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Capone-style conviction is significant and symbolic

By Dearbhail McDonald

Published 21/12/2015

Gerry Adams is right: it's unprecedented for an income tax prosecution to be tried in the Republic's non-jury Special Criminal Court (SCC).

But Thomas 'Slab' Murphy is no ordinary citizen.

It's a travesty that there is one, but the SCC is used when the ordinary courts are inadequate to secure the effective administration of justice.

However, the Director of Public Prosecutions can also issue a certificate to try offences if they are of the opinion that the ordinary courts aren't able to try the offence.

The DPP does not give reasons for issuing such a certificate, although may have to do so now as a result of a legal challenge by Slab. But we do have some insight into why he was refused a jury trial.

Four years ago Dublin High Court judge Mr Justice Daniel Herbert refused a challenge to the constitutionality of the law that allows the DPP to issue non-jury trial certificates, after Murphy complained he did not know why the DPP issued a certificate in his case.

Judge Herbert said it must be the case that a belief by the DPP that he was a member of, or had connections with, a proscribed organisation or was involved in organised crime would rationally be the first reason to suggest itself to the recipient of such a certificate.

The matter was duly appealed to the Irish Supreme Court. Mr Justice Donal O'Donnell said that a statement of reasons to the effect the DPP believed the accused to be a member of, or associated with, an organisation prepared to interfere with the administration of justice would be enough unless that accused challenged the decision with sufficient information to undermine the DPP's decision. But Slab Murphy advanced not one fact to challenge the DPP's decision.

So without knowing why, we know full well why Slab Murphy was denied a jury trial - and yet he still enjoyed a trial in accordance with law.

Instead of feting criminals, Gerry Adams should ask himself and his party why Slab got no jury - and why national security still necessitates the retention of a non-jury court.

But it's the little things that are the major game-changers. Little did Murphy know, for example, that when Limerick gangster Liam Keane swaggered out of court almost 10 years ago after his murder trial collapsed that it would contribute to his own criminal downfall.

Here's why: following the collapse of Keane's trial, former Irish justice minister Michael McDowell introduced law to deal with certain witnesses.

Section 16 of the Criminal Justice Act (2006) permits witness statements taken by gardai to be used as evidence in a trial where a witness refuses to give evidence, denies making the statement or gives evidence at trial that is inconsistent with their earlier statement.

Prosecutor Paul Burns SC moved two S.16 applications during the nine-week trial after highlighting "inconsistencies" ­between two witnesses' evidence and ­statements given earlier to gardai.

Brian Garvey, a landowner who rented land to Slab Murphy, originally told the Criminal Assets Bureau (CAB) that he spoke to Slab in relation to farming matters and the rent of land the day before he made his 2005 statement.

At that time, Mr Garvey told the CAB that apart from €5,000 (£3,650) given to him by Slab's nephew, all of the other money was given to him by Slab.

However, at the trial, the Co Meath farmer said he couldn't remember Slab ever handing him money, prompting a legal row that resulted in Mr Garvey's original statement being admitted into evidence.

The admission of the S.16 statements changed the entire dynamic of the trial. In its ruling, the non-jury court said that it was satisfied that the S.16 evidence of the two men represented the true state of affairs, namely that Slab was a cattle farmer, one who hadn't paid income tax over a nine-year period.

The Al Capone-style tax evasion conviction is both significant and symbolic. We can now call the man whom the Sunday Times successfully named in 1985 as "the IRA's 'Officer Commanding for the whole of Northern Ireland'" - and whom the BBC says controls a black market empire by smuggling oil, cigarettes, grain and pigs - the criminal that he is.

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