Special Criminal Court 1922 - 2006

Michael O'Sullivan reviews The History and Development of the Special Criminal Court 1922-2005 by Fergal Francis Davis, Four Courts Press, ISBN 978-1-84682-013-7, £50 hbk

FERGAL DAVIS has written a cool, even handed account of the history of special courts in Ireland since the establishment of the Irish Free State in 1922.

He purports in his opening chapter to address not only the development of the courts themselves but also what he calls their 'legitimacy'.

He handles the chronological progression very well and his examination of the relevant legislation is keen and thoughtful. He also provides interesting analysis of the background to a number of important trials.

He treats the second part of his stated thesis however, the legitimacy question, a little too delicately, as though this key issue were somehow taken for granted, or perhaps secondary to his main purpose.

He also appears to have something of a bee in his bonnet on the question of juries and trial by jury in general.

The beginnings of Irish experiments with special legislation and their subsequent development are in effect the history of the responses of successive Irish governments to threats, real or perceived, from the IRA.

The ending of the civil war in the spring of 1923 gave the pro-treaty faction the opportunity to consolidate its position in the Dail and to move legislation which they hoped would finally eliminate any remaining republican resistance.

The recently formed Cumann na nGaedheal party, controlled in the main by Cosgrave, Mulcahy and O'Higgins, was a government without an effective opposition, having executed, imprisoned or banished most of the IRA command structure.

In peacetime however, any overly repressive measures would need to be at least quasi-legal. The execution of O'Higgins by republican forces in July 1927 was the government's opportunity to rush the pre-prepared Public Safety Act (PSA) through the Dail. This was to represent the first attempt by the Free State government to establish a special court as distinct from standard war-time military tribunals, though in practice the distinctions are not easy to discern.

The powers of the court and its composition are described by Fergal Davis as extraordinary and draconian and ultimately subversive of the constitution. Effectively under the control of the executive and staffed with military personnel in place of ordinary judges extremely harsh penalties were available and no appeal was allowed to the civil courts.

Although the PSA was to be repealed the following year and the court disbanded without a sitting it provided the blueprint for all subsequent 'emergency' legislation. It also highlights two alarming and essentially anti-democratic features evident in such legislation to the present day; a willingness to subvert and undermine the constitution in order to secure convictions and a determination to ensure that the rule of law should, when necessary, take second place to political expediency.

Adverse publicity necessitated a further constitutional amendment, giving rise to what became known as Article 2A, a slightly less reprehensible version of the PSA.

The same essential features however were present, again rendering nugatory any personal safeguards contained elsewhere in the constitution.

Savaged by de Valera in opposition for its flouting of the rule of law, Article 2A was to be utilised by him for use against his own political opponents as soon as the first Fianna Fail government took office in the spring of 1932.

Davis then skilfully outlines the processes whereby de Valera set about consolidating his political power base in the Dail by enacting a new constitution after his own designs, and then introducing, pursuant to Article 38, a new 'slightly constitutional' Special Criminal Court to replace the old troublesome arrangement.

This time the legislation provided for civilian judges (never used) as well as military personnel and, in an attempt to defuse any too vocal protests from legal quarters, a limited right of appeal to the ordinary criminal courts.

Characteristically, de Valera while wishing to appear reluctant to use such repressive extra-legal measures against former comrades maintained and utilised the special court throughout the war years in order to bolster his use of restriction orders and internment without trial.

Internment alone was to be used in the fifties to contain the IRA campaign, the government by now presumably of the view that even military tribunals were not worth the trouble of convening.

Davis indicates his own qualified approval of internment and cites in support the celebrated detention without trial case of Lawless V Ireland from the then newly formed European Court of Human Rights, out of which the government was fortunate to emerge with a majority decision in its favour.

The 'troubles' of the seventies saw the hasty re-emergence of the special court to enable it to operate in tandem with the new juryless 'Diplock' tribunals which the British had set up in the north.

Minister for Justice O'Malley, in a squirming speech in the Dail, emphasised that the new courts would have absolutely no military character, (in fact the legislation does provide for Defence Force participation), and were made necessary because of the prevalence of jury intimidation, though he was unable to cite any actual examples of this.

The recent history of the special court merits a book to itself, though Fergal Davis manages to provide a clear and succinct outline of its workings in his final chapters.

Some interesting comparisons are drawn with similar non-jury arrangements in other jurisdictions as he attempts to minimise the distinctions between a special court and a properly convened judicial forum.

The difficulties however will not go away; viewed from any angle jury trial for serious offences is an integral part of any common law system and under present conditions juryless trials will always remain extra-judicial hearings. The protection from self-incrimination, the presumption of innocence and other important safeguards must necessarily suffer, as has proved the case many times.

Fundamentally, the recent increase in the use of these courts to try ordinary criminal cases does nothing for the cause of justice but only serves to generate alarm and hostility at home and adverse and damaging criticism internationally. The case for tribunal justice is not made out here.

But having said that, this book, apart from Mary Robinson's useful monograph from 1974 on the same subject, is very welcome indeed, being the only full account available of the Irish experience of extra-judicial courts. The 'history and development' parts are especially well researched and presented and the book as a whole will prove indispensable to those involved in legal research, constitutional studies and human rights projects.