A very Special Criminal Court
Derek Dunne examines the performance of the Special Criminal Court
Thirteen years ago this month the then Fianna Fail government issued a proclamation that "the orrdinary courts were inadequate to secure the effective administration of justice and the preservation of the public peace and order."
Four days later, the first Special Criminal Court of recent times was established. Mr Justice Griffin of the High Court, Judge Conroy of the Circuit Court and District Justice o Floinn were chosen as its first three members. Since then, twenty-six judges have passed along its benches. It has sat for over 1,700 days. Over 1,800 people have appeared before it. It has attained a conviction rate of about 76%, as distinct from 90% for the ordinary courts. The court has operaated for almost thirteen years with virtually no parliamentary scrutiny or review of its necessity.
Appeals from convictions in this court have resulted in major changes in the laws relating to arrest and detenntion, constitutional rights and evidenntial requirements for trial courts. Over the last number of years, adverse criticism of the Special Criminal Court has been scarce. Scrutiny of the court has been scarcer.
The court was intended as a temmporary measure. It was to operate only for so long as the government thought that the "ordinary courts are inadeequate to secure the effective adminisstration of justice." Developments since its inception indicate that it is becomming a permanent feature of our legal system.
The numbers passing through the court have decreased in recent years, and the type of offences they are being charged with has changed. Today, more and more people are being charged with offences that are not "scheduled offences". Le. offences that are automatically tried before the court, and considered offences against the State. The Director of Public Prosecutions, Eamonn Barnes, has an unfettered discretion in relation to who is sent before the court. Thus anyone charged with a criminal offence can be tried there. This power exerrcised by the DPP is an unlimited power to deprive persons of a trial by jury.
In October 1937, the Department of Justice prepared a briefing for the cabinet of the day on the reasons why special legislation and courts were necessary. "These powers ... are not for the punishment of offenders so much as to ensure that necessity for punishment shall not arise - that people, particularly young and innexperienced people shall not be allowed to drift without warning, under dangerous influences." (It is worth noting that almost forty years later, a coalition minister .use d the same reasoning to defend the introoduction of the Emergency Powers Bill which allowed for seven-day arrest and detention.) It was intended that these new courts would be composed of military personnel, and the only argument centred on whether or not there would be a right of appeal from conviction and sentence.
In January of 1939, the Office of the, Minister for Justice was of the opinion that "the right to appeal would involve too many restrictions." It went on: "The essential idea behind the tribunal . . . was that the courts, being unable to deal with the pro blem of unlawful organisations, the State handed the matter over to a Commisssion chosen not as lawyers but as men of known courage, patriotism and .ability who were not fettered by any legal rules, and who in reality constiituted not a court, but a Committee of Public Safety. Every attempt to harness such a Commission to ordinary legal rules or procedure or evidence is bound to lessen its effectiveness, and the kind of man who is best fitted to sit on such a court is just the kind of man who will not underrtake that duty unless he has a free hand."
In no uncertain terms, the governnment of the day were giving their tribunals a freehand. In questions put down in the Dail since, ministers have refused to answer certain questions relating to those courts because it would involve "a disproportionate amount of Department time." What is clear however, is that on 22 August 1939, following the enactment of the Offences Against The State Act, the government issued' the proclamation necessary for the setting up of the court under Part V of the Offences Against The State Act.
Five military officers were appoinnted and certain offences, many relating to petrol rationing, were scheduled.
Over 1,000 people were tried, 99 were found "not guilty". Many of those convicted received a fine or pro bation. The court continued on for another sixteen years before it was disbanded in 1962.
When the present court" was set up in May of 1972, the leader of the opposition, Liam Cosgrave, welcomed it as a "belated decision". Others were less happy. Dr David Thornley and Neil Blaney, Michael 0 'Leary and Paddy Cooney were amongst those who questioned the measure. It was intimated that the reason that the court was necessary was that jurors were being intimidated, or that they would be retaliated against afterwards because verdicts were unanimous and it would therefore be known that they had voted for a conviction.
Minister for Justice, Dessie O'Mallley declined to cite one example where this had happened. Answering Michael O'Leary, Mr 0 'Malley said "One can, I think, fairly draw conclusions from the verdicts that were brought in over a period of months." When the governnment announced its list of scheduled offences, these crimes then became offences against the State.
It appeared that the government were unhappy on a number of counts, not least among them being the level of convictions in the ordinary courts. It was open to the government to apppoint military officers above the rank of commandant or barristers of not less than seven years standing. They chose instead to appoint judges, also allowed for under the Act. The court was generally very busy up until the 1977-78 period and then its work tapered off slightly.
Several difficulties arise once a Special Criminal Court has been established. Firstly, there is no Dail review of the original government decision to set it up. Under resoluutions passed in 1939 and 1976, Ireland is in a "state of emergency". This has been the case without any evidence forthcoming to substantiate this asser-' tion.
No reporter from the Incorporated Council of Law Reporting covers the court, so its decisions go unreported. Although the Special Criminal Court in Green Street is a short distance from the Four Courts, only a small num ber of the legal profession practice there.
The Irish Press, the Irish Times, and Hibernia have all found themselves in court as a result of remarks made about the Special Criminal Court. This has tended to provoke an air of self censorship amongst reporters when writing about the court.
Table 1 indicates the numbers charged and found. guilty of scheduled offences from 1974 to 1984. Table 2 indicates the equivalent figures for non-scheduled offences in the Special Criminal Court. The figures for 1984 are not complete.
The figures in Table 1 represent only two-thirds of the total number of people appearing before the court. As stated earlier, the DPP has the power to send anyone before the court if he is of the opinion that the ordinary courts are "not adequate to secure the effective administration of justice." The DPP's office decline to state on what information this opinion is based.
Table 2 indicates the numbers brought before the court on charges that are not considered offences against the State by the government, but nonetheless found their way into the court. (The figures for 1984 are not complete.)
TABLE 1: NUMBERS,CHARGED AND FOUND GUILTY OF SCHEDULED OFFENCES IN THE SPECIAL CRIMINAL COURT
1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 Total
Explosive SUQstances Charged 53 47 35 32 20 19 8 8 18 4 244
Act Guilty 27 27 20 22 14 14 6 6 15 4 155
Offences Against The Charged 164 61 100 50 20 34 24 5 32 32 523
State Act Guilty 107 30 58 12 6 6 18 2 11 19 269
Malicious Damages Charged 14 14 4 10 3 3 14 73
Act Guilty 10 2 3 3 - 0 2 14 ,3 31
Firearms Acts Charged 108 85 67 72 32 39 33 24 36 32 3 531
Guilty 58 54 37 58 20 26 21 1·6 28 27 3 348
Total number of charges: 3,177.
TABLE 2: NUMBERS CHARGED AND FOUND GUILTY OF NON-SCHEDULED OFFENCES IN THE SPECIAL CRIMINAL COURT
1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 Total
Larceny Act Charged 49 43 36 41 30 30 29 22 19 22 4 325
Guilty 30 25 22 29 21 22 25 15 16 17 3 225
Offences Against Charged 18 19 24 40 9 15 "4 7 13 13 1 163
The Per scm Act Guilty 11 9 16 24- 7 9 2 5 '15e 9 1 101
Criminal Taw Charged - - 3 3 11 6 12 12 1 - 48
(Jurisdiction) Guilty - - - 0 3 11 3 2 12 1 - 32
Criminal Law Act Charged 9 7 2 5 9 6 5 43
Guilty - 9 - 1 0 3 5 1 5 24
Forgery Act Charged - - 1 - 3 4
Guilty - - 1 - 3 4
Conspiracy To Incite Charged 2 - - 2
Guilty - 0 - - - - 0
Common Law Charged 35 17 13 20 12 10 1 2 4 7 - 121
GUilty 11 12 11 9 8 5 1 0 1 4 - /62.
Others Charged 38 43 26 3 - 5 4 5 4 2 130
Guilty 23 36 13 1 - 4 4 2 2 88
There were over 1,600 charges preferred. Thus one third of all cases coming before the court were not specifically allowed for' when the government introduced its Special Criminal Court in 1972.
There has been a 46% decrease in the numbers charged before the court in relation to scheduled offences since 1972.
If a person is convicted of a scheeduled offence, and "holds office or is remunerated out of central funds ... (they) forfeit the office." They also lose any pension or superannuaation rights and are debarred from holding any job paid out of governnment funds. A crucial aspect of this is that the government can decide to remit "in whole or in part" any of the forfeitures. This in effect amounts to a discretionary penalty imposable at will by the government. The same forfeitures apply to people who are convicted of trivial and serious offennces. When Paddy Cooney was Minister for Defence, it emerged that a "blackklist" was being compiled and cir'culaated by the Department of Justice of all those convicted of scheduled offennces in the court. It also emerged that there were serious discrepancies on the list.
Mary Robinson, in her study of the court in 1974, noted that two people who had been convicted of nonnscheduled offences were on this list. Another person on the list had been acquitted. The Department also cirrculated the list to various authorities without any statutory authority for so doing. There is no evidence that this practice is not continuing. The Departtment told Magill that "the practise is still continuing." So a list of those convicted in the court is compiled and circulated to State employers without any statutory authority.
For the most part, the Special Criminal Court has come before the public eye only when controversial cases were' being heard. This was esspecially so in the 1973-77 National Coalition. Three judges sat and deciided whether or not to admit various statements in evidence, and then deciided what weight to give those statements.
Throughout the mid and late sevennties, allegations were made by persons appearing before the court that they had been beaten in garda custody and that they were forced to sign stateements amounting to confessions or had the statements made up for them by the gardai and were forced to sign them to stop further beatings.
It must be stated that in some of these cases, defendants had a vested interest in attempting to discredit the gardai. A conflict of evidence between the gard ai and the accused generally was resolved in favour of the gardai. One of the most notorious cases of the period was the Sallins case. The Suppreme Court later found as an "undissputed fact" that the accused had suffered injuries while in the custody of the gardai. But the court found that the injuries were inflicted by people other than the gardai.
In the Sallins case, the accused made an application to have the trial aborted because they felt that Judge John William O'Connor was not following the evidence in due disscharge of his constitutional duties. It had been reported in the press that Judge 0 'Connor appeared to be asleep on a number of occasions during the trial. The Special Criminal Court reefused to discharge itself. The Court of Criminal' Appeal and the Supreme Court upheld this decision and held that Judge O'Connor was following all the evidence. On the morning of the 65th day of the trial, Judge O'Connor dropped dead as he was preeparing to go to court. It then emerged that he had been a sick man for some time.
In mid-I 977 , Amnesty International came to Ireland and stated that "malltreatment appears to have been systeematically carried out by detectives who appear to specialise in the use of oppressive methods of extracting stateements from persons suspected of innvolvement in serious politically motiivated crime." The report was also critical of the Special Criminal Court. "The Special Criminal Court . . . has thus far appeared consistently to accept police testimony as against that of the accused."
Eighty per cent of serious crimes were being solved by statements. Connstantly, statements were being challlenged in court by accused persons as to the circumstances in which they were taken. Generally, the court found in favour of the gardai. This led to lawyers appealing conviction and senntence to the Court of Criminal Appeal and the Supreme Court. This led in turn to a whole new definition of rights relating to the taking of stateements, the amount of time a person could be lawfully detained and the right of access to legal advice. These precedents, emanating originally from the Special Criminal Court as the court of trial, extended to all areas of crimiinallaw.
The chain of events leading to the Supreme Court usually started off with Section 30 arrest and detention for forty-eight hours. The politicians were less than consistent in their handdling of the allegations. It was Paddy Cooney who queried Justice Minister Dessie O'Malley as to the reasons for the introduction of the court in the first place. When Mr Cooney became minisster, it was spokesman on Justice, Gerry Collins, who asked questions in the Dail, and who called for a full public inquiry into the allegations. When MI Collins became minister and a Commmission under Barra 0 Briain was set up to recommend safeguards for perrsons in custody and to protect the good name of the gardai, he failed to implement any of the re cornmendaations. He failed also to initiate any enquiry.
*** PANEL ***
Green Street Courthouse
Gardai and soldiers, carrying FN service rifles parade outside Green Street Courthouse. Security is tight and all the gates are locked. Inside, three judges sit at the front of-the court. On a lower level in front of them sit the barristers and solicitors. Behind them, still facing the judges, . sit the press. The accused face the bench, in the dock. They are on a slightly higher.Ievel than the judges.
Behind, and to each side of the accused, §it the public. The seats are stepped up and back, and the public have 11 cleat view of the proceedings below. Sometimes it is difficult to hear what is going on. Beside the judges on their left, is the witness box. And just behind that Isa wall and gardai can be seen peeping out trying to see if it is >1 their tum to go in. There are always gardai present. There are always three judges.
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The Special Criminal Court was intended as a temporary measure. However, one development in 1976 would seem to indicate that it may have become permanent. The Criminal Law Jurisdiction Act of that year allowed for the trial of a person in this country accused of certain crimes in either the Northern jurisdiction or in the Republic. Oral testimony may be taken in the North for a trial in the South. But for that to take place, the case must be heard by a Special Court set up under Article 38 of the Connstitution.
The only such court at the moment is the Special Criminal Court. The Criminal Law Jurisdiction Act had the effect of making that court permanent by virtue of the fact that its general provisions would be inoperable if the power to take evidence outside the State was suspended as a result of susspending the Special Criminal Court. Since 1976, over 76 people have been charged in the South under the Act. Thirty-two have been found guilty.
Apart from the issue of whether the court is permanent or not, there is evidence to suggest that certain parts of the same Act that set up the court itself is being abuse d.
In the last ten years, over 14,000 people have been arrested under Section 30 of the Offences Against The State Act. Just over 500 have been charged under the same Act. Less than two per cent of those arressted are convicted under the Act. It appears that the Section is being used for arrest and detention and little else.
Almost 2,500 search warrants were issued under the same Act in 1983 alone. Two hundred and thirty-eight prosecutions arose from them. That means that nine out of ten times, the "suspicion" on which the warrant is based is groundless.
Judges are appointed by the governnment and removable at will. Many of the longstandingmembers have reached retirement age in the other courts. Court decisions have to be by majoority, and individual dissenting judgeements are not allowed to be brought up at the end. of a trial. The court has unrestricted and absolute power over its own procedure and may exclude any member of the public from its hearings.
Since 1974, 62% of those charged were found guilty. In 1977, this had dropped to 20%. In 1983, it had jumped back up to 31 %.
A further aspect of the Special Criminal Court is that the sentences handed out have been getting progressively longer. In 1976, the average sentence was three years. By 1978, this had jumped to five and a half years. In 1980, it was six and a half. It has dropped back to five and a half to six years in recent times. These figures do not include life sentences for murder.
The greatest increases have resulted from charges under the Offences Against The Person Act and the Larrceny Act.
Once a person is sent into the Special Criminal Court, it is implicit that the ordinary courts are inadeequate to deal with the case. When the court was introduced, there were no more than two or three pages of Dail Reports showing the· interest of deputies. The main thrust from the Minister at that point was that juries were being intimidated or were likely to be retaliated against following a "guilty" verdict.
We have special powers of arrest and detention, special courts and special prisons (Portlaoise) for alleged "political offenders" who commit acts : against the State. These powers and courts are not reviewed by the Dail despite the fact that the original reasons for setting them up have long since disappeared.
Recent amendments to the crimiinal law, in the form of the Criminal Justice Bill, which allow for majority (10 out of 12) verdicts in criminal trials have not brought calls for a review of the Special Criminal Court although it would appear that the main reason for its existence is now gone. The fact that the court remains would seem to indicate that the politicians do not intend to remove it, and that it is indeed a permanent feature of our legal system. This is wittnessed by the fact that one third of cases coming before the court relate to offences not specifically designated under the Act as scheduled offences and are sent there on the "opinion" of the DPP.
Mary Robinson has said "To charge persons in the Special Criminal Court that are charged with purely criminal offences is to abolish trial by jury by the back door."
This article is based on a project carried out in part fulfilment for a Diploma in Criminological Studies at Rathmines College of Commerce by Brigid Ruane. The project is the first attempt in over ten years to quantify the workings of the Special Criminal Court, and is entitled "Study of the use of the Special Criminal Court".