Ireland must resist being among “backsliding” democracies and authoritarian states using special courts and other exceptional measures to tackle organised crime and terrorism, an international human rights and terrorism expert has urged.
Prof Fionnuala Ní Aoláin, a former UN special rapporteur on counterterrorism, said there is often “a deep reluctance” by courts, policymakers and politicians to tackle “security thinking”.
Security thinking “has its limitations” and one consequence of more than 30 years of it in Ireland is that a specific threat which gave rise to specific exceptional measures at a particular point, including the non-jury Special Criminal Court, “has extended far beyond where it started”.
Now other kinds of security threats, such as “the far-right”, “extremism” and “violent extremism” are emerging, she said. There is no international consensus on what any of those terms mean but “new forms of exceptionality” are building around them.
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Welcoming an independent review group’s recommendation for repeal of the Offences Against the State Act, a 1939 emergency measure strengthened in 1972 to deal with escalating violence in Northern Ireland, she said that was “a positive and important step” for the “abandonment of exceptionality” within Irish law.
The Special Criminal Court“appears harder to disappear” with a majority of the review group favouring the establishment of a permanent non-jury standing court with the Director of Public Prosecutions continuing to have the option of deciding on a non-jury trial, she said.
It was “critical” to resist the “strong pull” to exceptional measures in order to regain balance and normality within the bounds of the legal system, she said.
A professor in security and law at Queen’s University Belfast and the University of Minnesota, Prof Ní Aoláin was delivering the keynote address opening a top-level law conference at the University of Galway considering the challenge of jury trials for terrorism and organised crime upon replacement of the Act. The speakers include leading legal academics from Ireland, England and Wales and practising criminal lawyers.
In her address, Prof Ní Aoláin said the process by which the Special Criminal Court began to deal with organised crime offences was initially “a classic slippery slope”.
The arguments for this move were very similar, “unsurprisingly”, to those used for terrorism-related offences, including the serious nature of the crime, jury intimidation, evidential challenges and security needs of the prosecution and State.
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There was “little serious or sustained attention” to finding meaningful alternative ways to overcome the challenges of maintaining juries in small jurisdictions, she said. Such alternatives, including integrating new technology, are used in some jurisdictions, she noted.
The move to use counterterrorism laws and institutions to process organised crime was on the rise, she continued. The UN Security Council passed a resolution in 2019 to that effect and, in countries such as El Salvador, judicial independence and the presumption of innocence have been abandoned and conditions of “mass arbitrary confinement” appeared to meet the threshold for torture and inhuman and degrading treatment under international law.
The “ongoing” difficulties for the Special Criminal Court relating to fair trial appear to be moving with it to the recommended new permanent non-jury standing court, she said. Those difficulties include a lack of “reliable, consistent and true” data concerning the basis for justifying such exceptional legal measures for reasons of security or counterterrorism.
The fact that Special Criminal Court judgments were not published offended the obligation of justice “being done and being seen to be done” as well as the principle of transparency protected for fair trial rights under the European Convention on Human Rights and the International Covenant on Civil and Political Rights, she added.
Interviews conducted by her some years ago with lawyers representing defendants before the Special Criminal Court revealed challenges in securing the fundamental right of access to counsel in a meaningful way, said Prof Ní Aoláin.
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Most of those prosecuted before the Special Criminal Court were for membership of a proscribed organisation, “a kind of handy shortcut on substantive offences” and one “harnessed to problematic standards of evidence” – the belief of a Garda superintendent. Such associational-type offences were “deeply troubling” to her as a special rapporteur as she saw them heavily relied on by authoritarian states and backsliding democracies.
The “enormous challenges” presented by organised crime, terrorism and extremism require states to tackle the core causes of violence in society, invest in social infrastructure and defend the rule of law, she stressed. It is about “prevention, prevention and prevention”.
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