Beyond The Special Criminal Court: From Exceptional Powers to Ordinary Practice in Irish Criminal Justice

In June 2023, the Irish Government received two long-awaited reports on one of the most contentious legal regimes in modern Irish history, the Offences Against the State Acts (1939-1998). Together with the Special Criminal Court (SCC), this legal framework has formed the backbone of Ireland’s counter-terrorism machinery for over eight decades. Now, the Government has confirmed its intention to repeal the Acts entirely. This opportunity represents more than a legislative update. It raises fundamental questions about how a constitutional democracy should confront threats to its security and whether “temporary” exceptional powers can ever truly be relinquished once they take root.

Enacted against a backdrop of global and domestic turmoil, namely the onset of the Second World War, increased IRA activity and the birth of the Irish Constitution, the Offences Against the State Act 1939 (OASA) empowered the State to suppress “unlawful organisations” and allow internment without trial. In addition, the Act permitted the creation of the Special Criminal Court (SCC), a war-time tribunal of three judges sitting without the presence of a jury.

Part V of the Act authorised the tribunal to try “scheduled” offences or those where “the ordinary courts [were] inadequate to secure the effective administration of the justice,” namely political violence and terrorism charges. Gerald Boland, the then Minister for Justice, described it as a necessary “terror court… a court set up to meet terror in a drastic and summary manner.” 

Enacted as an exceptional measure to combat unprecedented violent crime, the SCC was in operation throughout the 1940s prior to being stood down following the culmination of the Second World War. It was briefly reactivated in 1957 until 1962 in response to the IRA Border Campaign and then permanently reconstituted in 1972 in response to escalating violence during the Troubles. Remarkably, however, the Court has operated for far longer in peacetime than during periods of conflict. As of 2025, it has been in continuation for over five decades, long after the Good Friday Agreement and effective end of the Troubles.

The key reason for the Court’s continued operation has been the enactment of the Criminal Justice (Amendment) Act 2009, positioning the SCC as the primary judicial body for trying gangland and organised crime offences. This expansion of jurisdiction illustrates a phenomenon known as “functional permanence”, whereby emergency institutions persist and adapt long after the crises that justified their creation, ultimately becoming enduring fixtures in the justice system. (Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis, 2020)

The 2023 Independent Review Group, chaired by former Court of Appeal judge Michael Peart, was tasked with examining the continued necessity of the Acts and the SCC. Its membership included academics, senior counsel barristers and former government officials. While in agreement that the OASAs should be repealed, the group split sharply on what should replace it.

The majority report called for the creation of a new standing non-jury court to replace the SCC. The court would not depend on government proclamation and renewal but would exist permanently in statute. Its jurisdiction would extend to any offence where the Director of Public Prosecutions (DPP) determined that a jury trial was unsuitable due to credible risks of tampering such as witness bribery and intimidation.

Justification for this new model was grounded on observations that dissident paramilitary activity, international terrorism, and increased prevalence of gangland violence present real threats to both national security and the safety of jurors tasked with adjudication. In order to mitigate potential constitutional and human rights violations, the group suggested a number of safeguards for the court’s implementation, including the abolition of scheduled offences, personal authorisation by the DPP and Garda Commission for cases brought to the court, and independent judicial review of decisions to proceed to trial without a jury.

The minority report, authored by Professors Donncha O’Connell and Alan Greene, took a different view on the SCC’s future. While concurring that the OASAs must be repealed, they rejected the proposition of a permanent non-jury court, arguing its establishment would be fundamentally inconsistent with the Constitution and international human-rights law (O’Connell & Greene, Minority Report, 2023). They warned that by transforming a temporary emergency tribunal into a permanent judicial institution, the legislature would “normalise exceptionality” and permanently declare the ordinary courts as an inadequate institution for the administration of justice.

Under Article 38.3.1° 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.” While this provision clearly envisages the possibility of non-jury trials, it does so within a framework of contingency. Such courts are to exist only when necessary and only where ordinary judicial measures cannot function effectively. This distinction is critical for the minority. While the Constitution may allow for special courts, it does not mandate them indefinitely. Legislating for a standing non-jury court, in their opinion, is to stretch the text of Article 38.3 unrecognisably beyond its intention, transforming a last-resort measure into a permanent system of justice.

A central rationale for maintaining non-jury trials has been the alleged risk of jury intimidation. Witness tampering presents a real threat to the integrity of the criminal justice system and the State has long contended that jurors are uniquely vulnerable to pressure, surveillance or coercion by organised criminal groups. The argument isthat in cases involving sophisticated paramilitary organisations for criminal networks, the ordinary system of jury management may be unfit to insulate lay-witnesses from overt or subtle interference. 

However, the Review Group identified a striking evidential gap in the State’s justification. Although members of the judiciary and the Office of the DPP referred to isolated instances of witness or juror intimidation, there is a lack of empirical data on jury interference to quantify its prevalence or severity in Irish criminal trials. The report also did not provide an assessment of the effectiveness of existing jury-trial safeguards, such as anonymity orders, sequestration or remote juries. This absence of research underscores that the justification for permanent non-jury courts rests largely on an assertion of risk rather than on demonstrable necessity.

Academic commentary has long cautioned that reliance on exceptional measures can facilitate the gradual entrenchment of such powers. Greene’s mention of the “creeping normalisation” of emergency measures describes the tendency of institutions or mechanisms created to confront extraordinary threats to become embedded within ordinary legal procedures. (Greene, 2020) The SCC’s expansion into organised crime following the 2009 Act demonstrates this trajectory. Greene further cautions that the consistently higher conviction rates observed in non-jury trials risks subtly recalibrating the criminal standard of proof in a manner that disproportionately favours the prosecution.

The Irish Council for Civil Liberties has also expressed particular concern regarding the opacity surrounding decisions to certify cases for trial before the SCC, noting the frequent absence of clear reasoning as to why the ordinary courts are inadequate in any given instance as well as a lack of written judgments from the Court (ICCL, 2025). In practice, the Court is allowed to accept the opinion of a Garda Chief-Superintendent as evidence that a suspect is a member of an illegal organisation in order to justify certification. This testimony is also regularly based on confidential intelligence, further limiting transparency and constraining the ability of an accused person to challenge the decision. The proposal to establish a standing non-jury court risks deepening these rule of law concerns unless accompanied by a substantial shift towards greater transparency and proportionality in the decision-making process.

The Government’s decision to accept the majority recommendation therefore marks a critical constitutional turning point. It signals a departure from the emergency-based architecture that has governed non-jury trials since 1939 and replaces it with a model that normalises their availability within the ordinary legal order. Whether this represents a meaningful reform or simply a rebranding hinges on the strength of procedural safeguards. Without rigorous evidential thresholds, transparent certification procedure, and frequent opportunities for review, the proposed framework risks replicating the defects that have generated controversy around the SCC.

The moment also situates Ireland within broader constitutional debates about emergency powers and the limits of the criminal justice system. Scholars such as Gross and Ní Aoláin distinguish between two competing models: the “accommodationist” approach, which accepts that exceptional powers may be necessary but only where they are tightly constrained by legal safeguards; and the “normalisation” approach, which refers to a gradual process where exceptional powers become a routine (Gross & Ní Aoláin, Law in Times of Crisis, 2006). The majority’s proposal sits uneasily between these models. By creating a permanent non-jury tribunal yet framing its use as exceptional through an oversight mechanism, it attempts to normalise the institution while rendering the practice exceptional. In contrast, the minority adopts a more orthodox constitutional stance. They argue that trial by jury should remain the default and “gold standard” of Irish criminal justice, with departures only permitted in demonstrably exceptional and necessary circumstances. Whether a hybrid approach between the models is sustainable ultimately remains a question for after proposed legislation is drafted.

As the Oireachtas now moves to design the replacement regime, repeal of the OASAs presents a rare opportunity to restore constitutional normalcy after decades of exceptionalism, but only if the State resists an impulse to repackage emergency institutions into permanent statutory mechanisms. The central challenge for legislators will be to craft a system that addresses genuine security threats posed by paramilitary, terrorist and organised criminal groups while ensuring that the extraordinary does not become the everyday. How this balance is struck will determine whether Ireland’s long experiment with exceptional criminal justice is fully dismantled or simply modernised under a different name.