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

Every year, this legislation is put before us. In the debate this year, it is happening against the backdrop of the recently published independent review. It was conducted by six people of whom two wrote a minority report. The main media focus will be on who will vote for and against and who will abstain on the vote on the Special Criminal Court for yet another year. There will be a particular focus on Sinn Féin in that regard. We cannot ignore the review group, however, which is united on the recommendation to repeal the Offences against the State Acts but which is far from united when it comes to the Special Criminal Court. The minority report raises profound questions about the court. I am working my way through the report. I have not read it all but I have read a good bit. As the authors of the minority report note:

Our core difference with the majority stems from a reluctance to recommend the establishment of a permanent or “standing” non-jury court where the prosecution (DPP) will still decide on trial venue with no unequivocal recommendation grounding concrete measures to ensure a reduction in the use of non-jury courts. Furthermore, we believe that establishing a permanent non-jury court by ordinary legislation is constitutionally inappropriate based on an originalist understanding of the relevant provisions of Bunreacht ha hÉireann 1937 ...

They describe the jury trial as the gold standard and note that it is the norm in most common law systems, although their minority report also notes:

The right to trial by jury is not, however, an absolute right and the Constitution sets out the circumstances in which non-jury trials can take place, i.e. for minor or summary offences and where the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.

It further states:

Rather than becoming a normalised or permanent fixture of the court system we believe that non-jury courts, whether constituted by statute or established by constitutional amendment, should be used only in circumstances where there is a real and present danger of jury intimidation or tampering.

When powers are conferred, there is an expectation that they will be used as intended. Over time, the original intention is sometimes lost and liberties are taken. I will give one example. I am very familiar with it, even though it was a long time ago in the context of the Offences against the State Acts. In the early 1980s, one of those Acts was used against people in Kildare who were protesting against water and bin charges. It was a campaign of civil disobedience. The charge was that they were advocating the non-payment of a lawful tax. The issue was eventually resolved when it was determined that they were charges and not a tax but that was not before a couple of people faced the real threat of losing their employment because of it. I raise this to demonstrate that these things can be used in a way that was ever intended. The issues raised in the minority report with respect to juryless courts raises the same concerns about the possible extension of their use over time. The minority report states:

In the event that a permanent or “standing” non-jury court were to be established in the manner proposed by the majority we disagree profoundly with their proposal that the choice of trial venue should remain a matter solely for the DPP ...

It also states:

The criteria upon which such a decision should be made should be set out clearly in legislation and should not be so open-ended as to allow for casual or routine recourse to non-jury trial.

I am very surprised that is not the approach favoured by both the majority and the minority. The Special Criminal Court has a range of special powers that would not be accepted in normal courts, including that of belief evidence. The minority report recommends the provision for belief evidence be repealed and not provided for by way of re-enactment in any replacement of the Offences against the State Act and prior to that recommendation the minority report goes into considerable detail on the reasons why. If the Special Criminal Court is to stay in any form, we need to consider very seriously what the circumstances are that would permit this and what are the absolute checks and balances that are needed.

We have to remember that the UN Human Rights Committee also identified the court as being in violation of Ireland's obligations under the international human rights treaties. It expressed concern about the expansion of its remit and has called for its abolition.

I certainly do not want to put juries or witnesses in harm's way. We have to examine how other jurisdictions that have to deal with organised crime and other very serious crimes do so without using non-jury courts. Organised crime gangs such as the Kinahan and Hutch gangs have wreaked havoc and have a total disregard for human life, but we should not allow them to shape how our criminal justice system will be designed into the future. The State needs to enact alternative provisions for juries, as is done in other jurisdictions. We also need to be proactive rather than reactive in respect of the policing model. These crime gangs do not emerge from nowhere, and we have to get to grips with why they have been allowed to get to the level they have got to. There have been several examples of that around the country, some more high-profile than others.

I ask the Minister to set out what her attitude will be to the minority report as well as the majority report. Will she take them in tandem? What can we expect in terms of legislation? Does the Minister envisage us being here again in 12 months' time? Does she expect this to be dealt with within that timeframe? She talked in her opening statement about bringing recommendations to Cabinet, which I understand, but she has been silent as to how the Oireachtas will be involved in this and what the timeframe will be. I would like to hear what she has to say about that.

We will support the Labour Party amendment.

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