Lynn Ruane (Independent) | Oireachtas source

I am firmly opposed to the renewal of the Offences Against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009. My colleagues in the Civil Engagement Group echo that view. I reiterate the concerns that we have expressed on each previous occasion on which motions for renewal have been considered. Those concerns are well founded and have been raised regularly by many other legal and political representatives, civil and human rights groups, such as the Irish Council for Civil Liberties, ICCL, and multilateral organisations, including the United Nations Commission on Human Rights.

As my colleagues have noted, the Special Criminal Court was originally established under the Offences Against the State Act 1939 to prosecute members of the IRA and ensure the new State was not undermined. The version of the court we know today came into operation in 1972 as a stated emergency response to the Troubles. Since then, it has been in continuous use, with its scope expanded to include responding to the threats posed to the State by terrorism and, since 2006, organised crime. The court has been routinely opposed by human rights advocates and organisations since the 1970s, including the former President of Ireland, Mrs. Mary Robinson, who delivered an address in this Chamber a fortnight ago.

While the context for the court's original establishment is, of course, legitimate, it is deeply concerning that it has become a de facto permanent fixture of Ireland's criminal justice system. The calls for its abolition and reform over the years have been consistent and powerful but, to date, they have fallen on deaf ears. I hope the Minister of State will update the Seanad on the prospect of reform in the lifetime of the Government in response to the recommendations of the independent review group in its review of the Offences Against the State Acts, which was commissioned by the Minister, Deputy McEntee, in 2021.

I will briefly highlight some of the main issues with the Special Criminal Court and its continued operation. The first is that the court operates without a jury. While the independent review group agreed in its 2023 reports that the right to trial by jury is not an absolute right under the Constitution, it stated that it is a fundamental part of the right to a fair trial as guaranteed by Article 38.1. Trial by jury is a foundational pillar of a fair and impartial criminal justice system, ensuring that the innocence or guilt of a person is determined by 12 of their representative peers. The minority report of the 2023 independent review group, signed by Dr. Alan Greene and Professor Donncha O’Connell, highlighted that, notwithstanding a paucity of data, conviction rates in the Special Criminal Court are "markedly higher than those of the High Court and Circuit Court where juries are used". This finding is a matter of significant concern. While the intention of this provision is to prevent the intimidation of jurors, there are various other mechanisms that could be employed to achieve this without forgoing the principle of a trial by jury.

Separately, in 1972, the Government introduced a controversial provision in the Act which allowed for the uncorroborated opinions of a chief superintendent of An Garda Síochána to be treated as fact in cases before the court, with no evidence required. This problematic practice continues to the current day. While entirely unrelated to the motion we are considering today, there is a not entirely dissimilar provision in the Parole Act and the attending Procedures of the Parole Board wherein the perspective of an arresting garda can be sought as part of the consideration of an individual's readiness for parole. The garda's view is not required to be corroborated and, in some cases, shared, with the individual, particularly in circumstances where there is a perceived threat to the security of the State. This is not directly related to the motion we are considering today but it is related in terms of how we deliver justice for some. I flag it to the Minister of State.

Another concern I have relates to a person's fundamental right to silence, which is infringed on in Special Criminal Court proceedings. In proceedings of the court, if a person accused of a crime chooses to remain silent, his or her silence can be used as supporting evidence in the case being taken against him or her. While an individual is not explicitly precluded from remaining silent on account of this provision, it has the effect of denying people that right owing to the high risk of a miscarriage of justice.We cannot and should not normalise or embrace this part of our ordinary criminal justice system, the provisions of emergency legislation, especially in circumstances where there is such a significant risk of human rights infringements and miscarriages of justice. By continuing with these emergency provisions, we are effectively stating that our ordinary courts are not capable of delivering justice in respect of the serious matters generally referred to the Special Criminal Court. I do not believe this to be the case. I am a confident that the Minister shares this view.

Both in 2000 and in 2003, independent review groups were explicit in their calls for reform. There is no longer any justification for our inaction. I understand that the Department has engaged in detailed consultation on the recommendations of the 2023 independent review group. In considering its report I hope the Minister of State, in his reply, will be in a position to provide greater clarity about the Department's response to the reports and their recommendations, and provide a timeline for long-overdue reform of the Special Criminal Court.

I understand the history of the Special Criminal Court and why it was necessary. However, through my work with the groups of people I work with, I know that people have ended up before the court under the guise of organised crime who may be men with very little power in any organised crime group. However, because they were either used or had to do something that was definitely not within their power to say "No" to, they are also denied a jury. This means they are both powerless in the world of what we call organised crime, and their power is further reduced by not having access to a jury.

It is somewhat an aside but sometimes, when looking at organised crime, there is an idea that it is about gangs, which makes the Special Criminal Court necessary. Often, in some communities a group is considered a gang because the members grew up on the same street and happen to be involved in a similar crime or they happen to be involved in whatever. However, a group of people does not necessarily create a gang. Just because a person is adjacent to what may be considered an organised crime gang, does not mean he or she has the protection of that crime gang. This means the person not only has not the protection of the illegitimate power of an organised crime gang, but is not protected by the State in being able to have access to jurors. That is wrong. The decisions that are made about who does or does not end up before the Special Criminal Court are seriously questionable.