If the Deputy will allow me to continue my train of thought, I will deal with that. The 1939 Act set up the Special Criminal Court giving it the power of the ordinary criminal courts in relation to terrorist type crimes, the intention being that it would act in exactly the same manner as the ordinary criminal courts. As regards its jurisdiction— and I want to separate its personnel from its jurisdiction—it had the full criminal law jurisdiction of the State. On the question of the personnel in the court, there was power to have the court comprised either of judges from the ordinary courts or—speaking from recollection; I have not the 1939 Act before me—Army officers. The nature of the personnel comprising the court had no effect on its jurisdiction. The same jurisdiction would be exercised by the court irrespective of who composed it. Therefore, any jurisdiction that the Special Criminal Court had could be exercised by the persons comprising it, whether they be judges or Army officers. That is the position in law. It is important not to confuse jurisdiction with personnel. The Act setting up the court did not make any distinction in that regard; it did not say that when the court was composed of Army officers it shall only have so much jurisdiction or that when it is composed of judges it shall only have so much jurisdiction. The legislature of 1939 made no such distinction. The jurisdiction is exercisable by the court irrespective of whom it is composed of. Section 39 of the 1939 Act permits the court to be composed of judges or of officers of the Defence Forces. As I say, who composes the court at any particular time has nothing whatever to do with the jurisdiction of the court. That is something separate, and the powers of the court something separate. They have exactly the same powers irrespective of who composes the court at any particular time.
It was intended that the Special Criminal Court would have the ordinary jurisdiction of the ordinary criminal courts. Throughout the years it has acted as if it had such jurisdiction and the matter had never been called into question. Last year, however, one particular matter was called into question. On a charge of robbery, the court found a verdict of assault with intent to rob, which was a lesser offence than the actual offence charged. An appeal was taken by the defence against that on the grounds that the court was not entitled to bring in this alternative verdict because such entitlement only applied to courts sitting with a jury. The Court of Criminal Appeal upheld that contention. Therefore something which we had always assumed, that the full criminal jurisdiction applied to the Special Criminal Court, was not there in this regard and it had to be cured.
This Bill sets out to cure that. The prime motivation—I make no apology for this—for introducing this amending legislation was to enable the Special Criminal Court to bring in alternative findings. In our analysis of the position arising from the Rice case it became quite clear that the same situation existed in the other area where the presence of a jury was referred to in the ordinary corpus of the law, that is in respect of a finding of guilty but insane or a finding of unfit to plead. The law with regard to both of those matters is set out in the two Acts quoted in subsection (3), which refers to findings by a jury and to a jury being empanelled. The references are to a jury. The provisions are on all fours with the provisions relied on by the Special Criminal Court when it made its finding in the Rice case.
It was quite clear on a preliminary analysis of the position that, if there came a case before the Special Criminal Court, where it found itself constrained to make a finding of guilty but insane that finding would be set aside by virtue of the reasoning in the Rice case. There is no doubt about that and the person concerned would be acquitted. Likewise, if the court, as a preliminary matter, made a finding that the defendant was unfit to plead, that also, following the reasoning in the Rice case, would be set aside. There would be no acquittal there because there would be no verdict. What would happen is that the particular person unfit to plead would be released into the community. There would be no question of his detention until he became fit to plead.
It was quite clear on the analysis made, consequent on the Rice case, that not merely would the position with regard to alternative verdicts have to be covered but we would have to go further and cover the position with regard to findings of guilty but insane or findings of unfitness to plead, because both of those in the ordinary corpus of the law only arise following jury decisions. If the absence of a jury was a defect in respect of alternative verdicts so also would it be a defect in respect of issue of insanity. That is why the amending legislation was extended to cover more than just the net point of the Rice case. It was amended to cover this further point that would inevitably at some stage arise in the operation of the Special Court.
Deputy Collins raised a further point. Suppose, for example, following the passing of this legislation, the Special Court makes a finding of unfit to plead. The normal procedure is that a person is detained until found fit to plead. Deputy Collins was worried as to where, if in the meantime the Special Court became disestablished, that person would be brought when he became fit to plead? As I indicated in reply to the Second Stage debate, at column 549 of the Official Report of 4th May:
If the Special Court should be disestablished, such a person would then, if his condition improved so that he was fit to stand trial, be brought before the ordinary courts.
He would probably at that stage have to be brought before the District Court because the offence would probably be an indictable offence and the preliminary hearing would have to be gone through. We have to remember that the Special Court is part of our courts. It is special in the sense that there is no jury but it is a criminal court like the other criminal courts. The fact that it is disestablished does not mean that the criminal courts are gone and there is no venue to bring a person found unfit to plead back for trial. That person, obviously, would come back before the criminal courts of the land. If the particular court that found him unfit to plead and ordered him to be detained was not there he would be brought to the appropriate criminal court. It is really straining imagination, language and debate to suggest that in these provisions there was a hidden procedure for some sort of a Star Chamber business whereby the entire Opposition could be found unfit to plead and incarcerated indefinitely. It is making a debating point in such an exaggerated way that it is ludicrous.
