Ireland must abolish the non-jury Special Criminal Court, says UN official

Ireland, as a democratic State committed to the rule of law, must abolish the non-jury Special Criminal Court, a United Nations human rights official has said.

Courts with exceptional powers are mostly a feature of non-democratic countries, said Fionnuala Ní Aoláin, a UN special rapporteur on human rights.

If democracies can’t operate without the need for special courts, “how, really, can we expect non-democratic or even backsliding democracies to maintain their commitment to the integrity of the rule of law?” said Ms Ní Aoláin, who is from Co Galway.

The stated reason for the Special Criminal Court, the violence of the Troubles, no longer applies, she said. In Northern Ireland, the use of the non-jury courts have become rare, but in the Republic, they have been normalised and expanded, she said.

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The Special Criminal Court was established on an emergency basis in 1971 under the Offences Against the State Act to deal with paramilitaries. However, it now almost exclusively deals with organised crime offences.

[ Offences Against the State Act: Is it still needed? ]

As emergency legislation, it has been renewed by the Oireachtas every year, including most recently in June.

Ms Ní Aoláin noted the lack of empirical data provided by the Government to justify the continuation of the courts.

She said this is a feature of countries that operate courts with exceptional powers, which are mostly undemocratic countries. These countries, including Ireland, place an over reliance on national security arguments and the opinions of national security officials when deciding to retain such measures, she said.

Ms Ní Aoláin was speaking at an event organised by the Irish Council for Civil Liberties to discuss the recent report from a Government-appointed independent review group which recommended significant changes to the operation of the Special Criminal Court.

[ Sinn Féin willing to support renewal of Special Criminal Court if commitment given on reforms ]

The majority of the six-person group recommended the abolition of the Offences Against the State Acts. However, it also said the Special Criminal Court should be retained and placed on a permanent footing.

A two-person minority recommended the abolition of the court entirely, along with the repeal of other emergency measures, including allowing senior gardaí to rely on secret evidence in certain circumstances.

One of the minority members, Prof Donncha O’Connell, said it was “odd” that the Government’s immediate response to the group’s recommendations was to renew the Offences Against the State Acts.

He said it was also odd that Minister for Justice Helen McEntee announced the review in 2021 while at the same time extolling the success of the Offences Against the State Act. “There was probably a hint in that as to where we were going.”

The University of Galway academic noted the Government waited until just before the vote on the renewal of the Offences Against the State Acts before publishing the report, despite it been available for months by that stage.

[ Why we dissented from recommendations of the review group on the Special Criminal Court ]

Following the publication of the review, Ms McEntee committed to consulting with the Garda and other agencies about the reports. Prof O’Connell noted the Independent Review Group had already done that. He said the Minister’s response to the recommendations was “not a serious response”.

Prof O’Connell also criticised the Department of Justice as having an “allergy to transparency” and “an “addiction to secrecy”.

“And this makes absolutely no sense in a modern democratic space.”