Brian Lenihan Jnr (Dublin West, Fianna Fail)

This is a technical amendment to section 38 of the Offences against the State Act 1939. It adds a new subsection (4) to section 38 of the 1939 Act, providing that, for the purposes of the Act, a Special Criminal Court is in existence if it has been established under that section and has at the relevant time not fewer than three members appointed under section 39.

Section 49 of the 1939 Act provides that if two or more Special Criminal Courts are in existence at the time of sending forward a person for trial, the Director of Public Prosecutions must apply to try the case in the court that he selects. The Government established a second Special Criminal Court last December, but the judges have not yet been assigned to it. As such, the court is not able to hear cases. To ensure absolute clarity regarding the operation of this provision, the proposed amendment makes it clear that a court established under the Act is in existence only if it has not fewer than three members appointed to it. In other words, it is only from the time that the second court has at least three judges that the director must make the necessary application under section 49. This amendment is being tabled as a precautionary measure.