a letter to Justice Minister Helen McEntee

Dear Minister McEntee, 

We, the undersigned, wish to make you aware of our call for the abolition of the Special Criminal Court. We acknowledge and welcome the establishment of an Independent Review Group to examine the Offences Against the State Acts and the Special Criminal Court. We wish to state our strong view that the Court must be abolished as a matter of urgency. 

The Court violates fair trial rights, including the right to be presumed innocent, of potentially everyone who lives in Ireland. Its very existence undermines confidence in our ordinary court system. Its weakened standards of evidence, lack of a jury, and unclear jurisdiction are an affront to a rights respecting democracy.  

On 26 January we heard from Osgur Breatnach, an innocent man who was convicted at the Special Court. At the same event, we also heard from renowned anti-torture lawyer Nancy Hollander who works in and against similar special courts in the US. Nancy reminded us that everyone is entitled to a fair trial, no matter what they stand accused of.  

If we believe in the ordinary justice system at all, then we have to believe it will deliver justice even in the most difficult of cases. Special courts undermine the justice system, in turn undermining the bedrock of our democratic society. 

Minister, the Director of Public Prosecutions’ power to refer cases to the Court is far too broad. Not only that, it is immensely difficult to challenge. The DPP does not have to give reasons for their decision to try someone in the Special Criminal Court beyond vague grounds of “national security”. This means our right to a fair trial by jury is entirely dependent on the discretion of the DPP and we have no right to know the specific reasons for their decision.    

The right to a trial by jury is fundamental in common law countries, such as Ireland, the UK and the US, but is not respected at the Special Criminal Court. Judges act as both judge and juror. Minister, you have the power to guarantee the right to trial by a jury of one’s peers to the people of Ireland.  

We have heard repeatedly that a jury would be put at risk in some of these trials. But where such a risk is identified, alternative provisions for the protection of juries can be used. Alternatives such as anonymous, secret, or remote juries all operate in other jurisdictions. In fact, these protections should be available across all courts in Ireland, once a prosecutor has proven there is a risk of jury tampering.  

Normal fair trial procedures are severely weakened at the Special. Gardaí can claim privilege and refuse to give important documents to the defence. This means legal professionals and the accused are often disadvantaged when preparing their defence. Gardaí may present their own beliefs as evidence. Minister, you surely agree that no person should ever be convicted based on the belief of another. 

Our ordinary criminal justice courts demonstrate every day that they are well able to deal with serious crimes. The Special Criminal Court has no place in a legal system that champions the rule of law and democracy. It must be abolished.