Sinéad Gibney (Dublin Rathdown, Social Democrats)

I agree with Deputy Gannon that this should be the last year this is ever debated in the Chamber - in fact, last year should have been the last time. From what the Minister said at the outset of his contribution today, even though he now supports the repeal of the Acts, that will not be ready by this time next year, so this will persist. Although we will support the motion this year, we will be coming forward with suggestions as to how we can deal with this in a more concrete way.

What has happened is that 50 years ago, an emergency measure came in to deal with a particular set of circumstances. Not only has that essentially been codified into our criminal justice system, it has been expanded to not just deal with terrorism but to deal with gangland crime as well.

What we have now, in essence, is two parallel criminal justice systems operating within this jurisdiction. This is a travesty of the rule of law. It is hugely problematic that two people can, in effect, be charged and tried for the same crime in two different courts, one with a jury and the other without, and one with a 65% conviction rate or thereabouts and the other with a 95% conviction rate.

When people look at the arguments in this matter, they talk about the types of people who are tried in different courts. However, all of this undermines the primary principle of criminal justice, which is the presumption of innocence. I ask everybody to put themselves in the shoes of a person charged with a crime and expecting to be tried by a jury of his or her peers only to be faced with the Special Criminal Court. That is hugely problematic. We have had this criticism levied at us, as a State, by the Human Rights Council and multiple UN treaty bodies. We had the Hederman report in 2002 and the Peart review in 2023, containing various recommendations for how the system could be reformed. My party and I align much more closely with the minority report of the Peart review, which looked at the human rights gaps. This system is a blemish on the State's human rights record.

I move now to some of the specific provisions we are discussing that are particularly problematic. Jury intimidation is the premise on which the need for the Special Criminal Court is based. As a State, we will never deal with jury or witness intimidation if we do not abolish that court. In essence, we are just hiving off the problem instead of dealing with it. Other jurisdictions with much bigger problems to contend with still manage to uphold a jury court in these situations. There are plenty of new technologies, new methods and new criminal justice techniques that would allow us to have jury courts even in the face of jury intimidation. We will never build those competencies as a State if we do not practise them. It is hugely concerning that we are not facing the problem. This is not to say the jury system in the State is perfect. In fact, it is far from ideal that jurors experience difficulty with the process itself, the logistics of it, the wait times and so on, and even just that it can be such a life-changing experience. The State needs to support people in their service as jurors. All of that, however, is undermined by the fact we have created a parallel criminal justice system that has removed juries completely from the process.

Another issue is the lack of division in the admission of evidence. When juries operate in a courtroom, an admission of evidence policy allows the judge to review that admission of evidence and determine whether it is appropriate for the jury to see it. In the case of the Special Criminal Court, a judge has to determine whether he or she can see the evidence. That is ridiculous. It is an absolute undermining of the principles of criminal justice I would expect to see applying to anybody who enters into our criminal justice system.

Regarding DPP discretion, I am, unusually, in agreement with Deputy Ward in his observation that the DPP has way too much discretion in the referral of cases to the Special Criminal Court. Such referrals should be restricted to offences against the State or there have to be other parameters within which the DPP must operate in making referrals. We need greater independence in the process, with input from somebody who is not in the DPP's office. As Deputy Ward rightly pointed out, the DPP is not without interest in this process and must surely, therefore, be subject to monitoring in these instances.

Overall, there are many ways in which the current system represents a fundamental human rights transgression. This system, which is now baked into our common law criminal justice system, presents a significant differentiation in terms of the conviction rate and the conditions for trial. In essence, it allows us, as a society, to maintain an abolition or undermining of the principle of the presumption of innocence within our courts system. That is hugely problematic.

We will support the motions before us today but I assure the Government that we intend to come forward with ideas and proposals for how we can address the issues I have raised. I ask the Government to reflect on what conditions would have to exist in this State for the abolition of the Special Criminal Court to become a proposition it will consider. That is the question we need to answer. What types and levels of witness protection must we have in place? What are the conditions to be met that will mean we can say goodbye to this abomination within our criminal justice system once and for all?

See this speech in context