Dáil Éireann debate -
Thursday, 18 Apr 2002

Vol. 552 No. 2

Offences against the State (Amendment) Act, 1998: Motion.

Minister of State at the Department of Justice, Equality and Law Reform (Ms Hanafin)

I move:

That Dáil Éireann resolves that sections 2 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 2002.

The resolution before the House today seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act, 1998, which would otherwise cease to be in operation on 30 June 2002. Members of this House will need no reminding of the circumstances in which these provisions were enacted in 1998, that is the Omagh bomb in August of that year. There was a determination, nowhere more so than in this House, that those responsible for this mass murder would not succeed in subverting the democratically expressed will of the people on this island that the conflict should be resolved only by peaceful means and on the basis of consent. To date, one person has been convicted in this jurisdiction on a charge related to the Omagh bomb and the investigation is continuing with excellent co-operation between the Garda and the Police Service of Northern Ireland. The Garda Síochána will not give up the search for those responsible.

Deputies will recall that, in recognition of the particular circumstances surrounding the enactment of the provisions of the 1998 Act, there was general agreement that the Act should be regularly revisited by the Oireachtas to see if the circumstances then prevailing justified the continuance in force of its provisions or whether there had been a change in circumstances sufficient to convince the Oireachtas that the provisions were no longer needed. Under section 18 of the Act, therefore, as amended by section 37 of the Criminal Justice Act, 1999, and by virtue of resolutions passed by each House of the Oireachtas first on 20 June 2000 and more recently on 26 June 2001, sections 2 to 12, 14 and 17 will cease to operate on and from 30 June 2002 unless a further resolution is passed by each House authorising the sections to continue to operate for such period not exceeding 12 months as may be specified in the resolution.

Included also in the Act was a requirement on the Minister for Justice, Equality and Law Reform to lay a report on the operation of the Act before each House of the Oireachtas prior to consideration by the Houses of the renewal of the provisions. The Minister for Justice, Equality and Law Reform laid such a report before this House on 17 April. The conclusion of that report is that the renewal of the provisions for a further year is necessary. The sad reality is that those responsible for the Omagh bomb continue to pursue and plan a campaign of violence and that there is no change of substance to the circumstances which led to the enactment of the 1998 Act.

I will turn now to the individual sections, which this House is asked to continue in force for a further 12 months, outline their purpose and indicate where they have been utilised in the past 12 months.

Section 2 provides that where, in any proceedings against a person for membership of an unlawful organisation, evidence is given that the accused when questioned failed to answer or gave false or misleading answers to any question material to the investigation of the offence, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. This provision has been utilised on many occasions in questioning persons arrested on suspicion of being members of an unlawful organisation. Charges do not of course result in every case in which the provision is used, but since 1 June 2001, charges were preferred in 22 cases in which section 2 was utilised. Two of these cases resulted in a conviction, while the remaining cases are currently before the courts. In addition, three persons were convicted during the period under report having been charged prior to that period in cases where this section was utilised.

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

Section 4 amends section 3 of the Offences against the State (Amendment) Act, 1972. The effect of the 1972 provision is that any statement or conduct by a person accused of membership of an unlawful organisation implying or leading to a reasonable inference that he was at a material time a member of such an organisation, shall be evidence that he or she was then such a member. It originally defined the expression "conduct" as including an omission by an accused person to deny published reports that he was a member of an unlawful organisation. The change made by section 4 of the 1998 Act was to expand the definition of "conduct" to include movements, actions, activities or associations. This 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 provides for the drawing of adverse inferences 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 of this section 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. This section was utilised on 13 occasions in the past nine months.

Section 6 established the offence of, at any level of the organisation's structure, directing the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act, 1939. While this section was not utilised during the period under report, one person remains before the courts having been charged with such an offence prior to that period.

Section 7 made it an offence for a person to possess articles in circumstances giving rise to a reasonable suspicion that the article is in his or her possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. This section was utilised on 20 occasions.

Section 8 made it an offence to collect, record or possess information which is of such a nature that it is likely to be useful to members of an unlawful organisation in the commission of serious offences. Two persons were convicted under this section in the period under report, having been charged prior to that period.

Section 9 made it an offence to withhold information which a person knows or believes might be of material assistance in preventing the commission by any other person of a serious offence or securing the apprehension, prosecution or conviction of any other person for such an offence, and who fails without reasonable excuse to disclose such information to a member of the Garda Síochána. This section was utilised on 115 occasions.

Section 10 extends the maximum period of detention permitted under section 30 of the Offences against the State Act – which otherwise is 48 hours – to 72 hours on the authorisation of a District Court judge. The judge must be satisfied, on the application of an officer of the Garda Síochána 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 submissions, or have them be made, on his or her behalf. In the past year, 39 persons have had their periods of detention extended under this provision and five of those were subsequently charged with offences.

Section 11 allows a District Court judge 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 in circumstances where the District Court 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 and about which they wish to question the suspect.

Section 12 made 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.

The effect of section 14 is to make these new offences scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing such offences are liable to arrest under section 30 of the 1939 Act. This section was utilised on 56 occasions.

Section 17 builds on the provision in the Criminal Justice Act, 1994, for the forfeiture of property. Essentially, the 1994 provision empowers a court in its discretion, whenever any person is convicted of an offence, 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 that there would be a serious risk of injustice if it made such an order.

This information on the use made of these provisions of the 1998 Act over the past nine months is based on information received from the Garda authorities and is contained in the report on the Act laid by the Minister for Justice, Equality and Law Reform before the House.

An Leas-Cheann Comhairle

The Minister of State's time has elapsed.

Ms Hanafin

I commend the motion to the House.

An Leas-Cheann Comhairle

Is the House agreeable to allow the Minister of State to continue her speech?

Mr. Shatter

We can take it as read. It can be put on the Dáil record, if the Minister agrees. We have no difficulty with that.

An Leas-Cheann Comhairle

There is no provision for putting it on the Dáil record. If the House cannot agree, I will call Deputy Shatter.

Ms Hanafin

There is just another page and a half.

Mr. Shatter

Then let the Minister finish her script. I have no objection.

Ms Hanafin

I thank the Deputies. This report, together with the previous report, shows that the key provisions of the Act are taking effect. We are now seeing the results of this legislation with, during the past nine months, the section 2 provision for adverse inferences being used in 22 cases, resulting in two convictions and 20 pending charges, and with two persons convicted under section 8 in relation to information likely to be useful to members of an unlawful organisation.

The most significant result in the Garda Síochána's fight against subversive activity was the conviction of a person on a charge of conspiracy to cause an explosion in relation to the Omagh atrocity. The provisions of the 1998 Act were used appropriately by the Garda Síochána in this case and will continue to be used in their efforts to bring to justice all of those responsible for that horrific act.

At the same time, it should be noted that the number of persons held under extended detention under section 10 over the past year was 39, a relatively modest number and one which, taken together with all of the other information I have outlined, goes to support my view that the pro visions of the Act are reasoned and proportionate and are being implemented by the Garda Síochána in a measured and restrained manner.

There are some provisions which did not take effect in the context of court proceedings during the period under report, but even here the Garda authorities have informed the Minister that the provisions in question have been utilised where appropriate by the Garda Síochána during the investigation of offences. Members of this House will appreciate that many of the investigations at issue are, of their nature, ongoing.

The Garda Síochána has had considerable success over the past nine months in combating those who, through the use of violence, would subvert the democratic wishes of the people on this island. I am sure the House will join me in congratulating the force on its achievements, but the threat to life and to our democratic values, which led to the enactment of the 1998 Act, remains. So, too, does the determination of this House never to give in to such a threat, but to provide the Garda Síochána and the criminal justice system with all legitimate means of combating it. The 1998 Act is an important part of those means. It is proving its worth and I ask the House to continue it in force.

In addition to these security concerns which alone would justify the continuance in force of these provisions, there is another consideration in favour of their continuance. The Offences against the State Acts, including the 1998 Act, are currently under review by a committee under the chairmanship of the former Supreme Court judge, Mr. Justice Anthony Hederman, on foot of a commitment in the Good Friday Agreement. I understand that the final report from the review is imminent. It clearly would make no sense to allow the provisions of the 1998 Act to lapse before the committee reported its conclusions on those very provisions.

Much has been achieved in the implementation of the peace process and much remains to be done. However, there are still those who would threaten to subvert that process through violence. The 1998 Act is part of the democratic response to that threat and I ask the House to continue in force the relevant provisions of that Act for a further 12 months.

Molaim an tairiscint don Theach.

Mr. Shatter

None of us will forget that dreadful day in August 1998 when an appalling atrocity visited murder and mayhem on the streets of Omagh and destroyed the lives of so many people going about their daily business and social life. The legislation which was enacted and which we are now addressing was introduced in response to that appalling atrocity. The Fine Gael party fully supports its continuation in force to assist the Garda Síochána in its very important task of protecting all of us on this island against subversive crime. The Garda authorities, as the Minister of State has said, have indicated that, in view of the current security threat assessment, especially the continuing threat posed by dissident republican groups and international terrorist groups, it is considered necessary that the relevant sections of this Act remain in force. The Garda Síochána deserves the full support of all sides of this House in its very important and dangerous work in trying to counteract subversive crime. The difficulties it confronts are now exacerbated by the added dangers posed by international terrorist organisations which may, at some stage, use this State as a base to conduct terrorist activities that would impact not only on this island but on the wider world.

In that context, it is important that the relevant powers remain available to the Garda Síochána and that, in this democracy, we utilise the legislation available to us to protect our democratic values and civil society. We must not allow small groups of dissident organisations on this island to subvert the democratic will of the Irish people in favour of progressing the peace process and bringing an end to shootings and bombings of the nature we have seen in the past. In that context, I fully support the proposal before the House and fully agree with the sentiments expressed by the Minister of State. The Garda Síochána has our full support for the continuing availability to them of this important legislation.

Mr. Howlin

This is the third occasion on which I have spoken on the continuance in force of this particular set of measures which was originally introduced in September 1998 as temporary measures to meet the requirements of the situation which faced the country in the aftermath of the Omagh atrocity. All of us still reel in horror at the memory of the worst single incident in 30 years of violence in Northern Ireland, which left almost 30 people dead, scores maimed and the heart of the town of Omagh devastated. We faced a dreadful vista and we determined, on all sides of the House, that those who perpetrated that dreadful act should be found. It was considered that the enactment of those special measures would enable the Garda Síochána and the then RUC to track down those who were responsible and bring them to account. It is a matter of regret that in this jurisdiction only one individual has been charged. I hope other charges will be brought and that convictions will be secured. This unspeakable act should never be forgotten and the pursuit of those responsible should be unrelenting and open-ended.

In the short time available, I wish to refer to the broader issue of the Offences against the State Acts. In her speech, the Minister of State referred to the review of the Offences against the State Act set up in 1998 by the current Government, under Mr. Justice Hederman. In reply to parliamentary questions, I have been told repeatedly that the conclusion of that review is "imminent", a word used again today in the Minister of State's script. An interim report was published in August of last year. I ask the Minister of State to outline the Government's current general think ing in relation to the future of the Offences against the State Act and what actions have been taken in relation to the interim report that was laid before the House and sent to the United Nations Human Rights Committee in the middle of last year. Is it envisaged that the Special Criminal Court will continue in place? Will it be restructured as recommended in the interim report?

Some of the interim recommendations have been included in the most recent courts Bill, to ensure that the status and standing of those who are members of the Special Criminal Court would be the same as any other judge and that is certainly an advance. The majority recommended that any resolution establishing the Special Criminal Court should automatically lapse within a defined timeframe, unless there was a resolution of both Houses of the Oireachtas to continue it – the same regime that applies to these provisions of the Offences against the State (Amendment) Act, 1998. I would like to have the Minister of State's response in that regard. The objective should be to re-establish normal jurisprudence in this State. We hope the subversive threat to the State, although not gone, is diminished. Those involved in the Continuity IRA and the Real IRA still pose a real threat to the stability and structure of our democracy and they must be met with resolute determination by all who are engaged in the democratic process and who wish to uphold the values of democracy. For that reason, the Labour Party will not object to the continuation, for another year, of the sections of the 1998 Act referred to in the motion now before the House. However, I hope the broader review of the Offences against the State Act – the final report of the Hederman committee – will be debated in this House before too long, so that we can structure our Judiciary and jurisprudence in a way that better reflects a normal democracy, rather than a society under threat. We need to move out of the dark period of our history and, hopefully, we will move into a period of jurisprudence in which democracy is not under threat from subversive agents who wish to have their way, not through force of argument but through force of arms and bombs. In supporting and endorsing the continuation in effect of these particular provisions, I would like to hear the general view of the Government as to the future in that regard.

Mr. Higgins

(Dublin West): When the Act referred to in the motion before the House was originally introduced in Dáil Éireann, I sternly opposed it and I oppose its renewal. My party, the Socialist Party, is organised North and South on this island and has, for 30 years, opposed the tactics of the paramilitary organisations and sectarian organisations who inflict violence on either their own communities or others. We have stood four square against small groups who essentially believed they could inflict a particular viewpoint on society through the methods of the bomb or sectarian associations. I wish to reiterate that the campaign of the paramilitaries was a massive waste in terms of lives lost. It was also a waste of the lives of young people from both sides of society who were drawn into paramilitary and sectarian activities. Many of their lives were lost or destroyed as well as the lives of the victims of these organisations.

On many occasions we advocated that the only solution to the problem in Northern Ireland was the coming together in a united campaign of Protestant and Catholic working class people to resolve the problems both sections of the community faced equally. That could only be achieved on the basis of the unity of Protestant and Catholic working people. We realised that the British Establishment and State was guilty of enormously repressive actions within the North of Ireland, that its interests there did not coincide with the interests of the majority of working class people on either side of the divide and that the actions taken, including repressive measures, occasional atrocities and the victimisation of communities, was done in the interests of the Establishment and not the greater society.

We have always opposed the State taking on to itself extremely repressive and far reaching legislation, such as the Offences against the State (Amendment) Act, 1998. In the Dáil debate following the horrific atrocity at Omagh, I pointed out that this was not the way to approach this problem. We are concerned here with a handful of individuals on this island who continue to believe that individual acts of terrorism, such as the awful atrocity at Omagh, will bring about the change which they believe to be necessary. In response, the Legislature has introduced extremely repressive legislation which has serious civil rights implications.

Once a law is on the Statute Book it applies to everybody and every occasion. It is not simply confined to those responsible for the act that caused the Government to introduce this legislation. There have been instances where the original offences against the State legislation has been used for trawling or intimidation purposes against those who were not members of paramilitary organisations. The legislation gives far reaching powers to the authorities for detention, questioning and so on. It should not be allowed by those who want to respect the civil and democratic rights of everybody on this island.

The Offences against the State Act deals with far more than the activities of paramilitary organisations, as I have pointed out in previous debates. For example, a peaceful protest movement of civil disobedience, which might call for the boycott of a tax or a charge levied by a public authority, such as the campaign in the greater Dublin and other areas against the new bin taxes levied on working people, could, under the Offences against the State Acts, be considered a most grievous offence. This would mean that the activities of those involved in campaigns of civil disobedience, similar to the anti-poll tax campaign in Britain, which was a mass campaign involving millions of people, could be seriously curtailed and criminalised.

The motion renewing this far-reaching repressive measure should not be dealt with in the last few days of this Dáil. There should be a full debate on the issue. There is no need for the Government to rush through this motion today. It calls for the renewal of the relevant sections of the 1998 Act for a further 12 months commencing on 30 June 2002. A new Dáil will have been convened after the general election before that date, when there will then be adequate time to hold a wide-ranging debate on the principles and the draconian provisions of the legislation. For this reason I am opposed to the motion. I favour entirely different methods of resolving the issues within Northern Ireland which the Government states this legislation is required to address.

Minister of State at the Department of Health and Children (Ms Hanafin)

I thank Deputies Shatter, Howlin and Higgins for their contributions and I also thank Deputies Shatter and Howlin for their support for the continuance of the provisions of this Act. We all recognise that much progress has been made on the path to peace since the Good Friday Agreement, but we equally recognise that there are people who wish to use violence to advance their aims. They are not part of the peace process.

As a Government it is our duty to do everything we can to protect people and to ensure that atrocities such as the one at Omagh do not recur. That is why this legislation was introduced in 1998. It contains tough provisions. I was a backbench Deputy at the time of the debate and I recall saying that I did not like having to be in a situation where legislation of this kind was required.

It is important that the responsibility of the Garda in using the provisions of the Act should be highlighted. It has been very effective and a number of the provisions have been used in the past 12 months. That the House must every 12 months debate and decide whether to continue with them means that the power of the legislation rests with the House.

The Minister for Justice, Equality and Law Reform does not wish the legislation to be in force ad infinitum. We would like to be in the situation where peace here was such and our democracy was so strong North and South that we would be able to do without it. However, it plays a major and crucial role in the fight against subversive activity, which we know is occurring. It is having an effect.

Deputy Howlin asked about the other legislation under review. An interim report on the Offences against the State Act, 1998, was prepared and its findings will be considered in the context of the final report, as that is also due. A copy of the interim report was given to the human rights commission for its information and any decisions taken by the Government on foot of it will be advised to the commission. That will be for the next Government to decide. The deliberations of the committee will contribute to our thinking on this matter.

It is important that as a House of the Oireachtas, the Dáil reaffirms its commitment to the peace process and our resolve to ensure that people who want to use violence will not be allowed do so. It is also important that we put in place the procedures and mechanisms which stop them in their tracks. One of those mechanisms is the 1998 Act, with which we are dealing here. That is why I thank the House and the Members who have agreed to the continuance of its provisions for another 12 months.

Question put and declared carried.