Unfortunately, on the island of Ireland this right has been eroded. From 1973 to 2007 in the six-counties certain so-called crimes were tried by a judge alone, no jury. These courts were called “Diplock Courts” and were used to try people accused of so-called “terrorist” offences. With the signing of the Good Friday Agreement (GFA) these courts have been abolished in 2007 under the Justice and Security Act of that year. No-Jury trials still operate at the discretion of the Director for Public Prosecutions and continue to be used as previously.
Down here in the 26 counties we had non-jury courts long before 1973, today we affectionately know this court as the “Special Criminal Court” which, similar to the former Diplock Courts in the north, is supposedly for those charged with “terrorist” offences. Such courts have been in existence in the 26-counties since 1939, the outbreak of WW II or as we called it, “The Emergency” to deter IRA activities. This court is no longer specific for such alleged offences as was the case with Thomas “Slab” Murphy back in 2015. Murphy was charged with tax evasion, a case which usually would have been heard by a judge and jury. No such luck for Murphy, he was hauled before the “Special Criminal Court” where no jury was within a mile of. This was, according to the apologists for this state of affairs, because Murphy was “believed” to be an IRA man. In fact, our apologists continue, not only an IRA man but “suspected” Chief of Staff of the organisation.
Forgive me for being a little naïve, but does the presumption of innocence until proved guilty still apply in the 26-counties? This presumption applies to any offence, political or otherwise, or does it? It appears not, because people had already decided Murphy was guilty of an offence which he was not even on trial for. He was tried for tax evasion, not IRA membership! Does this mean that any person suspected of being a member of the IRA, INLA, Saor Uladh (Free Ulster) or any other republican group irrespective of what they are charged with can be thrown before the “special Criminal Court” simply because somebody thinks they might be a member of such organisation(s)? Let us take, for example, a person charged with burglary a trial which should be heard by a Judge and Jury, but let us assume this person is thought “may” be a member of a paramilitary organisation. Does this then mean that person, based on this suspicion, can be denied the fundamental right to have their case heard by a Judge and Jury, resulting in the burglary charge being heard by a Judge alone? The Jury are supposed to decide guilt or innocence, the Judge the sentence should the verdict be guilty.
In 2016 at the Regency Hotel a man named David Byrne was shot dead, murdered by assailants yet unknown. Two men are now awaiting trial for the murder of Mr Byrne. Gerry “Monk” Hutch and a former Sinn Fein councillor, Jonathan Dowdall, are awaiting trial for this crime. Both men are to be tried at the “Special Criminal Court” and neither are members of a paramilitary organisation. Both have applied, and being rejected, to be tried by a jury, in any other country their right, but not it appears in the 26-counties. I am not going into the rights or wrongs of the men’s cases, that is for a court to decide, usually a jury court! The point I am making is how long before jury courts are abolished completely? There are those who would wish this to be the case, especially in England. But we are not in England are we. We are in a country which for centuries suffered English then British injustices and is now inflicting exactly the same injustices on the Irish people. The Irish establishment are doing their level best to emulate our former masters and making a good job of this emulation.
If we are going to get rid of trial by jury, as appears to be the slow case, and become a police state what then other draconian legislation should perhaps be introduced? If we are going to emulate some of those in our former rulers, England, why not try out some of their ancient acts of justice to accompany this move? What about Trial by Ordeal? This was a feudal method of sorting the innocent from the guilty and took many guises! One which comes to mind involves the use of a church, as God is the judge, jury and executioner, and we do have many churches who may be happy to carry out this ancient English ritual form of justice, which were abolished by King Henry III. The accused person - usually a man back in the day, but the updated variant the accused could be a man or woman - would be tried in a church where a red-hot iron bar awaits them. The bar about one foot in length has been heated over a fire blazing away in the middle of the church. Once this ingot reaches red-hot proportions, the accused is then invited hold the bar in their hand and walk the length of the church. If they refuse the invitation to pick up this red-hot object it is replaced by an order, either way they will grab the bar. Once they have walked the required distance, holding the unbearably hot object, they have their hand bandaged tightly by a medically qualified person. Perhaps the District Nurse or local GP, for a fee of course, could help? In the original Trial by Ordeal a priest would carry out the bandaging. If after three days the hand has cleared, leaving no evidence of the ordeal the accused are found not guilty. If, on the other hand, pardon the pun, the hand marked, deformed, grotesque due to the ordeal then the person is guilty as charged and sentenced accordingly.
Another ancient English example, if this is the road we are travelling, is Trail by Drowning. This form of procuring justice involves the accused of having their hands and feet bound with tight ropes, then being throw into a river to see if they float or sink. Perhaps O’Connell Bridge in Dublin could be used for this purpose. If they float, virtually impossible, they are guilty and once again, as in the case of ordeal, sentenced accordingly. If, again on the other hand, they sink and drown they are innocent but will go to heaven with a clean soul!! Bit of a catch 22 in both cases really! These are ridiculous examples of laws in bygone days being enacted, but in their day were considered reasonable and fair, just as trial by jury is today, in most countries bar this one it would appear.
Of course, these are extreme examples of medieval justice and these were considered “firm but fair” in their day in England and some other countries. They were English laws and I am using them as extreme examples because the idea of abolishing jury courts is held by many in the English establishment. Then, as now, an unquestioning public just went along with these ridiculous procedures believing very much, again then as now, in having laws made for them by their betters, or the ruling class governmental representatives coupled with an undying belief, until the Black Death 1348, in God and his powers. Today we are supposedly more developed and as a result do tend to question what is done in our name, but do we? Obviously not as much as we should because when people are tried in the Special Criminal Court who should not be in that court at all, we say such rubbish as: “Oh yes, but he’s in the IRA” a statement which has no bearing on tax evasion, the case in question at all! If a person, we’ll call him Liam Brennan, was arrested for Tax Evasion would the said Liam Brennan be tried by his peers or in the Special Criminal Court? Would the venue of Liam’s trial be decided on whether somebody considered he might be a member of a paramilitary organisation? What about motoring offences, could they not be tried by the Special Criminal Court, in case the driver might be in the IRA?
What people should be asking, which they are not, is where does this attack on our judicial system stop? The “Special Criminal Court” was designed for a specific purpose, and a specific purpose only. That purpose did not include tax evasion, as it apparently does now, or crimes of murder outside paramilitary involvement, bad as that crime is. Whether Thomas “Slab” Murphy was/is member of the IRA for the purpose of his trial was an irrelevance. He was not on trial for membership of the IRA so that was nothing to do with it. The case of Hutch and Dowdall is again the misuse of the “Special Criminal Court”. Dowdall may have been once a Sinn Fein councillor but that is not an offence, at least not yet. If it were, the main opposition party in Dail Eireann would be up before the court!
In August 1971 the British in the six-counties suspended Habeas Corpus by introducing internment without trial. The 26-county government were less than pleased and rightly so, not that the British took any notice. When the British introduced the Diplock Courts in 1973, trial without jury, the same 26-county administration kept relatively quiet. They could not really afford to say a great deal in opposition to this move by the British, because they themselves had been operating similar courts for generations, since 1939 in fact when the de Valera Government introduced the Offences Against the State Act against, the by then illegalised IRA! Perhaps the next time the 26-county government criticise some country in South America, or China over their human rights abuses maybe they should have a look a little closer to home!
The use of the Special Criminal Court has led to two criminal justice systems in the 26-counties and has compromised the fundamental of equality before the law, that is if you believe this equality ever existed. The Irish Human Rights and Equality Commission (IHREC) said:
Of course, these are extreme examples of medieval justice and these were considered “firm but fair” in their day in England and some other countries. They were English laws and I am using them as extreme examples because the idea of abolishing jury courts is held by many in the English establishment. Then, as now, an unquestioning public just went along with these ridiculous procedures believing very much, again then as now, in having laws made for them by their betters, or the ruling class governmental representatives coupled with an undying belief, until the Black Death 1348, in God and his powers. Today we are supposedly more developed and as a result do tend to question what is done in our name, but do we? Obviously not as much as we should because when people are tried in the Special Criminal Court who should not be in that court at all, we say such rubbish as: “Oh yes, but he’s in the IRA” a statement which has no bearing on tax evasion, the case in question at all! If a person, we’ll call him Liam Brennan, was arrested for Tax Evasion would the said Liam Brennan be tried by his peers or in the Special Criminal Court? Would the venue of Liam’s trial be decided on whether somebody considered he might be a member of a paramilitary organisation? What about motoring offences, could they not be tried by the Special Criminal Court, in case the driver might be in the IRA?
What people should be asking, which they are not, is where does this attack on our judicial system stop? The “Special Criminal Court” was designed for a specific purpose, and a specific purpose only. That purpose did not include tax evasion, as it apparently does now, or crimes of murder outside paramilitary involvement, bad as that crime is. Whether Thomas “Slab” Murphy was/is member of the IRA for the purpose of his trial was an irrelevance. He was not on trial for membership of the IRA so that was nothing to do with it. The case of Hutch and Dowdall is again the misuse of the “Special Criminal Court”. Dowdall may have been once a Sinn Fein councillor but that is not an offence, at least not yet. If it were, the main opposition party in Dail Eireann would be up before the court!
In August 1971 the British in the six-counties suspended Habeas Corpus by introducing internment without trial. The 26-county government were less than pleased and rightly so, not that the British took any notice. When the British introduced the Diplock Courts in 1973, trial without jury, the same 26-county administration kept relatively quiet. They could not really afford to say a great deal in opposition to this move by the British, because they themselves had been operating similar courts for generations, since 1939 in fact when the de Valera Government introduced the Offences Against the State Act against, the by then illegalised IRA! Perhaps the next time the 26-county government criticise some country in South America, or China over their human rights abuses maybe they should have a look a little closer to home!
The use of the Special Criminal Court has led to two criminal justice systems in the 26-counties and has compromised the fundamental of equality before the law, that is if you believe this equality ever existed. The Irish Human Rights and Equality Commission (IHREC) said:
the abolition of the court and repeal of the Offences Against the State Acts is the only viable solution to vindicate the rights of an accused to a fair trial.
When de Valera introduced this form of justice back in 1939 did he ever consider not many years previously his own comrades were tried by court-martial in Dublin 1916? Court-martial trials were/are supposedly for military cases against military personnel. Given the fact the British victors did not recognise Irish revolutionary forces as military, why then were they given military trials? Perhaps they did recognise them as military but did not want this wildly known as to do so may have given rebels in other occupied lands ideas! The Special Criminal Courts when de Valera introduced them were at least only used for IRA cases I understand. Today these courts appear to be available to try and convict anybody from IRA personnel to tax evader. What about apple scrumping? Could those accused of stealing apples not be hauled before the Special Criminal Court?
This article is not in any way belittling or underestimating the seriousness of organised crime in Ireland today. It points out the possible pitfalls, not including my hypothetical examples, of where we may end up if these moves in our judicial system go unchecked or monitored. Could be we, subconsciously be sleepwalking towards a police state? A cautionary warning that’s all.
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Caoimhin O’Muraile is Independent Socialist Republican and Marxist |
