Simon Walker
Chief
Rule of Law and Democracy Section
Rule of Law, Equality and Non-Discrimination Branch
Office of the High Commissioner for Human Rights
Re: Call for inputs: Report to HRC on Terrorism and Human Rights
With reference to HRC Resolution 57/11, adopted 10 October 2024, the Irish Human Rights and Equality Commission (IHREC) wishes to provide information on the situation in Ireland to inform the forthcoming report on Terrorism and Human Rights, to be considered at the 63rd session of the Human Rights Council.
Context
Ireland’s approach to counter-terrorism is deeply informed by our historical experience with paramilitary groups and ‘The Troubles’ that took place from the late 1960s through to 1998. The principal legislative framework is found in the Offences Against the State Acts (OASA) 1939-1998, alongside related counter-terrorism legislation including the Criminal Justice (Terrorist Offences) Act of 2005.
An amendment to the OASA in 1972 introduced the non-jury Special Criminal Court in its current form, as an emergency response to the Troubles. Despite the marked reduction in paramilitary activity since the 1998 Belfast (Good Friday) Agreement, it has been in continuous operation ever since and is now used primarily to prosecute organised crime. Certain provisions connected to the Special Criminal Court require annual renewal by the Oireachtas [the Irish Parliament] in order to renew its continued functioning.
The OASA and Special Criminal Court have long been viewed as problematic by human rights
defenders, civil liberties campaigners, the Irish Human Rights and Equality Commission
(IHREC), and indeed the Human Rights Committee itself.1 Key concerns include:2
- The non-jury nature of the Special Criminal Court. The right to trial by jury is a
fundamental part of the right to a fair trial as guaranteed by Article 38.5 of the Irish
Constitution, which should only be limited in exceptional circumstances. - Human rights and equality concerns arising in the use of emergency powers including
gaps in transparency and in systems of democratic scrutiny. - The Government’s position that ordinary courts are inadequate to secure the effective
administration of justice and the preservation of public peace is not subject to
effective parliamentary oversight. The Government is not required to provide any
reasons for why it considers ordinary courts are inadequate, nor is it required to set out
under what conditions and environment the Government would consider that the
ordinary courts are adequate. - The rules of admission of evidence before the Special Criminal Court have
implications in respect of the right to a fair trial. - The Director of Public Prosecutions (DPP) may request that an individual charged with
a non-scheduled offence be tried in the Special Criminal Court if they consider the
ordinary courts inadequate to secure the effective administration of justice. This
means that for two individuals charged with the same offence, one may be tried in the
Special Criminal Court while the other is charged in the ordinary courts, which may
give rise to inequality before the law. - The use of ‘belief evidence’, which under certain circumstances allows the
uncorroborated opinion of a senior police officer to be submitted as evidence before the court. The use of belief evidence has implications for the presumption of innocence and affects the right to cross-examine a witness and the right to disclosure. - Treating silence of the accused as basis for adverse inference regarding their guilt.
The primary justification for maintaining the Special Criminal Court is the threat of jury tampering, however critics have argued that that other common-law jurisdictions effectively prosecute terrorism and organised crime with jury trials, through the use of targeted jury protection measures.3
Review of the Offences Against the State Acts
An Independent Review Group, led by Mr Justice Michael Peart, former Judge of the Court of Appeal, was established in February 2021 to examine all aspects of the Offences against the State Acts, taking into account existing threats posed by domestic/international terrorism and organised crime, the duty to deliver a fair and effective criminal justice system to ensure the protection of communities and the security of the State, and Ireland’s obligations in relation to constitutional and international law.
IHREC provided input into the review process in 2021, arguing that the OASA and the Special Criminal Courts are no longer necessary or justified in Ireland’s current context. IHREC recommended full repeal on the basis that these ‘exceptional’ (but now routine) measures undermine ordinary criminal justice standards, particularly the right to a fair trial, equality before the law, right to a jury trial, disclosure, cross-examination and privilege against self-incrimination. In the absence of full repeal, IHREC recommended the introduction of stronger safeguards, including stronger parliamentary oversight, more transparency and data, closer scrutiny of offences scheduled for prosecution in the Special Criminal Court and discretion of the Office of the Director of Public Prosecutions (DPP) to refer cases to the Special Criminal Court, and reform of problematic provisions.4
In June 2023, an Independent Review Group tasked with reviewing the OASA and the Special Criminal Courts published a majority and minority report.5
The majority opinion recommended that the Offences Against the State Acts be repealed and replaced, not simply retained or abolished without substitute. Its core view is that Ireland still needs an exceptional legal framework to deal with terrorism and serious organised crime, but that this framework should be rebuilt in a more modern, rights-conscious and transparent way. In particular, the majority opinion proposes a new standing non-jury court to replace the current Special Criminal Court model, with the current system of scheduled offences abolished, use of the non-jury court limited to genuinely exceptional cases, and stronger statutory safeguards, oversight and public accountability. More broadly, it supports selectively re-enacting and modernising those parts of the OASA considered still necessary, while consolidating the law into a clearer and more coherent legislative scheme.
The minority report agreed that the Offences Against the State Acts should be repealed but takes a much more rights-protective and sceptical view than the majority about what should replace them. Its core position is that Ireland has become too comfortable with exceptional criminal justice measures, and it strongly resists creating a permanent standing non-jury court with the DPP still deciding trial venue, arguing that jury trial is the constitutional “gold standard” and that departures from it must remain truly exceptional, tightly justified, and evidence led. It is also more critical of belief evidence, recommending that it be repealed and not re-enacted, and argues that existing proscription rules are outdated and lack sufficient safeguards. Overall, the minority’s message is to repeal the OASA, but do not simply rebuild the same architecture of exceptionality in modernised form.
Developments during the reporting period (July 2024-June 2026)
The emergency legislation was renewed in June 2023 and again in 2024 while the Government considered the recommendations of the Review. In May 2025 the Minister for Justice, Home Affairs and Migration, Jim O’Callaghan announced that he in principle accepts the recommendations of the majority report, meaning that the Government would now move towards repealing the OASA and replacing them with an updated legislative framework, including a standing non-jury court for “certain exceptional cases where the ordinary courts are inadequate to secure the effective administration of justice."6
The Criminal Justice (Terrorist Offense) (Amendment) Bill 2025 was published the following month, June 2025. While it doesn’t directly give effect to the recommendations of the Independent Review (majority opinion), it does form part of the wider counter-terrorism legislation reform agenda underway and proposes new terror-related offences to give fuller effect to EU Directive 2017/541 on countering terrorism.7
As legislation to replace the OASA is not yet ready, the provision allowing the functioning of the Special Criminal Court was renewed for another year in June 2025. To date there is no publicly visible OASA replacement, and the Minister has indicated that the new system may not be in place before the legislation is due for renewal in June 2026.8
IHREC remains concerned that the replacement legislation may not adequately address the key human rights and equality concerns raised in our 2021 submission, and that the suggested reforms risk entrenching procedures that undermine the principles of equal treatment before the law and the right to a fair trial.
We urge the Human Rights Committee to continue to emphasise to States that legislative measures designed to counter and prosecute terror and organised crime adequately balance individual rights to equal treatment before the law and the right to a fair trial, as guaranteed under the International Covenant on Civil and Political Rights and the European Convention on Human Rights, with national security interests. Furthermore, any restrictions or limitations on the rights of an individual must comply with the principles of legality, necessity, and proportionality.
Sincerely,
Dierdre Malone
Director
Irish Human Rights and Equality Commission
Footnotes
1 The UN Human Rights Committee called for the overhaul of the Special Criminal Court in 1993, 2000, 2008, 2013 and 2014. In 2000, it recommended that “steps should be taken to end the jurisdiction of the Special Criminal Court”.
2 IHREC (2021) Submission to the Independent Review Group on the Offences Against the State Acts
3 ICCL (June 2024) State of Emergency? 52 years of the Special Criminal Court
4 IHREC (2021) Submission to the Independent Review Group on the Offences Against the State Acts
5 This was the second independent review of the legislation. The recommendations of the first review, concluded in 2002, were not implemented.
6 Gov.ie (29 May 2025) Minister for Justice Jim O’Callaghan accepts proposals for reform of terrorist legislation
7 Gov.ie (10 June 2025) Minister Jim O’Callaghan receives Cabinet approval to strengthen Ireland’s counter-terrorism laws with the publication of the Criminal Justice (Terrorist Offences) (Amendment) Bill 2025
8 RTE News (25 June 2025) Offences Against the State Act renewed without vote