WHILE the Special Criminal Court enjoys an unpopular reputation in some quarters, the court is - in fact, though not always in the terms of its governing legislation - not very different from other criminal courts. Thus, while the relevant legislation says that its members may include Army officers, since 1972, when it was re established, only judges or former judges have sat on it.
During this period it has generally been composed of a High Court judge, a Circuit Court judge and a District Court judge. Last week, it was disclosed that, although the court is required to sit with at least three judges, one of the judges had been removed from it; though without being informed of this. Accordingly, he had continued to sit and had been involved in court sittings at which the court had charged - and also refused to grant bail to - certain prisoners.
In considering the legal consequences which may flow from the irregularity of the court being improperly constituted, it seems appropriate to consider two queries. The first of these is: can the prisoners secure compensation for false imprisonment during the period for which they were detained without having their application for bail considered by a properly constituted court?
Secondly, is there anything to make their recharging last week before a proper court, unlawful?
As regards the second question, there seems, in principle, no reason why the prisoners should not be recharged and tried in the usual way. It is, of course, well established that a prisoner cannot be tried for any offence on which he or she has already been convicted or acquitted. But nothing of that sort arises here.
The prisoners have only been charged, not tried, and, even then, not charged by a court; but by a body of persons whom they claim, correctly, was not a court.
However, there are two incidental factors on which the prisoners will probably seek to rely. The first of these concerns the case of Trimbole, the nearest we have to a useful precedent as to the impact of the likely false imprisonment upon the lawfulness of the recharges.
Mr Trimbole's extradition from Ireland to Australia was sought in order to face charges which it was alleged arose out of his involvement with the mafia in Australia. However, at the time of his arrest there was no extradition treaty between Australia and Ireland, and such a treaty was a precondition of the operation of the extradition legislation.
Accordingly, he was arrested under the Offences Against the State Act. It was held that his detention under this legislation was an abuse of power in that there had never been any genuine suspicion that he had committed a firearms offence, which was given as the excuse for arresting him under this legislation. But, by the time of his release, the necessary treaty had been made with Australia and he was immediately rearrested under the extradition legislation.
This subsequent arrest was held invalid on the ground that it was tainted by the invalidity of the earlier detention, since there had been no sufficient period of freedom to break the connection between the two.
Mr Trimbole was quoted as saying - understandably - that Irish justice was the best in the world. However, the relevant question here is whether Trimbole could be relied upon by the prisoners affected by the recent imbroglio. If it were followed, it would presumably lead to the conclusion that the prisoners should be allowed at least to get completely free of Garda sight or surveillance before any attempts to recapture them were initiated. In some cases, undoubtedly, this would mean that they would never be recaptured.
However, I think that Trimbole could be distinguished on two bases. The main ground is that what was involved in Trimbole was - in the words of Chief Justice Finlay - "a conscious and deliberate violation of constitutional rights".
There had indeed been a cynical attempt to abuse the power granted by the Offences Against the State Act. By contrast, in the present episode there was no more cynicism than in the action of a headless chicken.
Secondly, Irish law has developed a lot of unmeritorious technicalities in connection with extradition - especially extradition to Northern Ireland, in respect of which rather special considerations are thought to apply. A court might well not be prepared to import these into ordinary criminal law.
The other question concerns the possibility of an action against the State for compensation, in view of the fact that the prisoners were falsely imprisoned for up to three months. On this it seems that, up to the point when last week they were brought before a properly constituted court, their liberty was denied them on no legal authority; for the conditions necessary to validate their detention were not satisfied since, in August, the court was not properly constituted. Thus, the prisoners could probably recover compensation.
Equally, it seems likely that the compensation would not be very large or "aggravated", as the law puts it, for two reasons. First, as mentioned already, the error was far from deliberate. Secondly, it must be said that the actual defect in procedure was of a rather technical nature.
For here one must consider the fundamental query which might be raised by an intelligent child who knows no better: "Why did it matter that Judge Lynch, rather than Judge Haugh, decided the matter? After all, he had been sitting on the court for a good while before August, and no one complained of his decisions. He was not removed for misconduct or old age or ill health, but left at his own request."
The only available answer to this sort of infuriating question - that it did not actually matter, but it might have done in a different context - seems rather unsatisfactory. All in all, I think that the appropriate compensation per prisoner might be measured in thousands rather than tens of thousands.
There are two final points. First, any "lower court" (i.e. below the High Court) or administrative agency is subject to control by way of the High Court exercising its ancient jurisdiction to grant habeas corpus where the detention of any person is unlawful. It is this procedure which the prisoners are going to invoke against the Special Criminal Court as a device for testing the lawfulness of their detention. No doubt some of the arguments rehearsed here, as well as others, will be formulated as grounds why the prisoners should not be prosecuted and thus should be released.
Secondly, it might be thought that, if the court proceedings anticipated here seem to be going against the State, then some kind of retrospective legislation might be enacted to rectify the error made in August. However, it seems very likely - on past authority - that such legislation would be unconstitutional on the basis that it amounted to an attempt to interfere with what purported to be a court decision. This may be one of the reasons why such legislation has not been suggested by anyone in authority.
