THE IRA has never tried to kill a southern judge although I’m sure it felt like it at times. This State has always taken a robust attitude to subversives and the IRA tried to stay clear of open conflict with the authorities.
The State has resorted to pretty severe tactics over the years from internment to hanging to turning a blind eye to the ‘heavy gang’ in the 1970’s.
It must be said though that the State has not crossed the line into gross violations of civil liberties to preserve itself. In general terms.
It was a balancing act. A fine line. If a judge had been murdered or if a similar political assassination had been carried out, this State would have undoubtedly involved itself in severe repression. Internment was inevitable as was the suppression of the broader Republican movement.
The State has been conscious of the risk this would have involved. A significant minority in the South might well have resorted to violence against the State itself. The South might well have had to seal the border to withstand republican attacks.
Many of the advocates of a stronger line against the IRA seem to ignore these risks to the State.
A major leftover from the troubles here is the Special Criminal Court (SCC). This court operates in very serious cases of subversion or organised crime where there might be a risk of interference with juries. Trials at the SCC are decided by three judges rather than 12 jurors.
As the troubles draw to a close organised crime cases are forming a greater proportion of the trials at the Special Criminal Court.
I know precious little about the justice system. But I think that a trial in front of three judges would be completely different than a jury trial.
Barristers making their cases to three experts in law and veterans of many trials are bound to adopt vastly different strategies than if they are trying to persuade 12 people who have never been in a court before.
I can’t decide whether this is better or worse for the defendant. I think if I was a Traveller I would rather face the judges than 12 settled people.
But the continued use of the Special Criminal Court after many emergency laws have been abandoned is worrying. Juries bring the street into courts. Their presence breaks a system which could seem very closed to the people who have to use it. It introduces an element of uncertainty that is required to keep lawyers and judges on their toes.
If, as is widely believed, a jury trial is indispensable to the working of our system of justice, then why is the Special Criminal Court being continued? After all, England has as many hoods as we have and they seem to be able to put away the odd godfather with resorting to non-jury courts.
It is all the more odd when we seem to have officially abandoned any hope of bringing organised criminals to court anyway. What’s the Criminal Assets Bureau all about?
The CAB doesn’t try to prove that some wiseguy has landed a shipment of heroin or robbed a cash centre. They just send him a tax bill. Who needs a court?
The CAB, no matter how successful it is, marks an abandonment of the justice system. I acknowledge that organised crime and subversion require unique, and tough, measures. What I would like to see is that there should still be a effort to prosecute major criminals for their crimes.
The problem rests in getting evidence against such figures. We should consider introducing a system of investigative magistrates here to allow for the pursuit of serious criminals. Such a magistrate would be able to authorise wire taps and special surveillance once a prima-facie case against a person had been made. The magistrate would supervise the Garda investigation to ensure the basic rights of the individual and the direction of a successful prosecution.
Then when the evidence is available the trial should be in front of a jury.
It is really the only way to ensure that convicted persons have been the subject of a fair trial. It means the end of the Special Criminal Court and not before time.