Top barrister criticises ‘scandalous’ use of emergency law to prop up Special Criminal Court

The continuation of an emergency proclamation that the ordinary courts here are not adequate to deal with some offenders is “somewhat scandalous”, a leading criminal barrister has said.

Senior counsel Brendan Grehan said reform is required of the non-jury Special Criminal Court (SCC) and of the Offences Against the State Act (OASA), a 1939 emergency law strengthened in 1972 to deal with escalating violence in Northern Ireland and since renewed annually by the Oireachtas.

His own view is that the SCC should be replaced by a permanent standing non-jury court not based on the inadequacy of other courts but complementary to them. That would require a constitutional amendment, he said.

The DPP should have a role in who might be tried there and an accused, in certain circumstances, should be able to opt for trial before it, he said. An accused with “a lot of baggage” might feel they would get a “fairer crack of the whip” before such a court.

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Mr Grehan, who represented Gerard Hutch during his trial at the SCC resulting in Mr Hutch’s acquittal last year of the murder of Kinahan gang member David Byrne at Dublin’s Regency Hotel in 2016, was addressing a top-level legal conference in the University of Galway on Saturday.

Organised by the schools of law of the universities of Galway and Birmingham, the conference examined the challenges of jury trials for terrorism and organised crime in the wake of a review group’s report last year recommending repeal of the OASA and replacement of the SCC with a permanent non-jury standing court. The Government is considering recommendations of the group’s majority and minority reports.

During a conference session chaired by a Supreme Court judge, Ms Justice Iseult O’Malley, Mr Grehan said he accepted the situation in 1972, which caused the government to make the proclamation establishing the SCC, required such a court. However, the circumstances have changed and the fact the proclamation remains in being is “somewhat scandalous” and something he found “difficult to comprehend” as a lawyer and a citizen.

He said there are now two SCCs with very few cases listed for hearing, which contrasts with “chock a block” lists before other trial courts across the country battling backlogs resulting from the Covid-19 pandemic.

His concerns about the SCC include it can issue majority verdicts and is exempt from the “crucial” constitutional guarantees of independence of judges. He stressed that judges who serve on the SCC have, in their capacity as judges of other courts, taken an oath to try people without fear or favour and there is “no question” they are independent. It still bothers him the exemption is there, he said.

During its earlier decades the SCC was perceived as a “convicting tribunal” but by the time he was a senior counsel prosecuting and defending cases before it that perception had started to change, Mr Grehan said. The SCC began to come across as a court “trying harder to be fairer so that legal points were encouraged and frailties in prosecution cases were not tolerated as they had been”.

He said it was necessary to get to a point where the SCC became a court of reasonable doubt and that has happened in more recent years. Its judgments are now “very comprehensive” and “transparent”, including detailed analysis of the evidence and why the court has reached its conclusions. In contrast, there is sometimes “no clue” why a particular jury verdict was arrived at and it is somewhat “surprising” academic research in that area is not allowed, he said.

While he regards trial by jury as “by far the more desirable way”, it is not the only way of doing things, he said. France, he noted, has abolished jury trial for a lot of serious crimes, including rape.

He said the problems with the OASA include its contribution to powers of arrest here being “very complicated”, which made “no sense” to him as a lawyer, never mind for gardaí required to operate several different powers of arrest for various offences.

He said both the SCC and the OASA need reform and the impetus for reform has to come from the Government. Notwithstanding the “Herculean work” of the review group, what, he wondered, would happen to its report?

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