Tuesday 25 October 2016

Criminals are at war with us all, not just each other

Don't ask Gerry Adams what should replace the Special Criminal Court. He hasn't got a clue, writes Eilis O'Hanlon

Eilis O'Hanlon

Published 14/02/2016 | 02:30

Sinn Fein leader, Gerry Adams. Photo: Reuters
Sinn Fein leader, Gerry Adams. Photo: Reuters

Imagine that Thomas 'Slab' Murphy had been found guilty by a jury of his peers rather than by the Special Criminal Court (SCC). Who honestly believes Sinn Fein would have been any happier with the verdict?

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On the contrary, they would now be claiming that poor Slab couldn't get a fair trial because the media had already subjected him to a disgraceful "trial by media".

Though if public opinion is so hostile to "good republicans" such as Slab, surely it is better for him to be tried before a non-jury court, where the biased opinion of 12 men and women cannot interfere with the impartial exercise of justice? It has to be one or the other.

Unless SF's real concern is not to find the fairest method of trying Murphy, but rather to find a convenient reason why he shouldn't be tried at all?

Gerry Adams is adept at mimicking the language of civil liberties, but pledging to abolish the SCC backfired badly as the outbreak of gang violence in Dublin forced SF into defending the abolition of an institution at the forefront of tackling organised crime. No wonder Adams got into a tangle as he struggled to explain how cases against gangsters could be processed effectively if the option of juryless courts was taken away.

He categorically denied on TV3's Leaders' Debate that he had suggested placing jurors on witness protection programmes, but he certainly allowed that impression to be created. In the end, all he had on the campaign trail and in the debate was the rhetorical equivalent of a weak shrug, insisting that other countries manage without juryless courts, so Ireland could too.

This "what's good enough for them should be good enough for us" line of reasoning fails to take account of the fact that many of those same countries have equally contentious legislation of their own in place to deal with gangsterism. Police forces may be armed, as well as taking a much more aggressive line on law enforcement than would be acceptable to Irish people.

Prison sentences are longer, in tougher institutions with far less concern for the comfort of convicted criminals

In Italy, Mafia prisoners can be isolated physically and electronically from families and friends on the order of the minister for justice to prevent them communicating with associates in the outside world. Some countries even have execution as the ultimate penalty for drug-trafficking offences. It's doubtful that SF would accede to any or all of these measures as a quid pro quo for abolishing the SCC.

It's just as wrong to make sweeping statements that these other jurisdictions have done away with non-jury trials. Adams specifically name-checked Britain as an example of alternative ways of dealing with organised crime.

In fact, the UK's Criminal Justice Act 2003 provides the option of judge-only trials if there is a serious danger of jury-tampering. The first case to go ahead was in 2010, when four men went on trial for a £1.75m armed robbery at Heathrow Airport after previous trials had collapsed following attempts to influence jurors.

Such measures, the Lord Chief Justice ruled, should be a last resort, but were justified "where necessary protective measures constitute an unreasonable intrusion into the lives of jurors, for example, a constant police presence in or near their homes, day and night and at weekends, with its consequent impact on the availability of officers to carry out their ordinary duties".

All of which factors are undoubtedly relevant in Ireland, where the strain on resources from protecting multiple jurors in gangland trials would soon become unbearable.

The SCC may be overused, but that's a different argument from one which says abolish it now and worry about how to replace it tomorrow. That's what was so revealing about Adams's words - not wanting to end the SCC, but that he had clearly given no thought to what would take its place.

Far from being unfair, it's actually possible to make a case that the use of non-jury trials should be extended.

Following the Heathrow case, Sir Louis Blom-Cooper, who helped found Amnesty International, did just that, stating that some cases were now so complex that the interests of justice were best served by letting them be tried by specialists and not by juries.

There was, as he pointed out, no evidence that defendants fared worse under such systems or that such courts were more prone to miscarriages of justice. In Ireland, district courts deal with a wide range of summary offences every day without any need for a jury. There's nothing very scary or draconian about juryless courts either in principle or practice.

What those who attack the SCC fail to take into account is the unique circumstances in Ireland that made its creation unavoidable. In its present incarnation, it came about in response to the conflict in the North, an unprecedented situation in modern Europe, with tentacles extending over the Border into the Republic.

In the circumstances, it was deemed proportionate to activate constitutional provisions allowing for the establishment of special measures when "ordinary courts are inadequate" and for the "preservation of public peace and order". In time, mainly in response to the brutal murder of Sunday Independent journalist Veronica Guerin, the functions of the SCC evolved.

Many of the criminals investigated by Guerin had long ties to republican paramilitary groups, enjoyed ready access to weapons as a result, and had admiringly adopted Belfast-style tactics. This put the situation faced by the Irish authorities on a different scale to those in other jurisdictions.

In a small country where people's families are vulnerable to identification and intimidation, most people regard the measures taken as justified. Civil libertarians might argue that such provisions shouldn't be used against civilians, but gangland hit men are not civilians. They are combatants, subversives.

Across Europe, similarly tough measures are now being adopted against Islamic terrorism, including increased powers of surveillance and extended detention. In time, the countries being cited as examples of good practice by Adams may decide the SCC is a model to follow. That will be their call, as this is ours.

Is it disappointing that there are juryless courts? Possibly. But it's an academic argument. Right now, most Irish people are understanding of the reasons for the SCC's existence. If and when that changes, it can be phased out, but it's not an urgent issue, certainly not among working-class communities who bear the brunt of criminality.

Like Irish unification, an urge to do away quickly with the Special Criminal Court is a fetish that excites only a small number of sanctimonious bluenoses and those who adopt the language of rights for their own secret ends. Like Irish unification, it can wait.

Sunday Independent

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