The establishment of a second non-jury Special Criminal Court has attracted widespread criticism, including from the UN Human Rights Committee. Criticism of this court, both international and national, is not new. As long ago as 2001 the chairman of the committee set up to review the Offences Against the State Act in the wake of the Belfast Agreement, Mr Justice Hederman, along with a minority of that committee, recommended it be abolished, though the majority did not agree.
The arguments against this court are that it contravenes a fundamental principle of justice – that one side in an adversarial process can decide an accused person must forfeit his right to trial by jury, widely seen as the cornerstone of a democratic criminal justice system. Various ministers for justice have replied that the threat from terrorism arising out of the conflict in the North has required such an exceptional court. That threat has now largely dissipated, though dissident activity remains. More recently its use has been extended to those suspected of involvement in organised crime and thought likely to intimidate juries. However, other countries with organised crime problems have not resorted to the abolition of the right to trial by jury, and there are ways of protecting juries, including by maintaining their anonymity.
Justifying the setting up of a second court, the Department of Justice has pointed out that the wait for trial in the Special Criminal Court is now 20 months, largely because of the length of time certain trials have taken. Two lengthy trials in 2014 had a knock-on effect of delaying other trials in the system.
But delays in the criminal justice system are not peculiar to the Special Criminal Court. Rape and murder trials in the Central Criminal Court can be waiting for well over a year. Graham Dwyer, whose trial was seen as unusually quick to come to court, was in custody for 18 months between his arrest and the opening of his trial. Other criminal trials in the Circuit Criminal Court, for matters as serious as sexual assault, serious assault and robbery, can also take over a year to come to trial. Taking judges out of the judicial pool available to hear these cases will only add to these delays. According to the Courts Service annual report, 14,844 serious criminal offences came before these courts in 2014, of which just 32 were before the Special Criminal Court.
The reasons for these delays are complex. They include the general under-resourcing of our courts system, where Ireland has the lowest number of judges per head of population of any advanced country, and inefficient procedures with repeated adjournments and little pre-trial preparation. These will not be solved by a further reduction of the right to jury trial by the establishment of a second Special Criminal Court.