Conor Lenihan (Dublin South West, Fianna Fail)

The resolution before the House seeks approval for the continuance in operation of those sections of the Offences against the State (Amendment) Act 1998 which would otherwise cease to be in operation after 30 June next. This legislation was enacted in the aftermath of the atrocity in Omagh, the tenth anniversary of which is fast approaching. This was a dreadful act which claimed the lives of 29 innocent people and injured more than 200 others. The attack at Omagh was designed for no other purpose than to undermine the fledgling peace process. It failed completely in that aim. Ten years later, we can reflect on the great strides that have been made in normalising politics in Northern Ireland, the successful partnership in the devolved Executive and an ever closer North-South relationship.

The circumstances which surrounded the enactment of the 1998 Act were exceptional. It was thought prudent, therefore, that the continued necessity for certain sections should be reviewed at intervals by the Oireachtas. It falls to this House and to the Dáil to decide whether the present circumstances justify their continued operation. Unfortunately, I must contend that the circumstances are not such as to allow us to dispense with these measures.

To support the consideration by the Seanad of the necessity for the renewal of the relevant sections of the Act, the Minister for Justice, Equality and Law Reform is required to lay a report on their operation before both Houses prior to the resolution being moved. This report, which was laid before the House on 13 June 2008, covers the period since the last such report was prepared in April 2007. The clear lesson to be drawn from the report is that the relevant sections of the 1998 Act have been of significant value to the Garda in tackling the threat from terrorism. The inevitable conclusion is that they should remain in operation for a further 12 months. The Garda authorities consider that the Act continues to be a vital legislative tool in the continuing fight against terrorism.

Although progress has been made within Northern Ireland and the Provisional IRA is committed to following the political path, there remains a real and ongoing threat from a variety of dissident republican groups. We should not be complacent or presume the success of the peace process has somehow removed this threat. There have been several attempts recently to kill members of the PSNI, including two shootings of off-duty officers in November last year and a car bomb attack in Tyrone last month. Last weekend, several PSNI officers had a lucky escape when a landmine, placed by the Continuity IRA, failed to explode fully.

It is not surprising, therefore, that the 18th report of the Independent Monitoring Commission, published on 1 May 2008, makes clear that the Real IRA, the Continuity IRA, the group styling itself "Óglaigh na hÉireann" and the INLA all remain committed to violent paramilitary action in pursuit of their ends. These groups continue to seek to acquire and manufacture weapons, to plant explosive devices and to target members of the security forces.

Lest we should assume these groups are involved in some noble cause for Irish freedom, let us not forget the terrible acts they have perpetrated, including Omagh, which gave rise to the necessity for this legislation. Let us not forget either the clear evidence, as recorded by the Independent Monitoring Commission, of the ongoing involvement of these organisations in other serious criminal activities, including extortion, drug dealing and brothel keeping. These criminal activities are carried out as much for personal gain and to support particular individual lifestyles. There is also speculation that the terrorist expertise of these groups has been sought in some cases by organised criminal gangs. I am assured the Garda Síochána will continue actively to counter such attempts.

These anti-democratic groups remain active and determined in their opposition to peace and the rule of law. The importance of these legislative provisions in thwarting their activities should not be underestimated. However, the response to the threat posed by terrorism, or any form of crime, should be proportionate to the aim sought to be achieved. Part of this relates to the necessity to ensure continued respect for fundamental human rights. In enforcing the law, the Garda must be conscious of this requirement. The functions of the Garda, as set out in the Garda Síochána Act 2005, include the protection of life and property and the vindication of the human rights of each individual. In recognition of this, the Act also provides that a newly appointed member must make a declaration to discharge his or her duties with regard to human rights. The agreed programme for Government contains a commitment to place a renewed emphasis within the Garda on the importance of upholding human rights standards. Comprehensive and ongoing training and education for gardaí incorporates elements related to human rights. The force is more than capable of meeting the highest standards of human rights protection in the prevention and detection of terrorist and criminal acts.

As I mentioned, a report on the operation of the relevant sections since April 2007 has been laid before the House. The report shows that section 2 was used on 80 occasions. This section provides that where, in any proceedings for membership of an unlawful organisation, an accused failed to answer or gave false or misleading answers to any question, the court may draw such inferences as appear proper. However, a person cannot be convicted of the offence solely on an inference drawn from such a failure; there must be some other evidence which points towards his or her guilt.

Section 3 was used on 12 occasions. This section provides that, in proceedings for membership of an unlawful organisation, an accused must give notification of an intention to call a person to give evidence on his or her behalf, unless the court permits otherwise.

Section 4 was used on 13 occasions. This section amends section 3 of the Offences against the State Act 1972 in such a way as to expand the definition of "conduct" that can be considered as evidence of membership of an unlawful organisation. Specifically, "conduct" can include matters such as "movements, actions, activities, or associations on the part of the accused". This change simply aligns the definition of conduct in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.

Section 5 was used on 34 occasions. This provides for the drawing of adverse inferences in certain circumstances in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts, and any offence arising out of the same set of facts as such an offence, provided that the offence carries a penalty of five years' imprisonment or more. The effect is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she could reasonably have been expected to mention during questioning or on being charged, but did not do so. That is a fair assumption on the court's part. As with section 2, a person cannot be convicted of the offence solely on an inference drawn from such a failure.

Section 7 was used on 16 occasions. This section makes it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the article is in possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. Section 8 was used on 14 occasions. This section makes it an offence to collect, record or possess information which is likely to be useful to members of an unlawful organisation in the commission of serious offences. Section 9 was used on 127 occasions. This section makes it an offence to withhold information which a person believes might be of material assistance in preventing the commission by another person of a serious offence or securing the apprehension, prosecution or conviction of another person for such an offence.

Section 10 was used on 12 occasions. This section extends the maximum period of detention permitted under section 30 of the Offences against the State Act from 48 hours to 72 hours, but only on the express authorisation of a judge of the District Court. In this regard, the judge must be satisfied, on the application of a Garda officer not below the rank of superintendent, that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The person being detained is entitled to be present in court during the application and to make, or to have made, submissions on his behalf. In the reporting period in question, an extension was applied for in 12 cases; two were granted, charges resulted and convictions resulted in the two cases.

Section 11 was used on 32 occasions. This section allows a judge of the District Court to permit the re-arrest and detention of a person in respect of an offence for which he was previously detained under section 30 of the Offences against the State Act but released without charge. This further period must not exceed 24 hours and can be authorised only in circumstances where the judge is satisfied on information supplied on oath by a member of the Garda Síochána that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence. Section 14 is, in effect, a procedural section which makes the offences created under sections 6 to 9 and 12 of the 1998 Act scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing these offences are liable to arrest under section 30 of the 1939 Act. The sum total of the uses of sections 6 to 9 and 12 was 157.

I will now turn to those sections of the 1998 Act that were not used in the period under report, namely, sections 6, 12 and 17. Section 6 creates the offence of directing the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act 1939. Section 12 makes it an offence for a person to instruct or train another person in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse.

Section 17 builds on the provision in the Criminal Justice Act 1994 providing for the forfeiture of property. Essentially, the 1994 provision empowers a court, in its discretion, whenever any person is convicted of an offence under that Act, to order the forfeiture of any property in the possession of that person which was used, or intended to be used, to facilitate the commission of the offence. The effect of section 17 is, in the case of a person convicted of specified offences relating to the possession of firearms or explosives, and where there is property liable to forfeiture under the 1994 Act, to require the court to order the forfeiture of such property unless it is satisfied there would be a serious risk of injustice if it made such an order. Although these sections were not used in the period under report, I am sure the House will agree that their continued availability is essential to an effective response to the threat from terrorist groups.

On the basis of the information set out in the report, it is clear that the 1998 Act continues to be an important element of the Garda response to the threat still posed by dangerous terrorist groups in the Republic and Northern Ireland. The ongoing threat presented by terrorist groups, particularly the dissident republican groups is clear. Accordingly, I have to conclude that the relevant provisions of the 1998 Act should remain in operation for a further year.