The Special Criminal Court: Guilty Until Proven Innocent

The Special Criminal Court

‘Guilty until proven innocent?’ These are the words used by the Irish Council for Civil Liberties (ICCL) to describe the Special Criminal Court (SCC) when it recently called for its abolition. The SCC played a significant role in Osgur Breatnach’s plight as one of the key players in the serious injustices suffered by him in the Sallins train robbery case. For more details on the background to the case, please see our first blog post in this thread. 

So, what is the SCC? The 1937 Irish Constitution, Bunreacht na hEireann provides for the establishment of ‘special courts’ by law where the ordinary courts are deemed inadequate to secure effective administration of justice and preservation of peace and order (Article 38.3). With the political unrest at home and in Europe around this time, 1939 saw the introduction of the Offences Against the State Act (OASA), thus providing the legislative framework to give effect to Article 38.3. Part V of the OASA permits the government to issue a proclamation bringing a SCC into being for a period of temporary duration when required in times of emergency. Such a proclamation was made on three occasions, 1939, 1961/1962 and 1972. The SCC initiated under the 1972 proclamation is by far the longest running SCC and is still in force today, which seems to fly in the face of the supposed temporary nature of the court for use in times of emergency only. 

The SCC has been controversial from the off, largely due to its structure and technicalities, and such structure and technicalities certainly compounded Osgur’s situation. There are a number of concerns with the SCC. Firstly, it is a political court introduced at the behest of the government. It is a non-jury court which goes against the constitutionally protected right to jury trial- the appointed judge plays the part of both judge and jury. Additionally, the SCC can draw inferences from the accused’s silence which impacts on the right to silence and the principle of innocent until proven guilty. A further unique aspect of the SCC is its reliance on so-called ‘belief evidence’, which essentially means the court can rely on the statement of belief by a member of the gardaí not below the rank of Chief Superintendent that a person is a member of a particular organisation. This again has huge consequences for an accused and certainly lowers the standard of evidence required in a criminal trial. All the above calls into question the ability of the SCC to conduct a fair trial. The SCC has been involved in a number of miscarriages of justice. 

It is clear from Osgur’ Breatnach’s experience that the SCC was instrumental in his conviction. The only evidence contained in the book of evidence in front of the three judges during his trial was the ‘statement’ signed by Breatnach after being subjected to what amounted to torture in accordance the UN definition of torture. This case would not have progressed if it came before the ordinary courts. Therefore, perhaps it is the SCC that is not in a position to secure the effective administration of justice, and not the ordinary courts after all.  

The scope of the SCC has been extended to include organised crime and a second SCC was established in 2016. Where will it end? The Irish Human Rights and Equality Commission and the ICCL have both recently called for its abolition. Described by Mary Robinson (former President of Ireland and former UN High Commissioner for Human Rights) as a ‘sentencing tribunal’, it is well time the curtain came down on this particular feature of the Irish legal system. 

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