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Dublin: 10°C Tuesday 19 January 2021

Aaron McKenna: The Special Criminal Court is the best solution for organised crime

The court has been criticised by human rights bodies – but until we can guarantee a fair trial by jury where witnesses, jurors, and others are protected from intimidation we need to keep it, writes Aaron McKenna.

Aaron McKenna

THE SPECIAL CRIMINAL COURT convicted Limerick gangster John Dundon of the 2008 killing of rugby player Shane Geoghegan during the week, putting the spotlight onto a rather unusual court of the land that we mostly hear about in relation to members of terrorist organisations.

The court has come in for some criticism from bodies like the UN Human Rights Committee and the Irish Human Rights Commission. The court as it currently stands came to being in 1972 and was designed to help the state fight terrorism and maintain the sometimes tenuous rule of law and authority of the state in those days. At a time, when armed breakouts from maximum security prisons were a real threat, terrorists would be swooped into a court under army lockdown and face a panel of three judges rather than a more malleable jury of their peers.

The use of special courts is not confined to Ireland

In balancing civil liberties with the security and authority of the state and her citizens, the SCC was a good compromise. There was no mass internment of suspected subversives or show trials with near pre-determined outcomes as happened next door.

The use of special courts with a panel of judges is not confined to Ireland. The International Criminal Court in The Hague dishes out its interminably long-winded justice with three judges in place of a jury. The Nuremberg Trials of the administration of Nazi Germany followed a similar path – and though not perfect, the system worked sufficiently to exonerate certain individuals (famously, the head of the German Navy avoided hanging thanks to the testimony of a witness being called in his defence against charges relating to the conduct of submarine warfare – the head of the US Navy in the Pacific).

To this day the court regularly deals with cases of dissident republican terrorists who are a reminder, in this week that marks 15 years since Omagh, that we are not yet a perfectly tranquil isle.

Criticisms of the Special Criminal Court

The main criticism of the court however is that it has expanded its remit from that perhaps envisioned during the Troubles. Though the conviction of a repugnant man like John Dundon is welcome in almost every home in Ireland, the use of the SCC as the mechanism is worth considering. A poll on this website shows great uncertainty on the issue of whether or not to continue using this unusual court, even in severe cases of murder and organised crime.

In the constitution we are, generally, all entitled to a trial with an outcome delivered by a jury of our peers. Many people, when presented with the rights of a suspected criminal, will ask ‘but what of the rights of victims?’ For sure, it is every victims right to seek justice. But in a criminal justice system it is of vital importance that the worst criminal should receive the fairest justice. This is the only way for it to maintain its legitimacy.

The accused have more rights than victims, yes; but this is how it is supposed to be. The accused person, after all, is not always the guilty person; and reducing the rights of an accused individual before a trial creates an uneven playing field on which abuses of the justice system can be perpetrated.

People who cannot receive an adequate trial in the ordinary courts

The argument against the SCC is that it creates an anomaly. Individuals whom the Director of Public Prosecutions decides cannot receive an adequate trial in the ordinary courts, to secure the effective administration of justice and the preservation of public peace and order, will face a materially different process to an ordinary criminal suspect. Instead of 12 jurors of their peers, they will face a panel of three judges who may well make their decision differently to a panel of ordinary non-legal people.

In an ideal world everyone would face the same justice. But organised criminal gangs clearly present some of the same problems that organised terrorist groups do. When one part of an organisation goes on trial, another part is free to intimidate witnesses, jurors and even judges. Limerick has been a prime example, with two shootings a week when Shane Geoghegan was murdered and trials falling apart due to witnesses getting cold feet and having to be moved round the country to try and find a jury that would hear a case without fear or favour.

The state, through the Gardai, the DPP, the courts service and indeed the local community in Limerick, decided that it was getting out of hand and they needed to reassert control. In the case of Shane Geoghegan’s murder, the authorities resolved to not only catch and convict the man who pulled the trigger; but also the man who pointed the finger, crime boss John Dundon.

Are we really giving up liberty for safety?

In that ideal world, the State would have the capability to protect juries and witnesses better than in the past. This is difficult in such a small country, and nearly impossible given the resource strain the state is under; and as such the SCC is a good solution in a flawed system.

It was US founding father Benjamin Franklin who famously said: “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” The real question about the SCC is, are we really giving up liberty for safety? And bear in mind, it’s easy to give up somebody else’s liberty – so consider if one day you had to face such a court rather than a jury of peers.

The court is not a kangaroo one in which rules are made up on the fly in order to gain a predetermined outcome. The court has had to change the criteria of evidence on which it accepts an individual is a member of an illegal organisation thanks to a ruling in another court, which said the word of a Garda of certain rank was not sufficient. Likewise, any decision of the court is subject to appeal before a panel of four judges; the same as whom hear any appeal of any decision in regular criminal cases.

The SCC is our best worst answer

I am a firm believer in a justice system that is fair to a fault. Nevertheless, there are duplicitous individuals who have no care for the rule of law, the authority of the state or the decency of society. They will work to use fair procedure to their advantage, such is their right granted to protect people more deserving than they are.

In this context, and until the day arrives that we can guarantee a fair trial by jury where witnesses, jurors and others are protected from intimidation and can be properly informed as to the facts of a case, the SCC is our best worst answer.

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