The scene of the murder of Kinahan gang member David Byrne, who was ‘shot dead at the Regency Hotel, Dublin, on February 5, 2016. Picture: Gareth Chaney Collins.
The State’s human rights watchdog is to carry out a review of the Special Criminal Court (SCC) this year as part of a major examination by the UN of Ireland’s human rights record.
The planned review by the Irish Human Rights and Equality Commission (IHREC) comes amid renewed focus on the non-jury court following remarks by the country’s two biggest political parties and Garda Commissioner Drew Harris.
On the back of long-running policy objectives of Sinn Féin to abolish the SCC, leader Mary Lou McDonald said in election leaders’ debates that she wanted a “review” of the court.
While this call does not actually feature in the party’s election manifesto, the issue became a strong focus of criticism of Sinn Féin by Fianna Fáil and Fine Gael.
In contrast, Fianna Fáil said it wanted a widening in the court’s jurisdiction to hear evidence from a senior officer that, in his or her opinion, a suspect is involved in gangland activity — similar to laws empowering gardaí to give evidence in the SCC that a suspect is a member of a paramilitary organisation.
Mr Harris said last week that the SCC provided an “essential service” in combating organised crime and terrorism, but added that he would not be concerned at a review.
The IHREC has begun its review of the SCC as part of its submission to the UN Human Rights Committee under the International Covenant on Civil and Political Rights.
Its submission will form the basis of the UN’s examination of the Irish Government, culminating in public scrutiny over two days in the summer of 2021.
The IHREC review of the SCC comes under its examination of the fundamental right to a fair trial.
Other issues being examined including domestic and sexual violence, treatment of people in detention, treatment of refugees and asylum seekers, freedom of expression, and treatment of minorities.
The last submission to the UN Human Rights Committee on the protocol was made by IHREC’s predecessor, the Irish Human Rights Commission (IHRC) in June 2014.
The IHRC’s criticism of the court centred on: The “broad discretion” of the DPP in referring cases to it, without giving reasons; the routine nature of parliamentary scrutiny; the extension of new criminal gang offences to it and the overly-broad definition of terrorist activities.
A statement from the IHREC said: “Concerns about the Special Criminal Court are a recurring issue raised by the UN Human Rights Committee under the International Covenant on Civil and Political Rights [ICCPR] in relation to Ireland.”
It said the last review of Ireland in 2014, before the establishment of the IHREC, set out “specific concerns” with the SCC.
“The Irish Human Rights and Equality Commission will be reviewing the State again this year in regard to the use of the Special Criminal Court, and other issues related to the protection of people’s civil and political rights,” it said.
The statement said that while the review of the commission was not yet complete it would be “building on the previous recommendations”.
It added: “The previous recommendations of the IHRC will form the basis of the commission’s review.”
The commission gathers a “list of issues” that will be provided to the UN committee, which will use it to seek a written submission from the Government and upon which it will question Government representatives at a public examination in the summer of 2021.
The commission has, as part of previous and separate submissions to UN committees, conducted public consultations and accepted written submissions from interested parties.
Among its commissioners with legal expertise are Professor of Law at UCC Caroline Fennell (acting chair) and Colm O’Dwyer SC.
Conflicting voices on need for ‘review’ of court
The call made in the run-up to the election by Mary Lou McDonald for a “review” of the Special Criminal Court sparked a particularly sharp response from Fianna Fáil and Fine Gael.
When asked on live TV did she back the SCC or did she want it abolished, the Sinn Féin leader dithered.
Under some pressure, she pointed out there was nothing in the party’s election manifesto calling for its abolition.
Actually, Sinn Féin’selection manifesto makes no mention — good, bad, or indifferent — about the court, so it is not clear what, if anything, Sinn Féin would actually do if it formed part of the next Government.
Indeed, given the prominent role the court has played in jailing senior Kinahan lieutenants and hired hitmen for murders and murder plots (see panel), it might be a tricky one for Ms McDonald and the party to pursue.
This is not least because the community most affected — as in terrorised and traumatised — by the Kinahan extermination campaign was the north inner city, Ms McDonald’s home constituency.
None of which is to say there are not legitimate arguments against a non-jury court, or even more legitimate arguments about how the Special Criminal Court operates.
As we report today, the Irish Human Rights and Equality Commission (IHREC) is conducting a planned review of the SCC this year as part of its submission to the UN Human Rights Committee.
The review forms part of Ireland’s record in relation to the fundamental right to a fair trial. The examination also looks at a wide range of civil and political rights.
UN officials will use the IHREC submission to quiz the Government, including in public sessions, in the summer of 2021.
The SCC is permitted as an emergency measure under the Constitution when the ordinary courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order”.
The SCC, in its modernincarnation, was set up in 1972, during the height of the Troubles, and has operated since then.
The use of the court is argued on the basis that juries in the ordinary courts would be intimidated.
Primarily set up to deal with offences involving terrorism, particularly paramilitaries, it has also been used in relation to organised crime, including the trials involving the John Gilligan gang in the late 90s and the Dundon gang in the mid-2010s.
As a result of legislation rushed through in 2009 on the back of the murder of Limerick businessman Roy Collins, new offences were introduced — membership of, contributing to, anddirecting a criminal organisation.
Under the Criminal Justice Act 2009, these would be automatically referred to the SCC unless the DPP directed otherwise — and the State prosecutor has tended to send them to the normal courts.
The UN Committee on Human Rights has previously said that the continued existence of the SCC was “not justified”.
In 2014, the Irish Human Rights Commission (IHRC), the predecessor of the IHREC, focused its concern on a number of areas:
- The broad discretion the DPP has in assigning cases to the SCC, without having to give “reasonable and objective” grounds for the decision;/li]
- A recommendation of the Hederman Committee (set up in 1999 to review theOffences against the State Acts following the 1998 Good Friday Agreement) for the court to “automatically lapse” unless its continuance is agreed by both houses of the Oireachtas at three-yearly intervals has not happened — an action the IHRC said would “go some way” to addressing its concerns;/li]
- Extending the remit of the court to organised crime offences under the 2009 act;/li]
- The “routine nature” of annual parliamentary resolutions continuing the SCC;
- The definition of terrorist activities in Irish law is “overly broad”.
The IHRC has queried whether jury intimidation was at such a serious level in Ireland as to warrant the extension of the SCC following the 2009 act, saying there was no supporting data.
It said there were alternative measures to protect jurors, such as anonymous juries, screening the jury from public view, and locating the jury in a separate location venue from the trial with communication by video link.
The IHREC said the submissions by its predecessor would “form the basis” of its review.
In its mammoth 380-page report, published in 2001, the majority of the Hederman Committee agreed that the threat posed by paramilitaries was sufficient to justify the SCC, subject to its recommendations.
A three-person minority (including the chair, Mr Justice Anthony Hederman) dissented, saying a pressing case to abandon a jury trial had not been made. It said that no other common law jurisdiction, save Northern Ireland, had a non-jury court.
Last week, Garda Commissioner Drew Harris intervened in the debate to say the SCC provided an “essential” service.
“We obviously have a situation where organised crime groups and terrorist groups are in a position through fear to thwart jury-led trials and that, unfortunately, is the position we are in,” he said.
“We have to have the arrangments then to deal with those particular type of offenders.”
He said gardaí had a lot of successful prosecutions in the SCC over the years against criminal gangs and terrorist groups: “So, we see it as a vital function, a justice function, a criminal justice function, in how we protect the people of Ireland.”
Questioned about a possible review of the court or its possible abolition, he said: “I wouldn’t be concerned about a review. I haven’t heard anyone mention abolition, so the question doesn’t arise yet.”
January 2018: Eamon Cumberton given a life sentence for the murder of Hutch target Michael Barr in the Sunset Lounge in Dublin’s north inner city.
January 2018: Jonathan Harding and James Walsh sentenced for the possession of nine revolvers, four pistols, a sub-machine gun, an assault rifle, and various ammunition magazines, seized in the Greenogue depot.
August 2018: Andrew O’Keeffe, a hitman for the cartel, was sentenced for firearms offences in July 2017 when a DOCB team intercepted him in Inchicore and was forced to discharge multiple shots to stop his getaway.
August 2018: Freddie Thompson, a senior cartel member and long-time crime boss in the south inner city and Crumlin/Drimnagh, was sentenced to life for the murder of Daithí Douglas in the south inner city in July 2016.
November 2018: Jonathan Keogh, an INLA gunman, his sister Rachel, and Thomas Fox were sentenced for the murder of Gareth Hutch, nephew of Gerry Hutch, in the north inner city in May 2016.
December 2018: Imre Arakas, an Estonian hitman contracted by Kinahan bosses, was sentenced for conspiracy to murder Hutch target James Gately in April 2017.
February 2019: Sean Ruth sentenced to two and a half years on firearms charges related to the Greenogue haul.
July 2019: Paul Beaty sentenced to seven and a half years for possession of a firearm in June 2018.
July 2019: Declan Brady sentenced to 11 and a half years for being in charge of an arsenal of weapons — nine revolvers, four semi-automatic pistols, a sub-machine gun, an assault rifle, and 1,355 rounds of ammunition — found at a Kinahan arms depot in Greenogue Business Park, west Dublin, in January 2017.
July 2019: Robert Browne and brothers Gary and Glen Thompson sentenced for conspiracy to murder Patrick ‘Patsy’ Hutch , brother of Gerry Hutch, in March 2018.
January 2020: Liam Brannigan sentenced for conspiracy to murder Hutch target Gary Hanley between September and November 2017.The senior cartel figure became the fifth person (in addition to Luke Wilson, Alan Wilson, Joseph Kelly, and Dean Howe) sentenced in relation to the offence.