In a resolutely formalistic judgment, the Supreme Court yesterday rejected a constitutional challenge to the hearing of “ordinary” cases in the Special Criminal Court. Thomas Murphy had been charged with failing to make his tax returns — an indictable offence that is tried usually in the “ordinary courts” — but the DPP certified that such courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy”.
Before trial, Murphy issued a plenary summons seeking declaratory relief, claiming, inter alia, that the DPP’s power of certification fails to guarantee his right to equality and his right to a fair trial in due course of law before a jury of his peers, and it does not permit the plaintiff argument to be heard before the issue of the certificate, or dispute it afterwards. Moreover, it was claimed that that the exercise of the DPP’s powers could be predicated on false or inaccurate reasons, but there is no means of ensuring disclosure of such reasons, and that review is possible only where mala fides is demonstrated.
The Supreme Court dismissed Murphy’s claims, allowing trial to proceed. The Court laid great emphasis on the explicit provision for non-jury trials in Bunreacht na hEireann, and the necessity for such emergency powers due to the violent political context in Ireland . Though the Court stressed that “in those circumstances provided for under the Constitution, trial by jury is not just a fundamental right of the citizen, it is a vital constitutional obligation on the State”, no concern was raised about the rather more expansive use that is possible and indeed has occurred.
In recounting the numerous challenges to the SCC’s enacting legislation and specifically as to whether the DPP must give reasons for directing that an “ordinary” offense be tried without a jury, the Court noted particularly that review of the DPP’s decision indeed is possible in exceptional circumstances. The Court acknowledged the tension between the basis for the DPP’s decision (described as “connections of the individual with organisations which are prepared to interfere with the administration of justice”) and the right to a jury trial, and concluded that fair procedures require the DPP to give reasons for her decision if requested, or to justify any refusal . This appears to be the most significant aspect of the judgment. However, the Court’s acknowledgement that “such an obligation should be required where that duty to give reasons can be complied with without damage to the other public interests involved” leaves the door open for the rejection of such requests for reasons, based, I would argue, on the nebulous notions of national security and securing the administration of justice.
The Court noted that argument in this case became focused principally on the question of reasons and fair procedures, but nonetheless purported to address “even briefly” some other arguments which were made, such as the breach to the right to equality under Art 40 of the Irish Constitution and Art 14 of the ECHR . This right was dealt with in quite a succinct fashion. Though “Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances” (O’Brien v Keogh  IR 144) the Irish State may not discriminate between citizens in an unjust, arbitrary, capricious, or unreasonable manner (Dillane v Ireland  ILRM 167). Murphy had argued that he was treated differently to other persons charged with the same offence, and that this was unjustifiable discrimination. However, the Supreme Court emphasised that not only was he in fact different to such persons, he was legally distinct, given that the DPP’s conclusion regarding the inadequacy of the ordinary courts in relation to his trial . Given that Art 38 explicitly contemplates a distinction being made between those who are tried by jury and those without, Art 40.2 cannot be said to be breached.
This is akin to the previous approach of the Irish courts in relation to the equality challenge to the SCC. For example, in Kavanagh v Ireland  1 IR 348, a case concerning the non-scheduled offence of false imprisonment, the Supreme Court held that as the determination of the adequacy of the ordinary courts was political in nature, such a decision should not be regulated in the judicial sphere and so did not engage with the substantive equality argument. Kavanagh’s later petition to the United Nations Human Rights Committee was successful,but the Supreme Court held that the International Covenant on Civil and Political Rights was not part of domestic law; so the substance of the decision could be bypassed.
I suggest that any concerns about differential in treatment and equality would be remedied by the introduction of a means of review of the DPP’s decision, and by moving away from the blanket abolition of the jury in relation to select classes of offences. This would ensure that the measure is neither unjust, arbitrary, nor unreasonable.
Empirically it is very difficult to ascertain the degree to which juries are threatened and intimidated. It would be naïve to say that this doesn’t occur, but the key question is what is to be done. Abolition of the jury in certain categories of cases, or at the behest of the prosecution, seems to use a sledgehammer to crack a nut, for want of a better phrase. One feasible alternative would be to limit the existing right to inspect the panel from which jurors are drawn. This ability may enable intimidation; the names of jurors chosen could be matched with the initial panel list to find their addresses. Another approach would be to hold the trial without the jury present in court but rather viewing the proceedings by closed-circuit television, or to anonymise the jury such as has occurred in the United States in the trial of John Gotti and other suspected organised criminals. Of course, these efforts to retain a lay dimension in criminal trials hold the risk of prejudice in terms of what the special measure expresses to the jury. Moreover, they may not be feasible or affordable options.
So, if we do in fact conclude that jury trial is too dangerous or problematic in some instances, perhaps the preferable model is one akin to that adopted in England and Wales, centring on a judicial determination of risk where there is strong evidence that the normal trial process could not operate properly. Unlike Ireland, there are no categories of suspected cases that fall automatically to be heard without a jury (this occurs for offenses against the state and certain “organised crimes” in Ireland); instead the risk of jury tampering must be established to the satisfaction of the court. Thus, the focus is on the established risk of intimidation in a particular case, rather than a generic presumption that terrorism or organised crime cases, say, are likely to involve tampering. Moreover, the decision is taken by the judiciary, not the prosecution. Also, in England and Wales it must be established that despite any reasonable preventative steps, including police protection, tampering is so likely to occur that the interests of justice necessitate a juryless trial.
As the Supreme Court noted yesterday, “trial by jury is a constitutional requirement in those cases to which it applies” . Such rhetoric about the robust protection of trial by peers becomes meaningless if more and more cases may be captured through the existing constitutional and legislative framework on non-jury trials. The current system of non-jury trials is in serious need of reform; as we see from Murphy v Ireland, such change won’t/can’t come from the Courts.