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Seanad Éireann debate -
Thursday, 14 Jun 2018

Vol. 258 No. 10

Criminal Justice (Amendment) Act 2009 and Offences against the State (Amendment) Act 1998: Motions

We are going to take No. 1, motion regarding the Criminal Justice (Amendment) Act 2009, and No. 2, motion regarding the Offences against the State (Amendment) Act 1998. The motions will be debated together and decided separately. I call on the acting Leader to move No. 1.

I move:

That Seanad Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period beginning on 30 June 2018 and ending on 29 June 2019.”

I thank the House for taking these two motions. The House will be aware that the Offences against the State (Amendment) Act 1998 was enacted in the wake of the barbaric murder by the Real IRA of 29 innocent people at Omagh in August 1998, 20 years ago. That atrocity demanded this legislative response from the State as a necessary and wholly proportionate measure to defend the desire of the vast majority on this island to live in peace.

Section 18 of the 1998 Act provides that sections 2 to 4, inclusive, 6 to 12, inclusive, 14 and 17 must be renewed by the Oireachtas at least annually if they are to remain in force. I will not take up too much of the limited time available to me by going through in detail each of the relevant sections of the Act. The report I have provided to the House gives details of the various sections and the offences and other arrangements provided for.

I would bring to the attention of Senators that one element of section 9, that is subsection (1)(b), is the subject of litigation. This subsection provides for an offence of withholding information which might be of material assistance in securing the apprehension, prosecution or conviction of another person for a serious offence. It was the subject of challenge in the context of an individual case and was declared invalid by the High Court in February. That declaration is being appealed.

The remainder of section 9 is not in question. In the event that the Supreme Court upholds the decision of the High Court that subsection would, of course, be permanently inoperative. The report I laid before the House sets out in more detail than in previous years an assessment of the security situation and while I do not intend to rehearse that, I wish to highlight some aspects.

The Garda assessment is that there is a real and persistent threat from republican paramilitary groups on this island, the so-called dissidents. These groups have spent the past 20 years trying to destroy the Good Friday Agreement. They are resolute in their opposition to democracy and peace and they are resolute in their commitment to brutality and criminality. I am equally resolute that these terrorists will not succeed. Along with the vast majority of the people of this island, I am firmly resolved in favour of a future founded in peace and reconciliation and I am sure Senators share my resolution.

I would reference also the threat posed by jihadist-type terrorism. The raw brutality of the attacks we have seen in many countries, including our nearest European neighbours, targeting innocent people going about their daily lives is a stark reminder of the vulnerability of all open democracies to this threat. The security authorities here are alive to the potential threat we face and continue to work closely with their international counterparts in identifying and responding to that threat.

I pay a particular tribute to the women and men of An Garda Síochána who continue to work tirelessly to preserve life and to counter all forms of terrorism. I pay a tribute also to the men and women of the police and security services in Northern Ireland, with whom the Garda work closely every day to enhance the safety of all communities right across the island.

I now turn to section 8 of the Criminal Justice (Amendment) Act 2009. This Act was a response to difficulties facing the justice system at a time when certain organised criminal gangs were behaving as though they were beyond the law. Section 8 provides that four particularly serious organised crime offences should be tried in the Special Criminal Court, subject to the power of the Director of Public Prosecutions to direct that they would be tried in the ordinary courts. I will not delay Senators with repeating the detail of what is set out in the report on this section that I have laid before the House in accordance with section 8. That report covers the period from 1 June 2017 to 31 May 2018 and was laid before the House on 11 June 2018. It includes information provided by the Garda Commissioner on the use over the past 12 months of the provisions in question and details of the offences in question. The report notes that no cases came for trial before the Special Criminal Court. However, I do not consider that this invalidates the need for the section to remain in operation. What I will say is that no one in this House, or indeed outside of it, could be under any illusion as to the threat that society and the criminal justice system face from organised crime gangs who will stop at nothing in pursuit of their criminal activities. The Garda authorities continue to work intensively to bear down on these criminal gangs and to disrupt their activities. The Garda deserves praise for the considerable successes it has had against these gangs and with the Government’s support that work will continue.

Before concluding I wish to refer briefly to the Special Criminal Court. While it is my view that jury trial should be preserved to the greatest possible degree, we cannot be blind to the real threat to the criminal process from groups of terrorists or criminals who have absolutely no regard for the law. The Special Criminal Court was established to respond to the threat to the State and its people from republican terrorism over the decades. It continues to deal with the subversive threat from paramilitary groups and some serious organised crime cases. I reject assertions made elsewhere that the court has operated with bias. Over the years its judges have presided without fear or favour over the prosecution of some of the most dangerous and ruthless terrorists and criminals in this State. The court has proved its value over the years and it continues to do so.

As set out in the two reports, it is the clear view of An Garda Síochána that the provisions in the 1998 Act and the 2009 Act continue to be the most important in ongoing efforts in the fight against terrorism and serious organised crime. On the basis of the information set out in the report and on the advice of the Garda authorities I now propose that the Seanad should approve the continued operation of the relevant provisions of the 1998 Act and the 2009 Act for a further 12 months due to commence on 30 June 2018.

I thank the Minister for his opening statement. I call Senator Wilson.

I welcome the Minister back to the House. I am speaking on behalf of my colleague, Senator Clifford-Lee. We will support both motions. While I note that the Minister has said that it is necessary for both of these motions to come before the Dáil and Seanad on an annual basis, unfortunately, they seem to be left until the last minute to be brought to the Houses in my experience. However, as the Minister has stated, at the heart of these Acts is the use of the Special Criminal Court. The Special Criminal Court is an important part of the justice infrastructure in this country and is unfortunately absolutely necessary in cases where the threat of violence is undermining the administration of justice. The right to a jury trial and the importance of the presumption of innocence cannot be understated. We do not infringe upon these central tenets of the justice system but the fact remains that there are cases in which the only way justice can be served is through trial by the Special Criminal Court.

I am more convinced than ever before of the need for our Special Criminal Court for reasons already outlined by the Minister. I want to instance one particular case where only a couple of years ago we had the former leader of Sinn Féin condemning the victim of his friend and good republican, Mr. Thomas "Slab" Murphy. It was interesting to note that during his trial, two of the witnesses who were called by the State, sort of changed their evidence from what they had originally stated to the Garda. In confronting serious criminality, the Garda and the State need to know that they have the force of the Special Criminal Court behind them in such cases. In claiming that it will abolish the Special Criminal Court, it is hard to escape the conclusion that Sinn Féin is putting loyalty to their colleagues and former colleagues ahead of the wider societal need to protect witnesses in certain cases.

The prevalence of gangland crime which has seen more than 500 people in Dublin issued with active warnings by the Garda that their lives are in danger from criminals has brought numbness to the people. When we hear of the latest assassination we nod with dismay but we must acknowledge the brave, diligent and hardworking members of the Garda who are foiling attempts on a weekly basis and undoubtedly saving lives.

While acknowledging this, we also have to remain mindful of the increased threat from international terrorism from which the State cannot be considered immune.

This year we celebrate 20 years since the signing of the Good Friday Agreement, one of the greatest political achievements in the history of this entire Thirty-two Counties but we must never become complacent. As the Minister has rightly said, the greatest domestic threat to our security in this country at present is unfortunately from republican paramilitary, so-called dissident groups. Because of this, the legislation we are discussing is unfortunately necessary and we as a party fully support it.

I will resist the urge to engage in petty point-scoring because this issue is far too serious. The example cited by my colleague, Senator Wilson, shows just how open to abuse this legislation can be when someone finds themselves in front of a Special Criminal Court on tax-related matters. I wonder how many people from Fianna Fáil who ruined the economy and left so many people devastated and in poverty found themselves in front of Special Criminal Courts.

Nevertheless, the current motion relates to the Special Criminal Court and specifically to particular provisions under the 1998 and 2009 Acts relating to same. In its current incarnation it dates from May 1972 but its roots are to be found in this State's reaction to the Second World War when it claimed that the IRA threatened its existence. The reality is that the Offences against the State Act and the Special Criminal Court are ineffective relics of a conflict era. We are opposed to their use. They have been and are being retained by successive Governments to deal with threats primarily posed by organised criminal gangs. The Special Criminal Court is rooted in the 20th century. In the early years of this century, a different challenge is being faced and a different response is required.

There is a need for a comprehensive review of emergency legislation in advance of its renewal next year which would focus on how to modernise the criminal justice system to make it responsive to the needs of this State at this time. The Special Criminal Court in all circumstances is a non-jury court. It has been criticised not by Sinn Féin alone but also by Amnesty International, the Irish Council for Civil Liberties, the former UN High Commissioner for Human Rights, Mary Robinson, and the UN Human Rights Council. Society, of course, has to be protected against the murderous and criminal behaviour of organised criminals. The working class communities these gangsters prey on and murder need protection from them. Were this happening in some of the more affluent suburbs in cities across the State, the response might perhaps be different. Sinn Féin fully supports rigorous and effective measures to remove these gangs from the streets and put them into prison.

In addition to these measures, however, protective measures must be put in place so we should consider the following: creating a specific offence for interfering with jurors; increased penalties for intimidation of jurors; anonymity for jurors and witnesses via screens in courtrooms or, in very particular circumstances, remote location of jurors with video link to the courtroom; restrictions on access to jury lists and abolition of daily roll call of jurors. Sinn Féin would support these provisions. All necessary steps should be taken to ensure the safety of jurors and witnesses. The Government has not even considered these matters.

Outside the legislative framework, the Government needs to get serious about tackling organised crime. We need the full implementation of the Garda Inspectorate report, Changing Policing in Ireland, and its recommendations on serious crime. By its actions, the Government has failed to show it is committed to properly tackling organised crime. Last year, Dublin lost 100 gardaí. Since 2010 it has lost 1,000 gardaí. Regarding these losses, Assistant Commissioner Pat Leahy said we have hit rock bottom when it comes to the recruitment of new personnel. We have seen the redirection of gardaí into specialist units, transfers and the reduction in front-line policing, and there has been a 40% reduction in community policing. This lack of front-line policing has hit the ability of gardaí to understand what is going on in our communities where organised criminals prey on defenceless people. We need further investment in policing and in the communities to help them tackle disadvantage. We need investment in community development, education and employment. This regeneration is essential in those areas where organised crime gangs are recruiting members. This will help towards ending the scourge of serious and organised crime.

It is regrettable that year after year we have no choice but to renew the provisions of the 1998 Act. More than ever before, these measures are absolutely necessary. The Minister has rightly pointed out the reason the Act had to be brought in back in 1998. The threat to the State and our citizens is as prevalent today as it was then. It has probably become even more prevalent in recent times. We have seen the situation with dissident republicans trying to destroy what has been achieved through the Good Friday Agreement and the work of many people. We see what is going on on the streets of Dublin, where people are being gunned down week after week. It is appropriate that we should pay tribute to An Garda Síochána for the work it has done to try to take some of these criminals off the streets and put them behind bars. The reality is that people are being killed and this legislation and these measures are necessary. We in this House should be open to increasing the provisions of the legislation and giving more powers to the Garda if deemed necessary. We need zero tolerance for any kind of dissident or criminal activity that undermines the State and those living in it.

I pay tribute to the Minister, Deputy Flanagan. When he was Minister for Foreign Affairs and Trade, he put in a tireless effort to re-establish the institutions in Northern Ireland. It is pitiful today that this still has not happened. Since Deputy Flanagan became Minister for Justice and Equality he has worked tirelessly to ensure that the budgets are there to send people to Templemore. There is to be a passing out parade at Templemore tomorrow. More gardaí are going to be on the streets within the next two weeks - young people who are dedicating their lives to protecting others. The Minister has a very proud record in his short time as Minister for Justice and Equality in terms of getting this country up and safe and ensuring that gardaí are trained and legislation brought in to protect the people.

It will be wonderful if someday we do not have to renew the measures in the 1998 Act. It is incumbent on everybody with a role to play to ensure that happens. It is the type of future we should be looking for for the next generation. However, until such time as that happens we are going to be here year in, year out, ensuring that the measures are renewed. It is appropriate that we come back every 12 months to do so, to remind people as to the reason the legislation had to be created in the first place.

The Offences against the State Act came into being for a simple reason, namely, that there were and continue to be people who refuse to recognise the legitimacy of this State. Such people fought and continue to fight to subvert and disrupt the effective administration of law and order. The Act was in place in the 1970s to fight the sort of people who felt they were justified to shoot and beat to death a Member of these Houses. Billy Fox at 35 had served as a Deputy for the then constituency of Monaghan and subsequently as a Senator. He had a lot more to offer his country. His killers, members of the IRA, did not care that he had a mandate from his electorate. They killed him because he was a Protestant.

The Act was in place in the 1980s to fight the sort of people who shot someone to death because he was a prison officer. Brian Stack was shot in the neck from behind by members of the Provisional IRA as he left a boxing match in Dublin. He was killed because he was doing his job upholding justice in this State. Likewise in the 1980s, the Act was in place to fight the sort of people who shot a soldier on duty. Private Patrick Kelly, a native of the town of Moate in my home county of Westmeath, was a member of the Irish Army, Óglaigh na hÉireann, the only legitimate armed force in the State. Private Kelly was killed while he was involved in the rescue of a kidnapping victim, businessman Don Tidey. The Act was in place in the 1990s to fight the sort of people who deliberately shot a member of An Garda Síochána. Garda Jerry McCabe was brutally gunned down while he sat in his car doing his duty upholding the laws of this State. Then, in 2009, we were treated to Deputy Martin Ferris acting as a welcoming committee on the release from prison of those who murdered Jerry McCabe and the sickening display of support from his Sinn Féin colleagues for those brutish cowards.

Even in the present day, although the IRA has given up its campaign of violence, the unfortunate reality is that not all who were involved in that campaign have followed suit. A rump of violent dissident republicans still vehemently oppose peace and democracy and still refuse to recognise the legitimacy of the State. They have spent 20 years trying to destroy the Good Friday Agreement and all it stands for. We must not let them succeed. If this was not bad enough, they are now being joined by organised criminal gangs with similar disdain for law and order. These are gangs that order shootings at will, intimidate witnesses and jurors in an attempt to undermine trials, and terrorise and intimidate communities. They are armed and dangerous and they themselves think they are above the law.

It is exasperating to hear the sort of people who attack the Act saying it impinges on people's rights. What rights were offered to Billy Fox, Jerry McCabe, Brian Stack or Patrick Kelly? The same people go on to criticise the Special Criminal Court-----

-----while refusing to condemn kangaroo courts, punishment beatings, shootings, disappearances-----

Amnesty International.

-----that were planned and carried out by their colleagues.

I could go on but I will not. In 2018, this Act is in place to fight those who continue to pose a threat to the State and safety and security of its citizens. Whether the threat comes from so-called republicans or organised crime, we should do all in our power to meet that threat and ensure justice prevails for all our citizens.

It is regrettable that we have to bring this back every year, but it is necessary. That is the fundamental point. Let us take a picture today. The streets of Cork have been cordoned off because of the visit of Prince Charles. Why should they be cordoned off? It is because there is a potential threat. I support the motion. The importance of the Special Criminal Court is something we cannot dismiss. I will not pick a row, but Senator McFadden said it very well when she said a threat of violence still exists.

Senator Ó Donnghaile referred to the relics of the past. The relics of the past, to use his words, exist on one side but there are people who are dead and families who have been left without a loved one, as well as the men and women who served our State and protected all of us. That is the reality.

Some 200 new gardaí will pass out in Templemore tomorrow. The uniform they wear, including the badges they have on their lapels, is about protection and freedom. Today we must pay tribute to the men and women of An Garda Síochána and our Defence Forces. We have only one Army and we must always uphold the rule of law and the legitimacy and independence of our courts. That is why today is important. As we walk in a new Ireland, we recognise differing viewpoints. Some of us have to recognise that we were people who stood by the State and that is why we stand in this Chamber and the Lower House to pass the motion.

In his speech the Minister said, "There is a real and persistent threat from republican paramilitary groups, the so-called dissidents." That comes from an assessment by An Garda Síochána. I do not want to pick a row with Senator Ó Donnghaile but we know, based on our history and the modern world, what some dissidents are capable of doing, not just in our country but across the world. That is why we need the provisions being put forward today.

What will we do in 15 days, months or years time if a dissident threat becomes a reality, as happened with the bombing in Omagh, but the legislation has been removed from the Statute Book? What would happen? We may have mixed views about President Trump meeting the North Koreans in Singapore this week. What do we do in a world where dissidents kill? We expect the rule of law to be upheld. We expect juries, judges and prosecutions to operate in a fair and just manner and that is what this is about. I commend the Minister on bringing the motion forward.

I may not see the Minister again, and wish to commend him on what he will do in this Chamber and the Dáil next week regarding the apology to people from the LGBT community. It takes bravery to come into the House as a Minister and work with Members. In terms of the history of progressiveness in the Fine Gael Party and our country, it was the contribution of the Minister in Dáil Éireann on the Civil Partnership Bill that helped to shape minds in my party, for which I want to thank him. Some of us get some of the credit but it was that singular speech which brought many people on the journey, which I am very proud to see today. We will have an apology next week, for which I want to thank the Minister.

I acknowledge the very generous comments of my friend, Senator Buttimer, and look forward to what will be a very important event in the Seanad next week. As I outlined, the 1998 Offences against the State (Amendment) Act remains an essential tool in tackling the activities of terrorist groups across the island. Offences against the State Acts form the main body of the State's laws to counter activity of a subversive nature and terrorism. They are complementary to the general criminal law. While they are out of the ordinary course of criminal law, they are not emergency laws as some may have presented them. Over the course of the State's history, especially during the Troubles on the island, these laws have served to protect and safeguard the State from determined efforts to undermine it and its democratic institutions. It is surely beyond reasonable argument that a democratic State is entitled to and must take the measures it considers appropriate and necessary to protect itself and fundamental rights and freedoms and, as a consequence, to allow civil society to flourish.

I make no apology, therefore, for defending our laws and the measures we have in place to combat serious crime and terrorism. The people require us to do what we reasonably can in order to protect them. Many here will know from their own experiences as public representatives of the devastation that the activities of organised crime, in particular the drug trade, can wreak on individual lives and across communities. While we have a comprehensive criminal law regime to tackle serious crime, we must constantly see where, in light of experience and changes in crime trends, this might be improved. Our laws in this regard remain under constant review to ensure that they are effective and proportionate.

Organised crime is, of course, an international phenomenon and has respect for no borders. Significant strides have been made at EU level to reinforce the response to organised crime through continuous updating of European laws and the establishment of mechanisms to facilitate co-operation between law enforcement authorities, including, for example, through Europol and Eurojust. The renewal of this provision in the 2009 Act is a contribution to the overall framework of measures in seeking to tackle organised crime. It cannot in itself address this scourge in society, but it can be a support to the overall work which is ongoing.

I want to refer very briefly to the Special Criminal Court as it touches on both motions. There are those who have argued that the Special Criminal Court is no longer needed and that its use is unjustified or even that it has been partisan or biased. In response to that I have to say that I firmly disagree. The Special Criminal Court continues to be a necessary response to the threats faced by the State. Putting a second Special Criminal Court into operation was a response by the Government to the need to deal with the volume of cases waiting to be tried. Are we seriously to accept that the threat from republican paramilitary groups and the brutality of ruthless crime gangs does not need a particular response from the criminal justice system? Are we simply to ignore these realities and not retain at our disposal the best means to support An Garda Síochána and the justice system in tackling these ongoing terror threats? I cannot and will not do that.

I want to conclude by acknowledging what Senators said about Garda resources, in particular Senator Conway. He is correct. With regard to Garda numbers, the Government has put in place a plan for an overall workforce of 21,000 personnel by 2021, comprising 15,000 sworn Garda members, 2,000 reservists and 4,000 civilians who will ensure a greater level of availability and visibility of front-line gardaí, many of whom will be moved from desktops to the jobs they were best trained for, that is, working on the streets and in the communities of our country. We are making tangible progress on achieving that goal.

I want to acknowledge the contribution of Senators.

I seek the support of this House, in accordance with the legislation, to facilitate the passing of both motions this afternoon.

Question put and declared carried.

I move:

That Seanad Éireann resolves that sections 2 to 4, 6 to 12, 14 and 17 of the Offences against the State (Amendment) Act 1998 (No. 39 of 1998) shall continue in operation for the period beginning on 30 June 2018 and ending on 29 June 2019.

Question put and declared carried.
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