The Law Society has made a submission to the independent group that is reviewing the Offences Against the State Acts 1939 to 1998.
The review group is headed by former Court of Appeal judge Mr Justice Michael Peart (pictured).
In its submission, the Society notes that many of the recommendations made by a 2002 review, chaired by Mr Justice Hederman, were not implemented.
Since then, it says, a considerable body of legislation, which tended to bolster or add to the provisions of the acts, has been introduced, while human rights legislation in Ireland has evolved over the last 20 years.
One of the main recommendations in the submission is a proposal for a fast-track independent mechanism to review the Director of Public Prosecution’s power to make decisions to refer cases to the non-jury Special Criminal Court.
It notes that there has been a constant flow of prosecutions to the court since 2015, adding that this has not been due to an increase in subversive activity, but rather an increase in the referral to the court of non-subversive trials, or offences related to organised crime.
The Society argues that, if the constitutional right to be tried by jury is to be curtailed, any such limitation of rights must be “necessary and proportionate, with clear reasons set out in respect of why such rights continue to be curtailed”.
It says that the mechanism whereby scheduled offences under the acts are, by default, sent forward for trial to the Special Criminal Court should be reviewed, given that trials for those offences are generally heard by the Circuit Court.
The Society also wants independent reviews of the practice whereby access to information underpinning the ‘belief evidence’ of a chief superintendent is restricted.
The acts currently provide a legal basis for the admissibility of ‘belief evidence’ of a senior garda as to whether an accused is a member of an illegal organisation.