Barry Ward (Fine Gael) | Oireachtas source

I dtús báire, ba mhaith liom comhghairdeas a dhéanamh leat, a Chathaoirligh, faoin bpost atá agat anois. Tá súil agam go n-éireoidh leat sa Chathaoir sin. I also welcome the Minister to the Chamber and congratulate her on her appointment. We are very lucky to have somebody of her experience and skills to take over such an important portfolio, and I am confident she will do an excellent job to safeguard us all. The legislation she has outlined to the House is perhaps a very important part of that. I take on board entirely what she has said about the significance of this legislation and its importance in protecting society and citizens in this country. A number of agencies and non-governmental organisations have expressed concerns about the operation of the Special Criminal Court and the manner in which it operates. However, I recognise its importance, it has its place, and the Minister has given us very clear reasons that is the case.

As a practising criminal barrister, I am very attached to the notion of juries and very concerned about situations in which we do not have them. Juries are an important part of the criminal justice system and take important factual decision-making out of the hands of people who have seen it all before, perhaps jaded lawyers. Every judge will have practised for a long time as a lawyer at the very least and will have seen it all before. The important thing about juries is that they bring fresh eyes to a case and mean that the factual decisions are made by ordinary citizens. Juries are also an important link between the citizenry and the administration of justice. I do not for a moment underestimate the importance of juries. Notwithstanding that, the Special Criminal Court, and non-jury courts in general, have been an important part of criminal justice for over a century. The Special Criminal Court has its place, and it is extremely important we pass this legislation again, as the Cathaoirleach and other speakers have noted.

Having a Special Criminal Court operating in the way it does in Ireland is predicated on a number of things. Obviously, we have rules of evidence and fair procedures that are safeguarded by other courts and the decisions of the Special Criminal Court being reviewable to those courts up the line. There is also the fact that there is a functional legal profession which defends the rights of persons before the court. It is also important to have good and fair judges who apply the law in an even-handed way. In the context of this legislation, it is really unfortunate that in the past week we have seen Members of the Oireachtas openly, unfairly and unjustly criticise judges merely for the decisions they have made and simply, it seems, because those Members did not understand those decisions or did not agree with them. I was also disappointed to see a second party and the chairman of the Labour Party weighing in on that and supporting that decision. We, as legislators, must recognise the separation of powers in this country and the importance of an independent Judiciary and judges who exercise their powers without fear or favour and without wishing to curry popularity with politicians. The Judiciary is an extremely important institution within the State, and we must recognise that. The kinds of comments we saw last week and the kinds of campaigns that were launched last week are totally unacceptable.

Notwithstanding that, and I ask the Minister to take this under review in the coming year as we look perhaps at this legislation again, we should look at the manner in which the Special Criminal Court operates. At the moment the decision as to whether certain cases go into the non-jury court or not is made by the Director of Public Prosecutions and she will certify whether a case is appropriate for that procedure or not. She does so sparingly, in fairness to her, and carefully. Notwithstanding that, the DPP is not a disinterested party within the process, and it seems to me appropriate that that decision could or should be taken out of the hands of the prosecutorial authorities and perhaps put into the hands of an independent judicial authority, perhaps a High Court judge. An application could be brought by the DPP to the High Court as to whether a case is appropriate for treatment by the Special Criminal Court, a non-jury court, or not. I think that would deal with many of the concerns expressed by the NGOs I mentioned earlier.

As I said already, the protection of the rules of evidence for defendants before the Special Criminal Court is extremely important. However, where rows arise in the course of a trial as to whether a piece of evidence is admissible or not, in a normal jury trial the jury would be excluded for consideration of the admissibility of that evidence. If the evidence is excluded thereafter, the jury considers the factual matrix without having any knowledge of the evidence that was deemed inadmissible. By contrast, in the Special Criminal Court, a voir direhearing, or that kind of evidential hearing, takes place not just before but for the decision of the judges who are also the jury, if you like, in the case of a Special Criminal Court trial. It seems to me that we should also look at the evidential provisions in the course of the practice and procedure in the Special Criminal Court to see if there should perhaps be a separate judicial authority to make rulings in respect of evidential questions that arise in the course of a trial.

As I said, however, I take on board entirely what the Minister said about the importance of this legislation, the rationale for it and the fact the Special Criminal Court has a very clear place in the Irish criminal justice system. I would be grateful if she would consider some of the modifications I have suggested to hone the system and to create even greater safeguards for persons brought before that court in order that we could perhaps consider putting in place a system that is more transparently independent than the one that currently exists.