The Special Criminal Court: Abolish It!

The Special Criminal Court and the associated ‘Offences Against the State Act’ has been a long-standing tool of the government to subvert the normal rule of law. Alexandra Day argues that it should be abolished immediately.

The Special Criminal Court (SCC) and the associated ‘Offences Against the State Act’ (1939) have had a long existence. The SCC is a three-judge criminal court that mainly deals with ‘terrorist’ and ‘organised crime’ cases, though its remit has always been flexible. Initially introduced as a temporary ‘emergency’ measure, it is still going strong over 80 years on. Indeed, the  powers and scope of the SCC have actually increased over the years.

At its core, the Special Criminal Court denies defendants their right to jury trial enshrined in the constitution and normalises the expansion of the state’s carceral powers. It must be abolished and the Offences Against the State Act must be repealed. 

Its Emergence

The Offences Against the State Act was an Emergency measure established on the eve of the Second World War by the de Valera-led government. This gave the state the power to declare any organisation unlawful and to subject any individual suspected of involvement in such organisations to extrajudicial measures. These measures included the provision of the SCC, which was first established in August 1939.

These decisions were purportedly made in response to the fear of IRA activity dragging Ireland into a war with Britain, though from the outset it was used extensively against people engaged in legal and open, democratic political activity. The first iteration of the court consisted of five army officers and sat until 1946, and operating on and off in the decades which followed.

While the court has been used to deal with a number of different groups and individuals over the years, it is important to note that Republicans of various hues were the primary target during much of its existence. Indeed, as the conflict in the north intensified, the Offences against the State (Amendment) Act was introduced in 1972, re-establishing the SCC and allowing for the jailing of republican activists merely on the word of a Garda superintendent.

The Southern state’s response to the situation north of the border was often two-faced, promising to stand up for civil rights while in reality doing very little. As Kieran Allen has argued, “[the Southern establishment] invested heavily in their security apparatus and used the armed struggle in the North to normalise and extend their repressive apparatus.” The Offences Against the State Act, and the SCC, are prime examples of this phenomenon.

The SCC has since remained in place for the past 48 years and has expanded its remit to include so-called organised crime groups. A second court was established in 2016 to deal with the volume of cases being dealt with at the SCC level.

The establishment of the SCC allowed for the suspension of rights under the premise of a threat to state security. This is but one of many instances over the course of history where states have legitimised the contravention of human rights as an ‘emergency measure’. Throughout Irish history specifically, emergency measures and laws have frequently been invoked to protect the state, whether it was this Offences Against the State Act in the South, or the likes of the Special Powers Act in the northern state. It is interesting to note that P.W. Botha, the state president who presided over apartheid in South Africa, once claimed he would exchange apartheid powers to gain the Offences Against the State Act and the SCC; so effectively it could be utilised to smash dissent.

Though they are presented as time-limited, finite measures, they are inevitably extended, thus becoming a norm legally and politically. Other notable instances have been Article 48 of the Weimar Constitution, which enabled the Nazis to suspend human rights and establish total control in 1933, and the US ‘Patriot Act’ of 2001, which authorised the indefinite detentions of immigrants and the expansion of state surveillance. Throughout the nineteenth and twentieth centuries, similar measures have been used by states to repress membership of socialist organisations. These ‘emergency measures’ enable governments to put a stamp of legality onto the restriction of human rights and the untrammelled expansion of state power.

Perfidious Influence

Though the Special Criminal Court was introduced as part of an emergency measure, it now has a de-facto permanency in the Irish judicial system. Asides from dealing with the charges of ‘terrorism’ or membership of an ‘unlawful organisation’, the Director of Public Offences has the right to direct other charges to the court if they believe that the ordinary courts cannot effectively deal with them.

These are called ‘non-scheduled’ trials. There is currently no provision to appeal or challenge such a  decision. As such, numerous ‘non-political’ cases can be subject to a non-jury trial. This has created a situation in which the use of emergency powers is normalised, and the constitutional rights of individuals can be swept aside if the court demands it.

Every year, the government has voted in favour of retaining the amendments which allows this situation to continue.  This year (2020) marked a change in that Sinn Féin abstained on the vote to maintain the SCC, rather than their traditional opposition vote. This is noteworthy given that it was only in February that Leo Varadkar stated in the leaders’ debate that he would not enter government with Sinn Féin because of their historic opposition to the court. Furthermore, Micheál Martin commented that the Sinn Féin vote was done on the instruction of their ‘IRA old comrades’.

Given that it has been the Republican tradition which has most frequently been targeted by the Special Criminal Court, this change in approach is revealing. It suggests that, when opportunistically pressed by establishment parties, Sinn Féin can back down on one of its supposed basic principles. Indeed, rather than state any opposition to the SCC, Mary Lou McDonald merely said that the Sinn Féin constitution had no official abolitionist position on the SCC. This begs the question; are Sinn Féin prepared to stand up to Fianna Fáil and Fine Gael when the possibility of their entering a government is on the table? The vote on the SCC is not encouraging in this respect.

The use of the SCC breaches normal judicial process and allows for greater numbers of convictions. When the judicial and carceral powers of the state are expanded, marginalised groups are disproportionately affected. Harsher punishments do little to actually address the situations which cause people to be involved in criminalised behaviours. The use of so-called ‘anti-terrorist’ measures which contravene human rights can further entrench patterns of violence and criminalisation.

Most recently, the alleged Islamic State member, Lisa Smith, is set to face a non-jury trial at the SCC under the charge of membership of an unlawful organisation later this year. Though the Director of Public Prosecution stated that ordinary courts would be unable to secure the “effective administration of justice”, the SCC nevertheless denies Smith the right to a trial by jury. Regardless of the specifics of the case, unless all trials are conducted in front of a jury, this right remains tenuous and unguaranteed.

The SCC is endowed with ‘special powers’ which allow it to proceed on cases in some remarkably unconstitutional ways. Asides from holding non-jury trials, the court can accept so-called ‘belief evidence’. This essentially means that if the Garda Chief Superintendent believes you are a member of an illegal organisation, this belief alone can be used as evidence in court. As mentioned above, this particular power was introduced in the courts’ re-establishment in 1972, and has been campaigned against by civil liberties groups in the years since.

Another egregious power the court has is ‘inference from silence’. Introduced in 1998, it allows the court to make a negative inference from an individual’s silence when questioned on membership of an illegal organisation. In the Special Criminal Court, even the right to remain silent can be contravened. 

Abolish the Special Criminal Court

The existence and continued use of the Special Criminal Court is an affront to normal and fair judicial process, though it retains a veneer of legality. Extended emergency measures are synonymous with the continued violation of human rights. Civil and human rights groups, such as Amnesty International and the Irish Council for Civil Liberties (ICCL) have campaigned against the court since its conception.

The state claims that jury intimidation necessitates a judge-only trial at the SCC. This does not hold up when one considers that cases without an ‘organised crime’ element are increasingly brought to the court – where ordinarily, jury intimidation would not be an issue. The purpose of having rights enshrined in the constitution is to guarantee them to all people, no matter who they are. By adding conditions and qualifications, the door is opened to excluding more and more people from their rights. 

As well as abolishing the Special Criminal Court, we need to introduce proper measures that deal with the root causes of criminal behaviour. The SCC claims to deal primarily with ‘terrorist’ and ‘gangland’ cases. We need to increase funding to mental health and youth services, particularly in rural areas, to intervene early and prevent people from getting caught up in criminalised patterns. We need increased resources for social workers and youth liaison officers at a community level, in order to deal with crime outside the justice system.

The SCC was established over 80 years ago as a response to an ‘emergency’ situation, but it has only expanded and entrenched itself across the decades. It is totally outdated and its high conviction rate results from its extra-judicial methods and contravention of human rights. The SCC offers the state a ‘work-around’ method to the protections of ordinary law.

No individual should be denied the right to a fair trial with a jury. The Special Criminal Court should be abolished, without delay.

In the short term, it should be replaced with the ordinary court system. More generally, however, it should be but one aspect of a much wider reform of our deeply-problematic criminal justice system.