User:Jnestorius/Special Criminal Court

< Special Criminal Court

A Special Criminal Court (SCC) is a court in Ireland for trying serious criminal cases without a jury. The SCC is regulated by the Offences against the State Act 1939 (OSA) under the 1937 Constitution and replaced the Article 2A Tribunal established in 1931 under the 1922 Constitution. The SCC was conceived to deal with political subversion, in particular republican paramilitaries like the Irish Republican Army; it has also been used for wartime black marketeers and, since the 1990s, for organised crime cases. An SCC can only exist when Part IV of the OSA is brought into force by a government declaration that "the ordinary courts are insufficient"; the declaration is subject to overrule by resolution of the Oireachtas (parliament). SCC verdicts and sentences can be appealed to the Court of Criminal Appeal. The first SCC was created in 1939 during the Emergency declared for the Second World War, and sat until 1946; it remained in formal existence and was revived in 1961 towards the end of the IRA's "Border Campaign", sitting for a year until Part IV was brought out of force. A new SCC was created in 1972 and remains in existence. To deal with an increased workload, a second SCC was formally created in 2004 and first sat in 2014. Cases are heard by three judges. For the first SCC these were officers of Defence Forces of the rank of commandant or higher; for the 1972 SCC they were retired judges of the ordinary courts; since 1986 they have been active judges. Usually the three judges comprise one each from the High, Circuit, and District Courts. The SCC has sat in the Criminal Courts of Justice building since that opened in 2010, before which it sat in Green Street Courthouse.

Legal basis
[2005] IESC 86 §6.2:
 * The outstanding feature of the Special Criminal Court is that there is no right to trial by jury in such a court. The constitutional right to trial by jury is specifically excluded: Article 38.5. The nature of the Court is also made apparent in Article 38.6 which provides expressly that the provisions of Articles 34 and 35 of the Constitution shall not apply to a Special Criminal Court.

(Art 34 lists courts "Courts of First Instance", HC CA SC, and specifies judges' oath of office; Art 45 judges, appointed by Pres, indep, emolument.)

SCC cannot impose community service.

Hederman 20002 §9.6:
 * Although Articles 34 and 35 guarantee, inter alia, the public administration of justice by independent judges enjoying security of tenure and the existence of a right of appeal, the potentially sweeping effects of this exclusion have been diluted by the Supreme Court’s decision in Eccles v. Ireland. In this case the Court held that, Article 38.6 notwithstanding, judges of the Special Criminal Court enjoyed a constitutional guarantee of independence derived from an accused’s right to trial in due course of law as protected by Article 38.1 of the Constitution.

Scheduled offences
SI 1972/142: Offences under the
 * Malicious Damage Act, 1861.
 * Explosive Substances Act, 1883.
 * Firearms Acts, 1925 to 1971.
 * Offences against the State Act, 1939.

SI 1972/282:
 * section 7 of the Conspiracy and Protection of Property Act, 1875 [intimidation or annoyance by violence or otherwise]

OSA 1998 sec.14 makes offences, and sec.18 (mod. by CJA 1999) requires Oireachtas resolution every 12 months to keep in force.
 * 6. Directing an unlawful organisation.
 * 7. Possession of articles for purposes connected with certain offences.
 * 8. Unlawful collection of information.
 * 9. Withholding information.
 * 12. Training persons in the making or use of firearms, etc.

CJAA 2009 sec.8 makes some CJA 2006 offences scheduled, with Oireachtas resolution needed to keep in force; no limit on expiry of resolution but in practice resolutions are for 12 months; MJELR must prepare a report on operation before each resolution.
 * 71A Offence of directing a criminal organisation [added by CJAA 2009 sec.5]
 * 72 Offence to participate in, or contribute to, certain activities [subst by CJAA 2009 sec.6]
 * 73 Commission of offence for criminal organisation.
 * 76 Liability for offences by bodies corporate.

Pre-independence
Proclamation of areas, Defence of the Realm Act 1914, Restoration of Order in Ireland Act 1920.

Free State
The Constitution (Special Powers) Tribunal under Article 2A.

1937-62
Separate to the Special Criminal Court was the "Military Court"; for summary trial of people not members of the Defence Forces; this was allowed under a 1940 amendment of the Emergency Powers Act 1939, which was repealed on 29 July 1945.

Since 1972
Explosions at the Special Criminal Court in Green Street Court House on 15 July 1976.

Sec 34 of OLA 1939 provided that persons convicted by SCC lost state pension rights and were banned from state employment for seven years; 1991 SC ruling struck this out as unconstitutional.

Using retired judges was discontinued in 1986, after Eccles v. Ireland 1985 case argued retired judges lacked the independence guaranteed to serving judges under the Constitution. (Though Eccles lost his case; ECHR found court was "independent". ) McDowell 1993 at UNHRC said legal advice was that other than active judge was unconstitutional.

Kavanagh v. Government of Ireland [1996] 1 I.R. 321 established the SCC can hear non-subversive cases (Gerard Kavanagh was a drug gangster.)

1998 Good Friday Agreement govt committed to full review of OSA, at insistence of Sinn Féin. 1998 act amends OSAs52 Garda power to demand "full account of such person's movements and actions" by requiring more explicit about official status of demand and consequences of non-compliance.

2004 formally established second SCC; 2005 terrorism act did not relate specifically to SCC but tagged onto it was an amendment to OSA to cater for transferring cases to or between different SCCs. OSAs49 prev AG had power to specify which SCC; 2005 act's s53 amends to allow first SCC to transfer case to second. 2005 act's s.52 inserts OSAs39(4) "a Special Criminal Court is in existence if it has been established under this section and has at the relevant time not fewer than 3 members appointed under section 39" which means the 2004 SCC could not be abolished under OSAs39(3) as it has 0 members until 2016!

John Gilligan in 2005 successfully argued that the SCC could not make a confiscation order in relation to the profits from drug trafficking, as such an order was neither a criminal matter nor ancillary to criminal proceedings.

2009 SCC can use a "Combined Court Office".

2010 automatic right of appeal from SCC to CCA.

June 2011: "While the possibility of juror intimidation is removed through non-jury trials in the Special Criminal Court in cases related to organised crime, there are also specific legislative measures to counteract this problem.

The Criminal Justice Act 1999 (s.41) creates the offence of harming, threatening or menacing, or in any other way intimidating or putting in fear a juror or potential juror, or a member of his or her family, with the intention of causing the course of justice to be obstructed, perverted or interfered with. Potential jurors, i.e., people who have been called for jury duty but who have not been empanelled on a jury are covered by this legislation. The penalty for this offence was increased in the Criminal Justice (Amendment) Act 2009 so that it is now punishable on indictment by a fine and/or a term of imprisonment of up to 15 years.

The design of the new Criminal Courts complex reflects a concern for the protection of jurors and for reducing the scope for the intimidation of jurors."

28 October 2015: "A second Special Criminal Court was established by Government Order on 14 December 2004 and it is being brought into existence by the appointment by the Government this afternoon of seven serving judges to its bench, comprising 3 High Court, 2 Circuit Court and 2 District Court judges. The existing Special Criminal Court was established in 1972 under Section 38 (1) of the Offences Against the State Act 1939 and has 13 members (comprising 5 judges of the High Court, 3 judges of the Circuit Court and 5 judges of the District Court). The second Special Criminal Court will comprise 7 judges (3 High Court, 2 Circuit Court and 2 District Court)."

Oireachtas
6 June 1946: Mr. McGilligan: Information on Patrick McGilligan Zoom on Patrick McGilligan asked the Minister for Justice if he will state in respect of each of the years 1939 to 1945 and 1946 (to date), the number of persons (other than those tried summarily) who have been convicted for offences, distinguishing, in each year, those who have been so convicted by a Special Criminal Court, a Military Tribunal and the ordinary courts; and, further, if he will state in respect of those convicted by either the Special Criminal Court or a Military Tribunal, the number of persons in whose cases there was any charge, background or allegation either of violence or the threat [1459] of violence or intimidation or membership of or association with any unlawful organisation. [only 9 total in Military Court]

15 February 1962: "Mr. Treacy: Information on Seán Treacy Zoom on Seán Treacy asked the Minister for Justice if he will state (a) the names of all persons imprisoned for offences against the State at present serving jail sentences in the State, (b) the offence of which each prisoner was found guilty, (c) the sentence in each case, and (d) the type of court before which each prisoner was tried.

Mr. Haughey: Information on Charles J. Haughey Zoom on Charles J. Haughey I assume that the Question is intended to refer not only to convictions under the Offences Against the State Act, 1939, but also to convictions under the Firearms Act, 1925, or the Explosive Substances Act, 1883, where the evidence suggests that these offences were connected with the activities of illegal organisations. ... PART II—PERSONS SENTENCED BY THE SPECIAL CRIMINAL COURT. [details]"


 * 3 May 1962:


 * Mr. Corish: Information on Brendan Corish Zoom on Brendan Corish Would the Minister say whether or not State, semi-State bodies, or local authorities have any discretion at all in the application of Section 34?
 * Mr. Haughey: Information on Charles J. Haughey Zoom on Charles J. Haughey No discretion at all.
 * Dr. Browne: Information on Noel C. Browne Zoom on Noel C. Browne Is it the practice to send out a circular in the terms of the Minister's recent circular on each occasion on which a person is liberated from the Curragh or some other internment camp?
 * Mr. Haughey: Information on Charles J. Haughey Zoom on Charles J. Haughey I think the Deputy is under a misapprehension. The circular was sent out purely as a matter of administration under the Statute long before the amnesty was granted. There was no connection between the issue of the circular and the general amnesty.
 * [279]Mr. Corish: Information on Brendan Corish Zoom on Brendan Corish Does it mean that anybody who is in the employment of a local authority or some semi-State body automatically loses his job?
 * Mr. Haughey: Information on Charles J. Haughey Zoom on Charles J. Haughey For seven years, yes.

9 May 1962
 * Dr. Browne: Information on John McQuillan Zoom on John McQuillan and Mr. McQuillan asked the Minister for Justice the date on which a circular concerning the reemployment of persons convicted by the Special Criminal Court was issued by his Department; and the date on which that Court was recently established.
 * Minister for Justice (Mr. Haughey): Information on Charles J. Haughey Zoom on Charles J. Haughey Two notifications have been sent by my Department to other Departments relating to convictions by the Special Criminal Court of offences scheduled under the Offences Against the State Act, 1939. The dates were 9th January and 7th February last. The first notification covered all those who had been convicted up to then and the second one dealt with those convicted later.
 * The Special Criminal Court was established on 24th August, 1939, and has been in existence continuously since that date. However, it did not in fact sit since December, 1946, until the end of last year. On 22nd November last three vacancies that existed in the membership of five were filled and the first case that subsequently came before the Court was on 27th November.

23 May 1962: Dr. Browne: Information on Noel C. Browne Zoom on Noel C. Browne In view of the fact that a person who is denied employment in these circumstances is very unlikely to get employment in private, would the Minister not agree with the description given of this circular by the former Chairman of the Fianna Fáil Parliamentary Party that it amounts to a deportation order? Would he consider that a fair description of this most malicious and vindictive circular?

14 June 1973: "1.Mr. O'Malley: Information on Desmond J. O'Malley Zoom on Desmond J. O'Malley asked the Minister for Justice the number of cases before the Special Criminal Court in which evidence was given by a chief superintendent under section 3 of the Offences Against the State (Amendment) Act, 1972 (a) prior to 15th March, 1973, and (b) subsequent to 14th March, 1973.

Minister for Foreign Affairs (Dr. FitzGerald) (for the Minister for Justice): Information on Garrett Fitzgerald Zoom on Garrett Fitzgerald The numbers are eight and 24. The latter figure covers the period up to 31st May.

This evidence, of course, related to membership of an unlawful organisation and I should perhaps make it clear that, in approximately two-thirds of these cases, there were convictions on other charges."

4 July 1973: Two hundred and twenty-one persons were convicted by the Special Criminal Court in the period from its establishment on 30th May, 1972, up to 30th June, 1973.

8 April 1976: the pronouncement made on the bench of the Special Criminal Court by one of its members concerning the backlog of cases to be dealt with

1 December 1976: "I come now to the particular reason for introducing this Bill. It is that most of the statutory provisions allowing alternative verdicts are in terms of what “the jury” may do. This applies to all the statutory provisions that I have just instanced. Leaving on one side for the present summary trials, this method of drafting was appropriate for trials on indictment, because at the time when the enactments were passed these trials always took place with a jury. But now unfortunately some cases have to be tried before the Special Criminal Court, which sits without a jury. In the case of The People (Director of Public Prosecutions) v. Rice a man was tried last year before the Special Criminal Court for robbery and was convicted of assault with intent to rob. This was in reliance on the provision in section 44(1) of the Larceny Act, 1916, to which I have referred; but the Court of Criminal Appeal quashed the conviction on the ground that under that provision the power to convict of assault with intent to rob was exercisable by “the jury” and so was not available to the Special Criminal Court.

This situation is unsatisfactory, because the Special Criminal Court should clearly be able to give whatever alternative verdict a jury can give. Indeed before the Rice case this was thought to be the law. The Bill seeks to remedy the situation by providing—to state the matter shortly—that a criminal court sitting without a jury may make any determination that could be made if it were a court sitting with a jury. In particular, this will enable the court to [728] convict of an alternative offence in any case where a jury may do so."

28 October 1981: "497. Mr. G. Collins: Information on Gerard Collins Zoom on Gerard Collins asked the Minister for Justice the number of days that a Judge of the High Court sat on the Special Criminal Court in each of the past three years; the number of cases dealt with; and how many hours were necessary.

Minister for Justice (Mr. J. Mitchell): Information on Jim Mitchell Zoom on Jim Mitchell During the years 1979, 1980 and 1981 (up to the end of September) a judge of the High Court sat on the Special Criminal Court for the following numbers of days: 1979, 142 days; 1980, 150 days; 1981, 93 days (to end of September). The following numbers of cases were disposed of in each of those years: 1979, 53 cases; 1980, 43 cases; 1981, 26 cases (to end of September). No records are kept of the number of actual sitting hours of the court or of the time spent by members of the court considering decisions."

26 January 1983: Mr. De Rossa: Information on Prionsias De Rossa asked the Minister for Justice if he will state in respect of each of the year 1976 to 1982, inclusive [388] (a) the number of persons charged before the Special Criminal Court; (b) the number of persons convicted by the court; (c) the average length of prison sentences imposed by the court; and (d) the number of those convicted by the court who pleaded guilty and not guilty respectively.

4 February 1999: The Government is committed to keeping the question of the need for the Special Criminal Court under regular review. In 1997, following a Government decision, a procedure was instituted whereby it would decide, on an annual basis, on the continuing need for the Special Criminal Court. Following each such review the Government has decided that there is a continuing need for the court.

10 February 2005: "Section 49 of the 1939 Act provides that if two or more Special Criminal Courts are in existence at the time of sending forward a person for trial, the Director of Public Prosecutions must apply to try the case in the court that he selects. The Government established a second Special Criminal Court last December, but the judges have not yet been assigned to it. As such, the court is not able to hear cases. To ensure absolute clarity regarding the operation of this provision, the proposed amendment makes it clear that a court established under the Act is in existence only if it has not fewer than three members appointed to it. In other words, it is only from the time that the second court has at least three judges that the director must make the necessary application under section 49. This amendment is being tabled as a precautionary measure."

23 February 2005 Criminal Justice (Terrorist Offences) Bill 2002: From the Seanad.: "The Dáil went into Committee to consider amendments from the Seanad.

Seanad amendment No. 1:

In page 51, before section 52, the following new section inserted:

52.—Section 38 of the Act of 1939 is amended by adding the following subsection:

‘(4) For the purposes of this Act, a Special Criminal Court is in existence if it has been established under this section and has at the relevant time not fewer than three members appointed under section 39.’.

Minister for Justice, Equality and Law Reform (Mr. McDowell): Information on Michael McDowell Zoom on Michael McDowell Before dealing with this amendment, I will provide some background. As Deputies are aware, I obtained the approval of the Government last December for the establishment of an additional Special Criminal Court consisting of seven members. My objectives in this regard were twofold. First, dissident republican groups continue to pose a serious threat to the State. In this regard, I am determined to ensure that where persons who are intent on challenging the legitimacy and authority of the State are charged in regard to criminal offences, that such persons are brought swiftly to justice. In this context, the speedy resolution of trials before the Special Criminal Court will serve to demonstrate the State’s resolve to deal seriously with any activity which is a threat to the State.

Second, I am also mindful of the need to avoid any difficulty or challenge on the basis that persons are being held on remand for lengthy periods of time pending trial. There are currently five cases before the Special Criminal Court and the earliest date available for a new trial is [541]October 2005. Cases coming before that court can be complex and lengthy, as we have seen, and with only one court available, even one or two extra cases could greatly increase delays.

On 30 July 2004, in the case of Colm Maguire v. the Director of Public Prosecutions, the Supreme Court confirmed that, on application for bail, the question of whether a trial would take place is an admissible and important consideration. The court stated that if a long-deferred trial were in prospect, bail would be granted where otherwise it might be refused. As this House knows, following the referendum on bail, one of the grounds for refusal of bail, as a matter of constitutional and statute law, is where the prosecutor establishes there is a likelihood that, if admitted to bail, the accused is likely to commit a different serious offence.

That particular ground was introduced after a referendum, proposed by my predecessor, Nora Owen. However, the Colm Maguire case seems to indicate that this particular line of objection can itself be compromised if the State cannot provide an early date for trial. This presents a difficulty. For example, if a group of people is found in a paramilitary training camp and the Garda indicates to the court that it is objecting to bail on the basis that these were clearly paramilitary subversives intent on destabilising the State and carrying out serious crimes, it should not be the case that these legitimate objections to bail should be overturned by considerations such as the degree of delay in securing a Special Criminal Court trial by reason of that court’s existing commitments.

These amendments do not in any sense indicate that I have flagged in my complete belief that the preferable form of trial for indictable offences is jury trial. I am presenting no qualification of that view. As long as there is a need for a Special Criminal Court, however, those who are brought before that court must be dealt with in a timely fashion. My objective is not to institutionalise the court or make it more permanent. On the contrary, the purpose of this legislation is to ensure that the injustice of delay to both prosecutor and accused in the criminal process is obviated to the greatest extent possible, even in the special circumstances where the provisions of the Constitution for the establishment of Special Criminal Courts have, unfortunately, been necessarily invoked."

11 November 2011:

22 November 2011: Minister for Justice and Equality (Deputy Alan Shatter): I have no plans to abolish the Special Criminal Court.

25 October 2012: Portlaoise Prison remains the country's only committal prison for the Special Criminal Court and, as such, remains the State's high security prison.

4 November 2015: "Courts Service 118. Deputy Mattie McGrath Information on Mattie McGrath Zoom on Mattie McGrath asked the Minister for Justice and Equality Information on Frances Fitzgerald Zoom on Frances Fitzgerald her plans for the establishment of a second Special Criminal Court; when such a court will come into force; its composition; the funding to be provided; and the duration of same; and if she will make a statement on the matter. [38461/15]

131. Deputy Finian McGrath Information on Finian McGrath Zoom on Finian McGrath asked the Minister for Justice and Equality Information on Frances Fitzgerald Zoom on Frances Fitzgerald if the setting up of a second Special Criminal Court will assist those awaiting trial, and deal with delays; and if she will make a statement on the matter. [38607/15]

Minister for Justice and Equality (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald I propose to take Questions Nos. 118 and 131 together.

The Deputy will be aware that last week the Government appointed seven serving judges to the bench of the second Special Criminal Court that was established by Government Order on 14 December 2004. There is a backlog of cases in the existing Special Criminal Court with delays of approximately twenty months in cases coming to trial. Bearing this in mind together with the particular types of offences with which the Special Criminal Court is concerned, I sought the necessary Government approval to appoint judges to the second Special Criminal Court, thereby bringing it into existence.

The second Special Criminal Court comprises 3 High Court judges, 2 Circuit Court judges and 2 District Court judges. There are certain practical and procedural works which need to be undertaken before the second Court starts hearing cases such as organisation of a courtroom and chamber accommodation for judges and the drafting of rules of court among other things and I have requested that this work be commenced without delay. The appointment of additional court staff including a Court Registrar will be also required to facilitate the operation of the Court. Additional costs that will arise from the setting up of the second Special Criminal Court will be met from within the Courts Service Vote.

The Courts Service has informed me that the next available date for the hearing of cases before the existing Special Criminal Court is June 2017. I anticipate that when the second Special Criminal Court commences hearing cases there will be a reduction in waiting times for cases awaiting trial."

5 November 2015: "138. Deputy Ruth Coppinger Information on Ruth Coppinger Zoom on Ruth Coppinger asked the Minister for Justice and Equality Information on Frances Fitzgerald Zoom on Frances Fitzgerald if she will establish a timeframe for the abolition of the non-jury special criminal courts; and if she will make a statement on the matter. [38700/15]

Minister for Justice and Equality (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald Article 38 3. (1) of the Constitution allows for the establishment of special courts in accordance with the law in cases where it is considered that the ordinary courts are inadequate to secure the effective administration of justice. Section 38 of the Offences against the State Act 1939 provides for the establishment of Special Criminal Courts. Section 38 of the 1939 Act as amended also provides that the Government may, whenever they consider it necessary or desirable to do so, establish additional Special Criminal Courts as they think fit. It also provides that whenever two or more Special Criminal Courts are in existence the Government may, if and so often as they think fit, reduce the number of such Courts and abolish those existing Courts that appear to be redundant.

The Deputy will be aware that last week the Government appointed seven serving judges to the bench of the second Special Criminal Court that was established by Government Order on 14 December 2004, thereby bringing the second Court into existence.

There is a backlog of cases in the existing Special Criminal Court with delays of approximately twenty months in cases coming to trial. Bearing this in mind, together with the particular types of offences with which the Special Criminal Court is concerned, I sought the necessary Government approval to appoint judges to the second Special Criminal Court, thereby bringing it into existence.

There are certain practical and procedural tasks that need to be undertaken before the the second Courts can start hearing cases such as organising courtroom accommodation and chambers for judges as well as drafting of the necessary rules of court and it will also be necessary to appoint a Court Registrar.

I anticipate that when the second Special Criminal Court commences hearing cases there will be a reduction in waiting times for cases awaiting trial. The requirement for two Special Criminal Courts will be kept under review in this context; however I have no plans at present to abolish the Special Criminal Court."

Mr. Brendan Ryan [Courts Service of Ireland]: The waiting time for the Special Criminal Court at present is approximately 19 months but as the Senator is aware, the Oireachtas has approved a second Special Criminal Court. A meeting was held in this regard last Friday and we anticipate the second Special Criminal Court will start sitting early in the new year. I anticipate this also will have a positive impact on the waiting times there.

Motions continuing provisions in force
19 June 2013: The Minister of State has given us figures for the numbers of arrests and prosecutions, etc. It is of concern that no cases have yet come before the Special Criminal Court in accordance with section 8 since operation of the Act commenced four years ago.

19 June 2014: [Deputy Pádraig Mac Lochlainn: Information on Pádraig MacLochlainn Zoom on Pádraig MacLochlainn] I will now turn to the motion regarding the Criminal Justice (Amendment) Act 2009. Admitting that the ordinary courts are not adequate to deal with individuals who are involved in organised criminal activity is a sad reflection on any government or state. In such circumstances, the state in question has failed to deal with issues like jury intimidation and witness protection. If we are serious about dealing with organised criminal gangs, we need to put resources in place. I am sure those involved in organised criminal activity see the introduction of legislation to ensure they are tried before the Special Criminal Court as an admission of the State's failure to provide protections and safeguards to those who serve on juries. It is the wrong way to go and we will oppose this proposal for that reason. That is not flippantly to disregard the activities of these criminal gangs. We understand they cause misery and hardship, and have no regard for law and order. If we examine best international practice, we will see that other countries have found more effective ways of dealing with organised criminal gangs that do not involve institutions like the Special Criminal Court. The Special Criminal Court has been criticised by the Irish Council for Civil Liberties, Amnesty International and the United Nations Commission on Human Rights, for its procedures and for being a special court which ordinarily should not be used against civilians. Among the criticisms are the lack of a jury and the increasing use of the court to try organised ordinary crimes rather than the terrorist cases it was originally set up to handle. Amnesty International considers that under international standards and the law of Ireland, the onus is upon the Government to demonstrate that special courts are essential in current circumstances, in the words of the law because "the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order". The Government has not done so. On the contrary, the jurisdiction of the Special Criminal Court is not restricted to offences related to the extraordinary circumstances which led to its establishment. There is information available which shows that an increasing number of cases, which are not obviously related to offences against the State, are being tried in the Special Criminal Court, largely as a result of the exercise by the Director of Public Prosecutions of the power to certify cases involving other than scheduled offences for trial in the Special Criminal Court. This is simply unacceptable.

19 June 2014: Section 8 of the Criminal Justice (Amendment) Act 2009 makes these scheduled offences for the purposes of Part V of the Offences against the State Act 1939. While this means that the Special Criminal Court will hear prosecutions for the offences in question, the Director of Public Prosecutions may still exercise her power to direct that the offences should be tried in the ordinary courts. Permitting the DPP this discretion maintains the fundamental balance in deciding which cases are appropriate to be tried in the Special Criminal Court. A further bulwark in maintaining this balance is set out in section 8(4) of the 2009 Act which provides that the section shall cease to be in operation unless a resolution has been passed by each House of the Oireachtas resolving that it should continue in operation for a further period to be decided by the Oireachtas. In order to assist the House in considering the motion on the continuation of section 8, section 8(6) provides that before a resolution is passed, the Minister for Justice and Equality must prepare a report, which shall be laid before both Houses, on the operation of the section in the period under report. The report, covering the period from 1 June 2013 to 31 May 2014, was laid before both Houses on 16 June 2014. It provides considerable detail on the operation of the legislation. In all, there were 29 arrests under the relevant provisions. Charges have resulted in a number of these cases including charges in respect of murder, possession of firearms, burglary and the handling of stolen property.

17 June 2015: At the same time every year, these motions come before the House and are opposed by Sinn Féin. Every year, we request that proper time be allocated to a debate on the motions but our requests are always denied and the motions are passed.

11 November 2015
 * 108. Deputy Clare Daly Information on Clare Daly Zoom on Clare Daly asked the Minister for Justice and Equality Information on Frances Fitzgerald Zoom on Frances Fitzgerald if she will take on board the criticisms of the United Nations Human Rights Committee with regard to the establishment of a second non-jury Special Criminal Court, and take steps to abolish all forms of the Special Criminal Court, with a view both to compliance with international human rights standards, and to expediting the hearing of cases. [39791/15]
 * 109. Deputy Clare Daly Information on Clare Daly Zoom on Clare Daly asked the Minister for Justice and Equality Information on Frances Fitzgerald Zoom on Frances Fitzgerald if consideration was given to the abolition of the Special Criminal Court, as a means of dealing with the delays in hearing cases in said court, in the course of discussions regarding the establishment of a second non-jury Special Criminal Court. [39792/15]
 * Minister for Justice and Equality (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald I propose to take Questions Nos. 108 and 109 together. Article 38 3. (1) of the Constitution allows for the establishment of special courts in accordance with the law in cases where it is considered that the ordinary courts are inadequate to secure the effective administration of justice. Section 38 of the Offences against the State Act 1939 provides for the establishment of Special Criminal Courts. Section 38 of the 1939 Act as amended also provides that the Government may, whenever they consider it necessary or desirable to do so, establish additional Special Criminal Courts as they think fit. It also provides that whenever two or more Special Criminal Courts are in existence the Government may, if and so often as they think fit, reduce the number of such Courts and abolish those existing Courts that appear to be redundant. There is a backlog of cases in the existing Special Criminal Court with delays of approximately twenty months in cases coming to trial. Bearing this in mind, together with the particular types of offences with which the Special Criminal Court is concerned, I sought the necessary Government approval to appoint judges to the second Special Criminal Court, thereby bringing it into existence. However it does not necessarily mean that more cases will be referred to the Special Criminal Courts but that cases will be dealt with more quickly. The Deputy will be aware that the decision as to whether a particular case will be prosecuted before the Special Criminal Court is a matter for the Director of Public Prosecutions who is by law independent of the Government. I anticipate that when the second Special Criminal Court commences hearing cases there will be a reduction in waiting times for cases awaiting trial. The Government considers that there are good reasons for two Special Criminal Courts. However the requirement for two Special Criminal Courts will be kept under review in this context and I have no plans at present to abolish the Special Criminal Court.

Dominic Lynch removed from SCC but kept sitting on it
7 November 1996 [judge Dominic Lynch mistake] statements. 21 November 1996: The cases of all 21 persons who appeared before Judge Lynch at the Special Criminal Court are ongoing before the courts. 5 December 1996: Minister for Justice (Mrs. Owen): Information on Nora Owen Zoom on Nora Owen Apart from Judge Dominic Lynch the only other judge to have been relieved of membership of the Special Criminal Court since I came into office was the Honourable Mr. Justice Liam Hamilton who, on 16 May 1995, was removed from membership of the Special Criminal Court. He was replaced by the Honourable Mr. Justice Richard Johnson on that date. Judge Hamilton did not sit in the Special Criminal Court after the date of the Government decision to relieve him.

4 December 1996: Ceisteanna—Questions. Oral Answers. - Constitution of Special Criminal Court.

27 February 1997: "20. Mr. D. Ahern Information on Dermot Ahern Zoom on Dermot Ahern asked the Minister for Justice Information on Nora Owen Zoom on Nora Owen if she has set up a simple fail safe system for delisting judges from the Special Criminal Court and all court panels; and if she will make a statement on the matter. [4941/97]

48. Mr. Connolly Information on Gerard C. Connolly Zoom on Gerard C. Connolly asked the Minister for Justice Information on Nora Owen Zoom on Nora Owen  the procedures, if any, in place for delisting a member of the Special Criminal Court; and if she will make a statement on the matter. [5413/97]

Minister for Justice (Mrs. Owen): Information on Nora Owen Zoom on Nora Owen I propose to take Questions Nos. 20 and 48 together.

Deputies will recall I informed the House on 19 November 1996 that an assistant secretary in my Department has been given personal responsibility for ensuring that each Government decision affecting the Judiciary including removal or replacement of a judge of the Special Criminal Court is implemented and that I and the Secretary of the Department are immediately provided with written confirmation in each case that the decision has been implemented and that all necessary follow-up procedures have also been implemented. A procedure has been put in place for the removal of judges from the Special Criminal Court which, if followed, should ensure that a removed judge cannot inadvertently sit on the Special Criminal Court.

In addition I have restored the practice that all judges now receive a copy of Iris Oifigiúil, which had ceased in 1991."

2008 process: "Whenever it becomes necessary to appoint/remove a judge to/from the Special Criminal Court, a Memorandum is prepared in Courts Policy Division [of the DJELR] and submitted to Government requesting the Government to take the appropriate action. Following the Government decision Courts Policy Division notifies the judges concerned of the decision."

1996 CRG
In this regard it should be noted that the Constitution Review Group was of the view that special courts should be brought within the ambit of Articles 34 and 35:
 * The provision in Article 38.6 which exempts special courts (as distinct from military courts) from the provisions of Articles 34 and 35 of the Constitution does not appear to be warranted. The proposal is that the phrase “section 3 or” should be deleted from that sub-section. This would have the result that special courts would function under the same constitutional regime as the ordinary courts with the exception, of course, of a jury.

Oir Const Rvw
All-Party Oireachtas Committee on the Constitution in its 4th Report The Courts and the Judiciary. pp. 34-35.

Hederman Report 2002
Chapter 3 and Chapter 9.

Minority view Anthony J. Hederman, William Binchy, and Dermot Walsh favoured abolition (9.96); majority view favoured retention (9.38) with reforms, including regular Oireacthas review (9.39) and protection tenure of SCC judges (9.40).

UNHRC
The Committee considered the initial report of Ireland (CCPR/C/68/Add.3) at its 1235th, 1236th and 1239th meetings, held on 12, 13 and 14 July 1993: (Michael O'Flaherty critical of the proceedings )
 * 13. The existence of the Special Criminal Court was based, not on the 1976 declaration, but on a separate proclamation pursuant to the Offences Against the State Act, 1939, and article 38.3.1 of the Constitution, that the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order. Both the existence of a state of emergency and the need for the Special Criminal Court had been queried by certain members. He wished again to stress that the State, the rule of law and democracy were threatened by an ongoing campaign related to the problem of Northern Ireland. The continuing destruction and killings undermined the rule of law and democracy. The measures taken were, in the view of the Irish Government, appropriate, and were designed to ensure the fundamental rights of citizens. All those measures were subject to judicial control and were kept under continuous review by the Government.


 * 14. With specific regard to the Special Criminal Court, there had been bombings of courthouses and an escape from a courthouse using explosives, and it was necessary to provide armed police protection for judges serving on the Special Criminal Court. Threats had been made against the lives of judges, members of the judiciary in Northern Ireland had been singled out for attack, and a number had been murdered by the Provisional IRA. The Government would very much wish not to have found it necessary to resort to measures of that kind, if only because it enabled terrorist organizations to claim that they had achieved a victory by forcing the adoption of such measures. He wished to emphasize that the Special Criminal Court differed from the ordinary courts in only two respects. First, there was no jury. Secondly, instead of one judge there were three judges. In every other respect there was no difference. The same rules of evidence and legal representation applied, and the decisions of the Court were reviewable by the Court of Criminal Appeal.


 * 73. The Committee would always be greatly exercised by matters relating to the liberty of the subject and the rule of law. But while the Irish delegation should realize that the state of emergency, special criminal courts, protection from torture, legislation on public order and other issues would remain under the Committee’s close scrutiny, the report had demonstrated progress in many areas, and in the review of reservations, and held out serious prospects that by the time of the next report many outstanding problems would have been resolved.


 * 77. He also remained concerned about the matter of the banning of broadcast (especially televised) interviews with persons who were members of Sinn Fein, a duly constituted political party in the Irish Republic. Surely such prohibition was an instance of discrimination, and at variance with the provisions of article 19, and perhaps of article 25, of the Covenant?


 * 102. The ending of the state of national emergency might help to resolve other major human rights problems which hindered the proper application of the Covenant such as the existence of a Special Criminal Court and the strict laws on censorship. For instance, with the abolition of the Special Criminal Court, the principle of equality before the courts would finally prevail in the country. In that connection, he welcomed the recent judgement of the Supreme Court which had narrowed the interpretation of section 31 of the Broadcasting Act of 1961 but pointed out that further measures would be required to ensure the effective implementation of the provisions of article 19 of the Covenant.

The Committee examined the second periodic report of Ireland (CCPR/C/IRL/98/2) at its 1846th, 1847th and 1848th meeetings (CCPR/C/SR.1846-1848), held on 13, 14 and 15 July 2000, respectively. At its 1858th meeting, on 21 July 2000, the Committee adopted the following concluding observations.
 * CCPR/C/SR.1847
 * He confirmed that, like all courts, the Special Criminal Court fell under the purview of article 38, paragraph 1, of the Constitution. He further confirmed that an ordinary citizen would be tried by that Court only in the event of war or armed uprising, and that in 1977 the Government had instituted a procedure for periodic reviews of the need to keep it in operation. On each occasion, the reviews had confirmed that need.
 * Some members of the Committee were also concerned at the fact that accused persons were being tried by the Special Criminal Court without a jury. However, while the Covenant did not require States parties to provide for trial by jury, the Irish Constitution did. Trial without jury was therefore to some extent unconstitutional. The Committee should know that such cases were extremely rare and that the Special Criminal Court had tried only 14 such cases. Besides, statistics showed that there was no difference between the number of sentences handed down by that court and those pronounced by ordinary courts. The remedies available against such sentences were currently under study, but the matter was a delicate one, since such an appeal would entail an exhaustive review of the whole case. It was not inconceivable, however, that some proposals might be forthcoming from the Committee dealing with reform of the Offences Against the State Act.
 * As far as some Committee members were concerned, the existence of the Special Criminal Court also infringed the right of all citizens to equality before the law, enshrined in article 40 of the Constitution. It was Ireland’s specific situation that accounted for trials without jury. A jury could in fact be exposed to unbearable pressures, and the circumstances were sometimes such that the only way of ensuring the safety of threatened jurors was by resorting to that Court. Indeed, in certain cases, those involved in a trial - judges, jurors, witnesses and even forensic doctors - had every reason to fear for their lives. When a jury had to decide on the guilt or innocence of a party, it had to do so unanimously, without any of its members having to justify his or her decision. Thus a paramilitary group, for example, needed to threaten only one or two jurors to attain its ends. If the equality of all before the law was to be strictly guaranteed and implemented, the jury would then have to be eliminated in all cases, which would be tantamount to throwing out the baby with the bath water.
 * CCPR/C/SR.1848
 * 17.The Irish delegation had explained the necessity of the Special Criminal Court. However, members had been concerned not about the existence of the Court, but about the lack of legal foundation for its operations. For instance, some defendants in a certain case had been brought before that Court, while other defendants in the same case had appeared before ordinary courts.

United Nations Human Rights Committee 2008 3rd report:
 * The Committee reiterates its concerns about the continuing operation of the Special Criminal Court and the establishment of additional special courts. (arts. 4, 9, 14, 26) The State party should carefully monitor, on an ongoing basis, whether the exigencies of the situation in Ireland continue to justify the continuation of a Special Criminal Court with a view to abolishing it. In particular, it should ensure that, for each case that is certified by the Director of Public Prosecutions for Ireland as requiring a nonjury trial, objective and reasonable grounds are provided and that there is a right to challenge these grounds.

United Nations Human Rights Council Special Rapporteur 2012:
 * The Special Rapporteur reiterates the recommendation made by the Human Rights Committee that the State should monitor the need for the Special Criminal Court carefully with a view to its abolition.

Law reform commission
LRC report:
 * 7.41 As to whether the use of non-jury courts can provide a solution to jury tampering, there was no consensus expressed in the submissions received or in the subsequent discussions with interested parties. The Commission notes in this respect that this reflects the differing views on the continued use of the non-jury trials in the Special Criminal Court illustrated in the 2002 Report of the Committee to Review the Offences Against the State Acts 1939-1998. The Commission also notes that, since the enactment of the Criminal Justice (Amendment) Act 2009, the Oireachtas has continued in being from year to year the provisions of the 2009 Act that provide for the transfer to the Special Criminal Court of specific offences connected with organised crime.
 * 7.42 The Commission considers that this raises wider questions outside the scope of this Report but it also considers that there is a strong argument, as described in the 2002 Report of the Committee to Review the Offences Against the State Acts 1939-1998, in favour of a re-examination of whether the use of scheduling of offences complies with the State’s obligations under international law and whether a more individualised case-by-case approach may be justified. The Commission also notes in this respect that the provisions in sections 44 to 50 of the United Kingdom Criminal Justice Act 2003 provide such a case-by-case approach to the use of non-jury trials where jury intimidation is at issue.

Political parties
Sinn Féin favours abolition at the Irish general election, 2016

Court cases

 * [2005] IESC 86 Gilligan -v- Special Criminal Court & ors

Legislation



 * Proclamations:
 * ceases Part II of Act (internment?)
 * (Section V out of force)
 * (Section V in force)
 * (court has 3 members)
 * (court has 7 members)
 * (court has 7 members)


 * Returns:
 * Part II detentions -- none
 * Part II detentions -- none


 * Court Rules:
 * S.I. No. 183/2016 - Offences Against the State Acts 1939 to 1998 Special Criminal Court No. 2 Rules 2016 signed by 4 "Members of the Special Criminal Court established on the 14th day of December, 2004"
 * S.I. No. 182/2016 - Offences Against the State Acts 1939 to 1998 Special Criminal Court No. 1 Rules 2016 signed by 7 "Members of the Special Criminal Court established on the 30th day of May, 1972"; rules "annul and replace the Offences Against the State Acts 1939 to 1972, Special Criminal Court Rules 1975 and the Offences Against The State Acts 1939 to 1998 (Special Criminal Court Rules) 2001,"
 * S.I. No. 536/2001 — Offences Against The State Acts, 1939 To 1998 (Special Criminal Court Rules), 2001
 * S.I. No. 234/1975 — Offences Against The State Acts, 1939 To 1972 Special Criminal Court Rules, 1975, "supersede the Special Criminal Court Rules, 1972"
 * S.I. No. 147/1972 — Offences Against The State Act, 1939 (No. 13 of 1939) Special Criminal Court Rules, 1972
 * S.I. No. 441/1942 — Additional Rules of Special Criminal Court Established on The 24th Day of August, 1939 signed by 5 members
 * S.I. No. 346/1939 — Offences Against The State Act, 1939. Additional Rules of Special Criminal Court Established on The 24th Day of August, 1939 signed by 5 members
 * S.I. No. 266/1939 — Offences Against The State Act, 1939. Rules of Special Criminal Court, 1939 signed by 5 members


 * Scheduled offences:
 * S.I. No. 282/1972 — Offences Against The State (Scheduled Offences) (No. 2) Order, 1972
 * S.I. No. 142/1972 — Offences Against The State (Scheduled Offences) Order, 1972
 * S.I. No. 192/1948 — Offences Against The State (Scheduled Offences) (Cessation) Order, 1948 (ceased orders 4 to 7)
 * S.I. No. 326/1947 — Offences Against The State (Scheduled Offences) (No. 7) Order, 1947
 * S.I. No. 282/1947 — Offences Against The State (Scheduled Offences) (No. 6) Order, 1947
 * S.I. No. 212/1947 — Offences Against The State (Scheduled Offences) (No. 5) Order, 1947
 * S.I. No. 205/1947 — Offences Against The State (Scheduled Offences) (No. 4) Order, 1947
 * S.I. No. 334/1940 — Offences Against The State (Scheduled Offences) (No 3) Order, 1940
 * S.I. No. 343/1939 — Offences Against The State (Scheduled Offences) (No. 2) Order, 1939
 * S.I. No. 339/1939 — Offences Against The State (Scheduled Offences) Order, 1939

Photo archive
Tag "special criminal court"

References to cite

 * [for comparison with other crinminal courts; mentions video link to Portlaoise Prison and Letterkenny District Court]
 * basic summary
 * Roy Collins murder in 2009 led to anti-gang legislation and McCarthy-Dundon gang members tried in SCC to avoid intimidation of Limerick jury.
 * "creeping ... normalisation of emergency powers"
 * [further critical comment on other pages]
 * Charles Falconer, Baron Falconer of Thoroton states that the SCC did not provide a model to replace the Special Immigration Appeals Commission, as (1) burden of proof is too high for preliminary or outer conspirators (2) evidence might be inadmissible (3) evidence presented in open court might compromise national security
 * most persons tried in SCC will have arrested under s30 of OAS 1939, which has its own "interrogation regime".
 * [two ECHR decisions on admissibility]
 * Roy Collins murder in 2009 led to anti-gang legislation and McCarthy-Dundon gang members tried in SCC to avoid intimidation of Limerick jury.
 * "creeping ... normalisation of emergency powers"
 * [further critical comment on other pages]
 * Charles Falconer, Baron Falconer of Thoroton states that the SCC did not provide a model to replace the Special Immigration Appeals Commission, as (1) burden of proof is too high for preliminary or outer conspirators (2) evidence might be inadmissible (3) evidence presented in open court might compromise national security
 * most persons tried in SCC will have arrested under s30 of OAS 1939, which has its own "interrogation regime".
 * [two ECHR decisions on admissibility]
 * Charles Falconer, Baron Falconer of Thoroton states that the SCC did not provide a model to replace the Special Immigration Appeals Commission, as (1) burden of proof is too high for preliminary or outer conspirators (2) evidence might be inadmissible (3) evidence presented in open court might compromise national security
 * most persons tried in SCC will have arrested under s30 of OAS 1939, which has its own "interrogation regime".
 * [two ECHR decisions on admissibility]
 * [two ECHR decisions on admissibility]