The resolution before the House today seeks approval for the continuance in force of those sections of the Offences Against the State (Amendment) Act 1998 which would otherwise cease to be in operation on 30 June 2003.
The recent Garda operation in County Louth and the PSNI discovery of a large van bomb in Derry are clear indications of the continuing need for perseverance in the fight against terrorism. Members of this House will need no reminding of the circumstances in which these provisions were enacted in 1998, namely the Omagh bomb in August of that year. There was a determination that those responsible for this mass murder would not succeed in subverting the democratically expressed will of the people on this island and 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. It is worth reiterating that the Garda Síochána will never give up the search for those responsible.
Senators will recall that in recognition of the 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 whether the circumstances then prevailing justified the continuance in force of its provisions or there had been a change in circumstances sufficient to convince the Oireachtas that they 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 on 20 June 2000, 26 June 2001 and 18 April 2002, sections 2 to 12, 14 and 17 will cease to operate on 30 June 2003 unless a further resolution is passed by each House authorising the sections to continue to operate for a period not exceeding 12 months, as may be specified in the resolution.
Also included in the Act was a requirement for 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 its provisions. Such a report was laid before this House on 18 June. The conclusion of that report was that the renewal of the provisions for a further year was necessary. The sad reality is that those responsible for the Omagh bomb continue to pursue and plan a campaign of violence and there is no change of substance to the circumstances which led to the enactment of the 1998 Act.
The report of the committee to review the Offences Against the State Acts 1939 to 1998 was published last August. This extensive report deals with complex issues of law and policy and involves important considerations concerning the balance to be struck between national and international security and civil liberties and individual rights. Those recommendations in the report of direct relevance to the purpose and scope of the Criminal Justice (Terrorist Offences) Bill 2002 were considered in the context of the preparation of that legislation and the Bill, accordingly, will give effect to a limited number of recommendations. A fuller consideration of the recommendations of the committee will be finalised once this Bill has been enacted and the Minister for Justice, Equality and Law Reform will then bring further proposals to the Government.
I will turn now to the individual sections of the Offences Against the State (Amendment) Act 1998 which this House is being asked to continue in force for a further 12 months, outline their purpose and indicate how they have been used in the past year.
Sections 3, 4, 6, 8, 12 and 17 have not been used since 23 March 2002. Section 3 provides that in proceedings related to the offence of membership of an unlawful organisation, the accused must give notification of his or her intention to call a person to give evidence on his or her behalf, unless the court permits otherwise.
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 should 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 the word in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.
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 used during the period under report, one person remains before the courts after being charged with such an offence prior to that period.
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. 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.
Section 17 builds on the provisions of the Criminal Justice Act 1994 relating to the forfeiture of property. Essentially, the 1994 provision empowers a court, whenever any person is convicted of an offence, to order at its discretion the forfeiture of any property in his or her possession which was used or intended to be used to facilitate the commission of the offence. The effect of section 17, 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, is 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.
The rest of the sections with which we are dealing have been used in the reporting period. Section 2 provides that in any proceedings against a person for membership of an unlawful organisation, where 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 appears proper. This provision has been used 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 23 March 2002 the section has been used on 43 occasions. In cases in which this section was used, six persons were convicted during the period under report after being charged prior to that period.
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 or any offence arising out of the same set of facts as such an offence, provided the offence carries a penalty of five years of 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 one occasion in the reporting 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 18 occasions.
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 17 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 reporting period, 32 persons have had their periods of detention extended under this provision, and nine of these were subsequently charged with offences.
Section 11 allows a District Court judge to permit the re-arrest and detention of a person in respect of an offence for which he or she was previously detained under section 30 of the Offences against the State Act but released without charge. This further period must not exceed 24 hours and can only be authorised in circumstances where the District Court judge is satisfied, on information supplied on oath by a member of the Garda Síochána, that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence and about which they wish to question the suspect. This section was utilised on two occasions.
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 83 occasions.
The foregoing information on the use made of the provisions of the 1998 Act in the reporting period is based on information received from the Garda authorities and is contained in the report on the Act laid before this House. This report, together with the previous reports, shows that the key provisions of the Act are taking effect. We have seen the results of this legislation since its inception. Of course, the most significant result in the Garda Síochána's fight against subversive activity was the conviction of a person on a charge of conspiracy to cause an explosion in relation to the Omagh atrocity. The provisions of the 1998 Act were used appropriately by the Garda Síochána in this case and will continue to be used in their efforts to bring to justice all of those responsible for that horrific act.
At the same time, it should be noted that the number of persons held under extended detention under section 10 over the past 14 months was 32 as against 39 in the previous nine-month period. This is a relatively modest number, and one which, taken together with all of the other information I have outlined, goes to support the Minister for Justice, Equality and Law Reform's view that the provisions of the Act are reasoned and proportionate, and are being implemented by the Garda Síochána 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 me that the provisions in question have been utilised where appropriate by the Garda during the investigation of offences. Members of this House will appreciate, of course, that many of the investigations at issue are, of their nature, ongoing.
The Garda Síochána has had considerable success in the reporting period in combating those who would subvert through the use of violence the democratic wishes of the people on this island. I am sure the House will join me in congratulating the force on its achievements, but the threat to life and to our democratic values, which led to the enactment of the 1998 Act, remains. So too, I am sure, does the determination of this House never to give in to such a threat, but to provide the Garda Síochána and the criminal justice system with all legitimate means of combating it. The 1998 Act is an important part of those means and it is proving its worth.
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 the Minister for Justice, Equality and Law Reform asks the House to continue in force the relevant provisions of that Act for a further 12 months. I commend the resolution to the House.