Vincent P Martin (Green Party) | Oireachtas source

I wish to put that on the record, in view of what I am about to say. I have a difficulty with this motion and I am most reluctant to support it, but I will because the Minister, Deputy Humphreys, is obviously relying on intelligence in her Department. Senator Bacik said that she was a practitioner in the Special Criminal Court for many years. I have been there as well as a practising barrister. Symbolically, it was in Green Street, which was isolated from the rest of what was then the Four Courts. A former Member of this House, Ms Mary Robinson, commented that this was unfortunate. The voluminous nature of the published law reporting from that court in the early days, because it was verbal, did not help. A very small number of senior counsel were involved, the then Senator Robinson said. There were Mr. Paddy McEntee and Mr. Seamus Sorohan, two wonderful senior counsel. Mr. Sorohan is since deceased. There was the level of security in Green Street and the fact that retired judges could serve on the Special Criminal Court, as could ex-military in the old days. All lent itself to a court that was clearly not rooted in common law.

At its heart was an admission that the ordinary courts were inadequate. However, the ordinary courts and jury trials are a cornerstone of our justice system. The UN Human Rights Committee has said one should only dispense with a jury trial in very exceptional circumstances. They are extraordinary courts for an extraordinary time. The question is, as Senator Bacik said, whether the evidence is there to continue. I am concerned about the rubber-stamping nature of this every year, without exceptional scrutiny to ensure they do not gain a de factopermanency.The minority view of the committee to review the Offences against the State Act came from the late Mr. Justice Anthony Hederman, Professor Dermot Walsh and Professor William Binchy. They expressed the view, with which I concur, that trial by jury is a cornerstone of the criminal law system as it ensures that the innocence or guilt of a person charged with an offence is determined by 12 randomly chosen members of the community, each of whom brings to the process the benefit of his or her life experience and individual perspective. Lord Devlin, in typically colourful language, said that trial by jury is the lamp that shows that freedom lives.

It is only in the most exceptional circumstances that I would support dispensing with the constitutional right to trial by jury. The Constitution contains many rights which would point to only getting rid of jury trials in the most exceptional circumstances. Therefore, I find the implied narrative contained in some contributions today to be slightly troubling and unfair. It has been suggested that those who express reservations about continuing with the practice of holding non-jury trials and with discontinuing such a basic fundamental right are somehow soft on crime or have sympathies or affiliations with a political party that may have friends or colleagues who found themselves in the position of being an accused before that court. I would take a leaf out of Senator Bacik's book here and point out that our Constitution guarantees equality before the law, including the right to equal protection of the law. We have a situation where two citizens of Ireland are tried for the same serious offence in two different formats; one is entitled to a jury trial while the other is not. The one who does not have a jury trial also faces weaker evidence tests, albeit closely scrutinised, where opinion evidence and a different interpretation of the right to silence are tolerated. These would not be tolerated in a jury trial.

There is a guarantee in our laws to defend and vindicate the personal rights of the citizen. We have a duty to uphold the rights of citizens and must do so and this includes the right to a fair trial and a jury trial. The test is whether there is an alternative in this day and age, especially with the advent of Covid-19. Can we screen juries? Can we have remote hearings? Can we keep the names of jurors out of the public domain? Can jurors remain anonymous? Hopefully, with the help of God, we will all be back here next year and I will bring this issue up again. I will be seeking succinct and cogent evidence that those tests have been met before I support another renewal. I appreciate, as the Minister said, that the report by recently retired Mr. Justice Michael Peart to be published imminently might be a signpost.

Human rights organisations, not just in Ireland but throughout the world, would say that only in the most exceptional circumstances should non-jury trials be conducted. The Minister is in the Chamber today to guide us as legislators. She has said that her intelligence is that this is absolutely and 100% necessary and in that circumstance I must, very reluctantly, support the recommendation. Her bona fides are not in doubt. She is acting in the best interests of the security of our country but I hope we will remain open-minded for the next renewal. We should never go down the road of the rubber stamp because we are depriving our citizens of such a fundamental right with this legislation.