Wednesday, 15 June 2016
Offences against the State (Amendment) Act 1998: Motion
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 beginning on 30 June 2016 and ending on 29 June 2017.”
I wish to acknowledge the presence of the former Cathaoirleach, former Senator Charles McDonald, in the Visitors Gallery and to welcome him to the House. He was a distinguished Member of this House.
Thank you. I welcome the Minister of State, Deputy Stanton. I congratulate him on his elevation to office and wish him a good and long career in that office. I welcome him to Seanad Éireann in his capacity as Minister and invite him to speak on the motion.
Thank you, a Chathaoirligh. I wish you well in your role and I congratulate you and the Leas-Chathaoirleach. I also wish the new Leader of the House and the other Members of the Seanad well in their deliberations.
I am in the House on behalf of the Tánaiste and Minister for Justice and Equality to discuss the Offences against the State (Amendment) Act 1998. The House will recall that the Act was enacted following the callous Omagh bombing, a terrorist atrocity in which 29 innocent people lost their lives. That appalling act lives in all our memories and our sympathies remain with the victims and their families.
The 1998 Act made a series of amendments to the Offences Against the State Acts. It principally provides for changes in 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, the possession of certain articles and collecting information; and extending to 72 hours the maximum period of detention permitted under section 30 of the Offences Against the State Act 1939. The Omagh atrocity demanded a clear and resolute response from the State in defence of the desire of the vast majority of law abiding people on this island to live their lives in peace.
Section 18 of the Act, as amended by section 37 of the Criminal Justice Act 1999, provides that sections 2 to 4, 6 to 12, 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 in June 2015, these sections were continued in force for a period of 12 months. Prior to moving a motion for renewal, the Act requires that the Minister lays before the Oireachtas a report on the operation of the relevant provisions. The current report covers the period from 1 June 2015 to 31 May 2016 and was laid before the House on 10 June 2016.
Given the time available, I will not go through all of the relevant sections in detail. The report, based on information provided by the Garda authorities, sets out the detail of usage of the various sections over the period. The report also includes a table of comparative usage for each of the years since the Act came into operation. The report indicates that two sections, sections 6 and 12, were not used during the reporting period in question. However, it should not be inferred that these provisions are in some way redundant as the usage of the different sections can vary from year to year. It is the clear view of the Garda Commissioner that the Act continues to be a most important tool in ongoing efforts in the fight against terrorism. The Garda authorities have stated that the provisions of the Act are used regularly, which is evident from the report. They are, in short, a necessary legislative support in the fight against terrorism.
There remains on this island a persistent threat from republican paramilitary groups who are simply opposed to peace. These groups have no support; they have no reason to remain in being and they should go away for good. The Tánaiste's decision to bring the second Special Criminal Court into operation is in response to this threat. It is now up and running and it underlines the Government's determination to deal with serious crime affecting the security of the State. The threat level in Northern Ireland is severe. The appalling murder of the Northern Ireland prison officer, Adrian Ismay, earlier this year highlights the lethal nihilism of these groups, who act in direct opposition to the democratic wishes of the majority on this island.
The Garda authorities work tirelessly and in co-operation with their counterparts in the Police Service of Northern Ireland, PSNI, in countering the activities of these paramilitary organisations, and they deserve credit for their ongoing work. Combatting the security threat is a key priority for the Government and the additional funding the Tánaiste has secured for the Garda Vote this year will go in part towards support for measures against terrorism. The Government is determined that these groups will never prevail and that there will be no let up in actions to tackle them. It would be a happy day indeed if provisions in the law such as those we are discussing today were no longer needed because the threat they target was no longer in place. The sad truth, however, is that they are still needed because that threat persists.
I will now refer to the second motion to be discussed on section 8 of the Criminal Justice (Amendment) Act 2009. This proposes the continuation in force for another year of section 8 of the Criminal Justice (Amendment) Act 2009. This section provides for a limited number of serious, organised crime offences to be tried in the Special Criminal Court, thus removing the possibility of jury tampering or the intimidation of jurors or potential jurors. The offences in question are set out in Part 7 of the Criminal Justice Act 2006 and they are section 71A - directing the activities of a criminal organisation; section 72 - participating in or contributing to certain activities of a criminal organisation; section 73 - committing a serious offence for a criminal organisation; and section 76 - liability for these offences committed by a body corporate.The 2009 Act makes these scheduled offences for the purposes of Part V of the Offences Against the State Act 1939. While this means that the Special Criminal Court will hear trials for these offences, the Director of Public Prosecutions, DPP, retains the power to direct that the offences should be tried in the ordinary courts.
In order to assist Senators in their consideration, section 8(6) provides that the Minister must prepare a report, which shall be laid before both Houses, on the operation of the section. That report, covering the period from 1 June 2015 to 31 May 2016, was laid before the House on 10 June 2016. Section 8 was not used during the period in question. Indeed, it has not been used since 2009. This does not invalidate the reasoning for having such a provision available for use if it is needed nor does it diminish its potential value in bringing organised criminals to justice. The operation of the provision to date highlights the considered approach of the DPP in using her discretion to direct that cases would be tried in the ordinary courts where it is possible to do so. This is proof positive of the balance that has been struck with this provision. It is a robust but nonetheless proportionate power.
In the period under report, there were a total of 17 arrests under two of the four offences covered by section 8 - seven arrests under section 72 and a further ten under section 73. Sections 71A and 76 were not used in the reporting period in question. Of course, there is a variety of other provisions of the criminal law that have been and are being used against organised criminals. My Department is currently examining whether there are other changes to the law that might be made to tackle these gangs. The Minister will be bringing forward shortly changes to the law to strengthen the powers of CAB in respect of seizing the proceeds of crime.
None of us can be under any illusion about the danger to society from organised crime. Recent gang-related murders in the Dublin region put into stark relief the utter disregard of these criminals for human life and the rule of law. Counteracting this danger presents very real challenges for the State. However, the State has faced down such gangs in the past and it will do so again.
The Government is fully committed to providing An Garda Síochána with the necessary resources to confront these criminal thugs and to bring them to justice. To this end, as I have said, the Minister secured substantial additional funding of €55 million for An Garda Síochána for the remainder of 2016 that will, among other things, support the necessary activities to target gang-related crime.
The Garda Commissioner has made clear her view that this provision will be required for some time to come and we must have the utmost regard for her analysis. Trial by jury is the standard for our system and it should be preserved to the greatest extent possible. However, none of us can afford to ignore the threat to the rule of law from violent, organised criminals who will stop at literally nothing to protect themselves and their profits. We have a duty as legislators to ensure that we respond robustly but proportionately to that threat. I commend these motions to the House.
This debate has a time constraint of 50 minutes. We must move away from the very lengthy Order of Business this morning where I allowed everybody some indulgence. When time is set for these matters, we have no choice but to adhere to it. The spokesperson for each party will have five minutes and if there is time, the second person will have three minutes.
I will keep my contribution as brief as possible. On behalf of the Fianna Fáil group, I voice our support for the two motions before the Seanad today. Both the Criminal Justice (Amendment) Act 2009 and the Offences against the State (Amendment) Act 1998 require that certain sections of the Acts be renewed by the Oireachtas on an annual basis. Fianna Fáil has consistently supported the renewal of these sections and does so today as it feels that both statutory provisions are necessary. We hope that in the future, the threat of dissident republican activity on this island will no longer be a reality but until then, we must have effective mechanisms to deal with it.
In the aftermath of the shocking act of terror in Orlando, we are reminded of the ever-present threat of international terrorism. Unfortunately, Ireland is not immune to this threat. It is, therefore, not appropriate to remove the powers from An Garda Síochána at this time when there is no evidence that these powers have been abused. Our police force needs to have the ability to act immediately in the face of terrorism.
Section 8 of the 2009 Act allows serious organised gangland crime to be tried by the Special Criminal Court similar to some of the proposals contained in the Offences against the State Act. The operation of drug gangs in Ireland is to the forefront of our minds due to the horrific murder in the Regency Hotel in February 2016 and subsequent murders. Communities are being terrorised and are calling for a tough response from An Garda Síochána.
Opposition to these provisions is mainly based on the fact that these crimes are tried in Special Criminal Court settings without a jury. Unfortunately, some offences cannot be tried by jury as it would jeopardise the safety of jury members. We have a duty to ensure our criminal justice system operates fairly. This system cannot operate if jury members can be intimidated or harmed in any way. Gangland criminals have murdered journalists and innocent members of the public in broad daylight. Intimidating jury members would not be beyond the pale. Witnesses were intimidated during the trial of four members of the Provisional IRA for the killing of Detective Garda Jerry McCabe. This intimidation resulted in the lesser charge of manslaughter being laid against the four accused. If witnesses have been intimidated in the past by dissident republicans, there is a real possibility that jury members will also face intimidation in the future should these provisions not be renewed.
Putting in place the witness protection programme for jury members, which has been suggested in the past, would be completely unworkable. Trial by jury was provided for in Bunreacht na hÉireann to ensure a fair criminal justice system. Due to the nature of the crimes that are the subject of these provisions, trial without jury is required to achieve the same outcome - a fair criminal justice system. Therefore, I support these motions.
I welcome the Minister of State to the House and wish him every success in his new role in the Department of Justice and Equality. I think it is his first occasion in here as Minister of State. I welcome the motions, which have my full support. It is important that we give the necessary support to the gardaí, who are working at the coal face. History has shown that unless that support had been there, it would not have been possible in the years gone by to take criminal proceedings against certain people. The Special Criminal Court has at all times been very effective and very fair. The criminal justice system in this country has always been very balanced. Where there is any threat to a fair trial and a prosecution cannot proceeding because jurors might be intimidated, it is important that the appropriate procedures are put in place. This is the reason two pieces of legislation were passed.
It is also important that there are checks and balances and that they are not abused. This is the reason the provisions come back for review every 12 months. It is extremely important that they receive our full support here today. The Minister and Minister of State do not take this decision lightly. They take it because they have received the advice that in respect of the criminal justice system operating properly, certain elements could not be prosecuted unless these procedures are in place. This is the reason they are bringing forward these motions and why they seek the continuance of section 8 of the Criminal Justice (Amendment) Act 2009 and the appropriate section in the Offences against the State (Amendment) Act 1998.
I also welcome the fact that an extra €55 million has been allocated to the gardaí to give them the necessary back-up support because they cannot operate unless they have sufficient support and expertise to deal with criminal elements in this country. Crime is becoming more sophisticated and a way of sidestepping the gardaí and the judicial process is available to the criminal community. It is important that we have the appropriate procedures for the gardaí and the DPP. Therefore, I support these motions, as does Fine Gael.The checks and balances are there. It comes back for review again in 12 months' time.
Gabhaim buíochas leis an Aire Stáit as teacht isteach chun labhairt linn inniu. Beidh mise leanúnach le seasamh Shinn Féin maidir leis an ábhar seo agus ar ndóigh beidh muid ag caitheamh vóta in éadain na moltaí atá os ár gcomhair inniu.
As the Minister of State knows, criminality is a scourge on our communities. All parties across this island must be both united and relentless in our pursuit of ending criminality. It must be made clear that those responsible for the recent killings and the ongoing feud in Dublin or anyone involved in organised crime must face the courts and be brought to justice. There can be no equivocation in respect of that. If they are found guilty and prosecuted, then they must face the sentences handed down to them. There is no equivocation in that.
The Minister spoke yesterday evening in the Dáil about improved and increased resources to An Garda Síochána to help combat organised crime. It should be noted that in recent years it was the Fianna Fáil Party that closed Templemore and stopped recruitment of members to the force, a measure continued by the previous Fine Gael Government, but now both want a tough response to such matters. While I welcome the recent announcement of increased investment in tackling crime, it has to go beyond investment in armed response units. If we want long-term solutions to deal with organised crime, we need to prevent young people from going down that path in life. We need to invest in programmes with a proven track record of working, such as the youth and juvenile diversion programmes. These are areas in which we need increased investment. The legislation we are being asked to extend today for a further 12 months does not have the effect of ending criminality in communities. It clearly has not worked, although it has been in existence for the past 20 years. We also have to look at international best practice and what actually does work. What does is increased investment at community level in meaningful programmes that prevent young people from engaging in criminality. It is important to say that it is not only young people who engage in criminality. Sinn Féin is opposed to criminality and we will support any measure we feel will work towards ending it.
The Fresh Start agreement negotiated in November last year by the Executive in the North deals with measures around stronger law enforcement and co-operation with the Government in this State, aimed at tackling organised crime and criminality. A new joint agency task force has been established, led at senior management level by An Garda Síochána and the PSNI, the Revenue Commissioners and Revenue and Customs. This new inter-agency task force will bring together the expertise of a range of law enforcement agencies involved in tackling organised crime gangs that seek to exploit the Border between the two jurisdictions. The Good Friday Agreement, which preceded it, requires steps towards security normalisation, including the progressive elimination of the Act's provisions. It is not justifiable to continue with this legislation with the Good Friday Agreement now in place for a full 18 years.
No emergency exists that could justify the continuation of the draconian measures contained in the sections that are up for renewal, or the rest of the Offences against the State Acts. This legislation has a highly corrosive effect on human rights, civil liberties and democratic life in this State. We in Sinn Féin are not alone in our opinion of that, given that the UN Human Rights Committee, Amnesty International and many other groups have stated this issue needs to be dealt with by this State as a matter of urgency. Certainly from a northern perspective, I have worked with the PSNI and seen the change in policing, moving away from a very negative, draconian and oppressive culture. Although the change is still incomplete and imperfect, much has been achieved in terms of independent oversight and creating a force that is community oriented and compliant with human rights. There are lessons to be learned to set the highest possible standard for international best practice for both policing services across this island, which puts the ending of criminality, but also the rights of and protections for citizens, at its heart.
I welcome the Minister of State, Deputy Stanton, to the House. It is my first opportunity to do so and I think it is his first opportunity to be here with us. I welcome him and congratulate him on his appointment, having working with him on the Joint Committee on Justice, Defence and Equality, which he so ably chaired for the past five years. I know he will do a great job and I wish him the very best with his work.
On the motions before us, I welcome the opportunity to be back debating them. Every 12 months these provisions have to be reviewed. It is important that the Oireachtas keeps these provisions under scrutiny, given that they interfere with due process rights of accused persons. It is in that context that we are back here. Having said that, we all recognise the major threat posed in particular by organised crime. We would all be very conscious of events in Dublin's north inner city and the real fear that so many members of that community are living under. We all watched the Taoiseach and other Ministers meeting community leaders last night in the north inner city. Clearly, there is a significant threat from organised crime and from paramilitary crime.
I should declare an interest as somebody who practised as a barrister in the Special Criminal Court in previous years. I have been here, speaking on the renewal of these provisions, for some years. We need to keep them under scrutiny. On a practical level, while a report has been laid before the Oireachtas, in previous years a table of usage has been appended to the Minister's speech which we have been provided with in advance of each of these debates. It is very useful to see for ourselves the pattern of application of the provision. That would be very helpful. I know the Minister of State dealt with this a little in his speech, but it is also useful to have the overview provided to us.
Looking first at the Offences against the State (Amendment) Act 1998 motion and its renewal, as has been said, these provisions do depart from normal principles of due process. Section 3 requires an accused to give notice of an intention to call a person to give evidence on his behalf when charged with membership of an unlawful organisation, and section 4 potentially gives rise to guilt by association, allowing inferences to be drawn from conduct such as associations on the part of the accused concerning evidence of membership of an unlawful organisation, an offence which, we will all be conscious, is a very serious one. I looked previously at a 15-year pattern of usage of these provisions and some of them were not used for many years. This requires that we look at the utility of continuing them in force. Section 4, in fact, had not been used for some years between 2008 and 2014 and was then used. Having said that, as the Minister of State said, the fact a provision is not used for some years does not mean it will not be and that it will not be useful. We need to take a balanced approach to this. In the Minister of State's speech, he said that two sections, sections 6 and 12, were not used during the reporting period in question, that is, the past year. While the Minister of State pointed out that it should not be inferred that these sections are redundant, as the usage varies from year to year, as we have seen in the past, it is still something that requires us to keep under review. I understand that section 12 has not been used since 2002. That is 14 years in which section 12 has not been used. There is a strong question to be asked about keeping the utility of that provision under review.
I will deal briefly with the motion on the Criminal Justice (Amendment) Act 2009. We are looking at another provision that interferes with due process rights. Section 8 provides for the right to a jury trial to be bypassed by the Director of Public Prosecutions, DPP, in respect of certain offences. In the period under review, no cases were in fact sent forward to the Special Criminal Court through the exercise of the DPP's discretion. Indeed, since 2009, no cases have been sent forward under that provision. Section 8 has not been used since 2009, as the Minister of State has said. I said last year that this indicates the considered approach that is being taken by the DPP. She is not exercising her discretion on this in any very liberal fashion. That is right and proper, given the encroachment that section 8 represents.
However, one also has to look behind section 8 and look at the provisions it refers to, which are laid out in Part 7 of the Criminal Justice Act 2006. Looking at those provisions, it is clear from the Minister of State's speech today and from speeches and data we were given in previous years that sections 72 and 73, the two offences of participating in or contributing to the activities of a criminal organisation and committing a serious offence, are well used. The Minister of State pointed out there were seven arrests under section 72 and a further ten under section 73. However, he says, section 71A, directing the activities of a criminal organisation, and section 76, liability for these offences committed by a body corporate, have not been exercised. Looking back, they have not been exercised for the past three years, as far as I know. One should look at the merit of retaining those offences in their current form and whether there is something about those offences that makes them unworkable.Clearly the directing of activities of a criminal organisation is an offence which one would hope should have a utility on the Statute Book given the very serious offences that have been committed in the name of criminal organisations in recent months. There is a question to be asked about these offences being kept in their current form if they are not, in fact, being used. I simply raise these questions. I certainly do not oppose these motions but we need to keep these motions under careful scrutiny and to be critical, where necessary, of aspects of these motions without simply passing them every year in a knee jerk or token way.
Ba mhaith liom buíochas a ghabháil leis an gCathaoirleach. I welcome Minister of State, Deputy Stanton, and I congratulate him on his appointment as a Minster of State. As Senator Bacik has said, the Minister of State brought years of dedicated service to the justice committee and I was pleased, as chairmen of the health committee that worked in a cross-departmental way with him on the issue of drugs. I wish him well.
It is important that in the Minister of State's speech it says that this Act is an important tool in ongoing efforts in the fight against terrorism and that we must ensure An Garda Síochána and the Government have every tool available to them in the war and the fight against organised crime. We must eradicate organised crime.
I listened to Senator Dolan's comments and I agree with some of what he said about how we can tackle this through education, empowerment and rebuilding our inner cities in particular, through working in a cross-departmental and cross-sectoral community way to make life better for people. That can begin in a multiplicity of ways. However, if we do not allow for the State to be able to do its work and to have resources such as these Bills, then we are in big trouble.
Equally, the issue of resourcing, the rostering of staff, community gardaí and education are very important. We saw the amount of money which was invested through RAPID into inner city areas. I worked with RAPID on Cork City Council where we enhanced the public realm and domain in the streetscapes, along with the quality of life for people. That means we must look at the issue of child care and its affordability, housing and affordable housing in tandem with resourcing our gardaí and ensuing that our community leaders and our citizens, along with An Garda Síochána and the courts, can tackle and eradicate gangland crime.
It is important that this cycle is ended and, equally, that we work together to ensure a situation whereby we do not need these types of legislation because, as Senator Bacik rightly said, some of the legislation has not been used at all. When we talk about new politics it is important that we take new politics out of the Chamber and - following on from the visit by the Taoiseach yesterday evening to the inner city - that we can ensure there is a new way of doing business. A way where community leaders and those who are employed by the State, by the city councils and by NGOs in tandem with active volunteers can make life better and that the culture and attitude among people will change also. I say this as someone who has been in schools - and as the Minister of State knows from his own background - education is critical. Empowering young people and giving them a dream of a better future and a vision of a better life is a great step forward. I hope the visit of the Taoiseach last night is not just seen as a photo opportunity - as was reported in some of the papers today - but that this would be the beginning of something different.
I thank the Senators for their welcome and their kind words, I hope it lasts. I am grateful to the Seanad for its consideration of these matters today. I thank Senators on all sides for their contributions to the debate on both motions. Naturally I welcome the support expressed by a number of speakers for continuing these provisions. I also appreciate the shared commitment that exists in the House to maintaining in place a robust legal framework for the Garda and the courts when dealing with the most serious of offences that may threaten the State and the operation of the criminal justice system. I also recognise there are genuinely expressed concerns about the robust nature of these provisions. However, we simply cannot ignore the fact of the activities of so-called dissident paramilitaries and neither can we ignore the fact of the grave threat from gang-related crime.
The ongoing action of the Garda in combatting the paramilitary groups including, fortunately, seizures of explosives and firearms, bears witness to the real and persistent threat presented by these groups to people in this State and in Northern Ireland. These terrorist groups have no support and no mandate. They cannot now and never will offer anything positive. We must do all we can, within the law, to stop them. By the same token, the Garda continues daily to take action against the criminal gangs whose activities seek to undermine society. The recent series of gang-related murders in the Dublin region bears witness to the ruthlessness and lawlessness of these criminals.
As public representatives we have all seen the profound damage that drugs in particular have inflicted on communities across the State. We cannot be blind to the fact that there are serious criminals who are only too happy to feed on that misery and misfortune and who will literally stop at nothing to protect their well-funded lifestyles. I take on board the comments made by Senators Dolan, Buttimer and others about the other side of the coin such as boosting communities, education, services, youth services, youth centres and so on which are vitally important also. However, we cannot ignore the fact that we are dealing with ruthless people.
In the face of these threats we must, as legislators, do our utmost to ensure the protection of the State and its institutions and to protect the lives of our citizens. In doing so we must strike a balance between necessity and proportionality. This is not always an easy balance to strike but I am of the clear view that this balance is achieved by these provisions. While they are outside the normal course of the criminal law, the measures are a response to extraordinary circumstances. I would also emphasise that these provisions do not somehow operate in glorious isolation from the rest of the criminal law and the range of protections that are available in the criminal process and at trial for persons who are charged with serious offences. We are fortunate to have a robustly independent and impartial Judiciary which has time and again proved to be the bulwark protecting the citizen's fundamental rights. I remind Senators also that provisions of the Offences against the State Acts and the Special Criminal Court have faced challenges to their operation and constitutionality on many occasions in the Supreme Court and at the European Court of Human Rights in Strasbourg and have largely withstood these challenges.
I remind the House also of the key role of the Director of Public Prosecutions in the process, a role carried out independently in accordance with the law. Some concerns were expressed as to the process for renewal of these provisions. It may be difficult to identify an ideal way to do this but I would emphasise that the current arrangements place the legislators in control. This House and the Dáil, together, have the final say. This is the democratic way and I believe it has much to recommend it. The Garda deploys very considerable operational resources to tackle terrorism and organised crime and we as legislators must provide it and the courts with the necessary means to bring terrorists and serious criminals to justice. I am sure that we all wish the circumstances where otherwise and that laws such as these were not needed. However, the stark reality is that until conditions allow, these provisions are a necessary addition to the general criminal law. I commend these motions to the House.
- Catherine Ardagh
- Ivana Bacik
- Victor Boyhan
- Paddy Burke
- Ray Butler
- Jerry Buttimer
- Maria Byrne
- Lorraine Clifford Lee
- Paudie Coffey
- Paul Coghlan
- Mark Daly
- Paul Daly
- Aidan Davitt
- Frank Feighan
- Robbie Gallagher
- Maura Hopkins
- Gerry Horkan
- Kevin Humphreys
- Denis Landy
- Terry Leyden
- Gabrielle McFadden
- Michelle Mulherin
- Jennifer Murnane O'Connor
- David Norris
- Pádraig Ó Céidigh
- Aodhán Ó Ríordáin
- Kieran O'Donnell
- Marie Louise O'Donnell
- John O'Mahony
- Joe O'Reilly
- Ned O'Sullivan
- James Reilly
- Neale Richmond
- Keith Swanick
- Diarmuid Wilson