LET’S be clear about the Special Criminal Court. It is a political court designed to fast-track convictions.
Since the foundation of the State, militant republicanism was considered the biggest threat to established government, and special courts were used to counter the danger. On occasions, they consisted of Department of Defence personnel who had the power to pass death sentences.
The history of the jury-less court goes back to 1939 although its present manifestation dates from 1972 when a Fianna Fáil government took the line that ordinary courts were failing to preserve public order.
The party’s fanatical conservatism was widely condemned and over the years the United Nations Commission on Human Rights, Amnesty International and the Irish Council for Civil Liberties (ICCL) have all expressed opposition to the indefinite continuance of the three-judge system.
Former President Mary Robinson, a trenchant critic, said it had become a ‘permanent fixture in the judicial structure rather than an emergency court.’
Nevertheless right wing politicos and media (the Indo/Sindo) have expressed such hearty enthusiasm for the court that last October Indakinny’s government decided to establish a second Special Criminal Court. Groups campaigning for the government’s compliance with its obligations under human rights law greeted the announcement with dismay.
According to ICCL executive director Mark Kelly, the UN Human Rights Committee repeatedly warned that Ireland was already in breach of its legal obligations under international human rights treaties. Mr Kelly said that the court was created ‘as an extraordinary court in extraordinary times but today no reasonable person could claim a public emergency was threatening the life of the nation.’
But last week in the wake of two gangland murders, politicos advanced the argument that the court should shift to a greater extent towards the conviction of common criminals. They claimed (without a shred of evidence) that jurors in ordinary courts were incapable of performing their civic duty because of threats from mobsters.
Much was made of the fact that the court was used to prosecute two Dublin gangsters following the murder of journalist Veronica Guerin. Drugs boss John Gilligan also was tried in the Special Criminal Court, as were the murderers of the Limerick businessman Roy Collins.
But, the fact of the matter is that, outside of those few cases, the people currently before the Special Criminal Court were not arrested for offences related to organised crime. They are dissident republicans, suspected of membership of an unlawful organisation. In other words, the court has been used only on a handful of occasions to prosecute mainstream criminals.
Right to fair trial
The question also arises as to why the mosquito groups that make up dissident republicanism, such as the Continuity IRA, continue to be seen as a serious threat to the state? Their political insignificance would suggest they pose no threat at all and, if that is the case, then what is the purpose of a court that admits evidence which otherwise would not be presented in a jury trial?
Why do we need a court that resembles a court-martial rather than an open and transparent civilian court?
Non-jury trials erode public confidence in our judicial system. The Irish Council for Civil Liberties put it well when arguing that although organised violent crime is of legitimate concern to our legislators, tackling it should not rely on chipping away at the right to a fair trial.
Problem is that Kenny has had such a woeful record in dealing with organised crime that people got the impression his government was unable to find a coherent way of dealing with the problem and, worse still, Kenny didn’t care. Few would deny that the administration of justice under Kenny has been feeble, ineffectual and sloppy, marred by one controversy after another.
In 2015 criminal gangs shot dead eight people. In 2014 there were twelve killings.
No one was charged. Bungling inefficiency has characterised our forces of law and order – a perception reinforced by the arrival of the fire brigade before the gardaí at the recent gangster slaughter in Dublin’s Regency Hotel.
Nor was the rule of law helped by the ferocious rows, controversy and recriminations that dogged the Department of Justice and Kenny. Included in the drama was the exit of Justice Minister Alan Shatter amid allegations that several serious criminal investigations had been mismanaged.
Then the Garda Commissioner resigned and, in another battle, the Garda Síochána Ombudsman Commission declared members of the force might have bugged its premises.
Hot on the heels of that scandal was a Garda tip-off to the media concerning the detention for drunk driving of Clare Daly, a TD who was critical of the force. She was later proved innocent.
Of considerable concern too was the revelation during the Sophie Toscan de Plantier wrangle that privileged conversations in some garda stations had been bugged.
And as the public scratched its head in wonder, various gangs, whose marauding expeditions seemed exempt from punishment or penalty, wreaked havoc in rural communities.
Law and order
Within that context, the government’s recent response to drug-related murders is interesting. As per usual the theme was that Fine Gael-Labour would be ‘tough on crime,’ the gardai would get heavy weapons (Clint Eastwood-style) and the Special Criminal Court would have an enhanced role in crime busting.
Inevitably, Kenny and chums were accused of crude politicking, especially in relation to their reliance on the Special Criminal Court for convictions. It was a dodgy course of action, considering that people still remember the shocking miscarriage of justice suffered by four innocent people at the hands of that court.
Great train robbery
On March 31st, 1976, Osgur Breatnach, Nicky Kelly, Brian McNally, Michael Plunkett and John Fitzpatrick, members of the IRSP, were arrested, forced to sign ‘confessions’ and brought before the Special Criminal Court for their supposed involvement in the theft of £200,000 from the Cork to Dublin mail train.
On the basis that their statements had been voluntarily made and their injuries self-inflicted, three of the men received twelve years sentences and one a nine years sentence.
What made the trial notorious was the habit of one of the three judges to fall asleep during sittings of the court. Disconcerting too was the resistance from the judge’s colleagues to halt proceedings.
In May 1980, the Court of Criminal Appeal quashed the convictions of Breatnach and McNally (Kelly, who had fled to America, had to wait until 1992 for a presidential pardon). All the accused eventually were declared innocent and received substantial compensation from the State.
The trial was a chilling reminder of the fact that as a mechanism for dispensing justice the Special Criminal Court was neither effective nor appropriate. It called into question the integrity of the entire Irish legal system – a criticism that remains valid to this day.