Ruling may change way IRA cases are tried

Workings of secretive Special Detective Unit under spotlight as case thrown out

“You don’t walk free from the Special Criminal Court” is a phrase repeated often by members of the Law Library.

“You don’t walk free from the Special Criminal Court” is a phrase repeated often by members of the Law Library.

 

The Special Criminal Court had a 94 per cent conviction rate at trial last year, but the rate could be reduced in future following the acquittal of two men last week.

According to a data analysis by The Irish Times, since 2016, 89 per cent of trials at that court have ended in convictions.

By comparison, trials in the Circuit Court had a 48 per cent conviction, while 54 per cent ended in guilty verdicts in the Central Criminal Court.

“You don’t walk free from the Special Criminal Court” is a phrase repeated so often by members of the Law Library that it has almost become a mantra.

As a statement of fact, it’s not quite true but it’s close enough. The non-jury court is known by some as the “potting shed” for good reason (“potting” being lawyer slang for convicting).

There are several reasons for the disparity, including the fact the Director of Public Prosecutions (DPP) doesn’t bring cases before the Special Criminal Court unless they are very confident of conviction.

Secret evidence

The conviction rate is also helped by a toolbox of extraordinary powers available to the DPP which wouldn’t fly in any other court. This includes the right to rely on what is effectively secret evidence when prosecuting the offence of membership of unlawful organisations.

That right was struck something of a blow last week with the acquittal of two men – Laurence Murphy and Ray Kennedy – accused of IRA membership. It was a decision which could have serious consequences for future membership prosecutions.

In membership cases, the court can rely on the opinion of a chief superintendent that someone is part of an illegal group.

When asked by the defence what evidence this opinion is based on, the Special Detective Unit (SDU) of the Garda inevitably claims privilege over the information on the basis that divulging it may pose a risk to life or future operations.

For a long time, the judges of the Special Criminal Court accepted the Garda’s secrecy with little questioning. That changed during the recent trial when Ms Justice Tara Burns ordered that if the Garda weren’t going to disclose the evidence to the defence, they should at least give it to the prosecution.

Rare acquittal

In response, the Garda simply refused to hand it over, citing safety concerns. This meant the DPP had to go back before the court and say it couldn’t comply with the judge’s order.

On Thursday, the extraordinary sequence of events led to that rarest of sights in the Special: an acquittal. The court ruled the chief superintendent’s evidence was inadmissible because the “blanket” privilege claimed over the underlying evidence created “an unfairness”.

It is believed to be the first time the Special has ruled “belief evidence” to be inadmissible.

What is remarkable is the Garda and DPP maintained their positions even as it became clear it would be fatal to their case.

It wasn’t the only flaw in the case. The court questioned if the chief superintendent was experienced enough to give belief evidence. It also raised concerns that certain statements by a State witness which could have benefited the accused were not disclosed to the defence.

The ruling will not have any immediate consequences, partly because there are only two membership cases in the pipeline and neither is due for hearing in the short term.

It also will not form precedent. However, this could change if the DPP decides to appeal the decision. If an appeal court upholds the Special Criminal Court’s approach, it could throw a major spanner in the works of the SDU and its secretive methods.

Conviction rates in Special, Central and Circuit Criminal Courts: cases that went to trial (excluding disagreements)

2018

- SCC: 94 per cent

- Circuit: 38 per cent

- Central: 62 per cent

2017

- SCC: 79 per cent

- Circuit: 50 per cent

- Central: 54 per cent

2016

- SCC: 95 per cent

- Circuit: 57 per cent

- Central: 47 per cent

2015

- SCC: 20 per cent

- Circuit: 57 per cent

- Central: 70 per cent

2014

- SCC: 85 per cent

- Circuit: 51 per cent

- Central: 69 per cent