John Halligan (Waterford, Independent)

I want to focus on an aspect of the Act providing for special powers for the Special Criminal Court. While I fully recognise that organised crime is a major cause for concern and one that has potential to cause great harm to Irish society, is organised crime so big a threat as to justify restrictions of the constitutional right to trial by jury? The answer is, we do not know and in the absence of supporting data I have grave concerns about the blanket assumption regarding the actual or potential level of jury intimidation in Ireland.

When real threats are posed to jurors, questions must be asked about the operation of the jury system, but that should not automatically mean that in non-emergency situations we deny citizens of this State their rights. The right to trail by jury is an important safeguard against the abuse of power and this proposed extension of the remit of the Special Criminal Court is clearly in contravention of the UN Human Rights Committee. That committee has already criticised Ireland for continuing to use the Special Criminal Court.

The jury system provides for a rare check of excessive Government prosecutions. A jury trial also presents an opportunity for a defendant to be judged by a group of his or her peers. Individual prejudice and irrationality are checked by the group, leading to a fairer, more reasoned administration of justice. As well as the perception of fairness when defendants are tried by their peers, providing for trial by jury is a powerful symbol of public participation in the criminal justice system. It is important that people believe they have ownership of the system and a jury trial nurtures that feeling. It also reinforces our confidence that justice is seen to be done. Human rights lawyers working in countries undergoing democratic transition aspire to the western model of jury service.

I remain to be convinced that jury intimidation is at such a serious level that it warrants the extension of the powers of the Special Criminal Couert in the way proposed in the amended 2009 Act. It is remarkable that policies are being made and applied on the basis of anecdote and supposition. In 2009 the Irish Human Rights Commission made clear a similar objection in its observations on the Act when it stated it considered the developed system of criminal justice was capable of confronting effectively the problem of organised crime without resorting to a parallel system that did not provide an accused with a right to trial by jury. The main problem arises in respect of witness intimidation which would not be solved by providing for trial by judge only. Witnesses in the Special Criminal Court still need to give evidence in open court. It is incumbent on the Government, therefore, to tackle this issue.

Perhaps the real issue we need to consider is not that of the criminal justice system, Garda powers or special courts but how communities are served, protected and resourced in order to deal with a small criminal minority. However, we would then be dealing with a welfare issue and I suspect that in a recession it is deemed far less problematic to pass laws than to fund services. The famous Rock Tansey, QC, founder of the European Criminal Bar Association, stated, "There are serious circumstances where jury intimidation can happen but it is not beyond the wit of man to put measures in place to protect juries." As an institution, the jury has much to commend it. Juries add legitimacy to the decisions of courts precisely because they involve people in the process. If they can function, they ought to do so. Before resorting to using the Special Criminal Court, we should consider other means by which we could strengthen the jury system. Above all, we must always guard our personal and civil liberties.

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