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Drawing of inferences from accused’s silence at stake as upcoming gangland cases loom 
It is not the case that the non-jury Special Criminal Court will cease to sit after the end of this month if certain provisions are not renewed by the Dáil and the Seanad. 
However, a number of provisions contained in two separate criminal law Acts may lapse after June 29th next, if they are not renewed by the Oireachtas. 
The legislation cannot be renewed, the Government believes, until 11 Taoiseach’s nominees are appointed, and that cannot happen, the Government also believes, until there is a new administration. 
On Wednesday, a three-judge Divisional Court of the High Court begins hearing a case brought by Senators who argue that the Seanad, as currently convened, can pass legislation, including extending the Special Criminal Court’s powers. 
The laws that need to be renewed are provisions of the Offences Against the State (Amendment) Act 1998, and of the Criminal Justice (Amendment) Act 2009. 
Under them, a court can draw inferences from an accused’s silence when questioned about membership of an unlawful organisation, directing criminal activity or the commission of gangland offences, among other subject. 
Criminal organisation 
Legal sources said the lapsing of the powers poses a number of issues for trials coming before the court. 
A gangland killing case that is due to come up for mention at the end of this month involves offences that are in danger of lapsing, but also includes other serious charges that will not lapse. The case is not scheduled to go to trial in the near future. 
However a separate case that involves a charge of membership of a criminal organisation, and no other offence, is scheduled to go to trial in the second week of July. 
Sources said that the affected provisions involving gangland offences stipulate that the offences are “scheduled” ones, which means that they come before the non-jury court. 
They would still be offences even if the affected provisions lapse, the sources said. The difference would be that the trials arising from any charges might end up before an ordinary – as against a non-jury – court. 
Defence advantage 
The issue with membership of an illegal organisation is different. The provision that is in danger of lapsing allows the court to make certain inferences arising from a person’s response to questions about membership of an illegal organisation. 
This appears to mean that, if the provision lapses, the court cannot make any such inference. 
Legal sources said lawyers acting for persons facing prosecution for breaking the relevant laws could seek to use any lapsing of the provisions to the benefit of their clients. 
However the counter-argument is likely to be made in the case of any gangland charges, that cases that are already in train should not be affected, as the offences existed at the time the charges were brought and at the time any custody decisions were made. 
There might be a question mark over any future charges, should the legislation lapse, one source said, but for charges already brought, there is less concern. 
A spokesman for the Department of Justice said the implications for any ongoing proceedings of any lapsing of the laws would be a matter for the Director of Public Prosecutions. 
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