Seanad debates

Wednesday, 17 June 2009

Offences against the State (Amendment) Act 1998: Motion


11:00 am

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I move:

That Seanad 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 of 12 months beginning on 30 June 2009.

Photo of Barry AndrewsBarry Andrews (Minister of State with special responsibility for Children and Young People, Department of Health and Children; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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This resolution seeks the approval of Seanad Éireann to continue in operation those sections of the Offences against the State (Amendment) Act 1998 which would otherwise cease to be in operation after 30 June next. A similar resolution is being taken in the Dáil today. Senators will recall that the 1998 Act was enacted in the aftermath of the Omagh bombing in August 1998, a dreadful tragedy which claimed 29 innocent lives and impacted grievously on many more. The memory of this calculated, brutal act is undiminished more than a decade later.

The attack on Omagh was a deliberate attempt by desperate people to undermine the Northern Ireland peace process and to overturn the Good Friday agreement. The bombing sought to crush the progress that had been achieved. Thankfully, the establishment of a new dispensation in Northern Ireland is testament to their failure. Communities from all traditions in all parts of the island stood firm then and continue to stand firm in their determination to have a peaceful future based on the rule of law. The Government of the day and the House shared that determination and enacted the Offences against the State (Amendment) Act to equip the Garda with the tools necessary to defeat the bombers and their fellow travellers.

The families of the Omagh victims recently won a notable victory in the High Court in Belfast in a civil action. I am pleased to place on the record of the House that the Government facilitated the relatives and the Northern Ireland court by taking some of the evidence in this jurisdiction. The House should be aware that the investigation into the atrocity in Omagh remains open on both sides of the Border and there is excellent co-operation between the Garda and the Police Service of Northern Ireland, PSNI, in this regard.

Given the exceptional events that form the background to the introduction of the Act, the Oireachtas decided that it should revisit certain provisions of the Act annually to decide on their continued necessity. This allows Members to consider and to take a view on whether the current circumstances justify the continued operation of these provisions for a further period not exceeding 12 months. I have no doubt this is justified and I will outline to the House why that is so.

As required by the Act and to support consideration of the matter by both Houses, the Minister for Justice, Equality and Law Reform is required to lay before the Oireachtas a report on the operation of the relevant provisions prior to moving the resolution. This report, laid before the House on 11 June 2009, covers the period from when the last such report was prepared in June 2008 to 31 May 2009. The assessment of the Minister is that the relevant sections of the 1998 Act should remain in force for a further 12 months. This conclusion has been reached based on the current security situation, the Garda Síochána's advice and the information provided in the report.

The House will not need to be reminded of the despicable murders in Northern Ireland of two soldiers, sappers Mark Quinsey and Patrick Azimkar, at the Massereene barracks in Antrim and of a PSNI constable, Stephen Carroll, in Craigavon in March this year. Those murders followed a series of attacks on PSNI officers which could have proved fatal and which demonstrated the determination of these groups to kill at any cost. Shortly before the murders an incident took place involving an abandoned bomb in County Down which had the potential to kill scores of people had it exploded. Those who made that bomb and those who carried out the earlier attacks have nothing positive to offer the country. This is the sad reality that compels us to take these necessary measures to protect innocent lives. The 21st report of the Independent Monitoring Commission, which the Minister published last month, leaves no doubt that the Real IRA, the Continuity IRA, the INLA and some other smaller dissident groups remain committed to violent paramilitary action to pursue their aims. We should be clear as to the criminal nature of these groups and the activities they carry on to line their pockets. They rob and extort money, they engage in kidnapping and intimidation, they deal in drugs and they exploit women in brothels. They engage in this behaviour for their own gain and to support their particular lifestyles. Let us not imagine for a moment that the members of these groups are involved in a noble or historic struggle for freedom. They have nothing positive to offer the country. They are the relics of a violent past that the communities of the island have soundly rejected. Senators will agree that very significant advances have been made in normalising politics in Northern Ireland, bringing communities together on the island and escaping from the legacy of past conflict. However, a substantial threat remains from these dissident groups which are implacably opposed to democracy and peace and which are ready to kill in that cause.

The resolution before the House is concerned primarily with provisions aimed at the threat posed by domestic terrorism. However, we cannot ignore the growth in recent years of a wider, international terrorist threat. The extent and nature of this terrorist threat varies greatly from one state to another, but we should not be complacent in our response to it. We must continue to act, especially with our EU counterparts, to defeat it. The 1998 Act is an essential part of the effort to counter terrorism in all its forms and to protect the people.

It is the firm view of the Garda Síochána that the 1998 Act continues to be a most important tool in its ongoing efforts to counter the threat of terrorism. The Garda has stated unequivocally that in the current circumstances it is essential that the Act's provisions should continue in force to support the ongoing investigation of terrorist activity. The sad reality is those who carried out the Omagh bombing, and others like them, continue to pose a substantial threat in the pursuit of their subversive aims and activities. The Real IRA, the Continuity IRA and the INLA still aspire to commit serious and wanton acts of terrorism. They plan and pursue campaigns of violence and continue to engage in various acts of criminality.

I refer to the provisions which are the subject of the resolution. The Minister has laid before the House a report on the operation of the relevant sections since June 2008, which clearly demonstrates the value of these provisions to the Garda. 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 some other evidence which points towards a person's guilt. The section was used 20 times in the period covered by the report. Section 3 requires an accused person, in proceedings for membership of an unlawful organisation, to give notification of an intention to call a person to give evidence on his behalf. This section was used 12 times.

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. The 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 was made under the Offences against the State Act 1939 - it was used once. Section 7 makes it an offence to possess articles in circumstances that give 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 - it was used 28 times. Section 8 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 - it was not used in the period covered by the report.

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 - it was used 137 times. Section 10 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, following an application by a garda of at least superintendent rank. Furthermore, the person detained is entitled to be present in court during the application and to make, or to have made, submissions on his behalf. The section was used 41 times and an extension was granted in 41 cases. Section 11 allows a judge of the District Court to permit the rearrest 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 who was released without charge. This further period must not exceed 24 hours and can only be authorised 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 - it was used 18 times.

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. It 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 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. Section 17 builds on the provision in the Criminal Justice Act 1994 that provides 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. The section was not used in the period covered by the report.

Section 5 of the Act was repealed by the Criminal Justice Act 2007. This section was reported on last year as its repeal fell part way during the reporting period and it had been in use up to that point. The section provided for the drawing of adverse inferences in certain circumstances where an accused relied on a fact in his defence that he could reasonably have been expected to mention during questioning or on being charged but did not do so. Part 4 of the Criminal Justice Act 2007 now provides for a broader treatment of this issue, including the particular circumstances set out in the repealed section 5. Accordingly, section 5 does not fall to be renewed.

The fact remains that these paramilitary groups are active, ruthless and determined to strike if given the opportunity. They remain resolutely opposed to the Good Friday Agreement and to peace on this island. They are determined to destroy that peace and they are prepared to kill indiscriminately to do so. So long as they maintain this course, the State must have robust counter-measures available to face down the threat. The House and the people of this State, would rightly question the Government's commitment to defeating these groups if we did not ensure adequate legislative provisions were in place to meet that threat.

The Offences against the State (Amendment) Act 1998 is one element of the State's ongoing defence against the terrorist threat. I urge the House not to countenance any weakening of the tools the State has at its disposal in the fight against terrorism. Through good policing, supported by strong legislation and the continued determination of the people of the island, the murderous activities of these paramilitary groups can and will be defeated. I pay tribute to the ongoing work of the Garda Síochána, in co-operation with the PSNI, in facing up to the threats posed. On the basis of the information set out in the report, it is clear the 1998 Act continues to be an important element of the Garda response to terrorism. From the advice given by the Garda Síochána on the value of the provisions, taken together with the ongoing threat from terrorist groups, I consider that the relevant provisions of the 1998 Act should remain in operation for further 12 months and I have no doubt right-thinking Senators on all sides will agree. I commend the resolution to the House.

Photo of Eugene ReganEugene Regan (Fine Gael)
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I thank the Minister of State for his exposition of the situation with regard to terrorism on the island of Ireland and the need for this legislation to be continued. Fine Gael fully supports the continuation of the provisions of the Offences against the State (Amendment) Act 1998 given the deterioration in the situation over the past year. I refer to the killings of British Army soldiers, Mark Quinsey and Patrick Azimkar, in March and the killing of PSNI Constable Stephen Carroll on 9 March. These killings highlight how the situation has deteriorated. It is encouraging that all sections of the community, North and South, and all organisations and political parties have supported the forces of law and order in both parts of the island in confronting the resurgence of violence. The 21st report of the Independent Monitoring Commission highlights how the Provisional IRA has adhered to its commitments in the peace process and that there is no evidence of any violence or terrorist activity by that organisation. This is the one positive element in the report of the Independent Monitoring Commission on 7 May 2009.

This terrorist activity is not just confined to Northern Ireland but straddles general criminal activity and it is clear these organisations are involved in criminal activity of the worst type. In January 2009, the Garda Commissioner highlighted in The Irish Times that the threat from dissident republicans should not be underestimated. This is a cause for concern not only for the PSNI but also for the Garda Síochána. The Commissioner highlighted the range of criminal activities in which these bodies are engaged.

The report of the Independent Monitoring Commission clearly states that the current ongoing violence is an attempt to destroy the peace process and return the community in Northern Ireland to the period of violent struggle from which it has so painfully and relatively recently emerged. The attacks on the homes of the Sinn Féin Minister, Conor Maguire, and Mitchel McLaughlin highlight the fact that these organisations are intent on damaging and injuring those who are in any way associated with the restoration of normality in the political and democratic process in Northern Ireland.

The report also highlights the extent of the criminal activity of these organisations. It states that Continuity IRA members continue to be involved in a wide range of other serious criminal activity, including drug dealing, tiger kidnappings, robbery, extortion, brothel keeping and offences designed to defraud the two Exchequers, such as the smuggling of tobacco, in the main, and fuel laundering. The commission is of the view that members of the Continuity IRA were responsible for armed robberies in Dungannon in January 2009 and in Lurgan the following month.

This type of criminal activity affects the ability of the Garda Síochána to maintain law and order on this side of the Border so we have a serious interest in ensuring both the PSNI and the Garda Síochána are given the facilities and legislative framework to ensure they can carry out their responsibilities. The Minister of State has made the case for the legislation and it has the full support of Fine Gael.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I welcome the Minister of State. I fully support the proposals he has put before the House. It is regrettable and unfortunate that in the aftermath of the Good Friday Agreement this legislation still requires to be buttressed and kept in place to ensure the threats from extreme elements are held at bay. This legislation came into being in the aftermath of the Omagh bombings which was one of the most terrible atrocities ever committed in this country.

Despite the fact that the Good Friday Agreement was endorsed by probably 95% of the people of this country, North and South, we still have a threat of violence from extreme paramilitary groups. This is a reminder to us that the despicable murders in Northern Ireland of two soldiers, Mark Quinsey and Patrick Azimkar, in the Massereene Barracks and the murder of Constable Stephen Carroll in Craigavon and, as Senator Regan said, the threats against the houses of some Sinn Féin members shows there is an element - albeit a small element - who are ruthless and are involved in all sorts of drug cartels, cross-Border smuggling and criminal activities, even in this city of Dublin, and they must be kept at bay.

I welcome the continuation of these provisions. In the knowledge that these threats will not dissipate overnight, the annual renewal of the provisions of the Act should be extended to a three to five-year renewal period. I cannot envisage that this threat will vanish overnight. There is no doubt those groups, such as the Real IRA, the Continuity IRA and the INLA, which have not given up their arms and which have not complied with the provisions of the Good Friday Agreement have no moral approbation whatsoever, either north or south of the Border, for continuing such violent acts. In that regard we must use all our might and main to ensure they do not get their wicked way. It is unfortunate the Garda Síochána must put such resources and effort into ensuring an atrocity such as Omagh will never occur again either north or south of the Border. There is a continuing threat. From a legal and jurisprudence perspective the measures appear to be severe and draconian, but they are necessary. I concur with the continuation of the sections. In the aftermath of the Good Friday Agreement we hoped that many measures, introduced during what was almost a civil war, could be put aside. We dreamed of a Utopia and hoped a hiatus might occur in the aftermath of the Good Friday Agreement. The Agreement has, by and large, stood firm. It has been implemented by the British Government, acknowledged in Northern Ireland and implemented here in the South. The Good Friday Agreement has been a huge success. It took many decades of effort by many Governments and by people north and south of the Border and in Britain to put it in place. It is a great success story.

We must do whatever needs to be done, including the measures proposed today by the Minister of State. We must be vigilant in ensuring no other acts of violence occur or that those which do occur are dealt with efficiently and effectively.

Photo of Alex WhiteAlex White (Labour)
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The Labour Party will not be opposing the renewal of the sections of the Act, as proposed by the Minister of State on behalf of the Minister for Justice, Equality and Law Reform. However, I have some concerns. They are about the manner in which the proposals are being dealt with rather than with their substance. I strongly disagree with Senator O'Donovan's suggestion that we give up our current minimal level of scrutiny and renew the legislation only every three or five years. I would wholly oppose such a proposal.

The Minister of State referred to normalisation in the North and in the country generally. That is to be welcomed. The normalisation of our law, including the criminal code, should also be clearly in our sights. Horrific crimes have occurred in the last couple of years but this is not, in itself, a reason to continue to operate emergency legislation or special powers. It should be the Government's objective to ensure that we do not operate under special powers but in a normalised environment with a criminal code which is sufficiently robust, strict and punitive to deal with the kind of crimes of which we are talking. Our horror at an act of violence does not imply agreement to any powers which might be sought. I am sure neither the Minister of State nor any Member would agree that our role as scrutineers of legislation should ever be set aside.

There is no copy of the Offences against the State (Amendment) Act 1998 on the table in the Seanad ante-room, where legislation we are asked to consider is usually placed. Of course, many Senators will have read the Act. However, it is an abrogation of the role of a legislature to nod through legislation which includes considerable powers and serious offences. These powers have been considered necessary by the Government but it would be a complete denial of the role of Parliament to nod such legislation through on a yearly basis or, as is advocated, every three or five years.

The Garda Síochána has a job to do and the Minister must act on the advice of the Garda. A tool may be desirable but this does not mean it is necessary. We should have a greater and longer opportunity to scrutinise each of the sections to which the Minister of State referred. Perhaps this could be done in a committee. Are these measures necessary as well as desirable? The Minister of State reported the number of times each section was used. Reading over the speech made this time last year by Deputy Brian Lenihan, then Minister for Justice, Equality and Law Reform, I see that while some sections were used more often this year than last year many were used substantially less often. The Houses of the Oireachtas should be in position to question the Minister and an Garda Síochána as to what the gardaí would do if these measures were not available to them. We could then accept that a particular measure is actually necessary. We might want to argue with the Minister and, through him, with Garda advice that a particular measure was not necessary, although desirable to the Garda.

That is the level of scrutiny in which we should engage as we consider the request to extend these sections. I regret that we do not have an opportunity to do so. We have been given 40 minutes. Would it make any difference if we were given four minutes, or even four seconds? The level of scrutiny is not good. It should be better. I do not take from what I said at the outset. The Minister of State, on behalf of the Minister for Justice, Equality and Law Reform, has informed the Oireachtas that these powers are necessary in the context of a terrorist threat. I see we have added the question of international terrorism, which was not contemplated in 1998 but has been grafted on to the case for these measures. We need a much more comprehensive and structured debate on these issues. However, I will not oppose the measure itself.

Photo of Ivana BacikIvana Bacik (Independent)
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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.

Photo of Barry AndrewsBarry Andrews (Minister of State with special responsibility for Children and Young People, Department of Health and Children; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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I thank the Senators for their comments and support for the motion. The people at whom these provisions are aimed have been identified as a serious threat to the State. They participate in some of the worst criminality on the island, both North and South. They are trying to derail the peace process, which was voted for by people on both sides of the Border in a historic vote following the Good Friday Agreement. They are working against that and against the will of the people. It is not just the Government's determination to tackle these people, it is also the will of all the people in Ireland that this be done.

Senator Denis O'Donovan mentioned a longer period between reviews of the legislation. Initially, there was to be no specific period and it could be renewed indefinitely, but it was thought more prudent that it be renewed on an annual basis given that these are very serious measures which have serious consequences. There was obviously a determination that they would not be in place indefinitely and that they would be replaced. There is good value in having the measures examined, even in the truncated fashion we are using today, to ensure they are being used and that they are proportionate to the threat. The Members referred to the tragic deaths of Constable Carroll and the soldiers at Massereene barracks. These underline the threat that exists, as does the IMC report referred to by Senator Eugene Regan. I support the annual review of the Act.

Senator Alex White expressed concern that we are nodding this through and not properly analysing it. A report was laid before the Houses of the Oireachtas by the Minister for Justice, Equality and Law Reform on 11 June which outlines his reason for seeking this resolution today. It gives Members of both Houses an opportunity to reflect on it. Although it was done very recently, it allows Members to be well informed and to put forward points that might be of concern to them. I wonder if putting it on the table in the ante room outside the Chamber would give Members a further opportunity for scrutiny. Legislators should have access to all of the statutes concerning them. To be helpful perhaps we should provide this legislation in the same way as other legislation is provided for scrutiny in the House.

A total of 246 persons were detained last year under the 1998 Act. There were 39 convictions and 202 cases are awaiting trial. That just refers to the reporting period we are discussing today. It is clear, therefore, that the Act is used regularly. In response to Senator Ivana Bacik, section 5 was not repealed because it was not being used but because there is a similar provision in the Criminal Justice Act 2007. It is simply replaced in another Act.

Photo of Ivana BacikIvana Bacik (Independent)
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I was aware of that.

Photo of Barry AndrewsBarry Andrews (Minister of State with special responsibility for Children and Young People, Department of Health and Children; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Education and Science; Dún Laoghaire, Fianna Fail)
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I thank the Senators for their considered comments and their support for the motion.

Question put and agreed to.