‘Emergency’ court law rushed through Oireachtas in 2009 has never been used
Holding a trial without a jury addresses intimidation fears. But should the option now be scrapped?
Eight people are escorted from the Special Criminal Court in Dublin in 2013: the Act permitting the avoidance of a jury trial has been criticised by civil liberties groups. Photograph: Eric Luke
The Special Criminal Court has yet to hear a single case under legislation introduced five years ago to use the non-jury court to deal with organised crime.
The Criminal Justice (Amendment) Act 2009, which was introduced to address fears of jury intimidation, states that gang-related offences such as directing a criminal organisation should be automatically sent forward to the Special Criminal Court.
Court figures show that, in the five years since its introduction, there have been only three convictions under the law, with none of them occurring in the non-jury court.
Although 2009 Act states that organised crime offences should go the Special Criminal Court, it also grants the Director of Public Prosecutions the power to intervene and direct that they be dealt with in the ordinary courts before a jury. On every occasion to date, the director has decided that organised crime offences can go before the ordinary courts.
The offences detailed in the Act include directing a criminal organisation, which carries up to life imprisonment; membership of a criminal organisation; and committing an act benefiting a criminal organisation.
According to the Department of Justice, eight people have been charged with organised crime offences since the laws were introduced, all of which were dealt with in the Circuit Court which has the option of jury trial.
Of those eight accused, three were convicted while the DPP later withdrew charges against the other five. There have been no charges whatsoever under the anti-gang laws in over two years.
Gangland figuresWayne DundonBrian Rattigan
However, they were referred there under the Offences Against the State Act which has been in existence since 1939. The same legislation was used to prosecute John Gilligan in the Special Criminal Court in 2001.
The 2009 Act drew criticism from human rights groups and lawyers when it was introduced by then minister for justice Dermot Ahern in the wake of the murder of Limerick businessman Roy Collins. The legislation was rushed through the Dáil after debate was guillotined.
Senior law lecturer in UCC Conor O’Mahony believes the Fianna Faíl government simply “wanted to be seen to be doing something that was tough on crime.”
“Dermot Ahern said that it had to be introduced immediately as an emergency measure, so you would have expected prosecutions to start straight away and on a steady and regular basis afterwards. And of course that never happened.
“It was a get-tough-on-crime measure and an exercise in politics rather than a seriously thought-through criminal justice reform process.”
At the time there were loud objections from civil liberties groups, while 133 solicitors and barristers signed a joint letter stating Ireland will be internationally “shamed” by the legislation.
One of those lawyers was senior counsel Seán Gillane, the then chairman of the Irish Criminal Bar Association. “You would have thought that now, five years into it, where there is an annual resolution to be passed for renewal that the Oireachtas should be looking to see if it’s necessary at all,” he said last week.
Gillane said that a silver lining to the law is that it highlights the independence of the DPP in not using it.
“In fairness to the DPP’s office, it shows a bit of integrity on their part. Even though the power is there, they haven’t elected to go to the Special when they don’t feel they need to.”
The part of the Act which directs that cases be dealt with in the Special Criminal Court was designed as emergency legislation, meaning that it has to be reviewed yearly by the Oireachtas.
Since 2009 it has being renewed each year with cross-party support. During the most recent renewal debate, Minister for Justice Frances Fitzgerald said that acting Garda Commissioner Noirín O’Sullivan believes “the provision will be required for some time to come”.
Law vs resourcesMichael Finucane
“The creation of extraordinary laws to tackle what is an ordinary, if difficult problem, has never proven to be an effective solution,” he said.
“The answer to the problem of serious organised crime is to resource and support the gardaí and ensure they are able to do their jobs effectively and in a way that complies with international legal precedent.”
Finucane points to US cities where the jury trial remains a universal right despite the fact that lawyers and witnesses often have to go into protective custody.
“What they say is: ‘We can’t get rid of the jury so we’re going to resource the police.
“We’re going to give them the equipment and training, we’re going to give them everything they need to bring these guys down.’”