Professor Donncha O’Connell and Dr Alan Greene

Political supporters of the Special Criminal Court stoutly heralded the recent acquittal of Gerard Hutch by the three-judge court as evidence that “the Special Criminal Court works”. Had he been convicted — a far more likely probability if the spectacularly consistent conviction rate of the non-jury court is anything to go by — they would almost certainly have said the same thing. For those in the vanguard of the fight against terrorism and organised crime, the Special Criminal Court is a most flexible friend whose critics are dismissed as impractical and unrealistic.

And, yet, two expert groups chaired by retired judges, deliberating 20 years apart, have called for repeal of the Offences Against the State Acts, the legislation underpinning the Special Criminal Court. Neither group agreed on what should replace that legislation.

In the most recent review chaired by retired judge Michael Peart, a majority recommended the establishment of a permanent non-jury court to replace the Special Criminal Court, where the decision on trial venue would remain with the Director of Public Prosecutions (DPP) — subject to certain criteria — and where the belief or opinion evidence of a senior garda would continue to be admissible. This recommendation resulted from a close doctrinal analysis of predictably consistent Irish Supreme Court decisions on the Offences Against the State Acts — decisions characterised by judicial deference towards government on security matters spanning the 20-year period since the Hederman Review.

We were members of the review group and we dissented from those recommendations and wrote a minority report. Our considered view is that the recommendations of the majority are unlikely to lead to a reduction in the use of non-jury courts. We believe their recommendations are not supported by serious empirical evidence and do not stand the test of comparative analysis. We view their recommendations as minimalist and meretricious based on a process that was characterised by insufficient epistemic curiosity. The review process took considerably longer than had been anticipated when the review group was established in February 2021.

The doctrinal analysis on which the majority report is largely based has some value. It provides a useful and authoritative basis upon which to deliberate further. While we disagree with our colleagues fundamentally on certain points, we believe that our minority report adds to the choices to be considered by the Oireachtas in replacing the Offences Against the State Acts (OASAs). It makes the case for further deliberation involving a broad range of stakeholders — not just a selection of those already consulted by the review group.

It must therefore seem a bit odd that the immediate response of the Dáil and Seanad to the latest review was to renew certain provisions of the post-Omagh Offences Against the State (Amendment) Act 1998 and Criminal Justice (Amendment) Act 2009, following a truncated debate characterised by noise and name-calling, with only the most superficial consideration of the contents of two reports.

This may have been different had the reports been published by government even a few more weeks ahead of the renewal debate, but the fact that there was no discernible political demand for earlier publication — apart from that made by non-governmental organisations like ICCL — is an indication of the degree of interest on the part of parliamentarians in the details of the review process and, indeed, in reform of the OASAs themselves. This must be what Ms Justice Iseult O’Malley of the Irish Supreme Court meant when she spoke of us becoming “overly habituated to the abnormal”.

In any event, the reports are about a lot more than renewal of certain provisions of the legislation. Their consideration should not be conflated with the abysmally performative routine of annual renewal in which neither government nor opposition do themselves any credit.

Courts must be independent of the other branches of government. Their legitimacy is dependent upon their independence and impartiality. The more extravagantly politicians make a political spectacle out of support for the Special Criminal Court, the more they undermine its legitimacy. The solution to this problem is not to make the nominally impermanent Special Criminal Court permanent.

In our minority report, we acknowledge that exceptional non-jury trials can co-exist with jury trials in a constitutional system that clearly identifies jury trial for serious offences as the gold standard. We set out the circumstances in which such non-jury trials should take place — such as jury tampering or intimidation — and propose that the decision on trial venue should be made by a judge and not the DPP. We also differ from our colleagues in the majority in arguing against the continued use of opinion or belief evidence. We propose instead that our rules of evidence be brought into line with those applicable in Northern Ireland, where such evidence is not allowed. We found no reason to explain why the PSNI is able to secure convictions for membership offences in Northern Ireland without recourse to belief evidence — while An Garda Síochána continues to insist upon the need for such evidence to be admitted in the south.

Irish exceptionalism is unexceptional. So-called emergency powers have a nasty habit of becoming permanent everywhere. But we can learn from successful endings of exceptional powers in other jurisdictions too. In the face of police opposition, the UK repealed its controversial counter-terrorist power of suspicionless stop and search. The Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, remarked: “Sometimes powers appear necessary but it is possible to make do without them after all.”

What we have sought to do in our minority report is to point towards a way of making non-jury trials truly exceptional and not an exception that will become normalised for certain categories of defendant, as has been the case since 1939. Our position is supportive of an attainable constitutional ideal and, perhaps ironically, conservative. It is practical and realistic if we are serious about the primacy attached to jury trial under the Irish Constitution and willing to invest in the resourcing of juries, including their protection, as recommended by the Law Reform Commission as long ago as 2013.

• Professor Donncha O’Connell of University of Galway School of Law and Dr Alan Greene of Birmingham Law School were members of the six-person independent review group set up to examine the Offences Against the State Acts. This article first appeared in The Irish Times.