No easy answers as to how we meet threats to security
Published 10/02/2016 | 02:30
How are threats to State security met without disproportionately affecting the human and civil rights of citizens, especially when we have a constitutionally enshrined presumption of innocence and right to a jury trial?
It's a question that yields no easy answers.
But whether the threat is the IRA or Isil, drug barons, crime lords or cyber-terrorists, governments are always trying to resolve this perennial problem.
They often get the balance wrong, as many politicians, vulnerable to swings in public mood, are addicted to knee-jerk, legislative solutions rather than evidence-based policy making.
The 'cry of the emergency' is, as Supreme Court Judge Mr Justice Adrian Hardiman has observed, "an intoxicating one, producing an exhilarating freedom from the need to consider the rights of others and productive of a desire to repeat it again and again".
And Ireland has attracted much criticism for the permanent, largely unreviewed use of much of our 'emergency' apparatus including the Offences Against the State Act 1939 - it's now 2016 - and the retention of the non-jury Special Criminal Court.
It is depressing that the Special (number two is on the way, despite the peace process) has been with us almost without interruption since the foundation of the State.
The scrapping of jury trial for a small cohort of suspects is no cause for celebration: it is an admission that the ordinary courts and the rule of law aren't adequate to secure the effective administration of justice or protect the public.
It's not just the United Nations and bodies such as Amnesty International who have voiced concerns about the Special.
The Supreme Court is also uneasy about practices such as relying on senior gardaí who give "opinion evidence" (mostly about IRA membership) unless there is independent corroboration or support for their opinions.
However, the Supreme Court also recognises that the Special has its place.
It approved, for example, a decision by the DPP to certify Thomas 'Slab' Murphy's tax evasion trial there on the basis that it was "highly likely" the reason why the DPP considered the ordinary courts inadequate "must relate to the connections of Mr Murphy with organisations which are prepared to interfere with the administration of justice".
A High Court judge said earlier that another possible reason why the DPP certified Slab for a non-jury trial was a belief that the 'good republican' (as Sinn Féin President Gerry Adams calls him) had previously interfered with a jury.
Sinn Fein's plans to repeal the 1939 act and abolish the Special are controversial, not just because we are in the midst of a gangland crisis that has produced two murders in four days. It is because Sinn Féin wilfully ignores the reasons why the Special is still with us - namely dissident republicans and very real fears of jury and witness intimidation. Mr Adams ignores the fact that the vast bulk of suspects tried in the Special stand trial for membership of an illegal organisation, for possession of firearms, ammunitions and explosives, as well as murder and directing terrorist or organised crime.
It's hard to imagine any more serious threats to the State.
But it's also hard to fathom where we go next given the sheer volume of emergency powers the State has reserved to itself.
'Saturation policing' will only get us through the latest public outcry.
We must address the intelligence failures that saw journalists and photographers alive to the potential risks at the Regency Hotel and its murderous fallout while the gardaí apparently failed to turn up.
Arming gardaí with Uzis is pointless if they are operating in an intelligence vacuum.
The law is critical, but we can never legislate away the need for evidence - nor the need to prevent crime in the first place.