In common-law jurisdictions, the possibility of trial by a jury of one's peers has long been held out as a vital safeguard for the citizen. In 1768 Sir William Blackstone declared that it was a “bulwark” of liberty, and 200 years later Lord Devlin proclaimed it to be “the lamp that shows that freedom lives.” Allowing lay persons to play a role in the administration of justice served several ends. It mitigated the ferocious consequences of a statutory regime where capital offenses were numerous and, in this respect, acted as a check on the legislature. It meant that the logic and rigor of the law were leavened by the commonsense understandings of citizens and, in this regard, helped to ensure that the priorities of lawmakers did not drift too far from the concerns of their subjects. It put pressure on practitioners to articulate legal considerations in a way that was amenable to nonexperts, thus preventing justice from becoming an entirely arcane business, as well as educating the public in jurisprudence.

For such reasons the jury has acted as a powerful legitimating force in the criminal justice system, despite the facts that it plays a role in a small, and diminishing, number of cases and that there have always been concerns about the extent to which jury members are representative of the general population. Clearly, it is the symbolic value of the jury that is important rather than its practical relevance. This is why the Special Criminal Court in Ireland, the subject of Fergal Davis's monograph, has been so controversial for so long. It may deal with only a handful of cases every year, but each one raises serious questions about the integrity of the criminal justice system and the proper nature of the relationship between the State and the accused.

Davis describes the attempts by the fledgling Irish Free State to deal with the illegal armies that threatened its existence, in particular the Irish Republican Army (IRA), but also the Blueshirts. This was a time of sporadic violence, national uncertainty, and harsh justice. The evolution of the Offences against the State Act 1939, which provided a legislative basis for the Special Criminal Court, is recounted in detail. This was an important weapon in the government's fight against subversion, to be deployed when it was satisfied that the threat of juror intimidation was such that the ordinary courts were “inadequate to secure the effective administration of justice and the preservation of public peace and order.” It was reinforced by internment, judicial execution, and, in 1940, the establishment of a Military Court.

The latter development was particularly interesting in light of the fact that it drew its members from the Special Criminal Court, all of whom were officers of the Defence Forces. As Davis informs us, the advantage to the government of the military tribunal was that it was not bound by the usual rules of evidence or susceptible to judicial review. Thus, it could go about its business without fear of being “hampered and humiliated by the courts” (85). Despite these attractions, the court sat infrequently, and for the last time in 1943.

From its inception the Special Criminal Court dealt with more than just subversion. While its jurisdiction was restricted to offenses that could not be dealt with by the ordinary courts, what was deemed to satisfy this standard was elastic. For example, in the early years most of the matters dealt with were economic, such as black-market trading that exploited the rationing arrangements put in place during the Emergency. Davis describes this as an example of a “normalization effect” (101), whereby a measure intended to deal with a specific danger becomes more widely applied and is eventually accepted in its new guise.

The Special Criminal Court stopped sitting in December 1946. It was not reactivated during the IRA border campaign of the 1950s; at this time the government opted for internment to deal with the subversive threat. It came back into operation for a few months in 1961 and 1962, when thirty people were convicted (most of whom were released shortly afterward under the terms of an amnesty). In October 1962, the Special Criminal Court was formally disestablished.

It was brought back to life in May 1972, in response to the mounting violence in Northern Ireland, but in the absence of any evidence that the threat to jurors was such that special measures were required. It has been continuously in existence ever since. The resuscitated Special Criminal Court differs from its predecessor in that its members are drawn exclusively from the judiciary, with no military personnel involved. It is similar in the extent to which it has become a vehicle for dealing with suspects (including drug dealers and members of criminal gangs) who have no relationship with unlawful organizations, thereby “normalizing” what were intended as exceptional measures. In essence, the law permits any offence to be transferred to the Special Criminal Court if the Director of Public Prosecutions (DPP) certifies that the ordinary courts are “inadequate.” The DPP's discretion in this respect is virtually unfettered, and he is not required to give reasons.

The sociolegal ramifications of these developments are noteworthy. By sending problematic cases to the Special Criminal Court, the virtues of jury trial can be extolled while its protections are denied to those considered unsuitable. This allows politicians to display their civil libertarian credentials by emphasizing a commitment to the jury system while leaving unaltered an environment where its scope is reduced.

On balance, Davis is sympathetic to the continued existence of the Special Criminal Court, subject to the introduction of a number of safeguards around how cases are referred to it. His book is a nice blend of archival work, legal scholarship, and proposals for law reform. While his view—that the Special Criminal Court is a “proportionate response” (189) to the crime threat currently facing the Irish State—is contestable, he makes his case carefully, and the reader, if not fully convinced, is much better informed.