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Decision on Special Courts poses
problems
The decision of the Government to set up Special
Criminal Courts under the Offences Against the State
Act, 1939, raises a number of important questions. The
first of these relates to the composition of the Courts.
Under the Act, such a Court is to consist of an
uneven number of members, not fewer than three. Each
member shall be appointed and be removable at will
by the Government. The people who may be appointed
are Judges of any of the Courts other than the Supreme
Court; a barrister or solicitor of not fewer than seven
years' standing, or an officer of the Defence Forces
not below the rank of Commandant.
On the two previous occasions when such Courts
were established, only members of the Defence Forces
were appointed. On this occasion, the Government has
announced that it proposes to appoint existing Judges
from the Courts and does not propose to appoint Army
officers. While this is a welcome decision in that it
shows a recognition on the part of the Government that
persons of legal experience and training should man
the Courts, it is certain to create a problem of a different
kind. All the Courts are at present very severely taxed
n their efforts to cope with the volume of work with
which they have to deal.
With the setting up of the Special Criminal Courts,
the ordinary Courts are likely to find themselves in
greater difficulty than ever before in their efforts to cope
with the administration of justice. It remains to be
seen whether the Government will be willing to meet
this situation by the appointment of additional Judges
on a temporary or permanent basis, but to date no such
intention has been manifested.
Some doubt has also been expressed as to the exact
offences which can be tried before the Special Criminal
Courts. When Part 5 of the 1939 Act is in force, the
Government may, by order, draw up a schedule of
offences suitable for trial before these Courts. Apart
from this schedule of offences, however, the Attorney-
General can intervene in relation to the trial of any
person on any charge whatever and ask to have it dealt
with by the Special Criminal Court instead of by the
ordinary Courts. Thus, the Act gives unlimited scope as
to the criminal offences which may be tried before the
Special Court.
Powers for Garda
Another important feature of the Government's deci-
sion is one not relating to the Special Criminal Courts
themselves, but to the additional powers given to the
police as long as Part 5 of the Act remains in operation.
Not much attention has been focussed on this aspect
of the Government's decision.
As long as the Government proclamation remains in
force any person detained by the Garda Siochana on
suspicion of having committed any offence contrary to
the Offences Against the State Act, may be asked to
give an account of his movements and actions during
any specified period, and all information in his posses-
sion relating to the commission, or intended commis-
sion, by another person of any offence under the Act,
or any scheduled offence. Failure to give such informa-
tion, or the giving of false or misleading information,
renders the person concerned guilty of an offence under
Section 52 of the 1939 Act, for which he may be sen-
tenced to a term not exceeding six months' imprison-
ment.
Unlike the Prisons Act, which has just come into
force, there is no specific time limit to the operation of
Part 5 of the 1939 Act. It remains in effect until the
Government, or Dail Eireann, decides that it should
cease to have effect. Apart from the other powers given
to the Special Criminal Court, they have jurisdiction
when sentencing any person to order his detention in
military custody. Consequently, this power could con-
tinue in operation beyond the two-year period during
which the Prisons Act is to remain in force.
Previous criticism
One final word about the composition of the Special
Criminal Court: a good deal of criticism was directed
against the Government on two former occasions when
these Courts were used because only Army officers were
appointed. It was suggested that the Government ex-
perienced difficulty in finding Judges or lawyers will-
ing to serve possibly because of the element of danger
involved. A question must arise whether the same diffi-
culty might not again confront the Government.
The other point relates to the Government's declara-
tion of intention to appoint Judges and not Army
officers on this occasion. This is in no way legally
binding on the Government. Once Part 5 of the Act
has been brought into operation the Government is
free to appoint whomsoever it pleases within the per-
mitted categories by the Act and could fall back at
any time on a military court should it think fit to do so.
No ft
It has since been announced that the Special Criminal
Court is to consist of Mr. Justice Griffin of the High
Court, Judge Conroy of the Circuit Court, and District
Justice O'Flynn, President of the District Court. A
majority judgment is the judgment of the Court and
no minority judgment may be disclosed. The scheduled
offences include those under the Malicious Damage
Act, 1961, the Explosive Substances Act, 1883, the
Firearms Acts, 1925 to 1971, as well as the Offences
Against the State Act, 1939.
Under Article 38, Section 3, of the Constitution,
"Special Courts 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.'
Irish Independent
(27th May 1971)
176