Barry Ward (Dún Laoghaire, Fine Gael)

Gabhaim buíochas leis an Aire as ucht cuid dá ama a thabhairt dom. I am supporting the motions although I do not do so willingly. I recognise that the Special Criminal Court and the non-jury court that exists under the Acts to which the Minister has referred and Article 38.4 of the Constitution are a necessary evil rather than good things in and of themselves. As somebody who has practised criminal law for a long time, I recognise the value of juries and the importance of distinguishing their role from that of a judge. A judge, being a former lawyer who may be somewhat jaded by the system and who will have seen it all before, does not bring to the criminal process the fresh, uncontaminated view of an ordinary citizen serving on a jury. The benefit of ordinary citizens serving on juries is enormously important, if not vital, to the operation of our criminal justice system. We should recognise the importance of it also from the point of view of delivering just results in criminal trials. Having said that, I recognise that this is not always possible.

We should use this debate to recognise the jury experience is not necessarily a good one. We still have some work to do to improve the experience that citizens have when they go to serve on a jury. Members of the Judiciary are always at pains to point out to any juror who serves on a jury just how important his or her role is in allowing the trial to take place and giving it the citizens' imprimatur of justice. However, the reality is that people who answer jury summonses and go to courthouses the length and breadth of Ireland to serve on juries will have an uncomfortable week or weeks ahead. If they are not selected, they may spend the whole week hanging around a courthouse waiting to be called, or not, as the case may be. If they are selected, depending on how long the trial takes, they may spend a lot of time out of the courtroom during legal argument. Although I am aware that efforts were made through the Criminal Justice (Miscellaneous Provisions) Act to avoid that and provide for hearings in advance of the main trial to allow issues to be resolved so juries would not be sitting in the jury room for long periods, it still happens. Jurors will inevitably spend a significant portion of the time they serve on a jury sitting in rooms waiting to be called into the courtroom. It is unacceptable. It is disrespectful to the jurors and does not recognise the importance of their role.

More important in the context of these motions, we do need a non-jury court, as the Minister set out. We are aware that there are subversive elements within the State who would use the presence of an ordinary jury to prevent the just course of a criminal trial, be they terrorists, paramilitaries, organised criminals or people who decide they want to intervene in the criminal justice system and corrupt its proper operation. We know that certain cases mean non-jury courts are required.

I will make a couple of comments on that. The Minister referred to the independent report. I think its phrasing is that putting the Special Criminal Court on a permanent footing would be “constitutionally inappropriate”, a term that was very carefully chosen without making an outright statement on constitutionality. We are aware that the Supreme Court has deemed the operation of the Special Criminal Court to be constitutional, although I recognise that my colleague Brendan Grehan, SC, has suggested that putting it on a permanent footing might require constitutional approval from the people of Ireland.

Either way, I am slightly uncomfortable with the notion that we would put the Special Criminal Court on a permanent footing. The fact is that it is still treated as something exceptional, even though I know it would remain exceptional under the Minister's legislative proposals. I applaud the fact that we are required every year, at least in name, to approve the continuation of the operation of the Special Criminal Court. There is something unsatisfying about this process, insofar as we have to accept what the Minister says about the continued operation of the court. We have to accept the reports that come here that deem its continuation to be necessary. I see that but there is still something unsatisfying about this process. Notwithstanding that, the fact that we come together on at least an annual basis to assess this issue and have our say as the democratic representatives of the people is an important step that would be removed if we were to put the court on a permanent footing.

The other difficulty I have, as I have said on a number of occasions in the Seanad in the course of these motions, relates to the manner in which the decision to try a person in the Special Criminal Court operates. At the moment that decision is made uniquely by the Director of Public Prosecutions, who makes the decision as to whether a case is appropriate to go before the Special Criminal Court, in her opinion. I preface these remarks by saying that I have absolutely no doubt about the independence of the operation of the Director of Public Prosecutions. Since the Prosecution of Offences Act 1974, we have had, in the office of the DPP, a function that is operated independently of any politics. It separates that prosecution of offences role from the Attorney General and into a dedicated office, which has retained jealously its political independence from any office, officer, party or political entity. I admire the work that the DPP has done over three generations in this country to take independent views, without fear or favour regarding public opinion, media commentary or anything like that, to do what it feels is the right thing to do about who is prosecuted for which offences, in which court and so on. She and the staff in the DPP's office exercise their duties with great skill, commitment and independence, which is important.

However, one thing that I know must occupy such an independent office is the perception that it is not doing that independently. The problem with the DPP making the decision about who goes to the Special Criminal Court is that she is not a disinterested party. The DPP acts on behalf of the people of Ireland to prosecute people who are suspected of particular offences, but she is the prosecution in that regard, although we should note the excellence of our system insofar as when a prosecutor goes into court in this country, he or she, on behalf of the DPP, is not seeking a conviction but to present the evidence in a fair and lawful manner before the court and jury to allow the jury to make a decision. The job of prosecution counsel is to get that case to the jury and to allow the jury to make its decision in the appropriate way, rather than to achieve a conviction, which is something you see in other jurisdictions and which undoubtedly results in miscarriages of justice, something we do not have a major problem with in this jurisdiction. We have a fair and functional criminal justice system, which is in large part down to the fact that the DPP is not going into court looking for a scalp. She is not going to court trying to get the conviction. She does not have to run for election on the basis of her conviction record or nonsensical things like that which should have no bearing on a criminal justice system.

I make these remarks in full recognition of the independence of the DPP and in awe of the quality of the service that her office delivers, but if she is also the prosecution, she is therefore not a disinterested party. If she is the only person making the decision about whether a case goes to the Special Criminal Court, that is problematic from the point of view of the optics of it, because she is an interested party and is making a decision about which court deals with the case and more importantly whether it is a case that is appropriate for a non-jury court or not. I think that decision-making process should be separated from the Office of the Director of Public Prosecutions. There should be an ex parte,in cameraapplication before a High Court judge for the DPP to apply for a particular case to come before the Special Criminal Court, thereby removing any suggestion that she is partisan in making that decision or that she has made it for any reason other than the right reasons. As I say, there is no case I can point to where I think she has not made it for the right reasons, but we should be separating her from any suggestion that she might not be doing that.

My proposal regarding these motions and any legislation that the Minister might bring forward is that, in future, rather than allowing the DPP alone to decide if a case is appropriate for the Special Criminal Court, it should in fact be decided by an independent arbiter. I suggest a High Court judge as the appropriate person. Rather than interfere with that process, because decisions made by the DPP in this space can be very sensitive, that application could be made ex parteandin camerato avoid any complication in that regard.

Regarding the operation of the court, although I have reluctance about the appropriateness of it and think it is regrettable that we do need it, I recognise the need for it, but I also think the Special Criminal Court has served us incredibly well. I have talked about the independence of the DPP and the fact that she makes decisions without fear of public opinion or media commentary. In fairness to the judges of the Special Criminal Court, they have done the same thing. In recent years, we have had decisions to acquit people in the Special Criminal Court which have flown in the face of public opinion, for which the individual judges have received great opprobrium from the public, inappropriately in my view, because when three judges sit down in the Special Criminal Court, their job is to act as judge and jury. Their job is to, in whatever way they can, bring to that particular trial the independence of thought that we expect from an ordinary citizen who goes in to serve on a jury. We have seen them do that, in fairness to them, in a way that is difficult for a single judge to do in the course of a criminal trial. It is a duty that weighs heavily on those who operate in summary courts like the District Court.

Looking at the operation of the Special Criminal Court, one can point to any number of examples where a judicial panel in the Special Criminal Court, sitting without a jury, has made the tough decision that is unpopular in the public mind, because people for obvious reasons see things through a particular lens when they are looking at these cases, that the proof of the prosecution is insufficient in a case or that there is an evidential issue, procedural issue or whatever it might be that has led to the acquittal of the person before the court. That is incredibly important. If a court had a 100% conviction record, we would have to ask how on earth that court was operating justly, properly and in accordance with law. We say that people are innocent until proven guilty but the reality is that in public opinion, the view is frequently that people accused before the courts must have done something wrong. It is sometimes difficult for courts, particularly when it is judges rather than anonymous jurors, to mark out the fact that there is a gap in the prosecution case or the evidence and that there is the reasonable doubt we so often talk about, which should lead to an acquittal. For three judges to make that decision is very difficult.

We should also recognise with some gratitude those judges who have made those decisions to uphold the validity and the integrity of the Special Criminal Court and to show that it operates in a way that is fair and just. We should recognise how difficult it is for them to make those decisions and the fact that they have made them. In all criminal cases, it is so often the case that we look in and hear the allegation that is made, and there may be media commentary and online commentary about that, and we think that that person must be guilty. Of course, that is not the correct starting point for any assessment of a criminal trial. We talk about innocence until proven guilty and about the burden of proof being on the prosecution. We talk about the standard of proof being beyond a reasonable doubt, but we often look at accused persons and assume they have done something wrong or that they are guilty. In fact, we should be thinking of what, if were in that position and falsely accused, or if our brother, sister, son, daughter, mother or father was in that position and falsely accused, we would we expect them to get. We would expect them to get justice. We would expect them to get a fair hearing from the court. We would expect the court to apply the law without fear or favour, which is what we ask juries to do every day across the length and breadth of this country and which they do with distinction.

The point I really want to make is that the Special Criminal Court has also been shown to do that. That is something in which we can have significant pride as a nation. We have a Judiciary that, notwithstanding pressures in public opinion, commentary in the media and online, and public pressure, still makes those tough decisions to uphold the rule of law in this country and to uphold the principles that we hold dear to have a criminal justice system that is functional, fair and just, with the principle of being innocent until proven guilty and the standard of proof being beyond a reasonable doubt. They are difficult principles but they are principles that ensure that when you go on trial in Ireland, you can be confident that you will get a fair trial in accordance with law, not in the court of public opinion but before a court of law that respects the constitutional principles and the legal requirements that are set down. That does happen.

I appreciate and recognise what the Minister said about his desire to put this on a permanent footing. I ask that we step lightly in that regard. I think there is a constitutional context that is concerning.

I recognise the ongoing need for a non-jury court in the Special Criminal Court and I recognise there remain elements within the State, whether from paramilitarism or organised crime or whatever threat one might identify. I recognise those elements are there and I recognise the need for us to provide a solution to deal with them into the future. Let us look at the constitutional context. Let us ensure before we embark on legislation that it is going to be robust enough to withstand constitutional challenge, particularly in the context of those members of the independent review group who gave that minority opinion which should give us all pause for thought. Let us also, in the context of any legislation the Minister brings forward, envisage a situation where a decision to proceed with a Special Criminal Court trial is not that of the prosecution, but that of the courts and is done in an independent way to allow us divorce the DPP from any suggestion she is making that decision for the wrong reason. I am happy to support the motions and I look forward to them passing.

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