A Government-appointed review group has recommended the abolition of the Offences Against the State Acts, the broad-ranging set of emergency legislation introduced on the eve of the second World War to combat the IRA.
However, the group recommends that the most controversial aspect of the legislation, the non-jury Special Criminal Court, be retained, albeit with significant reforms.
In a minority report, two members of the six-person group went further and recommended the abolition of the court entirely.
It comes as the Dáil is due to decide next week whether to renew the Acts, and the Special Criminal Court, for another year. The Government is expected to argue for a continuation of the status quo despite the reports’ recommendations.
Minister for Justice Helen McEntee said the reports will be subject to “detailed” considerations involving multiple Government departments and agencies but that the vote later this month will go ahead.
“There is much to digest and reflect on in the majority’s package of recommendations and also in the perspective of the minority.”
The most consequential recommendation from the group, which is made up of academics and legal experts, and led by retired Appeal Court judge Mr Justice Michael Peart, is to place the Special Criminal Court on a permanent statutory footing. This would do away with the requirement for annual renewal by the Dáil and largely take the matter out of the realm of politics.
[ Minority report calling for abolition of Special Criminal Court to be publishedOpens in new window ]
[ Opinion: Protecting jurors is vital. But non-jury trials aren’t the answerOpens in new window ]
The system of “scheduled offences” – offences such as IRA membership which are automatically referred to the Special Criminal Court – should also be abolished, it said. Instead, the use of the court should be decided by the Director of Public Prosecutions (DPP) on a case-by-case basis.
These measures should be implemented by repealing the Acts and replacing them with various pieces of standalone, non-emergency legislation.
As well as retaining the court, the group recommends that several of its most controversial attributes be retained.
This includes allowing “belief evidence” from senior gardaí in trials involving membership of an illegal organisation and allowing an accused’s silence in interview to be used against them. However, legislation should formalise the position that neither of these can form the sole basis for conviction.
Many of the other recommendations deal with the abolition of obscure or long-dormant elements of the Acts, such as allowing the Government to introduce internment during emergencies or allowing military officers to sit as judges in the Special Criminal Court.
It also recommended legislation to reduce reliance on the non-jury court in cases where jury tampering or intimidation is a risk. These include remote and anonymised juries.
In its majority report, the group said the risk from subversive groups has receded in recent years but that An Garda Síochána still “believe that the nature of these groupings is such that ordinary courts are inadequate to deal with them”. It also referred to potential threats from foreign terrorist organisations, hostile state actors and right-wing extremism.
In a sometimes strongly worded minority report, Dr Alan Greene and Prof Donncha O’Connell said there is not enough evidence to justify the continuation of the non-jury court.
“We either take the right to trial by jury seriously or we do not,” their report said. In particular, they criticised the fact that it is the DPP who decides which cases are sent to the court.
However, while calling for the abolition of a standing Special Criminal Court, it accepted that non-jury courts may sometimes be required if there is a clear risk to a jury in a specific case.
In continuing to renew the emergency legislation the State has become “overly habituated to the abnormal”, the minority said.
A similar review group in 2002, led by former Supreme Court judge Anthony Hederman, also recommended abolition of the Acts, but this was never acted upon, they noted.
