Tuesday 16 January 2018

The Special Criminal Court has focused on dissidents, not gangs - so far

Justice Minister Frances Fitzgerald
Justice Minister Frances Fitzgerald

Diarmuid MacDermott

Of the 42 people currently facing charges before the Special Criminal Court, none are charged in connection with offences related to the activities of crime gangs.

All have been brought before the court on alleged offences linked to the activities of various dissident republican terrorist factions.

Following recent events there has been much ill-informed comment about what the Special Criminal Court is and how it functions. As a journalist who has covered this court since 1980, I believe there are certain observations that should be borne in mind in any discussion of it.

The court in its current incarnation was set up by then Justice Minister Des O'Malley in May 1972 to deal with the growing threat of the Provisional IRA.

In the Special Criminal Court, three judges sit without a jury.

The rules of evidence are the same as for the Central Criminal Court.

The vast majority of cases dealt with by the court relate to offences scheduled under the Offences Against the State Act of 1939.

This includes membership of an unlawful organisation and the possession of firearms and explosives, among other offences.

The Director of Public Prosecutions can forward any case to the non-jury court provided she certifies that the ordinary courts are "inadequate to secure the administration of justice".

In practice, there are very few prosecutions in the court for non-scheduled offences.

The vast majority of prosecutions that have taken place in the court since 1972 have related to the activities of the Provisional IRA, the Irish National Liberation Army and, since 1998, the various dissident republican factions: the Real IRA, the Continuity IRA and Óglaigh na hÉireann.

However, there have been exceptions. In the 1980s, Dublin criminals Martin 'The Viper' Foley and Stephen Rossi Walsh were put on trial at the court. Following the murder of journalist Veronica Guerin in June 1996, several members of the drugs gang led by John Gilligan, including Gilligan himself, were tried in the Special Criminal Court.

In recent years, the court's business has been almost entirely taken up with the activities of dissident republican terrorists. The only exceptions to this were members of the Dundon gang who were tried by the Special Criminal Court for the murder of Limerick businessman Roy Collins and other criminal activities in the city.

None of the cases of the 42 people currently facing criminal charges before the court relate to so-called organised crime or 'gangland' crime.

This is in part because the gardaí separate crime into two distinct groups - 'crime ordinary' and 'crime special'.

'Crime ordinary' includes the activities of the various drugs gangs and organised crime, and comes under the auspices of the National Bureau of Criminal Investigation (NBCI), the Criminal Assets Bureau (CAB) and the Organised Crime Unit.

'Crime special' includes the activities of dissident republicans and is investigated by the Special Detective Unit (SDU), which is commonly referred to as the Special Branch.

If there is any link to subversive activity, the SDU will investigate, but in the normal course of events the SDU is not engaged in the investigation of organised criminal gangs.

There is currently a delay of almost two years in getting a trial date in the Special Criminal Court, and that has been cited by Justice Minister Frances Fitzgerald as one of the main reasons for setting up a second court, something that was never considered at the height of the IRA's campaign in the 1970s and 1980s. The minister has said the new court will start work on April 4, the beginning of the new law term after the Easter break.

The Criminal Justice Act of 2009, which was introduced by then Justice Minister Dermot Ahern, set up new offences, including membership of a criminal gang and directing the activities of a criminal gang.

There have been no prosecutions in the Special Criminal Court under that piece of legislation and none of the 42 people currently facing charges are for offences covered by that Act.

Following the recent gangland murders in Dublin, much of the debate has centred on the use of the Special Criminal Court. However, it remains to be seen whether the gardaí will use legislation on the statute book to bring criminal figures in increasing numbers before this non-jury court.

Diarmaid MacDermott is the co-founder and managing director of Ireland International News Agency

Irish Independent

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