Pa Daly (Kerry, Sinn Fein) | Oireachtas source

Speaking to the amendment, it is difficult sometimes with criminal law to have a rational debate without having to listen to the manufactured outrage of some people trying to prove that they are tougher on crime than others.

I remember being on the joint policing committee in Kerry. No matter how many times the chief superintendent said that Kerry was the jewel in the crown, with much lower crime rates than everywhere else, it did not stop people from claiming otherwise. As Aneurin Bevan, MP, used to say, if one does not have a programme, a bogeyman will do. Unfortunately, we have heard some bogeymen raised today. It is the duty of An Garda Síochána to eliminate not only crime and the causes of crime, but also the fear of crime. Too often that is forgotten. We must not underestimate the importance of the lawful judgment of one's equals or the jury system in the administration of justice over the years. Juries evolved from Magna Carta, which first acknowledged the rights of the people of England as opposed to those of the Crown. This evolved into the jury system of today. It is a necessary safeguard or bulwark against what is sometimes perceived as State oppression. As I have seen over the years, if a jury feels that something about a prosecution case is not quite right, it is entitled to throw it out. I remember Judge O'Higgins, who used to operate on the south-western Circuit Court, taking off his peruke, throwing it over to the jury and telling its members that it was up to them to make the decision. It is not a decision that juries take lightly.

Military courts were introduced in Ireland in 1939 and expanded in controversial circumstances in 1972. The Government asserted, as it was required to do under the Constitution, that the ordinary courts were ineffective to secure the proper administration of justice. The bogeyman of jury intimidation was raised. Jury intimidation is the Irish criminal justice system's equivalent to weapons of mass destruction. It is very easy to raise the issue, but where is the evidence for it? Is it in any of these reports? Has it ever been mentioned? Most of the Limerick gangland cases and many of the Crumlin and Drimnagh gang cases were dealt with by juries. Is there any evidence of intimidation leading a jury to acquit somebody? I have not seen it. If there was any evidence of jury intimidation, it could form part of the proposed review, but there does not seem to be any.

In 2014, the Irish Human Rights and Equality Commission said there were no data to support the view that the ordinary courts were ineffective. In my view, to say so is to do a disservice to An Garda Síochána, the courts, the judges and the members of the public who sit on juries. Gardaí need resources rather than hyperbole. Over the years, there has been a creeping expansion of non-jury trials. The UN special rapporteur has said that the seepage of exceptional emergency measures into the ordinary had become the norm and that these practices had not served the rule of law or the protection of human rights. The UN Human Rights Committee previously stated that the continued existence of the Special Criminal Court was not justified. The Irish Council for Civil Liberties and Amnesty International have called on successive Governments to abolish it. As we have already heard, the committee under Mr. Justice Anthony Hederman found that a pressing case to abandon the jury trial had not been made.

Speaking from a local point of view, any review of the courts should review the many District Courts that have been closed over the years. This century in Kerry alone we have lost at least six local courts. Someone who receives a summons for an offence in Castlemaine has to go to all the way to Cahersiveen to go to court. I hope the Covid-19 crisis is not used by the Courts Service to close more courts or to further restrict facilities, particularly the courthouse in Tralee.

Turning to the contents of the motion, I note that many of the provisions of the legislation are not used. Section 6 of the Offences Against the State (Amendment) Act 1998 has been used twice in 20 years. Section 9 is routinely used in the ordinary courts and does nothing to prevent the intimidation of witnesses. That can happen anyway. It has nothing to do with whether a case takes place in the Special Criminal Court or in any other court.

Section 8 of the Criminal Justice (Amendment) Act 2009 states that the ordinary courts are inadequate to deal with certain provisions, including section 71A of the Criminal Justice Act 2006. That case is almost impossible to prove and is rarely used. I accept that section 72 of the 2006 Act is essential in the battle against organised crime, but the ordinary courts should be perfectly capable of dealing with it. The same is true for sections 73 and 76.

Regarding the review which I am glad to note the Minister has proposed, the Oireachtas deserves better than a six-page report which was sent the day before yesterday in the expectation that this legislation would be rubber-stamped. The report repeats what the Garda Commissioner has told the Minister. There is no assessment or critical oversight by an independent body. There is no chance to discuss the issue before the Committee on Justice and Equality.

This will have to change in any review, especially when such rights as the right to silence are concerned and when the powers to keep citizens detained in Garda stations for longer periods are being extended. The review will have to be comprehensive and we should at least make some effort to reduce the need for non-jury courts. We could consider, for example, screening juries and locating them in other rooms. We have neglected over the years to consider any types of intermediate measures whatsoever. Instead, we have gone for the nuclear option.

Under the current law, the Director of Public Prosecutions has total discretion. He or she should be required to provide objective reasons that a case is being sent to a non-jury court. We have a situation where two people could be charged with the same offence but one goes to the Special Criminal Court while the other is sent to the ordinary courts. The evidence for such decisions, rather than being a matter of speculation, should be provided to the defence and the court. In England, one has to make an application to a judge for a non-jury trial. That application may be made in private but it must be done before a High Court judge. We need something like that in this State. There must be a review of the legislation after all these years.

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