Frank Fahey (Galway West, Fianna Fail)

I move:

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 2007.

The resolution before the House seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act 1998 that would otherwise cease to be in operation on 30 June next. Deputies will be aware that in previous years this kind of resolution was usually moved in June. However, to avoid any uncertainty surrounding sittings of the House between now and 30 June, the decision was made to bring forward the consideration of this issue. A similar approach was adopted in 2002 and it is fully in accordance with law.

The 1998 Act was enacted in the aftermath of the Omagh bomb of August 1998, which claimed the lives of 29 innocent people and injured more than 200 others. That callous atrocity occurred a few months after the signing of the Good Friday Agreement and was clearly designed to derail the peace process. Thankfully, that end was not achieved. In fact, we are now moving inexorably towards an historic new beginning with the reinstitution of devolved administration in Northern Ireland.

In terms of the Omagh bombing, Deputies will be aware there is an ongoing criminal action against a person in Northern Ireland in respect of those murders. A civil action against a number of persons is also being pursued by the families of the victims. I should mention also that the retrial of another individual in connection with the bombing is also pending in this jurisdiction. Moreover, the investigation into the bombing remains open on both sides of the Border and there continues to be excellent co-operation between the Garda authorities and the PSNI in this regard.

Deputies will recall that in recognition of the exceptional circumstances surrounding the enactment of the 1998 Act, there was general agreement that certain of its sections should be regularly revisited by the Oireachtas. The purpose of this recurring Oireachtas scrutiny is to determine if current circumstances justify the continuance in force of those provisions. Accordingly, by virtue of resolutions passed by the Dáil and the Seanad on 14 and 15 June 2006, respectively, the relevant sections of the 1998 Act will cease to operate on and from 30 June next unless a further resolution is passed by each House authorising those sections to continue to operate for a further period not exceeding 12 months.

Part of the process surrounding the Dáil's consideration of the renewal of sections of the Act requires the Tánaiste and Minister for Justice, Equality and Law Reform to lay a report on their operation before the House prior to the resolution being moved. The Tánaiste laid such a report before this House on 17 April. The conclusion of that report is that the relevant sections of the 1998 Act should remain in force for a further 12 months. In the first instance, this is the firm view of the Garda Síochána, which considers the Act to be vital in the continuing fight against terrorism. In addition, the harsh reality is that, notwithstanding very positive developments in respect of the Provisional IRA, the dissident republican threat remains real and ever present.

For evidence of this unfortunate conclusion, I refer Deputies to the 15th report of the Independent Monitoring Commission, published this morning, which focuses on the period from December 2006 to February 2007. In the report, the Continuity IRA is found to have been responsible for a pipe bomb which failed to explode next to Lurgan PSNI station in December 2006. The Continuity IRA also attempted to acquire weapons and undertook terrorist training. It was engaged in smuggling, fuel laundering and robbery. Furthermore, the report states that it was responsible for two murders. These will be more fully reported on in the IMC's next report because they fall outside the scope of the current report. The IMC's overall assessment of the Continuity IRA is that it remains active but that, for political reasons in the run-up to the elections in Northern Ireland last month, it was possibly less active than might have been the case.

Óglaigh na hÉireann, a relatively new splinter group of the Continuity IRA, has recently become dangerously active. In particular, it claimed responsibility for three pipe bomb attacks against PSNI premises and homes of PSNI officers. One of the three devices used in these attacks functioned but only to a limited extent. Moreover, it is reported that persons associated with the so-called Óglaigh na hÉireann were discovered in possession of bomb-making and other terrorist equipment in February 2007.

In respect of the Real IRA, the IMC states that it was responsible for a failed mortar attack on Craigavon PSNI station in December last. The organisation has continued to engage in serious crime, including smuggling, fuel laundering and robbery, and has also continued to recruit and attempt to procure weapons. Although the Real IRA was less active recently, the IMC assesses that this was purely a tactical decision aimed at not weakening the position of the anti-policing republican candidates in the run up to the recent Northern Ireland elections.

The pattern of dissident republicans lending their bomb-making expertise to organised criminal gangs is, unfortunately, well established and has become something of a cottage industry for certain individuals. The most recent example of this occurred in County Clare earlier this month, when, as Deputies may recall, a viable device was found under the car of a targeted individual. This is a deeply disturbing development and one which the Garda Síochána is actively seeking to counter.

In addition to domestic terrorist groups, the international terrorist threat continues unabated. The most recent and shocking example of this in Europe involved the planned use of liquid explosives in attacks on civil aviation targets between Britain and the US. Thankfully, these attacks were foiled in August of last year and the consequences of this have been felt, quite literally, around the world through much more rigorous and extensive security arrangements at airports, including those in Ireland.

Although the extent of the terrorist threat within the European Union varies greatly from one member state to another, it would be naive to imagine that Ireland is completely immune from these new forms of terrorism. 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, including the 1998 Act, against international terrorist groups and individuals. It might be worthwhile for Deputies to bear in mind that other countries have enacted even tougher legislation in response to the international terrorist threat. In Britain, for example, 28-day detention is now permitted. In that context, the provisions of the 1988 Act can be seen as a measured response. I would caution, however, against any complacency in our response to the threat from terrorism.

I will now deal briefly with the individual sections of the 1998 Act that the House is being asked to continue in force for a further 12 months. I will outline the position as regards those sections of the 1998 Act that were used since the end of the last reporting period, namely, from 1 June 2006 to 7 April 2007.

Section 2 was used on ten occasions.

By way of explanation, section 2 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 as appear proper. However, a person cannot be convicted of the offence solely on an inference drawn from such a failure; there must be some other evidence which points towards a person's guilt.

Section 3 was used on nine occasions and 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 or her behalf, unless the court permits otherwise.

Section 4 was used on seven occasions and 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 39 occasions and provides for the drawing of adverse inferences in certain circumstances 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 is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she 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 6 was used once. It creates the offence of directing the activities of an organisation in respect of which a suppression order has been made under the Offences Against the State Act 1939. Section 7 was used on nine occasions and 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 79 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.

Section 10 was used on eight occasions. It 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 or her behalf. In the reporting period in question, an extension was applied for in eight cases and seven of these applications were granted with charges resulting in four of these cases.

Section 11 was used on five occasions and 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 or she 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 120 occasions. The effect of this section is to make the offences created under sections 6 to 9 and section 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 will now turn to those sections of the 1998 Act that were not used in the period under report, namely, sections 8, 12 and 17. 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 under that Act, 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.

Although these sections were not used in the period under report, I am sure that the House will agree that their continued availability is essential to an effective response to the threat from terrorist groups. The information on the use made of the provisions of the 1998 Act is based on data received from the Garda authorities and is contained in the report on the Act laid before this House.

The unfortunate fact remains that dissident republican groups remain active, ruthless and determined to strike if given the opportunity. They remain resolutely opposed to the Good Friday Agreement and to the peace and devolution of powers it has brought, they remain determined to destroy that agreement and, I suggest, they remain prepared and willing to kill indiscriminately to this end. As long as they continue to exist, there must be robust counter-measures available to the State. The House, and indeed the people of this State, would rightly question the Government's commitment to defeating these organisations if we did not ensure adequate legislative provisions to meet this threat.

It is worth remembering, not as rhetoric but as a reflection of reality, that a terrorist organisation needs to get lucky only once to cause significant loss of life. It is essential, therefore, to have the means to prevent such acts. For such powers to work, they must work preventively; otherwise, we risk handing the initiative to those organisations and this is something we cannot do.

The Offences against the State (Amendment) Act 1998 is one element of the State's ongoing defence against 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.

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