Some members of the review group set up to examine the future of the Special Criminal Court are in favour of abolishing the non-jury court, creating a potentially embarrassing situation for the Government.
The Independent Review Group was established by then minister for justice Helen McEntee in February 2021 to examine the offences against the State legislation which is the foundation for the court.
The group, which is being led by Mr Justice Michael Peart, a former judge of the Court of Appeal, is made up of six experts from law and academia.
It is understood a minority of the group are of the view that the continued operation of the Special Criminal Court, which was established on an emergency basis 50 years ago, is no longer justified.
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[ Hutch acquittal unlikely to silence critics of non-jury Special Criminal CourtOpens in new window ]
This is based on the much diminished threat from paramilitaries, including dissident groups, in recent years.
There are currently just eight subversive prisoners in Portlaoise Prison, the maximum security prison which houses paramilitaries convicted in the Special Criminal Court.
However, the numbers appearing before the court have risen significantly in recent years as it is increasingly used to prosecute gangland crime.
There have been ongoing efforts among the group to reach a consensus in advance of submitting a final report. Delivery of a report to the Minister has been repeatedly delayed, with the Government originally saying it was expected in late 2021.
A Department of Justice spokesman said this week Minister for Justice Simon Harris “expects to receive the final report of the review group shortly”.
The group has held about 40 meetings so far, including meetings with State agencies and human rights bodies.
It is not known how the view of the minority faction will be expressed in the final report or if it will publish its own minority report.
It is understood the majority of the group are in favour of retaining the court but want to see some amendments to the underlying legislation.
The Government has repeatedly stated it views the court as essential to deal with organised crime and subversives, a position it reiterated following the acquittal of Gerard Hutch by the court last week.
[ Hutch remains under Garda investigation despite Regency-killing acquittalOpens in new window ]
The three-judge court found Mr Hutch not guilty of taking part in the murder of David Byrne in the 2016 Regency Hotel attack after it rejected the evidence of Jonathon Dowdall, who turned State’s witness after facilitating the attack.
“The most recent case shows that the Special Criminal Court works,” Taoiseach Leo Varadkar told the Dáil last week. “The fact that there was one acquittal, even though it was not the outcome the State desired, confirms that the Special Criminal Court is a place where people get a fair trial and where the beyond-reasonable-doubt principle applies.”
The Irish Human Rights and Equality Commission (IHREC), the State’s rights watchdog, is in favour of abolishing the court and repealing the Offences Against the State Acts. This is “the only viable solution to vindicate the rights of an accused to a fair trial”, it said in its submission to the group.
The United Nations and the Irish Council for Civil Liberties have also expressed concerns about the court.
The review was established on foot of a recommendation by the Commission on the Future of Policing in 2018. The Green Party, a junior Coalition partner, had also called for a review.
The last review took place in 2002 and it recommended the retention of the court.
