Wednesday, 14 June 2006
Offences against the State (Amendment) Act 1998: Motion.
Michael McDowell (Dublin South East, Progressive Democrats)
That Dáil Éireann resolves that sections 2 to 12, 14 and 17 of the Offences against the State (Amendment) Act 1998 (No. 39 of 1998), shall continue in operation for the period of 12 months beginning on 30 June 2006.
This motion seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act 1998 which would otherwise cease to be in operation on 30 June. The 1998 Act was enacted in the aftermath of the Omagh bombing of August 1998, which claimed the lives of 29 innocent people, including a woman pregnant with twins, and injured more than 200 others. That appalling act, a few months after the signing of the Good Friday Agreement and designed to derail the peace process, was perpetrated by fanatics for whom human life holds no value.
There is an upcoming criminal action against a person in Northern Ireland for these murders. The retrial of another person is also pending in this jurisdiction. The investigation into the atrocity continues on both sides of the Border and there continues to be excellent co-operation between the Garda authorities and the PSNI in this regard.
In recognition of the exceptional circumstances surrounding the enactment of the 1998 Act, there was general agreement it should be regularly revisited by the Oireachtas. The purpose of this recurring Oireachtas scrutiny is to ascertain if the circumstances prevailing in 1998 justify the continuance in force of its provisions. Accordingly, by virtue of resolutions passed by both Houses of the Oireachtas on 16 June 2005, sections 2 to 12, inclusive, 14 and 17 will cease to operate on and from 30 June next. That is, of course, unless a further resolution is passed by each House authorising the sections to continue to operate for a period not exceeding 12 months. In addition, there is a requirement in the Act to lay a report on its operation before each House of the Oireachtas prior to consideration by the Houses of the renewal of the provisions. I laid a report before the House on Monday.
The conclusion of the report is that the relevant sections should remain in force for a further 12 months. This is the firm view of the Garda Síochána, which considers the Act to be vital in the continuing fight against terrorism and it to be of paramount importance that the legislative provisions remain in operation. The reality is that those responsible for the Omagh bomb, and others like them, continue in their fanatical way to pursue, plan and promote campaigns of violence. There have been several near misses involving the Real IRA and the Continuity IRA since the Omagh atrocity. It is only through dint of excellent police work by the Garda and the PSNI that further tragedy on a massive scale has been averted.
As recently as January and February of this year viable explosive devices were placed outside police stations in Armagh and Belfast. Last August a bomb, comparable in size to that detonated at Omagh, was made safe in Lurgan. I ask the House to consider the effects of the detonation of such a device, the human lives that would be lost and the damage that would be wrought to the chances of peace on this island. This is not an abstract notion. It is a real and present danger and one the security forces on this island work day and night to prevent.
Advances in the quest for peace are to be welcomed. However, let no Member be fooled that a significant threat does not remain from dissident so-called republican groups. As recent reports of the Independent Monitoring Commission make clear, organisations such as the Real IRA and the Continuity IRA continue to aspire to serious acts of terrorism. They continue to be involved in intelligence gathering, extortion, recruitment and training. To quote the commission's most recent assessment, the Continuity IRA "remains an active threat" while the Real IRA's "aspirations and readiness to use extreme violence are undiminished".
The State must be prepared to meet the threat posed by these people, particularly at this sensitive time when all our hopes are on restoration of devolved government in Northern Ireland. There is also evidence that dissident so-called republicans are now willing to peddle their expertise to organised criminal gangs. The Garda intercepted a bomb at the West Link toll bridge in December 2005 which, it is assessed, was to be used as part of a feud between drugs gangs. This is a chilling development and one which must be countered. It is a serious matter when so-called republicans provide material of this kind to thugs who are killing ordinary teenagers by supplying them with drugs and killing each other to maintain their positions of strength. The Garda Síochána will continue to actively investigate links between terrorist groups and organised crime, including through the use of these legislative provisions.
In addition to home-grown terrorist groups, no Member can be ignorant of the newer and more sinister forms of international terrorism, in particular jihadist terrorism, which have manifested themselves in recent years. With the Madrid bombings of March 2004 and the London bombings of last July, which together involved the murder of more than 250 innocent commuters, two of our closest European friends and neighbours have had to face the full horror of this phenomenon. It would be naive to imagine that Ireland is completely immune from such threats. The Criminal Justice (Terrorist Offences) Act 2005 was enacted to deal with this international terrorist threat by enabling the application of the Offences against the State Acts against international terrorist groups and individuals. Chipping away at these Acts would be neither wise nor warranted.
Since the end of the last reporting period from 1 June 2005 to 31 May 2006, section 2 was used on 14 occasions. It provides that where, in any proceedings for membership of an unlawful organisation, the accused failed to answer or gave false or misleading answers to any question, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. However, a person cannot be convicted of the offence solely on an inference drawn from such a failure.
Section 3 was used on nine occasions. This section provides that, in proceedings for membership of an unlawful organisation, the accused must give notification of an intention to call a person to give evidence on his behalf, unless the court permits otherwise. One cannot ambush the prosecution.
Section 4 was used on two occasions. This section amends section 3 of the Offences against the State Act 1972 in such a way as to expand the definition of "conduct" that can be considered as evidence of membership of an unlawful organisation. Specifically, "conduct" can now include matters such as "movements, actions, activities, or associations on the part of the accused". This change simply aligns the definition of conduct in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.
Section 5 was used on 34 occasions. This section provides for the drawing of adverse inferences in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts and any offence arising out of the same set of facts as such an offence, provided that the offence carries a penalty of five years' imprisonment or more. The effect of this section is to allow a court to draw inferences where the accused relies on a fact in his defence that he could reasonably have been expected to mention during questioning or on being charged but did not do so. As with section 2, however, a person cannot be convicted of the offence solely on an inference drawn from such a failure.
Section 7 was used on two occasions. This section makes it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the article is in possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences.
Section 9 was used on 110 occasions. This section makes it an offence to withhold information which a person believes might be of material assistance in preventing the commission by another person of a serious offence or securing the apprehension, prosecution or conviction of another person for such an offence. Some people wonder about that offence, but Article 9 of the Constitution states that loyalty to the State is a fundamental duty of every citizen and there cannot be a right to withhold information in regard to such terrorist offences.
Section 10 was used on 15 occasions. This section extends the maximum period of detention permitted under section 30 of the Offences against the State Act from 48 hours to 72 hours, but only on the express authorisation of a judge of the District Court. In this regard, the judge must be satisfied, on the application of a Garda officer not below the rank of superintendent, that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The person being detained is entitled to be present in court during the application and to make, or to have made, submissions on his behalf.
In the reporting period in question, an extension was applied for in 15 cases. A total of 14 of these applications were granted while charges resulted in two of these cases.
Section 11 was used on seven occasions. This section allows a judge of the District Court to permit the re-arrest and detention of a person in respect of an offence for which he was previously detained under section 30 of the Offences against the State Act but released without charge. This further period must not exceed 24 hours and can only be authorised in circumstances where the judge is satisfied, on information supplied on oath by a member of the Garda Síochána, that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence.
Section 14 was used on 54 occasions. The effect of this section is to make the offences created under sections 6 to 9 and 12 of the 1998 Act scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing these offences are liable to arrest under section 30 of the 1939 Act.
I would now like to turn to those sections of the 1998 Act that were not used in the period under report, namely, sections 6, 8, 12 and 17. Section 6 establishes the offence of directing, at any level of the organisation's structure, the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act 1939.
Section 8 makes it an offence to collect, record or possess information which is likely to be useful to members of an unlawful organisation in the commission of serious offences. Section 12 makes it an offence for a person to instruct or train another person in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse.
Section 17 builds on the provision in the Criminal Justice Act 1994 providing for the forfeiture of property. Essentially, the 1994 provision empowers a court, in its discretion, whenever any person is convicted of an offence, to order the forfeiture of any property in the possession of that person which was used, or intended to be used, to facilitate the commission of the offence. The effect of section 17 is, in the case of a person convicted of specified offences relating to the possession of firearms or explosives, and where there is property liable to forfeiture under the 1994 Act, to require the court to order the forfeiture of such property unless it is satisfied that there would be a serious risk of injustice if it made such an order.
I appreciate that some Deputies will look at the advances that have been made in the search for peace since 1998 and say that we no longer require this legislation, but I disagree. The full implementation of the Good Friday Agreement remains an ongoing challenge and one which the Government continues to pursue with the utmost commitment. The Taoiseach, together with Prime Minister Blair, will meet the parties later this month to try to move us closer to the full re-establishment of the institutions.
The enemies of peace have not gone away. Dissident so-called republican groups remain active, ruthless and determined to strike if given the opportunity. They remain resolutely opposed to the will of the people of Ireland, as expressed in the Good Friday Agreement, and to the peace it has engendered. They remain determined to destroy that Agreement by any means at their disposal and they have shown they are prepared to kill indiscriminately in their fanatical opposition to democracy and peace on this island. As long as there are organisations, such as those treasonable organisations prescribed under the 1939 Act, dedicated to frustrating the will of the people through violence and mayhem, robust counter-measures must be available to the State.
The success of the two police forces in thwarting various attempts to take life, some of which I have mentioned, should not be perversely held up as reason to set aside this legislation. The fact that the Garda is successful depends on this legislation; it is not a reason for getting rid of it, rather it is proof that it is still required. Neither should the fact that some sections of the Act were not used in the period be held out as a reason for jettisoning provisions such as directing terrorism and the like because people are involved in this endeavour and the Garda is constantly in pursuit of them. Both the so-called Continuity IRA and the so-called Real IRA would gladly kill and maim any number of innocent persons in the pursuit of their fanatical and misguided view of what republicanism amounts to on this island.
The Offences against the State (Amendment) Act 1998 is one element of the State's ongoing response to the terrorist threat. I urge the House not to countenance weakening any of the tools the State has at its disposal in the fight against terrorism. I commend the resolution to the House.