Michael McDowell (Independent) | Oireachtas source

I support the two resolutions and it would be a mistake at this time to allow either set of legislative provisions to lapse. The Minister of State's speech makes reference to the attempted murder of an RUC officer and the finding of improvised explosives devices in Ravensdale, County Louth, in recent times. There is in our society a movement that still believes it is somehow part of the Irish Republican Army, and its ideology, crazy as it may seem, is that the army council of that organisation is the legitimate government of this country. Anybody who doubts me should look at their green book. They arrive at that view by saying that in 1938 some surviving members of the second Dáil, which was elected in 1920, convened and vested the powers of the second Dáil in the army council of the IRA. Thereafter we have faced a group of people who have denied the legitimacy of this State and who claim they commit no crime when they act on the authority of the army council of the IRA. Of course, the army council of the IRA is a moveable feast, because these people regard themselves as the legitimate army council of the IRA and therefore commit no crimes when they shoot Irish gardaí, PSNI men or British soldiers or when they extort, bomb, maim and do all of the things that terrorism has done on this island. The sad fact is there are many people here, and some in this House, who still believe in that ideology. They still believe that the legitimate powers of the 1916 republic are vested in the army council of the IRA, and that this State is an illegitimate and temporary arrangement in which they participate, and its democratic institutions fall into that category. They have never publicly renounced what is in the green book, and what all of their volunteers undertook on oath to uphold and which they have always defended. What are called the dissident republicans are willing to kill in furtherance of that mad ideology. It is about time that all political parties fully subscribed to the proposition that, in this State, there is one legitimate government, which is the legitimate government of this State, and no other group outside the institutions that exist north and south of the Border has any power or legitimacy, or a higher ranking in legal or constitutional authority. That is the first thing.

The second thing I want to say is I believe passionately in jury trial. I believe so strongly in jury trial, that it would almost make you weep on occasions when you see, particularly in the United Kingdom, proposals to abridge the right to criminal trial, in complex fraud cases for example, or to get rid of the current backlog of cases post Covid. The constitutional right to trial by jury is happily guaranteed in the Constitution. From that point of view, there are not such pressures here. However, I recall on one occasion as Attorney General having to consider the issue as to whether petty theft could be made a non-jury case triable in the District Court. I remember thinking, and being strongly of the view, that if a bishop, Taoiseach, Tánaiste or somebody else is accused of shoplifting and convicted, it is the end of his or her career. To say to a young lad from a working-class background that he cannot have a trial by jury, but important people can, would be utterly at variance with constitutional values. In that context, I remember researching what some judges have said. The late Cearbhall Ó Dálaigh stated, and it has rankled with me ever since, that the constitutional provision protecting the right to trial by jury was not in any sense a statement that the then existing Judiciary, of which he was one, was not suitable to try crimes by itself but a bulwark against a possible future Judiciary which would not be so impartial. Judges, by their very nature, become case-hardened. This is particularly so in the District Court where non-jury trial for summary offences is available. When it comes to that court, district judges are always in the position that if they say they have a reasonable doubt about a garda’s evidence, they are effectively saying they do not believe the garda. This is the man who comes up before them every day of the week. By saying they have a reasonable doubt about whether his evidence or his account of this is true, they are effectively painting themselves and the garda into a corner.

In important matters, there should always be a trial by jury, and that applies to every crime that one can imagine. On the other hand, I know from my own experience that the killers of a well-known garda did their best through their own organisation to procure the non-attendance of witnesses at trial and to avoid convictions for murder. That is the kind of thing that has happened in the past - that use of organisational influence to try to procure a miscarriage of justice. I have no doubt that the super-gangs we see based in the Middle East, Spain and the like would have the capacity to interfere with and intimidate jurors. Our protection of juries is very lax and they are not protected in any real shape or form. Anybody with a bit of nous and determination could identify the jurors, follow them home and intimidate them or members of their family very easily. Therefore, preserving the right to trial by jury for the great majority of people on occasion does force us to accept what is written into the Constitution, namely, where the ordinary courts are inadequate to secure the proper administration of justice, there can be special criminal courts. Of course, they should be used in a minority of circumstances and used sparingly.

I note what the Minister of State said about transparency in regard to the process whereby the Director of Public Prosecutions directs prosecution in a non-jury court rather than a jury trial. That decision is, by judicial decision, beyond the purview of the Judiciary, which has said this is not an issue on which it can intervene. The law says that, under the Constitution, it has been determined in accordance with law that a particular case is to go to a non-jury trial and the Judiciary does not have a function to investigate whether that is a correct or incorrect decision. All that I am saying is that people can press for transparency on that front but if they press for transparency to the point where judicial review of that decision becomes possible, the proper mechanisms, which have worked so well in ensuring the Special Criminal Court operates and is not abused, will be subject to being dragged into the legal mire of people squabbling at great length, up and down through the High Court, the Court of Appeal and the Supreme Court, about the venue of their trial. That should not be permitted.

I am strongly in favour of the two motions even though I am passionately committed to the principle of jury trial for the great majority. I simply say that if we want to preserve public faith in jury trial for the great majority, we must be willing to support what the Constitution says, and the Constitution says that Special Criminal Courts may be established where it has been determined in accordance with law that the ordinary courts are inadequate to secure the proper administration of justice.