Brian Lenihan Jnr (Dublin West, Fianna Fail)

This amendment also deals with the Special Criminal Court, amending section 49 of the 1939 Act. One of the factors behind the Government's decision to establish a second Special Criminal Court was the need to avoid any difficulty or challenge on the basis that persons are held on remand for undue periods pending trial. Currently the earliest available date for a hearing in the existing Special Criminal Court is the end of this year. It is to reduce that delay in cases coming to trial that this amendment is tabled to section 49 of the 1939 Act, providing for the transfer of cases from the existing Special Criminal Court to which they have been returned for trial to the newly-established court. The provision will also permit the transfer of cases from the newly-established court back to the existing Special Criminal Court.

Legal advice has been received that there is no existing statutory basis for such transfers. Accordingly, it has been decided to provide such a mechanism by legislation. Therefore, section 49 of the 1939 Act will be amended by being renumbered as section 49(1) and having several new subsections added.

Subsection (2) will provide that a trial to be heard before a Special Criminal Court may be transferred by the court on its own motion or on the application of a triable person or the Director of Public Prosecutions to another Special Criminal Court, though only if the first court decides that it would be in the interests of justice to do so. In other words, it would be open to any interested party, including the defence, the prosecution, or the court itself on its own motion, to seek to have a trial transferred. That will, of course, happen only if it is in the interests of justice so to do.

Subsection (3) will provide that, in deciding whether it is in the interests of justice to transfer a trial, the Special Criminal Court may consider any factors it thinks relevant, including whether the transfer would be in the interests of the expeditious administration of justice and whether it will prejudice the triable person or persons or the prosecution. That means that the court, in examining any application for a transfer of a trial, will have to take into account whether it would result in a speedier hearing of the case and whether it will prejudice either party — the defence or the prosecution.

Subsection (4) will provide that a trial may be transferred under this section, notwithstanding that an order has been made under subsection (1)(e) regarding the triable person or persons. Subsection (1)(e) provides that if two or more Special Criminal Courts are in existence, the DPP can apply to a court to have the trial before it. In simple terms, the fact that the DPP has selected a particular court to hear a trial does not, under this amendment, prejudice the right of an interested party subsequently to apply to have the trial transferred to another court.

Subsection (5) provides that where two or more triable persons are to be tried jointly, the decision of the Special Criminal Court to transfer the trial applies regarding them all. The reason is to avoid the position where a single trial of several defendants being tried jointly can be split and the same cases heard in two different courts so that one court tries one defendant and another court the same case against another.

Subsection (6) provides that subsection (5) does not affect the right of a triable person to apply for a separate trial and, if the application is granted, to apply for a transfer of the trial. This is to safeguard the right of any defendant to apply for a separate trial. That right remains and subsection (5) cannot diminish it in any way.

Subsection (7) provides that the decision of a Special Criminal Court to transfer a trial is final and unappealable. The court must be free to organise its own internal affairs. After all, one of the primary reasons for transfer is the expeditious administration of justice.

Subsection (8) is a technical provision setting out the definition of a triable person.