Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

The purpose of the two resolutions before Dáil Éireann this evening is to determine whether this House agrees to extend the operation of 12 sections of the Offences Against the State (Amendment) Act 1998 and section 8 of the Criminal Justice (Amendment) Act 2009 for another 12 months. I am conscious that many Members of the House have previously spoken and voted on the annual resolutions on these sections. However, I am one of many new Members who have not yet had an opportunity to speak or vote on this question. For that reason, it is important for all Members, particularly new Members, to inform themselves of the particular legislative sections we are being asked to consider extending over the next few days before we vote on this matter. I believe the relevant sections of the 1998 amending legislation are proportionate and necessary provisions to deal with the threat from dissident republicanism and from international terrorism, as evidenced in the most appalling circumstances in Orlando over the weekend.

It is important to set out some of the measures that are provided for in the Offences Against the State (Amendment) Act 1998. For example, the evidential provision in section 2 provides that an inference can be drawn against an accused person in any proceedings for membership of an unlawful organisation if he or she fails to answer or gives "false or misleading" answers to any question. Section 4 provides that evidence of membership of an unlawful organisation can be inferred from certain conduct. Another interesting section of the 1998 Act is section 9, which makes it an offence to withhold information which a person believes might be of material assistance in preventing the commission of serious offences or securing the apprehension or conviction of another person. Section 10 extends the maximum period of detention from 48 hours to 72 hours. It is important to note this can happen on foot of the authorisation of a judge of the District Court only. Section 12 makes it an offence for a person to instruct or train another person in the making or use of firearms or explosives.

Section 14, which is a procedural section, is probably the most controversial aspect of what we are debating. It makes the offences created under the sections I have mentioned scheduled offences for the purposes of the 1939 Act. This means the offences in question can be heard by the Special Criminal Court unless the Director of Public Prosecutions directs otherwise. It is important to note as well that there is a protection mechanism in this legislation. Under section 18, these provisions have to come back before this House on an annual basis. We are also being asked to extend the provisions of section 8 of the Criminal Justice (Amendment) Act 2009, which establishes certain offences in respect of organised crime. The specific offences we have to renew on an annual basis are the section 71A offence of directing a criminal organisation, the section 72 offence of participating in or contributing to the activities of a criminal organisation and the section 73 offence of committing an offence for a criminal organisation.

I should say at the outset that Fianna Fáil will be supporting these resolutions because we believe the statutory provisions under the Offences Against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009 both continue to be necessary because this island still faces a threat from dissident republicans. Unfortunately, there are still people on this island who believe the objective of republicanism is to try to force one group of people to agree with them. That is not the objective of republicanism. The objective of republicanism is to unite Irish people, rather than to divide them. One cannot unite Catholics, Protestants and dissenters by trying to bomb one of those groups into agreeing with one's political assessment. Unfortunately, a minority on this island still believes this is the way forward.

As I have said, we cannot ignore the role of international terrorism in the world. We saw that over the weekend, tragically. The horrific attacks in Orlando reminded us that certain people believe they can attack innocent individuals as a legitimate form of political warfare.

I am a civil libertarian and value the civil liberties we have. However, as libertarians, we need to stand up and defend the liberty we all take for granted. Sometimes that stance requires us to put through legislation which may make us uncomfortable. Those who wish to protect and cherish the Good Friday Agreement and those of us who oppose political violence need to recognise that any regression into violence needs not simply to be opposed politically but also requires an immediate tough response from An Garda Síochána. That is why we have these measures on the Statute Book. Everyone hopes we do not have to use these provisions. However, as seen in the report presented by the Minister, they are being used and, consequently, are necessary.

The second resolution concerns the extension of section 8 of the Criminal Justice (Amendment) Act 2009. This provision allows for certain criminal offences involving organised crime to be tried by the Special Criminal Court. Article 38.5 of our Constitution provides that a person is entitled to be tried by jury but there are exceptions, such as in the case of minor offences. Article 38.3 provides for trial by non-jury when a special court is established when it is considered that the ordinary courts are inadequate to secure the administration of justice. The overwhelming number of criminal trials in this country are conducted before juries who perform their functions diligently and admirably, as was evident by the jury that concluded the longest criminal trial in the history of the State last week.

However, there are some offences which cannot be tried by juries. It would be unfair of this State to put juries in a position where they would be under threat because of the nature of the offences they would be trying. We have an obligation to ensure our criminal justice system operates fairly. That system will not operate fairly where a jury can be nobbled or intimidated. Such a statutory regime is not unique to Ireland. In Britain, section 44 of the Criminal Justice Act 2003 provides for the capacity for a trial of a serious criminal charge to be heard without a jury and before a judge alone in circumstances where there is a threat the jury will be interfered with. We should not countenance a situation where justice could be denied as a result of a jury being interfered with.

Sometimes critics ask for the evidence of juries being intimidated. Section 41 of the Criminal Justice Act 1999 makes it a criminal offence to intimidate jurors or witnesses. Between 2006 and 2011, there were 50 convictions under section 41. Unfortunately, the intimidation of jurors and witnesses is a fact of life. We also need to remember that people involved in serious organised crime have previously murdered journalists and innocent bystanders who were simply in the wrong place at the wrong time. Does anyone actually think that those responsible for the Regency Hotel shooting or gangland feuding around Dublin would not intimidate jurors if they thought it would stop them from going to jail? I have no doubt that if any of them faced an ordinary jury that they would seek to threaten and intimidate individual jurors. The advantage of intimidating a jury is that if one gets an acquittal, one cannot be tried for that offence again.

As a legislator, neither I nor my party are prepared to allow a situation develop where ordinary citizens on the electoral register are asked to try cases when there is a serious risk that either they or their families would be subjected to intimidation and death threats during the course of a trial. What we must recognise is that there are occasions - fortunately very few - where a trial by a non-jury court is necessary to protect the integrity and fairness of the criminal justice system. However, there is an obligation also on those who challenge and condemn the Special Criminal Court to identify miscarriages of justice which have occurred in that court since 1998 and the introduction of these new measures. Does anyone actually believe the four members of the Provisional IRA convicted by the Special Criminal Court for the killing Detective Garda Jerry McCabe were victims of a miscarriage of justice? Does anyone believe those convicted by the Special Criminal Court of the murder of Veronica Guerin were victims of a miscarriage of justice? Does anyone believe those convicted by the Special Criminal Court of the murder of Shane Geoghegan or Roy Collins were victims of a miscarriage of justice? Does anyone believe the prominent republican, who was last year convicted by the Special Criminal Court of tax evasion, was a victim of a miscarriage of justice?

It is not enough simply to state that democratic societies must have trial by jury. The reason why trial by jury is provided for in our Constitution is because it ensures a fair criminal justice system. The reason why our Constitution also provides for special courts in certain instances is because it similarly recognises that a fair criminal justice system can sometimes only be achieved through a non-jury court. Accordingly, those who condemn and criticise the Special Criminal Court should identify the miscarriages of justice they say have arisen since 1998 when the new regime was introduced. One cannot just say this system violates human rights without identifying some detrimental consequence to the human rights of an accused person which has occurred as a result of the use of the Special Criminal Court.

Unfortunately, we do not live in a perfect or utopian society. We have dissident republicans or people who may attack us on behalf of international terrorists, as well as serious gangland criminals. We need to mould our criminal justice system so we can adequately respond to them to defend our civil liberties.

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