Ivana Bacik (Independent)

I welcome the Minister of State. I declare my own interest in this matter as I have represented people before the Special Criminal Court and have, therefore, worked with the provisions at issue in the motion. I echo Senator Alex White's words by expressing some concern about the procedure and the low level of scrutiny we give to these measures. It is important we retain the power of annual review.

Before I speak in detail about the provisions, I join other Senators in condemning the dreadful atrocity in Omagh which gave rise to the 1998 amendment Act. We all remember that appalling tragedy only too well. Since we debated this matter last year we have seen the further appalling murders of Mark Quinsey and Patrick Azimkar at Massereene barracks and of Constable Stephen Carroll. We all join the Minister of State in condemning those and in expressing our sympathy to the relatives and families of the people killed. This morning, we heard disturbing news of further attacks in Belfast. These attacks are racist rather than sectarian. As one reporter observed, racism appears to be the new sectarianism. All of us must be very concerned about this disturbing rise in racist attacks directed at a number of Romanian families, who are seeking shelter today.

Having expressed those concerns and our recognition of the need for special measures to deal with ongoing threats to State and individual security, it is important to point out that the Offences against the State Acts, including the 1998 amendment Act, represent a significant departure from the normal criminal justice rules and procedures and the general protections for accused persons in our criminal justice system. The fact that the 1998 Act, in particular, represents such a departure is acknowledged in the inclusion of a provision for an annual review. It is, indeed, an emergency or special powers legislative measure. It should also be recalled that the House is currently debating a criminal procedure Bill which will also make inroads into established protections for civil liberties and the rights of accused persons, particularly regarding the rule against double jeopardy. We must be wary of undue encroachments on civil liberties and, in particular, the rights of the accused.

There have been notable criticisms of the Offences against the State Acts over the years. The former Senator, Mary Robinson, expressed a great deal of concern about the operation of the Special Criminal Court in a well known pamphlet she prepared in the 1970s, in which she expressed reservations about the use of a non-jury court to try serious offences. More recently, the report of the expert group set up to review the Offences against the State Acts also expressed reservations about certain aspects of the legislation. There has also been international criticism of the use of the Special Criminal Court to try non-scheduled offences.

We must be cautious not just about the use of the Special Criminal Court but also about particular provisions in the Offences against the State Acts code. One of the new provisions introduced in the 1998 Act was in section 2. It allows a court to draw inferences from the failure of an accused person to answer questions where they are in detention and being questioned by a garda about an offence, notably membership of an unlawful organisation. The court can draw inferences from silence. The failure to answer questions may be capable of amounting to corroboration. Section 2, in conjunction with earlier offences against the State legislation, means in practice that a person can be convicted of membership of an unlawful organisation on the word of a chief superintendent alone - this is based on the 1972 amendment Act - corroborated by a failure to answer material questions. We should have some concern about the relatively low levels of proof required.

We might also be concerned about the special caution that is required to put into effect the section 2 warning for an accused person who is being questioned by gardaí. Again, little work has been done in this regard. A special caution was promised whereby accused persons would be made aware that they were being asked material questions in the course of a Garda interview. The caution would put them on notice that a failure to answer those questions would lead to inferences being drawn. Many of us who practice in the area have some procedural concerns about the operation of the 1998 Act.

The Minister helpfully referred to the number of times particular provisions of the 1998 Act were used in the past year. Clearly, there was greater use and application of many of the provisions last year than in the previous year. However, a small number of provisions were not used. I note that section 12 was not used in the period covered by the Minister's report today, nor was it used in the 2007-08 period. That begs the question of the continued need for its existence. The Minister noted that section 5 of the Act will not be renewed this year as it has effectively been superseded by Part 4 of the Criminal Justice Act 2007. That is a useful precedent; there might be other provisions in the 1998 Act that need not be renewed to meet threats from terrorism and organised crime.

My main concern is, as Senator Alex White mentioned, that we should not simply rubber-stamp the renewal of an Act of this importance every 12 months. I welcome the principle that we should have a debate on this, even if that debate is too short and somewhat cursory in nature. It is important to have legislative scrutiny and that the scrutiny take place at least every year. I urge the Minister not to accede to any requests that the time period between reviews be lengthened. It is important to retain the annual review and that each year we examine individual provisions of the 1998 Act to assess how effective and necessary they are in dealing with the very real and recognised threat of terrorism. If they are not necessary or effective, we should give serious consideration to not renewing those provisions.