Emergency: what emergency?  A justification, if any, for the ongoing use of the Special Criminal Court 50 years on and whether or not an alternative model is necessary and/or suited in the 21st century?

Title: Emergency: what emergency?  A justification, if any, for the ongoing use of the Special Criminal Court 50 years on and whether or not an alternative model is necessary and/or suited in the 21^st century?

Introduction

In 1881 Albert Venn Dicey posed the question “…how is Ireland to be governed?”^[1] in response to the passing of the Land Act (Ireland) of the same year.  He commented that at the time

“In all matters which do not concern political differences or agricultural questions, the law is as well kept in Ireland as elsewhere.”^[2]

He went on to clarify that

“…the difficulty, and the only difficulty, is, how to enforce in Ireland laws which have reference to the conduct of political agitation or to rights of landlords and tenants.”^[3]

Dicey introduces us to the system of government that was in effect in Ireland at the time: “under a system of arbitrary government.”^[4]  Fundamentally, this meant that while “arbitrariness” was “not necessarily the same thing as tyranny or oppression” it was nonetheless what he “…called coercion.”^[5]   At the time, Dicey explains, that the “chiefs of the Land League” were all in prison and that the Coercion Act 1881 was used as a means for “…breaking up the Land League” so as to “…ensure the easy working of the Land Law.”[6]

 

Dicey’s sagacity on this matter is prophetical and his awareness of such issues is reflected in the laws which continue to be introduced and maintained in the modern era.  Dicey advocates to “…simply…restore that condition of tolerable order which admittedly prevailed throughout the country till a comparatively recent period.”^[7]  He summarises that “the system of ruling Ireland according to the rules of law enforced in the ordinary legal methods, was and is the only satisfactory system, and the sooner we can return to it the better.”^[8]  Dicey’s view is that “…the scheme of government…” in Ireland “…has broken down owing to the fact that trial by jury is for the moment unsuited to the condition of Ireland and…” that this “…leads to failures of justice.”^[9]  He nonetheless recommends that governance in Ireland is best met “…in accordance with the ordinary law of the land.”  He does however measure this by conceding that in limited circumstances and “…within certain districts…abolishing…the right to trial by jury.”^[10]

 

The insight exhibited by Dicey in his writings on the question of juries was clearly based on events that existed in Ireland throughout the late nineteenth century.   It is therefore incredulous to believe that a perspective expressed nearly 150 years ago would continue to have such significance in contemporary legal academic research.  Before setting out the introduction to the issues in this paper, it is important to understand that in adopting Dicey’s observations of nineteenth century Ireland that the depth of research required of this paper begins during this time from the operations of the Jury Act of 1833 through to the, non-jury, Dáil Courts of 1919 before we reach the birth of the nation in 1921 and to see how that in order to maintain order in Ireland the government was forced to resort to drastic and draconian means.

 

This paper will consider in Chapter 1, the development of the Irish Free State and the foundations for the Special Criminal Courts.  As it will be shown, the foundation of the State was to maintain the status quo of how the country operated under its predecessors.  However, a government faced with an opposition which was rooted in distrust and violence, responded to Republican acts of violence with legislation that was drastic and severe in the penalties imposed.  As will be seen, the imposition of Article 2A into the Constitution by the government was, as Dicey opines, a response to the fact the operation of the law was impeded by the break down in one part of criminal procedure: a coercive act on the part of government presented itself as a system of arbitrariness.[11]

 

In Chapter 2 as the 1922 constitution had begun with a section on fundamental rights, that of 1937 began with sections on ‘nation’ and ‘state’.  De Valéra’s constitution thus seemed more faithfully to the philosophy of the German legal theorist Carl Schmitt, who believed that sovereignty required exceptional powers and a wider culture which valued traditional authority and social cohesion.[12]  This was reflected by the introduction of the infamous Offences Against the State Act 1939 which regrettably, mirrored, to some extent, the provisions of Article 2A.  The paper will then proceed to consider the ‘emergency’ invoked under Article 28.3.3° and which necessitated the first proclamation by the Dáil for the introduction of the Special Criminal Court.  It will examine the subsequent legal challenges in the courts and the ensuing urgent legislation which the government was forced to introduce to remedy the provisions of the ‘emergency’ legislation.   Following the turbulence of the Second World War Dicey’s summoning of “the rules of law enforced in the ordinary legal methods”[13] becomes a reality and provides relief in the early development of the State.  However, this was not to last.

 

In Chapter 3 we consider in more detail the further events which lead to the revival of the Special Criminal Court on two further occasions and ask whether or not there is a continued justification for its use 50 years on.  It will examine the issue of Internment including the Human Rights perspective, the 1961-62 IRA campaign and the current temporary ‘emergency’ which began in 1972 and is ongoing.   The paper will then explore the general operations of the Special Criminal Court from the Constitutional framework under Article 38 and s.35 of the 1939 Act to the Role of the Director of Public Prosecutions [DPP], the scheduling of certain offences which automatically preclude the possibility of a trial before a jury, and recently introduced Garda powers while analysing decisions which have gone before the courts in these areas.

 

Finally, in Chapter 4 it will consider the concept of jury trials and ‘fair trials’ again, with reference to Dicey, as well as recent case law before the Supreme Court which has reviewed the law in this area.  The paper will appraise some critical thinking on how the Court fits within the criminal justice system as well as its obligations towards victims and whether or not it is tipped too much in favour of the executive before going on to consider whether the concept of a trial before a jury is the ‘great bulwark of freedom’ as advocated by Lord Devlin.

Chapter 1

The geneses of the ‘special’ criminal courts

The Public Safety Act 1927

The Irish Free State having been established in the aftermath of the Irish War of Independence and pursuant to the Anglo–Irish Treaty of 1921 under the direction of the pro-Treaty Free State Government was forced into a brutal civil war against a side, the Irish Republican Army (IRA), which was fervently opposed to a Treaty they viewed as an unacceptable compromise with the country’s former occupying power.  The pro-Treaty side, assisted by British government materiel, prevailed in that conflict. This left a contingent of Republicans that would not accept the new state and that was prepared to undermine it by violence.[14]  For its 10-year period in office, from 1922 to 1932, the ruling Cumann na nGaedheal party regarded the maintenance of law and order as its number one priority with frequent recourse to emergency legislation during this period.[15]

 

The Free State Government of the time had to contend with a bleak financial situation and severely damaged infrastructure and create new public institutions, including an unarmed police force.[16]  As Coen remarks, the pre-Independence ways of doing things was highly evident.  For many, it made sense to retain British transplants such as cabinet government, an independent civil service and a common law legal system.  The contrasting view was however that with the birth of a new nation a move away from the status quo and a propensity “…to ape the manners and indeed fashion of their former conquerors…”[17] was needed to distance the Free State from Britain.  The alternative vision was a central theme of Republican propaganda in the 1920s and these polarizing motifs were woven into the jury intimidation campaign upon which they embarked.[18]

 

The Civil War, said to have ended with a “whimper”[19] resulted in a situation where the IRA never formally surrendered and no arms decommissioning occurred.[20]  Individual instances of violence were frequent and the government’s response was, as Davis maintains, ‘predictable’.[21] Article 72 of the Free State Constitution provided for jury trial, which remained the mode of trial for serious offences such as robbery, burglary, murder and rape as well as political offences.  The Treasonable Offences Act 1925 prohibited many acts engaged in by Republicans, including treason,[22] participation in organisations purporting to be military or police forces,[23] and involvement in unauthorised military exercise.[24]  As Coen suggests, it was perhaps naïve to try such offences by jury in a post-civil war society, when at least some of the jurors were likely to be sympathetic to those on trial.[25]  Instances of violence were a frequent occurrence within the State, for example, 738 cases of arson between 1923 and 1924.[26]  The [jury] intimidatory campaign would add another dimension to this already febrile situation.[27]

 

The campaign to influence jurors was organized by members of Cumann na mBan (The Irishwomen’s Council), which has been referred to as “the most influential women’s organization in twentieth-century Ireland.”[28]  The fact that actions of jurors in political cases were being closely monitored by subversives was publicly evident from the mid-1920s onwards.  The pages of the Republican newspaper, An Phoblacht, Coen describes, made this clear[29] by presenting the Irish Free State as a British puppet state[30] and defending violence and murder.[31]  Coen contends that the preoccupation of An Phoblacht with the actions of jurors may be seen in an article from 1925 reporting that a judge at Mullingar had assented to a prosecution application for a change of trial venue to Dublin. The three men on trial were charged with assisting in the formation of an illegal organisation, and the account in the newspaper stated that the change of venue would ensure that a Dublin jury consisting of “Freemasons and Unionists”[32] could be relied upon to convict them.[33]

 

In November 1926, following a series of raids upon Civic Guard barracks, the government sought extra powers and a Public Safety (Emergency Powers) Bill was introduced and eventually made law on 19 November 1926.[34]  However, on 10 July 1927, Kevin O’Higgins, the Vice-President, Minister for Justice and Minister for External Affairs was assassinated on his way to church.[35]  The government responded swiftly with the Public Safety Act 1927.  Among the various provisions, the legislation forced candidates to declare their willingness to take their seats if elected.  As a result, Fianna Fáil were forced to abandon their abstentionist policy.[36] The draconian legislation decreed severe penalties for the membership of unlawful organisations, granted drastic search powers, and provided for a special court that could impose death or life imprisonment for the unlawful possession of firearms.[37]

 

Davis highlights that in the early drafts of the Public Safety Act, 1927 proposals for a special court to be set up consisting of three judges of the High Court, sitting without a jury, were set out.[38]  A later more advanced, version of the bill includes a proposed Part IV which provides for the ‘Establishment of Special Criminal Courts.’  (Section 22 of this draft is set out in Annex II).[39]  As Davis expands, the text provides for the establishment of special courts and uses the term ‘Special Criminal Court’.

 

Article 2A of the Irish Free State Constitution

The impact of the inclusion of Article 2A under the Constitution (Amendment No. 17) Act 1931 was staggering to the extent that it was so draconian: it provided for a standing military court (from which there was no appeal) which was empowered to impose any penalty (including the death penalty) in respect of any offence, even if such a penalty was greater than that provided by the ordinary law.[40]

 

The 1922 Constitution provided for, at Article 73, that no extraordinary court would be created, however as Hogan chronicles, by early autumn of 1931 and the unfortunate reality of political life, almost a decade later, was that the jury system had more or less broken down and the government was faced with the growing threat of political conflict from both the IRA and other groups.[41]  The effects of the amendment, according to Hogan, were the most radical of the Constitution to date and was little more than a variation of a radical Public Safety Act incorporated into the Constitution.[42] It is to Justice Hanna in The State (O’Duffy) v Bennett[43] that best describes the nature of Article 2A:

“In considering the creation of this new Tribunal under Article 2A, …this Act goes beyond the original Constitution inasmuch as no Court can question whether as a matter of fact it is necessary or expedient that this power should be put into force.   That decision lies in the hands of the Executive Council of any Government that may be in power, and if improperly used it might possibly become, as was said of the Star Chamber, a potent and odious auxiliary of a tyrannous administration.”[44]

The application of Article 2A was suspended upon Fianna Fáil forming a government in 1932 however, the political mood of the country was, as Hogan describes, bitter and in some respects, unstable.[45]  The Army Comrades Association, whose function was to promote the welfare of ex-Army officers, began to re-organise and in the snap election of 1933 sought to protect pro-Treaty supporters against attack by IRA supporters and began wearing their distinctive blue shirts.  It underwent further re-organisation in June 1933 when the former Garda Commissioner General O’Duffy took over the organisation and re-named it the National Guard.  When O’Duffy planned a march towards the gardens of Leinster House in August 1933, the Fianna Fáil Government decided to re-activate Article 2A and promptly banned the march.[46]

 

By late 1933, members of the IRA were appearing before the Military Tribunal[47] and it suffered the ultimate indignity of being suppressed under Article 2A in 1936.[48]  The decision in Ryan v Lennon [1935][49] countenanced the continued dismantling of the 1922 Constitution by ordinary legislation and Hogan raises the interesting question about what would have happened if Ryan had been decided otherwise?[50]

 

The Statute of Westminster 1931

The significance of the Statute of Westminster has seen it ranked next to the American War of Independence as a turning point in British Imperial history.[51]  It has even been suggested that if the former had existed in 1776, the latter might never have occurred.[52]  The Statute of Westminster 1931 recognized significant advances in the evolution of the self-governing Dominions into fully sovereign states.  However, insofar as the Irish Free State was concerned, it did not consider itself as constituting a self-governing Dominion.  This, in turn, led it [Irish Free State] to deny that the Statute had any impact on Irish law,[53] despite advocating at the imperial conferences between 1926 and 1930, before eventually being accepted by the United Kingdom, that the overriding effect of imperial statutes over Dominion laws, as reflected in the Colonial Laws Validity Act, 1865, should come to an end.[54]   Again, despite this proposition, the contention that the Irish Free State had come into existence as a Dominion was nonetheless seen as incompatible with Irish identity and history.[55]

 

Mohr contends that whatever historians have interpreted the impact of the Statute of Westminster, the Irish Free State nonetheless played a major role in the creation of the Statute and that the enactment of the Statute of Westminster Act, 1931 also represented the last occasion in which the British Parliament purported to legislate for the Irish Free State.[56] Mohr maintains that the enactment of the Statute of Westminster remains one of the most important events in the constitutional history of Ireland, even if the Irish courts decline to recognize this reality.[57]

 

Chapter 2

Special Criminal Court Beginnings

The Constitution Review Committee of 1934

The unsatisfactory nature of the entire Article 2A system had already been acknowledged in official circles.  In 1934 President de Valera had established a high-level civil service Committee to review the Constitution[58]

“..with a view to ascertaining what Articles should be regarded as fundamental on the ground that they safeguard democratic rights, and to make recommendations as to steps which should be taken to ensure that such Articles should not be capable of being altered by the ordinary process of legislation…”[59]

During the civil war, Kissane intimates that the State had become reliant on the support of the Catholic Church to instil in the population the values of obedience to the civil authority.  The 1922 Constitution, intended for a 32-county state with a large Protestant minority, had been resolutely secular, but the desire to separate church and state was soon replaced by a concern to enlist the church in a partnership with the southern 26-county state, leading to a constitution with a very different character in 1937.[60]  In other words, the short but bitter civil war unleashed an impetus to authoritarianism which threatened adherence to the liberal elements of a democratic constitution. Ultimately, Kissane advocates, it is in that context, that the 1937 constitution should be seen.[61]

 

The Constitution Committee quickly recognised that the form of Article 2A was “grotesque”; it set about examining other ways of dealing with the threats posed by paramilitary violence.[62]  The Committee had recommended that the article which conferred special powers in 1931 should be replaced by a simple constitutional article which would allow parliament, by ordinary legislation, to empower the Executive to counter any state of emergency not amounting to armed rebellion or a state of war.[63]  The Committee’s working papers also disclose the first outline of what in the new Constitution of 1937 was to become the Special Criminal Court (see Annex III).[64]

 

On the question of jury trials, the members appear to have taken their role seriously and as Davis opines

“…it seems fair to say that they were willing to learn from the previous attempts at similar such legislation…”[65]

In addition to looking at Article 2A, the group also made recommendations about Article 72 which stated that

“no person shall be tried on any criminal charges without a jury save in the case of charges in respect of minor offences triable before a court of summary jurisdiction and the case of charges for offences against military law triable by court martial or other military tribunal”

Combined with Article 70, this effectively prevented civilian non-jury trial for all but the least serious offences and those covered by the type of emergency envisaged by Article 70.  The review group saw this as insufficient and did not recommend Article 72 for inclusion within the new Constitution.[66]

 

Davis takes the view that the Committee were dissatisfied with jury trials and although they did not explain the origins of this distrust, he [Davis] intimates that it must have arisen from the jury system’s repeated failure to ensure justice.  This distrust, coupled with the acceptance that an improved Article 2A was required, would become the foundation for a proposal which would itself form the basis of the Offences against the State Act 1939.[67]

 

The Dáil approved the draft Constitution on 14 June 1937 and it was put before the people in a plebiscite on 1 July 1937.  The new Constitution, Bunreacht na hÉireann, was approved by a majority.[68]  The new constitution was far more rigid than its 1922 predecessor, so that after a brief transitional period, the new Constitution could thereafter be amended only by referendum.[69]  There was, however, one problem: the acceptance of the new Constitution meant that the 1922 Constitution was no longer active law; therefore, Article 2A was no longer operative.[70]  This fact ‘prompted anxious consideration in the Department of Justice.’[71]

 

As Davis expounds, two Articles in the 1937 Constitution are relevant to the issue of ‘Special Courts’.  Article 28.3.3° provides for a ‘time of war or armed rebellion’.  In such circumstances the Oireachtas is given broad freedom from constitutional restraint and for both houses to determine if such a situation exists.[72]  By analogise, a ‘time of war or armed rebellion’ need not exist for a special court to be established.  ‘Article 38.3 [see Annex IV] of the Constitution…permits…the establishment by law of special courts quite independently of any declaration of emergency under Article 28.3.3°’[73] but more specifically

“…in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order [emphasis added]”[74]

While the then Minister for Justice originally resisted as premature in May 1938 plans for the enactment of an Offences against the State Act, the deteriorating domestic and political situation in the latter half of 1938 changed the situation entirely. By the time of the Munich crisis in September 1938 plans were already afoot for a declaration of emergency (and consequential legislation) in the event of a new European war.[75]

 

The IRA commenced a bombing campaign in Britain in January 1939 having delivered an ultimatum to the British government demanding the withdrawal of all British armed forces and civilian representatives from every part of Ireland.  On Monday 16 January 1939, on the expiration of the time limit set in the formal ultimatum (and having declared war on Britain),[76] there were seven major explosions keyed on electrical lines and power stations in the United Kingdom.[77]   On 24 July 1939, the British Home Secretary, introduced the Prevention of Violence Bill[78] authorising tight control of immigration, the right of deportation, the registration of all Irish living in Britain, and the detention of suspects.  A few months prior to the ultimatum issued by the IRA, in Ireland, the Department of the Taoiseach had instructed the Department of Justice to prepare, as a matter of urgency, permanent legislation dealing with the Special Criminal Court, unlawful organisations and treason. The Offences against the State Bill 1939 was introduced into the Dáil on 2 March 1939 and was signed by the President on 14 June 1939.  Immediately following its enactment, the Government made a suppression order pursuant to section 19 proscribing the IRA,[79] but no move was made at that stage to establish the Special Criminal Court or to introduce internment.

 

While the campaign of bombing was causing havoc on the British mainland, in Dublin the explosions had come as a total surprise to the government and a most unwelcome one.  When the realisation finally dawned that the IRA, so long discounted, had irresponsibly launched the violent venture, de Valéra addressing the new Senate made clear his opposition to the use of force and to the activities of the illegal IRA in Ireland.  Although he passed over the bombing campaign, he informed the Senators that he would ask for repressive legislation designed to allow the government to uphold its position and authority.[80]

 

The offences against the state act 1939 (“the 1939 Act”)

In early 1939, when the Government introduced the Offences against the State Bill 1939, during the second reading of the Bill the Minister for Justice noted the deteriorating situation involving the IRA which continued to threaten the existence of the State.[81]  Despite this, no move was taken either to establish the Special Criminal Court or to activate the power of internment under Part VI of the Act.[82]  It was not until the IRA declaration of war and the outbreak of hostilities between Germany and the United Kingdom that the Government could no longer afford to remain inactive.[83]  On 22 August 1939 the Special Criminal Court was established following a Government proclamation (see Annex V below) and Part VI of the 1939 Act (internment) was duly activated.

 

Section 35 of the 1939 Act confers on the Government the power to issue a proclamation bringing Part V of the Act, which provides for the establishment of special criminal courts, into force.  Section 35(2) reads as follows:

“if and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this Part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and order that this Part of this Act shall come into force”

These proclamations have been made on two occasions – in 1939 and in 1972.[84]  Once a proclamation is made by the Government, it remains in force until a further proclamation is made that the ordinary courts are adequate for the effective administration of justice[85] or until the Oireachtas passes a resolution annulling the proclamation.[86]

 

While some of the language and structure of the 1939 Act echoed that of Article 2A and as noted in the Hederman Report, there were, however, important changes with most of these veering in a “somewhat more liberal direction.”[87]  It is interesting however, to note that when the Bill was in its second reading in the Dáil on 2 March 1939 that Deputy Fitzgerald Kenney observed:

“…when Deputy O’Sullivan pointed out the great defects in this Bill, the Minister said: “Oh, but its in Article 2A.”  What is the view of the Minister for Defence now? That Article 2A is the consummation of all wisdom, and that nobody can ever criticise any single thing which is in Article 2A…”[88]

When read alongside the Hederman Report which highlights the express instructions from the Taoiseach in January 1939 that he

“…should include as much of the contents of the former Article 2A in the new legislation as he felt was necessary, while taking care expressly to repeal all previous such legislation and changing the phraseology as far as possible.”[89]

What therefore were the differences between the 1939 Act and the former Article 2A?  The Hederman Report highlights them as follows:

“First, the Military Tribunal which functioned between 1931 and 1937 consisted only of members of the Defence Forces, whereas Part V of the 1939 Act also envisages that judges, retired judges…since the Court was re-established in 1972 only judges or former judges have sat on that Court.

Secondly, whereas Article 2A provided that there was to be no appeal from a decision of the Tribunal, persons convicted by the Special Criminal Court enjoy the same rights of appeal to the Court of Criminal Appeal as if convicted by the Central Criminal Court.

Davis argues that this may have been due to the decisions in O’Duffy[90] and Hughes[91]

Thirdly, section 41 of the 1939 Act provides that the Special Criminal Court must follow the practice and procedure of the Central Criminal Court in relation to the trial of accused persons, whereas no similar safeguard was contained in Article 2A.

In addition, one further critical change is that the Special Criminal Court enjoys no special powers in relation to the sentencing of convicted persons.”[92]

The other provisions of the 1939 Act related to Part III and Part IV of Article 2A which addressed powers of arrest (now contained in s.30 and s.52 of the 1939 Act) and unlawful organisations (dealt with under sections 18-24 of the 1939 Act).[93]

 

Emergency?

The Special Criminal Court, a non-jury court composed of five military officers, was established and operated until 1946, in fact it did not formally go out of existence until 1962 when the Government issued a proclamation declaring that Part V of the 1939 Act ceased to be in force.[94]

 

The First Amendment to the Constitution was enacted on 2 September 1939, immediately upon the outbreak of the Second World War.  The German invasion of Poland had occurred on 3 September 1939 with Britain and France declaring war.  The Amendment extended the definition of ‘time of war’ contained in Article 28.3.3° to ‘armed conflict’ in which the State was not a participant but where the Houses of the Oireachtas saw fit to declare that a national emergency existed, affecting the ‘vital interests of the State’.  Both Houses passed the requisite declarations of emergency on that date pursuant to Art 28.3.3°, and on the following day the Emergency Powers Act 1939 was enacted.[95]

 

As the Hederman Report avers, while the legislation enacted under cover of Article 28.3.3° was immune from constitutional challenge, such legislation lasted only for as long as those declarations of emergency were in force.  This was not true, of course of the 1939 Act, which was (and is) not “emergency” legislation in this sense and was (and is) open to constitutional challenge in the ordinary way. Parallel with these developments, the Government activated Part V of the 1939 Act by establishing the Special Criminal Court and by bringing Part VI, which provided for internment, into force.[96]

 

Corresponding to the actions as set out above, the Government declared a policy of neutrality at the outset of World War II.  Davis, in citing Carroll, asserts that ‘having declared Irish neutrality, de Valera’s major preoccupation was to neutralize the IRA who would naturally see in England’s difficulty Ireland’s opportunity.’[97]  Lee best summarises the tactics employed by the government against the IRA during this period:

“In its resolve to defend the state, the cabinet had six IRA men executed during the war for the murder of servants of the state whose legitimacy they denied, allowed three to die on hunger strike, had more than 500 interned without trial, and had another 600 committed under the Offences against the State Act.”[98]

In the months after the start of the war in Europe, a new Emergency Powers (Amendment) Act 1940 was enacted to enable the Government to intern Irish citizens and since this legislation (unlike Part VI of the 1939 Act) was enacted under cover of Article 28.3.3° it was immune from constitutional challenge.[99]  Further to this the Government also introduced the Offences against the State (Amendment) Bill 1940[100] which largely corresponded with the original Part VI of the 1939 Act regarding internment, save that it provided that such detention could be ordered by a minister where he was of the ‘opinion’ that a person was engaged in activities ‘prejudicial to the preservation of public peace and order or to the security of the State’.[101]  President Hyde referred the Bill to the Supreme Court where a narrow majority of the Court upheld the constitutionality of the Bill and it was passed into law on 14 February 1940.[102]  Despite these legislative provisions 1940 saw an increase in IRA violence and The Emergency Powers (Amendment)(No.2) Act 1940 was enacted under cover of Article 28.3.3° and specifically permitted the additional establishment of military courts.  Harrison opines that these courts were reminiscent of the Constitution (Special Powers) Tribunal which existed under Article 2A of the 1922 Constitution.[103]

 

Early Legal Challenges

As outlined earlier, legislation enacted under cover of Article 28.3.3° was immune from constitutional challenge but it did not preclude challenges under the 1939 Act.  The first test came in The State (Burke) v Lennon [1940][104] regarding internment.  An application brought before the High Court pursuant to Article 40.4 before Gavan Duffy J. who ruled that Part VI of the 1939 Act was unconstitutional in its entirety.[105]  The Supreme Court refused to hear an appeal because it was of the view that no appeal lay from granting of an order of habeas corpus.[106] On 1 December 1939, fifty-three men were released and within the month there was a raid on the Magazine Fort in the Phoenix Park where over one million rounds of ammunition were stolen by 50 men, believed to be those who had earlier been released.[107]

 

The decision in Re Article 26 and the Offences Against the State (Amendment) Bill 1940 [1940][108] further to the referral made by the President, a narrow majority upheld the constitutionality of the Bill.  This decision was on the back of the decision in Burke where, inter alia, the court had to determine whether the internment powers contained in s.55(1) of the 1939 Act unconstitutionally vested the Minister with judicial powers.  In his judgement Duffy J. took the view that s.55 was equivalent to a judgement pronounced against the internee and

“…sufficient to show that the authority, not merely to act judicially, but to administer justice and an authority to administer criminal justice and condemn the alleged offender without charge or hearing and without the aid of a jury”[109]

As Hogan suggest, the Article 26 reference was part of a pre-arranged plan on the part of the Government whereby the Article 26 procedure would operate as a substitute form of an appeal from Gavan Duffy J’s decision.[110]  This decision was subsequently to be revisited on the question of personal rights provided for under Article 40 which was rejected by the Chief Justice[111] but later in the seminal decision of Ryan v Attorney General[112] Kenny J made it clear that he preferred the later judicial analysis, such as Buckley v Attorney General[113] to that of Re Article 26 with which the era of judicial protection of unenumerated personal rights, as Hogan described, as having well and truly begun.[114]

 

There were two further challenges in Re McGrath & Harte[115] and in State (Walsh) v Lennon[116] where the ordinary courts found that they could not interfere with the powers of the military court, established as they were under Article 28.3.3°.  In Walsh the trial of the accused had begun in the Special Criminal Court when the prosecution entered a noll prosequi against each of the accused.  At this point the government made two Orders, namely Emergency Powers Orders (No.’s 41F and 139), 1941.  Following the making of these orders the trial of Walsh proceeded before the Military Court.[117]  In the High Court Gavan Duffy J stated:

“…in time of war or armed rebellion apprehension of judicial intervention may at some delicate moment hamper the legislative or executive authority when government needs all the possible strength and freedom to steer the ship of state through the crisis, consequently the Constitution has placed in the hands of the Oireachtas, as law-giver, special authority to suspend judicial control over the other organs of government during any emergency.”

The military courts established by the Government Order[118] sat between 1940 and 1943 with the Special Criminal Court (which was also composed of officers of the Defence Forces but from whose decision an appeal lay to the Court of Criminal Appeal) functioning until 1946 and spent much of the last years of the Emergency trying black market cases.  In December 1942, for example, the Taoiseach, the Attorney General and the Minister for Justice and Supplies concluded that, in principle, the Circuit Court was unsuitable to hear black market cases or those involving ‘deep seated conspiracy’.  The Special Criminal Court and the District Court were viewed as more appropriate, undoubtedly due to the fact they were juryless courts.[119]  As Davis points out, that while juror intimidation was not mentioned at the time, securing convictions may have been difficult given the increasingly unpopular rationing laws.[120]

 

The Special Criminal Court was itself disestablished in 1946, and the rest of the emergency legislation was allowed to lapse.[121]  As the Hederman Report stresses, the absurd reality is that the state of emergency was allowed to continue for decades beyond World War II and was not terminated until 1976.[122]

 

 

Chapter 3

1937 To The Present Day

Internment and the European Court of Human Rights

The efforts of the Government during the war crippled the activities of the IRA, with the Minister for Justice announcing in 1945 that it was “dead”.[123]  However, the organisation had sufficiently resurrected itself by the 1950s with the new republican party, Clan na Poblachta, that it posed a threat to the Government.  In addition, the British reaction to The Republic of Ireland Act 1948 rallied support for the IRA and their designs for an armed assault on Northern Ireland.[124]  The British Parliament responded with the Ireland Act 1949[125] that assured there would be no changed in the status of the province of Northern Ireland without the consent of the population of the six counties.  Shortly thereafter the leader of Clan na Poblachta, Sean McBride, as Minister for External Affairs signed the Statute of the Council of Europe.

 

The ‘precursor’ to the Border Campaign of the IRA began in the early 1950s with raids on garrisons in Northern Ireland with the campaign properly having begun in 1956 until 1962.[126]  Davis submits that the Campaign, while a serious of disruptions, it did not constitute a ‘threat to the life of the nation’.[127]  In Northern Ireland however, a total of six members of the RUC were murdered and a further thirty members including those of the Ulster Special Constabulary were injured.[128]  The disruption involved, for example 340 incidents in Northern Ireland in 1957 during which two IRA members died.  The real threat of a possible attack being launched on Northern Ireland from the South had been a source of real concern during the Emergency; the reality of such attacks during the 1950s caused a great deal of tension between Britain and Ireland.[129]  In the Dáil, de Valéra’s Fianna Fáil party had an overall majority and while attempts were made to thwart the IRA they had little effect.  On 5 July 1957 it was forced to take firm action and issued a Proclamation introducing internment without trial.[130]  This decision was to prove damaging in a case, the first of its kind to be brought before the European Court of Human Rights [ECtHR] by an individual against a state.  In Re O’Láighléis [1960][131], the applicant challenged the legality of his detention and for his release under Article 40.4.2°.  However, by virtue of Article 34.3.3° the constitutionality of the Act could not be challenged.  In the alternative he pursued an application citing violation of Article 5 of the European Convention on Human Rights [ECHR].  The Supreme Court refused to give effect to the Convention since it had not been enshrined into law however, following a referral to the European Commission of Human Rights who in turn referred the matter to the ECtHR, the latter unequivocally held that internment was contrary to the guarantee of personal liberty under the Convention.[132]  However, the ECtHR also ruled that Ireland had validly derogated from the provisions under the Convention by virtue of Article 15 finding that interment was a ‘measure strictly required by the exigencies of the situation’.[133]

 

The ending of the IRA Campaign 1961-1962

During the period 1956-62 the response of the Dublin government to the IRA had become almost tradition: arrests, internments, police harassment, censorship where possible, refusal to concede to hunger strikers and a continuing condemnation of violence.[134]  It was on 23 November 1961 that the Taoiseach Séan Lemass stated in the Dáil:

“The Government regard the step of bringing persons for trial by a special Criminal Court instead of by the ordinary courts as justified only in grave circumstances. It is their judgment however that these circumstances now exist… Because the persons concerned have constantly displayed their contempt for the fundamental principles of democracy, it would be undesirable to rely on trial by jury which might expose jurymen and witnesses to the danger of intimidation”[135]

The Taoiseach, having set out the extent of ‘normal’ measures taken so far by the Government, stressed that it was in the national interest to bring the campaign of violence to an end and to fill the vacancies in the Special Criminal Court [‘military tribunals’] so that it may function again.[136]  By February 1962, 30 people had been convicted by the Special Criminal Court and in the same month the Army Council of the IRA had unanimously voted to end the campaign.[137]  In March 1962, the Government declared that Part II of the 1940 Act ceased to be in force.  One TD, in a debate on finances on 27 March 1962, had indicated that the reason why the court had been re-established was that pressure had been “brought to bear on the Government from outside the State.”[138]

 

The current ‘emergency’

The Republican movement seethed with bitter and faction and the advanced rot of despair and by 1962 the Army was a husk – its strength eroded, its purpose lost, its future unclear.  Sinn Féin lay shattered on the far shore of Irish politics, without power or prospects, still a captive of the principle of abstentionism.[139]  By the end of 1969, the IRA had split between the ‘Provisional IRA’ and the ‘Official IRA’, the latter being more Marxist in ideology and the former focused initially on communal defence in Belfast but rapidly developing an offensive strategy designed to bring down the Northern Ireland State and achieve Irish unity by force.[140]

 

The Republican campaign intensified throughout 1970 and 1971, and on 9 August 1971, internment was introduced in the North of Ireland, pursuant to the Civil Authorities (Special Powers) (Northern Ireland) Act 1922.  This was replaced by the Detention of Terrorists (Northern Ireland) Order 1972 and, thereafter, the Emergency Provisions Act 1973.  Internment without trial operated between 1971 and 1975 in Northern Ireland and was used exclusively against republican suspects.[141] In the Republic meanwhile, in May 1970 Ministers ‘Haughey and Blaney were arrested and charged with conspiracy to import arms and ammunition’.[142]  The ministers were acquitted, however the allegations that ministers were involved in such activities were grave enough.[143]

 

1972 proved by far the most violent year of the three decades of the Troubles, with about 500 fatalities.  Protests were organised opposing the use of internment and on 30 January 1972, 13 Catholic civilians were killed by British troops during a civil rights march in Derry.[144]  Northern Ireland came under direct rule by the British Government in March 1972 and following the release of hundreds of internees, and the phasing out of interment it led to a marked increase in loyalist terrorism.  As sectarian murders increased and violence reached new heights, the British government established a commission under Lord Diplock who recommended detention without trial on the basis of widespread intimidation and fear.[145]

 

In Ireland, on 5 December 1970, perceiving a kidnap threat to the British ambassador in the Republic, the Irish Government issued a proclamation introducing interment.  This was despite the government’s own opposition to internment in the North and resulted in a challenge by the Republic of Ireland before the ECtHR concerning the interrogation methods used by the United Kingdom during internment which were considered “…inhuman and degrading treatment” contrary to Article 3 of the Convention.[146]  It was however not until 1972 that the Irish Government moved to reintroduce the non-jury Special Criminal Court in the wake of the failure to obtain a conviction for the murder of the unarmed Garda Richard Fallon, by a republican splinter group.[147]  The Minister for Justice referred to the prevalent atmosphere of intimidation in courthouses and the threat of retaliation.[148]  On 26 May 1972 a proclamation was made by the government bringing Part V of the 1939 Act back into effect and since it was still active, it did not require additional legislation.[149]  An Order was made by the Government on 30 May 1972 re-establishing a Special Criminal Court – the Special Criminal Court in existence today stems from this Order.[150]

 

Following a spate of atrocities on the U.K. and Irish mainland, including the murder of the British Ambassador to Ireland, Christopher Ewart-Biggs on 21 July 1976 as well as an explosion at the Special Criminal Court building in Dublin the week before, new resolutions were passed by the Oireachtas.   These, declared a state of emergency pursuant to Article 28.3.3°.[151]  The resolutions were expressed to arise “out of the armed conflict now taking place in Northern Ireland” and one important item of legislation, the Emergency Powers Act 1976 (hereinafter “the 1976 Act”), was passed pursuant to these declarations. The 1976 Act was identical to the provisions of section 30 of the 1939 Act, save that it permitted the Gardaí to detain suspects for a period of up to seven days prior to charge.[152]  The 1976 Act was, prior to being enacted, referred by the President under Article 26[153], although the Court upheld the Bill it did so only the basis that the measure was immune from constitutional scrutiny for so long as the emergency resolutions were in force.  The Court nevertheless stressed that a suspect detained under section 2 of the 1976 Act retained all other constitutional rights and that the legality of his arrest would be vitiated if these rights were not respected.[154]  The 1976 Act was not renewed in October 1977, but as Harrison confirms, the 1976 resolutions remained in place until February 1995, and their repeal was largely symbolic.[155]

 

The ‘temporary’ Special Criminal Court

The Dáil debate on 15 June 1972 raised questions of the Minister for Justice as to the justification for the Government in their decision to introduce special courts under the 1939 Act.  The Minister, Mr O’Malley replied:

“I would, however, draw attention to the fact that, when a jury verdict has to be unanimous,[156] each member of the jury that brings in a verdict of guilty is known to have supported the verdict and is thus a potential target for attack by associates of the convicted person. The possible threat of retaliation assumes new proportions when courthouses are picketed by persons in a barely-veiled atmosphere of intimidation.

The proclamation bringing Part V of the 1939 Act into force is not subject to any specific time limit but is temporary in the sense that the section under which it is made, namely section 35, requires the Government to revoke the proclamation when they become satisfied that the conditions which gave rise to it have ceased to exist.”[157]

The interesting fact arising from the government’s response is the fact that no evidence was provided by the Minister as to the extent of this perceived jury intimidation despite being asked to by Deputy Cooney in a Dáil debate on the issue.[158]  Davis argues that the only evidence was the ‘conjecture of a government minister’ that such intimidation was occurring.[159] He does however highlight that intimidation can be deduced from the ‘declared intention of certain groups to embark on a policy of picketing homes of members of the judiciary’[160] and if so willing then he suggests that ‘they would surely then have been willing to intimidate jurors.’[161]  In any event, as will be seen from the response provided by the minister at the time, that so far as the actions taken by the Government:

“The Act envisages that it is a temporary measure and the Government are obliged under the Act to revoke their proclamation as soon as they are satisfied that conditions are such as allow that to be done.”[162]

The question that therefore arises is what justification is there, after 50 years, that this “temporary measure” is still required?  In order to understand this question it is important to examine the legislative framework and the basis for the Special Criminal Court as well as the role of the Director of Public Prosecution.

 

Legislative Framework

One of the exceptions enumerated in Article 38 of the Constitution to the right to jury trial guaranteed therein is that authorising the establishment of non jury special courts, (see Annex IV).  Article 38 goes on to provide that Articles 34 and 35, which, inter alia, ensure the independence of the judicial function, shall not apply to any court established under Article 38.3.[163]  As Pye explains, such a court, styled a ‘Special Criminal Court’ was constituted under Part V of the 1939 Act.  The court however is not seized of any offence only one scheduled by the Government under s.36(1) of Part V of the 1939 Act (and where triable summarily, the necessary direction has been given under s.45(1) of that part) or, alternatively, form the subject matter of a charge against an accused in respect of whose trial on such charge a certificate in writing has been issued by the DPP[164] (formerly the Attorney General) under ss. 46, 47 or 48 of Part V.[165]  The DPP, however, in circumstances where under s.45(2) a case is an indictable and scheduled offence and there is a case to answer before the Special Criminal Court, it may direct otherwise.  The extent of the DPP’s role in certifying the inadequacies of the ordinary courts is broad to the extent that when s.48 of the 1939 Act is invoked, giving the DPP a mandatory power, it has been held not to be “reviewable by the courts”[166] or to infringe on the separation of power[167] and was not open to be review either in open court or private session.

 

By an order of Government dated 28 October 2015, seven judges were appointed to the Special Criminal Court No.2, thereby bringing the second Special Criminal Court into existence.  The Minister for Justice Frances Fitzgerald said it would deal with the backlog of cases from the original Special Criminal Court, assigned by that court, and following a public outcry over increased criminal activity in Dublin.[168]

 

Role of Director of Public Prosecutions

The DPP has for a long time enjoyed ‘special protection’ from judicial interference in the prosecutorial discretion granted to the office out of concern for the separation of powers, a reluctance to overburden the courts with the frequent application for judicial review of the DPP’s overzealous scrutiny by the courts, and the unnecessary disclosure of law enforcement strategies at the risk of undermining crime control.[169]  While Finlay CJ in The State (McCormack) v Curran rejected the contention that prosecutorial decisions were completely exempt from judicial review he found that the Directors’ traditional immunity would be qualified where it could be demonstrated that the DPP reached a decision mala fides or influenced by an improper motive or improper policy.[170]  The Supreme Court also made it clear that the Director cannot be called upon to explain his decision or to give reasons for it or the sources of the information upon which it is based.[171]

 

This was subsequently challenged in Murphy v Ireland[172] where the applicant was successful in arguing that when the DPP is making the sole decision on whether a case which would otherwise be tried before a jury should be tried before the Special Criminal Court, and where the Director’s decision is not subject to appeal or review, then fair procedures require that the Director should either provide reasons for that decision, or justify his refusal to do so.[173]  It has been argued that the requirement to have to give such a reason would vitiate s.46(1) of the 1939.  O’Donnell J however placed emphasis on the constitutional importance of the right to trial by jury enshrined in Article 38.1 and the constitutional requirement of procedural fairness.   Keniry raises the question of how much deference from the courts could be enjoyed by the DPP if following Murphy the Office may be subject to considerable review of its decision based on unreasonableness and whether this had been envisaged by O’Donnell J in his judgement.[174]  This ‘constitutional requirement’ was modified however, in Attorney General v Marques[175] where Donnelly J in the High Court held that the Supreme Court’s inference was that the exceptional circumstance in Murphy arose because the DPP’s decision had the effect of depriving the applicant of his constitutional right to trial by jury.  Therefore, exceptional circumstances, which include but are not limited to the deprivation of a constitutional right may (restrictively) give rise to a constitutional necessity to give reasons of a limited nature.[176]

 

Keniry suggests that while cases such as CC v Ireland[177] and A v Governor of Arbour Hill Prison[178] are authorities for the general principle that the courts will intervene after the fact where the DPP has ostensibly treated applicants unfairly. Murphy identifies an instance where, though there was no initial prima facie unfairness, the applicant had a right to reasons in order to satisfy himself that the decision of the DPP sent him for trial in the Special Criminal Court was well founded and, where the information gave indications to the contrary, to enable him to challenge that decision.[179]  In the intervening years there have been a number of applications to the court centred on the request for a decision.  In L.A. (a Minor) v The Director of the Garda Juvenile Diversion Program and the Director of Public Prosecutions[180] Mr Justice Mark Heslin relied on the decision in Connelly v An Bord Pleanála[181] and the observations made by Clarke CJ and stated[182]:

“The former Chief Justice’s point that “the type of reasons which may be necessary will depend, amongst other things, on the type of decision which is being made and the legal requirements which must be met in order for a sustainable decision of that type to be reached” is highly relevant and does not seem to me to be at all at variance with the approach taken in S (identity protected)[183].”

While it may be argued by parties, including victims[184], that they are entitled to a reason, it would appear from the rational of the Courts that such reasons would appear to have to be adequate to the circumstances and where that obligation lies, in a particular case, along a spectrum between narrative, discursive essay and the mere anodyne or box-ticking or name checking, will depend on the circumstances of that case.[185]

 

Despite applications of the kind set out above, the government nonetheless introduced pursuant to two statutory instruments the provisions of s.49(1)(e) of the 1939 Act and the new Rules of the Special Criminal Court of 2016, which pursuant to Rule 9 of the said Rules provides for the allocation of a person sent forward for trial to either of the Special Criminal Courts to be decided on an ex parte basis, thus undermining further the Constitutional rights of the accused.[186]

 

Originally, the Schedule to the 1939 Act which encompassed not only acts of terrorism, but also firearms offences, which are often linked to organised crime.  However, now substantive organised crime offences have been added to the Schedule and so the ordinary court are deemed automatically to be “inadequate” and therefore not only do they fall out of the remit of the power vested in the DPP, but these scheduled offences can only fall to be tried in the Special Criminal Court.[187]  These additional provisions under Part 7 of the Criminal Justice Act 2006 lead to certain procedural and sentencing consequences, including being tried without a jury on the basis that the ordinary courts are inadequate to secure the effective administration of justice.[188]  Campbell suggest, that the blanket removal of a jury for suspected organised crimes breaches some defendant’s right to equality, given that there may be no intimidation.[189]  In Kavanagh v Ireland[190] in a case concerning the non-scheduled offence of false imprisonment, the Supreme Court held that the ability for the Courts to determine the adequacy of the ordinary courts to secure effective administration of justice was for the executive and subject to review only in special circumstances.  However, the Court stressed the necessity for the Government to keep the Special Criminal Court under constant review.  Harrison notes that a review procedure had been put in place prior to the Kavanagh decision and they were undertaken between 1997 and 2000.[191]

 

Remarkably, given the nature of proceedings, sections 8(4) to (6) under the Criminal Justice (Amendment) Act 2009 makes provision for a sunset clause of 12 months which can be renewed by a resolution passed by each House of the Oireachtas.  While this leaves types of cases which can be referred directly to the Special Criminal Court vulnerable, the failure to pass the relevant resolution would merely be tardiness and it is likely that similar provisions could be introduced under separate statutory provisions.

 

Rules of the Court

In addition to the powers provided for under the Act, Statutory Instrument No. 147/1972 – Offences Against The State Act, 1939 (No. 13 of 1939) Special Criminal Rules, 1972 was introduced by the Government to provide

“every Special Criminal Court [to] have power…and…control of its own procedures in all respects…regulating its practice and procedure…”

These rules were annulled in 1975 and replaced by the Special Criminal Court Rules 1975.[192]  The 1975 rules have since been replaced by the Special Criminal Court No 1 Rules 2016[193] and the Special Criminal Court No 2 Rules 2016.[194]  Controversially, because of the IRA policy of non-recognition of the court and the opportunity for those arraigned before the court to contest the charges against them, s.3(2) of the Offences against the State (Amendment) Act 1972 was introduced.  This enabled the courts to treat the opinion of a chief superintendent of An Garda Síochána that an accused was a member of an illegal organisation as evidence of that fact.[195]  This was met with strong criticism claiming it was repugnant to the Constitution.[196]  However, the constitutionality of the section has been consistently upheld by the courts although the current practice of the DPP is not to prosecute unless there was evidence corroborating the belief evidence and of the Court not to convict in the absence of corroborating evidence.[197]  The recent Court of Appeal decision in People (DPP) v R.K. & L.M.[198] is further evidence, Kane[199] reveals, of the extent to which the court will accept the evidence of a Chief Superintendent:

“To be ‘compelling’ it doesn’t have to be enough to convict, it is enough if it is evidence which is capable of being afforded some weight, and which, in principle, if supported by sufficiently strong supporting evidence, could lead to a conviction…”[200]

In Donohoe v Ireland the majority of the ECtHR concluded that there had been no breach of the Convention by reason of the use and treatment of the belief evidence and stated that

“the weight of the evidence other than the belief evidence, combined with the counterbalancing safeguards and factors, must be considered sufficient to conclude that the grant of privilege as regards the sources of the Chief Superintendent’s belief did not render the applicant’s trial unfair”[201]

 

 

 Chapter 4

The Court’s Future?

In general, the right to a jury trial is regarded as a fundamental element of the adversarial criminal process, and as a norm that should not be interfered with lightly or unduly.  The Magna Carta alluded to trial by one’s peers, while in Ireland, the jury trial is guaranteed under the Constitution,[202] albeit that it equally provides exceptions to this general right, however, where the trial of offences does not fit into one of those exceptions, it is obligatory.[203]  Further, as Campbell argues, that the quality of decision-making in an adversarial system is jeopardised through judge-only courts.  She highlights the research of Jackson and Doran in their research on the Diplock trials who determined that the defendants suffered an ‘adversarial deficit’ on the basis that lay triers of fact can afford to make a more wide-ranging view of the merits of the prosecution case than an expert tribunal, and that a professional approach necessitates a certain case-hardening in the sense that it demands that a colder, unemotional attitude is taken towards the evidence.[204]

 

Dicey, considered the objections to abolishing trial by jury and claimed that it would be “unjust, because without a jury no criminal could get a fair trial.”[205] He considers the meaning of “fair trial” and discounts whether any jury in the world “conduces greatly to fairness.”  However, in comparison to a trial before a judge, “the merit, indeed, of a jury is not its fairness, but its unfairness.”[206] His argument about why a jury trial is preferable and “fair” is that “…an appeal to the jury, or in other words to popular suffrage, enlists public sympathy on behalf of the law.”[207]

 

Coen confirms that attempts to challenge non-jury trial under the ECHR have not met with success, because the Convention does not require the involvement of lay jurors in order for a fair trial to be fair.[208]  As such, the Special Criminal Courts are something that are specifically envisaged by the Constitution itself as Article 38.3 provides (see Annex IV).  However, as Scott-Byrne confirms, no evidence has been produced which determines that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order as required by the Constitution when prosecuting these types of crimes.[209] The ability for the DPP, granted by legislation and which, as has been seen, has been protected by the courts, to decide where a trial should be conducted, is one which is highly undesirable[210] and Campbell has suggested that a preferable approach would be that the decision should lie with the courts or under legislation.[211]

 

In a re-examination questioning the existence of the Special Criminal Court the Supreme Court heard two appeals of a similar nature, in Dowdall and Hutch v DPP and Minister for Justice, Dáil Éireann and Seanad Éireann, Ireland and the Attorney General.[212]  Donnelly CJ, in giving judgement for the Court addressed the three strands of the Appellant’s case before the High Court and the two broad issues before the Supreme Court – “the temporal issue” and the “duty issue”. (see Annex VI).

 

On the first point, in interpreting s.35 of the 1939 Act, Donnelly CJ found that there was no temporal limitation on the length of time for which a proclamation bringing Part V of the Act into force can last, despite Barr J. in the court of first instance ruling that “Parts V and VI were specifically designed to come into existence as and when deemed necessary by the government” (emphasis added).[213]  In choosing these words “as and when”[214] it is suggested that this implies a period of time connected by two events.  Further, as highlighted earlier, in looking at the intention of the proclamation, as to the grounds which provide for its invocation, the Minister for Justice clearly expressed at the time that the Act envisaged it as being a temporary measure (see above).  It is further submitted, given that s.8 of the Criminal Justice (Amendment) Act 2009 does provide a sunset clause that the Oireachtas had in mind a “temporary” limitation which could have been inferred into s.35 of the 1939 Act.

 

Donnelly CJ further upheld the view expressed by Barr J. in his judgement that

“As long as the Government bona fide holds the requisite opinion as to the adequacy of the ordinary courts, Barr J. held that the courts were not entitled to review the making of a proclamation pursuant to s.35(2)” [Para 7]

It is submitted that it is questionable whether or not there is a right to challenge the ‘opinion’’ of the executive on whether or not “…the circumstances no longer warrant the holding of the opinion that the ordinary courts are not adequate to secure the effective administration of justice” [Para 78 Barr J.]  Given that the proclamation is not made pursuant to Article 28.3.3° and this is therefore not emergency legislation, all manner of decisions made by the executive are potentially open to examination, in certain circumstances, by the courts (see Kavanagh (1996)).  The Supreme Court did however proceed to clarify the point that it is “inaccurate” to suggest the actions of the Government under s.35 are either non-justiciable, or non-justiciable save only for mala fides, or can only be challenged on grounds of “clear disregard” [Para 40 xii].  The Court specifically ruled

“…that the decision is plainly justiciable: if the provisions of s.35(2) were not complied with, so that it was established, for example, that the Government had not be satisfied as to inadequacy…”[215]

 

A question that arises is when would it be appropriate for that ‘opinion’ to be questioned?  In the High Court Barr J. held that if the ‘opinion’ of the executive that the ordinary courts are inadequate was wrong, he was satisfied that for the purposes of Part V of the 1939 Act that the provisions of s.18 and s.8 of the 2009 Act providing for an ongoing certification is a continuing assessment of the Act.  This does not however address the substantial legal issue of how an ‘opinion’ could be challenged.  The Supreme Court in addressing this point looked to the provisions of s.35(4) of the 1939 Act which was the contrary ‘opinion’ of s.35(2) namely that when the government proclaims that the ordinary courts are adequate that the former opinion is no longer held and therein upholding the provisions for a jury trial under Article 38.5[216] (or an annulment under s.35(5) of the 1939 Act).  This reasoning, it is submitted, simply provides for two differing opinions, neither of which are open to challenge!  Donnelly CJ by contrast took the view that by passing a resolution under s.35(4) the power exercised by the Executive “is entirely unconstrained” and not predicated

“upon the Dáil forming any opinion or being satisfied of any matter or indeed taking any view on the adequacy of the ordinary courts to secure the effective administration of justice and the preservation of public peace and order, or any other matter…” [Para 39]

The Learned Judge’s reasoning for this is unclear because as he proceeds to expand on the issue he refers, not to an ‘opinion’ (required under the Act) but a ‘determination’ (‘determined in accordance with that law’).  The judgement continues to imply that the to question the existence of the Special Criminal Court under Part V is to question the Constitutionality of the Court itself by seeking a “justification or the application of a proportionality test”, none of which are required in law save that of an ‘opinion’ is reached or as Donnelly CJ consistently refers to it as, a ‘determination’.[217]

 

Insofar as the question of the court becoming permanent, the Court at Para xvi made it clear that once a proclamation is made under s.35(2) and for so long as no counter proclamation is made under s.35(4) or annulment under s.35(5) is made, then Part V is in force and the Court is validly established.

 

On the final issue concerning a duty to review, the Court stated that the duty on the Oireachtas

“…to review would also appear to be inconsistent with the general principle that the Dáil as a House of the Oireachtas is entitled to make its own rules and orders (Art. 15.10) and generally speaking is master of its own proceedings insofar as it concerns its members and proceedings. In addition, members of the Dáil are not answerable to any court for any utterance made in the Dáil (Art 15.13) … It cannot be said that the unrestricted power to annul conferred upon the Dáil imposes a duty to review.” [Para 40 xxi]

 

If one positive element that can be gleaned from this decision, it is that had the case centred on

“…a challenge to the validity of the Act or a contention that its operation was contrary to the Constitution or invaded any constitutional right…” [Para 40 xiii]

then arguably, the Court may have found in favour of the Applicants had they been able to show mala fides on the part of the Executive or had evidence to suggest that the ‘opinion’ or ‘determination’ reached in deciding that the ordinary courts were not adequate was wrong or based on misleading or false information then the declaration providing for the existence of the Special Criminal Court may have been rescinded.  This case certainly leaves open the prospect for such a finding to be made and for all trials to be heard by a jury.

 

One of the issues which has arisen within the considerations of this paper has been the application of the ECHR.  Article 14 safeguards the right to equality, which as Campbell cites as precluding discrimination in the enjoyment of Convention rights, however as highlighted earlier there is no “free-standing” right to a jury trial and consequently there cannot be a breach of Article 14.[218]   Nevertheless the Irish Constitution does make provision for the right to equality and Campbell suggests that the absence of an articulation of the DPP’s reasons and the blanket removal of a jury for suspected organised crimes breaches some defendants’ rights to equality, given that there may be no intimidation.[219]  This question of ‘equality’ was raised in two cases before the Courts; Kavanagh v Ireland[220] and  Byrne and Dempsey v Government of Ireland.[221]  In the latter case Hamilton J grounded his decision on the fact that the DPP is authorised directly by statute to issue such a certificate and thereby to make a distinction between citizens in this manner whereas in Kavanagh the determination of the adequacy of the ordinary courts was political in nature, such a decision should not be regulated in the judicial sphere and so did not engage with the substantive equality argument.  Kavanagh’s later petition to the United Nations Human Rights Committee was successful,[222] the Supreme Court held that the International Covenant on Civil and Political Rights was not part of domestic law,[223] thus the substance of the decision was again bypassed.[224]  It is suggested however, that in light of the recent decision of Dowdall it is unlikely that the Court would refuse to engage in the ‘equality’ argument.

 

In the most significant review of the Court to date, the Hederman Report of 2002, the Committee took the view that:

“…for so long as there is in existence a paramilitary threat to public peace and order, the need for the Special Criminal Court will probably remain.” [Para 9.29]

The report considered the jury practice of anonymous juries in the United States but maintained that given the size of the population in the United States versus that of Ireland, the risk of jury-tampering and intimidation would remain. On the subject of organised crime, the recommendation of the Committee was that the government should look to make a statement to the Houses of the Oireachtas that it [organised crime] should be added to the reasoning adopted for its inception in 1972 because of the perceived threat associated with the civil conflict in Northern Ireland [Para. 9.32].  Further the Committee was of the view that “recent experience” has shown that juries have been “distinctly uncomfortable…in dealing with certain cases involving organised crime” [Para 9.33].  These recommendations have yet to be acted upon.

 

The Government, by way of progress to date, has, under the Department of Justice, in February 2021, set up an Independent Review Group to examine the Offences Against the State Acts 1939-1998.  The Group, chaired by Mr Justice Michael Peart, produced its first Three Month Report on 28 June 2021[225] with a final report due to be produced in April 2022.  However, disappointingly, since the first interim report the Review Group has failed to progress any further.[226]  This, it is submitted would have been an appropriate time to review the Special Criminal Court given the recent case law and consider whether or not the Court should be placed on a separate Statutory footing or remain in its current format.  In light of the provisions of s.35 of the 1939 Act, which Robinson emphasises, places a burden of responsibility on the Oireachtas to monitor the situation closely,[227] the failure by the current Review Group to accede to its terms of reference, it is suggested, means that the government is failing in its responsibilities.

 

While there are arguments in favour of retaining trial by jury for criminal cases as advocated by the likes of Lord Devlin[228] such grand statements ignore the fact that freedom lives and thrives in other countries that have abandoned, or have never enjoyed, the great bulwark of freedom of which Lord Devlin speaks.[229]  As the history of juries has highlighted, jury packing and ‘stand-by’ have unduly favoured the prosecution until as recently at 1976, despite the constitutional provisions.  Equally, when a jury is required to give a verdict, it merely has to state “guilty” or “not guilty” and there is no provision to investigate or research how a jury deliberates and whether there has been any bias or prejudice exercised.  A judge by contrast, is trained throughout his legal career to stand back from every case and try to look at it objectively and impartially, without letting his judgement be clouded by his own instinctive reaction or personal inclinations.[230]

 

Irish Criminal Justice System

So far as Ireland’s criminal justice system is concerned, Kilcommins suggests it is showing some signs of drift in the direction of an ‘assembly line’ model of justice in which the state-individual balance is increasingly tipped in favour of the former.[231]  He points to the fact that the use of emergency laws in Ireland has a long history and have become a habitual part of the legal armoury of the state, creating a ‘dual system’ of justice.[232]  Their justification? Based on the threats posed: the Second World War, the Border Campaign, and Northern Ireland ‘terrorism’ and subsequently expanded to include organised criminal gangs.  Kilcommins does however highlight that in the cases of Damache v DPP[233] and People (DPP) v Colm Murphy[234] that in terms of a post-constitutional security state these decisions demonstrate a continued appeal of deontological considerations and principles, operating to uphold rights, despite the very unpleasant consequences.  However, it is submitted that given the research carried out by the Irish Times which showed that 89 per cent of trials in the Special Criminal Court ended in conviction[235] would lead one to believe that while the ‘system’ as a whole, is weighted towards principles embedded in the law, the general day to day approach could be better described as Rule by Law than Rule of Law and under an extra-juridical/pollical control pattern rather than any ‘metajuridical’ system.[236]  By contrast, however in the recent decision of DPP v Connolly, where the Defendant had been convicted in June 2017 of belonging to the IRA which was overturned on appeal and a retrial ordered, the Special Criminal Court could not rely on the Assistant Commissioner’s belief evidence.  The Court held that the Assistant Commissioner had made “an unqualified assertion” during the trial that none of the material that formed the basis of his belief was in the book of evidence against the accused.[237] Decisions such as this can demonstrate that rather than perceiving the criminal justice system in constitutive parts that it is more inclusionary and pluralistic despite the fact that in all the cases referred to, the decisions were following an appeal.

 

Conclusions

The concept of a jury-less system, operating within a Constitutional framework guaranteeing a right to trial by jury, is a contradiction however which way it is read.  It is suggested, however, a jury-less system operating within such a framework but mounted on a permanent statutory footing would provide greater certainty for those who are called before it and clarity in terms of its stature and more importantly its existence.  The problem with issues coming before the courts on the question of equality is that there is considerable judicial deference to the legislature due to the perception of an emergency which results in a resolutely formalistic line of judgement and failure to engage with the crux of the issue which is the reason for treating differently those accused of and tried for certain crimes in Ireland.[238]

 

In a review of the Prevention of Crime (Ireland) Act 1882 by Henry Humphrey, he stated that

“It was on the face of it admitted and pronounced to be exceptional legislation, but that it is called for in order to meet an unusual and exceptional state of things… “Whereas by reason of the action of secret societies and combinations for illegal purposes in Ireland, the operation of the ordinary law has become insufficient for the repression and prevention of crime, and it is expedient to make further provision for that purpose”.  It is then a means to an end, the end being the repression and the prevention of crime”[239]

Similar views were expressed by Dicey’s in his observations with respect to the Land Act (Ireland) 1881 he stated

“…the maintenance of the ordinary course of law can be shown to be in itself far preferable to the present system of arbitrary government.  The sole argument in favour of coercion is that the operation of the law is impeded by a break down in one part of criminal procedure.  The natural inference seems to be not that coercion should be maintained, but that the system of criminal procedure should be amended.”^[240]

Both of these conclusions, almost 150 years ago, show that using repressive means to achieve an end is arbitrary and that ruling by coercive means is not a solution.  The Special Criminal Courts operates under, what can appear to be, an arbitrary system and therefore needs to be amended.

 

While the government enjoys the protection of Article 28.3.3° the Supreme Court has reserved its position with regard to reviewing future resolutions and hinted that it had retained a jurisdiction to look behind the current resolutions to examine whether or not the two Houses of the Oireachtas had been justified in passing them.[241]  As the Hederman Report states, there would have to be a

“…very marked deterioration in conditions prevailing on this island before the Houses of the Oireachtas would contemplate passing fresh Article 28.3.3° resolutions.”[242]

Equally, where the provisions for interment without trial under the Offences against the State (Amendment) Act 1940, providing for immunity from further constitutional scrutiny would be unlikely to survive “a similar constitutional challenge”.[243]

 

It is unfortunate that the recently appointed Independent Review Group has failed to progress beyond the initial stages.  This is a missed opportunity to examine the issues facing the Court.  The IHRC, while recognising the right to a fair trial any limitation on Constitutional rights advocates that it must only take place in exceptional circumstances and not pursuant to a “category of offences”.[244]  It has also advocated various means by which a jury could be arraigned and levels of protection, even in a jurisdiction as small as Ireland, which could provide for the anonymous juries adopted in the United States.  It continues to object to the continued operation of a ‘two-tier system’ of criminal justice.[245]

 

The appetite for any form of reform is wanting and has been lacking for half a century.  It is important that if the Court is to exist that it does so on a permanent basis, under the terms of its own statute with proper consideration given to constitutional and human rights in any test to be applied when cases are referred to the court.  Defendants should be entitled to challenge the decision of the DPP and proper administration of this process could be appropriately worked into any legislation enacted.  Finally, to maintain independence, and in line with the recommendations of the Hederman Report,[246] appointment to the Court should be by the President of the High Court.

 

__________________________________________

Annex I

Dáil Eireann

The Aire um Gnothai Duitche with the concurrence of the Cabinet of Dáil Éireann hereby decrees that the decree of the Aire um Gnothai Duitche purporting to establish courts of law and equity and criminal jurisdiction as part of the government of the Irish Republic be and the same is hereby rescinded and declared to be of no effect as from this date save to the extent to which the said decree was or may have been effective to establish Parish courts and District courts outside the city of Dublin.

Dated this 25^th day of July 1922

E.S. O’Dugain, Aire um Gnothai Duitche

 

Annex II

Part IV of the Public Safety Bill 1927

Section 22

22(1)    As soon as may be after every occasion on wh9ch this Part of this Act comes into force there shall be established by the executive council one or more tribunals (in this Part of the Act referred to as special courts) consisting of at the option of the executive council either –

• of three members of whom one shall be an ordinary judge of the Supreme Court and two shall be judges of the High Court, or
• of three members of whom (who may or may not be an officer in the Defence Forces of Saorstát Éireann) shall be a person certified by the Attorney-General to have legal knowledge and experience and the others shall be officers of the Defence Forces not below the rank of commandant

 

Annex III

First outline of what in the new Constitution of 1937 was to become the Special Criminal Court

“…In addition and apart from “emergency periods and “emergency” legislation, the proposed Article (or else an addendum to one of the “judicial power” Articles) should authorise the enactment of special legislation as part of our permanent judicial machinery for the trial by Special Courts of person accused of crime, as regards whose trial the ordinary Judge or Justice certifies at any stage of the proceedings, that it is desirable in the interests of justice that the trial be removed to a Special Court set up under this scheme…

As regards this last suggestion, we desire to point out, as against the obvious objections to Special Courts, that the ordinary Courts have been unable, in the past to deal effectively with certain forms of crime, and that there is perhaps no optimism to hope for any permanent improvement in that respect. The choice appears to lie therefore between the alternatives of:

(a) allowing such forms of crime to go unpunished,

(b) declaring a ‘state of emergency’ for the purpose of setting up a Special Court every time such crimes occur,

(c) making permanent provision for a Special Court on the lines indicated…above.

As between these alternatives we recommend the last mentioned, mainly because we feel that its adoption will provide a remedy for outbreaks of disorder which would otherwise necessitate the formal declaration of a “state of emergency” with inevitable damage to the national credit.

The exact constitution and powers of these special courts would remain to be settled by legislation, but what we have in contemplation is something in the nature of the Constitution (Special Powers) Tribunal, with such changes as experience has shown to be desirable.

 

Annex IV

Article 38.3 of the Constitution

“3.1° special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

2° the constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.

Article 38.4

“4.1° Military tribunals may be established for the trial of offences against military law alleged to have been committed by person while subject to military law and also to deal with a state of war or armed rebellion.

2° A member of the Defence Forces not on active service shall not be tried by any courtmartial [sic] or other military tribunal for an offence cognisable by the civil courts unless such offence is within the jurisdiction of any courtmartial [sic] or other military tribunal under any law for the enforcement of military discipline.”

Article 38.5

“Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury”

In accordance with Article 38.3.2, the Offences Against the State Act 1939 was enacted to regulate the manner in which the Special Criminal Court operates.

Section 35(2) of the Act mirrors the language of Article 38.3.1, allowing for the establishment of special criminal courts where Government is satisfied that “the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order

 

Annex V

Iris Oifigidil, August 22, 1939. S.54(2) of the Offences Against the Person Act 1939 provided that:

if and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this part of the Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act shall come into force immediately, this Part of the Act shall come into force forthwith.

 

Annex VI

At Para 5 – the basis of the Appellant’s case before Barr J. in the High Court in Dowdall and Hutch v DPP and Minister for Justice, Dáil Éireann and Seanad Éireann, Ireland and the Attorney General [2022] IEHC 81

“First, they argued that the power of the Government pursuant to s. 35(2) of the 1939 Act to bring the Special Criminal Court into existence is intended to cater for a particular state of emergency, 5 and consequently that the Special Criminal Court is intended to be temporary in nature. As the current Special Criminal Court has been in continuous existence for fifty years, they submitted that the Court is of a permanent character and is, therefore, ultra vires the 1939 Act.

Second, it is argued that the proclamation made by the Government in 1972 was intended to address the then rising levels of so called “subversive offences”. While they accepted that the 1939 Act provides that the Special Criminal Court could prosecute non-subversive offences such as those offences related to organised crime and furthermore that offences connected with “organised crime” were now on the rise, they claimed that a new proclamation would be needed in order to address a novel class of offences such as those relating to organised crime. In other words, they claimed that the original purpose for which the proclamation had been made had effectively expired and/or that it did not apply to the applicants. This, it was argued, was an example of how the Special Criminal Court had become a permanent court when it was intended to be temporary.

Thirdly, the applicants submitted that the Executive and Dáil Éireann have a duty to continuously review the necessity for the continued existence of the Special Criminal Court and that they have failed to carry out such a review”

Issues on Appeal at Para 9 of the Judgement

1. Whether there is any temporal limitation on the operation of the Special Criminal Court, (“the temporal issue”); and
2. Whether there is, first, a duty on Dáil Éireann/the Executive to keep the necessity of having the Special Criminal Court under continuous review and, second, whether they have failed in this duty (“the duty issue”)

_______________________________________________

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[1] A.V. Dicey – How is the law to be enforced in Ireland? (1881) 3(179) Fortnightly Rev 537-552 at pg.537

[2] Ibid at pg. 537

[3] Ibid

[4] See note 1 supra at pg. 538

[5] Ibid

[6] See Note 1 supra at pg. 538

[7] See Note 1 supra at pg. 552

[8] Ibid

[9] See Note 1 supra at pg. 552

[10] See Note 1 supra at pg. 552

[11] See Note 1 supra at pg. 545

[12] See Bill Kissane – Eamon de Valera and the Survival of Democracy in Inter-War Ireland – Journal of Contemporary History Apr 2007, Vol. 42(2) pp. 213-226 at pg. 226

[13] See Note 1 supra at pg. 552

[14] Mark Coen, “The Work of Some Irresponsible Women”: Jurors, Ghosts and Embracery in the Irish Free State (2020) Law and History Review Vol. 38(4) pp. 777-810 at pg. 779

[15] Ibid

[16] See Note 14 supra at pp. 779-780

[17] See Note 14 at pg. 780 citing Diarmaid Ferriter, The Transformation of Ireland 1900-2000, Cambridge University Press (2012) at pg. 304

[18] See Note 14 at pg. 780

[19] See Fergal Francis Davis – The History and Development of the Special Criminal Court at pg. 39

[20] Ibid citing Tom Garvin, “1922: The Birth of Irish Democracy” (1996) Gill and Macmillan, pg. 121.

[21] See Note 19 supra at pg. 39.

[22] Treasonable Offences Act 1925, s. 1.

[23] Ibid., s. 6.

[24] S. 7(3) See Note 14 supra at pg. 780.

[25] See Note 14 supra at pg. 780.

[26] See Note 19 supra at pg. 39.

[27] See Note 14 supra at pg. 780.

[28] Ibid at pg. 782 citing McAuliffe and Gillis, Richmond Barracks 1916, at pg. 23.

[29] See Note 14 supra at pg. 784

[30] Ibid at footnote 48, the paper’s coverage of the attendance of the President of the Executive Council at a Buckingham Palace Dinner.  “Cosgrave in Tights”, An Phoblacht, Nov. 12, 1926, pg. 3

[31] Ibid at footnote 49 with its sarcastic coverage of the murder of Minister for Justice Kevin O’Higgins – “Alas! Poor Kevin” An Phoblacht, July 22, 1927

[32] See Note 14 supra at pg. 785 at footnote 55 – “Prisoners to be Tried,” An Phoblacht, November 13, 1925

[33] See Note 14 supra at pg. 785

[34] Repealed by the Offences Against the State Act 1939 (para. 4.2 the Hederman Report)

[35] Ibid.

[36] Bill Kissane (1998) Majority rule and the stabilisation of democracy in the Irish free state, Irish Political Studies, 13:1, 1-24 at pg. 3

[37] See Note 14 supra at pg. 39

[38] See Note 14 supra at pg. 40 citing Department of An Taoiseach file S5486, “Suggestions for a bill towards more effectual suppression of treasonable and seditious activities’ para. 1

[39] Ibid Department of An Taoiseach file S5486, Public Safety Bill, 1927, Part IV.

[40] See Note 41 Hogan at pg. 9

[41] Gerard Hogan, The Origins of the Irish Constitution, 1928 – 1941 – Royal Irish Academy (2012) at pg. 8. Such groups being those who would look to blow up the newly built Four Courts if CJ Kennedy went ahead with a formal opening.  A letter dated September 1931 from the then Minister for Justice to the CJ outlines his concerns in this regard.  See footnote 23 in Hogan ibid.

[42] Ibid at pg. 9. The Public Safety Act of 1927 was repealed in 1928.

[43] IR 70

[44] Ibid at pg. 86

[45] See Note 41 supra at pg. 11

[46] Ibid citing Maurice Manning, The Blueshirts (Dublin, 1970)

[47] Between 1934-1936d a total of 341 IRA men were convicted by the tribunal (see Kissane at note 224 below at pg. 216)

[48] See Note 41 at pg. 12 citing Eunan O’Halpin, Defending Ireland: The Irish State and Its Enemies since 1922. New York: Oxford University Press (1999) pp. 124-6.

[49] The State (Ryan) v Jerimiah Lennon, Hubert Johnston, John Harty and James Cantwell [1935] IR 170, 69 ILTR 125

[50] See Note 41 at pg. 15.

[51] Thomas Mohr – “The Statute of Westminster, 1931: An Irish Perspective” The Law and History Review, Nov. 2013 Vol. 31 No. 4, 749 at pp 749–750.

[52] For example, Hansard, House of Commons, vol. 259, col. 1222, November 20, 1931.

[53] See Note 51 supra at pp. 757-758

[54] See Note 51 at pg. 759

[55] Ibid at pg. 758 see footnote 42 by way of an example: Saorstát Éireann Official Handbook (Dublin: Talbot, 1932), 72.

[56] See Note 51 at pg. 789

[57] See Note 51 at pg. 791 with reference to the decision of the Irish Supreme Court in Re Article 26 and the Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129 at 148 held “the Statute of Westminster, 1931, should be regarded as declaratory of the law [in Ireland] and not as making any change in it.”

[58] Para 4.9 of the Hederman Report

[59] Ibid citing (generally), Hogan, “The Constitution Review Committee of 1934” in Ó Muircheartaigh (ed.), Ireland in the Coming Times: Essays to Celebrate T.K. Whitaker’s 80 Years (Dublin, 1998).

[60] Bill Kissane – Eamon de Valera and the Survival of Democracy in Inter-War Ireland – Journal of Contemporary History Apr 2007, Vol. 42(2) pp. 213-226 at pg. 215

[61] Ibid

[62] See Para. 4.10 of the Hederman Report quoting Secretary of the Department of Justice, Stephen Roche.

[63] See Note 19 supra at pg. 217

[64] See para. 4.11 of the Hederman Report – Appendix B, Report of the Constitution Committee (3 July 1934) – National Archives Ireland, Department of An Taoiseach, File S2979

[65] See Note 19 supra at pg. 57

[66] Ibid at pg. 58.  Article 38 was subsequently agreed albeit with caveats relating to the conduct of trials.

[67] See Note 19 supra at pg. 59

[68] Ibid at pg. 61

[69] See para. 4.14 of Hederman Report citing footnote 79 – by virtue of Article 51.1, the transitory period was to last for three years from the date the first President entered office. This took place on 25 June 1938, so that the transitory period ended on 25 June 1941.

[70] See Note 19 supra at pg. 61

[71] Ibid citing Joseph J. Lee, Ireland, 1912-1985: politics & society (Cambridge, 1989) at pg. 219

[72] See Note 19 supra at pg. 62

[73] Ibid citing Gerard Hogan ‘The constitutional review group of 1934’ in F. Ó. Muircheartaigh (ed.), Ireland in the coming times: essays to celebrate T.K. Whitaker’s 80 years (Dublin, 1997) pp. 342-369 .at pg. 352

[74] Article 38.3.1° of Bunreacht na hÉireann (Irish Statute Book accessed on 04.08.22)

[75] See para 4.15 of Hederman Report: Minister for Justice – Mr. P.J. Ruttledge TD pursuant to a Memorandum of Dept. of Justice 6 May 1938 & Memorandum of 14 September 1938 from Attorney General’s Office.

[76]  The remaining anti-Treaty members of the Second Dáil claimed to transfer the authority of the ‘Government of the Irish Republic’ to the ‘Council of the Irish Republican Army’.  See J. Bowyer Bell – The Secret Army (1997) at pg. 147 and Alice Harrison (note 202 below) at para. 1.09

[77] J. Bowyer Bell – The Secret Army: The IRA (1997) Taylor & Francis Group at pp. 146-147

[78] It finally was enacted as The Prevention of Violence Act 1939

[79] Unlawful Organisation (Suppression) Order (SR & O No. 162 of 1939)

[80] See Note 77 supra at pg. 148

[81] Alice Harrison – The Special Criminal Court Practice and Procedure – Bloomsbury Professional 2019 at para. 1.10 citing Hogan, ‘The Supreme Court and the Reference of the Offences Against the State (Amendment) Bill 1940’, (2000) 35(1) Ir Jur 238 at pg. 239

[82] Gerard Hogan, ‘The Supreme Court and the Reference of the Offences Against the State (Amendment) Bill 1940’, (2000) 35(1) Ir Jur 238 at pg. 239

[83] Ibid citing Joseph J. Lee, Ireland, 1912-1985: politics & society (Cambridge, 1989) at pp. 219-222

[84] See Note 81 supra at para 1.11

[85] Offences Against the State Act 1939 s.35(4)

[86] Offences Against the State Act 1939 s.35(5)

[87] Hederman Report at para. 4.16

[88] Dáil – Second Stage (Resumed) Offences Against the state Bill, 1939 Vol. 74 No. 10

[89] Hederman Report at para. 4.16 citing S10454B

[90] See Note 43 supra

[91] State (Hughes) v Lennon [1935] IR 128 see Davis at Note 19 supra at pg. 70

[92] Hederman Report at para 4.17

[93] Hederman Report paras. 4.18-4.19

[94] See Note 81 supra at para. 1.13 citing Hogan and Walker, Political Violence and the Law in Ireland (Manchester University Press 1989) at pg. 178

[95] See Note 81 supra at para. 1.14 précising the Hederman Report at para. 4.20.  Although the Emergency Powers Act 1939 was repealed in 1946, the declaration of emergency was itself to last until 1976.

[96] See Hederman Report at para. 4.21

[97] See Note 19 at pg. 72 citing Joseph T. Carroll – Ireland in the War Years (Newton Abbott, 1975) at pg. 14

[98] See Note 19 supra citing Joseph J. Lee, Ireland, 1912-1985: politics & society at pg. 223

[99] Hederman Report at para 4.23

[100] It passed both houses of the Oireachtas on 5 January 1940

[101] Offences Against the State (Amendment) Act 1940, s.4(1)

[102] See Note 81 supra at para 1.16

[103] Ibid at para 1.17

[104] [1940] IR 136

[105] Gavan Duffy J. in late March 1937 had suggested an amendment to Article 38.1 which would have prevented internment without trial – UCD P/1082/7A, April 11, 1937

[106] The State (Browne) v Feran [1967] IR 147 has since confirmed that an appeal does lie.

[107] See Note 202 supra at para 1.15

[108] [1940] IR 470

[109] [1940] IR pp. 151-2

[110] See Note 82 supra at pg. 255 and footnote 57 wherein this clearly hinted at by de Valera in the Dáil on 3 Jan. 1940.

[111] [1940] IR 470, pg. 481 – Sullivan CJ relying on the jurisprudence of the English Courts in The King (Zadig) v Halliday [1917] A.C. 260 and the ratio afforded by Lord Atkinson at pg. 273

[112] [1965] IR 294

[113] [1950] IR 67

[114] See Note 82 supra at pg. 267

[115] [1941] IR 88 – Both men were shot by firing squad in Dublin on 6 September 1940

[116] [1942] IR 112

[117] See Note 19 supra at pg. 87

[118] Emergency Powers (No. 41) Order 1940 (SR & O. No. 237 of 1940)

[119] See Note 81 supra at para. 1.19

[120] See Note 19 at pg. 101

[121] Hederman Report at para. 4.26

[122] Ibid at footnote 111

[123] See Note 19 supra at pg. 101

[124] See Note 81 supra at para 1.22 – the Act came into force on Easter Monday 1949 and meant that Ireland left the Commonwealth.

[125] Ireland Act 1949 (legislation.gov.uk) (accessed on 07.08.2022)

[126] See Note 19 supra at pg. 103

[127] Ibid

[128] Ibid at pg. 104

[129] See Note 19 at pg. 104

[130] Ibid at pg. 106

[131] [1960] IR 93

[132] Lawless v Ireland (No.3) (1979-1980) 1 EHRR 15

[133] See Note 81 supra at para 1.24 and citing Lawless Ibid at paras. 32-33.  Internment ended in 1959.

[134] J. Bowyer Bell, The gun in politics: analysis of Irish Political Conflict, 1916-1986 at pg. 221

[135] Dáil Debate 23.11.1961 Private Notice Question: – Military Courts. – Dáil Éireann (17th Dáil) – Thursday, 23 Nov 1961 – Houses of the Oireachtas (accessed 07.08.22)

[136] Ibid.

[137] See Note 81 supra at para. 1.27

[138] Mr McQuillan TD Committee on Finance. – Vote 47—Defence. – Dáil Éireann (17th Dáil) – Tuesday, 27 Mar 1962 – Houses of the Oireachtas (accessed on 07.08.22)

[139] See Note 134 supra at pg. 292

[140] See Note 81 supra at para. 1.28

[141] See Note 81 supra at para. 1.28

[142] See Note 19 supra at pg. 120 citing Joseph J. Ireland, 1912-1985: politics & society at pg. 459

[143] See Note 19 supra at pg. 120

[144] ‘Bloody Sunday’ see Note 246  supra at para. 129

[145] See Note 81 supra at para. 1.29

[146] Republic of Ireland v United Kingdom (1978-80) 2 EHRR 25

[147] See Note 81 supra at para. 1.32

[148] Ibid

[149] See Note 19 supra at pg. 132

[150] See Note 81 supra at para 1.32 referencing Iris Oifigiúil, 30 May 1972.  The constitutionality of the establishment of the Special Criminal Court was challenged in Eccles, McPhillips & McShane v Ireland [1985] IR 545 but dismissed by the Supreme Court.

[151] See Hederman Report at para. 4.34 citing 292 Dáil Debates at Cols. 1-259

[152] Ibid

[153] Re Article 26 and the Emergency Powers Bill 1976 [1977] IR 159

[154] See Hederman Report at para. 4.35

[155] See Note 81 supra at para 1.41 and Hederman Report at para. 4.41

[156] This is not true – O’Callaghan v Attorney General [1993] 2 IR 17 when O’Flaherty J. (at para. 25) confirmed this further, the Juries (Protection) Act 1929 relaxed this requirement from 1929 until 1933

[157] Dáil debate 15.06.1972 (Ceisteanna—Questions. Oral Answers. – Special Courts. – Dáil Éireann (19th Dáil) – Thursday, 15 Jun 1972 – Houses of the Oireachtas) Accessed on 08.08.2022

[158] Ibid.

[159] See Note 19 supra at pg. 139

[160] See Note 19 supra at pg. 140 citing Dept. of An Taoiseach, file 2003/116/93

[161] Ibid

[162] See Note 157 supra.

[163] Stephen Pye, Judicial Review of Discretionary Powers under Part V of the Offences Against the State Act 1939, (1985) Irish Law Times, 3, 65-72 at pg. 65

[164] Provided for under s.3(1) of the Prosecutions of Offences Act 1974

[165] Ibid and See Note 19 at pg. 141

[166] Per Finlay P. in Savage & McOwen v DPP [1982] 2 ILRM 385

[167] See Note 19 supra at pg. 142 citing Carroll J in O’Reilly & Judge v Director of Public Prosecutions [1984] ILRM 224 at pg. 230

[168] Irish Times 06.05.2016 First sitting of second Special Criminal Court – The Irish Times

[169] Shauna Keniry, Judicial Review of The Decisions of The Director of Public Prosecutions – Trinity College Law Review 2016, 19(1), 196 at pg. 197

[170] [1987] ILRM 225

[171] See Note 169 supra at pg. 199 citing Eviston v Director of Public Prosecutions [2002] 3 IR 260 at 276

[172] [2014] IESC 19

[173] See Note 169 supra at pg. 203 citing O’Donnell J in Murphy v Ireland at pg. 44

[174] See Note 169 at pg. 207

[175] [2015] IEHC 798

[176] See Note 169 at pg. 209

[177] [2006] IESC 33; 4 IR 1

[178] [2006] IESC 45; 4 IR 88

[179] See Note 169 at pg. 210

[180] [2022] IEHC 259

[181] [2018] ILRM 453

[182] See Note 181 supra at para 117

[183] [2019] IEHC 796

[184] Kilcommins confirms that the DPP has set up a Communications and Victims Liaison Unit [CVLU] in July 2015 with the aim to ensure that the office meets its obligations under the EU Directive on Victims’ Rights (2012/29/EU).  It deals with all requests for reasons not to prosecute and reviews requests from victims and provides information to victims who contact the office – Kilcommins, et al the Victim in the Irish Criminal Process at pg. 99

[185] See Note 181 supra at para. 120 citing Clarke J in Connelly

[186] See Note 81 supra at para. 3.57

[187] Criminal Justice (Amendment) Act 2009 at s.8

[188] Liz Campbell – The Prosecution of Organised Crime: Removing the Jury (2014) 18 Int’l J Evidence & Proof 83 at pg. 92

[189] Ibid at pg. 93

[190] [1996] 1 IR 321

[191] See Note 81 supra at Para 1.49

[192] S.I. 234/1975

[193] S.I. 182/2016

[194] S.I. 183/2016

[195] See Note 81 supra at para 1.38

[196] E.g. Mary Robinson – Department of An Taoiseach, File S18822A

[197] See Note 81 supra at para 1.39 citing People (DPP) V Kelly [2006] 3 IR 115

[198] [2021] IECA 342

[199] Dr Sinead Kane – Evidence and Procedure Update – Irish Criminal Law Journal 2022, 32(1), 21-26 at pg. 22

[200] See Note 198 supra at para. 98

[201] [2013] ECHR 1363 at para. 93

[202] See Campbell Note 188 supra at pg. 85

[203] Re Haughey [1971] I.R. 217

[204] See Note 188 supra at pg. 95 citing J. Jackson and S. Doran, Judge without Jury (1995) at pg. 293

[205] See Note 1 supra at pg. 548

[206] Ibid

[207] See Note 1 supra at pg. 548.

[208] Mark Coen, International Human Rights Law: A Flavour of its Impact on the Irish Criminal Justice System in International Human Rights: Perspectives from Ireland – Suzanne Egan (Eds) Bloomsbury Professional 2015 at pg. 336 citing X and Y v Ireland, Application No 8299/78

[209] Colm Scott-Byrne Human Rights and the Special Criminal Court: A Call for the Court to be Abolished – Irish Criminal Law Journal 2021, 31(3), 54-62 at pg. 56

[210] Ibid

[211] See Note 188 supra at pg. 100

[212] [2022] IESC 36

[213] Dowdall and Hutch v DPP & Others [2022] IEHC 81 at para. 77

[214] As, when or while ? – English Grammar Today – Cambridge Dictionary (accessed 10.08.2022)

[215] Ibid at Para. 40 xii

[216] See Note 213 supra at Para’s 37-38

[217] Ibid see Para 40 para i-vii (inclusive).

[218] See Note 213 supra at pg. 94

[219] Ibid.

[220] See Note 213 supra

[221] Unreported, 11 March 1999, Supreme Court

[222] 819/1998, UN Doc CCPR/C/71/D819/1998 (2001)

[223] Kavanagh v Governor of Mountjoy Prison [2002] 2 ILRM 81

[224] See Note 213 supra at pg. 95

[225] http://www.justice.ie/en/JELR/Pages/Review-of-the-Offences-Against-the-State-Acts-1939-to-1998-3-Month-Report.

[226] Home – Offences against the State Acts Review (oasareview.ie) (accessed 11.08.22)

[227] Mary Robinson, The Special Criminal Court: Almost Eight Years On – Fortnight, Mar. 1980, No. 175 pp 4-6: Fortnight Publications Ltd at pg. 4

[228] Devlin, Trial by Jury (Hamlyn Lectures, 8^th series), Stevens 1956

[229] R .J. O’Hanlon The Sacred Cow of Trial by Jury – The Irish Jurist 1990, 25(1), 57 at pg. 64

[230] Ibid

[231] Shane Kilcommins, Crime Control, the security state and constitutional justice in Ireland: Discounting liberal legalism and deontological principles – The International Journal of Evidence & Proof IJEP 20 4 (326) at pg. 327

[232] Ibid at pg. 333

[233] [2012] IESC 11

[234] [2005] 2 IR 125

[235] See Note 203 supra at pg. 56

[236] See Note 231 supra at pg. 336 generally

[237][2018] IECA 2001 see Note 337 supra at pg. 57

[238] See Note 188 supra at pg. 95

[239] The Prevention of Crime (Ireland) Act 1882 by Henry Humphreys at pg. ix

[240] Ibid

[241] Re Article 26 and the Emergency Powers Bill, 1976 [1977] IR 159, at 175-176, per O’Higgins C.J. and Donnelly CJ in Duggan

[242] See Hederman Report at para 5.17

[243] Ibid at para 5.35

[244] IHRC says blanket extension of Special Criminal Court powers to deal with organised crime not human rights compliant – IHREC – Irish Human Rights and Equality Commission (accessed on 12.08.22)

[245] Human rights commission recommends scrapping of Special Criminal Court | Irish Legal News

[246] Para 9.35