Special Criminal Court review must be published urgently, says ICCL

The Irish Council for Civil Liberties (ICCL) has written to Minister for Justice Helen McEntee asking for the long-awaited review of the Offences against the State Act to be published well in advance of its annual renewal on June 30th.

The Act is Ireland’s primary counterterrorism legislation and provides for the non-jury Special Criminal Court.

The independent review group, chaired by former Court of Appeal judge Michael Peart, was established in February 2021 by Ms McEntee and has concluded its deliberations.

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The six-person review group was divided over the future of the Special Criminal Court. The majority is in favour of retaining it albeit with reforms, while the minority wants to abolish it.

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ICCL director Liam Herrick said he is writing to the Minister requesting publication in advance of the renewal date on June 30th and Dáil vote that will precede it.

“It is very important that public representatives, as well as [civil society] bodies, get an opportunity, and sufficient time, to read the review ahead of the vote,” he said.

Sections of the emergency powers legislation, including retention of the Special Criminal Court, must be renewed on an annual basis. The Dáil vote must be taken before June 30th. In recent years the vote has been taken within one to two days of that date. The review will not be published until is it brought to Cabinet by Ms McEntee. The department would not comment this weekend on when it will publish the review.

There is concern among civil society groups, and among Opposition parties, that publication of the review will be delayed until just before the vote is taken, thereby not giving sufficient time for a full evaluation of its contents and implications.

[ Man alleged to have shot and killed Gareth Hutch goes on trial at Special Criminal Court ]

[ Special Criminal Court review group split on whether court should be retained ]

The main Opposition party, Sinn Féin, has a long-standing policy position calling for the abolition of the court. However, in recent years, it has nuanced this stance, accepting there may be a need for a non-jury court to deal with “gangland” type trials.

Sources said this view was reinforced by the recent case in the court where gangland figure Gerard Hutch was acquitted by the three-judge court of the murder of David Byrne in 2016.

Since 2021 Sinn Féin has changed its stance on the court and has abstained on the vote. However, that stance was predicated on the review of the court that was ongoing and its expectations that it would recommend reform of the law.

Sinn Féin voting intentions will now depend on the report that is published. It is understood the majority is in favour of some changes to the legislation but the extent of the reforms it recommends will be critical. If the majority report decides on retaining the status quo without significant structural reform, it will pose a challenge for Sinn Féin in relation to its vote. It is unclear whether a minority report will be published.

Sinn Féin’s justice spokesman Pa Daly said yesterday that the party wanted to study the recommendation that will come out of the review before the vote.

“Having called for the review three years ago, we are aware that much work has been carried out by the committee under former judge Michael Peart and we are looking forward to seeing the suggested amendments in both the majority and minority reports,” said Mr Daly.

The review group held about 40 meetings including meetings with State agencies and human rights bodies. The review was first established following a recommendation by the Commission on the Future of Policing in 2018.

When launching the review Ms McEntee said the Act had “served the State well in tackling subversives and organised crime gangs and have long been a necessary part of the State’s arsenal in this regard”.

She added: “However, it is important to occasionally review the operation of our important legislation.”

The ICCL was one of the civil society organisations which made a submission to the group calling for the court to be abolished. The Irish Human Rights and Equality Commission made a similar submission, arguing that ordinary courts were adequate to secure the effective administration of justice and the preservation of public peace and order.

“The extension of the Special Criminal Court to tackle organised crime has seen it evolve into an institution that is far removed from the circumstances it was established to address in 1972,” said chief commissioner Sinéad Gibney.