Special Criminal Court should be abolished, rights watchdog says

The non-jury Special Criminal Court should be abolished, the State's human rights watchdog has said, and the emergency law under which it was established almost 50 years ago should be repealed.

Abolition of the court and repeal of the Offences Against the State Acts, is “the only viable solution to vindicate the rights of an accused to a fair trial”, the Irish Human Rights and Equality Commission (IHREC) said.

The use of the court "has led to two criminal justice systems in Ireland and subsequently has compromised the fundamental right of equality before the law", IRHEC chief commissioner Sineád Gibney said.

In a detailed submission to the Government-established independent review group chaired by retired judge Michael Peart, which is reviewing the Acts, IHREC said the use of the legislation and a non-jury court are no longer necessary in Ireland's current political and security environment.

It recommends that the State should declare the ordinary courts “are adequate to secure the effective administration of justice and the preservation of public peace and order”.

This is necessary due to the “significant human rights and equality concerns” associated with the courts and the Acts, it said.

It is concerned there has been “a steady normalisation” of extending the exceptional provisions within the Acts, such as non-jury trial, powers of detention, belief evidence and inference drawing to other criminal justice legislation.

Organised crime

In its submission, IHREC noted it has been nearly two decades since the last comprehensive review of the court, established in 1972 primarily to deal with the IRA as the conflict in Northern Ireland escalated. Since the IRA ceasefire of the 1990s, the court has been dealing mainly with organised crime.

The commission said its concerns about the court and the Acts include a general concern about security legislation, lack of parliamentary oversight of the Acts, use of belief evidence and inference drawing in cases before the court, and the extent of the DPP’s discretion to refer cases to the non-jury court.

The provisions of the Acts, particular those providing for the establishment of the court, engage a number of fundamental rights protected under the Constitution, the European Convention on Human Rights Act 2003, EU law and international human rights law, the commission said.

These rights include the right to a fair trial and trial by jury, to equality before the courts and before the law, to liberty, to disclosure and to cross examine, as well as the right to silence and the privilege against self-incrimination.

Should the Government decide not to abolish the court, the commission has specified significant amendments which it says need to be immediately made to its operations, including a new Oireachtas oversight committee and the definition of what conditions should be met to allow for abolition and repeal.

It also recommends that the State consider narrowing the scope of the definition of “terrorist activities”; that all persons arrested under the Acts be entitled to have a legal adviser present during questioning by gardaí, and safeguards to ensure the mechanism for referring cases to the court respects the rights of individuals.

“The fundamental rights of individuals need to be carefully balanced against the rights of victims, national security concerns and the public interest in having an effective criminal justice system,” IHREC said. “Any restrictions on the rights of an individual must comply with the principles of legality, necessity and proportionality.”