The Special Criminal Court; A Contentious Arm of the Judiciary

Published on 18 November 2020 at 14:53

The Special Criminal Court (SCC) is a three-judge court, with no jury, which sits in the Criminal Courts of Justice Complex in Dublin. The origins of this court date back to the foundation of the Irish Free State in 1922. The 1922 Constitution allowed for military tribunals; the SCC is the modern version of this but it is important to note that there has not been a member of the Defence Forces sitting on a court such as the SCC since the conclusion of the Second World War. It’s purpose is to deal with crime where the "ordinary courts are inadequate to secure the effective administration of justice". It deals primarily with terrorist/gangland offences.


There are two types of offences that may end up in front of the SCC; scheduled offences and non-scheduled offences. The scheduled offences are found in the Offences Against the State Act 1939 (1939 Act) which include, possession of firearms, explosives and membership of an unlawful organisation. These are automatically dealt with by the SCC unless the DPP feels that the court need not be used. It is measured on a case by case basis. Non-scheduled offences are offences which are not listed in the 1939 Act but the DPP feels they should be heard in the SCC. Examples of which would be gangland murder.


An example of a high profile case which came before the SCC would be the trial of John Gilligan for the murder of journalist Veronica Guerin, in which he was found not guilty[1]. The SCC raises a number of constitutional and human rights concerns due to the omission of a jury involved in the court proceedings. The UN and other international rights authorities in the world show no restraint in criticising the Court. If the Court raises so many constitutional concerns, why is it upheld in the Supreme Court every time an appellant raises the question of its constitutionality?


To maintain the SCC’s standing in law and to be lawful, it requires emergency legislation every year. It is not permanent like the Supreme Court, it can be dissolved and brought back at a later time. This has happened three times throughout the history of the State if we include the military tribunals which were set up during the War of Independence and during the Second World War. The rationale behind the military tribunals was to curb the IRA and the threat they posed to the nation.


Often, there are cases brought against the 1939 Act due to various reasons such as its potential infringements on the presumption of innocence, adverse inference provisions, reverse onerous provisions, inter alia. But in cases such as, O Brien v The Special Criminal Court & Anor, Gilligan v Special Criminal Court & Ors, the jurisdiction of the SCC is upheld.


The main argument raised in these cases is the constitutionality of the fact that there is no jury. It is a common misconception that there is an absolute right to a jury trial under the current rendition of the Constitution. However, this is not the case. There is an absolute right to a fair trial under Article 38.1°, not a jury trial. The Constitution has been interpreted in this way for a rather pressing public interest reason; the fear of intimidation of juries. The courts believe that the lack of a jury does not infringe upon the right to a fair trial. The prosecution still has to prove the accused’s guilt beyond a reasonable doubt, and the burden of proof is still on the prosecution.


The jury consists of twelve citizens, who listen to the case and make the call on whether the accused is guilty or not guilty. In a jury trial, it requires the jury to come to their own conclusion, no one else can do that for them. Due to the nature and seriousness of the cases and scenarios that come before the SCC, it is pragmatic to not have a jury present. There is a real possibility that if someone is willing to participate in offences that warrant a visit to the SCC, they would also endeavour to sway the juries minds through whatever means at their disposal. Even though this rationale was used to justify the Court for dealing with the IRA, a similarity can be seen with the modus operandi of gangland crime insofar as their wilfulness and ability to intimidate the lay juror.


Judges that sit on the Court are selected from the High Court, Circuit Court and District court by the Government. As it stands, there are a total of nineteen judges on the panel of SCC judges. When a case comes before the court, the judges called for the case suspend their current role on their respective court and then proceed to hear the SCC case. They are on the court for the duration of that trial. When it is concluded, they then go back to their normal duties in the “ordinary courts”.


Although it is deemed by some to be contrary to human rights legislation such as the European Convention Human Rights Article 6, it is upheld by the Supreme Court whenever the question is raised and it is always passed in the Dail when the time comes to renew the “subscription” if it were, for the courts legality and its emergency legislation. It has proved to be a bastion in stomping out terrorism and is proving to be a stalwart in the fight against serious organised crime. The Minister for Justice in the previous Government, Charlie Flanagan has said that,


“We all look forward to the day when the Special Criminal Court is no longer needed, but regrettably we are not there yet.”


It may be considered a “necessary evil”, but to consider it an evil depends on one’s own views. One thing appears to be certain, it does work in the laborious task of administrating justice.


[1] Recent evidence uncovered in Spain may lead to a conviction

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