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FactCheck: Who wants to get rid of the Special Criminal Court?

TheJournal.ie’s GE16 FactCheck examines claims made by Sinn Féin about a surprising election issue.

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AS PART OF our GE16 FactCheck series, we’re testing the truth of claims made by candidates and parties on the campaign trail.

If you hear something that doesn’t sound quite right, or see a claim that looks great, but you want to confirm it, email factcheck@thejournal.ie.

Liam in Dublin Bay South heard Sinn Féín claims about the Special Criminal Court, and wanted to know what the truth is.

90407769 Source: RollingNews.ie

Claim: Organisations including Amnesty, the UN, and the ICCL want the Special Criminal Court abolished – Sinn Féin
Verdict: TRUE

What was said:

Several Sinn Féin figures have been outlining their support for abolishing the Special Criminal Court, and opposition to the introduction of a second court from April.

The party has called for the repeal of the Offences Against the State Act and abolition of the SCC since its 2002 election manifesto (at the latest), but the issue has come into sharp focus this week, after two fatal gangland-related shootings in Dublin city.

The party’s manifesto, launched today, contains a pledge to “repeal the Offences Against the State Acts.”

Part of Sinn Féin’s argument against the SCC is that it suspends normal due process rights, including the right to face one’s accuser, and the right to a trial by jury.

It has argued that several international human rights organisations have also called for the abolition of the court, as summarised by party leader Gerry Adams on Sunday:

Sinn Féin are not alone in its opposition to the use of non-jury courts. The Irish Council for Civil Liberties, Amnesty International and the United Nations Commission on Human Rights have also criticised the continued existence of the Special Criminal Court.
The former President, Mary Robinson, has also voiced her concerns, as well as prominent members of other political parties.

The facts:

UN

logo_print Source: OHCHR

In 1993, the UN Human Rights Committee, a panel of experts established to monitor every country’s implementation of the International Covenant on Civil and Political Rights, said the SCC was not “justified.”

The Committee also expresses its concern with respect to the Special Court established under the Offences Against the State Act of 1939. It does not consider that the continued existence of that Court is justified in the present circumstances.

In 2000, the committee repeated its concerns, and called for Ireland to “end the jurisdiction of the Special Criminal Court.”

The law establishing the Special Criminal Court does not specify clearly the cases which are to be assigned to that Court but leaves it to the broadly defined discretion of the Director of Public Prosecutions (DPP).
The Committee is also concerned at the continuing operation of the Offences Against the State Act, that the periods of detention without charge under the Act have been increased, that persons may be arrested on suspicion of being about to commit an offence, and that the majority of persons arrested are never charged with an offence…
Steps should be taken to end the jurisdiction of the Special Criminal Court and to ensure that all criminal procedures are brought into compliance with articles 9 and 14 of the Covenant.

The committee repeated its call in 2008:

The State party should carefully monitor, on an ongoing basis, whether the exigencies of the situation in Ireland continue to justify the continuation of a Special Criminal Court with a view to abolishing it.

A stance that was supported by the UN Human Rights Council’s Special Rapporteur on the situation of human rights defenders, in 2013:

The Special Rapporteur reiterates the recommendation made by the Human Rights Committee that the State should monitor the need for the Special Criminal Court carefully with a view to its abolition.

Amnesty

Court stock Source: PA WIRE

In 1999, the government initiated a review of the Offences Against the State Acts, and the Special Criminal Court. In its submission to the review committee, Amnesty International asked that:

The government make a proclamation to disestablish the Special Criminal Court, because the circumstances specified by international standards that might justify the operations of such a court are not apparent in Ireland.
…Amnesty International considers that under international standards and the law of Ireland, the onus is upon the government to demonstrate that special courts are essential in current circumstances in the words of the law because “the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order”. The government has not done so.

ICCL

The Irish Council on Civil Liberties (which was co-founded by Mary Robinson 1976) has repeatedly called for the abolition of the Special Criminal Court, and opposed its expansion in 2009, from a relatively narrow focus on state security-related trials to organised crime.

In a statement on Monday, its director Mark Kelly accused “some electioneering politicians” of using last Friday’s attack in the Regency hotel as a “political football” in their support of the court.

The Special Criminal Court was an emergency court for a different era…Politically posturing to appear tough on crime while electioneering is no substitute for respecting the rule of law by pledging to abolish this anachronistic tribunal.

Mary Robinson

00024660 Source: RollingNews.ie

As a Senator and professor of constitutional law at Trinity College in 1974, Robinson wrote a long essay on the court, reportedly criticising abuses in its usage.

She also called for greater scrutiny of the court in Seanad debates throughout the 1970s.

In 1980 she wrote in Fortnight magazine that the Oireachtas was “shirking” its responsibility to monitor the SCC, and that this had led to a “serious implication” that it was a “permanent fixture in the judicial structure,” rather than an emergency court.

She added that the lack of oversight into the court’s operation was a “scandal.”

In August 2008, Robinson spoke at the McCluskey Summer School, and fielded a question from a member of the audience who likened the SCC to internment.

The Irish Times reported at the time that the former president replied:

I am very sympathetic to the critique of the Special Criminal Court given. There is a need for serious analysis of the potential for corruption in the powers given to the court.

‘Prominent members of other political parties’

90393169 Source: RollingNews.ie

Adams didn’t specify which politicians he was referring to, but a search of the archives shows that, during the last major debate on the SCC, in 2009, certain big names were opposed to Justice Minister Dermot Ahern’s bill to broaden its usage by sending organised crime cases there.

On last night’s RTE Prime Time, Sinn Féin TD Mary Lou McDonald claimed that both Charlie Flanagan and Pat Rabbitte were “on the record raising issues around the Special Criminal Court.”

That claim is true.

Neither called for it to be abolished, but both consistently expressed concerns about shifting the court’s focus from the security of the state to organised crime.

In the end, Fine Gael voted with the Fianna Fáil-led government in passing the bill, but Labour joined Sinn Féin in voting against it.

During a Dáil debate on 3 July 2009, Fine Gael’s then Justice spokesperson Charlie Flanagan criticised the proposed use of the SCC for gangland crime:

While the use of the Special Criminal Court for crime of a subversive nature is a measure that Fine Gael supports, nonetheless we must ensure that solid, empirical evidence makes the case for referring trials involving gangland members to this court.
Removing the jury from a trial involving an indictable offence must be a measure of last resort.
We are told that a non-jury court is preferable because of intimidation of jurors. To the best of my knowledge, such intimidation remains anecdotal. Where is the evidence that intimidation of jurors is allowing criminals to escape justice?

During the same debate, Labour’s then Justice spokesperson Pat Rabbitte expressed scepticism about claims that jury intimidation necessitated the use of the SCC for gang-related crime:

What is special about the Special Criminal Court is that it sits without a jury, and there is one justification only for a non-jury court, that is, where jury members are being intimidated. There is no evidence that jury members are being intimidated.

Joe Costello, Labour TD in the Dublin Central constituency where the shooting of Eddie Hutch Sr took place on Monday night, said in 2009:

None of us ever expected the day would come when we would be asked to declare or admit that the ordinary courts of the land are not adequate to deal with the administration of justice.
…I represent the constituency of Dublin Central which includes the north inner city where there is a significant amount of gangland crime, especially drug-related shootings.
I am a member of the local drugs task force and I chair the supply control drugs committee on the community policing forum.
We have been asked questions about policing, about the courts, about the prisons and on no occasion has there been a call that we would abolish the juries.

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