisional IRA, many party members were imprisoned by the juryless court. Some people were arrested just for possession of materials (i.e. a poster) that showed support for the republican movement. This move by Sinn Fein is what political scientists would call a “move to the middle.” In the past few elections Sinn Fein’s growth as a party has been attributed to their becoming a more middle-of-the-road party, free of any paramilitary affiliation. Mary Lou McDonald, the successor of Gerry Adams, is the figurehead poised to bring the once-militant party into the mainstream. A reporter for The Irish Examiner, Aoife Grace Moore, described the change in Sinn Fein policy, “It used to be the case in Ireland that you waited until you entered government before you gave up your principles, but Sinn Fein does claim to be the party of change.” It is regrettable that Sinn Fein is changing their longstanding policies to appease a new demographic, and it simultaneously alienates their longtime supporters. McDonald has also recently said that in a united Ireland the 12th of July could be a public holiday, and that she was open to a discussion on whether a united Ireland should join the Commonwealth.
The Sinn Fein justification for their change in policy is that “special” courts are needed where “safety” is a concern, and pointed to the prosecution of gangsters as an example of when the juryless courts would be needed. The fact of the matter is that even if members of Sinn Fein weren’t the ones targeted by this juryless court for the past 50 years, this is still a gross infringement of constitutional rights. To allow any citizen to be tried in a juryless court is to be complicit in violating their human rights, and denies them the opportunity to be “innocent until proven guilty.” Tyrants often use the guise of safety to infringe on human rights, and now Sinn Fein, longtime supporters of human rights, have sacrificed their principles under the guise of safety so they can gain support from the ruling class.
“Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” – Benjamin Franklin.
By James McGlashin.
Works Cited
Amnesty International. “REPUBLIC OF IRELAND: Submission to the Committee to Review the Offences Against the State Acts and Other Matters” Amnesty International. (October 1999).
Colm Scott Byrne. “Review of the Special Criminal Court.” (23 June 2020) Irish Council for Civil Liberties.
Criminal Justice (Amendment) Act 2009.
D.P.P. v. McKevitt. [2005] IECCA 139
Eccles v. Ireland [1985] I.R. 545
European Convention on Human Rights 1953.
The Irish Constitution 1937.
“Myth v. Fact: Trying Terror Suspects in Federal Courts” Human Rights First. February 2018.
Offences Against the State (Amendment) Act 1972.
Owen Conlon. “What is the Special Criminal Court, who has it jailed and what is Sinn Fein’s stance on it?” The Sun. (5 Feb 2020).
United States Constitution 1787.
