Rónán Mullen (Independent) | Oireachtas source

The Minister is very welcome. I support the motion before us today as I have done on each previous occasion on which it has been before us. On the whole, the Special Criminal Court has been an effective tool against subversive elements and in recent years, organised criminal gangs and for this reason, it is worth retaining.

However, the case for its retention is far from unanswerable. I am broadly in agreement with much of what Senator Ward has just said. We need to be clear that the ultimate aim of the Oireachtas is for there to be a time when the shutters can be brought down on that court. To believe it should exist permanently would be to admit that jury courts are incapable of operating effectively and that would be wholly wrong.

There is a lot of hypocrisy and posturing around this issue. I noticed that Senators Ward and Conway were very reluctant to name names but I am not so reluctant. I do not for a moment accept the position of the Sinn Féin Party on the existence of the Special Criminal Court, even if it appears to have moderated that position in recent years. Sinn Féin's opposition to it has morphed from resentment over the fact that the court is so successful in convicting many fellow members of its movement to a fauxconcern for human rights and the philosophical values of trial by jury. I do not think anybody buys into that metamorphosis for a second. Equally, I do not buy into the absolutist position of many. I think Senator Ward would acknowledge that there are many in his own party who have a more absolutist position in favour of the Special Criminal Court and seem to view its existence as some kind of sine qua nonfor a society that values law and order as if the court was a thin blue line standing between ourselves and Babylonian chaos and disorder. In their eyes, any criticism of the court's existence is seen as being somehow soft on crime, criminal gangs and subversive organisations, which is simply not the case. There are many legitimate criticisms to be made of the existence of the Special Criminal Court.The right to trial by jury of one's peers has existed since Greek and Roman antiquity and it should not lightly be cast aside without acknowledging just how serious a step that always is.

We should not pretend that the Special Criminal Court is somehow an ideal forum which produces the right results every time and is free from external influence or interference. We recently marked the 25th anniversary of the capital murder of the late Detective Garda Jerry McCabe. As we know, reduced charges of manslaughter were brought by the State in that case because it was feared that murder convictions might not be secured because of the intimidation of key prosecution witnesses by persons connected to Sinn Féin and the IRA. While the Special Criminal Court by its nature prevents the intimidation of juries, it has clearly not prevented the intimidation of witnesses. It is an imperfect solution to a very serious problem.

It has also been documented that in the days following the killing of Detective Garda McCabe, his murderers were put up in a safe house in the Border area where they were met by the late Martin McGuinness, a man spoken of in this House, on RTÉ and elsewhere in recent years as if he were Mahatma Gandhi. When those murderers were released from prison, they were met by a Sinn Féin TD, then Deputy Martin Ferris, which all goes to show the layers of hypocrisy involved here. It is important that we do not forget the origins of Sinn Féin's opposition to this court. It is important that we are honest at all times, even while we welcome new developments, attitudes and processes.

On the question of civil liberties, we should always be vigilant about them and the rights of accused persons. I say this in light of the proposed Garda Síochána powers Bill 2021, which seems to propose a massive and radical increase in the powers of the Garda and could expose entirely innocent individuals to prosecutions and heavy penalties for doing nothing other than defending their constitutional right to privacy, the right to silence and the presumption of innocence. I have grave concerns about the kites that have been flown in relation to this proposed Bill. These have been criticised very well in print by my colleague, Senator McDowell, Dr. T.J. McIntyre of UCD and others.

The power to seek passwords for phones and so on for all persons and all suspects, and connected persons, regardless of circumstances would be huge in its scope and has not to date even been sought by the Garda. Why is this being floated? To be clear, there are circumstances - a narrow set of crimes - where there is that power to demand passwords, etc., but the proposal that gardaí, when carrying out search warrants, could demand of people their passwords or personal identification number, PIN, numbers, to require them to biometrically unlock their phone or tablet using their fingerprint or face if they are a suspect, a relative of a suspect or a person living with a suspect, and that that requirement could be made on the spot without a person having access to a solicitor, seems draconian. It is worrying that this is being proposed. It reminds us that the freedoms we take for granted are not always safe, even in societies that view themselves as democratic. It is a reminder to us that we need careful scrutiny of what government proposes from time to time. It is a reminder to political parties that, even though they might have the majority in government and might be in a position to vote everything their Government wishes through and to limit opposition through mechanisms such as the guillotining of legislation, they really should not do so as there is an awful lot at stake.

On this particular issue, we must not forget that, in a free and open democracy with a written constitution, and which values the rule of law, the idea should always be that we must restrict people's rights and liberties only in the most minimal way possible and in ways which are aimed only to bring about the safety and security of everybody in society. As matters stand, the existence of the Special Criminal Court is a legitimate abrogation of the right to jury trial but the proposals that I am reading about in these days in the proposed Garda Síochána powers Bill go way beyond what could ever be acceptable in a democracy.