Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

Although this annual debate can be repetitive, it is important. Unfortunately, it sometimes becomes completely focused on the Special Criminal Court. As Members will be aware, there is more to these resolutions than simply matters to do with that court.

Under the 1998 Act introduced in the aftermath of the horrific Omagh bombing, 12 new sections were introduced that were required to be renewed annually by the Houses of the Oireachtas. That 1998 legislation established five new offences. Those offences have been very effective in assisting the Garda in prosecuting terrorist offences.

Of course, we are not only debating and renewing the Offences against the State Act 1998. We are also renewing and extending the Criminal Justice (Amendment) Act 2009. That established four new offences. It has been extremely effective in combating gangland violence. It has been used before the courts and many criminals have been convicted as a result of the operation of those provisions. My view is that the motion is required. I am happy that the Government and Fianna Fáil are supporting it. Regrettably, the Special Criminal Court and the extension of these offences are necessary.

When we look at the whole principle of the Special Criminal Court, which will be, I suppose, the dominant part of the debate when we come to the motions, people should take into account what is in our Constitution and in the European Convention on Human Rights, ECHR. Article 38 of the Constitution deals with trials for offences and it sets out the mechanism by which people are to be prosecuted in accordance with law. It sets out what the law is. It states first that for minor offences people can be prosecuted summarily. People are prosecuted every day of the week without a jury for minor offences. Then it refers to the fact that if people are working for the military, they will be subject to the military courts. That happens. Third, it states that where the "ordinary courts are inadequate to secure the effective administration of justice" special courts can be established. That is what the Special Criminal Court is and I will return to this point presently. There is then the general clause, which is contained at the end of Article 38, which states that no one shall be tried for a criminal offence without a jury, save in accordance with what precedes it, referring to the three examples I have given.

The Special Criminal Court is, therefore, a court that is constitutionally provided for. It is set out in our Constitution that a special criminal court can be established when ordinary courts are ineffective to secure the effective administration of justice. Sometimes that is forgotten. Just in case people think there is something exceptional or lacking in the protection of human rights regarding the Irish Constitution, let us look at the ECHR. In Article 6, that convention sets out that everyone tried for a criminal offence deserves to be given a fair trial in accordance with law. Again, there is no mention of a jury in that article. Just so that people are aware, many countries in Europe do not have any juries when it comes to the trial of serious criminal offences.

I think the system we have is preferable. One of the good things we inherited from the British is a system of justice that provides for a jury. Let us recall, however, that what we have is a system of justice we inherited from the British. Other countries on the Continent do not have this type of system. They do not have juries of 12 men and women selected at random from the electoral register. From speaking to lawyers on the Continent, I know they sometimes look at the system of juries and say it is extraordinary that juries do not have to give reasons or an explanation as to why people are found to be guilty or not guilty. I know that may sound extraordinary to us, but we should be aware that there is nothing exceptional about serious criminal trials taking place in the absence of a jury. It happens in other countries throughout Europe.

I want to see juries used in Ireland as much as possible. I want to see trials for most serious criminal offences having the benefit of juries being attached to them. It provides a greater system of protection. Juries bring objectivity to the assessment of the guilt or innocence of an accused person.

We must then look to see what we have learned about the Special Criminal Court from history. I missed the earlier part of the debate, but I think someone must have referred to the Sallins robbery. That was an example of a miscarriage of justice by the Special Criminal Court, but it is the only one I can really think of. If we look at the legislation we are considering here from 1998 and 2009, I am unaware of any campaigns that exist that claim people convicted by the Special Criminal Court have been wrongly convicted. I am unaware of having any such miscarriages of justice that have taken place before the Special Criminal Court brought to my attention. I do not hear people advocating for such cases. People get acquitted by the Special Criminal Court.

Let us be clear about the reason we have the Special Criminal Court. It is to protect ordinary men and women from being exposed to intimidation and threats, which I believe would arise if jurors had to adjudicate on gangland criminal trials or criminal trials for terrorist offences. We have seen that happen in the past. Gangs in this country have murdered children and journalists. From recent trials, we also know they have intimidated witnesses. If people are going to try to intimidate somebody to nobble a trial, probably the easiest person to nobble or intimidate is a member of a jury. People talk about how we should try to have anonymous juries or juries that are protected but for a trial to be fair, it must be ensured that the jury is in the same room as the people giving evidence. The jury must also be in the same room as the judge to allow him or her to assess the jury members and ensure they are paying attention. Therefore, regarding all the examples given in the context of trying to protect the identity of jury members, it may be possible to shield them, as cases have happened where witnesses have been shielded from the public, so it might be possible to shield the jury members from view by other people in court, but then at 4 p.m. or 4.30 p.m., no matter where they are, the jury members have to go home. It is not that difficult to identify who the people are on a jury. If they are identified, it is an easy way of trying to ensure it will be possible for someone to engage in the ancient crime of embracery.

When we have these motions before us, we must also reflect on the fact that a review is coming up. I welcome that. Fundamentally, though, the people on that review panel will have to consider whether they are going to declare that we no longer need a Special Criminal Court. I would have thought it would be the preference of the Director of Public Prosecutions, DPP, to ensure that juries are used in cases. That is what I think a prosecutor would want. I respect that there are certain cases, which the DPP probably understands intimately, where it would be dangerous to put jurors in charge of adjudicating on a particular criminal charge. The review panel should complete its work promptly and be clear in respect of the review. No matter what that review panel states, it cannot deviate from the fact that the Constitution states that special courts are permitted when the "ordinary courts are inadequate to secure the effective administration of justice". Unfortunately, that situation still exists here and it is why I will be voting for the motions.

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