Ivana Bacik (Independent)

I wish to answer one point made by the Minister in which he quoted from the Hederman report on the issue of jury tampering. It is fair to point out that the Hederman committee went on to say that while the majority did agree with the retention of the Special Criminal Court, there was a significant minority view, expressed by Mr. Justice Hederman, the chair of the committee, Professor William Binchy and Professor Dermot Walsh, to the effect that juries could be protected in other ways and that even in a small country such as Ireland, the risk of effective jury intimidation could be dealt with through other means - for example, by ensuring that jurors remained anonymous and were kept at a secure and secret location.

Those to whom I refer also pointed out that no other common law jurisdiction has come to the conclusion that the risk of jury intimidation warrants non-jury trial in a special criminal court.

The committee was unanimous in its view that it would be preferable that decisions to transfer proceedings to the Special Criminal Court would be based on the merits of individual cases "instead of some preconceived statutory assumption that persons charged with certain types of offences should be sent to the Special Criminal Court unless the Director of Public Prosecutions otherwise orders". The committee, therefore, unanimously came out strongly against the provision proposed by the Minister in section 8 in respect of the automatic classification of a group of offences as being capable of being presumptively tried before the Special Criminal Court. It was very much guided in its view in this regard by the decision in the Kavanagh case, to which I already referred. The UN Human Rights Commission was extremely critical of the law that existed in Ireland to the effect that the DPP could elect to try people before the Special Criminal Court. The commission stated that this should be based on reasonable and objective grounds. The Hederman committee stated that this could only be done on a case by case basis.

It must be stated, therefore, that the Hederman committee opposed the type of sweeping categorisation that marks section 8. That is a strong reason to oppose the section and to consider an alternative of the sort proposed by Senator Alex White, which would place the presumption in the opposite direction. In other words, the DPP would be obliged to justify referring cases to the Special Criminal Court. I ask the Minister to consider the fact that, quite apart from any issues with may arise in respect of the Constitution, the sweeping provision contained in section 8 is going to be in breach of the UN Human Rights Commission's interpretation. It will also be in breach of the International Covenant on Civil and Political Rights.