The Gazette 1972

Decision on Special Courts poses problems

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)

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

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