The chairman of the committee set up to review the Offences Against the State Act has recommended the abolition of the Special Criminal Court. However, the majority of the committee do not agree.
Mr Justice Hederman's dissenting view is contained in the interim report of the committee, set up in May 1999 under the Belfast Agreement, and is supported by Prof William Binchy and Prof Dermot Walsh.
The report was sent to the UN Human Rights Committee yesterday, and has been laid before both Houses of the Oireachtas by the Minister for Justice, Mr O'Donoghue.
The report deals with the Special Criminal Court, and the majority of the committee, while favouring its retention, recommend various changes in the way it operates.
The other members of the committee are: Mr Gerard Hogan SC; Mr Eamon Leahy SC; the former Garda commissioner, Mr P.J. Moran; and representatives from the offices of the Attorney General and the Departments of Justice, Defence and Foreign Affairs.
According to a statement from the Department of Justice, the report is being considered by the Minister, in consultation with the Attorney General, and the whole report will be available shortly.
The majority of the committee considered that the threat from paramilitaries and organised crime was sufficient to justify the retention of the Special Criminal Court.
However, this is subject to two qualifications: that the necessity for the court be kept under constant review; and that steps be taken to ensure judges sitting on this court enjoy the same traditional guarantees of independence, relating to their tenure and salary, as other judges.
They also recommend the Government should no longer appoint particular High Court, Circuit Court or District Court judges to the court, but that all serving members of these courts be eligible to sit on it, with the President of the High Court acting as its president.
The majority recommended that any resolution establishing the Special Criminal Court should automatically lapse unless positively affirmed by resolutions passed by both Houses of the Oireachtas at three-yearly intervals.
The interim report also dealt with the issue of the DPP referring specific cases to the Special Criminal Court on the basis of a certificate - a practice that was the subject of a successful case before the UN Human Rights Committee. The report recommends that the decision of the DPP to refer certain cases to the Special Criminal Court be reviewable.
In their dissenting view, the minority of the court felt that the proposed safeguards were not sufficient.
They said a fundamental principle was at stake, where one side of the adversarial process was able to decide that an accused forfeited his right to trial by jury.
Proposing dispensing with the Special Criminal Court, they stressed that the right to trial by jury was a cornerstone of the criminal law system, and that the case for its suspension had not been made.
Other countries with an organised crime problem had not resorted to the abolition of the right to jury trial, they said, and the problem of jury intimidation could be dealt with by anonymous juries or by keeping them in a secure, secret location.
Referring to the threat from paramilitaries, they pointed out that in Northern Ireland, where there were non-jury courts, the British government had undertaken to move as quickly as possible to jury trials.