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Seanad Éireann debate -
Thursday, 18 Apr 2002

Vol. 169 No. 19

Order of Business. - Offences against the State (Amendment) Act, 1998: Motion.

I move:

That Seanad Éireann resolves that sections 2 to 12, 14 and 17 of the Offences against the State (Amendment) Act, 1998 (No. 39 of 1998), shall continue in operation for the period of 12 months beginning on 30 June, 2002.

The resolution before the House seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act, 1998, which would otherwise cease to be in operation on 30 June 2002.

Members of this House will need no reminding of the circumstances in which these provisions were enacted in 1998, that is, the Omagh bomb in August of that year. There was a determination, nowhere more than in this House, that those responsible for this mass murder would not succeed in subverting the democratically expressed will of the people on this island that the conflict should be resolved only by peaceful means and on the basis of consent. To date, one person has been convicted in this jurisdiction on a charge related to the Omagh bomb and the investigation is continuing with excellent co-operation between the Garda and the Police Service of Northern Ireland. The Garda Síochána will never give up the search for those responsible.

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

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

I will now turn to the individual sections which this House is asked to continue in force for a further 12 months, outline their purpose and indicate where they have been utilised in the past 12 months. Section 2 provides that where, in any proceedings against a person for membership of an unlawful organisation, evidence is given that the accused when questioned failed to answer or gave false or misleading answers to any question material to the investigation of the offence, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. This provision has been utilised on many occasions in questioning persons arrested on suspicion of being members of an unlawful organisation. Charges do not result in every case in which the provision is used but since 1 June 2001 charges were preferred in 22 cases in which section 2 was utilised. Two of these cases resulted in a conviction, while the remaining cases are currently before the courts. In addition, three persons were convicted during the period under report having been charged prior to that period in cases where this section was utilised.

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

Section 4 amends section 3 of the Offences against the State (Amendment) Act, 1972. The effect of the 1972 provision is that any statement or conduct by a person accused of membership of an unlawful organisation implying or leading to a reasonable inference that he was at a material time a member of such an organisation shall be evidence that he or she was then such a member. It originally defined the expression "conduct" as including an omission by an accused person to deny published reports that he was a member of an unlawful organisation. The change made by section 4 of the 1998 Act was to expand the definition of "conduct" to include movements, actions, activities or associations. This simply aligns the definition of conduct in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.

Section 5 provides for the drawing of adverse inferences in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts and any offence arising out of the same set of facts as such an offence, provided that the offence carries a penalty of five years imprisonment or more. The effect of this section is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she could reasonably have been expected to mention during questioning or on being charged but did not do so. This section was utilised on 13 occasions in the past nine months.

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

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

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

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

Section 10 extends the maximum period of detention permitted under section 30 of the Offences against the State Act, which otherwise is 48 hours, to 72 hours on the authorisation of a District Court judge. The judge must be satisfied, on the application of an officer of the Garda Síochána not below the rank of superintendent, that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The person being detained is entitled to be present in court during the application and to make, or to have made, submissions on his or her behalf. In the past year, 39 persons have had their periods of detention extended under this provision and five of these were subsequently charged with offences.

Section 11 allows a District Court judge to permit the rearrest and detention of a person in respect of an offence for which he or she was previously detained under section 30 of the Offences against the State Act but released without charge. This further period must not exceed 24 hours, and can only be authorised in circumstances where the District Court judge is satisfied, on information supplied on oath by a member of the Garda Síochána, that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence and about which they wish to question the suspect.

Section 12 made it an offence for a person to instruct or train another person in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse. The effect of section 14 is to make these new offences scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing such offences are liable to arrest under section 30 of the 1939 Act. This section was utilised on 56 occasions.

Section 17 builds on the provision in the Criminal Justice Act, 1994, providing for the forfeiture of property. Essentially, the 1994 provision empowers a court, in its discretion, whenever any person is convicted of an offence, to order the forfeiture of any property in the possession of that person which was used, or intended to be used, to facilitate the commission of the offence. The effect of section 17 is, in the case of a person convicted of specified offences relating to the possession of firearms or explosives, and where there is property liable to forfeiture under the 1994 Act, to require the court to order the forfeiture of such property unless it is satisfied that there would be a serious risk of injustice if it made such an order.

This information on the use made of these provisions of the 1998 Act over the last nine months is based on information received from the Garda authorities and is contained in the report on the Act laid by the Minister before this House. This report, together with the previous one, shows that the key provisions of the Act are taking effect. We are now seeing the results of this legislation. During the past nine months the section 2 provision regarding adverse inferences was used in 22 cases, resulting in two convictions and 20 pending charges, and two persons were convicted under section 8 in relation to information likely to be useful to members of an unlawful organisation.

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

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

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

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

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

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

I commend the resolution to the House.

I have little to say other than to support the continuance of these sections of the Offences Against the State (Amendment) Act, 1998. I remember speaking in the debate on the Bill four years ago as I was then justice spokesperson. It is a great pity in a democracy that we need to have these draconian laws on our Statute Book and to continue with them for a further 12 months. I remember we expressed the wish in 1998 that the Act would have currency for no more than two years and that the particular problem it set out to address would have been solved or dealt with in that period. Unfortunately that is not the case, as the Garda report shows. The legislation was enacted as a direct result of the horrific atrocity in Omagh in August 1998, which was carried out by a splinter group that wanted to overthrow all the achievements of the peace process and the Good Friday Agreement. It might have succeeded but for the fact that a stronger arm had to be given to investigating gardaí in their fight against this. It remains a matter of regret that those who perpetrated that appalling atrocity have not yet been brought to justice satisfactorily. Some progress has been made in the investigation and one person was charged. This was the work of a group of evildoers who have not yet been brought to book.

On the other side in Northern Ireland there remain groups on the loyalist side who will do everything they possibly can to destroy and subvert the achievements of the Good Friday Agreement. Their particular targets are the Unionist parties participating in the power-sharing Assembly and Executive of Northern Ireland. The greatest achievement they could manage would be to overthrow that and to set things back to where they were before 1997.

We agree to sections 2 to 12, 14 and 17 continuing in operation for a further 12 months with a certain amount of regret that this remains necessary. We can only look forward to the day when we shall be able to deal with the business of removing those sections. Let us hope that occurs in the next 12 months.

Like Senator Connor, I support this resolution. It is a pity it is necessary to have to extend the operation of various sections of the Act, given the work done both North and South to give practical expression to the peace process. Significant progress has been made but unfortunately, as the Minister of State outlined, there is compelling evidence from the Garda of the necessity to extend the operation of the Act. Further decommissioning of arms by the IRA was a welcome development and it was right that David Trimble called on loyalists and other organisations to follow suit and remove the threat to ordinary citizens of this island. Human life is inviolate and thankfully we have gone past the situation that existed for almost three decades. Through the efforts of many, most people on this island are looking forward to a better future, not only for themselves but for their children and future generations.

It is also incumbent on the Oireachtas to provide the framework for the Garda to combat illegal activities in all their forms but particularly in this area. They have been very effective and obviously good use has been made of this Act. Closer co-operation between the Garda and the Police Service of Northern Ireland will also be very influential in combating paramilitary activity which is now branching into criminal areas, perhaps to support lifestyles and other operations which had developed over the years. Anything we can do in the areas of policy and empowerment of the Garda – working with the Police Service of Northern Ireland – to eradicate these problems is welcome.

We can look beyond this measure to the establishment of the Criminal Assets Bureau. That was a particularly innovative and effective measure in combating criminal activity and has become a model for other countries. There has also been much recent discussion of public order offences and if we apply our minds to this a similar innovative approach can also be introduced. It is essential to protect people's human rights but it is also essential that the well-being of the community at large is fully protected by whatever steps are necessary to deal with those who will not comply with the rule of law.

It is regrettable that these measures are necessary, but we must recognise that this is the case. I support the continuation of the legislation for another 12 months. Hopefully in the not too distant future, a Minister will have reason to advise the House that this legislation is no longer necessary as activity which threatens the lives of ordinary, decent people has come to an end.

Mr. Ryan

I am in a strange position in that I opposed these provisions as an Independent, even though my party supported them. However, such is life.

These are changing times.

Mr. Ryan

The Minister of State was in the unique position of introducing legislation in Opposition which he then had to oppose in Government.

I did something else with it.

Mr. Ryan

I was only reading my party's press releases on the topic which were colourful.

Whatever one may think about these measures being draconian, we have to be grateful that in this country and in the neighbouring jurisdiction we operate according to the laws of basic civilisation. If we had been in the Middle East it is clear that after the Omagh bomb the British Army would have invaded at least six counties of this State in pursuit of mayhem and destruction. That seems to be regarded as the appropriate response to similar activities by what is supposed to be another member of the community of democratic nations. It is not to belittle Omagh or the horrific suicide bombings to repeat the intention to retain due process to deal with dreadful acts of violence against civilians to which the question of intent is irrelevant. Anyone who plants a bomb of that kind in an area where there is a significant risk that large numbers of civilians will be killed should not come to me or anyone else whinging that they did not intend to kill anyone, but that they forgot to make the necessary telephone call. It is their responsibility. It is murder and it should be called nothing else.

After some of the rhetorical flourishes in hotels around Dublin in recent weeks we should repeat that however we may wish to move on, we do not do so by pretending that murder did not happen when it did. We may not wish for recriminations or punishment, but we are not going to have unequivocal murder turned into something else for the political convenience of people who thought they were entitled to carry it out.

I will not oppose the extension of these sections. However, the decision to leave them open to regular review was sensible and temperate because it requires the Minister to produce information on how they are being used. One of my reservations regarding the possibility of these powers being used excessively has been disposed of by the statistics supplied by the Minister of State in his speech and by the reports laid before the Houses of the Oireachtas. The powers are being used in a measured and sustained way.

I am still concerned by the astonishing provision in section 8 which makes it an offence to collect, record or possess information which is of such a nature that it is likely to be useful to members of an unlawful organisation in the commission of serious offences. Members should consider this provision. I am not averse to dealing with people in cases where it can be proved that information in their possession will be used in this way. However, the section makes it an offence to have in one's possession information which is likely to be useful to members of an unlawful organisation. This power has not been misused or abused, but it is a fairly hair-raising concept that an offence is committed because the information is likely to be of use in the commission of offences. I have pointed out that airline timetables are likely to be of use to someone who wishes to hijack a plane. I accept that such a scenario is not what was intended by the legislation, but sometimes in the rush after dreadful events such as the Omagh bomb things can be said or inserted in legislation which have a broader scope than was intended.

This legislation has to be renewed every year and it has been used infrequently. The Garda is pursuing, and I hope always will pursue, the perpetrators of the Omagh bombing. I hope no new deal will prevent those who carried out that bombing from appearing before a court and at least being found guilty. That was a horrendous, dreadful event which was deliberately designed to undermine the best hope for peace this island had for 30 years. It is worth remembering that, as a proportion of the population, the number of people killed in Omagh was far greater than in New York on 11 September. That is not to make little of what happened on 11 September, but Omagh was far worse proportionately. The perpetrators of that bombing deserve to be pursued by civilised methods because we are better than them. That is what this legislation is about. It is on the boundaries of how far we can go, but it is within the framework of what I would regard as civilised legislation. I will escape from my dilemma by stating that I will not oppose the motion.

I support the motion and compliment the Minister of State and those involved in drafting the legislation. This is important legislation and we welcome its extension for a further 12 months. Important points have been made regarding the sections of the legislation, particularly section 12 which deals with instructing and training people in the making or use of firearms or explosives. People got away with such activities and this must be brought to an end.

A small minority of people are actively trying to wreck agreements and seeking to destroy the peace process. Senator Ryan referred to the Omagh bomb and the catastrophe on 11 September which no one will ever forget. We in this country will never forget the bombings which took place here and it was the luck of God that many more hundreds or thousands of people did not lose their lives. We welcome the visible improvements in cross-Border co-operation. I support the motion. The provision allows for the extension of these sections for a further 12 months, but the legislation must remain in place for whatever length of time is required to ensure the protection of the people of this State.

Question put and agreed to.
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