Wednesday, 24 June 2020
Offences against the State (Amendment) Act 1998 and Criminal Justice (Amendment) Act 2009: Motions
We now move to Nos. 6 and 7, motion regarding Offences against the State (Amendment) Act 1998 and motion re the Criminal Justice (Amendment) Act 2009. In accordance with the Standing Order of the Dáil of Wednesday, 17 June, the first motion will be moved, the two motions will be discussed together, and then the two motions and any amendments thereto will be decided on separately. I call on the Minister for Justice and Equality, Deputy Charlie Flanagan, to move the first of the two motions.
That Dáil Éireann resolves that sections 2 to 4, 6 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 beginning on 30th June, 2020 and ending on 29th June, 2021.
The House will be aware that the Offences against the State (Amendment) Act 1998 was enacted in the wake of the murder of 29 people by the Real IRA in Omagh. Thankfully, through the efforts of the democratic people North and South of this island and, indeed, the ongoing watchfulness of An Garda Síochána and their colleagues in the PSNI, there has not been another tragedy since on the scale of Omagh. It nonetheless remains crucial that those who display utter contempt and disregard for the people of Ireland and who continue with their efforts at death and destruction, are given a clear statement that this behaviour will by no means be tolerated.
I want to address at the outset a number of amendments that have been put down by Members of this House. In that regard, I cannot accept that the information that is put before the House today is in any way insufficient for Deputies to reach a considered view on the continuation of these provisions.
Some Members of the House are concerned about the role of the Special Criminal Court in the justice process. However, none of us can be blind to the threat posed to the criminal justice process by individuals, by terrorists and organised criminal groups who seek daily to subvert the system through intimidation of citizens. I want to make it clear that I am not averse to a review of this legislation; indeed, far from it, as will become clear in the months ahead. In this regard, Deputies will be aware of the intensive work taking place to implement the recommendations of the Commission on the Future of Policing in Ireland. That root and branch blueprint for policing includes a comprehensive review of security legislation. I refer Deputies to Chapter 11 of that report. Work ongoing in my Department to bring forward that review of the offences against the State legislation will, of course, be part of that review, including the provisions that are before us today. In that regard, therefore, I ask Deputies to withdraw their amendments and support the motions before the House today in line with their valued and welcome support for the recommendations in the Commission on the Future of Policing in Ireland and the implementation of its ambitious vision for policing in this State.
Returning to the 1998 Act, I have laid a report before the House in relation to the operation of the relevant provisions to be renewed. This report also sets out a brief assessment of the security situation. That assessment shows the Garda assessment is that there remains a real and persistent threat from republican paramilitary organisations and groups on this island. We all know these dissidents are opposed to democracy and opposed to the rule of law. The ruthless and continuing attempts to murder and maim, such as the attempt earlier this year to smuggle a bomb onto a Belfast passenger ferry to co-incide with Brexit, demonstrates the scant regard for human life these people have. The cowardly attempts to intimidate journalists and politicians demonstrates their contempt for an open and free democracy.
In the previous year, there has been an increase in paramilitary shootings and attacks in Northern Ireland, including attempts to murder and maim members of the PSNI. The continuing discovery of arms caches, including recent finds in this jurisdiction such as that in Galway in April of this year, are stark reminders of their intent. We see the use of these provisions culminating in the most serious cases being brought before the Special Criminal Court.
The first conviction for directing terrorism under these provisions dates back to 2003, with the most recent in 2017. These are very significant cases involving those at the most senior level in these organisations.
In addition, in recent years there have been important convictions for membership of unlawful organisations where the court has been able to draw inferences using these provisions. The report before the Houses provides data showing that these provisions have been used 70 times in the period under review. In this period, the total number of people arrested under the provisions of the Offences Against the State Act 1939 is 146, of whom 40 were detained for offences contrary to the provisions of the 1998 Act. Seven convictions have been secured in the courts in the reporting period and a further 35 persons are awaiting trial. It is our duty to ensure that those tasked with protecting us from this threat, and who frequently risk their lives in doing so, have at their disposal the appropriate measures to meet it. The powers available under the 1998 Act are considered by An Garda Síochána as essential to maintaining preventative action against these terror groups. As such, I am advised by the Garda Commissioner that there is a clear need for the continuance of these provisions. I accept that advice.
In addition to the threat posed by domestic terrorists and the importance of countering that threat, it is important not to lose sight of the threat from international terrorism. While the 1998 Act was a strong response to our domestic troubles, its provisions form an essential element of the State's response to the threat of terrorism from any source. We have been particularly fortunate in Ireland to have been spared the kinds of attacks visited on our European partners. As an open democracy, however, we cannot consider ourselves immune from such threats, and in co-operation with our EU and international partners, we will continue to identify and respond to that threat. It is essential that the relevant provisions continue in force for a further 12 months to support the ongoing investigation and destruction of terrorist activity.
I turn to section 8 of the Criminal Justice (Amendment) Act 2009, which is also the subject of a motion before the House. The Act was a response to a number of difficulties that were being experienced where the entire justice system was considered to be under serious threat. At the time, An Garda Síochána was encountering difficulties in persuading people to give assistance in its investigations and there was significant evidence of intimidation of witnesses. The measures contained in the Act were designed to tilt the balance firmly in favour of the rule of law and of justice. In view of the real threat posed by organised crime, section 8 of the 2009 Act provides for a limited number of specific organised crime offences to be prosecuted in the Special Criminal Court, subject to the prerogative of the Director of Public Prosecutions to direct that offences be tried in the ordinary court. The ability to use the Special Criminal Court for a limited number of organised crime offences removes the possibility of jury tampering or the intimidation of jurors.
Our society greatly values trial by jury and must protect that value, but we cannot ignore the reality of organised crime and the threat it poses to the criminal justice process. There is, unfortunately, stark evidence of the willingness of these organisations to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. We are all aware that the reach of these groups is not limited to this State, nor are the efforts of the Garda, which works closely with a range of police and law enforcement bodies internationally. Some security risks, which in the past were mainly associated with subversive paramilitaries, are now also associated with criminal groups. In fact, there is ample evidence of inextricable links between those who engage in paramilitary activity and organised criminal gang activity.
It is also clear that age is no barrier to becoming a victim of their barbaric violence. The gruesome and cruel killing of a teenage boy earlier this year is stark evidence of their contempt and lack of humanity. That shocking act is a reminder, as if one is needed, of their ever increasing depravity. If criminals are prepared to take human life, they are quite prepared to subvert the system of justice.
Accordingly, there is a necessity for legislation that anticipates this possibility to be firmly in place. That view is echoed by the views of An Garda Síochána, which are set out in the report before the House. I am, therefore, satisfied as Minister for Justice and Equality that section 8 of the Criminal Justice (Amendment) Act 2009 should continue in operation for a further 12 months. The existence of these provisions means those engaged in terrorist activity or involved in organised crime are aware the State remains resolute in its determination to use every lawful means to defeat them. I commend the motion to the House.
I welcome the opportunity to speak in this important debate. Fianna Fáil will be supporting these motions. I welcome the Minister's statement emphasising that there will be a review of security legislation. He said it is ongoing in his Department.
We need to examine the two items of legislation separately because they relate to more than simply the Special Criminal Court. Let us examine the 1998 legislation, introduced in the aftermath of the Omagh bombing. This House and the Seanad decided the provisions introduced in the Offences Against the State (Amendment) Act 1998 were of such considerable power that they should be renewed and reviewed annually by both Houses of the Oireachtas. The reason was the Oireachtas recognised at the time that these were considerable powers.
It is important to note, however, that the 12 sections that have to be reviewed each year are not all just about the creation of new offences. For instance, three of the sections under the 1998 legislation, sections 2, 3 and 4, are evidential provisions that make it easier to prosecute subversives before the courts. There are, however, a number of new offences provided in the 1998 legislation, such as sections 6, 7, 8, 9 and 12. Section 14 provides that those new offences under the 1998 Act are to be scheduled offences under Part V of the Offences Against the State Act 1939.
A good point made by persons who are concerned about the operation of the 1939 Act is that it is an anachronism and needs to be updated. There is some merit in that argument. The 1939 Act was enacted in June 1939 because of the then threat of a European war, which came to pass. In August 1939, the then Government made a declaration, under section 35 of the Act, that the ordinary courts were inadequate to deal with the administration of justice in certain instances. That declaration, which can be made under section 35, existed from August 1939 until after the Second World War, in 1946.
A second declaration was made by the Government in August 1972. It was made because of the violence in Northern Ireland and the troubles that existed on this island. There is validity to the point that this declaration, which has been in operation for the past 48 years, does not really reflect the threat from subversives that exists today but rather the historic threat that existed in the 1970s.
Fortunately, in this country, political violence and terrorism have reduced significantly. The Good Friday Agreement was a great achievement of all politicians in this country. It was also a great achievement of my party, if I can claim some ownership of it. Its effect was that political violence and terrorism on the island reduced considerably. One of the requirements of the Good Friday Agreement was that there would be a review of the Offences Against the State Act. A committee was established under the chairmanship of former Supreme Court judge Anthony Hederman to review it. That review took place in the aftermath of the horrific Omagh bombing, so it was not surprising that the committee recommended, by majority, that the provisions should remain as they are because of the significant threat that was posed to the State by subversive organisations.
Regrettably, I agree with the Minister that strong legislation is needed to deal with subversive organisations that are still in the country. We need to recall that Ms Lyra McKee was murdered not that long ago by dissident republicans. The threat that exists is evident from the report that has been presented by the Minister. He stated there were 146 arrests under the provisions of the Offences Against the State Act and that 40 of these arrests relate to provisions enacted in 1998. The Offences Against the State Act 1998 needs to remain in place but we need to examine and review the anachronistic provisions dating from 1972.
There can be no doubt that the greatest criminal threat currently posed to the people of this country is not from dissidents or international terrorism but rather gangland criminals who murder children and who used children from disadvantaged communities to promote their crimes and make vast amounts of money for themselves. It is for that reason that, back in 2009, the Oireachtas enacted the Criminal Justice (Amendment) Act 2009, which provides for four new offences to deal with gangland criminals. In particular, it provides that individuals can be prosecuted for directing or assisting gangland crime organisations. That legislation is extremely important and it must be kept in place. We can see from the report being put before the House by the Minister that there were 29 arrests under section 72 of the Act and 43 arrests under section 73.
The Garda Síochána has had great success in recent years in prosecuting gangland crime because of the powers that the Oireachtas provided in 2009. I would prefer if all crimes could be prosecuted in courts where juries would decide the outcome of serious criminal charges, but I recognise that we have a responsibility to ensure we do not put ordinary citizens from the electoral register, who make up the jury list, in a position where they would be exposed to a significant threat. If people do not believe me on that, I ask them to reflect on what Mr. Justice Peter Charleton and Mr. Paul Anthony McDermott stated in an article from 2000. They said it is expecting too much to expect citizens to sit on juries in gangland trials and face the prospect of intimidation or trickery.
I know very many well-intentioned people have asked whether we can introduce mechanisms whereby the jury would not be identified by the persons being prosecuted. That can be very difficult and can also give rise to potential miscarriages of justice. Any jury hearing a serious criminal trial must be assembled together and they must be in the same location as the judge. This is so the judge can effectively supervise the jury and ensure everybody is paying attention to the evidence. It is to ensure that if there is some sort of remote jury involvement, the members are not doing something else, which could lead to a miscarriage of justice.
The Special Criminal Court is still necessary in cases of gangland crime because it is so easy to identify and follow a juror. Going to the courts of criminal justice at 4.30 p.m. one would see people leaving the complex on their way home, and very many of them are jurors. It is easy to follow them and identify where they live. The crime of embracery is ancient but it is the crime of trying to nobble, corrupt or intimidate a jury. It happens, and I regret that we have seen in this jurisdiction that gangland criminals will murder children and journalists and intimidate witnesses. They will take any steps to ensure a criminal prosecution against them can be disturbed. It is for that reason we need to continue with the provisions of the Criminal Justice (Amendment) Act 2009.
It is important to point out that this is not an academic motion. The deadline for the continuation of the provisions is midnight on Monday, and if a resolution is not passed by the Seanad at that stage, the offences covered will no longer be in operation. That does not mean people who previously committed those offences cannot be held liable as they were offences at the time they committed them. However, it would unquestionably raise a question mark over any prosecutions pending before the Special Criminal Court pursuant to resolutions if no such resolution is made by the Seanad.
I have spoken to Deputy Martin Kenny and will listen with great interest to his speech. If it is the case that Sinn Féin will support these motions, it would be a significant and positive political development.
I move amendment No. 3:
To insert the following after “ending on 29th June, 2021”:
— further resolves that the Minister for Justice and Equality shall commission an independent, comprehensive review of the Act and the operation of our criminal courts to include the development of recommendations that would ensure our justice system is capable of effectively responding to the threat posed by international criminal and terrorist networks, abuse and fraud using the internet and organised criminal gangs, and that communities are kept safe.”
I had discussions with the Minister in the past week with regard to this motion and I acknowledge that he says now that he is prepared to look at the possibility of having a review of the Act. That is very welcome and it is something we want to see happen.
Fair play. The reality is that in the 21st century, we are in this House discussing this Act which, as Deputy O'Callaghan said, dates back to 1939 and the Second World War. The parts of the Act we are dealing with today, and the sections within it, concern issues that existed in 1998 and, prior to that, in 1972, which was a different Ireland. The last review of this Act took place almost 19 years ago, in 2001 and it was published in 2002. That review of the Act looked at the circumstances of that time, which are entirely different from the circumstances of today, and it was accepted that it needed to be continued. That was around the same time as the 9-11 attacks took place. In an international context we can see the way in which that event would have influenced the people who examined the Act. Indeed, Mr. Justice Hederman produced a minority report in which he stated that it was not appropriate to continue to have a special criminal court, which was a non-jury court, particularly with the level of international criticism it was receiving. That is still the case and it is something we still need to examine because we come into this House every year to review this Act and it becomes a situation where what was meant to be temporary legislation has become permanent by renewing it every year. That is not appropriate, and I believe the Minister would acknowledge that it is not appropriate and that we need to have sound legislation that does not require renewal every year. The fact that we are here talking about this on the brink of a deadline, which is 12 midnight next Monday, highlights the absurdity of this situation. It is something we need to deal with and if a review can deal with that, it needs to deal with it in the most comprehensive manner possible.
The failures of all of the legislation and all the issues around this are very clear when we consider the case of the young man from Dundalk who was found dismembered in this city. That shows that legislation does not deliver the kind of solutions we want. It did not deliver the solutions for parts of this city which was ravaged by heroin in the 1980s. It did not deliver when we had members of the Gilligan gang and many other crime gangs running their operations across this city. It still does not deliver for much of what we see today in terms of the crime drug wars taking place and all the feuding that is happening. We have to get into the real world and recognise that legislation is certainly required but it is not the overall solution to all of that. We need to have effective resources in place and we need to have the Garda properly resourced to allow it do deal with these situations. We must also recognise that in the 21st century, much of what is happening now is controlled internationally; it is not something which only happens here at a local level.
I accept that the Minister has said that there will be a review. I have a number of questions in that regard which I hope he will come back to later. Will it be an independent review? Does he envisage that review being similar to the one done in 2001, whereby it would be headed by a Supreme Court judge? Is that the model he is looking at or will it be an alternative model spoken of by our colleague, Deputy McNamara, namely, that it would be completed by the Law Reform Commission? We need to come up with a solution to all of this and I invite the Minister to elaborate on how that will happen and the timescale for it. Deputy McNamara suggested it should be done by January. Is it possible to do it by January? It would be all the better if it can be done by January. It certainly needs to be done by Easter of next year because we do not want to be coming back into this House next year to review this Act again. We need to be able to move forward from this and recognise there are many problems with this legislation, as aspirated by people in the highest legal field. It has been condemned internationally. We need to examine all of that and bring the Act into the 21st century. If we can do that we are prepared to step back and allow that review to take place but we are certainly not prepared to have this continuous farce every year where it becomes a political football. We need to end that and bring the Act into the 21st century. I will hand over to my colleague.
Speaking to the amendment, it is difficult sometimes with criminal law to have a rational debate without having to listen to the manufactured outrage of some people trying to prove that they are tougher on crime than others.
I remember being on the joint policing committee in Kerry. No matter how many times the chief superintendent said that Kerry was the jewel in the crown, with much lower crime rates than everywhere else, it did not stop people from claiming otherwise. As Aneurin Bevan, MP, used to say, if one does not have a programme, a bogeyman will do. Unfortunately, we have heard some bogeymen raised today. It is the duty of An Garda Síochána to eliminate not only crime and the causes of crime, but also the fear of crime. Too often that is forgotten. We must not underestimate the importance of the lawful judgment of one's equals or the jury system in the administration of justice over the years. Juries evolved from Magna Carta, which first acknowledged the rights of the people of England as opposed to those of the Crown. This evolved into the jury system of today. It is a necessary safeguard or bulwark against what is sometimes perceived as State oppression. As I have seen over the years, if a jury feels that something about a prosecution case is not quite right, it is entitled to throw it out. I remember Judge O'Higgins, who used to operate on the south-western Circuit Court, taking off his peruke, throwing it over to the jury and telling its members that it was up to them to make the decision. It is not a decision that juries take lightly.
Military courts were introduced in Ireland in 1939 and expanded in controversial circumstances in 1972. The Government asserted, as it was required to do under the Constitution, that the ordinary courts were ineffective to secure the proper administration of justice. The bogeyman of jury intimidation was raised. Jury intimidation is the Irish criminal justice system's equivalent to weapons of mass destruction. It is very easy to raise the issue, but where is the evidence for it? Is it in any of these reports? Has it ever been mentioned? Most of the Limerick gangland cases and many of the Crumlin and Drimnagh gang cases were dealt with by juries. Is there any evidence of intimidation leading a jury to acquit somebody? I have not seen it. If there was any evidence of jury intimidation, it could form part of the proposed review, but there does not seem to be any.
In 2014, the Irish Human Rights and Equality Commission said there were no data to support the view that the ordinary courts were ineffective. In my view, to say so is to do a disservice to An Garda Síochána, the courts, the judges and the members of the public who sit on juries. Gardaí need resources rather than hyperbole. Over the years, there has been a creeping expansion of non-jury trials. The UN special rapporteur has said that the seepage of exceptional emergency measures into the ordinary had become the norm and that these practices had not served the rule of law or the protection of human rights. The UN Human Rights Committee previously stated that the continued existence of the Special Criminal Court was not justified. The Irish Council for Civil Liberties and Amnesty International have called on successive Governments to abolish it. As we have already heard, the committee under Mr. Justice Anthony Hederman found that a pressing case to abandon the jury trial had not been made.
Speaking from a local point of view, any review of the courts should review the many District Courts that have been closed over the years. This century in Kerry alone we have lost at least six local courts. Someone who receives a summons for an offence in Castlemaine has to go to all the way to Cahersiveen to go to court. I hope the Covid-19 crisis is not used by the Courts Service to close more courts or to further restrict facilities, particularly the courthouse in Tralee.
Turning to the contents of the motion, I note that many of the provisions of the legislation are not used. Section 6 of the Offences Against the State (Amendment) Act 1998 has been used twice in 20 years. Section 9 is routinely used in the ordinary courts and does nothing to prevent the intimidation of witnesses. That can happen anyway. It has nothing to do with whether a case takes place in the Special Criminal Court or in any other court.
Section 8 of the Criminal Justice (Amendment) Act 2009 states that the ordinary courts are inadequate to deal with certain provisions, including section 71A of the Criminal Justice Act 2006. That case is almost impossible to prove and is rarely used. I accept that section 72 of the 2006 Act is essential in the battle against organised crime, but the ordinary courts should be perfectly capable of dealing with it. The same is true for sections 73 and 76.
Regarding the review which I am glad to note the Minister has proposed, the Oireachtas deserves better than a six-page report which was sent the day before yesterday in the expectation that this legislation would be rubber-stamped. The report repeats what the Garda Commissioner has told the Minister. There is no assessment or critical oversight by an independent body. There is no chance to discuss the issue before the Committee on Justice and Equality.
This will have to change in any review, especially when such rights as the right to silence are concerned and when the powers to keep citizens detained in Garda stations for longer periods are being extended. The review will have to be comprehensive and we should at least make some effort to reduce the need for non-jury courts. We could consider, for example, screening juries and locating them in other rooms. We have neglected over the years to consider any types of intermediate measures whatsoever. Instead, we have gone for the nuclear option.
Under the current law, the Director of Public Prosecutions has total discretion. He or she should be required to provide objective reasons that a case is being sent to a non-jury court. We have a situation where two people could be charged with the same offence but one goes to the Special Criminal Court while the other is sent to the ordinary courts. The evidence for such decisions, rather than being a matter of speculation, should be provided to the defence and the court. In England, one has to make an application to a judge for a non-jury trial. That application may be made in private but it must be done before a High Court judge. We need something like that in this State. There must be a review of the legislation after all these years.
As Deputy Jim O'Callaghan noted earlier, the Offences against the State Act was created at a unique point in Irish history. It was introduced in response to a severe threat faced by the State and its provisions have been amended as that threat has evolved. We should welcome that this debate is taking place and that these provisions are subject to scrutiny. The provisions are exceptional and it is right that we examine whether they continue to be a necessary piece of our legal infrastructure in 2020.
Fortunately, the threat faced by the Irish State from paramilitaries has receded since the Good Friday Agreement, although the activities of certain dissident groups mean it has not entirely subsided. However, we are faced now with a serious and significant threat from criminal gangs, some of which are international in their reach. The past number of weeks have given us some unsettling reminders of the influence and threat many of these gangs still generate. Early in June, a garda in Dundalk had his home set on fire. The garda was at home with his pregnant wife and two young children at the time. This is the third incident of arson at a garda's home in Dundalk in the past three years. We have also seen an ongoing campaign of intimidation and harassment against members of Quinn Industrial Holdings, with arson attacks, assaults and criminal damage culminating in the brutal kidnapping and torture of Kevin Lunny. The four men arrested in connection with that particular case have been referred to the Special Criminal Court for trial. Two weeks ago, we saw a named individual being thanked for his role in arranging a major boxing match. One would have hoped that journalists abroad covering boxing might have invested some time looking at this individual's activities in Ireland and reflecting on their coverage of both the fight and the man.
It is through fear, intimidation and violence that criminal gangs seek to operate. They bring fear to their communities, to the young people they enlist as foot soldiers and to the people they keep in addiction to the drugs they sell. The level of fear created by these gangs is very real. Research from the CityWide Drugs Crisis Campaign in 2016 found that two thirds of people experiencing drug-related intimidation do not report those incidents to the Garda, mainly for fear of reprisal. The research also found that other than the individual in debt, the person most often the victim of intimidation is the debtor's mother.
Criminal gangs also use fear as a weapon in criminal trials. Research published earlier this year by the UCD school of law found that jury interference was regarded by judges as a known feature in a small number of Irish jury trials. While the numbers of trials impacted are small, it is nevertheless extremely significant that the reality of jury intimidation is now being regarded as a fact. In the same research, one judge recalled being told that the jury members were very worried and had requested that their names not be read out in court during the morning roll call for fear of retribution.
Separately from the UCD research, following the killing of a young man who broke up a fight in Dublin's south inner city, witnesses were told they would get a bullet in the head should they give evidence in court. Some years ago, a number of criminal trials related to gang activity in Limerick saw extensive witness and jury intimidation. The Garda Commissioner, Mr. Drew Harris, has said that we have a situation where organised crime groups and terrorist groups are in a position, through fear, to thwart jury-led trials. He has described the Special Criminal Court as "a vital function, a justice function, a criminal justice function, in how we protect the people of Ireland".
In renewing this legislation, we should also look at how much progress has been made in dismantling the criminal gangs and paramilitary organisations that make the Special Criminal Court necessary. First, we know that dissident republicans had threatened to take advantage of Brexit, whether it be a no-deal Brexit or otherwise, and, in particular, to target Border infrastructure.
Therefore, what assessment has been made of the current level of threat from dissidents, particularly given the ongoing lack of certainty around Brexit?
Second, the report given to the House by the Minister detailing the operation of section 8 of the Criminal Justice (Amendment) Act 2009 gives some details of the ongoing fight against gangland crime in Ireland. However, as I mentioned, we have seen that some of these gangs are international in their operation, with senior figures placing themselves in foreign jurisdictions outside the reach of An Garda Síochána. What work has been done by the Garda but also at an international level to ensure there are no safe havens for people leading criminal gangs which operate in this State?
We must absolutely acknowledge the very real civil liberties concerns expressed about the Special Criminal Court, and its processes should only be used in the most exceptional circumstances. I am cognisant of the criticisms of the Special Criminal Court made by Amnesty International, the Irish Council for Civil Liberties and the UN Human Rights Committee. We should consider what mechanisms are in place to ensure oversight of the Special Criminal Court and the wider offences against the State legislation. We should also assess how juries are protected in other jurisdictions to see what lessons we could learn and apply here.
A number of Deputies have brought forward useful amendments regarding reviewing this legislation over the course of the next year, and such a review is called for in the report of the Commission on the Future of Policing in Ireland. That report recommended the appointment of an independent examiner of terrorist and serious crime legislation. The programme for Government commits to the rapid implementation of the commission's report, and during the talks, the three parties discussed the offences against the State legislation and the potential for review of its provisions. I welcome the Minister's commitment today that the review of serious crime legislation recommended in the commission's report will be undertaken. We see this as an important step in modernising laws in this particular area. As such, with respect to the ongoing capacity of organised crime gangs to interfere with criminal trials via intimidation and considering the Minister's firm commitment to review this legislation this year as per the commission report, my party will be supporting this motion and the renewal of the legislation for a further year.
I thank Deputy O'Gorman for putting on the record some very important indisputable facts around a reality of threats that have been issued to juries in organised crime cases in recent years. That is one of the primary reasons this House needs to unite to express our support for resolutions put forward by the Minister today. I have no hesitation whatsoever in supporting the continuation of many of these very important measures in the fight against the scourge of organised crime in this country. That being said, I support the Minister's commitment and indeed the amendments tabled by colleagues, including Deputy McNamara, which seeks to review the efficacy of the legislation. That is important, is something that makes sense, and is as it should be. If I have one criticism of some aspects of the legislation, or the operation of it at least, it is that in my view, given my experience of being from and representing the Drogheda area, some of the provisions are not used enough to bring well-known gangsters before the courts and bring them to justice.
As the Minister is well aware, two gangs at war over the drugs trade in my home town have wreaked havoc over the past two or more years. The Garda, the Criminal Assets Bureau and other agencies have done really important work and have achieved some considerable success in recent months in tackling this gangland feud in my area. This is as a result of very detailed, painstaking hard work by local gardaí resourced by the Commissioner and the Minister's Department. In a week when the life of an exemplary member of the force, Detective Garda Colm Horkan, was taken, we must take time to remember and thank all gardaí across this country for the work they do on our behalf, keeping us and our communities safe, often under extremely difficult circumstances.
In Drogheda there are a relatively small number of people involved at the top of these criminal enterprises, but their actions and those of the gangs they control have damaged and destroyed countless lives.
We are all rightly horrified when young men such as Keane Mulready-Woods are barbarically murdered. Vicious events such as these capture the national and international headlines. What we do not read about too often is the impact that the operation of these gangs has on other victims, with arson attacks on homes, ongoing drug debt intimidation, and the intimidation of parents and grandparents. Defenceless and vulnerable young girls have been sickeningly abused and sexually exploited by low lifes to settle drug debts. That is the reality of this heinous trade and the unspeakable reality of life for many everyday victims of these disgusting gangs and the trade that they are in. Many of the young girls who are victims of this abuse are afraid to report it to An Garda Síochána because of the fear they have of further attacks, intimidation and of threats. This is the seedy, tragic underbelly and fallout from organised crime. None of this should be tolerated in any way or at any time in a society that calls itself just and decent.
The people ultimately responsible for these kinds of outrages and problems are those at the tops of these groups. The dogs on the street know who they are and it should be possible to haul them before the courts and deprive them of their liberty on the opinion evidence of a Garda chief superintendent, backed up by evidence to corroborate the fact that they are responsible for directing organised crime. We know that when these thugs are beaten, there is a community to repair. I appeal to the Minister finally to accept my long-standing appeal to establish a multi-agency task force backed up by a social investment plan to help to develop the parts of my home area that have been most affected by the scourge of gang crime. That way, we can replace fear and dread with hope.
On a separate but related matter, given the enormous resources and manpower involved in calling to the homes of those who are on bail to check that they are complying with provisions, I am baffled as to why the provisions of the Bail Act to allow for electronic monitoring, that is, tagging, have still not been commenced. Tagging measures to monitor the movements of those on bail were passed in section 11 of the Criminal Justice Act 2007. In 2020, when citizens in towns like my own have been subjected to all kinds of mayhem by thugs on bail, it is wrong that hard-working gardaí cannot seek such a condition in the courts and then implement it to monitor those who are on bail who are defendants in very serious criminal cases. The truth is that, from what we read and what we know, there appears to be an ongoing wrangle relating to the costs involved in introducing this kind of tagging and indeed who would monitor the system.
I appeal to the Minister to ensure that that element of the legislation is commenced, that electronic monitoring for those on bail and charged with serious criminal offences proceeds, and that we get on with that job once and for all. That is one of the best ways to support the ongoing work of An Garda Síochána. I know from experience in my own community the substantial resources of manpower, cash, overtime and so on go into monitoring these individuals, calling to their homes, checking that they are not breaking curfews and such. There is a better way to do this to free up the resources that we need to tackle these criminal gangs head on and bring them to justice.
The fact that this comes in front of us every year tells us that there is something different or abnormal about this legislation. We in the Social Democrats have tabled an amendment to recognise that this is more than just a criminal justice issue but a societal issue too. Our amendment reads:
- in the absence of any specific information being presented which points to the inadequacy of the ordinary courts in the administration of justice in Ireland with specific regard to offences listed under sections 6 to 9 and 12 of that Act, and acknowledging the views of multiple national and international human rights agencies that have raised serious concerns regarding the operation of the Special Criminal Court, resolves to proactively and progressively implement societal and justice reform measures which, within a specified period of time being no later than 2025, ensure that section 14 of that Act should not continue in operation after that date.
I recognise and acknowledge that the Minister has said that a review will take place. I appreciate that that will happen. The Minister might tell us what the timeframe for that is likely to be. We know that Article 38 of the Constitution provides the basis for special courts with non-jury trials, which can be established by the Dáil in situations where the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. The current iteration of the Special Criminal Court was formed in 1972 at the beginning of the Troubles. The court was installed as an emergency measure in response to the threat of paramilitary activity, which I accept has reduced but not gone away. It has now been in place for 48 years. It was needed 48 years ago and has been needed. I acknowledge that it is, unfortunately, still needed for gangland crime. Every year, we stand here and almost blindly accept the continuation of this regressive measure. To accept that is to accept that, as a society, we will always be in a position where things are so bad from a crime and justice perspective that we cannot do away with this court. I find it very difficult to accept that and think we are better than that. We should strive to be better than that. That is why we feel that we should have a timeline for this.
In addition to holding non-jury trials, the Special Criminal Court has a range of special powers, including the ability to accept belief evidence from a Garda chief superintendent. This allows the Garda's belief that an individual is a member of an illegal organisation to be used as evidence. A trial conducted in December 2019 marked the first occasion when belief evidence was deemed inadmissible. The court can also make inferences from silence, which means that a negative inference can be taken from an individual's silence when being questioned by gardaí. In most cases, that is probably a reasonable inference, but what if it is not? According to data analysis conducted by The Irish Times, 89% of trials in the Special Criminal Court have ended in convictions since 2016, compared with the Circuit Court which had a 48% conviction rate, and the Central Criminal Court, which maintained a 54% conviction rate. All of those convictions may well be safe and satisfactory. We have seen miscarriages of justice in other jurisdictions and how corrosive even a small number of such cases can be to a criminal justice system.
The Special Criminal Court has been criticised by the Irish Council for Civil Liberties, Amnesty International and the Irish Human Rights and Equality Commission for its procedures, which would not be permissible in ordinary courts. Among the criticisms are the removal of the right to a jury, the deviation from terrorist cases which it was originally formed to address, the admittance of belief evidence, and the fundamental special nature of the court. The Human Rights Committee has repeatedly identified the Special Criminal Court as being a violation of Ireland's legal obligations under international human rights treaties and has called for its abolition. In 2014, the committee expressed concern about the expansion of the remit of the Special Criminal Court to include organised crime. We have a major problem with gangland crime. I completely acknowledge that. It is corrosive in the communities that it is most evident in, but that is not unique to Ireland. We need to look at how other jurisdictions deal with this in the absence of a type of court similar to the Special Criminal Court. The UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Professor Fionnuala Ní Aoláin, criticised the Special Criminal Court, stating that counterterrorism laws which contravene human rights "can further entrench cycles of violence and can lead to radicalisation".
Last year, the Minister for Justice and Equality himself stated “We all look forward to the day when the Special Criminal Court is no longer needed, but regrettably we are not there yet." The plan of action to get there is the key issue but unless we make a start and strive to do that, where will we be?
I listened to Deputy Jim O'Callaghan and he spoke about young people in disadvantaged communities being targeted. That tells us that disadvantage in those communities also must be dealt with if we are dealing with this issue from a societal point of view. Something much wider than a review of the Special Criminal Court will be required to get us to a point where we no longer need that court. The challenge now is to equip our ordinary courts in a way that allows them to administer transparent justice safely and securely for all involved in the proceedings. That basic tenet of a civilised society should not be outside of our capabilities and that is why we have tabled this amendment to put a timeframe on that process.
This is not exclusively an issue concerning the courts. It is also about disadvantage and Ireland as a country. It is not just about the criminal justice system, because we have a tendency to create problems and work backwards towards resolving them. We need to be proactive and our policing needs to be proactive. We have seen situations mentioned in places such as in Drogheda, Limerick and the north inner city. I certainly have no problem with that kind of thuggery being dealt with and people prosecuted, convicted and jailed. We do, however, allow these situations to get to a point where they become very difficult to control.
When the issue in Drogheda emerged, people were saying the dogs in the street knew there was an issue. If that was the case, resourcing then becomes the issue regarding not allowing such a situation to get to the point where it becomes such a pivotal issue that it destroys the reputation of the community, the quality of life of the community and individual lives. It needs to be addressed at a much earlier stage and that is both a societal issue and a policing issue, in terms of how we deal with that issue from the perspective of a proactive type of policing rather than the reactive type of policing that happens when a situation gets to a point where it becomes very difficult to manage. Indeed, it puts the lives of those trying to enforce the law in greater danger than would otherwise be the case.
Our amendment seeks to put a timeframe in place to deal with this issue, because if we do not focus our attention right across the spectrum, we will be here in five years' time and ten years' time talking about the same things and being challenged by human rights organisations for which we have great respect, such as the United Nations. We need to pay attention to what those organisations are saying to us.
I start by saying that it is highly ironic that we are sitting here this morning to renew major powers for the State, on a day when tens of thousands of workers will wake up to the realisation that a learned judge of the High Court, who earns more than €220,000 per year, has decided in his wisdom that an electrician who may earn €45,000 per year is possibly overpaid, and has then struck down a sectoral employment order that will affect tens of thousands of workers already on low pay. This is a war on workers and it is time for workers to fight back. Importantly, last night's decision of the High Court must be appealed by the State and those pay rates must be defended.
The reason we are here, however, is for this annual event that is so important to the State, which a previous Deputy called a pantomime of sorts. The Minister makes the same speeches and Deputies do the same hand-wringing and the same solemn commitments are made. This legislation, however, like financial legislation passed in previous years, is based on a myth, namely, that we are in an emergency where there is a threat to the very State and its institutions. The usual vague warnings concern republican or possible jihadist terrorism and now it is the need to combat gangland crime. Those who support this legislation will accept that it is a draconian attack on fundamental rights, rights guaranteed by our Constitution, rights hard won and fought for by citizens, rights that set limits on the arbitrary powers of the State and its institutions. I want to be clear that we totally oppose this legislation. We do not buy into these arguments and they fall apart when examined.
Emergency power and legislation has seeped into the very fabric of this State and it is clear that the State does not want to let go of those. This Act takes away the right to trial by jury, which is one of the greatest rights won by democracies. It replaces normal rules on evidence and the right to remain silent. It allows for citizens to be jailed for years on the word of a senior Garda, based on no other evidence than his or her opinion. It bequeaths a frightening arbitrary power to the forces of the State that are, in reality, unaccountable and unelected.
I will deal briefly with what has replaced terrorism or jihadist threats as the main ideology and bogeyman to justify this legislation, and that is gangland crime. Like other Deputies, I know too well the consequences of gangland crime. It is communities such as those that I represent that feel its effects most strikingly. It is also communities such as the one I represent where young men are killed and do the killing. I have a simple question for the advocates of this Act. Has this legislation, and the emergency measures in it, succeeded in stopping gangland crime? Has it broken down the cartel of guns and the wealth that flows from that? Has it smashed the drugs trade, the rock on which these gangs are based? No, it has not.
If this Act is the answer to anything, then is the question not how do we stop gangland crime? If we want to pull the rug from under gangland criminals, then we should be seeking ways to remove their money and their wealth, which are based on the drugs trade. We would take truly radical measures, such as decriminalising drugs and investing heavily in the communities that breed the alienation and poverty that build the drugs trade. There is ample evidence, in the context of law and prosecution cases, that there are alternatives that this State has refused to look at for some reason. I refer to anonymising the jury service, using technology to hide the identities of jurors etc.. Instead, we invest in the powers of senior gardaí that can see someone jailed with no real evidence.
Last year, Ms Justice Tara Burns acquitted two men of IRA membership after the head of the Garda special detective unit refused to disclose belief evidence to the prosecution. This meant that gardaí were seeking a conviction without disclosing evidence to the defendants' legal team, the court or the DPP. Surely this is a warning that the evidence threshold we give in this legislation is too low and too dangerous and that the threat of a miscarriage of justice is very real. We empower the DPP to make decisions regarding who gets the constitutional right to a jury and who does not.
We have real emergencies in this State. We have a housing emergency and a health emergency, as well as utter failure in our system of childcare and in the care of the elderly. Do we, however, see the State or the main parties in this House rushing to pass emergency legislation and granting major powers to bodies to deal with those crises? No, we do not. We are totally opposed to this legislation; it does not work and it will not work in its intent.
It is incredible that after less than a two-hour debate this House will pass, by a big majority - a bigger majority, unfortunately, than in recent years - these massive restrictions on civil liberties and democratic rights. Those Deputies will do so against the advice of the UN Human Rights Committee, against the position of Amnesty International and the Irish Council on Civil Liberties and in most cases, without even reference to the real concerns about the restrictions on civil liberties contained within the continuation of this legislation.
The right to have a trial by jury is an essential democratic right. Mary Robinson made the point in 1985 that "To charge persons in the Special Criminal Court that are charged with purely criminal offences is to abolish trial by jury by the back door." This is an affront to basic civil liberties and human rights.
The UN Human Rights Council argued against the court in 1993, stating it was not justified. In 2000, the council stated that steps should be taken to end the jurisdiction of the Special Criminal Court. Amnesty International and the Irish Council for Civil Liberties have also made arguments that continue to hold weight today.
Deputy Bríd Smith referred to the fact that the subjective opinion of a chief superintendent of the Garda is treated as evidence in and of itself. That is an affront to civil liberties. It is not as if we do not have evidence in the history of this country of misbehaviour of gardaí, including in court cases. We saw that the disclosures tribunal found a campaign of calumny against former Garda Sergeant Maurice McCabe. We witnessed the Morris tribunal. I have personal, albeit much more minor, experience of testimony given by gardaí at trial. One does not even have a right to remain silent at the Special Criminal Court. It is not credible in the slightest to claim that the trials before that court are fair. It is the equivalent of internment without trial.
As is usually the case with repressive legislation, whether the Patriot Act in the USA or other examples from around the world, it starts in emergencies. Restrictions on civil liberties are pushed through in the context of a perceived or actual emergency. In the case of the Special Criminal Court, it was supposedly to deal with the threat of the Provisional IRA. The emergency, necessity and reasons that are given to justify the legislation then change, the repression stays on the Statute Book and is able to be used by the State.
It is unfortunate that Sinn Féin will vote for Diplock courts. This is an historic moment and the price of entry that those on the other side of the Chamber charge to be considered for coalition. That is what the general election was about. The Green Party has similarly never voted for this legislation before but will do so now. It is a big mistake to concede to this campaign of pressure. I accept that pressure has been put on but it is a mistake to yield to it. If one concedes to this attack on civil liberties because it comes with a report, one will be under massive pressure to concede again in a year's time. It is a basic principle by which people should stand. People have the right to a trial by jury and it should not be restricted.
The central justification for this legislation is jury intimidation. The Irish Council for Civil Liberties has given a number of different examples of how this issue, to the extent it is a real issue, can be dealt with. Examples include anonymous juries, screening juries from public view, special protection for juries during trials and video links for juries at different locations. Some of those are not new ideas in Irish law. The Juries Act 1929, which was not commenced and has now been repealed, had some of these protections and others. The point has also been made that witnesses must give evidence during trials in the Special Criminal Court and are therefore also possible targets of intimidation. The court fails even in that regard.
The Special Criminal Court was never needed. We should not accept these restrictions of civil liberties now or in the future. This House cannot claim ignorance of the undemocratic and authoritarian nature of this legislation or pretend that alternatives to it do not exist. There is no excuse or justification to vote for the continuation of this restriction on civil liberties.
This debate was to take place last week and, in the interim, Detective Garda Colm Horkan lost his life. Before that young man lost his life on the streets of Castlerea, I had already deemed it necessary to state that the men and women of An Garda Síochána in every corner of our country risk their lives every time they go to do their work. Sadly, the untimely passing of Detective Garda Horkan has driven that fact home to all of us. He was brave and courageous in fulfilling the duties of the job he loved in a normally peaceful rural Irish town. He did not think he was risking his life on that fateful final call-out. He did not think that his young life was about to end when he responded to that call but, unfortunately, it did. A vibrant and dedicated garda has departed this world.
There are gardaí in every village, town and city in Ireland who respond to similar calls on their own every day and night of every week. In paying tribute to Detective Garda Horkan, we must also pay tribute to each of them. We must thank them for what they do in the course of their work and the risks they take. We must ensure they are protected with sufficient manpower and resources. We must do everything possible to prevent a similar situation from ever occurring again. In honouring the memory of Detective Garda Horkan, we must protect his colleagues. May his soul rest in peace.
A glance through any newspaper, national or local, tells us of the stark reality of crime in every corner of every village, town and city in our country. This does not make Ireland unique but it makes it a country where preventing crime and apprehending criminals are of growing importance. It underpins the need to protect and enhance every level of our justice system to ensure our citizens are protected and punishment acts, and is seen to act, as a real deterrent to criminals.
Bringing those involved in organised crime to justice is the challenge faced by our gardaí every day. Ensuring that justice is done is down to our court system. The growing prevalence of gangland crime and deadly feuds is frightening. Reports of the activities of those involved are splashed across our media and details of the horrific acts carried out make for spine-chilling reading. These activities are not confined to our large cities, as some may choose to believe. Crime at this level is becoming rampant in rural centres across the country and once peaceful towns are gripped by fear as they live under the shadow of rival gangs. These gangs, predominantly motivated by lucrative drug dealing, are known to suck young people into their webs of crime and, once they have exploited them to the limit of their use, they discard them to the wolves.
This underworld of serious and deadly crime is relatively new to Ireland. Prior to the 1970s and 1980s, when illegal drug use crept into Ireland, crime at this level only existed on television screens and not on the streets of our cities and towns. It is now a fact of life with so-called career criminals amassing considerable wealth.
Over the years, the need for the continuation of the Special Criminal Court has been hotly debated. Since the establishment of the court, its purpose has changed, just as everyday life in Ireland has changed. While the caseload of the court was dominated by paramilitary and subversive matters throughout much of its existence, that has changed significantly and this change will undoubtedly gather pace in the years to come.
The Special Criminal Court is charged with dealing with organised crime. It deals with career criminals, gangland leaders and deadly, feuding provokers. The trail of evidence that leads to bringing these criminal instigators to justice can be vast. These can be lengthy trials with gruesome and intricate webs of evidence involving the testimony of highly dangerous individuals. The nature of gangland crime today takes these unique cases out of the realm of the Central Criminal Court to secure the effective administration of justice and preservation of public peace and order. These cases, due to their growing frequency and duration, would completely clog up the regular systems. The escalation in the incidence and seriousness of organised crime across our country demands that the Special Criminal Court remains in existence in its present form to ensure that these cases are heard in as timely a manner as possible. The non-jury format is as necessary for these organised crime cases as it was for cases in the past. The protection of members of the public from retaliation is paramount.
While some commentators have stated that gangland crime in Ireland is continuing to rise despite the existence of the Special Criminal Court, one must consider what that rise would be if this court ceased to exist. The court has a very high conviction rate which is widely known by the criminal fraternity.
There will always be the possibility of a terrorist attack on our country, as has been proven by the events of recent years in countries across the world. However, the threat of continued organised crime in Ireland is not just a possibility, but a certainty. Not only that, but statistics indicate that incidents of this kind are growing in ferocity and number. The increasingly barbaric acts that have been carried out prove that point.
The Special Criminal Court must maintain its place in our judicial system. In fact, I believe it must be given a permanent place in our system to ensure the continuation of its necessary role going forward.
To return to the point I made about the role of the Garda in bringing those involved in organised crime to justice, I refer to the provision of adequate funding for law enforcement in towns and villages across rural Ireland.
A survey of the Garda station directory showed that almost 60% of rural stations are open for three hours or less from Monday to Friday, while many are closed at the weekend. That is if a station is opened at all. Towns, some with a population in excess of 6,000 people, are stated in this report to have 24-hour Garda stations while the reality is that one garda mans the phones overnight and if an incident occurs, that garda must contact the nearest fully operational station to request a patrol car to be sent to the scene. In my constituency of Tipperary, that patrol car may have to travel 40 km or 50 km to reach the incident in question. How can gardaí be expected to protect the public, maintain law and order and bring the perpetrators of crime to justice unless they have the manpower, means and facilities to do so? Most importantly, no garda should be expected to attend the scene of an accident alone. There should always be at least two gardaí available to attend a call-out as the most basic incident can escalate rapidly. Gardaí are at the coalface of crime in this country. They apprehend individuals who have no regard for life or limb or who, in many cases, are distorted by substance abuse and not in possession of their full senses. Gardaí are the mainstay of our justice system and without their dedication, bravery and commitment, criminals at all levels could and would run amok. Gardaí are the heroes of the system. We must ensure that we provide them with the means to carry out their vital work as safely as possible. If a valid argument can be made for the permanent continuation of the Special Criminal Court, it follows that an equally valid argument can be made to increase the numbers of gardaí, who are the first point of contact for criminals, and to provide them with the resources they need. If a criminal, whether it be an opportunist or a gangland leader, is not apprehended, then the subsequent stages of the judicial system cease to function.
I put on record my appreciation of the work of the Minister for Justice and Equality, Deputy Flanagan, during his term. I acknowledge his accessibility and courtesy to all Members of this House. He dealt with a wide range of complex and sensitive issues. He showed a solid command of his brief. This House and the people of Ireland owe him a debt of gratitude for his service.
I am sharing time with Deputy Mattie McGrath. I offer my deepest sympathy to the family of Detective Garda Colm Horkan, who gave his life for the safety of others. May he rest in peace.
Section 8 of the Criminal Justice (Amendment) Act of 2009 has given us legislation on tackling organised crime throughout Ireland. Even through a pandemic, we have seen cases of individuals and gangs who continued to wreak havoc on our society. I can only commend the Garda on the unlimited sacrifice its members provide to ensure we live in a safe and peaceful society. Some 139 Garda stations were closed between 2012 and 2013. In Limerick, we only have three full-time Garda stations in the county. Other stations only open for one or two hours a day, if they are opened at all. We need gardaí on the beat on a regular basis, particularly in areas where crime rates are high. The number of gardaí being trained and deployed into the areas does not meet our needs. When the pandemic hit, the Garda Síochána had to hire vehicles to cover the areas. In all other industries, whether it be in construction, retail or whatever, health and safety comes into everyone's business. We can see that with the opening of shops at the moment. However, we have seen how gardaí are sent by themselves to crimes or altercations in houses. In all the local authorities' criteria for work practice, nobody goes out to a job alone. There must be two or three people, depending on the work.
The biggest issue here is the drug trade. Drug dealers are targeting age groups over which we have no control. Families contact me regularly because their children are being enticed into trading in drugs, anti-social behaviour and gangland feuds. For teenagers, there is no law in place to protect them. Something has to change. We do not have the Garda numbers we need. As much as we have been asking for gardaí, we do not have them. We do not have the equipment to deal with gangland crime and anti-social behaviour. Statistics show that criminal gangs are moving into rural areas where it is harder to detect them because they know we do not have Garda manpower. Technology was introduced but, yet again, laws have been put in place to stop the videoing of different crimes. The technology is there to help us. Cameras have been put up in various towns but if a garda wants to access the footage, he or she has to leave the barracks and go to a place to sit down for hours watching a video. If something is happening on a road and the video technology is linked to a unit and licensed to a garda, if he or she turns it on, it is licensed to him or her only. Within a split second, the garda can see if there is a robbery taking place and if a car travels through a town, the number is recognised and linked to all these units. The technology is there but the laws are not there to change this. We cannot police rural Ireland with the number of gardaí we are being given because of the square miles involved. If the Government introduced laws to allow the technology to be used and licensed it to individual gardaí in Garda units so that they are accountable, we might be able to combat crime in rural Ireland.
I was delighted to be able to speak earlier during the expressions of sympathy for Detective Garda Horkan. Like the late Garda Detective Horkan, many gardaí are left to work alone, as Deputies Lowry and O'Donoghue said.
I support the proposed measures and Deputy McNamara's amendment providing for a proper and decent independent review. All legislation needs a timely review.
The Minister mentioned the Omagh bombing, a horrific tragedy. That tragedy could have been averted, as the Minister knows. A former Taoiseach and leader of his party promised Michael Gallagher at a Fine Gael Ard-Fheis at which I am sure the Minister was a cheerleader that he would get justice under a Fine Gael Government. Has the Minister met Mr. Gallagher? The Taoiseach refused to meet him when he became Taoiseach. The anniversary of that horrific event is in August. I pay tribute to the deceased Garda John White from Cappa in Bansha outside Cahir, County Tipperary, who died a couple of weeks ago. He made gallant efforts to stop that bomb and put his life on the line. He did not get a lot of support. He could have saved 29 lives. Many lives had been spared in previous events in which he intervened. The Minister may not be returning but I wish him well in whatever he is doing. That needs to be recognised. A lot of things that should not be happening are happening.
While we have the threat from dissidents all the time, gangland crime is rampant. I look at Drogheda, Longford and other places. I have spoken here to the Minister about Clonmel. We expect gardaí to work in a horrible, Dickensian, dirty, filthy, at times rat-infested Garda stations. The Minister can frown all he likes but he has seen this, as have other Ministers.
The Taoiseach has seen it. It is unfit for habitation or work. These are members we depend on. I stood proudly outside it last Sunday at noon with Superintendent Leahy for a minutes silence for Detective Horkan. They need the tools of the trade.
We need the legislation, the numbers of members and resources to deal with the gangs in my county. There is a drug trade, and everything else that goes on, day and night. I introduced legislation here about scrap and precious metals. We know who is doing it, the dogs on the street know, but we cannot mention it; it is unspeakable. There are children of six and seven years used as mules and movers of drugs. Parents, grandparents and great-grandparents who are terrorised and intimidated visit my office regularly. It is not good enough. I salute the Garda for what it does with the numbers it has in trying to deal with it but when are we going to cop on here and decide that everybody is subject to the same law, regardless of ethnicity? We are all Irish citizens, our newcomers as well, and everybody has to be entitled to the same law but no, we turn a blind eye to it. It will come back and bite us - we all know where - and it will not take long. Houses are being burned in Clonmel because families do not want other families getting it. I led a deputation to the county council with former Deputy Healy and others about a house in Clonmel. They were all questioned. I was not, thankfully, as I was not going to co-operate. A public representative bringing in ordinary decent people and I always co-operate. Four gardaí investigated it but this marauding intimidation of a community goes on and on. Tipperary is now losing its chief superintendent, who is going to Clare. The Minister says there is nothing political about it but I wonder. That is a downgrading.
I support Chief Superintendent Smart and thank him, as well as the superintendents and those in other ranks in the district. However, we simply do not have enough. I again appeal to the Minister to retain the Garda community units that he reinstated, albeit in leased cars. They are a presence and have proved their worth no end. They have done everything from taking beehives out of roofs to delivering babies and looking after all sorts of issues for ordinary decent people.
I also wish the best to Superintendent Pat O'Connor in Tipperary district, who is retiring this week. I thank him for his long and distinguished career. I also wish well a garda in my own area who was the community alert liaison officer who was promoted to sergeant recently. He is battling illness and I wish him well in that. He has been the essence of a community garda, of the people and with the people. If a garda stands with the people in their kitchens, they will support him or her. No police force can work without the support of the public but when the public is intimidated by gangs, there is a very serious situation. These powers and laws should be used to deal with these courts because members of the Garda are being intimidated and threatened where they live. It is very serious. I welcome the opportunity to support this motion and I will support Deputy McNamara's amendment.
We will have five minutes each. This motion comes around every year, as we are well aware. I have probably spoken on it every year I have been a Member. In most years it is a formality, in that the Government puts it forward, we all get up and say our bit and the Government votes it through. That goes against the purpose of the motion being tabled here. It is supposedly so the Government can have a review of legislation and have it democratically accounted for and proper consideration given to what is required. This year is somewhat different, as we are in the throes of Government formation and it is coming down to the wire. It has focused many parties on what will happen. Some parties are looking at how acceptable they might be in government in future and we have seen amendments to the motion before us. The basic question before us is whether the legislation is correct and whether it should be passed. If it was the same last year, the year before and all the years before that, this year should be no different.
I have heard Members tell the House about terrible crimes that go on across the country and the organised crime which operates here. It is scary and it would be difficult for anyone living in the community who is affected by it but in reality, these crimes occur while this legislation is in place. The Special Criminal Court has been in place since 1972 and goes back to 1939 or 1940, as has been mentioned previously. The Criminal Justice (Amendment) Act has been in place since 2009. We are told that all these powers are vital in our armoury to fight against terrorism and organised crime, but this is all still happening and they make no difference. The Minister has not presented anything to show that it is making a difference, and that is our problem. We need to look at something different because we are undermining the civil rights of all citizens by having this legislation in place. The Irish Human Rights Commission has stated the definition of terrorist activity is "impermissibly wide and runs the risk of categorising groups opposing dictatorial or oppressive regimes, anti-globalisation, anti-war or environmental protestors, or even militant trade unionists, as terrorists". That is the reality. It went on to list its main areas of concern, including that the disparity between those arrested and those prosecuted under the legislation remains unexplained, which is true. I do not know how many times I have heard on the news of people being arrested under section 30 of the Offences Against the State Act for ordinary crimes that should never be considered. Not a question is asked about it and no one bats an eyelid. The commission asked the State to consider narrowing the scope of the definition of "terrorist activities" and noted it was "concerned at the continuing existence of the Special Criminal Court, the routine nature of the annual parliamentary resolutions authorising the continuance of its operation and, in particular, the extension of the Court’s remit to include offences outside the scope of 'terrorist activities'". While the commission had outlined its concerns, it was completely ignored.
It is also important to put the comments of UN special rapporteur on the record. She has stated "the island of Ireland, more so than many parts of the world has experienced emergency law, emergency practice and the seepage of the exceptional into the ordinary in ways that has not served the rule of law nor the protection of human rights well". She also stated there had been “consistent and trenchant concerns about the use of the Special Criminal Court and the Offences Against the State Act as a 'work-around' the ordinary protection of the law”. She went on to state "the poor governance that accompanies emergencies contributes to the conditions conducive to terrorism itself”. The point is that these provisions actually drive that on, which is probably true. We are doing nothing to deal with the causes of crime and the actions that take place by having these courts in place. We should look at how the law can be used to make communities safer and at wider community needs, rather than only the criminal justice element. Therefore we should oppose this.
I will move the amendment. I would like to get on to the substance of it.
I welcome that the Minister will carry out a review but what is a review? If it is something that his Department will examine internally, I regret that I cannot have much confidence in that. We know what the Department thinks is necessary because the Minister put the motion before us, as he did last year and the year before that. What will the review consist of and who will carry it out? We have had reviews. The Hederman committee was established in 1999 and spent three years on this issues. A wide variety of stakeholders was invited to participate and it reported in 2002. Deputy Jim O'Callaghan stated earlier that it recommended that the courts continue as is. That is not correct, in my view. In 2002 the committee recommended to the Government that there should not be a category of offences that are automatically heard before the Special Criminal Court, and that this exceptional measure should be applied on a case-by-case basis.
The UN human rights committee has criticised Ireland for exactly the same thing. Deputy O’Callaghan alluded to the Hederman committee. There was also the fact that Mr. Justice Hederman himself - he was in fact a retired Supreme Court judge and a former Attorney General in former Taoiseach Jack Lynch’s Government and was not some sort of subversive renegade - along with Professors Dermot Walsh and William Binchy recommended that it be abolished entirely. They did not recommend that it be maintained as is. Ireland has been repeatedly criticised by domestic actors, the Irish Council for Civil Liberties, ICCL, the Irish Human Rights and Equality Commission, and its predecessor led by the Minister’s former colleague and Senator, Maurice Manning, also criticised it. How much criticism do we need before we look seriously at this? A desktop review in the Minister’s Department is not something that I would have confidence in to deliver anything. I welcome the fact that the Minister has moved a small bit on this but we need more.
I will highlight a couple of issues. The Kavanagh case was taken where Ireland has signed up to the optional protocol in the International Covenant on Civil and Political Rights, ICCPR, which enables a person who believes that their humans rights have been violated to make a complaint to the committee which could determine this matter. Mr. Kavanagh was successful because the committee found that it could see no lawful basis in accordance with Ireland’s international legal commitments for the fact that his case was heard in the manner it was. He was charged with scheduled offences and non-scheduled offences but the committee could see no basis that his case was heard by a non-jury trial. He went to the Supreme Court, which determined that Ireland’s international commitments are not binding on us domestically but binding on us internationally.
This year, in the teeth of a huge pandemic, when this country was stretched economically, fiscally and in terms of human resources, a great amount of energy was put towards getting onto the UN Security Council. I congratulate the Government, of which the Minister is a Member, for having successfully secured a seat on the Security Council. If the UN does not matter why did we bother? If the UN does matter are we going to listen to the UN, to the human rights committee and to the special rapporteurs? This occurs in every periodic report, it is not just a footnote in one, where we are criticised for this. The Hederman committee, the Irish Human Rights and Equality Committee and the ICCL all criticised it. Everybody, bar at the Minister’s own Department, criticises it. Who is going to review this?
What I am proposing is not revolutionary; we continue as is for seven months but after six months we ask for a report. Under the 1975 Act that established the Law Reform Commission, the Attorney General can request that a special report be done. It is not too much to ask that the Law Reform Commission at this stage look at the issue. Can one find a more impartial, neutral, learned body than the Law Reform Commission to do this?
If the Minister is going to suggest that it be another retired High Court or Supreme Court judge, that is great, but we have already had that. They have already made their recommendations and these have been ignored. I ask that the Minister announces something meaningful and not just that somebody, somewhere will review or take a look at it. That is not good enough any more, especially now we are on the UN Security Council. I agree with Deputy Pa Daly who discussed this, and I am conscious about not going over my time-----
I have already. Deputy Pa Daly probably has more experience of the criminal courts than everyone else in this Chamber put together and he made the point that many of the gangland trials were carried out in normal courts and that much of what affects trials is not neutered by having it in the Special Criminal Court because there still are witnesses and there is no more witness protection in the Special Criminal Court than there is in the Circuit Criminal Court in Limerick, unfortunately. This is a reality of life and if we are serious about protecting witnesses and juries there are actions-----
I thank the Ceann Comhairle and wish to acknowledge the importance of the debate here in this House and for the time given to it to consider these very important matters. I want to thank every one of the Deputies who made a contribution, particularly Deputies O’Callaghan, O’Gorman and Lowry who spoke in favour of the motions and indeed other Deputies who made some very important and constructive points which have informed the debate.
On the provisions of the 1998 Act, the stark reality is that there remains a substantial threat from terrorist activity and in particular from dissident republican paramilitary groups. These activities and this behaviour does warrant the continuance in force of the relevant provisions. As the debate has shown here over the past almost two hours there is no question of any annual blind acceptance of these provisions or annual rubberstamping. What we had here was a real and serious debate which was based on two reports that have been presented before the House which show the use of these legislative provisions over the past 12 months. Membership of an unlawful organisation inferences were made on 11 occasions; the matter of notification of witnesses occurred on four occasions; possession of articles for a purpose connected with certain offences arose on ten occasions; withholding information arose on seven occasions; the number of cases where extensions were applied for occurred on six occasions and where extensions were granted occurred on six occasions; and the number of cases in which convictions resulted and where charges resulted were four. Under the section 14 covering scheduled offences, this occurred on 18 occasions. This is not a rubber stamp but careful and due consideration. Not only is the State entitled to but it is obliged to take appropriate legislative measures in order to protect itself and its people. Indeed, this legislation, as part of the main body of the State’s laws to counter subversive activity and terrorism, remains an essential tool in tackling terrorist groups and activity on our island.
I reject those who have said that these legislative provisions have made no difference. I would go further to say that these provisions are making a big difference as the State responds to terror and gangland activity. The evidence is in the courts and in these reports to show that the renewal of these provisions sends a loud and clear message that the State will not yield to those who oppose democracy and continuously oppose the rule of law. We remain firm in our resolve.
I acknowledge what Deputies Kenny, O’Gorman and others have said about the review. I restate the fact that there will be a review and am more than looking at the possibility of one. The fine details of the review can be worked out by the incoming Government. I ask the House to appreciate that a review of this nature will require a significant body of work and it will be independent and comprehensive. The arrangements are currently being scoped. The work is being done in accordance with the Commission on the Future of Policing in Ireland and its report which continues to chart an avenue for the most comprehensive and radical police reform that the country has ever seen. I hope that this work will continue assuming that we have a permanent Government next week and that we can revert to the appropriate legislative programme that is necessary in order to ensure that we as a Dáil and parliament are responding. Everybody in this House knows from our experience the devastation that organised crime is inflicting on individuals and their communities. I agree with Deputy Nash and the case he makes again for Drogheda is something I believe will form a priority in the work over coming weeks.
In conclusion, I acknowledge the quote of Deputy Catherine Murphy when she quotes me from last year. I agree that I look forward to the day when we will not have a need for a special criminal court but we are not there yet. These renewals mark a significant contribution in the overall effort to tackle organised crime.
I am grateful for the Deputies' responses. Once again, I commend the motions to the House.
In the context of the Minister stating that he is committed to a full and comprehensive review and that that will be an independent review, I have come to the conclusion that we will withdraw the amendment.
That said, I am disappointed that the Minister has not stated the timeline in respect of that. It needs to happen before we come back this time next year. We need to be in a position where we are not coming here on an annual basis to renew this type of legislation and I think the Minister would accept that.
My view of this is clear. If there is a comprehensive independent review, it will come to the conclusion, as the previous one did, and in the context of the times we live in today, that much of this legislation is unnecessary and needs to be put to bed.
I move amendment No. 1:
To delete all words after “Dáil Éireann” and substitute the following: “— resolves that sections 2 to 4, 6 to 12 and 17 of the Offences against the State(Amendment) Act 1998 (No. 39 of 1998) shall continue in operation for the period beginning on 30th June, 2020 and ending on 29th June, 2021; and
— in the absence of any specific information being presented which points to the inadequacy of the ordinary courts in the administration of justice in Ireland with specific regard to offences listed under sections 6 to 9 and 12 of that Act, and acknowledging the views of multiple national and international human rights agencies that have raised serious concerns regarding the operation of the Special Criminal Court, resolves to proactively and progressively implement societal and justice reform measures which, within a specified period of time being no later than 2025, ensure that section 14 of that Act should not continue in operation after that date.”
I wish to press the amendment.
Cathal Berry, Peter Burke, Thomas Byrne, Jack Chambers, Cormac Devlin, Alan Dillon, Stephen Donnelly, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Charles Flanagan, Noel Grealish, Seán Haughey, Emer Higgins, Michael Lowry, Josepha Madigan, Micheál Martin, Paul McAuliffe, Mattie McGrath, Michael Moynihan, Jim O'Callaghan, Kieran O'Donnell, Richard O'Donoghue, Robert Troy.
I move amendment No. 2:
To delete the words "June, 2021" and substitute the following: "January, 2021, before which date a report of the Law Reform Commission into the Offences against the State Acts, 1939 to 1998 shall be requested by the Attorney General to be completed no later than the 31st December, 2020. The Attorney General shall, as soon as may be, send a copy of the report to the Minister for Justice and Equality, who shall submit it to the Government and copies of the report shall, as soon as may be, be laid before both Houses of the Oireachtas."
Cathal Berry, Peter Burke, Thomas Byrne, Jack Chambers, Cormac Devlin, Alan Dillon, Stephen Donnelly, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Charles Flanagan, Noel Grealish, Seán Haughey, Emer Higgins, Michael Lowry, Josepha Madigan, Micheál Martin, Paul McAuliffe, Michael Moynihan, Jim O'Callaghan, Kieran O'Donnell, Robert Troy.
Cathal Berry, Peter Burke, Thomas Byrne, Jack Chambers, Cormac Devlin, Alan Dillon, Stephen Donnelly, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Charles Flanagan, Noel Grealish, Seán Haughey, Emer Higgins, Brendan Howlin, Michael Lowry, Josepha Madigan, Micheál Martin, Paul McAuliffe, Mattie McGrath, Michael Moynihan, Catherine Murphy, Gerald Nash, Malcolm Noonan, Cian O'Callaghan, Jim O'Callaghan, Kieran O'Donnell, Richard O'Donoghue, Roderic O'Gorman, Eamon Ryan, Robert Troy.
That Dáil Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period beginning on 30th June, 2020 and ending on 29th June, 2021.
I move amendment No. 1:
To delete the words “June, 2021” and substitute the following:
“January, 2021, before which date a report of the Law Reform Commission into the Criminal Justice (Amendment) Act 2009 shall be requested by the Attorney General to be completed no later than the 31st December, 2020. The Attorney General shall, as soon as may be, send a copy of the report to the Minister for Justice and Equality, who shall submit it to the Government and copies of the report shall, as soon as may be, be laid before both Houses of the Oireachtas.”
Cathal Berry, Peter Burke, Thomas Byrne, Jack Chambers, Cormac Devlin, Alan Dillon, Stephen Donnelly, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Charles Flanagan, Noel Grealish, Seán Haughey, Emer Higgins, Brendan Howlin, Michael Lowry, Josepha Madigan, Micheál Martin, Paul McAuliffe, Mattie McGrath, Michael Moynihan, Catherine Murphy, Gerald Nash, Malcolm Noonan, Cian O'Callaghan, Jim O'Callaghan, Kieran O'Donnell, Richard O'Donoghue, Roderic O'Gorman, Eamon Ryan, Robert Troy.