State security laws underpinning the operation of the Special Criminal Court are to be subject to a major review, details of which were announced on Tuesday.
All aspects of the Offences Against the State Act will be examined by a specially commissioned six-person expert review group, headed by Mr Justice Michael Peart, former judge of the Court of Appeal.
A commitment to undertake the review was part of the programme for government as well as a key recommendation of the Commission on the Future of Policing in Ireland, the body established to direct a major overhaul of justice.
Announcing the group’s membership on Tuesday, Minister for Justice Helen McEntee said the Act and the non-jury Special Criminal Court (SCC) had served the State well in tackling both subversive activity and organised crime.
“However, it is important to occasionally review the operation of our important legislation... this current review is timely,” she said.
An interim report from the expert group, taking into account the current threats posed by both domestic and international terrorism, as well as organised crime, is due within three months.
While broad in scope, much interest will lie in how the process deals with the SCC, a sometimes controversial organ of the State and bugbear of Sinn Féin which, in 2016, vowed to abolish it if in government.
Tom O'Malley, senior counsel and a member of the Irish Law Reform Commission, said three key areas of the legislation might come under particular review by the group – whether the SCC, which came into being in 1972, is still warranted; who should have the power to direct cases there and in what circumstances; and the current 72-hour arrest and detention period allowed for in the Act, where the final 24 hours is granted by a district court judge.
“The question would be: 50 years on effectively, is there still a need for the SCC and I suppose what has happened in a sense [is that] the justification for it has shifted over that 50-year period,” Mr O’Malley said.
“Back in the early 1970s it would have been political-type offences, terrorist offences. There is a little bit of that still but nowadays it is what we call gangland crime.”
Jury intimidation
Mr O’Malley said that while the fundamental problem of potential jury intimidation in organised crime cases remained, there may be a need to consider whatever empirical evidence exists on the issue in the spirit of an overall review of powers.
Another historically controversial aspect that could be looked at, even possibly reformed, is the issue of who decides which cases merited an SCC trial and in what circumstances, currently a function of the Director of Public Prosecutions. However, he added, there was no immediate sign of concern given that a relatively small proportion of criminal prosecutions were directed to the three-judge court.
The terms of reference of the review include current threats to the State covered by the Act; duty to deliver a fair and effective criminal justice system; and Ireland’s obligations to constitutional rights, the European Court of Human Rights and international law. Various stakeholders including statutory agencies and civil society organisations will be consulted.
The process follows a previous independent review in 2002 under the chairmanship of former Supreme Court Judge, the late Mr Justice Anthony Hederman.
Other members of the expert group announced on Tuesday include Dr Alan Greene, of the University of Birmingham; senior counsel Anne-Marie Lawlor; Caitlín Ní Fhlaitheartaigh, former advisory counsel at the Office of the Attorney General; Prof Donncha O'Connell of NUI Galway; and Ken O'Leary, former deputy secretary general of the Department of Justice.
