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End OASA but no consensus by reviewers on next steps

The Offences Against the State Acts emergency legislation should be abolished, according to a Government-appointed review group.

The non-jury Special Criminal Court (SCC) should be retained in a reformed manner, but on a permanent statutory footing, and without the need for annual renewal by the Dáil.

The body has issued both a majority and minority opinion, the review adds.

This is because of a “genuine difference of perspective – particularly when it comes to human rights and the rule of law”, the minority report states.

The review group has reached a consensus on the need to repeal the Offences Against the State Acts – but not on what should replace them or on the proposal to establish a permanent or “standing” non-jury court by statute. 

The minority report does so as a counterpoint to the “overly-habituated to the abnormal” set-up of the emergency laws.

The core difference with the majority stems from a reluctance to recommend the establishment of a permanent or standing non-jury court “where the prosecution [DPP] will still decide on trial venue with no unequivocal recommendation grounding concrete measures to ensure a reduction in the use of non-jury courts”.

Inappropriate

The minority view is also that establishing a permanent non-jury court by ordinary legislation is constitutionally inappropriate, based on an originalist understanding of the relevant provisions of Bunreacht na hÉireann 1937.

“Just because something can be done does not mean it should be done,” the minority report continues, and that which is permitted by the Supreme Court and the Constitution should not be treated as if it were prescribed.

“We either take the right to trial by jury seriously or we do not,” minority-position authors Dr Alan Greene (Birmingham Law School) and Prof Donncha O’Connell (University of Galway) state in their summing-up, adding that it is undeniable that conviction rates in the Special Criminal Court are markedly higher than those of the High Court and Circuit Court, where juries are used.

Other review group members are:

• Mr Justice Michael Peart (chair),
• Anne-Marie Lawlor SC,
• Caitlín Ní Fhlaitheartaigh (formerly Office of AG),
• Ken O’Leary (former deputy secretary general, Department of Justice).

The Dáil will decide next week on whether to renew the Acts, and the SCC

“Scheduled offences” such as IRA membership should also be abolished, the majority report said, with SCC use decided by the Director of Public Prosecutions (DPP).

Internment

Other recommendations are the abolition of long-unused elements, such as internment or allowing military officers to sit as SCC judges.

Remote and anonymised juries could be used where jury tampering or intimidation is a risk, the report suggests.

While the majority report allows that the risk from subversive groups has diminished, it says that An Garda Síochána still “believes that the nature of these groupings is such that ordinary courts are inadequate to deal with them”.