Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

The fact that this comes in front of us every year tells us that there is something different or abnormal about this legislation. We in the Social Democrats have tabled an amendment to recognise that this is more than just a criminal justice issue but a societal issue too. Our amendment reads:

- in the absence of any specific information being presented which points to the inadequacy of the ordinary courts in the administration of justice in Ireland with specific regard to offences listed under sections 6 to 9 and 12 of that Act, and acknowledging the views of multiple national and international human rights agencies that have raised serious concerns regarding the operation of the Special Criminal Court, resolves to proactively and progressively implement societal and justice reform measures which, within a specified period of time being no later than 2025, ensure that section 14 of that Act should not continue in operation after that date.

I recognise and acknowledge that the Minister has said that a review will take place. I appreciate that that will happen. The Minister might tell us what the timeframe for that is likely to be. We know that Article 38 of the Constitution provides the basis for special courts with non-jury trials, which can be established by the Dáil in situations where the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. The current iteration of the Special Criminal Court was formed in 1972 at the beginning of the Troubles. The court was installed as an emergency measure in response to the threat of paramilitary activity, which I accept has reduced but not gone away. It has now been in place for 48 years. It was needed 48 years ago and has been needed. I acknowledge that it is, unfortunately, still needed for gangland crime. Every year, we stand here and almost blindly accept the continuation of this regressive measure. To accept that is to accept that, as a society, we will always be in a position where things are so bad from a crime and justice perspective that we cannot do away with this court. I find it very difficult to accept that and think we are better than that. We should strive to be better than that. That is why we feel that we should have a timeline for this.

In addition to holding non-jury trials, the Special Criminal Court has a range of special powers, including the ability to accept belief evidence from a Garda chief superintendent. This allows the Garda's belief that an individual is a member of an illegal organisation to be used as evidence. A trial conducted in December 2019 marked the first occasion when belief evidence was deemed inadmissible. The court can also make inferences from silence, which means that a negative inference can be taken from an individual's silence when being questioned by gardaí. In most cases, that is probably a reasonable inference, but what if it is not? According to data analysis conducted by The Irish Times, 89% of trials in the Special Criminal Court have ended in convictions since 2016, compared with the Circuit Court which had a 48% conviction rate, and the Central Criminal Court, which maintained a 54% conviction rate. All of those convictions may well be safe and satisfactory. We have seen miscarriages of justice in other jurisdictions and how corrosive even a small number of such cases can be to a criminal justice system.

The Special Criminal Court has been criticised by the Irish Council for Civil Liberties, Amnesty International and the Irish Human Rights and Equality Commission for its procedures, which would not be permissible in ordinary courts. Among the criticisms are the removal of the right to a jury, the deviation from terrorist cases which it was originally formed to address, the admittance of belief evidence, and the fundamental special nature of the court. The Human Rights Committee has repeatedly identified the Special Criminal Court as being a violation of Ireland's legal obligations under international human rights treaties and has called for its abolition. In 2014, the committee expressed concern about the expansion of the remit of the Special Criminal Court to include organised crime. We have a major problem with gangland crime. I completely acknowledge that. It is corrosive in the communities that it is most evident in, but that is not unique to Ireland. We need to look at how other jurisdictions deal with this in the absence of a type of court similar to the Special Criminal Court. The UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Professor Fionnuala Ní Aoláin, criticised the Special Criminal Court, stating that counterterrorism laws which contravene human rights "can further entrench cycles of violence and can lead to radicalisation".

Last year, the Minister for Justice and Equality himself stated “We all look forward to the day when the Special Criminal Court is no longer needed, but regrettably we are not there yet." The plan of action to get there is the key issue but unless we make a start and strive to do that, where will we be?

I listened to Deputy Jim O'Callaghan and he spoke about young people in disadvantaged communities being targeted. That tells us that disadvantage in those communities also must be dealt with if we are dealing with this issue from a societal point of view. Something much wider than a review of the Special Criminal Court will be required to get us to a point where we no longer need that court. The challenge now is to equip our ordinary courts in a way that allows them to administer transparent justice safely and securely for all involved in the proceedings. That basic tenet of a civilised society should not be outside of our capabilities and that is why we have tabled this amendment to put a timeframe on that process.

This is not exclusively an issue concerning the courts. It is also about disadvantage and Ireland as a country. It is not just about the criminal justice system, because we have a tendency to create problems and work backwards towards resolving them. We need to be proactive and our policing needs to be proactive. We have seen situations mentioned in places such as in Drogheda, Limerick and the north inner city. I certainly have no problem with that kind of thuggery being dealt with and people prosecuted, convicted and jailed. We do, however, allow these situations to get to a point where they become very difficult to control.

When the issue in Drogheda emerged, people were saying the dogs in the street knew there was an issue. If that was the case, resourcing then becomes the issue regarding not allowing such a situation to get to the point where it becomes such a pivotal issue that it destroys the reputation of the community, the quality of life of the community and individual lives. It needs to be addressed at a much earlier stage and that is both a societal issue and a policing issue, in terms of how we deal with that issue from the perspective of a proactive type of policing rather than the reactive type of policing that happens when a situation gets to a point where it becomes very difficult to manage. Indeed, it puts the lives of those trying to enforce the law in greater danger than would otherwise be the case.

Our amendment seeks to put a timeframe in place to deal with this issue, because if we do not focus our attention right across the spectrum, we will be here in five years' time and ten years' time talking about the same things and being challenged by human rights organisations for which we have great respect, such as the United Nations. We need to pay attention to what those organisations are saying to us.

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