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

I welcome the Minister. The two motions will be debated together and decided separately.

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 2019 and ending on 29 June 2020.

I thank the House for taking these two important motions this afternoon. 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 in Omagh in August 1998. That act of depravity was an affront to humanity and democracy, and it lingers long in our memory. This legislation is a robust and proportionate response to those who choose the bullet over the ballot box. Section 18 of the 1998 Act provides that certain sections must be renewed by the Oireachtas at specified intervals if they are to remain in force. By virtue of resolutions passed by both Houses of the Oireachtas in June 2018, these sections were continued in force for a period of 12 months.

Prior to moving any motion for renewal, the Act requires that I lay before the Oireachtas a report on the operation of the relevant provisions. The current report covers the period from 1 June 2018 to 31 May 2019 and was laid before the Houses on 10 June 2019. It includes a table showing usage figures for each of the years since the Act came into operation. The report also indicates that a number of sections, namely, sections 3, 4, 6, 8, 9, 12 and 17, were not used during the reporting period in question. However, it should not be inferred from this that these provisions are in some way redundant or unnecessary because the usage of the different sections can and does vary from year to year.

While I have no doubt that every one of us in this House looks forward to a time when these provisions will no longer be required, as Minister for Justice and Equality I must at all times take into account the reality of the current situation. In that regard, I appreciate that some Senators are concerned about the role of the Special Criminal Court in the criminal justice system. One of the most important traits of a democratic society is a justice system that operates free from interference by anyone seeking to wrongfully influence outcomes.

We all agree that trial by jury must be preserved to the greatest extent possible. However, none of us can be blind to the threat posed to the criminal justice process by individuals, terrorist groups and organised criminal groups that seek to subvert the system through the intimidation of citizens. We cannot allow that to happen. We are obliged to make the hard decision that in certain limited circumstances trial by jury is simply not possible.

I respectfully disagree with those who assert that the Special Criminal Court operates contrary to fundamental rights. The court operates without a jury for sound reason but trials there involve three judges. Anyone tried in that court has the full range of procedural protections available to him or her, including access to the Court of Appeal and the Supreme Court. We all look forward to the day when the Special Criminal Court is no longer needed but, regrettably, we are not there yet. The Garda assessment is that there remains a real and persistent threat from republican paramilitary groups on this island - the so called dissidents. The threat level in Northern Ireland from these groups is regarded as severe. We know that these groups vehemently oppose peace and democracy and, regrettably, they remain wedded to brutality and criminality. They remain very active here carrying out fundraising and planning and preparatory activities to support attacks in Northern Ireland. Their callous disregard for democracy, the rule of law and human life was all too clearly illustrated with the posting of incendiary devices to addresses in the UK in March and their continuing attempts to murder and maim police officers, including the recent planting of a viable bomb under a PSNI officer's car. Of course, we can never forget the callous and appalling murder of Lyra McKee in Derry last April, an innocent woman contributing much to society. It shows the morally vacant nature of these dissident groups and their direct opposition to the democratic wishes of the majority on this island. I am determined that they will not succeed. I am also determined that the bullet will not triumph over the ballot box. I am sure everyone in this House shares my determination.

Of course, many provisions of the Offences against the State Acts could have application to the international terrorist threat. While, thankfully, Ireland has been spared the kinds of jihadist-type attacks we have seen in other European countries targeting innocent people going about their daily lives, such attacks are a stark reminder of the vulnerability of all open democracies to this ongoing threat. As an open democracy, Ireland is not immune. Our security authorities 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 tribute to the women and men of An Garda Síochána who work tirelessly in countering the threat from paramilitary organisations. The Garda authorities co-operate very closely with the Police Service of Northern Ireland in this regard and this is a key relationship in protecting communities across the island. It is the clear view of the Garda Síochána that the Act continues to be a most important tool in its ongoing efforts in the fight against terrorism. The Garda authorities have stated that the provisions of the Act are used regularly, which is evident from the report that I have laid before the House. As already stated, terrorist groups remain a threat to the people on this island. They are opposed to the benefits that have flowed from the peace process and are determined to undermine it. The State must retain in its laws the capacity to defeat them and we have a duty as legislators to ensure that is so. On the basis of the information set out in the report and on the advice of the Garda authorities, I propose that the House approve the continued operation of the relevant provisions of the 1998 Act to remain in operation for a further 12 months commencing on 30 June 2019.

I turn now to section 8 of the Criminal Justice (Amendment) Act 2009, which is also the subject of a motion before the House. It refers to four serious organised crime offences that are set out in Part 7 of the Criminal Justice Act 2006. Section 8 of the 2009 Act makes these offences scheduled offences for the purposes of Part V of the Offences Against the State Act 1939. That is to say, trials for these offences are to be heard in the Special Criminal Court subject to the power of the Director of Public Prosecutions, DPP, to direct that the offences be tried in the ordinary courts. This discretion for the DPP maintains an essential balance in deciding which cases are appropriate to be tried in the Special Criminal Court. The legislation requires me to prepare a report, which shall be laid before both Houses, on the operation of the section in the period under report. That report, covering the period from 1 June 2018 to 31 May 2019, was laid before the House on 10 June.

Organised crime continues to present a significant problem. There is, unfortunately, stark evidence of the willingness of these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. Dublin in particular has seen a litany of murders, with three callous and cold-blooded murders carried out in the space of a week in recent times. What is clear is that these gangs have no respect for the laws of this land nor the safety of its citizens. They are a scourge on this society and by their behaviour demonstrate a callous disregard for everything that a stable and democratic society stands for. Their nefarious dealings are a cancer that has resulted in the devastation of many lives but nobody is above the law.

Although the provision has been in place since 2009 and while there have been arrests under the relevant offences, 2018 was the first time that convictions in respect of offences under section 72 were secured in the Special Criminal Court. This highlights the considered approach of the DPP in using her discretion to direct that cases would be tried in the ordinary courts where it is possible to do so. The Garda authorities have made clear that this provision continues to be required. As Minister, I must at all times have the utmost regard for the views of the Garda authorities.

The House will share my view that trial by jury must be preserved to the greatest extent possible. However, none of us can ignore the threat posed to the criminal process by individuals, terrorist groups and organised criminal groups that seek to intimidate jurors or potential jurors. Their aim is to subvert the criminal justice system and we cannot allow that to happen. Therefore, we must take appropriate and proportionate measures to prevent this interference. In all the circumstances, I consider that it is necessary to continue section 8 in operation for a further period of 12 months beginning on 30 June 2019. I commend the motions to the House.

We will support the motions. The Minister has made a clear case for the need for this legislation. In particular, he made reference to the death of the journalist Lyra McKee in the North only a very few short weeks ago. Her death shocked everyone and showed how close we are to violence breaking out again. Brexit also poses a risk to this State. This legislation is necessary and we will support it.

This is probably my eighth year standing up on behalf of the Government as spokesperson on justice and acknowledging that, unfortunately, we find ourselves in a situation where we must renew this extremely important piece of legislation. When it comes to these very important issues, I commend Fianna Fáil as well because it puts the interests of the State first. The primary focus of this legislation is protecting our citizens, communities and people and ensuring that people who dare to use the Armalite as opposed to the ballot box are dealt with efficiently and effectively in order to protect our society.

The Minister convincingly outlined the threats that are still there to our people and society. Never was it more articulated than following the death of Lyra McKee. It is unfortunate that we must again renew this legislation, but as long as it is needed and as long as the Minister, his advisers and An Garda Síochána feel that it is necessary we are duty-bound to ensure that it is renewed.

Cuirim fáilte roimh an Aire. The Minister referred in his remarks to the tragic loss of Lyra McKee. I have not had an opportunity to reflect on that since the return of the House so I take the opportunity to again convey my own personal sympathies and solidarity with Lyra's partner and her family and also those of my party. I knew Lyra McKee primarily through her journalistic writing and through the occasional engagement on social media, but I did once share a platform with her at a Féile an Phobail event in west Belfast a number of years ago. It was a talk-back discussion with young people from across the city. What struck me about Lyra McKee was that, as we now know was her nature, while we were there to answer questions she was as inquisitive as the young people in the audience. She asked them their views and it was clear that she was very enthusiastic about encouraging them to be active in their communities and within their own spheres. Given the Minister's reference, I wanted to take the opportunity to convey our sympathies to Lyra McKee's family.

As the Minister is aware, we have a difference of opinion on the legislation. I have outlined it every year since entering this House as the Sinn Féin spokesperson on justice in the Seanad. I say respectfully to the Minister, the prevalence and viciousness of gang-related violence in this State is one of the biggest challenges we collectively face. Not remotely enough is being done to come to terms with it. It has become a living nightmare for the communities who have to live with it. People are terrorised and have lost hope that it will come to an end. There is a climate of fear, violence, intimidation, drug running and other forms of criminality that goes along with such gangsterism. As a result, there has been a devastating impact on communities.

There have been six gang-related murders so far this year, with three in one week, and several more foiled by the work of the Garda. There were 77 homicides in 2018, 185 arrests for possession of firearms and 89 charges of discharging a firearm. Between 2016 and 2017 a total of 22 people died in gang-related killings. The response from the Government has been totally inadequate. It is still the case that the majority of Garda stations are either at or below their 2014 level. In real terms, Dublin has lost 512 gardaí since 2009. Prior to the recent reactions to crime, Coolock and Drogheda were among the stations that saw a reduction in Garda numbers. Since 2011, Coolock Garda station lost 14 full-time gardaí, while the local anti-drugs unit lost 13 of its 32 personnel. The problem has gone on and on and the violence continues to spiral out of control. More will die as it continues. More families will be bereaved and communities will continue to live in fear. That is not only my assessment, all of the Garda representative organisations, the Garda Representative Association, GRA, and the Association of Garda Sergeants and Inspectors, AGSI, as well as recent Garda Commissioners, have stated repeatedly that An Garda Síochána is "decades" behind other police forces in terms of numbers, equipment, training and resources. Privately, GRA members have expressed their view that the Government has been complacent about the increase in gang crime. I was astonished at the decision not to take on the full complement of Garda recruits this year. If that is repeated next year, I question whether the Minister will reach his target of 15,000 sworn members of An Garda Síochána by 2021. In any event-----

The Senator's remarks are not relevant to the Bill.

Senator Ó Donnghaile should be allowed to continue without interruption.

It is relevant to the Bill. In any event, I am of the view that this is far too modest, and that we should be aiming for in excess of 16,000 gardaí. In the last four months of 2018 there was an embargo on overtime in the Garda. We have seen a 40% reduction in community policing. The South has one of the lowest police-to-population ratios in Europe with 278 gardaí per 100,000 citizens, which is 40 fewer than the EU average.

I recognise that the front-line members of An Garda Síochána, are doing all within their power to confront this problem. I note the actions of the Criminal Assets Bureau, CAB, in recent days, and I note also that countless operations by gardaí have stopped crime and killings, and I pay tribute to them for that. However, the Government is not putting in place the resources they need. According to Seamus Boland of the Garda National Drugs and Organised Crime Bureau, the Garda is targeting "in the region of 20 groups" at any one time. Some of the groups, such as the Kinahan gang, could have hundreds of people linked to it. That is the scale of the challenge.

Last year, my colleague, Deputy Ó Laoghaire, called for "a comprehensive review of the emergency legislation in advance of its renewal next year" – that is now - which would focus on how to modernise the criminal justice system to make it responsive to the needs of Ireland in 2019. However, that has not happened. Sinn Féin believes we need new legislation to repeal the outdated emergency Acts currently in place and to replace them with strengthened legislation providing for new courts to deal with such cases. The reality is that the Garda and the courts are facing 21st century challenges with 20th century legislation. The current outdated criminal justice system does not act as a deterrent to organised crime. It is in fact exploited by it. Sinn Féin recognises that there are certain criminal cases which are more difficult to prosecute given the nature of organised crime today. The opportunity for well organised and well-funded criminal enterprises to influence juries, tamper with evidence or intimidate witnesses is greater than in the vast majority of criminal cases. While always supporting, defending and promoting the judicial norms of the right to a jury trial, only in very special circumstances should we deviate from that in order to protect the judicial process. Currently, hearings at the Family Court are held in camera while the drug treatment court is a specialised court operating within the legal system. Therefore, Sinn Féin does not oppose special courts and court procedures to deal with the very specific circumstances of violent, organised criminal gangs which present serious threats to the security of the State and communities when the ordinary courts are prevented from securing the effective administration of justice. The Constitution provides for that.

The manner in which we try cases involving serious crime is not adequate, and we must offer greater protections to jurors and witnesses to ensure greater success in putting criminals away. The kind of legislative change required has been debated, some of which has been considered by bodies such as the Law Reform Commission. We believe there is a need to create a specific offence for tampering with a jury. We also believe there is a need to increase penalties for intimidation of jurors under section 41 of the Criminal Justice Act 1999. There are undoubtedly circumstances where it will be appropriate, necessary and proportionate to provide for the anonymisation of juries and witnesses. The Government has, rightly, provided that for witnesses recently in the Domestic Violence Act and it could be provided for here as well. It could be done via screens in a court room or in very particular circumstances, remote location of jurors with a video link to the court room. We should take all steps necessary to ensure the safety of jurors and witnesses, but the Government has not even considered these matters. Such legislation could have an inbuilt independent review of legislation to ensure its effectiveness and that it is rights proofed. That is something the Commission on the Future of Policing has recommended, and I expect the Minister to implement it.

I could say much more but I am stuck for time. My Sinn Féin colleagues have articulated our long-stated view on the matter and the Minister is aware of it. We want to get this right and to approach it in a human rights compliant way that ensures the right outcome for all of us. We do not shy away from challenging criminal gangs and we do not shy away from so-called dissidents, North or South, who are more likely to challenge people like me on a daily basis and to threaten members of my party than anyone else. We do not shy away from that. We must ensure the emergency legislation is fit for the 21st century rather than an outdated 20th century piece of work.

I welcome the Minister back to the House. As has been said, the Offences against the State Act was introduced in 1998 following the barbaric murder of 29 people by the IRA in the Omagh bombings. The legislation has continued until now, and the recent terrible death of Lyra McKee, which was again a murder committed by the IRA. My colleague spoke about the depleted number of members of An Garda Síochána. Twenty three members of An Garda Síochána were murdered by the IRA and terrorist organisations – although there may be more - but that is the only number we have for those murdered by the IRA and other terrorist organisations in recent times.

It has no place in our country. That is why we need to do what we are doing here today.

As the Minister said, we would all love to live in a situation where we would not need this legislation but we do not live in that situation at the moment and we need to protect our citizens. I commend the Minister for coming back to the House and defending this, and I am delighted that others are supporting it. There is no place for gangland activity and no place, as far as I am concerned, for paramilitary activity in our country.

I welcome the Minister and welcome the opportunity to speak on the proposed renewal by the Government of the relevant provisions of the Offences against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009. Like other colleagues, I have spoken many times in this House on the debate as to renewal. Last night in the Dáil, my colleague, Deputy Sherlock, spoke on amendments to the motions. In light of what ensued in the Dáil, I do not propose to press the amendments. However, as Deputy Sherlock said, there is a question for us in the Oireachtas to determine in respect of these renewal motions.

I should also add my voice to that of other colleagues in acknowledging the context in which the Government is putting forward the motion, in particular the tragic and horrific death of Lyra McKee in Derry. I want to express my utter condemnation of that appalling murder and my sympathy to her family, her friends and her community. Of course, that reminded us of the ongoing threat of dissident republican and paramilitary violence, about which the Minister has spoken. I share with others the condemnation of organised crime and the impact it is having on so many communities, notably, and most recently, in north inner city Dublin. I acknowledge that context in which we are debating the renewal of these motions.

As Deputy Sherlock said last night, as legislators, we must always remember the provisions we are scrutinising are subject to annual scrutiny precisely because they represent an interference with due process rights of the accused and with the normal standards of criminal justice, and the Minister has very fairly acknowledged this. We need to ensure we are complying with our required functions under the Constitution and legislation. Article 38.3.1° of the Constitution states that in order for specified offences to be tried in non-jury courts, the inadequacy of the ordinary courts to administer justice must be determined in accordance with law. Deputy Sherlock spoke about what that means and about the need, therefore, for the Houses of the Oireachtas to consider annually whether the ordinary courts are inadequate to administer justice in these cases, in order for the requirements of the legislation to be complied with.

The Oireachtas has delegated to the Dáil and the Seanad the decision to be taken annually as to whether the courts remain inadequate, and that is the basis on which these motions are passed every year. The difficulty for us is that the statutory report which the Minister furnishes to both Houses annually always gives the number of times each offence has been prosecuted, the arrests made under each provision and so on, but what it does not give us in any detail is consideration as to the adequacy of the ordinary courts to administer justice and why the Government is saying the ordinary courts are inadequate to administer justice. That is the point which was the kernel of the proposed amendments that were debated in the Dáil last night by Deputy Sherlock.

As I have said in previous years, as well as scrutinising the basis on which the motions are put forward and the basis on which the Government is saying the ordinary courts are inadequate, we also need to take cognisance of the pattern of usage and, indeed, non-usage of the different provisions. I note in respect of the Offences against the State (Amendment) Act that there are a number of sections which have not been used at all in the past year. Indeed, when one looks back, there is a pattern non-usage of certain provisions under sections 3, 6, 8, 9, 12 and 17. It is similar with the Criminal Justice Act where, again, we see no arrests made under section 71A in the last year, which is the provision on directing the activities of a criminal organisation. Where we see a pattern of non-usage, as legislators, we need to inquire as to whether it is necessary every year to renew those specific provisions. It is not just the general issue as to whether or not the ordinary courts are inadequate but also the continuance in operation of specific provisions where there is a pattern of non-usage.

I put these issues forward. As I said, I do not propose to press a vote on the issue today and I acknowledge the ongoing threat of dissident republican activity in the North and the threat of organised crime. However, where we are providing for a non-jury courts on this exceptional basis, where we are saying that under the Constitution the ordinary courts are inadequate, we need, and we will be requiring in future years, a higher level of evidence to be offered to us by the Government as to why it is said the ordinary courts are inadequate to administer justice in these specific instances.

I am grateful to the House for its consideration of these two motions. I thank Senators on all sides for their contributions to the debate. Naturally, I particularly welcome the support expressed by a number of speakers for the continuation of these provisions. I appreciate the shared commitment in the House to maintaining in place what is a robust legal framework for the Garda and the courts when dealing with the most serious offences that may threaten the State and the operation of the criminal justice system.

As I outlined, it is my firm view the Offences against the State (Amendment) Act 1998 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 or terrorist nature. We cannot be blind to the ongoing threat that so-called dissidents pose to our way of life. Their disregard for peace and democracy requires a robust and proportionate response. As legislators, we have a duty to do what is necessary and reasonable to protect our democracy. Likewise, as public representatives, everyone in this House has witnessed the devastating impact that drugs have had on families across communities. The activities of organised criminal gangs have wreaked havoc throughout the country.

Let me refer again to the question of the Special Criminal Court as it touches on both motions. To those in the House who have argued that the Special Criminal Court is no longer needed, that its use is unjustified, or even, as has been said not on this occasion but on other occasions in the House, that it has been in some way partisan, I respectfully and firmly disagree with these assertions. I reiterate my belief that juries should be used as much as possible. The Constitution guarantees individuals the right to trial by jury in respect of serious offences. However, the Constitution also recognises the reality that there may be offences which cannot be properly adjudicated upon by a jury because of the threat posed to the State and to individual jurors.

The Special Criminal Court continues to be a necessary response to such threats faced by the State. As I have previously stated for the record, its judges have performed courageous public service in presiding in court without fear or favour over the prosecution of some of the most dangerous terrorists and ruthless criminals in the State. The court has proved its value over the years and it continues to do so. The very real threat to our society that comes from dissident republican paramilitary groups and the brutality of ruthless crime gangs needs an effective and particular response from the criminal justice system. As parliamentarians, we have a duty to support the Garda and the justice system in tackling these threats. I am committed to providing the necessary resources and legislative supports to combat those who seek to undermine the law and to damage lives and communities in doing so.

I will comment briefly on the points raised by Senator Ó Donnghaile in respect of Garda resources. There has been unprecedented investment in An Garda Síochána in recent years, in support of the Government’s commitment to ensuring a strong and visible police presence throughout the country in order to maintain and strengthen community engagement and provide reassurance to citizens and deter crime. The resources provided by the Government to An Garda Síochána have reached unprecedented levels, with an allocation for 2019 of €1.76 billion. This represents an increase of over 6% over the initial allocation for 2018.

The programme for Government commits to ensuring a strong and visible police presence throughout the country in order to maintain and strengthen community engagement and provide reassurance to citizens and deter crime. In July 2016 the Government agreed an overall vision for the Garda workforce of 21,000 personnel by 2021, to include 15,000 Garda members, 2,000 Garda Reserve members and 4,000 civilians. This Government is on target for this goal and, while the Senator mentioned a change to recruitment figures for this year, he omitted to mention the resolve on the part of the Garda Commissioner to ensure an influx of civilian workers into An Garda Síochána.

The renewal of section 8 of the 2009 Act is a contribution to the overall framework of measures in seeking to tackle organised crime. It cannot, of itself, address this scourge in society but it can be a support to the overall work that is ongoing. We cannot ignore the activities of so-called dissident paramilitaries; neither can we ignore the grave threat posed by gang-related crime, in this city and beyond. As set out in the two reports that I have laid before the House, it is the clear view of An Garda Síochána that the provisions in the 1998 Act and the 2009 Act continue to be a necessary addition to the general criminal law. I commend the motions to the House.

Question put and declared carried.

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 2019 and ending on 29 June 2020.

Question put and declared carried.

When is it proposed to sit again?

Next Tuesday, 11 June, at 2.30 p.m.

The Seanad adjourned at 2.25 p.m. until 2.30 p.m. on Tuesday, 18 June 2019.