Before we commence Committee Stage, I wish to ask the Minister, in view of the questions I raised on Second Stage, if he will clarify his intentions. It will help the tone of the debate if the Minister indicates his thinking.
Offences Against the State (Amendment) Bill, 1998: Committee Stage.
I understand what Senator Manning is speaking about. Although the provision as it stands would allow for an annual review, I am prepared to make a small amendment to the Criminal Justice Bill to insert the word "annual".
Will that amendment establish the principle of annual review in explicit terms?
Yes. It is covered as it stands. However, we will do so explicitly.
I thank the Minister. We had a long discussion on this issue this afternoon. My party is strongly of the view that the question of annual review should be explicitly stated in the Bill. The Minister has agreed to ensure this will be done in a different form. I thank the Minister and his officials for their courtesy in resolving this matter.
Given that this legislation is supposed to deal with terrorism, is the Minister happy to include airguns and crossbows in the definition of a firearm? To suggest that to show someone how to use a crossbow or an airgun is a subversive act covered by the provisions of the Offences Against the State Act is a little like using a sledgehammer to crack a nut. I refer to the definition in section 4 of the Firearms and Offensive Weapons Act, 1990. It is extraordinary that what is meant to be serious legislation to deal with serious subversion deals with crossbows and airguns.
Senator Ryan has tabled an amendment with regard to this matter. The provision is defined in terms of the Firearms Acts but I will discuss it in detail when we reach the amendment.
I move amendment No. 1:
In page 3, before section 2, to insert the following new section:
"2.—The Minister for Justice, Equality and Law Reform shall not exercise any power conferred on the Government or the Minister, as the case may be, by or under any enactment to provide for—
(a)the release (including temporary release) of prisoners from prisons or places of detention, or
(b) the remission or commutation of any punishment imposed by a court exercising criminal jurisdiction,
in respect of any person convicted of any offence or offences as referred to in section 5(1) of this Act on or after 22nd May, 1998.".
This amendment seeks to ensure that in the case of people who are found guilty of crimes under this legislation the Minister will not have the power to permit early release or remission of punishment, particularly with regard to those convicted of heinous crimes such as the killing of members of the Garda Síochána. It would be a source of great distress to relatives of victims of such crimes, and God forbid that any more should occur in the future. Under this amendment, the Minister would not have the power to permit early releases similar to those which have been agreed under the British-Irish Agreement.
I appreciate the Senator's motive for putting down this amendment. It is important to make it clear that people who continue to engage in the activities this Bill is designed to address will face the full rigours of the law. There is no question of people who engage in these activities after the date referred to in the amendment benefiting from the special early release arrangements in the British-Irish Agreement. However, while I do not intend to undermine that message, I cannot accept the amendment.
The terms of the amendment are too sweeping. It would, for example, apply to all people convicted of scheduled offences after a certain period even though those offences can be committed by people who are not engaged in terrorist activities. It would place an absolute prohibition on release no matter what compelling humanitarian circumstances might arise. Although those involved in terrorist activities showed little humanitarian concern in their crimes, it would be demeaning of the State to put itself in the position of being unable to respond with appropriate compassion no matter what circumstances arose. Acceptance of the amendment would prevent a prisoner who might be approaching the end of his sentence and who has a terminal disease from being released on humanitarian grounds, which is not something the House would have me countenance.
It is a fundamental principle of the governance of the country that the administration of prison sentences is a matter for the Executive. The effect of the amendment would be to tie the hands of the Executive in fulfilling that objective. None of my reservations means that I do not share the sentiments behind the amendment but I hope the Senator will accept the reason I cannot support it.
I move amendment No. 2:
In page 4, between lines 33 and 34, to insert the following subsection:
"(6) Where a person is arrested for the purpose of detention pursuant to section 30 of the Act of 1939, on suspicion of having committed an offence under section 21 of that Act, he or she shall, so far as is reasonably practicable, be removed to, and detained in, a Garda Síochána station to which the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations, 1997 (S. I. No. 74 of 1997) apply.".
This refers to a most important matter with regard to safeguards. My party is anxious to ensure that there are adequate and reasonable safeguards when interviews take place in a Garda station. The amendment proposes that these be introduced in so far as is reasonably practicable. The amendment is generously phrased when one considers the background to this issue. Let us consider the background to the provision of safeguards in emergency and other legislation. The Criminal Justice Act, 1984, provided for the electronic recording of interviews in Garda stations. Judge Martin's report of 1990 recommended that a record be kept of all interrogations in Garda stations. This Bill allows for 72 hours detention and the evidence which will carry most weight will be that of the Garda superintendent. Inferences can be drawn from a failure to answer questions or to give a full account of all movements, actions, activities or associations. It is essential that what is presented before the court is backed up by an audio-visual recording of what happened in the Garda station. When a Garda superintendent says in evidence that a defendant was silent during the entire period of questioning he or she must be able to back up this evidence with an audio-visual record. Such a safeguard is essential because a conviction for the offences listed in the Bill could lead to a long sentence.
Miscarriages of justice have occurred in the past arising out of abuses during interrogations. Gardaí are themselves open to being falsely accused of abuses committed during questioning when no record of questioning is available. I ask the Minister to ensure that at least one station in every province, in particular the main Garda station in Carrickmacross where many interviews take place, should be designated for conducting interviews under this legislation and should be equipped with audio-visual recording equipment. If that is done many of the concerns about abuse of civil liberties will be allayed.
I support Senator Costello's points concerning the curtailment of the right to silence. The video recording would prove a Garda superintendent's evidence that the accused person did not give evidence and did not speak. In relation to allegations of undue duress being put on prisoners to get confessions or statements, it will be important to have a video recording which will hopefully disprove such allegations.
On Second Stage I made the point that the Minister should set a timetable for having this equipment in as many Garda stations as possible throughout the country. I imagine one will be required in every Garda station where there is a resident Garda superintendent. I take it that, currently, such equipment does not exist in divisional headquarters where there are Garda chief superintendents. The aim must surely be to have such equipment installed in every station where there is a resident Garda superintendent. While this equipment is expensive it is not enormously so and the Minister would easily be able to fund it from his 1999 budget. In anticipation of getting all the money he needs to install the equipment in the Garda stations, I have specified that the programme should start now. The Minister should set a deadline so that at least by this time next year, maybe earlier, the contract for the installation of video equipment will have been carried out in all those places.
I support the amendment because it is drafted in a reasonable way. It could be quite useful should those who may be taken into custody, arrested or charged under these provisions, once enacted, contest any of these provisions in court. I expect they will be contested. In the past 30 years strong legal measures have been passed by the Houses of the Oireachtas, which were questioned, challenged or interpreted in the courts to an extent where their original intent was substantially watered down.
From the first day the Taoiseach responded to the events in Omagh the legislation has been rightly termed draconian. If, by general acknowledgement, we are introducing the legislation reluctantly but necessarily, we should ensure any proceedings taken under it will stand up to scrutiny at all levels. The provisions in respect of recording interviews in Garda stations, which are common practice in police forces all over the world, were recommended a long time ago. There is an onus on us to ensure the draconian laws we are passing will provide the utmost protection not alone to suspects but also to evidence which may be adduced in court on behalf of the State. In this day and age it is not unreasonable to expect that proceedings will be recorded.
Some years ago I attended a conference when changes to the right to silence were first being considered. At the conference a number of senior officers from the Garda Síochána stated they regarded it as a reasonable quid pro quo that should the right to silence be cut back or amended in any way, the recording of interviews should be introduced for the protection of all concerned. There would be no great opposition from that quarter.
The amendment is carefully drafted and states:
In page 4, between lines 33 and 34, to insert the following subsection:
"(6) Where a person is arrested for the purpose of detention pursuant to section 30 of the Act of 1939, on suspicion of having committed an offence under section 21 of that Act, he or she shall, so far as is reasonably practicable, be removed to, and detained in, a Garda Síochána station to which the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations, 1997 (S. I. No. 74 of 1997) apply.".
While the amendment accepts such exigencies, including emergency circumstances, it seeks to balance the reduction in normal legal rights by protecting proceedings for all concerned.
I support the amendment because not only would it be important from the accused's point of view but it would also be an extremely important protection for the Garda Síochána.
The question of the electronic recording of interviews with suspects raises complex issues and it might be useful for me to set out for the House the background to this issue. Pilot trials in the use of audio and audio-visual recording of interviews with suspects are ongoing at four selected Garda stations. These are: the Bridewells in Dublin and Cork, and Tallaght and Portlaoise stations. These trials are being overseen by a steering committee under the chairmanship of the President of the Circuit Court, Judge Esmond Smyth, whose task it is to assess them and report to the Minister in relation to a national scheme.
Up until early February 1997 the pilot trials have been in operation at these stations on a non-statutory, voluntary basis. However, on average only 8 per cent of suspects agreed to have their interviews recorded. I think it is fair to say that the low take-up rate by detained persons in relation to the option of electronic recording caused serious difficulties in trying to progress from the pilot scheme. The steering committee advised that it would be unable to reach definitive conclusions on the effects of electronic recording on the basis of such a low percentage take-up. It accordingly recommended that regulations be made under section 27 of the Criminal Justice Act, 1984, making it mandatory that interviews in the pilot trial stations be recorded subject to the gardaí having a discretion to discontinue electronic recording where a suspect objected to continued recording.
Arising from this recommendation the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations, 1997, were made on 11 February 1997. These regulations provide for the electronic recording of interviews with suspects in the four Garda stations participating in the pilot scheme.
With these regulations in place, the committee expects that the pilot scheme will begin to produce data on which a proper evaluation can be based. In this regard, the services of a research consultant have been engaged for the purpose of carrying out the necessary and statistical analysis of the data emanating from each of the pilot scheme stations.
I assure the House that I am anxious that as much progress as possible be made on this matter as quickly as possible and I will take whatever steps are open to me to achieve that. I propose shortly, in fact, to meet with Judge Esmond Smyth to discuss in particular the future measures which might be taken to facilitate and expedite their work and I will of course bring to his attention the comments which have been made in the course of the debate.
I announced in the other House last night that shortly a further two Garda stations at Henry Street, Limerick, and Mill Street, Galway, will be added to the pilot scheme and the necessary installation works are being undertaken.
The reality is that it would not be possible to have a workable nationwide scheme in place for some time and the measures contained in the Bill are clearly required now. In that context, it is worth noting that it was decided that it would be appropriate to proceed with much longer periods of detention under the Criminal Justice (Drug Trafficking) Act, 1996, without a nationwide scheme being in place. We would also have to proceed on this basis in relation to the detention provisions of this Bill.
The approach in the amendment requires a person detained under section 30 as far as practicable to be detained in a Garda station where electronic recording is in place. Given the reality of the situation which I have outlined, this approach is not workable. The concept of "so far as reasonably practicable" could lead to endless litigation. In subsequent court cases representatives of the accused could argue that it was practicable for him or her to be brought to a Garda station with recording equipment with the prosecution having to show that it was not.
In addition, the amendment would have the no doubt unintended consequence of possibly increasing the amount of time a person is in Garda custody as the time of detention for the purpose of section 30 only counts from the time the person reaches the station.
I want to emphasise that I appreciate the thinking behind the amendment and I am anxious to progress the issue of electronic recording as quickly as possible but, for the reasons I have outlined, which I believe are reasonable, I cannot accept the amendment.
If the Minister has some problem with the phrase "so far as is reasonably practicable", we would be quite willing to leave it out and make it necessary to have the facilities in all stations without giving them that flexibility.
The point is that the legislation was introduced in 1984. Whereas the pilot scheme indicated that only 8 per cent of suspects volunteered to have their interviews recorded electronically, there seems to be considerable evidence that this was partly due to the fact that they were afraid records would be taken and used against them in the future. They were not given a proper explanation of what was being done. This problem does not arise in other countries. Pilot schemes have been in operation for the past 14 or 15 years. The Minister must look seriously at ways of progressing this because we cannot operate in this way for the next 15 years.
This legislation is different from the norm; it is, as the Taoiseach and Minister said, emergency draconian legislation. We must ensure it is not used in such a way that it abuses the rights of the gardaí or the suspect. I suggest that the Minister be a little more forthcoming than saying a steering committee and research consultancy will look at this and that he is anxious to progress it as far as possible. Other remarks made by him indicate that no progress is likely to be made. We are looking for a commitment that audio visual recording facilities will be reasonably available to the gardaí conducting interviews in the context of offences arising under this legislation.
If we take out "as far as is practicable" we are then into making this mandatory, which we are not in a position to do at present. It is not workable at the moment. My objections to the amendment are not philosophically based and do not emanate from any point of principle. The logistics dictate that it is not possible to do as Senator Costello wishes. We will try to advance the concept of audiovisual interviews as quickly as possible. It is important to point out that the take-up rate was only 8 per cent in that accused persons were reluctant to take this option. That we have made this compulsory will mean we will be able to extract a far greater degree of data from the pilot schemes in operation. We will then be able to proceed from there. I cannot go off on a tangent at this time with this matter, desirable though the whole question of audiovisual recording is in the context of this and other legislation. Unfortunately I cannot say any more than that we are progressing this matter.
By the time the Minister has progressed along the lines suggested this legislation will have terminated in accordance with the provisions laid down. Enough progress will not have been made in time if the Minister continues along the path he is suggesting. If it is to bear any relevance to this legislation the Minister must be in a position to make a commitment here and now to make audiovisual recording facilities available straight away.
I am not in a position to do as the Senator requests. I have explained the situation as best I can. Recording equipment is in operation in the four stations mentioned and will be available at a further two stations soon. We are trying to progress as quickly as we can. The logistics are such that I cannot meet the Senator's request.
- Costello, Joe.
- Gallagher, Pat.
- Henry, Mary.
- O'Meara, Kathleen.
- Quinn, Feargal.
- Ross, Shane.
- Ryan, Brendan.
- Bonner, Enda.
- Callanan, Peter.
- Cassidy, Donie.
- Cox, Margaret.
- Cregan, John.
- Dardis, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Liam.
- Fitzgerald, Tom.
- Fitzpatrick, Dermot.
- Gibbons, Jim.
- Glynn, Camillus.
- Keogh, Helen.
- Kett, Tony.
- Kiely, Rory.
- Lanigan, Mick.
- Leonard, Ann.
- Lydon, Don.
- Mooney, Paschal.
- Moylan, Pat.
- O'Brien, Francis.
- O'Donovan, Denis.
- Ó Murchú, Labhrás.
- Ormonde, Ann.
- Walsh, Jim.
I move amendment No. 3:
In page 6, between lines 14 and 15, to insert the following subsection:
"(10) No inference shall be drawn from the failure of a person to call a witness in respect of whom he or she has given notice under subsection (1).".
Section 3, a substantial section, deals with the notification of witnesses and introduces a new requirement that a person who is accused of membership of an unlawful organisation must disclose for the defence a list of witnesses to the prosecution in advance of the trial. This section is a very good example of why one should spend time discussing legislation such as this. I think this new requirement needs teasing out and other elements need to be discussed at length but unfortunately we will not get the time to do so. We tabled an amendment to insert at the end of the section that "no inference shall be drawn from the failure of a person to call a witness in respect of whom he or she has given notice under subsection (1).". We did so in the absence of an opportunity to have a detailed examination of this very detailed section.
Some basic safeguards should be provided for and in that context this amendment proposes that if the accused is required to provide advance notice of his or her defence to the prosecution, as the section requires, and where strict deadlines may apply, no adverse inference should be drawn by a court by reason of a failure to call witnesses where such advance notice has been given. One can envisage that happening, particularly in cases where strict deadlines apply, and the intent of this amendment is to insert a level of protection in that regard.
Section 3 requires that a person facing a charge of membership of an unlawful organisation must notify the prosecution of any witnesses he or she proposes to call in his or her defence. The amendment would provide that no inference shall be drawn from the failure of a person to call a witness in respect of whom he or she has given notice.
I do not wish to accept this amendment. If it were to be accepted the reality is that a member of an unlawful organisation could notify, say, 50 witnesses without the intention of calling any of them in an effort to undermine the efficacy of the section.
I should mention that this section is based on a section in the Criminal Justice Act, 1984, and I want to keep the provisions of this legislation, so far as I possibly can, in line with the provisions in that more tested and tried legislation.
Amendment No. 4 is in the name of Senator Brendan Ryan. Amendments Nos. 5 and 6 are related and it is proposed to discuss amendments Nos. 4, 5 and 6 together by agreement.
I move amendment No. 4:
In page 6, to delete lines 19 to 24 and substitute the following:
"movements, activities and actions.".
In his contribution to this House, and in those to the other House, the Minister made great play of the fact that the provisions of this section on their own could not result in somebody being convicted of membership of the IRA or, I should say, an illegal organisation; my use of the phrase "IRA" is technically subversive in that I could be prosecuted for that alone under the Offences Against the State Act.
This amendment is an amendment to the Act passed in the Dáil under the most extraordinary circumstances on the night of the first bombings in Dublin. The purpose of the amendment made then is that any conduct by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall be evidence that he was then such a member. Obviously the Government was not satisfied with that so it decided to define the word "conduct" and inserted a number of phrases including "movements, activities and actions".
Apart from the offensive nature of the original section of the 1972 legislation, to include the word "association" and to suggest that movements, actions, activities or associations could be used to corroborate evidence that a person was a member of an illegal organisation is an extraordinary change in our thinking, not because people can be convicted but because they can be legitimately arrested because of those with whom they associate.
I want to give specific examples of what could be done. I used to frequent a licensed premises 20 years ago which was described by a member of the Garda Síochána in court, much to my amazement, as known to be frequented by subversives. I, therefore, was associated with subversives. I have presided at and spoken at meetings about what I and others believed to be miscarriages of justice and abuses of the Offences Against the State Act and people whom the Garda Síochána believed to be associated with illegal organisations were present; in other words, members of Sinn Féin in particular. Clearly, I have associations which, under this legislation, would allow a reasonable garda to come to the conclusion that I am a member of an illegal organisation. He could not prove it, but he could arrest me.
The problem for the Department of Justice, Equality and Law Reform — I suspect the Minister may not be fully aware of this — is that the Garda Síochána or the Department have agreed to pay out substantial damages because people have been arrested on suspicion of membership of an illegal organisation when the arrest was entirely spurious. A young lady was ejected from a Fine Gael Árd Fheis at the time of Nicky Kelly's struggle to clear his name because she interrupted Garret FitzGerald's presidential address, and when she proceeded to protest outside the Garda officer in charge warned her to shut up or she would be arrested. When she did not shut up he told her he was arresting her. When she asked him what for he said he was arresting her on suspicion of membership of an illegal organisation. Subsequently that young lady was paid substantial damages by the State without admission of liability because she sued for unlawful arrest.
Under the amendment proposed by the Minister, she could be branded guilty by association and, at the very least could legitimately be arrested because of who she associated with. Similarly, the entirety of the committee that ran the H-Blocks campaign in this State in 1981 could have been arrested, detained and questioned — I accept they could not have been convicted. This means that any citizen who associates him or herself with any campaign in which people whom the Garda Síochána believe to be members of an illegal organisation are involved can be at least arrested, detained and questioned presumably for the duration of time permitted by this legislation. It does not mean that people can be convicted, but it is a licence, if people wanted to use it as such, to make life very difficult for people who are conducting what should be in a normal democratic state legitimate campaigns on issues of human rights, civil liberties and the administration of justice.
What I am proposing as an amendment is, first, to eliminate reference to associations because of the extraordinarily disproportionate nature of that word and, second, that the wording should be "movements, activities and actions" rather than simply the vague term "associations" so that there would have to be at least a combination of circumstances. I also propose to amend the second section of this, which is taken from the original legislation in 1972 and contains the quite extraordinary proposal that somebody who fails to deny published reports that he is a member of an unlawful organisation can be held to be suspect of membership. That particular section means that Martin McGuinness in particular and Gerry Kelly also could be arrested by any member of the Garda Síochána in this State because they have not denied it every time a journalist has suggested that they are members of the IRA.
I do not know what the Minister wants to do with this legislation, but he should get away quickly from the concept of guilt by association, which will be used to tarnish the reputation of people who have a correct, legitimate and necessary — for the sake of a democratic society — commitment to struggles on behalf of people who are victims of injustice who, by definition, are on the margins of society. My amendment proposes, therefore, to remove this obnoxious word "association" from this legislation.
Like Senator Ryan the Labour Party has tabled a similar amendment. We do not see the connection between "movements, activities or actions" and "associations". If one considers the meaning of the word "conduct", it appears to refer to a person's activities and actions which may be used in evidence. The area of associations is entirely different. It involves other people's homes, arenas and places they frequent. A good example before the British courts, is the recent case involving Ms Elaine Moore. She was arrested on the basis of association and has been charged. This legislation would have been used strongly against her if it had been in place in Britain at the time of her arrest.
Mr. Giuseppe Conlon, the father of an accused, was prosecuted on the basis of association. He spent years in prison and died there. If one is in the wrong place at the wrong time, one can be guilty of association. There is a world of difference between movements, actions and activities and associations. The Minister would do a good day's work if he removed that term. I do not understand why it is necessary to include it in the provision in addition to the word "conduct".
Section 4 refers to the omission by an accused person to deny published reports that he was a member of an unlawful organisation. How can a person peruse all the reports, rumours, magazines——
Or every website on the Internet.
It would be impossible for a person to do it. An individual could be set up; it could be open to abuse. The paragraphs are badly drafted and grossly unfair in legal terms. Undoubtedly, they could lead to abuse. The best action would be to delete them.
I agree with Senators Ryan and Costello about section 4. However, paragraph (ii) is ridiculous. I realise it is a small amendment to the original section 3(1)(b) of the Offences Against the State Act, 1972, but I am not aware of how many people, if any, have been arrested or arraigned on the basis of that provision so what is the point of repeating it in the new legislation?
One of the most important points about which we hear constantly is the difficulty people experience — it is worse for people in private rather than public life — in having corrections made to inaccuracies in the press or other forms of media. Other speakers mentioned the Internet. It is impossible for citizens to police the Internet and see everything that is being said about them or have it corrected. Members of the Oireachtas have great difficulty having inaccurate information about them corrected. It is not unknown for senior Oireachtas Members to take libel cases against newspapers where they considered they were not getting adequate treatment.
The only newspaper of which I am aware that has an enthusiasm for corrections is The Irish Times. Perhaps the other newspapers have a similar policy and are not so public about it, but it is extremely difficult for people to have corrections made. In terms of the paragraph, should people peruse literature and for how many years should they follow up books to see if their names were mentioned, even in an historical context if they previously belonged to a subversive organisation? Books are frequently written about organisations which were unlawful 20 years ago.
Another important point is that if one is a member of an unlawful organisation, one is supposed to deny it. What is the point of people denying their membership of an organisation when one knows that they are supposed to deny it even if they are members? About 20 years ago when I asked a certain person whom I knew to be in the IRA if he was a member — it was frequently reported in the newspapers that he was, although he generally denied it — he replied that he was its Belfast quartermaster and a bad one at that. What did his denial mean? One is not supposed to say one is a member of an illegal organisation. It is a pointless exercise.
I support Senator Henry. There is a sense that those who are trying to improve the Bill should feel guilty for tabling amendments and it is presumed they do not support it. The thought is far from our minds. Senator Costello highlighted the dangers. The State could incur huge costs as a result of being sued if we pass bad legislation. I find it difficult to believe this is good legislation. The section contains the words, ". omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive". What does this mean? As Senator Henry said, the legislation should be capable of being understood.
About 30 years ago in an Irish daily newspaper I was mistaken for somebody else and referred to on the front page as a veteran IRA man. While the editor agreed to make a correction, I felt he went too far in that he not only said I was not an IRA man but was far removed from Nationalism and republicanism. I almost asked him to make a second correction. Sometimes it is best to leave something uncorrected to avoid drawing attention to it.
I urge the Minister to seriously reconsider this provision and look forward to hearing his explanation. We are anxious to ensure this is good legislation.
The 22 Senators who contributed to the debate on Second Stage condemned the atrocity in Omagh with sincerity and emotion. We are dealing with a renegade band of no more than 80 to 100 men. Who would want to be associated with them? Having condemned their actions we are now falling into the trap of defining words.
I am concerned about the way in which the word "associations" may be defined by the Garda authorities. I hope the Minister will define clearly what it means in the context of this section which contains the words, "movements, actions, activities or associations on the part of the accused person". It may be defined in a variety of ways. Does this mean that associating with someone else is an association? If one is seen speaking to another person for a considerable length of time, can that be defined as association? This is open to wide and varied interpretation and clear definition is needed of all these terms so that those empowered to use this legislation can do so with a clear idea of what is meant. I hope the Minister gives a detailed definition in his response.
I support Senator O'Donovan. This legislation is intended to guard against what happened in Omagh. It is important to realise that those who committed that type of deed will not be stopped by legislation that does not go far enough and that this legislation will be implemented in the best spirit possible by the Garda and the Judiciary. It is vital that we give them the powers to arrest, prosecute and jail those who have committed or are capable of committing these deeds. I understand the concerns expressed, but the authorities, elected representatives and Judiciary that worked for the British-Irish Agreement will continue to work to safeguard peace. This legislation will be implemented in the spirit in which it is intended, and while I have concerns, given the terrorism and the mentality we are dealing with, this is the level of measure we must take. It takes a great deal of courage to introduce the changes in legislation that will ensure that these people are put behind bars and that they will not be able to do what they did in Omagh.
Section 3(1) of the Offences Against the State Act, 1972, provides that
. any conduct by an accused person implying or leading to a reasonable inference that he was, at a material time, a member of an unlawful organisation, shall, in proceedings under section 1 of the Act of 1939, be evidence that he was then such a member .
Section 4 of this Bill defines conduct as including "movements, actions, activities or associations on the part of the accused person". The amendments propose to exclude the reference to associations.
I appreciate that what the Bill proposes may remind people of the phrase "guilty by association", and some may find that instinctively unpalatable. However, we must deal with the reality of membership of illegal organisations. Like it or not, that reality encompasses the fact that the associations of a person can be relevant to the question of membership of such an organisation. In those circumstances I strongly contend that it would be unwise to delete the word "associations".
This provision is included in the Bill as much for the avoidance of doubt as anything else. A strong case can already be made that the definition of "conduct" in the 1972 Act already includes the concept of associations. To that extent, we are clarifying the position. If I am wrong, then we are adding "associations" to the meaning of the word "conduct". While I appreciate the thinking behind amendments Nos. 4 and 5, I emphasise that the associations which a court can take into account are only those which imply or lead to a reasonable inference that a person is a member of an unlawful organisation. It is childish and nonsensical to put forward the argument that if an individual meets another person in town who perhaps may be a member of the Real IRA and engages in a conversation with him or plays football on the local football team with him that of itself would be evidence of the fact that his association was such that a reasonable inference could be taken from it that he was a member of an unlawful organisation. On the other hand, if , for example, a person went one night to a room at a secret location and had a meeting for a couple of hours with five or six people who were members of the IRA, a court might be entitled to draw reasonable inference from that.
Let us be reasonable when we define the word "reasonable". We are talking about a reasonable inference, not an unreasonable, unfounded or ill-founded inference. Some of the arguments in this respect have been unreasonable and, in those circumstances, the fears which have been expressed in relation to what the Bill proposes to do are not justified. I cannot support those amendments. Section 3 of the 1972 Act is concerned with what can and cannot constitute evidence of membership of an unlawful organisation. It does not create an offence in itself.
The amendment which section 4 of this Bill makes simply aligns the definition of conduct with the inference provisions in section 2. The inference provisions in section 2 provide that if an individual, for example, refuses to answer a question regarding his or her associations, movements, actions or activities, then the court may — and it might not — in those circumstances draw an inference which would be corroborative to the effect that an individual was a member of an unlawful organisation. There is nothing unreasonable or unfair about that because it must be proven to the court beyond a reasonable doubt which is, I repeat, the burden of proof applicable in Irish criminal courts and the criminal justice system. The section does not deal with the question of arrests and it would be erroneous to say otherwise.
The effect of Senator Henry's amendment would be to delete the reference to conduct being defined to include the omission on the part of an accused person to deny published reports that he was a member of an unlawful organisation and the fact that such denial would not by itself be conclusive. I should explain the amendment which the Bill makes to section 3 of the 1972 Act is of limited scope and is restricted to that part of the definition which proposes that conduct should be defined to include movements, actions, activities or associations on the part of the accused person. The reference to an omission by the accused person to deny published reports that he was a member of an unlawful organisation and the fact of such denial should not be conclusive is not something new. That is already part of section 3 of the Offences against the State (Amendment) Act, 1972, and it is included again in this Bill only because an amendment is being made to the relevant provision.
The provision was enacted in circumstances and at a time when persons — people will recall them — openly advertised their role in unlawful organisations. It has limited impact now as published reports of members are, as we all know, routinely denied. I am not sure the Senator or the House would want to return to the situation which existed in that regard in the early 1970s. More than that, the other considerations which gave rise to the inclusion of the provision in the 1972 Act seem to remain valid. It is interesting to go back and outline the reasons the then Minister felt this provision was necessary. Column 269 of the Official Report of 29 November 1972 states:
But a moment's thought will show that there are some reports which any reasonable person would naturally deny if they were false, as when a respectable person is reported to be acting dishonestly or in any other manner which he himself would regard as reprehensible. In such a case his omission to deny the report will ordinarily, as a matter of common sense, imply or lead people to infer that the report is true. This principle applies with particular force to the offences under consideration, for there are some people who have been so often referred to in published reports as being prominent members, or holders of important offices, in unlawful organisations that they must be regarded, by reason of their failure to deny the reports, as holding themselves out as being members.
I ask Members to reflect, 26 years later, on whether there are people whose names are reported who do not deny that they are members of an unlawful organisation. The provision made in this regard should also be seen in the proper context of the section.
Section 3(1)(a) provides that any statement made orally, in writing or otherwise, or any conduct by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was such a member. The key words are conduct "implying or leading to a reasonable inference". In other words, the conduct must imply or lead to a reasonable inference. The definition of "conduct" in paragraph (b) of subsection (1) will be read in that wider context and consequently an omission to deny such a report will be evidence only if the omission is to deny a published report and is such as to lead to a reasonable inference that the accused was a member.
Senator Henry referred to an individual not knowing that it was published that he or she was a member of an unlawful organisation. Senator Costello made the point that an individual could not be expected to keep up with all the sophisticated communication methods and therefore he or she would not know whether his or her name was published as being a member of an unlawful organisation. Lack of knowledge of a published report would be a circumstance where it would be reasonable for a court to draw an inference from a failure to deny a published report. It would be accepted that a court could not be expected to draw an inference from a published report about which an individual did not know. To do otherwise would be unreasonable. I am sure all Members would agree that a court would not do that.
The 1972 provision has been on the Statue Book for almost 26 years and in that time it has not been established in any way that it is open to the type of abuse Senators suggested, let alone that there was any such abuse.
The Minister's Department paid out money because the section dealing with membership was abused. Because the Department declined to contest that in court it had to pay out money. I am aware of a young man who, after a meeting related to the Gibraltar Three, was stopped by the Special Branch and told that if he did not tell them who he was and where he came from he would be arrested on suspicion of membership of the Provisional IRA. This section is abused. The fact that the little people do not have the necessary resources to contest this in court does not mean this section is not abused.
I have been followed home by the Special Branch and have had them wait outside my apartment and change shifts in the process. I know others who were stopped and asked directions by officers in an unmarked Garda car and ended up being lectured. These people had no connections with subversive organisations. The problem with these sections will not arise in court but when gardaí, who believe they are devices to trawl for information, use them for that purpose. If the Minister wishes them to be used for that purpose by all means let him say so. Pretending it is a matter for the courts is disingenuous. These sections are used to trawl for information and this Bill is an excuse to trawl further. It is not the right way to proceed. The law should protect the citizen and not leave him or her open to inconvenience at best and significant misuse at worst by gardaí.
Will the Minister tell me what sections of the Bill or the Offences Against the State Acts guarantee that these provisions will only be used against the Real IRA as distinct from the Provisional IRA, the largest illegal organisation in the State, which as recently as last Tuesday said it was organising in each of the Thirty-two counties? If it is used against the Provisional IRA, what will happen to the peace process?
There is no question of any Member not wanting the Minister's legislation to be as effective as possible. The Omagh bombing is not the only outrage; we have suffered in this country for years. Imagine if that bomb had gone off on the ferry from Dún Laoghaire. We are dealing with people who operate in such a manner. I cannot see the benefit of asking people who are told to lie to deny reports in the papers that they are not what they are. I would not mind if there were value in it but I cannot see the value in asking them as we would not believe their lies.
I put the converse case to Senator Henry. If we do as she says, it effectively means a person can be of the view that, if his or her name is published in a newspaper as being a member of an unlawful organisation, he or she is under no obligation to deny it. It would be as if it did not matter. We do not want people to feel they can be publicised as being members of an unlawful organisation in a civilised, democratic society with no obligation on them to deny it. There is also the matter of evidence which is of considerable importance.
Senator Ryan stated that compensation was paid out in some cases. I do not doubt his accuracy but he should outline, as regards the specific provision with which we are dealing, in what cases compensation was paid out. Is he speaking of compensation in respect of matters concerned with section 30? Are we talking about arrest or conduct? It is important that it be clarified. Membership of an unlawful organisation is difficult to prove; people do not wear it on their sleeves. It is not like proving a person is a member of a golf or GAA club. Courts require certain proof. For obvious reasons, it is not easy for the authorities to prove membership of an illegal organisation. The evidential changes proposed are reasonable in so far as they concern the precise definition of "conduct". I remind Senators that at all times the court has to be satisfied beyond reasonable doubt of the guilt or innocence of the accused. The court has to be satisfied at all times as to the reasonableness or otherwise of the inference it is suggested it should draw. If it is not satisfied then it will not draw that inference and the matter does not go to evidence. The position cannot be put any more strongly.
Amendments Nos. 5 and 6 cannot be moved as amendment No. 4 has been defeated.
I do not understand that, Sir, particularly concerning amendment No. 6.
If amendment No. 4 is defeated, amendments Nos. 5 and 6 cannot be moved.
May I repeat a question to the Minister, Acting Chairman, as this is the most appropriate place to do so? This Bill contains amendments to the Offences Against the State Act, 1972, concerning membership of an illegal organisation. Will the Minister explain how the Government proposes to ensure that these measures are only used against the Real IRA and the Continuity IRA and not against those organisations which have announced and, more or less, maintained a ceasefire? How does the Minister propose to ensure that this legislation is not applied to members of the Provisional IRA or is it the intention to start locking up members of that organisation? If so, has he any thoughts on the consequences of such actions for the peace process? We have been told that these measures will only apply to the Real IRA. However, I have seen nothing in the legislation which states that it applies only to that organisation.
The Senator is entitled to raise this issue. I am proposing an evidential amendment to the 1972 Act for reasons which are very clear.
That is not an answer. I am a reasonable man and I want to know why the Government is saying that this is only meant to be directed against the Real IRA. If so, how does the Minister propose to ensure that that happens? That is not the question he answered.
I do not see anything in the legislation which restricts the terms of the Bill in so far as it refers to illegal organisations.
The Taoiseach and the Minister have both stated in the House that this legislation is designed to deal with the threat from the Real IRA. However, a garda may arrest someone on suspicion of membership of the Provisional IRA. If he does so and arrests a senior member of Sinn Féin, what will that do to the peace process? How does the Government propose to ensure that that does not happen? Will the Minister agree it would be a disaster if senior members of Sinn Féin were arrested on suspicion of membership of the IRA?
Will the Minister agree there are a number of listed subversive organisations that can be named and are on a register? Anyone who is a member of any of those organisations or who subverts the State in any way can be taken in under the provisions of this Bill. Anybody who wants to do anything like what was done recently should be taken in, whether it is the Real IRA or any group of people who put a political-type halo over their head and think they can be classified in a particular category. If their intent is to subvert the State the Bill should apply and it should not be restricted to the IRA or anybody else. It should apply to whoever is on the prescribed list.
This is getting more and more irresponsible. If Fine Gael wants large numbers of members of the IRA arrested, or people whom the Garda believe to be members of the IRA, at this particularly delicate time in the peace process——
Anybody who wants to subvert the State and the democratic institutions of the State.
If that is what we want, fair enough. I thought we were trying to lead a large section of the republican movement away from violence and we were aware of the difficulties for the leadership of Sinn Féin in doing that and of the considerable leadership they had shown under enormous pressure.
They have removed themselves.
What procedures are in train to ensure the extra powers and the extra evidential mechanisms available under this legislation will be used only to deal with people who are not in the process of moving towards a position of permanent peace? If we are trying to work towards an end to violence, attempting to arrest large numbers of people on suspicion of membership of the Provisional IRA is precisely the wrong thing to do. Has the Minister any procedures in mind to ensure that middle ranking and other gardaí do not arrest people on suspicion of membership of the Provisional IRA at a time when, obviously, that could be a disaster for the peace process? I am used to Fine Gael and its nonsense but I would like to hear the Minister's response.
The position is as I outlined earlier. The legislation applies to unlawful organisations and there is no limitation in terms of the definition of what an unlawful organisation constitutes. On more than one occasion I have stated the legislation is in response to the atrocity in Omagh.
I move amendment No. 7:
In page 7, between lines 33 and 34, to insert the following subsection:
"(2) Without prejudice to the generality of subsection (1), a person who knowingly solicits, contributes or holds moneys for the use or benefit of, or for use for the purposes of, an unlawful organisation in respect of which a suppression order under section 19 of the Act of 1939 is in force shall be guilty of an offence under that subsection.".
This amendment seeks to strengthen the extra safeguards being put in place by this legislation to counteract people who assist organisations such as the Real IRA, who were associated with or involved in the atrocity in Omagh and the other attempts at killing and bombing in the past number of months, some of which have succeeded in causing destruction and others which, thankfully, have been foiled by the Garda. There is a gap in existing legislation to the extent that there is not a specific offence covering contributing to, fundraising for or holding money on behalf of an illegal organisation. Although such money is held forfeit to the State under the amending legislation of 1985, criminal proceedings cannot be brought against those involved. I propose that an additional subsection be added to section 6 to cover this matter.
I am particularly concerned about the handling and conveyancing of money which may be raised outside the jurisdiction in, for example, the United States. People such as Martin Galvin in the US, who was previously associated with fundraising for Noraid and other organisations, have been explicit in their support for organisations such as the Real IRA. The legislation should clearly state that any contribution towards, fundraising for or holding of money on behalf of an unlawful organisation contravenes the law and that those involved will be tracked down by the Garda and brought before the courts to have their cases heard. We are talking about a range of grave offences and making such provision is the least we can do. We should try to deprive that small organisation of whatever oxygen exists to allow it survive now or in the future. Tackling fundraising and financial contributions in support of their activities should be one of the first issues to be examined and addressed.
I support the amendment. Section 6 creates the new offence of directing an unlawful organisation. The amendment goes a long way towards strengthening what is already a very useful section in terms of reaching those whose hands may never touch semtex or who may never drive a car containing a bomb but who are as guilty and more so of perpetrating evil acts through their organisation or support of them and their collecting, soliciting, contributing or holding money used by an unlawful organisation. This is a very useful amendment which considerably strengthens the Bill. It would give the authorities the necessary powers to ensure that those who contribute in any way towards these dreadful acts are dealt with effectively.
An amendment such as this would make a significant difference and I am astonished that such provision does not already exist. It would keep Martin Galvin out of the country as such provision would allow for his arrest, a consummation devoutly to be wished. Such provision is an appropriate response. It should not be possible under the law to raise funds for an illegal organisation. Neither should it be possible for people who have done so outside the State to visit here. I enthusiastically support the amendment as it is the correct approach in the context of section 6 which is a long overdue measure.
I also support the amendment. Last night BBC television screened a programme relating to the activities of supporters of the Continuity IRA or the Real IRA in the United States. The programme included interviews with Mr. Galvin.
The reason the IRA is the best armed subversive group in Europe and probably in the world is because it was able to raise huge sums of money to buy arms. Colonel Gadaffi and the other suppliers did not give the arms for nothing. The arms were paid for, and probably well paid for. That is why this arsenal is out there — a cause of concern for all of us, although it has merited little comment today.
There is a small group which has access to a proportion of that arsenal. Given what we saw on television last night, fundraising will continue covertly within this State and openly outside its borders, perhaps in the United States. Money will be transmitted to this country and some so-called treasurer will have the responsibility of handling it. It is timely of Senator Costello to put down this amendment. I do not know if this amendment was tabled in the Dáil last night, and I realise that accepting it in the Seanad would raise the difficulty of having to recall the Dáil, but the Minister should consider accepting it because it is a weapon he needs in his armoury to fight these people.
There is a determined hard core, who do not necessarily live in this State, who intend to continue to raise funds and who will get them because of the romantic view which exists beyond the shores of this country about the so-called struggle for independence here.
Like my colleagues, I support this amendment. It is a sound and sensible amendment with one specific purpose — to cut off the means by which subversive organisations can equip themselves with arms and ammunition. That is a basic issue and Senators Costello, Gallagher and O'Meara have made a very solid proposal.
If this amendment is taken on board, it will give the Minister another strong section to deal with the practicalities which emerge. These organisations could not function unless they were well financed. In the United States huge amounts of money are raised. We have heard that President Clinton will take action against fundraisers in the United States to discourage those people. It is imperative that we take action and use the opportunity presented by this Bill. I can see no reason the Minister would have any difficulty in taking this amendment on board.
To add to the positive contributions in favour of this amendment, we consider it an important additional area which has not been covered by the provisions of the Bill. It would ensure the people involved would feel the rigours of this legislation. If we look at some of the areas which have been covered, one would wonder why this area was not examined to get the godfathers who have been going around the world, to the United States, Germany and the Arab countries, collecting funds and depositing them in various funds with the intention of causing mayhem.
I am amazed the Minister is not receptive to an amendment of this nature. We are not talking about some poor old granny making a contribution by buying an Easter lily, we are talking about people of substance who have solicited funds, who are part of organisations here and abroad and who would also hold this money.
It behoves the Minister to show that he is intent on getting to the root of the problem at this level. Certainly there are many parts of this island which could do with this money — it could be well used in some of the disadvantaged areas in my own constituency, in the Border counties.
Section 6 provides for an offence of directing an unlawful organisation. This amendment would add a new section to the effect that it would be an offence under the section to knowingly solicit, contribute or hold money for the benefit of an unlawful organisation. The manner in which the amendment is drafted would mean that a person who collected money for an unlawful organisation could be liable to imprisonment for up to a life term, although I doubt that is its intention.
Pursuing the finances of unlawful organisations raises very complex issues and the advice available to me is that a provision along the lines contained in the amendment would be cosmetic and fail to make any substantial difference in terms of operational realities. It might be helpful to mention that legal provisions already exist which impinge on this area, namely, in section 5 of the Explosive Substances Act, 1883, and section 3 of the Criminal Law Act, 1976. A provision dealing with permits is contained in the Street and House-to-House Collections Act, 1962.
I accept that the pursuit of any kind of financial wrongdoing is difficult but difficulty does not excuse inaction. I am very disappointed by the Minister's response to this amendment. I thought one of the first things he would attempt to do to cut off the oxygen supply to these illegal organisations would be to deprive them of the money they need to buy arms, manufacture explosives and so on. Regardless of how complex it might be, the least I would expect in a debate on what we are told is draconian legislation would be a commitment from the Government that whatever needs to be done to target this money and the people who collect and distribute it would be done. The parallels with the drug crime situation in this country are obvious and it took a terrible disaster in that area to put in place the necessary legislation which targeted the issue of finances. We have seen how effective that legislation is and such provisions should apply equally, if not more so, to organisations which carry out atrocities such as we have witnessed in Omagh. I expected a more robust response and commitment from the Government on this count.
I am disappointed by the Minister's remarks and consider his excuses to be very lame indeed. This Bill contains a draconian proposal for the confiscation of people's property. On Second Stage I made the point about the inviolability of people's right to private property contained in the Constitution and the involvement of a person's family in such property. Those provisions will be very difficult to enforce. Considering we are taking such draconian steps on that front, I believe it would be relatively easy to make it absolutely illegal for someone to fundraise or hold funds for an illegal organisation which would use them to buy arms and manufacture explosives. The IRA was successful in purchasing all kinds of sophisticated weaponry and explosive substances because it had the necessary funds to do so. Much of that money was raised through bank robberies but the majority of it was raised outside Ireland, particularly in the US. There was no mechanism in place through which that money could have been intercepted coming into the country or which would make its handling or use illegal. We have legislation of this kind in other areas, in relation to drug trafficking and so on. The Minister's excuse is rather lame and he should admit that this provision was overlooked in the drafting of the original Bill and that it is too problematical to include it at this stage as he wishes the Bill to be signed into law this evening. That would not be possible if he accepted this simple, but necessary, amendment.
I do not lightly say the issue raised here is a complex one. It is not quite as simple as it sounds. Section 3 of the Criminal Law Act, 1976, states that any person who recruits another person for an unlawful organisation or incites or invites another person or other persons generally to join an unlawful organisation or take part in, support or assist its activities — which would include the collection of money — shall be guilty of an offence and shall be liable on conviction or indictment to imprisonment for a term not exceeding ten years. This amendment is laudable but there are considerable legal complexities involved. In the meantime it is a criminal offence to incite or invite another person to support or assist the activities of an unlawful organisation. The Offences against the State Act, 1985 also contains provisions which deal with the collection of money for unlawful organisations.
The first layer of complexity is that people do not travel around the country saying they are collecting for the Real IRA or any proscribed organisations. In the past arguments were made that the political wing of a paramilitary organisation should be proscribed in order, for example, that one would be able to prevent them collecting money. Proscribing an organisation with a political objective — albeit with a military wing — is extremely complex and difficult to the point of being impossible because its name could be changed continually. It is very difficult to proscribe an organisation which professes itself to have a political objective and that it is entirely divorced from the use of arms or promoting military means. I trust my explanation will help to outline the outer layer of complexity involved.
There are few areas of law that are more complex than the laws relating to property in this State, particularly since the constitutional protection afforded to property is very strong. Yet it is right that we should make provisions to confiscate property if it is used for the illegal purposes set out here. As a democracy we expect our Government to re-examine the current legislation, to take any reasonable steps to revise it and bring legislation before us to ensure that those engaged in illegal activities, such as those outlined, should be deprived of their money. Our laws ensure that anyone who helps these organisations to raise funds, manages their finances, holds money for them or moves it around is regarded as indulging in the worst possible type of crime. I cannot accept that complexity is a reason for not giving a commitment on behalf of the Government that any further action that needs to be taken in this area will be taken. It is the least I expect from the Minister.
The Minister explained to us that proving membership of an illegal organisation was complex and, therefore, complex legislation was needed, but nevertheless insisting — as we all agree — that it is necessary to attempt as far as possible to bring people to justice when they are members of an illegal organisation. The complexity did not hinder us from attempting to deal with that problem quite justifiably. I do not understand why complexity of itself should leave such a gap in our legislation. Legislation is a statement of society's views. Many aspects of legislation contain statements of the beliefs of society about what is right and wrong. This amendment is a statement further underlying our determination to prevent illegal organisations from getting the resources to perpetrate awful acts. I am disappointed the Minister used complexity as an excuse not to at least accept in principle the intent of this amendment.
None of us dispute the need to deal with people who indulge in fundraising activities for illegal organisations. I share the views expressed by Senators Ryan and Gallagher that complexity should not prevent us from introducing the required legislation. However, the matter is already covered in the section. Section 6 states, "a person who directs, at any level of the organisation's structure, the activities of an organisation in respect of.", which surely embraces the intention of the amendment.
We do not wish to go after those who buy An Phoblacht or Easter lilies. We wish to go after those behind fundraising, the godfathers who are part of the organisation. That is achieved in section 6. I do not see the need to make an additional amendment. As the Minister said, the penalty under the section is imprisonment for life. We need to be clear about what we are talking about. Senator Ryan was concerned about somebody who might be lifted by the Garda because they might be a member of the Provisional IRA. Is he not concerned that somebody might be lifted outside a church in Cahirciveen because they happen to be selling An Phoblacht?
They are from time to time.
We have not received an adequate response from the Minister. Senator Dardis said the matter is already covered in the section. However, it is not spelt out in it. Following the tragic death of Veronica Guerin, we laid out in detail how we would deal with illegal drug dealing. It behoves us to spell this out in exactly the same fashion in this legislation.
The Minister is stonewalling us by saying he agrees with what we are proposing, as he went halfway towards indicating. However, as he has no intention of recalling the Dáil, perhaps he will adopt the same principle as he did earlier in relation to section 18 whereby the annual review mechanism will be introduced in the new Criminal Justice Bill. He should give a commitment that he will amend that legislation to include a provision to create an offence of soliciting, holding or contributing to funds. It need not necessarily be life imprisonment. The offence of supporting an illegal organisation already carries a penalty of ten years.
I outlined that there is no vacant gap in our legislation and I already referred to the relevant Acts. There are forfeiture provisions in the 1939 Act which were supplemented in the 1985 Act. The issue will be examined but it is not susceptible to the solution suggested by the Senator.
A review of the Offences Against the State Acts is taking place and this matter, among others, will be examined in that context. The forfeiture provision is quite strong and is supplemented by the 1985 Act. These provisions were tested in the courts in the Clancy case and were upheld. The more mundane matters of collection and so forth are, to an extent, dealt with in existing legislation. One who invites or incites another person to assist an unlawful organisation or to support its activities will be guilty of an offence and liable to ten years imprisonment.
I accept the Minister's remarks about forfeiture. Although the money is held forfeit to the State criminal proceedings cannot be brought against those involved. The Minister said earlier that the provisions for annual review were already in the legislation but that for the purpose of avoiding doubt and confusion and in order to be helpful, he would be prepared to look at it in specific terms in the context of the Criminal Justice Act. We are being reasonable about this matter. The objective of pursuing those who contribute, fundraise or hold money on behalf of unlawful organisations should be provided for under law. It would be helpful if the Minister would give a commitment to look at this matter again in the context of the Criminal Justice Act.
I assure the Senator that the matter will be examined in the context of the review of the Offences Against the State Acts.
Amendment No. 9 is related to amendment No. 8. Amendments Nos. 8 and 9 can be discussed together. Is that agreed? Agreed.
I move amendment No. 8:
In page 7, subsection (1), line 36, to delete "giving rise to a reasonable suspicion" and substitute "where it can be reasonably concluded".
Sections 7 and 8 are probably the most repugnant sections. Section 7 provides that a person shall be guilty of an offence for which the maximum term of imprisonment is ten years if he has in his possession an article "giving rise to a reasonable suspicion that the article is in his or her possession or under his or her control for a purpose connected with the commission, preparation or instigation of an offence.". It does not provide that they should have the article for the purpose of committing an offence but that their possession of the article gives rise to a reasonable suspicion. All the State is required to prove in court is that there is a reasonable suspicion.
The section provides that if there is a reasonable suspicion that somebody has an article for a purpose connected with the commission, preparation or instigation of an offence, the person is guilty of the offence unless he can prove that at the time of the alleged offence the article was not in his or her possession or under his or her control "for any purpose specified in subsection (1)". Under this section, the defendant is guilty unless he can prove himself innocent.
The purpose of the amendment is to reverse that position and to retain the legitimate attempt to penalise people who have articles in their possession "where it can be reasonably concluded" that the articles were in their possession or under their control for a purpose connected with the commission, preparation or instigation of an offence.
Will the Minister restore the normal form of law which is that people are innocent until they are proven guilty of an offence? It is not sufficient to suspect that a person has committed an offence. Section 7 says a person is guilty of an offence if it can be shown that there is a reasonable suspicion that an article is in his or her possession for an illegal purpose. The only defence specified in the section is to prove that the suspicion is unfounded. In spite of multiple denials by representatives of the Government this is a fundamental reversal of our criminal law because under section 7 a suspect is guilty unless he can prove himself innocent. This guilt is not based on fact or evidence but on reasonable suspicion. Reasonable suspicion has a long history in law and it is not proof. My amendment removes the phrase "giving rise to a reasonable suspicion" because it is such an appalling reversal of our normal justice process and substitutes "where it can be reasonably concluded". In other words, where it can be proven. If my amendment is accepted there will be no need for subsection (2) which requires people to prove their innocence.
I look forward to the Minister's explanation because he has said that nowhere in the Bill is there a requirement to prove innocence. Sections 7 and 8 both require that.
I support what Senator Ryan has said. The Bill places the onus on the defendant to rebut a charge. It is not clear whose reasonable suspicion is referred to nor is the difference between reasonable suspicion and opinion clear. Failure to rebut a charge could result in a ten year term of imprisonment. Senator Ryan's amendment calls for a level of evidence greater than mere suspicion. This legislation shifts the burden of proof onto the defendant. It could be very difficult for a person to prove that an item was in his or her possession for a legitimate purpose. To convict a person of an offence which carries a heavy penalty should require more than reasonable suspicion which I regard as little more than an opinion.
The section is based on a person being guilty of an offence where there is a reasonable suspicion that the article is in his or her possession or under his or her control for a purpose connected with the commission, preparation or instigation of an offence under the Acts. The offences specified in the Acts are serious ones. It is provided that there will be a complete defence if it can be shown that the articles were not in the possession of the person for the purposes specified. Senator Ryan would remove the defence provision, but the offence would involve reasonably concluding that the articles were in the possession of a person in connection with the commission of an offence. The section as it stands is carefully balanced. The standard of proof in criminal cases is generally, as we all know, beyond a reasonable doubt, which is different from the concept of "could be reasonably concluded". Accordingly, the actual effect of Senator Ryan's amendment, although I know that in all probability that is not what was intended, would be likely to lessen the protection available to the accused person in that the standard of proof would be lessened.
The section as it stands refers to a reasonable suspicion, but that has to be read in conjunction with the defence to show that the articles were not in the possession of the person for the purposes specified in subsection (1). That defence is complete.
The section as it stands is very carefully balanced and I respectfully submit that there are dangers with the Senator's amendment, which means that I cannot accept it.
That is among the worst defences of a section of a Bill that I have heard in my political career. The reality is that there is no requirement of proving beyond a reasonable doubt. If a person is charged with this offence in a court, all the prosecution has to prove is that there is a reasonable suspicion. I invite the Minister to explain how one can disprove that there is a reasonable suspicion. A reasonable suspicion is precisely that — a suspicion based on reason. If there is anything else, such as a previous conviction or political statements, the balance of proof goes from the prosecution to the defendant. The Minister should at least accept that the burden of proof here has been moved from the prosecution to the defendant, which is a reversal of our normal tradition of criminal law.
Since extensive research has obviously been done, can the Minister give me examples of similar phraseology in our criminal law where the phrase "a reasonable suspicion" can be used to convict somebody of an offence? The State only has to prove that there is a reasonable suspicion. The Minister is playing with words. I do not have to tell the Minister, who is a lawyer himself, that proof in criminal law is a particularly precise term. In this case the defendant has to prove that the equipment or articles were not for a criminal purpose, while the State simply has to prove that there is a reasonable suspicion that they were. That is not balance.
The suggestion that my amendments would worsen the position of the defendant is a nonsense. It is a good one to throw up but it is nonsense because the State would then have to prove that it could be "reasonably concluded", which is a much stronger burden of proof. All the defendant would have to do is raise a reasonable doubt about that conclusion, which is the normal process.
In this section the Minister and the Government are ducking the issue of the complete reversal of the burden of proof from the normal traditions of our criminal law. This was not discussed in the Lower House either. I would remind the House that when one is dealing with people who have been brought to court, we do not know if they are guilty. They are innocent people being charged with an offence and the normal procedure in our courts is that they are innocent until the State can prove them guilty. In this case all the State has to do is show that there is reasonable suspicion and the suspect then has to prove the opposite. That is a complete reversal of our tradition of criminal law and it is being slipped through without the Minister even dealing with the issue. We are entitled to more.
Senator Ryan said the defence of the section put forward by me was the weakest he had heard since he entered political life. I was not putting forward a defence of the section. It was, in fact, a commentary on the amendment, which I regard to be extremely weak.
That much having been said, I think Senator Brendan Ryan has again got the wrong end of the stick. The facts are that the offence under section 7 must be proved by the prosecution. The prosecution must not only prove the possession of the article in question but must also prove possession of the article in question which would give rise to a reasonable suspicion that the person had the article in his or her possession for purposes connected with the commission, preparation or instigation of an offence under the Firearms Acts, 1925 to 1990, or Explosive Substances Act, 1883. That is clearly the correct construction. It could not be otherwise. The proof must be brought forward by the prosecution. That much is clear from subsection (1). Of course the question of control would also constitute an offence within the meaning of the subsection. Therefore, the State or the prosecution would have to show that the circumstances concerned in which the person was in possession of the articles were such that they created a reasonable suspicion.
Incidentally, the reasonable suspicion is not that somebody was going off to play tiddlywinks but a reasonable suspicion that a person had this article or articles in his or her possession for the purposes connected with the commission, preparation or instigation of an offence under the Firearms Acts, 1925 to 1990, or Explosive Substances Act, 1883. We all know that these are extremely serious offences.
It appears to me that the question of the defence comes into play once the proof has been established by the State and then it is provided that it would be a defence for a person to prove that the article was not in his or her possession for the purposes specified in subsection (1). Therefore, if the State in the first instance could not establish the reasonable suspicion, the proof, which is a defence at subsection (2), would not arise for the simple reason that it would not be required. It would not be required for the equally simple reason that the State had not made out its case.
Is the amendment being pressed? The Senator has already gone into great detail in relation to his amendments and I would hope that we would avoid repetition.
A Chathaoirligh, this is the first time that this section has been debated in either House of the Oireachtas. It is a fundamental matter. It represents a complete reversal of the normal process of justice in this State because the burden of proof is on the defendant, not on the State. This is a very serious issue, a Chathaoirligh, and with all due respect to you I am quite prepared to pursue it for a while if the Minister will not at least admit what he has done.
If the Minister would defend what he has done and not pretend that he has done nothing, we could at least have a serious debate about it. The Minister has said that he is prepared to send people to jail if there is in the court's eyes nothing more than a reasonable suspicion that the person is up to something. That is what this section states; it does not state that the State can prove that the person has it for a purpose of committing an offence but that there is a reasonable suspicion. That is the burden of proof on the State and the Minister fudges this the whole time because he rushes on to list the serious offences. We know they are serious offences. If it simply stated that people had in their possession articles which could be proven to be for the purpose of committing an offence, I would be quite happy with this section and we would all agree. However, the State is not proving that they are going to use them; it is proving that there is a reasonable suspicion. That is all the State must prove and that is a long way from the way the criminal justice system operates.
I am fascinated by the concept of proving beyond a reasonable doubt that there is a reasonable suspicion. That is an easy thing to do because a reasonable suspicion is a vague concept. That is all the State must do. Then the defendant must prove beyond a reasonable doubt that the prosecution is wrong. This is where the difficulty and the repetition is creeping in, a Chathaoirligh, because the Government states that this Bill does not contain any provisions whereby people are guilty until proven innocent. This section states that the presumption is one of guilt and a person must prove his or her innocence. That is a complete reversal of the traditions of our criminal law. The Government has managed not to discuss this extremely draconian section in either House or in public.
I do not want to labour the point. Clearly, the State would have to prove that circumstances exist which give rise to a reasonable suspicion that an individual had an article or articles in his or her possession for the purposes of committing a very serious offence. That is the bottom line. It must be clear at this stage that it is a matter in the first instance for the State to prove that those circumstances exist. The State must prove beyond a reasonable doubt that the ingredients of the offence, by reference to the terms of what constitutes an offence, are present. It is only when the ingredients of the offence are proven that the onus or burden referred to by Senator Ryan shifts to the accused.
The Director of Public Prosecutions v. Foley 1995, Irish Reports, page 267, which dealt with the effect of an analogous provision under section 27 (1) (a) of the Firearms Act, 1964 states: “. . an accused is entitled in the first instance to call on the prosecution to prove its case . .” In this instance the prosecution has to prove that the ingredients of the offence set out in section 7(1) must be established. The court went on to say — we are talking here about the accused:
Prima facie his [the accused] situation is that he does not have to give an explanation or give evidence. But if proof of guilt is forthcoming — if circumstances are laid before the court that point to the guilt of the accused — then the accused must attempt to rebut the prosecution case by evidence or suffer the consequences.
Accordingly, it is clear from that passage that the burden only passes to the accused when proof has been established, at which point the accused would be expected to show that possession was not for the purpose specified in the section.
The view that provisions such as this are unusual or extraordinary and that this is the first time they have been used is incorrect. Similar provisions exist in Irish criminal law. Under section 4 of the Explosive Substances Act, 1883, it is an offence for a person to make or possess an explosive substance under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it for a lawful object, which equally provides that it would be a defence to show that it was made or in his possession for a lawful object. Additionally, section 12 of the Offences Against the State Act includes a provision for an offence for the possession of incriminating documents; section 27 (1) (a) of the Firearms Act, 1964, provides that a person who has firearms or ammunition in his possession or under his control in such circumstances that give rise to a reasonable inference that he does not have it in his possession or under his control for a lawful purpose will be guilty of an offence.
I do not know if Senator Ryan was a Member of the House when the Firearms and Offensive Weapons Act, 1990, was passed but I must inform him that section 9 of that Act provides that where a person has with him in any public place a knife or other article which has a blade or which is sharply pointed he shall be guilty of an offence. The section further states that it will be a defence for a person charged to prove that he has good reason, on lawful authority, for having the article with him in a public place.
There is another crucial factor which Senator Ryan ignored. In our criminal justice system the independent Director of Public Prosecutions decides whether a prosecution should be taken. In coming to a decision regarding whether a case should proceed, the question of an individual having a case to answer immediately raises its head. The Director of Public Prosecutions does not initiate criminal cases of any kind, let alone serious criminal cases, against individuals unless he believes they have a case to answer. There are protections and standards of proof which must be reached. In the event that such standards are not reached, a case must, of necessity, fall.
Is the amendment being pressed?
The Minister referred to an amount of new material and I must reply to him. Every Act he quoted involves items which are, of themselves, inherently dangerous to other people, namely, firearms, explosives, knives, daggers and other weapons. There is no such provision in section 7 which refers to "any article". All that is required under the section is a reasonable suspicion that an article is in a person's possession or under their control for a purpose "connected with the commission, preparation, or instigation of an offence under the Explosive Substances Act, 1883, or the Firearms Acts, 1925 to 1990". This could refer to electronic or electrical equipment or a radio transmitter, but it is not yet a criminal offence to possess such equipment. It is a criminal offence to possess explosives or firearms without a licence, but we are not discussing those items because the section refers to "any article".
The Minister repeatedly stated that there must be proof beyond reasonable doubt. However, if this merely takes the form of a reasonable suspicion, it is not proof that an illegal act is about to occur. The term "reasonable suspicion" is vague and the DPP will be obliged to decide if there is sufficient evidence to encourage a court to accept that such a suspicion exists. That is the point of my objection. People will be imprisoned unless they can prove their innocence, particularly if a court is satisfied not that there is conclusive evidence against them but that there is a reasonable suspicion that they are involved in questionable activity. As a result, I cannot withdraw the amendment.
I have explained this matter as best I can but I must place on record that this is not new material. I already spoke about these issues when replying to Second Stage.
I was in the office of the Clerk of the Seanad trying to draft amendments, which had to be hastily printed because the Government is rushing the legislation through the House, which meant that I could not be present in the Chamber to listen to the Minister's reply to Second Stage. I resent the implication in his remarks.
Amendment No. 11 is related to amendment No. 10 and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 10:
In page 8, lines 6 and 7, to delete "which is of such a nature that it is likely to be useful in" and substitute "for the purpose of".
If the last section was bad, this one is dreadful. This should be looked at with a degree of detachment without the peculiar focus of the Minister and the Department. The section states "It shall be an offence for a person ."— not a member of an illegal organisation but any person —". to collect, record or possess information which is of such a nature that it is likely to be useful in the commission by members of an unlawful organisation of serious offences." Will the Minister tell me that a map, or textbooks explaining the ins and outs of modern electronics or radio telegraphy, or information compiled for a study on the cratering of Border roads are not likely to be of use to an unlawful organisation in the commission of an offence? This is the most extraordinary, sloppy wording I have ever seen.
I do not know what the Minister intends with this section because I could not find a debate on it in the draft reports of yesterday's Dáil proceedings. I do not know what it means. It is an offence to posses anything which is likely to be of assistance to an illegal organisation. My amendment proposes that it shall be an offence for a person to collect, record or possess information for the purpose of the commission by members of an unlawful organisation of serious offences generally. That means the State would have to prove that the information was collected, assembled or recorded for that purpose. That apparently is what the Minister wants from this section. The scope of it, as drafted, would do justice to the junta in Burma. We were used to this in eastern Europe — criminal legislation which could be used to catch anybody at any time anywhere if they were causing trouble.
Of course, we have a wonderful liberal defence. If one can prove any information in one's possession was collected for an innocent purpose then one cannot be convicted. The Bill has a clear intent but was rushed and sloppily drafted and this is wrong. It is extremely broad, poorly worded and will probably not stand the test of the courts because it is such an appalling interference with the freedom of citizens to collect information to which they are entitled notwithstanding what the Minister and the Department think.
This is a free society in which citizens are free to assemble any information they want about anything. That information might coincidentally be of assistance to an illegal organisation should not make it an offence to possess it. It should be an offence only where it is proven to be for the purpose of assisting an illegal organisation. My amendments attempt to restore the normal level of sanity that a free society has about the citizen's right to do whatever he or she likes about assembling information. Having information about flight schedules in Dublin Airport in light of terrorist attacks on airlines is likely to be of assistance to an illegal organisation. The Minister, the Department of Justice, Equality and Law Reform and the parliamentary draftsman could have done better. It is unworthy of them. This section should be drastically amended because it is fundamentally wrong.
I agree with Senator Ryan. In the previous section he pointed out how the burden of proof was shifted, with the onus being put on the defendant and questionable requirements of reasonable suspicion being required to prosecute and obtain a conviction. Section 8 is the most questionable intrusion in normal criminal justice legislation. It seems that at last the Department of Justice, Equality and Law Reform has got what it has been looking for — a wide-ranging catch-all set of provisions in terms of procedure and offences. Senator Ryan pointed out that under Section 8 (1) "it shall be an offence for a person to collect, record or possess information which is of such a nature that it is likely to be useful ..". The person may have no connection with a proscribed organisation but may be in possession of information of such a nature, however innocently, that would be useful for a paramilitary organisation in the commission of unlawful activity. The information is likely to be useful but the question is whether it is used for that purpose. This typographical error gives the Department of Justice, Equality and Law Reform the benefit of the doubt. The words "likely to be useful" should read, "likely to be used". There is a mistake in grammatical terms and I think the Department really meant to insert "likely to be used" and this accords with the wording of amendment No. 10 tabled by Senator Ryan.
Section 8 (2) is a repeat of section 7 where the onus of proof is shifted onto the defendant and states:
It shall be a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the information in question was not being collected or recorded by him or her. .. for the purpose of its being used in such commission of any serious offence or offences.
The information can be entirely innocent but straight away the onus of proof is on the defendant not the prosecutor. We have shifted the burden of proof.
This subsection will apply to "any serious offence or offences". A serious offence is defined as an offence for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years. It will apply to a general offence where the sentence is five years imprisonment and where the offence involves loss of human life, serious personal injury, false imprisonment or serious loss of or damage to property or a serious risk of any such loss, injury, imprisonment or damage. In this section we are extending the Offences against the State legislation beyond scheduled offences, such as membership of proscribed organisations, into the realm of ordinary criminal law. We are placing the burden on the defendant to prove his innocence in very difficult circumstances.
These provisions have been sitting on the shelves in the Department of Justice, Equality and Law Reform for many years and at last the appropriate legislation has been found where they could be inserted quietly, in the hope that nobody would notice. They could then use this legislation to cover all serious offences and it would put an onus on individual citizens to prove their innocence. Perhaps the Minister can prove to the contrary but the terminology used to describe this serious offence, which was not part of any previous legislation, appears to be an attempt to get around the normal course of justice and include types of evidence that would not be acceptable in a normal court of law.
I support Senator Ryan's amendments and agree with the comments made. Subsections (1) and (2) of section 8 are of such a catch-all nature that I would be fearful of putting them into any type of legislation but particularly legislation the Taoiseach has called draconian. We now know the reason for that. A basic reading of the first paragraph shows the extraordinary nature of these measures. Items such as computers, particularly laptop computers which are in common usage, and mobile phones are useful, to use the terminology in the legislation, in the commission of a particular kind of serious offence.
The second paragraph is obnoxious also because it places an extraordinary burden on the accused person. I will be brief in my comments considering the late hour but I strongly support Senator Ryan's amendments. Emergency legislation in particular should not contain measures of such a catch-all nature.
Members referred to the fact that the Taoiseach called these measures draconian. He was right. Neither he nor I pretended that these measures were anything other than harsh. They are harsh but they are framed to tackle a serious problem. In so far as it has been possible to do so, we have done what we can to ensure innocent people will not get caught up by the legislation.
I have expressed the view on more than one occasion that the legislation is constitutional and that it comes within the parameters of the European Convention on Human Rights. I did not express that view easily but that was the advice available to me.
Section 8, as drafted, provides for an offence of collecting, recording or possessing information which is of such a nature that it is likely to be useful in the commission by members of any unlawful organisation of serious offences. It provides for a defence for a person charged to prove that the information was not being collected, etc. for the purpose of being used in the commission of such offences.
Under the amendment as proposed, it would have to be proved that the information was for the purpose of members of an unlawful organisation. If that amendment were accepted, the defence which is allowed for would not be necessary. That in turn would mean that the section would not be of any use. Let me explain why. It would be virtually impossible to prove that the information was going to be used by members of an unlawful organisation for the commission of an offence. If that could be proved there would probably have been no need for the offence to be in the legislation in the first instance because the person could be charged with conspiracy or aiding and abetting an offence.
What I am proposing here is already contained in UK legislation. It is designed to get at circumstances where a person is gathering particular sorts of information. I will give an example of that. Let us suppose the Garda Síochána found someone who had in his or her possession details of the movements of members of the RUC and literature on bomb making equipment. They might not be able to prove this information was in the possession of the person concerned for the commission of a particular offence, but the person could be charged with an offence under section 8. The person would then have to show that the information was not being collected for the purpose of the commission of an offence by members of an unlawful organisation.
I stated at the outset that the measures in this legislation are harsh. However, in the light of the realities involved nowadays in combating the ruthless activities of terrorist organisations, the provision as it stands is reasonable and balanced. I oppose the amendments which would more than likely deprive the section of any effect whatsoever.
Finally, with regard to Senator Costello's allegation that this provision was lying around in the Department of Justice for years and officials just wanted to slip it into some Act or other, I have been in the Department of Justice for over a year now and nobody ever said to me that this provision was lying around and that they wanted to slip it into some Act or other. The truth is that the officials in the Department of Justice were given a task by the Government. They did that task to the best of their ability. If there is culpability in relation to the legislation, in relation to its provisions, it lies with those who directed the policy, not with them.
I thank the Minister because on this occasion he has been a good deal more frank than he was on section 7. He has accepted that this is an outrageous section but he believes it is necessary. That at least is a start. Having accepted it as outrageous he could begin to justify it not by some vague utterance about the need to do something about the Real IRA but about the section itself. I have no problem with making it an offence to compile information about the movements of senior members of the Judiciary with a view to carrying out an offence. I have no problem with using the assembly of information as corroborative evidence in a conspiracy case. I have a problem with the fact that any citizen in the State, with no other suspicion attached to them, who has information which is likely to be useful to an illegal organisation, is guilty of an offence unless they can prove an innocent purpose. That is what this section says. It does not refer just to suspected members of illegal organisations, convicted criminals and people with criminal records but to every citizen.
If somebody had detailed information on flight schedules or records of air traffic control at Dublin Airport or information about which Border roads were more accessible and which less so, is the Minister suggesting that such information would not be likely to be useful to an illegal organisation? Would the possession by me and many of my colleagues in the Institute of Technology, Cork, of textbooks on electronics not be information which would be likely to be useful to an illegal organisation? If the Minister suggests it would not be likely to be useful, will he explain by what legal test he makes that judgment? It appears a vast amount of information is likely to be useful.
It is not my job to combat the entire wisdom of the Department of Justice, Equality and Law Reform and the parliamentary draftsman on the drafting of this section. It is their responsibility, and that of the Minister and the Government in particular, that they put together legislation that, because they are lazy or incompetent or they have a sinister intent, is so sloppily drafted as to potentially brand every citizen of the State who has any information of any significant character in his possession as suspect of a criminal offence with a potential sentence of ten years imprisonment. It is an appalling section. The Minister was honest when he said that if the section was tightened, it would be no good. However, he could explain how he will ensure that it is not used to make life difficult for every citizen.
The Minister should be careful about citing British precedent. In case he has forgotten, I remind him of the Guildford Four, the Birmingham Six, the Maguires and others who were victims of the appalling Prevention of Terrorism Act in Britain. I used to boast that Ireland was a more free society than Britain because we would not allow that type of legislation to be introduced. The Minister has given me no cause to believe that there is a reason for the section other than it is contained in the British legislation. That is a dreadful reason for doing anything and he has accepted that it is wide open to interpretation.
I urge the Minister to tell me the position regarding the items I cited, such as train and aeroplane timetables. It should be noted that the section does not mention unpublished information. It covers any information, including published information. It could be the details of President Clinton's schedule. What about a misfortunate man in Ballybunion who happens to have a record of membership of the IRA? He may have in his possession some information about President Clinton's plans to play golf in Ballybunion because he may be involved in it. This most manifestly would be of interest to illegal organisations if they had negative intents regarding the President of the United States. Is that individual guilty of an offence? Must he go to court and prove that he received the information from a legitimate source, such as the Taoiseach's protocol department? This is what the section states. It is the most extraordinary provision.
I hoped the Minister could explain it and he confirmed that it involves precisely what I thought. It is a catch-all provision which will be used to detain and charge anybody. The Bill amends the Offences Against the State Act, every section of which is now covered by the Bail Act. This means that for any of these offences, the State can legitimately seek to have people denied bail on the grounds that it is a serious offence. Therefore, it is a serious offence to have information which is likely to be useful to an illegal organisation. One can be arrested, charged and refused bail and that is called a free society. It is the end of a free society; it is appalling legislation.
I will not repeat the arguments which were well articulated by Senator Ryan. Will the Minister clarify section 8(1) which states that it shall be an offence for a person to collect, record or possess information which is of such a nature that it is "likely to be useful" in the commission by members of any unlawful organisation of serious offences? Is there a typographical error? Should the text read "likely to be used" in the commission of serious offences?
The term is "useful". It is not a typographical error.
In that case, the section is everything we suggested. It is a catch-all provision. Various information and equipment which can be used for a variety of legitimate purposes could be useful in the commission of an offence. Subsection (2) states that it shall be a defence for a person charged with an offence to prove that at the time of the alleged offence the information in question was not being collected or recorded by him or her, or in his or her possession, for the purpose of its being used in the commission of a serious offence. There is a need for clarification. As the section stands, no protection is provided. The Minister should reconsider to ensure the burden of proof is not shifted on to the defendant.
If we were to substitute the word "used" for "useful" the section would read: "It shall be an offence for a person to collect, record or possess information which is of such a nature that it is likely to be used in the commission by members of any unlawful organisation of serious offences generally.". That would be a different offence.
This section is geared towards those who commit an outrageous act. Senator Ryan and, to a lesser extent, Senator Costello do the authorities and the Government a great disservice in advancing the argument that the law enforcement agencies and the Government would utilise this legislation to go after innocent citizens. This does not stand up. The legislation is geared towards those who are trying to subvert the democratically expressed wish of the people through a referendum, North and South, held on 22 May. To suggest that the law enforcement agencies and the Government would pursue innocent citizens because they had in their possession flight schedules, air traffic information or information about roads is disingenuous. What we are talking about is information which could be useful in the commission by members of an unlawful organisation of a serious offence.
A serious offence is defined in this legislation as an offence which is punishable by imprisonment for a term of five years or by a more severe penalty. In addition, it must also be an offence which involves loss of human life, serious personal injury, false imprisonment, serious loss of or damage to property, or a serious risk of any such loss, injury, imprisonment or damage.
I did not think I had to go back over the argument which I advanced in the debate on the previous amendment, which was that in the first instance the State must prove that an individual had information of a nature likely to be used in the commission of the kind of offence——
Likely to be useful, not used.
Likely to be useful in the commission of a serious offence, such as those I have outlined, by an unlawful organisation. Once that proof has been established, it is open to the defence to establish that that was not the position and that the information was not in fact being collected or recorded by the defendant for use in the commission of serious offences nor was it in the defendant's possession for that purpose. I thought that was clear and that it would be accepted that this section, as with other provisions in the Bill, is geared towards those who would commit terrible atrocities. That is why the legislation is as tough as it is.
It is equally disingenuous for Senator Ryan to put words in my mouth. At no stage — he should check the record — did I say that this or any other provision in this legislation was "outrageous", to quote Senator Ryan. I said it was harsh and draconian, and on one occasion I described it as some of the toughest and most severe legislation in the history of the State. It is all those things, but it is not an attempt to somehow convict innocent people and Senator Ryan should not try to tell people it is. That is not what this legislation is about. It deals with a very serious situation, with people who committed a horrific offence and with those of like mind. I make no apology about that.
Senator Ryan called those who drafted the legislation lazy and incompetent. When making such comments, he should address the motives of those who brought the legislation to the House, from the draftsmen to the public representatives. This is not an easy business; it is a serious and difficult matter. That is why this legislation has been drafted in this way. The offence referred to in this section, which Senator Ryan has so much difficulty with, is targeted not at innocent citizens——
Where does it say that?
——but specifically at those who may not be involved directly in acts of terrorist violence, but who play an essential part in their planning or preparation by collecting information used for identification or selection of targets for terrorist attacks or otherwise in such attacks. Terrorist groups cannot and do not operate without the active assistance and involvement of such persons who must, therefore, also bear some of the responsibility for the use to which the information they collect is put. Again, I stress that with the offence of possession of articles for purposes connected with firearms or explosive offences, it would equally be open to a person who has been proved to have information of such a character to show that at the time of the alleged offence the information in question had not been connected or was not held for that purpose.
I find it difficult to envisage a situation where an innocent person would have flight schedule in his possession and not be able to establish it was held innocently. I repeat that the Director of Public Prosecutions, who is charged with bringing a prosecution, is independent in the exercise of his functions and will not bring before a court cases which he believes will not stand up. That is the first protection. The second protection is that when a case goes before the court the ingredients of the offence set out in the section must be proved beyond a reasonable doubt and even then, as is only right, the defence is open to a person. The defence as set out in this section is as clear as it is in the other section.
If somebody wants to believe the provisions of this legislation are not meant for the purpose which I, the Taoiseach and other members of the Government have said they are for, there is little I can do about it. I say categorically that this legislation is geared towards the people I mentioned. I firmly believe that is precisely what will happen.
Since some of the things I said gave offence, I apologise. I did not mean to accuse people of being incompetent or stupid, it was just a phrase which slipped out. I accept the Minister did not use the word "outrageous". What I intended to say was that the cumulative effect of the number of admissions he made about the nature of this section made it an outrageous section. I did not intend to attribute the word "outrageous" to him and if I did, I apologise.
I do not want to go through a cross-examination, but a flight schedule is a classic example. Does the Minister not accept that if an illegal organisation wanted to shoot down an airliner, the first thing it would need would be the flight schedule and, therefore, it would be likely to be useful? If somebody wanted to assassinate me, they would need my home address. That information of itself brings people under suspicion. I know it is not the Minister's intention to pursue thousands of innocent citizens but there is not a clear divide between what various Governments classify as subversion and the rest of society — there is a large overlap.
For instance, those involved in the H-block campaign were on the margins of activities. Many of them had their homes raided during that campaign and the most extraordinary things were taken away, including in one case large quantities of condoms, on the grounds they were suspicious under the Offences against the State Act. The connection still escapes me, but it was done. The problem is that when pressure is applied these sections will be used. If somebody is arrested and charged under this section, they can be remanded in custody because this is an offence which is regarded as serious enough to be covered by the provisions of the constitutional amendment on the right to bail. This can be used to detain people. I accept that if innocent people are charged with this offence they can prove their innocence, but the Minister has accepted something that the Government consistently denied up until tonight, that there are sections in the Bill in respect of which people will have to prove their innocence and that they will be guilty until proved innocent.
That is not correct. The standard of proof remains the same.
I do not want to get involved in a slagging match with the Minister. It seems the offence is to possess something that is likely to be of use to an illegal organisation in the commission of serious offences. The defence is to prove that one had something for an innocent purpose. That seems to put the burden of proof on the suspect, not on the prosecution. Senator Costello was correct in saying that if the word was "used" rather than "useful", we would not be having this argument. We may be having a slight argument but it would not be as broad-ranging.
I know the Minister believes and intends this provision will be used only in the appropriate circumstances, but the Offences against the State Act has been ruled by the Supreme Court to be legitimately used by the gardaí wherever it can be used to deal with offences. It is no longer used to deal only with terrorism and subversion. It can be used on the judgment of the Supreme Court on a wide range of issues.
The person responsible for this legislation is the Minister and this is extraordinarily sloppy drafting. It is unworthy of a democratic society not because we will be all locked up tomorrow, but because it shows a considerable disregard for the principles on which democratic society organises itself, one of which is the right of free citizens to assemble information they are legally entitled to assemble. Phrases to the effect that "if people had some unpublished information", "restricted information" or "information about individuals not normally in the public domain" could have been used, but the Minister chose the least precise definition, "information which is likely to be useful". All information is likely to be useful.
The Minister keeps answering the wrong question. I know thousands of people will not end up in jail because of this for no other reason than the prisons are so full that there would not be room for them and because the Minister does not intend that, but that is not the way we do things in a free society. I should not have to say this in the second Chamber of a very democratic State. It is worth pointing out that there are only four states in Europe that have a longer history of continuous democracy in this century than this State. We are one of the more venerable democracies of the 20th century. The issue is that this is not the sort of legislation that we should have, even in draconian circumstances. The Minister and his Department are capable of doing better and they should have done better. We all agree the Omagh bombing was a horrific offence and the people who did it deserve to be locked up for a long time, but that offence does not give the Minister carte blanche in this regard. We need to remind ourselves where we live. To do things like this is to allow the Real IRA to redefine our democracy, and that is not something any of us would wish. That is why I repeat my proposals in these amendments and I will not withdraw my amendment.
It is true many people may have information which is useful. We are talking here about it being useful to members of an unlawful organisation for the purpose of committing a serious offence which is defined in the legislation. I have set out the position as best I can. Senator Ryan has his point of view and I acknowledge and respect his right to hold it. While I do not agree with it, I cannot change it. Neither can I or he debate the matter further. I have set out what I believe to be the position and I do not believe it would serve any purpose for me to rake over the coals again. I reiterate everything I have said previously.
- Callanan, Peter.
- Cassidy, Donie.
- Cox, Margaret.
- Cregan, John.
- Dardis, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Liam.
- Fitzgerald, Tom.
- Fitzpatrick, Dermot.
- Gibbons, Jim.
- Glynn, Camillus.
- Keogh, Helen.
- Kett, Tony.
- Kiely, Rory.
- Lanigan, Mick.
- Leonard, Ann.
- Lydon, Don.
- Mooney, Paschal.
- Moylan, Pat.
- O'Brien, Francis.
- O'Donovan, Denis.
- Ormonde, Ann.
- Quill, Máirín.
- Walsh, Jim.
- Costello, Joe.
- Gallagher, Pat.
- O'Meara, Kathleen.
- O'Toole, Joe.
- Ryan, Brendan.
Amendment No. 11 has already been discussed with amendment No. 10.
I move amendment No. 11:
In page 8, lines 9 and 13, to delete subsection (2). Amendment put and declared lost.
We have come to the clear conclusion that this is perhaps the most draconian section of the Bill. It is a classic example of why emergency and repressive legislation should never be rushed through. A simple change of the word "useful" to "used" in the section would rid it of its more offensive aspects. The phrase "likely to be useful in the commission by members of any unlawful organisation" should be changed to read "likely to be used in the commission by members of any unlawful organisation". The Minister said the original drafting is not a mistake and I accept his word. However, if the word "used" was inserted, the section would read better. It is odd that "used" appears in subsection (2).
We have an extraordinary situation whereby citizens will have to prove that information they legitimately have in their possession is innocent in nature.
The Senator is debating an amendment which has been defeated.
The Senator is outrageously out of order.
I attempted to improve this section. I am explaining to the House why I am opposed to the entire section. There is a distinction and we have lots of time to talk about it. The section was not debated in the other House and this is the only opportunity for the Houses of the Oireachtas to discuss it.
Nobody contests the Senator's right to debate the section. However, I ask him to stick to the section.
Will the Acting Chairman explain how I am deviating from the section?
The Senator is debating an amendment which has been lost.
No amendment suggested that the word "useful" should be replaced by the word "used".
Amendment No. 10 explicitly uses the word "useful".
That is correct but it does not suggest its replacement by the word "used". I am somewhat taken aback that this legislation, which the Government described as draconian and which is being rushed through both Houses of the Oireachtas——
There is no rush. We can remain here as long as the Senator wishes.
I want to have it placed explicitly on the record that this is the worst section of the Bill. It could have been a section which served a purpose consistent with normal democratic society but it has been allowed to become vague and meaningless. It is not threatening but it is sloppy legislation, and I blame the Minister for that, which does nothing to serve the image of this State as a modern liberal democracy in which citizens have considerable rights, not privileges. We are saying that to have any information in your possession, you must be able to prove to the State that you do not intend to use it for evil purposes.
The Senator is being repetitive and is not speaking to the section but to the amendment which has been lost.
I am at a loss to understand how I am speaking to an amendment which is no longer on the Order Paper when I describe what is in the section.
I want to have my vehement opposition to this section as it is currently worded put on the record.
I move amendment No. 12:
In page 9, between lines 2 and 3, to insert the following subsection:
"(4) (a) This section shall not apply to—
(i) information which would be exempt from disclosure in proceedings in a court on the ground of legal professional privilege or any other privilege recognised at common law or under any enactment, or
(ii) information kept for the purposes of, or obtained in the course of the carrying out of, professional medical or psychiatric duties or social work by a health professional.
(b) In subparagraph (ii), ‘health professional' means a medical practitioner, within the meaning of the Medical Practitioners Act, 1978, or a member of any other class of health worker or social worker for the time being designated by the Minister for the purposes of that paragraph, after consultation with such (if any) other Ministers of the Government as the Minister considers appropriate.".
This amendment relates to the new offence of withholding information which might be of material assistance in preventing the commission of a crime and failing without reasonable excuse to disclose the information as soon as is practicable to a member of the Garda Síochána.
We are concerned that this new offence is across the board in its application. There are circumstances in which information can be validly withheld. We have specified two areas and there may be others. The legal profession would at times be in possession of privileged or confidential information which could not be divulged to the Garda if a legal practitioner is to carry out his duties in a professional manner.
The question of mandatory reporting of medical information relating to child abuse or child sexual assault covers the whole range of medical practice, be the practitioner a GP, a social worker, a nurse or a psychiatric worker.
The subsection suggested in the amendment in relation to those two items should be introduced. That would exempt those two professions from the consideration of withholding of information as a serious offence because they are doing so for recognised professional purposes.
It might be true that we should extend the subsection to cover other areas. Politicians can find themselves in possession of information which could be of a serious nature in a domestic situation. Such information could be considered privileged and confidential. Teachers could be in the same position. We want to draw to the Minister's attention the danger of having a blanket offence of withholding information.
Under section 9 it is provided that:
A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—
(a) preventing the commission by any other person of a serious offence, or
(b) securing the apprehension, prosecution or conviction of any other person for a serious offence,
and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of the Garda Síochána.
We tried to ensure this offence was drawn as tightly as possible and so defined a serious offence as being one to which a penalty of five years' imprisonment applies and which involves loss of human life, serious personal injury, false imprisonment and so on.
During consultations on the Bill, it was suggested to us by the Labour Party that the definition as it stood, through its reference to serious personal injury, might inadvertently introduce mandatory reporting in certain sex abuse cases. The House will be aware that the question of mandatory reporting is a very complex one; the mandatory reporting of child abuse is one of the commitments contained in An Action Programme for the Millennium, one which the Taoiseach has stated will be fulfilled in the lifetime of this Government. To ensure the best possible legislation is enacted, the Government has given approval to the drafting of a White Paper on mandatory reporting. In this context, notices appeared in the national newspapers on 11 August 1998 seeking submissions from any interested parties, including members of the general public who may wish to give their views prior to the publication of the White Paper.
It would clearly be inappropriate in the context of a Bill designed to address very specific threats to the State to pre-empt what is to be done in regard to mandatory reporting in sexual abuse cases. In the circumstances, the amendment made in the other House yesterday makes it clear that the reference to personal injury will exclude an injury which constitutes an offence of a sexual nature. The House will appreciate that making this exclusion is not intended to minimise the gravity of sexual abuse cases. It is simply intended to recognise that it would be grossly inappropriate for An Offences Against the State (Amendment) Bill, which is being introduced in a particular context as a matter of urgency to attempt, however inadvertently, to deal with the issue of mandatory reporting in such cases in one way or another. I am sure the House will appreciate the thinking behind the official amendment and the reasons for tabling it.
In tabling the amendment, I was conscious of Labour Party reservations about the section as it stood and although we adopted a different approach to the form of the amendment, I believe it fairly addressed the Labour Party's main concerns. The current amendment tabled by Senators Costello, Gallagher and O'Meara is too widely drawn. I do not accept there should be a blanket exclusion of various members of a particular profession from an obligation to report the matter if they were aware a murder was about to be committed. In regard to the position of members of particular professions, the offence contains the concept of "without reasonable excuse". That is a sufficient and appropriate protection in regard to the interests of particular professions. I hope Senators can accept that the amendment made to the Bill yesterday went a long way towards addressing their concerns and, for the reasons I have outlined, I hope they will withdraw this amendment.
I thank the Minister for his response and for the action he took in seeking to address the concerns we expressed. His amendment went some way towards addressing those concerns in exempting any personal injury other than one which constitutes an offence of a sexual nature from being considered an offence. If the term ‘offence' is limited to an offence of a sexual nature, one might equally refer to a medical practitioner in regard to a domestic assault on a child or any other offence of a physical nature. This is clearly a further category which should be included. The same could apply to the teaching profession or to public representatives. The amendment does not address the issue of legal, professional privilege in dealings with clients. I accept the Minister's attempts in his amendment but it is limited in its application.
I move amendment No. 13:
In page 9, to delete lines 5 to 32 and substitute the following:
"(4) (a) Where a member of the Garda Síochána arrests without warrant a person (‘the arrested person') whom he or she, with reasonable cause, suspects of having committed a serious offence, the arrested person—
(i) may be taken to a Garda Síochána station, and
(ii) if the member of the Garda Síochána in charge of the station has, at the time of the arrested person's arrival there, reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence, may be detained in that station for a period or periods authorised by subsection (4A).
(b) Without prejudice to paragraph (a), where a member of the Garda Síochána suspects an arrested person of having committed a serious offence, that person may—
(i) be taken to a place of detention, and
(ii) if a member of the Garda Síochána not below the rank of inspector who is not investigating the serious offence has, at the time of that person's arrival there, reasonable grounds for believing that his or her detention is necessary for the proper investigation of the serious offence, be detained in that place of detention for a period or periods authorised by subsection (4A).
(4A) (a) The period for which a person may be detained under subsection (4) shall, subject to the provisions of this subsection, not exceed 6 hours from the time of his or her arrest.
(b) An officer of the Garda Síochána not below the rank of chief superintendent may direct that a person detained under subsection (4) be detained for a further period not exceeding 18 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(c) An officer of the Garda Síochána not below the rank of chief superintendent may direct that a person detained pursuant to a direction under paragraph (b) be detained for a further period not exceeding 24 hours, if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(d) A direction under paragraph (b) or (c) may be given orally or in writing and, if given orally, shall be recorded in writing as soon as practicable.
(e) Where a direction has been given under paragraph (b) or (c), the fact that the direction was given, the date and time when it was given and the name and rank of the officer of the Garda Síochána who gave it shall be recorded.
(f) The direction or, if it was given orally, the written record of it shall be signed by the officer giving it and—
(i) shall state the date and time when it was given, the officer's name and rank and that the officer had reasonable grounds for believing that such further detention was necessary for the proper investigation of the offence concerned, and
(ii) shall be attached to and form part of the custody record (within the meaning of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987) in respect of the person concerned.
(g) (i) An officer of the Garda Síochána not below the rank of chief superintendent may apply to a judge of the Circuit Court or a judge of the District Court for a warrant authorising the detention of a person detained pursuant to a direction under paragraph (c) for a further period not exceeding 72 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned. On an application under this subsection the detained person shall be present in court and may make submissions or have submissions made on his or her behalf before the court.
(ii) On an application under subparagraph (i) the judge concerned shall issue a warrant authorising the detention of the person to whom the application relates for a further period not exceeding 72 hours if, but only if, the judge is satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously.
(h) (i) An officer of the Garda Síochána not below the rank of chief superintendent may apply to a judge of the Circuit Court or a judge of the District Court for a warrant authorising the detention of a person detained under a warrant issued pursuant to paragraph (g) (ii) for a further period not exceeding 48 hours, if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(ii) On an application under subparagraph (i) the judge concerned shall issue a warrant authorising the detention of the person to whom the application relates for a further period not exceeding 48 hours if, but only if, the judge is satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously.
(4B) On an application under subsection (4A) the person to whom the application relates shall be produced before the judge concerned and the judge shall hear any submissions made and consider any evidence adduced by or on behalf of the person and the officer of the Garda Síochána making the application.
(4C) When issuing a warrant under subsection (4A) the judge concerned may order that the person concerned be brought before a judge of the Circuit Court or a judge of the District Court at a specified time or times during the period of detention specified in the warrant and if, upon the person's being so brought before such a judge, he or she is not satisfied that the person's detention is justified, the judge shall revoke the warrant and order the immediate release from custody of the person.
(4D) If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence to which the detention relates, he or she shall, subject to subsection (4E), be released from custody forthwith unless he or she is charged or caused to be charged with an offence and is brought before a court as soon as may be in connection with such charge or his or her detention is authorised apart from this Act.
(4E) If at any time during the detention of a person pursuant to this section a member of the Garda Síochána, with reasonable cause, suspects that person of having committed a serious offence other than the offence to which the detention relates and—
(a) the member of the Garda Síochána then in charge of the Garda Síochána station, or
(b) in case the person is being detained in a place of detention, a member of the Garda Síochána not below the rank of inspector who is not investigating the offence to which the detention relates or the other offence,
has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of that other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained.
(4F) To avoid doubt, it is hereby declared that a person shall not be detained pursuant to this section for more than 168 hours from the time of his or her arrest, not including any period which is to be excluded under section 4(8) of the Criminal Justice Act, 1984, in reckoning a period of detention.
(4G) Nothing in this section shall affect the operation of section 4 of Criminal Justice Act, 1984.
(4H) (a) The Minister may make regulations prescribing specified places as places where a person may be detained pursuant to subsection (4) (b), and a place for the time being standing so specified is referred to in this Act as a ‘place of detention'.
(b) Section 7 of the Criminal Justice Act, 1984 and any regulations made thereunder shall, with any necessary modifications, apply in relation to places of detention as they apply in relation to Garda Síochána stations.
(4I) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".
My amendment seeks to include in this Bill similar provisions to those found in the Criminal Justice (Drug Trafficking) Act where there is a provision to extend detention up to 168 hours in special cases. Senator O'Donovan informed us on Second Stage that under the various criminal codes a person can be detained for three different periods. Initially detention can last for up to six hours, then 48 hours under the 1939 Act which will now go up to 72 hours, and under the drug trafficking Act it goes up to 168 hours. Earlier I said we should establish fair periods of detention. What I say now will contradict my earlier comments on the matter. One has to be very careful in relation to periods of detention and the judicial interventions required to extend the period of detention. First, second and third extensions are usually on the warrant of a superintendent or Garda officer of that rank or higher and then after that one needs judicial interventions to get further extensions. However, I would like to hear what the Minister has to say on the matter.
I thank the Senator for his brevity and lucidity.
This amendment seeks to provide powers in relation to detention which apply under the Criminal Justice (Drug Trafficking) Act, 1996 to what are called "serious offences". Serious offences does not appear to be defined. It seems clear the Senator has in mind offences by members of an unlawful organisation. The legitimate question has been raised as to why the Bill does not allow for seven day detention as is the case in relation to drug traffickers under the Criminal Justice (Drug Trafficking) Act, 1996. That argument may for some have a certain attractiveness but this matter was given serious consideration in devising the package of measures before the House. I assure the Senator that if the Government had concluded that increasing powers of detention up to seven days was a necessary and appropriate response to the threat which we are trying to address then we would have had no hesitation in introducing it.
However, we need to remind ourselves there were two specific justifications put forward for allowing seven day detention in the case of drug trafficking. First, we needed to have a longer period of detention to cope with the problem of people who had ingested drugs so that there would be sufficient time for the drugs to leave their bodies. Second, we had an international drug trade to deal with and the necessary inquiries by the Garda could take considerably more time than would generally arise in the commission of other offences. Different considerations apply in relation to the type of offences we are trying to deal with in this legislation. The considered view of the Garda authorities is that seven day detention would not confer on them significant operational benefits in the context of the type of offences at issue. Instead they favoured the more limited extension of the periods of detention provided for in this Bill.
While I understand why Senator Connor has raised this matter I am sure he will accept that where the security advice available to the Government is as I have outlined, proceeding with such a proposal would be a reaction which would be designed for reason of appearance rather than substance — I know the Senator does not intend that to happen. The option of seven day detention will be kept under review, as will other measures. I hope the House will be able to accept that the course adopted by the Government in relation to the increased detention powers is the correct one in all of the circumstances.
I move amendment No. 14:
In page 10, lines 14 and 15, to delete ", a prison or some other convenient place".
I expect the Minister will graciously and gratefully accept my amendment which proposes the deletion of the words "a prison or some other convenient place" for a period of 24 hours from the time of arrest. A person could be detained under warrant pursuant to section 30 of the 1939 Act in a Garda station, a prison or other convenient place. What place could be more convenient than a Garda station if they are arrested by a garda? It is not as though Garda stations are hard to find.
There are Garda stations dotted all over the country. There is no reason we should have such an extensive list of possible locations where somebody would be detained for 24 hours. Any such stipulation is outrageous. I would have thought the legislation would be determined on the basis of people being arrested, whether detained for 24, 48, or 72 hours or for 24 hours under warrant in a Garda station. Perhaps the Minister will agree to this amendment.
I understand Senator Costello drawing attention to this matter. It is not the practice to detain someone arrested under section 30 of the Offences against the State Act, 1939, other than in a Garda station. As currently worded, that section allows a person arrested under section 30 to be brought to a Garda station, prison or some other convenient place. It would not have been possible in the context of this Bill and in the timescale associated with it to set about completely recasting section 30 as it stands.
Section 11 of the Bill deals with rearrest under section 30 of the Act. It essentially provides that a person may not be rearrested under section 30 of the 1939 Act in respect of an offence for which he or she has already been detained, except under the authority of a warrant issued by a judge of the District Court who is satisfied with information supplied on oath by an officer of the Garda Síochána not below the rank of superintendent, that further information has come to the knowledge of the Garda Síochána as to the suspected participation of that person in the offence for which the arrest is sought.
The provision goes on to apply the provisions of section 30 to arrests under this section and it is in the context of a restatement of part of the existing section 30 that the reference to the detention in custody in a Garda station, prison, or some other convenient place occurs. The provision has no greater significance than that and it would have been incongruous to provide for different arrangements for a further period of detention than apply at present under section 30.
I accept that if we had started with a plain sheet of paper in relation to section 30 generally we would have had to re-examine whether the reference to places other than Garda stations would be appropriate. However, as I explained, it would not have been possible in the context of this Bill to set about completely recasting section 30, which could have involved extensive rewriting of other provisions of that legislation.
In that context, I remind the House of the commitment contained in the British-Irish Agreement to carry out a wide-ranging review of the Offences Against the State Acts generally. I will establish such a review mechanism shortly by way of the establishment of a special committee under independent membership, with the participation of Government and outside experts. It will be in their remit to consider whether section 30 should be retained and, if so, in what format. Obviously an issue which will fall to be considered in that context is the one raised by Senator Costello's amendment. I assure him his amendment will be considered in that context.
At the risk of provoking the Chair's wrath, I volunteer my services to chair the Minister's commission.
The Senator can do that.
I move amendment No. 15:
In page 10, between lines 26 and 27, to insert the following new subsection:
"(1) For the purposes of this section ‘firearm' shall have the meaning given to it in Section (4)(i)(a), (d), (e) and (g) of The Firearms and Offensive Weapons Act, 1990.".
I will not delay the House on this amendment. For a great deal of time I have been tickled by the peculiarities of legislation where a firearm is defined as a crossbow, stungun etc. I am intent as often as I can on raising this as legislation should not sound ridiculous to ordinary people. To define a crossbow as a firearm is ridiculous. Furthermore, in the context of this legislation to suggest that to train someone in the use of a stungun, airgun, including an air rifle or an air pistol, or a crossbow, is an equivalent offence to showing someone how to use a sub-machine gun or explosives, seems to be using a sledgehammer to crack a nut. This amendment suggests gently and without rancour that it would be better, in terms of this legislation and the penalty it contains to confine the provisions of this section, the principle of which I agree with, to the objective of the Bill, which is to deal with those who use bombs and guns to kill people and to commit serious offences.
I appreciate what the Senator is trying to achieve. However, the redefinition of the term "firearm" is not appropriate to the legislation before the House, which deals with a threat to the State. It would be more appropriate to deal with it in the context of specific legislation on firearms.
I agree with the section but I am concerned about how it will affect normal practices in rural life. Many people in rural areas have legally held weapons for pest extermination and so forth. It should be made explicit that, subject to the law, it will not be any more difficult for an average citizen on a farm to train his children in the safe use of legally held firearms. There should be no obstacle to such training.
The Senator should put down this amendment to an appropriate Bill. It is not appropriate to the Offences against the State (Amendment) Bill, 1998. I do not wish to get involved in a debate about firearms at this juncture but if the Senator's amendment were accepted it could be used to defeat the purpose of the section. If a component were removed from a firearm in order to render it incapable of discharging a shot, for example, it would not be covered by the amended section. That is not the purpose——
I was not talking about that but about training young people in the safe use of legitimately held weapons.
The section provides that a person may be informed in "ordinary language" by a member of the Garda Síochána. What is meant by the term "ordinary language"? It is not the first occasion this term is used in the Bill and it fascinates me.
In reply to Senator Ryan's earlier point, the person giving the training would be covered by lawful authority or reasonable excuse. "Ordinary language" means ordinary language.
That is not a satisfactory reply. There must be a reason for using this phrase.
He will make hay out of that in Roscommon next year.
If the term "extraordinary language" were used, we would question it. The term must mean something. Is it because the language usually used in legislation is considered to be too complicated for people who might not understand it and that it should be translated into ordinary language? I am seeking a better definition.
Look it up in the dictionary.
Senator Lanigan should observe the ordinary courtesies.
It means language in the vernacular.
This phrase is ordinarily used in legislation. The Criminal Justice (Drug Trafficking) Act, 1996, uses the word "ordinary" although it was extraordinary legislation.
I am too tired to argue the toss. Perhaps I will do so on another occasion.
I welcome the phrase "ordinary language". I know exactly what it means and without it people are liable to be subject to a barrage of legalese and will not know what rights they are being advised about. I am glad it is there.
Section 14 states: "It is hereby declared that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to each offence under sections 6 to 9 and 12." That is a fairly sweeping assertion. Can the Minister state the criteria by which the Government judged the ordinary courts to be inadequate to deal with, for instance, section 8 which deals with the topic of information? We are now invited to say that the ordinary courts cannot deal with that. I would like to know why.
The offences being targeted are offences committed by unlawful organisations. The Senator may note that nothing in the section will prevent the discretion of the Director of Public Prosecutions in the exercise of his powers which clearly bring into play the ordinary courts. I brought forward an amendment on Report Stage to cover the kind of eventuality mentioned by Senator Ryan.
When the Constitution was amended regarding the right to bail the citizens were assured that the new legislation would only apply to serious offences. It was not intended to deal with minor offences. Not all the offences listed in the Offences Against the State (Amendment) Bill are serious even in the eyes of the people who drafted it because some of them carry a maximum penalty of three months in prison. We are now invited to accept that every offence under this Bill, including those which have a maximum penalty of three months in jail, are serious offences. The Minister says that the Attorney General has advised him that every section of this Bill is constitutional. However, I understood the constitutional amendment was concerned with serious offences. Now every offence under this Bill is covered. One could see the State seeking to refuse bail to someone charged with an offence carrying a maximum penalty of three months in jail, which is less that the maximum penalty for being drunk in the street.
A serious offence for the purposes of this Bill is an offence which carries a term of imprisonment of five years or more. We have had this discussion already this evening and I am sure Senator Ryan will accept that such an offence would be a serious one.
Is the Minister saying that section 16 covers serious offences under the Offences Against the State Acts or any offence? If the section refers to any offence then it covers all offences under the Offences Against the State Acts, some of which carry a maximum penalty of three months in prison. I am sure that is not, in the Minister's eyes, a serious offence. Does this section include those offences?
The Bail Act, 1997, dealt with offences carrying a penalty of five years imprisonment or more. Accordingly, offences which would carry a lesser penalty under this legislation would not come within the ambit of the provision.
I move amendment No. 16:
In page 12, subsection (1), line 37, after "14" to insert ", 16".
I have reluctantly concluded that the amendment to the Constitution with regard to bail is a fact of life and will never be repealed. I am, therefore, very reluctant to have what is essentially emergency legislation, that is the Offences Against the State Act, permanently part of our ordinary legislation by virtue of section 16. If, hopefully, we reach conditions in our society where sections 2 to 12 and 14 and 17 are allowed to lapse, then we should also allow section 16 — which inserts the Offences Against the State Act into the Schedule of the Bail Act — to lapse. My amendment suggests that section 16 should be added as one of the sections that will lapse at the end of June 2000. I cannot understand why we would want to keep it if we are hoping to review, and particularly to repeal, large sections of the legislation we are dealing with.
The amendment would provide that on scheduling of the offences created by this Act for the purposes of the Bail Act, they should cease to be in operation as from 30 June 2000, unless renewed. I am advised that it is not necessary to provide for this. If offences under the Act are not renewed the automatic effect would be that they are no longer scheduled for the purposes of the Bail Act. Equally, it is fair to say that if it was decided to renew the offences it would be unthinkable that they would not be regarded as offences that should be scheduled for the purposes of the Bail Act. I trust that explains the position.
Not completely. I understood that the sections in this Bill will lapse. However, all other sections of the Offences Against the State Acts, which are classified or definable as serious offences, will remain on the Schedule of the Bail Act. They were not there before and there must have been a reason for not having them. Hopefully, we are moving into a period of peace in the State with an end to paramilitary violence. I do not see why we should keep the Offences Against the State Act if that legislation is to play no further role in future. I do not see why, therefore, the Minister does not at least accept the possibility of section 16 lapsing. After all, if he changes his mind, all he has to do is persuade both Houses of the Oireachtas not to do it. I do not understand the apparent determination to retain the Offences Against the State Act in the Schedule of the Bail Act.
I have already explained that the whole question of the Offences Against the State Acts will be considered by an expert group. The people, in their wisdom, made a decision in November 1996 in regard to the question of bail and decided that, in respect of serious or indictable offences carrying a certain term of imprisonment or more, a court would be entitled to refuse bail if the court felt it was likely that the individual before the court was likely to commit a further offence if granted bail.
It is the Government's intention to implement the Bail Act next year in respect of all the offences which would be caught in its net. Obviously, that would include some of the offences which currently exist under the Offences Against the State Acts, 1939 to 1985. In so far as the offences in this legislation are concerned, if this legislation should lapse on 30 June 2000, nobody could be charged with an offence under it. Because of that fact there would not be any applications for bail.
Amendments Nos. 17 and 18 may be discussed together by agreement.
I move amendment No. 17:
In page 12, subsection (1), lines 38 to 40, to delete ", unless a resolution has been passed by each House of the Oireachtas resolving that that section should continue in operation".
One of the key aspects of legislation of this nature is its termination date, the length of time it will be on the Statute Book. It is presented as draconian emergency legislation to deal with a particular set of circumstances. Therefore, it is important that we determine at the outset how we will terminate it. The Labour Party's view is that the legislation should lapse unconditionally. It should cease after a specified time.
The Minister has brought forward the contingent date from December 2000 to 30 June 2000, unless a resolution is introduced. He has now further committed himself to implement a Fine Gael amendment which sought an annual review in the forthcoming Criminal Justice Bill. All of that is welcome. It is an indication of the Minister's intent.
The British-Irish Agreement makes provision over the next two years for a total overhaul and examination of the Offences Against the State Acts and emergency legislation North and South. Rather than have a situation where there would be an ongoing review of legislation of this nature, if it is felt necessary to continue to have such legislation it would be best to consolidate the situation in the review which will take place and start afresh.
My party's contention is that there should be a clean break and that the last part , which is "unless a resolution has been passed by each House of the Oireachtas resolving that the section should continue .", should be deleted and we should look at the matter afresh at that time.
Last night in the Dáil my colleague, Deputy Flanagan, tabled a similar amendment and the Minister stated in response:
Amendment No. 45a seeks to ensure that if sections of the Bill are renewed they should be subject to an annual review by the Oireachtas. I propose to meet Deputy Flanagan's point. The official amendments will provide that where a provision is being renewed it shall be for a period specified by the Oireachtas and that before any such renewal takes place a report must be made on the operation of the relevant section.
Having heard that promise to meet the proposal in this amendment in the other House, it did not go close to meeting it although the Minister would say otherwise. However, we have had assurances from the Minister on the point at the commencement of Committee Stage. If the Minister gave similar assurances now that we have reached the section and the amendment, it might shorten the debate.
I support Senator Connor's amendment. This amendment was tabled in the other House and the Minister agreed to accept the point. Therefore, Members were amazed that the Bill as passed by Dáil Éireann did not include reference to the annual review. For that reason, we felt that the matter needed to be tabled again this evening. We hope that the Minister can accept this provision because there are certain elements of the Bill about which one would have a number or reservations. It would be in the interests of natural justice that the Bill be subject to an annual review because legislation such as this is introduced for specific purposes. In view of the climate and circumstances which arise in the country over any given period of time, legislation such as this should be reviewed. It may be deemed that sections of it are not necessary or that the legislation is not necessary in the years ahead. In the interests of justice and the protection of the citizen, it would be wise to include that. I hope the Minister will be able to give us a firm and detailed assurance that this annual review will be included in a section of a Bill so that not alone will legislators know they have achieved this but it can be reviewed by the Oireachtas on an annual basis after 6 June 2000.
The Bill as originally published provided that specified sections will lapse by 31 December 2000 unless renewed by the Oireachtas. The effect of this amendment would be to provide that the Bill would lapse at a specified time. In other words, if some of the provisions were to continue in operation new primary legislation would have to be introduced. I do not accept the argument that there is a democratic deficit in approaching the matter by way of providing for the renewal by order in some of the sections. Those orders have to be subject to positive resolutions by the Houses of the Oireachtas. This approach is similar to the one taken in the Criminal Justice (Drug Trafficking) Act, 1996.
In response to concerns expressed in the Dáil yesterday about the provisions in relation to the sections lapsing, I made three amendments to the Bill as originally published: the original date of 31 December 2000 was brought forward to 30 June 2000; the provisions can now be renewed for whatever period the Oireachtas would specify in a resolution; and sections can only be renewed after a report is laid before the Oireachtas on the operation of those sections in the period prior to the renewal resolution. I believe this represents a balanced approach to the concerns expressed. In the circumstances, I am not disposed to accepting the amendment. While I am of the view that section 18(2) allows for an annual review I gave an assurance earlier that the amendment to the criminal law Bill to be introduced will have the same effect as amendment No. 18 tabled by Senator Connor.
Can the Minister specify what the wording of the amendment to the Criminal Justice Act will be? Can he convey to us what its effect will be? We do not want a situation to arise because of bureaucratic detail whereby the very essence and effect of what we require will not be included in the Bill.
As a result of the amendment introduced yesterday, the provisions can be renewed for whatever period specified by the Oireachtas by way of resolution. I believe there is scope within those provisions for implementing a guarantee in relation to annual reviews. In the interests of clarity it is now proposed that it would be provided that no resolution passed renewing the legislation would be for a period longer than 12 months. That would obviously mean that following that 12 months a new resolution would be required. That achieves the purpose of the amendment.
Will what the Minister has just stated appear in the Criminal Justice Bill when it is passed by the Houses of the Oireachtas?
That is the assurance I gave to the House earlier today. I consider that the capacity is already contained in the Bill.
Elements of this legislation were of serious concern to the Fine Gael Party who felt that in accepting certain elements it was important to provide for an annual review which would cover their reservations.
Provisions for a review were contained in the legislation. The amendment seeks that the word "annually" be specifically stated. I have given such an assurance to the House and I will stand by it.
Many of the resolutions which come before the House are resolutions presented to be taken without debate. Can the Minister tell us the nature of the resolutions likely to be presented to this House in terms of annual reviews?
As is often stated in both Houses, that is a matter for the Whips. I always wanted to say that.
I move amendment No. 19:
In page 13, between lines 14 and 15, to insert the following subsection:
"(5) (a) Notwithstanding the foregoing provisions of this section, the sections specified in subsection (1) shall cease to be in operation on and from the 31st day of March, 1999, unless the Government has established the Commission by that date.
(b) In paragraph (a) ‘the Commission' means the Human Rights Commission referred to in the first indent of paragraph 9 of the section headed ‘Rights, Safeguards and Equality of Opportunity' of the Agreement Reached in the Multi-Party Talks, which said Agreement is set out in Annex 1 to the British-Irish Agreement done at Belfast on the 10th day of April, 1998.".
We have already discussed this issue and I will not dwell on it to any great degree. The amendment states that the sections specified in subsection (1) shall cease to be in operation unless the Government has established the human rights commission envisaged under the British-Irish Agreement, which makes provision for various safeguards, rights and monitoring legislation of this nature, North and South. I would be interested in hearing the Minister's comments on the amendment.
I understand the linkage the Senator wishes to make between the provisions of the Bill and the establishment of a human rights commission. In that context, I must make it clear that both Governments are wholeheartedly committed to the human rights aspects of the British-Irish Agreement. As Members may be aware, the British Government has made provision for the establishment of a Northern Ireland human rights commission in the Northern Ireland Bill and its legislation is well advanced. Under the terms of the Agreement, the British Government is committed to establishing a human rights commission with a mandate and remit equivalent to that of the Northern Ireland Commission in addition to taking further measures to strengthen and underpin the constitutional protection of human rights in this jurisdiction.
I have established a human rights division in my Department to deal with our obligations in this area. A human rights commission Bill is in the process of being drafted and it is our firm hope that this Bill will be processed in the Oireachtas in the forthcoming session to enable the establishment of the commission to be completed by early next year. However, I do not believe it is right to make a legislative connection between that and the terms of the Bill before the House. It seems wrong in principle that if for any reason the Oireachtas was not in a position to finalise the necessary legislation, the provisions of a Bill aimed against those who represent a murderous threat to the community should lapse. Who would benefit from that?
I hope the Senator will accept my assurances that we will do everything in our power to establish the commission within the timescale referred to in the amendment. I am confident that timescale will be met.