Protecting jurors is vital. But non-jury trials aren’t the answer

The Special Criminal Court (SCC), with its distinctive mode of justice, is back in the spotlight after the acquittal of Gerard Hutch for the murder of David Byrne during a boxing weigh-in at the Regency Hotel in 2016.

The SCC was established by the Offences Against the State Act 1939: it is “special” in that it involves the suspension of the ordinary approach to non-minor criminal matters, which is trial by jury.

The duration of the current declaration, which brought the SCC back into force in 1972 on the grounds that juries were likely to be intimidated by paramilitaries, shows a striking and enduring political view of the inadequacy of our “ordinary courts”. It also highlights that the SCC, in reality, is an embedded part of our legal framework, rather than a temporary response to paramilitary violence. The Criminal Justice (Amendment) Act 2009 expanded the schedule of SCC triable offences, by bringing organised crime offences within its scope. The feeling is that organised criminals pose a comparable threat as paramilitaries, and so warrant a similar response.

The acquittal of Hutch was exceptional. The conviction rate of the SCC is a striking 90 to 100 per cent. The 2021 Annual Report of the Director of Public Prosecutions (DPP) indicates that of 66 cases prosecuted on indictment in the SCC from 2018 to 2020, only two resulted in acquittal. In this instance, Hutch’s acquittal was because of the evidence relied on by the DPP: the key witness Jonathan Dowdall was an admitted liar with a history of violence and a motivation to lie, while surveillance evidence was not determinative. Beyond this, questions should linger about the DPP’s choice of charge.

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Consistent criticism of the retention and use of the SCC, from the United Nations Human Rights Committee, the Irish Council for Civil Liberties, former president Mary Robinson, and a minority of the Committee to Review the Offences Against the State Acts, has not dislodged it from our legal landscape.

The notion that juries may be intimidated endures, understandably in respect of organised crime cases, and especially those like the murder of Byrne which involve a connection between alleged criminals, paramilitaries and sometime putative politicians such as Dowdall.

It’s time to revisit the SCC’s place in and impact on our justice system. A major review by an independent six-person expert review group, headed by Mr Justice Michael Peart, into the Offences Against the State Act and the SCC got under way in 2021, and its final report is due to be published shortly. The SCC, with its compromising of the right to equality, its erosion of the right to a jury and the exposure of decision makers to potentially prejudicial material, should be disestablished, or at least retained only for rare cases, where the necessity to remove the jury is determined individually.

Our history of responding to paramilitary violence has enabled the normalisation of this extraordinary form of criminal trial, with its particular processes and rules of evidence. Even the notorious Diplock Courts in Northern Ireland were abolished in 2007, and instead the Justice and Security (Northern Ireland) Act 2007 permits non-jury trials on a risk-based approach determined by the DPP rather than one based on certain scheduled offences. In 2021, eight out of 1,358 Crown Court cases in the North were conducted without a jury.

Other common law jurisdictions like England, Wales and Northern Ireland, and Australian states like Western Australia and Queensland, have introduced the possibility of a judge-only criminal trials in cases of jury tampering, but these are determined on a case-by-case basis rather than automatically, and they are used extremely rarely, when other protective mechanisms would not suffice. They sit with a single judge, whereas the SCC’s panel of three judges is preferable.

Perhaps ironically, the provision of a written judgment explaining the court’s basis for its factual conclusion, which does not occur in jury trials, is another potential safeguard for the individual and a rich resource for court observers.

Of course, concern for jurors’ safety is paramount, as Michael McDowell noted recently. But instead of relying on the SCC , other mechanisms must be considered. Though there is little empirical work on jury intimidation in Ireland beyond the report by UCD’s Dr Mark Coen and Dr Niamh Howlin, which found characteristics of the “ordinary” system can enable potential harm and needless stress to jurors.

The verdict of the Hutch trial says more about the merits and strength of the prosecution case and the nature of the evidence than the mode of trial per se

It’s possible to envisage the shape these reforms might take, looking to the insights of the Law Reform Commission and some working examples from other countries. Currently, jurors are selected from the register of electors, and on the first day of jury service all names of the potential jurors are called out. Changing the law relating to access to jury lists might offset the possibility of intimidation. Similarly, the Law Reform Commission’s recommendation that daily roll call of the jury after empanelment should be abolished is a sensible one. Comparable changes have been made elsewhere, such as in the Australian state of Victoria and at the federal level in Australia, with no evidence of problems arising.

Juries could view proceedings remotely, be transported to the court from a distance so that they could not be followed. They could be sworn in anonymously. Given the logistical issues with this, and the implications of “anonymous” juries for the presumption of innocence, the easiest way of mitigating potential harm would be to empanel jurors using numbers, and ensure a separate entrance to court. While none of this is a panacea or a guarantee, it would go some way towards protecting juries while also safeguarding the fundamental norms and principles on which our system is based. Such changes are constitutionally compliant, and practically achievable.

Any renewed reflection on the presence and role of the SCC is to be welcomed. The verdict of the Hutch trial says more about the merits and strength of the prosecution case and the nature of the evidence than the mode of trial per se. A jury would not be likely to convict in such a case either.

If abolition is politically unpalatable or unlikely, then a pragmatic and workable alternative to the status quo might lie in a move away from the automatic use of the SCC for certain offences to a case-by-case assessment, in tandem with the introduction of measures to protect juries. If the court is retained, cases should be heard before it only where the DPP can establish on reasonable and objective grounds that the ordinary courts are inadequate to deal with the administration of justice in a particular case.

Professor Liz Campbell is Francine McNiff Chair of Criminal Jurisprudence at the Faculty of Law in Monash University, Australia