Jan O'Sullivan (Limerick City, Labour) | Oireachtas source

The House will be aware that the Offences against the State (Amendment) Act 1998 was passed in the wake of the murder of 29 people by the Real IRA in Omagh on 15 August that year. It was a necessary response to that atrocity and the loss of 29 innocent lives. That bombing and those murders also represented a direct attack on the fragile peace process and the State as a major sponsor of it. They demanded a robust response from the State and a clear statement that the atavistic view of the murderers would not prevail. We had had enough of their agenda of hatred, sectarianism and contempt for the will of the majority. Like the rest of us, they had been given the opportunity to decide in a democratic way on the future of the island and the relationship between the two jurisdictions. Their views did not prevail and, like all anti-democrats, they resorted to murder and terror, but they were never going to succeed and they have not succeeded. However, to this day they continue with their ideology of hatred and destruction. At the time, 1998, the State had a responsibility to respond to the direct challenge they presented. One such response was to provide strong legislative powers to ensure the Garda and the courts would be in a position to meet that challenge. The Offences against the State (Amendment) Act 1998 was a necessary and proportionate response. The Act contains a series of amendments to the Offences against the State Acts 1939 to 1985 to make them more responsive to the threat from certain groups. Principally, these amendments concern changes to the rules of evidence for certain offences under the Acts, including the drawing of inferences in certain circumstances; the creation of new offences such as directing an unlawful organisation, possession of certain articles and collecting information; and extending the maximum period of detention permitted under section 30 of the 1939 Act to 72 hours.

Section 18 of the 1998 Act, as amended by section 37 of the Criminal Justice Act 1999, provides that sections 2 to 4, 6 to 12 and 14 and 17 must be renewed by the Oireachtas at specified intervals if they are to remain in force. By virtue of resolutions passed by both Houses of the Oireachtas on 13 and 20 June 2012, these sections were continued in force for a period of 12 months, beginning on 30 June 2012. Prior to moving any motion for renewal, the Act requires the Minister for Justice and Equality to lay before the Oireachtas a report on the operation of the relevant provisions. The current report covers the period from 1 June 2012, the end date of the previous report, to 31 May this year. The report was laid before the House on 17 June. It also includes, following a commitment the Minister gave, a table showing the figures for each of the years since the Act came into operation. This is helpful in showing the importance of the Act in equipping the Garda to detect and prevent terrorist actions.

It is the fervent wish of the Minister and the Government that the time will come when these provisions will no longer be required, but as Minister for Justice and Equality, on behalf of the Government, the Minister must have regard to the reality of the situation. The Garda assessment, shared by the PSNI, of the terrorist threat level in Northern Ireland is that it is severe. While the threat level in this jurisdiction may be different, it is imperative that our laws and the police are properly equipped to deal with the threat, whether in this jurisdiction or Northern Ireland. Let no one be under the illusion that these groups do not have designs on the State, as well as on Northern Ireland. This clearly demonstrates the need for the continuance of these provisions. If Senators need reminding, this need is clearly and tragically evidenced by the murder of the prison officer David Black last November. Also, in March this year, among numerous incidents north of the Border, the Police Service of Northern Ireland arrested three men following the interception of a number of mortars in a van in Derry. All three are known to be members of the new IRA. The van contained four mortars which were ready to fire.

It is not only in Northern Ireland that the campaign of terror has continued or that these terrorist groups are active. In March gardaí arrested five men and recovered a firearm at and near the scene of the fatal shooting of Peter Butterly in County Louth. In February gardaí arrested two men in Newbridge, County Kildare involved in the process of making pipe bombs. Also in February gardaí seized three mortar-rocket launcher-type tubes with associated components and arrested three men in an operation near Cahir, County Tipperary. Last September we witnessed the murder of Alan Ryan. In these circumstances the Garda must have at its disposal the appropriate measures to meet this threat. The powers available under the 1998 Act are considered paramount in maintaining effective preventive action against the terrorist groups. North-South co-operation in the area of security is vital and the Minister can give the House the assurance that it has never been better. He keeps in close contact with the Secretary of State for Northern Ireland, Theresa Villiers, and the Northern Ireland Minister for Justice, David Ford. The Garda Commissioner maintains close and frequent contact with Chief Constable Baggott. This is mirrored by contacts between the two forces at every level.

While countering the threat posed by dissident groups is very important, it is necessary not to lose sight of the threat from international terrorism. The 1998 Act grew out of our own domestic troubles. However, its provisions form an essential element of the State's response to the threat of terrorism from any source. We cannot ignore the growth in recent years of the international terrorist threat. In co-operation with our EU partners, we must continue to counteract any threat from such sources. The 1998 Act forms part of the response to that threat also.

It is the firm view of the Garda Síochána that the Act continues to be a most important tool in its ongoing efforts in the fight against terrorism. The Garda authorities have stated the provisions of the Act are used regularly, as is evident from the report laid before the House.

Furthermore, given the considerable threat posed by some dissident groups, it is essential that the Act's provisions continue in force to support the ongoing investigation and disruption of terrorist activity.

I will now deal with the provisions of the 1998 Act which are the subject of the resolution. As mentioned, on 17 June the Minister laid before the Houses a report on the operation of the relevant sections between 1 June 2012 and 31 May this year. The report demonstrates the value of the relevant sections to the Garda Síochána and the necessity for their continued availability in tackling the terrorist threat.

Section 2 allows a court, in proceedings for membership of an unlawful organisation, to draw appropriate inferences where an accused person fails to answer or gives false or misleading answers to questions. However, a person cannot be convicted of the offence solely on the basis of such an inference. There must be other evidence which points towards a person's guilt. The section was used on 62 occasions in the period covered by the report.

Section 3 requires an accused, in proceedings for membership of an unlawful organisation, to give notification of an intention to call a person to give evidence on his or her behalf. This section was used on 19 occasions.

Section 4 provides that evidence of membership of an unlawful organisation can be inferred from certain conduct, including matters such as movements, actions, activities or associations on the part of the accused. This section was not used in the period covered by the report.

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. This section was not used in the period covered by the report.

Section 7 makes it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the articles are in possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. This section was used on ten occasions.

Section 8 makes it an offence to collect, record or possess information likely to be useful to members of an unlawful organisation in the commission of serious offences. This section was used on two occasions.

Section 9 makes it an offence to withhold certain information which might be of material assistance in preventing the commission of a serious offence or securing the apprehension, prosecution or conviction of a person for such an offence. This section was used on 40 occasions.

Section 10 extends the maximum period of detention permitted under section 30 of the Offences against the State Act from 48 to 72 hours but only on the express authorisation of a judge of the District Court following an application by a garda of at least superintendent rank. Furthermore, the person being detained is entitled to be present in court during the application and to make or to have made submissions on his or her behalf. An extension was granted in ten cases.

Section 11 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 or she 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 only be authorised where the judge is satisfied on information supplied under 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. This section was used on four occasions.

Section 12 makes it an offence for a person to instruct or train another in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse. This section was not used in the period covered by the report.

Section 14 is, in effect, a procedural section which makes the offences created under sections 6 to 9, inclusive, 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 may be arrested under section 30 of the 1939 Act. This section was used on 52 occasions during the period covered by the report.

Section 17 builds on the provision in the Criminal Justice Act 1994 providing for the forfeiture of property. Where a person is convicted of offences relating to the possession of firearms or explosives and where there is property liable to forfeiture under the 1994 Act, the court is required to order the forfeiture of such property, unless it is satisfied that there would be a serious risk of injustice if it made such an order. This section was not used during the period covered by the report.

As indicated in the report, a number of sections, namely, section 4, drawing of inferences from the statements of an accused person that he or she is a member of an unlawful organisation; section 6, directing an unlawful organisation; section 12, training persons in the making or use of firearms; and section 17, forfeiture of property, were not utilised during the reporting period in question. It should not, however, be inferred from this lack of use that these provisions are in some way redundant or unnecessary. For example, section 17 was used for the first time during the 2011-12 reporting period, despite being present since the commencement of the legislation in 1998. The existence of the provisions means that members of terrorist groups are aware that the State remains resolute in its determination to use every lawful means to defeat them.

Incidentally, far from being redundant, section 12 will, in effect, be strengthened by a provision in the forthcoming legislation to give effect to the Council of Europe Convention on the Prevention of Terrorism. In this regard, the Government has approved the drafting of the Criminal Justice (Terrorist Offences) (Amendment) Bill 2012. The Bill will, when enacted, amend the Criminal Justice (Terrorist Offences) Act 2005 to create the three new offences of public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism. These offences will carry sentences of up to ten years imprisonment on conviction on indictment.

As I stated, dissident groups remain a threat to the existence of the State. They are opposed to the benefits that have flowed from the peace process and determined to undermine it. In its laws the State must retain the capacity to defeat them. On the basis of the information set out in the report and the advice of the Garda authorities, the Minister considers that the relevant provisions of the 1998 Act should remain in operation for a further 12 months, commencing on 30 June 2013. I commend the motion to the House.