THE EXISTENCE OF the Special Criminal Court is an unlikely topic to dominate the general election.
While Sinn Féin’s manifesto pledge was always going to attract close scrutiny from other political parties, the shootings that took place in in Dublin in the past week have thrust its existence to the top of the news-cycle.
While this scrutiny on a uniquely Irish criminal justice solution is welcome, the current debate is failing to address any of the key concerns regarding the existence and use of the Special Criminal Court.
Instead, we now have on our hands a potent mix of moral panic and a general election where soundbites and heated rhetoric take precedence over rational discussion.
The exceptional, but not too exceptional Special Criminal Court Article 38.3.1° of the Irish Constitution permits the establishment of special courts when ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’.
This constitutional provision is based on a suggestion by the Constitution Review Committee 1935 was designed to allow an exceptional response to a threat without triggering the much more draconian emergency powers provision of Article 28.3.3°. This latter provision potentially allows for the suspension of every article of the Constitution, save for the reintroduction of the death penalty.
Nevertheless, while the use of the Special Criminal Court appears to be ‘less exceptional’ than an emergency envisaged by Article 28.3.3°, the admission that ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’ is a striking one and should require a serious threat to the state before being declared.
Despite what appears to be a high bar set for triggering this exceptional constitutional provision, the Special Criminal Court in its modern guise has been in existence since 1972 – 44 years. Designed primarily to deal with paramilitary activity related to Northern Ireland, the Special Criminal Court’s jurisdiction was expanded in 2009 to cover the apparent rise in ‘organised crime’.
The need for rational debate the Constitution places the prerogative on assessing whether special courts on the political branches. Irish courts are reluctant to get involved on this issue calling it a ‘political question’.
It is imperative therefore that assessment as to the necessity of these courts is carried out by the political branches in an informed, evidence-backed, constructive manner.
The current debate, however, has been anything but constructive. From Sinn Féin’s suggestion that gangland murders shows that the Special Criminal Court doesn’t work, to Enda Kenny using the issue to undermine Sinn Féin’s commitment to criminal justice the actual merits and pitfalls of the Special Criminal Court are not being scrutinised.
For example, Sinn Féin’s suggestion that the Special Criminal Court could be replaced by a witness protection programme needs to be interrogated further. Is this feasible in a small jurisdiction? Conversely, arguments about witness and jury intimidation also need to be scrutinised. Witness intimidation, for example, is as much a problem for non-jury courts as it is for jury courts.
Meanwhile evidence of jury intimidation is sparse or difficult to attain with it mostly based on anecdotal instances.
The human rights and constitutional implications of the Special Criminal Court must also be analysed. The court has been criticised by the UN Human Rights Commission has highlighting Ireland’s profligate use of the Special Criminal Court as a concerning development, in particular noting its potential damaging effect on the right to a fair trial under Article 14 ICCPR.
Mary Robinson in 1974 also highlighted the use of the Special Criminal Court as potentially leading to the dissolution of the right to trial by jury through the back door.
Are the ordinary courts inadequate?
Indeed, the Director of Public Prosecutions (DPP) has been reluctant to use the Special Criminal Court to deal with organised crime cases suggesting that the ordinary courts are not ‘inadequate to secure the effective administration of justice, and the preservation of public peace and order’.
The Criminal Justice (Amendment) Act 2009 is subject to a yearly renewal debate as a safeguard to ensure its exceptionality. Five years after the passage of the Act, the DPP had still not referred an organised crime case to the Special Criminal Court.
During the most recent yearly renewal debate on this legislation in the Seanad, it was revealed that the DPP had also referred no case to the Special Criminal Court between 2014 and June 2015.
This is all the more striking when considering the passage of The Criminal Justice (Amendment) Act 2009 through the Oireachtas. This legislation was guillotined through the Dáil after only 90 minutes of debate. The reason put forward by then Minister for Justice Dermot Ahern was that Ireland could not wait and needed the legislation immediately.
In reality, the legislation was rushed through as the Dáil was about to break for the summer.
Expansion of the Special Criminal Court to deal with organised crime in 2009 instead smacks of political opportunism and moral panic, where politicians prefer to be seen to be doing something, whether or not that something is useful.
The Special Criminal Court is now a permanent feature on the Irish constitutional landscape.
Its existence rarely garners any media or political attention. Ireland has a worrying trend of failing to exact proper scrutiny of exceptional emergency powers. Ireland’s state of emergency, declared after the outbreak of World War II in September 1939 lasted until September 1976.
The day it ceased, a new emergency was declared to deal with the escalating violence in Northern Ireland. This lasted until February 1995 meaning that Ireland has been in a state of emergency for longer than it has been in a period of ‘normalcy’.
When courts are reluctant to review a political question, it is incumbent upon politicians to do their constitutional duty with diligence. The increased attention on the Special Criminal Court is welcome; however, the current level of debate falls far short of the standard befitting such a serious issue.
Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. He is an IRC Government of Ireland Postgraduate of UCD School of Law. He holds a masters degree in Criminology and Criminal Justice. He tweets @DrAlanGreene.