Murdoch's Term of the Week: Special Courts

To celebrate the release of one of our most eagerly anticipated titles in years, The Special Criminal Court: Practice and Procedure by Alice Harrison, this week's TOTW offers an introduction to the area of special courts.


Special Courts

The courts which may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order: 1937 Constitution, art.38.3.l.

The Special Criminal Court was established under the Offences against the State Act 1939, Part V. It is a matter for the government to decide whether Part V should be brought into force or should cease to be in force; this was essentially a political decision, and was entitled to the presumption of constitutionality: Kavanagh v Government of Ireland [1996 SC] 1 IR 321; [1997 SC] 1 ILRM 321.

A person who is convicted or sentenced by a Special Criminal Court in respect of any offence may appeal to the Court of Criminal Appeal (qv) from such conviction or sentence: Offences against the State Act 1939 s.44(1) as substituted by Criminal Procedure Act 2010 s.32. The court which was established pursuant to a government proclamation on 26th May 1972, has jurisdiction extending to crimes in addition to those committed by subversives: Gilligan v Ireland [2001 SC] 1 ILRM 473.

Members of the Special Criminal Court must be either a judge of the High, Circuit or District Court, a barrister or solicitor of not less than 7 years standing, or an army officer not below the rank of commandant; they are appointed and removable at the will of the government (ibid 1939 Act s.39). The court consists of three persons without a jury and its decision is that of the majority. An appeal by the defence lies to the Court of Criminal Appeal; there is no prosecution avenue of appeal from an acquittal by the Special Criminal Court.

The Government may, by order, provide that specified business of a Special Criminal Court, other than business that is required to be transacted by or before a judge or judges of such a Court, shall be transacted in a combined court office: Courts and Court Officers Act 2009 s.17.

A person convicted or sentenced by a Special Criminal Court may appeal to the Court of Criminal Appeal from such conviction or sentence: s.44 of the 1939 Act as amended by Criminal Procedure Act 2010 s.32. See Rules of the Superior Courts (Criminal Procedure Act 2010) 2012 (SI No 114 of 2012).

A person may be sent for trial to the Special Criminal Court if charged with a scheduled offence (qv), which is a list of particular offences (ibid s.45), or if charged with a non-scheduled offence where the Director of Public Prosecutions(qv) so requests and certifies as required (ibid s.46). Such certification by the DPP is not reviewable by the Courts unless the applicant can establish (a) a prima facia case of some irregularity of a serious nature such as to amount to some impropriety: Foley v DPP [1989 HC] ITLR (25 Sep), or (b) evidence of mala fides (qv) on the part of the DPP or evidence that the DPP was influenced by an improper motive or improper policy: Kavanagh v Government of Ireland [1996 HC] 1 ILRM 132.

Also a person lawfully before the Special Criminal Court in respect of a scheduled offence, may be tried by the court in respect of a non-scheduled offence: McElhinney v Special Criminal Court [1989 SC] ILRM 411. It has been held that the jurisdiction of the Special Criminal Court may be exercised in respect of any person who has been lawfully brought before it; there was no requirement that the person be brought to the Court pursuant to the Offences against the State Acts: O’Brien v Special Criminal Court [2007] IESC 45; [2008 SC] 1 ILRM 510; [2008 SC] 4 IR 514.

See also Criminal Justice (Verdicts) Act 1976. See Eccles v Ireland [1986] ILRM 343. See also Offences Against the State Act (Special Criminal Court Rules) 1975 (SI No 234 of 1975) as amended by SI No 536 of 2001. See “Constitutional aspects of non- jury courts” by Peter Charleton SC and Paul McDermott BL in Bar Review (Nov 2000) 66 and (Dec 2000) 141. See “Time to decommission the Special Criminal Court?” by solicitor Pat Igoe in Law Society Gazette (Apr 2002) 5.

In view of the nature of the Special Criminal Court as a court of trial, matters other than a trial were not to be inferred into its jurisdiction; it is a unique court that limited some rights of an accused, most notably trial by jury, and consequently legislation that extended its jurisdiction should be strictly construed: Gilligan v Special Criminal Court [2006 SC] 2 IR 389; [2006 SC] IESC 86.

IIt has been held that the jurisdiction of the Special Criminal Court was invoked when, in regard to a scheduled offence, the DPP directed that a person be brought before that court; the jurisdiction did not depend upon the technical validity of the manner in which an individual was physically present before that court: People (DPP) v Birney [2006] IECCA 58; [2007 CCA] 1 IR 337.

Provision has been made for the establishment of a second Special Criminal Court so as to avoid delays in trials before that court: Offences against the State Act 1939 s.38 (as inserted by Criminal Justice (Terrorist Offences) Act 2005 s.52). Provision has also been made to allow for the transfer of cases from one Special Criminal Court to another: Offences against the State Act 1939 s.49 (as inserted by Criminal Justice (Terrorist Offences) Act 2005s.53).

A government appointed committee, under the chairmanship of Mr Justice Anthony Hederman, recommended that the Special Criminal Court should be retained, subject to keeping it under regular review: Report of the Committee to Review the Offences Against the State Acts 1939-1998 (2002). See also Consultation Paper on Prosecution Appeals in cases brought on Indictment (LRC CP 19 - 2002). [Bibliography: Walsh D (3)].


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