Imagine living in a country where the evidence of one senior police officer could be used to convict you of membership of an unlawful organisation before a criminal court without a jury. The rule of law – the nebulous, aspirational doctrine that everyone is equal before the law, perhaps the cornerstone of the modern, secular and progressive state – wouldn’t allow for it.
In Ireland, where the rule of law is invoked by our ruling parties as central to our state and supposed values, we already live in that country.
Gerry Hutch’s trial for the murder of David Byrne during the Regency Hotel attack continues this week before the Special Criminal Court (SCC), the only kind of court, we’re told, with the means to prosecute a man like Hutch. Standards in the trial have been lacking.
Last month the court ruled that gardaí could give evidence against Hutch anonymously and with the public excluded from the courtroom. No jury, no public, no identities and, as we discovered this week, no garda evidence records. Whether you think this is no less than Hutch deserves is immaterial – this is not how the justice system of a supposedly mature state should work.
Gardaí have told the court that they thought Hutch had been meeting with ex-Sinn Féin councillor Jonathan Dowdall – who has been convicted of facilitating the Regency murder – “to organise criminal activity” after the attack. So they fitted Dowdall’s car with tracking and listening devices and collected evidence of an alleged meeting between Hutch and northern republicans in February 2016.
Hutch’s defence counsel had a simple request: when had these devices been deployed on Dowdall’s car? The answer: there was no answer. The prosecution told the court that all records of the tracker had been destroyed, as well as the information gardaí had taken from it. "More disturbingly still," said Hutch’s counsel, "We were told (this happened) during the currency of this prosecution, not the trial, since Mr Hutch was brought before the court."
The senior garda who destroyed these records – Ciaran Hoey, who used to work with the National Surveillance Unit – said he didn’t think the records would be used in the trial. He didn’t consult the DPP before destroying them. So that’s fine, I suppose.
A mythical status
It’s important to remember why the current incarnation of the SCC was established 50 years ago. It wasn’t for gangs. It was for those accused of offences relating to the conflict in the north of Ireland, a conflict that ended almost 25 years ago. It was supposed to be temporary and wasn’t for the likes of Gerry Hutch.
Now we are told the SCC is the only way to prosecute organised crime gangs. We’re told that this is because of potential jury intimidation. We’re told that gardaí must give evidence anonymously because they may be in danger. This isn’t coherent.
The names of the three judges who sit on the SCC are in the public domain, as are the prosecuting lawyers. Where is the concern for their safety? Jury intimidation is rare in Ireland and even where the risk exists there are ways and means to protect jurors.
The SCC has a mythical status in certain circles. The need for it is spoken of ad nauseum by voters – and the parties who represent them – with a self-proclaimed respect for law and order. Ironically its most fervent supporters suggest the SCC is needed to combat a threat to democracy. The recent workings of the SCC pose an even greater threat.
Intolerable and not out of place in a fascist regime
But let's ignore what happened in the court this week. To accept the SCC and how it works, we’re expected to always accept the word of gardaí.
The same gardaí whose colleagues lied during the trial of TD Paul Murphy, with 180 of their statements contradicted by video evidence of the anti-water charges protest at Jobstown. The same gardaí whose colleagues sought to destroy Maurice McCabe. The same gardaí whose former colleague was recently convicted of possession of over €250,000 worth of drugs. The same gardaí whose colleague ran the Dublin marathon on the Luas last month.
For decades Amnesty International, the UN and other international civil rights organisations have called for the abolition of the SCC.
Most would say they’re supportive of the idea of human rights. To be a coherent supporter of the idea however, one has to accept that convicting someone of IRA membership in the SCC on the word of a garda chief superintendent is a human rights abuse. That's what section three of the Offences Against the State Act 1972 allows. It's an intolerable situation that wouldn’t be out of place in a fascist regime.
‘The standards to which any state should hold itself’
Sinn Féin used to have strong views on abolishing the SCC, but they changed tack, seemingly as part of its inexorable slide to the centre. Last year they voted in favour of an Ard Fhéis motion retaining it for exceptional cases. Why did they capitulate to pressure from Fine Gael?
The answer may be found in what the European Centre for Populism Studies calls penal-populism, where large political parties – many of which use populist as a pejorative for their opponents – compete with each other to be seen as the least tolerant of crime. The defence of human rights isn’t always politically advantageous.
So we’re left with a court that a UN special rapporteur described as “a work-around of the ordinary protection of the law”. It’ll be left to human rights NGOs, a few academics and parties like People Before Profit to continue speaking out against the SCC.
Gerry Hutch is entitled to the same rights before the courts as anyone. Selectively granting those rights is incompatible with a proper justice system. He should have faced a jury. The public should be allowed to see justice in action. No garda should be allowed to give questionable evidence without disclosing their identities.
Anything else falls short of the standards to which any state should hold itself.
