The Government is understood to be considering a review of the Offences Against the State Act, the legislation that has been used in trials of subversives and gangland crimes for the past five decades.
The Act provides for the establishment of the non-jury Special Criminal Court and, because it is emergency legislation, it has to be renewed each year.
The renewal date is June 30th but without a functioning Seanad at present, it will mean the legitimacy of the court will expire at the end of the month unless a new government is formed.
That has prompted concerns of trials against suspects not being able to proceed because the legislative basis behind the charges no longer exists.
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Sources said last night that Minister for Justice Charlie Flanagan may be minded to announce a review of the legislation which has been controversial.
However, it is understood the review will not be a stand-alone review but be part of a comprehensive reevaluation of security legislation recommended by the Commision on the Future of Policing in Ireland.
While Mr Flanagan is said not be opposed to the idea of a review, there are no indications that Fine Gael - or, for that matter, Fianna Fáil - would agree to the ending the non-jury status of the court.
Until recent years it was primarily used to prosecute so-called scheduled offences including subversive crimes and membership of illegal organisations such as the IRA, the INLA, and the Real IRA.
In recent years it has also been used for non-scheduled offences in drugs and gangland cases, where there are concerns over intimidation of, and threats against, juries.
The Dáil will debate a motion on the legislation on Wednesday in anticipation of a government being formed. If it is, the incoming government will work to get the legislation through the Dáil at the special sitting on Saturday and through the newly convened Seanad on Monday. That will allow it to be renewed before the Act lapses.
Calls to abolish
Sinn Féin has been calling for the court to be abolished for more than two decades primarily because it was used as a vehicle to prosecute IRA members. Its objections focus nowadays on the fact that it is a non-jury court.
Official Green Party policy has also been for the court to be abolished. However, both its leader Eamon Ryan and Sinn Féin leader Mary Lou McDonald signalled they would be willing to change their respective parties’ stances on the legislation during the general election campaign in February.
That came after the particularly brutal murder of Drogheda teenager Keane Mulready-Woods as part of a wider feud involving drug guns.
Sinn Féin now says it accepts special powers are needed to tackle gangland crime but still objects to the non-jury nature of the court. It has consistently voted against the renewal of the powers.
In an amendment tabled by its justice spokesman, Martin Kenny, the party says it is willing to accept a court with special powers as its priority is to tackle organised crime.
“To do this we need to put in place a law that befits the 21st century. Criminal gangs operate on a global scale and some operate entirely online,” said Mr Kenny.
He said new legislation should be enacted to put the court on a permanent basis. It was ridiculous that emergency powers intended as a temporary measure were still being used almost 48 years after their enactment, he said.
Remote juries
However, he said the party did not accept that a non-jury court was the way to proceed. He argued that the advent of technology would allow remote juries, whose anonymity could be protected. This could help prevent jury tampering and intimidation, which occurred in some gangland and drug cases which were heard before juries in the ordinary criminal courts.
The Greens have also called for a review of the courts.
Neither Fianna Fáil nor Fine Gael have raised any objection to the non-jury nature of the court.
However, if Mr Flanagan does agree to an independent review – while leaving the emergency powers in place for another year – there is a possibility that Sinn Féin might not oppose the renewal for the first time since its TDs entered Dáil Éireann in 1997.
