OPINION: Jury trials should only be restricted for reasons graver than this Bill makes out
THE GREAT British judge Lord Devlin said that the jury trial was “the lamp that shows that freedom lives”. That lamp may burn a little dimmer if the new Criminal Justice (Amendment) Bill 2009 is passed as it stands.
The Bill proposes to do away with jury trial for a whole range of criminal offences, and to send those accused of them for trial in the Special Criminal Court.
The reason given for introducing the Bill is the threat from criminal gangs, shockingly illustrated by the murder of Roy Collins, who had given evidence in a gangland trial in Limerick. The Irish Human Rights Commission is well aware of the threat posed by organised crime and the suffering it inflicts on communities throughout the State. We fully support the prosecution and conviction of those involved in such crimes. But it is our job, under the statute that set up the commission, to examine proposed legislation to see that it complies with the rights protected by the Constitution and international human rights law.
Jury trial is protected by the Constitution, and is central to our whole criminal justice system. It ensures that decisions on the guilt or innocence of an accused person are made by his or her fellow citizens, and not by a judge alone. It should only be restricted for the gravest reasons, and it does not seem to the commission that those reasons have been made out before the introduction of this Bill.
The Government has referred to intimidation of witnesses and juries. Intimidation of witnesses has certainly taken place, but this Bill does not deal with protecting witnesses. No figures have been given to show that intimidation of juries is so serious that it warrants doing away with them for a whole category of cases.
The Bill declares that “the ordinary courts are inadequate to secure the effective administration of justice” in relation to criminal organisations. That would be a terrible admission of failure by our system, but it does not seem to us that we have reached that stage.
The courts are convicting people in so-called gangland cases, and where there is evidence of intimidation of juries, there is a whole range of measures that could be taken to protect jury members instead of just scrapping juries.
There are numerous alternatives to the measures proposed in this Bill. Trials could be moved away from where the accused live or operate. The new criminal courts complex in Dublin will segregate jury members completely from the accused and the public. Juries could be made anonymous. They could be screened off from everyone except the judge and the lawyers. They could sit at a different location connected to the court by a video-link only visible to the judge and legal teams.
In the UK, which has its own problems with organised crime, steps such as those in this Bill were provided for by the Criminal Justice Act 2003. And only as a last resort: if there is proof of a clear and present danger of intimidation in a particular case and if none of the safeguards would work, there is provision for a judge-only trial. Only now, six years after the law was passed, are they about to hold the first non-jury trial.
The commission has recommended that measures like these should be explored before we give in and say that our court system has failed.
Of course, we have non-jury trial at the moment in the Special Criminal Court, but that arose out of the special situation of paramilitary violence, hopefully soon to be a thing of the past. Already, international human rights bodies have urged that the Special Criminal Court be phased out. And the Hederman Committee, set up by the government to review the Offences Against the State Acts, recommended in 2002 that the system of scheduling a whole group of offences to be tried by the Special Criminal Court should be ended, and each case should be examined individually to see whether a non-jury trial was warranted.
There are many other things in this Bill, and some of them also give cause for concern, but we have focused on the issue of jury trial as it seems to make such a major inroad into a fundamental aspect of our justice system.
The commission would urge the Government to think again about this issue and not to rush this Bill through the Oireachtas before the summer recess. Rushed law is often bad law, and that will not help victims of crime in the long run.
These proposals could do with serious reflection and consideration of less drastic alternatives before they are passed into law. And there are other measures that have been approved but have not yet been tried, such as the Surveillance Bill that is about to become law.
Michael Farrell is a member of the Irish Human Rights Commission.
It recently published its Observations on the Criminal Justice (Amendment) Bill 2009 and was particularly critical of the proposals to withdraw jury trial from organised crime offences