Republican News · Thursday 14 August 2003

Bad law rules

Michael McKevitt's conviction in the Special Criminal Court last week was due more to the practice of bad law than any offence he allegedly committed.

The so-called Special Criminal Court, condemned by the Irish Council for Civil Liberties, Amnesty and just about every human rights organisation, is, with the exception of the juryless Diplock courts in the North, unique in the common law world.

Trial by jury is supposedly the cornerstone of our judicial system. In a totalitarian regime, jury courts are one of the first institutions to be abandoned. Apparently, this island is not under a totalitarian regime, so there really is no explanation for law being practised this way.

Those who argue that the Special Court works, because it takes away the threat of juror intimidation, have obviously never heard of video link trials or jury anonymity (we believe this is quite successful in other democratic countries).

Studies have shown that convictions are higher where there is no jury, so perhaps this is the logic behind judge-only courts.

Apart from the absence of a jury, the Offences Against the State Act permits the admission of evidence which would be inadmissible under the general rules of evidence.

In the McKevitt trial, most of the prosecution case rested on the opinion of a chief superintendent and David Rupert, a witness paid handsomely and afforded protection.

Before a judge and jury the case could only be described as weak. The opinion of the superintendent would be inadmissible and Rupert, being paid, would not be considered an independent witness.

McKevitt may have actually done himself more damage by refusing to partake in the end of the trial, as the Offences (Amendment) Act 1998, permits a court to draw inferences adverse to the accused, where the accused has failed to answer questions material to the investigation.

Disclosure of documents to the defence is also a problem - judges can decide what is of relevance to the defence. Surely it should be up to the defence to decide what is of relevance to its case? Many documents were denied to McKevitt's team that subsequently showed flawed gardaí reports and inconsistent witness evidence.

The Special Court, in making the judges act as judge and jury, uses a draconian law which alters the principles and foundation of our legal system - and in the long run undermines that system.

The United Nations Human Rights Commission has asked the Dublin government to review the necessity for the Special Court. It's about time the government stopped using its own twisted logic and started listening to the advice of the world's human rights organisations.