Article 38 of the Constitution of Ireland empowers Dáil Éireann to establish “special courts” with wide-ranging powers when the “ordinary courts are inadequate to secure the effective administration of justice.” The Offences against the State Act 1939 leads to the establishment of the Special Criminal Court for the trial of certain offences. The scope of a “scheduled offence” is set out in the Offences Against the State (Scheduled Offences) Order 1972.
On May 26, 1972, the Government of Ireland exercises its power to make a proclamation pursuant to Section 35(2) of the Offences against the State Act 1939 which leads to the establishment of the Special Criminal Court for the trial of certain offences. The current court is first established by the Dáil under the Offences against the State Act 1939 to prevent the Irish Republican Army (IRA) from subverting Ireland’s neutrality during World War II and the Emergency. The current incarnation of the Special Criminal Court dates from 1972, just after the Troubles in Northern Ireland began.
Although the court is initially set up to handle terrorism-related crime, its remit has been extended and it has been handling more organised crime cases after the Provisional Irish Republican Army ceasefire in the 1990s. For instance, members of the drugs gang which murdered journalist Veronica Guerin were tried in the Special Criminal Court.
Section 35(4) and (5) of the Offences against the State Act 1939 provide that if at any time the Government or the Parliament is satisfied that the ordinary courts are again adequate to secure the effective administration of justice and the preservation of public peace and order, a rescinding proclamation or resolution, respectively, shall be made terminating the Special Criminal Court regime. To date, no such rescinding proclamation or resolution has been promulgated. Following the introduction of a regular Government review and assessment procedure on January 14, 1997, reviews taking into account the views of the relevant State agencies are carried out on February 11, 1997, March 24, 1998, and April 14, 1999, and conclude that the continuance of the Court is necessary, not only in view of the continuing threat to State security posed by instances of violence, but also of the particular threat to the administration of justice, including jury intimidation, from the rise of organised and ruthless criminal gangs, principally involved in drug-related and violent crime.
The Special Criminal Court has been criticised by the Irish Council for Civil Liberties, Amnesty International and the United Nations Commission on Human Rights for its procedures and for being a special court, which ordinarily should not be used against civilians. Among the criticisms are the lack of a jury and the increasing use of the court to try organised “ordinary” crimes rather than the terrorist cases it was originally set up to handle. Critics also argue that the court is now obsolete since there is no longer a serious terrorist threat to the State, although others disagree and cite the continuing violence from dissident republican terrorism, international terrorism and serious gangland crime.
Under the law, the court is authorised to accept the opinion of a Garda Síochána chief-superintendent as evidence that a suspect is a member of an illegal organisation. However, the court has been reluctant to convict on the word of a garda alone, without any corroborating evidence.
The Sinn Féin political party in the past has stated that it is their intention to abolish the Special Criminal Court as they believed it was used to convict political prisoners in a juryless court, however Sinn Féin are no longer in favour of its abolition. Some prominent Sinn Féin members, including Martin Ferris and Martin McGuinness, have been convicted of offences by it. In 1973 McGuinness was tried at the SCC, which he refused to recognise, after being arrested near a car containing 250 pounds (110 kg) of explosives and nearly 5,000 rounds of ammunition. He was convicted and sentenced to six months imprisonment.
(Pictured: The Criminal Courts of Justice complex in Dublin where Special Criminal Court (SCC) sittings are usually held)