We need to know more about why Michael McDowell is establishing a second Special Criminal Court, writes Donncha O'Connell
In its most recent concluding observations on Ireland's human rights record under the International Covenant on Civil and Political Rights (ICCPR), published in 2000, the UN Human Rights Committee called on the Government to bring the jurisdiction of the non-jury Special Criminal Court to an end.
This request was made despite the trenchant defence before the committee in Geneva of the need for such a court by the then Attorney-General, Michael McDowell.
Since then, in a case taken under the Optional Protocol to the covenant, the Human Rights Committee has condemned what it sees as an effective inability to judicially review a Director of Public Prosecutions decision to certify a case as suitable for trial before the Special Criminal Court. But subsequent attempts to give effect to that decision before the Irish courts have been unsuccessful.
It should, therefore, come as something of a surprise that the Minister for Justice, Equality and Law Reform, Mr McDowell, announced the establishment of a second Special Criminal Court towards the end of December.
In making the announcement, he said the avoidance of delay in bringing to justice those "intent on challenging the legitimacy and authority of the State" was the primary motivation behind the establishment of a second special court.
The statement indicated that the continued operation of the special courts would be considered (probably by mid-2005) once the problem of delays had been addressed and, somewhat ominously, that the views of the majority of the Hederman committee that reviewed the Offences Against the State Acts in 2002 would be taken into account in any such consideration.
The existence and operation of the Special Criminal Court was a cause of intense controversy in the 1970s and 1980s. This was, perhaps, a function of the politics of the time as much as an indicator of more rigorous investigative journalism.
With the decline in paramilitary violence resulting from the ceasefires of the mid-1990s the purpose of the special court shifted from dealing almost exclusively with paramilitary or terrorist crime to dealing also with cases of "organised crime" for which the ordinary courts with juries were deemed to be "inadequate to secure the effective administration of justice and the preservation of public peace and order".
The decision to shift the focus of the court's work in this way, while permitted by statute passed in 1939, was effected by an exercise of prosecutorial discretion that was and still is barely reviewable. In other words, because the DPP chose to prosecute certain alleged offenders before the Special Criminal Court the original purpose of that court was effectively changed.
The political context in which such "normalisation" took place was pulling in exactly the opposite direction. With the signing of the Good Friday/Belfast Agreement in 1998 the expectation that then existed was for the abolition of the Special Criminal Court or at least a substantial review of its procedures.
The Omagh atrocity of the same year put paid to that and led to the introduction of even more draconian powers than those provided for originally under the Offences Against the State Act 1939.
The decision to establish a second panel of the Special Criminal Court may well indicate a worrying further normalisation of that court. If the need to expedite trials is the real reason for this measure why not just appoint more judges to the ordinary courts (from which this second panel will, in any event, be drawn) and try those subject to the apparent backlog - about which details are scant - in the ordinary courts?
On a purely utilitarian assessment, it makes no sense effectively to double the presence of the special court in a time of relative peace when one considers that the State managed to survive 30 years of politically motivated violence with just one special court.
There may, however, be a more benign rationale behind the establishment of a second panel. The Government might, in fact, be considering the possibility of abolishing the Special Criminal Court sometime in 2005. To do this it would be necessary to bring all cases currently before that court to a conclusion. Of its nature, this is a decision that cannot be "pre-announced" while trials are still pending before the court.
If Mr McDowell's legacy is to restore uncompromised jury trial by terminating the anomaly of parallel criminal justice before non-jury courts in conformity with the requirements of international law that would be to his credit historically. If, however, he institutionalises the Special Criminal Court as a temporary whole-time feature of the criminal justice system his professed commitment to jury trial will look threadbare.
The arguments for and against the special court cannot be measured solely by reference to international human rights norms. Jury trial is not a sacrosanct feature of international human rights law and, since September 11th, there are worrying trends in human rights thinking that allow for the jettisoning of traditional due process rights in order to protect freedoms of a somewhat illusory brand. Such thinking was reflected in some of the majority views in the Hederman Report of 2002.
The real issue is one of principle and consistency. If, in a liberal democracy, we choose trial by jury as the cornerstone of the criminal justice system, everything must be done to protect that choice.
Jury intimidation ought not to be dismissed as a figment of the imagination of conviction-obsessed prosecutors. It is incumbent on those who profess a belief in jury trials to put in place effective mechanisms for the protection of juries short of compromising the ideal of jury trial by recourse to non-jury criminal courts.
Donncha O'Connell is a lecturer in law at NUI, Galway where he teaches constitutional law and European human rights