Vol. 301 No. 9
I welcome the Minister of State, Deputy Browne, back to the House; he was here less than an hour ago.
We will now deal with No. 2, motion regarding the Offences against the State (Amendment) Act 1998 and No. 3, motion regarding the Criminal Justice (Amendment) Act 2009. Both motions will be debated together and decided separately. I call on the Acting Leader to move No. 2 regarding the Offences against the State (Amendment) Act 1998.
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 30th June, 2024 and ending on 29th June, 2025."
I thank the House for taking these two motions today. The two motions seek the approval of the Seanad to continue in force provisions in the Offences against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009 aimed at combating terrorism and organised crime. Given the nature of these important provisions, the Houses of the Oireachtas have decided that they should be periodically reviewed.
The House will be aware that the Offences against the State (Amendment) Act 1998 contains a series of amendments to the Offences against the State Acts to make them more responsive to the threat from certain groups. This robust legislation was enacted by the Oireachtas in the wake of the murder by the Real IRA of 29 innocent people in the bombing at Omagh in August 1998. Our thoughts remain with the families of those murdered and the survivors of this heinous act. In February the UK Government established an inquiry into the preventability of the bombing and this Government is anxious to ensure that as far as possible by the end of that inquiry there are no unanswered questions relating to the bombing that can only be examined in this State. Officials here have met with the inquiry team and will continue that engagement.
That atrocity demanded a resolute response from the State and the legislation enacted then was a necessary and proportionate measure to defend the desire of the vast majority of law-abiding people on this island to live in peace. Of course, it must be recognised that in the subsequent years there has been steady progress towards building a lasting peace on this island.
I welcome the restoration of the Stormont Assembly and the power-sharing Executive earlier this year and the recent lowering of the threat level in Northern Ireland from "severe" to "substantial" by the UK authorities. Nonetheless these groups remain committed to violence and are contemptuous of the vast majority of the people on this island who want a future based on peace and founded in the primacy of democratic politics and respect for the rule of law.
These groups continue to focus their efforts primarily on targeting members of the security forces in Northern Ireland, as evidenced by the attempted murder of Detective Chief Inspector John Caldwell in February 2023. Thankfully this very serious and heinous attempted murder was thwarted by the dedicated medical teams and Inspector Caldwell’s determined fight for life. It is truly wonderful to see his remarkable recovery.
Only in the past few weeks An Garda Síochána uncovered a suspected improvised explosive device at Ravensdale in County Louth as part of a joint operation with the PSNI. I pay tribute to the gardaí and PSNI officers who work tirelessly and co-operate to counter the threat from paramilitary organisations and to protect their communities.
It is imperative that our laws and our authorities are properly equipped to deal with the threat from terrorism. In that regard, I am firmly of the view that the provisions I am seeking the renewal of today are necessary and required to support An Garda Síochána in investigating, disrupting and dismantling the activities of terrorists. These provisions of the criminal law provide strong legislative powers to ensure that the Garda and the courts are in a position to meet the challenge laid down by those opponents of peace.
The report laid before this House on 18 June includes information provided by the Garda Commissioner on the use of the provisions in question over the past 12 months and a table setting out reported usage figures for each of the years since the Act came into operation. The report also provides a brief assessment of the security situation and notes the clear view of the Garda Commissioner that the Act continues to be an important tool in ongoing efforts in the fight against terrorism.
Of course, while the 1998 Act was a response to a domestic threat arising from dissident republican terrorism, as an open democracy it is very important that we do not lose sight of the threat from violent extremism and international terrorism. We are not immune from this threat. Many provisions of the Offences against the State Acts are also capable of being utilised in response to such threats and we continue to work closely with our EU and international partners in remaining vigilant to the threat posed by violent extremism and international terrorism.
Section 8 of the Criminal Justice (Amendment) Act 2009 is also the subject of a motion to be put before the House. It refers to a small number of 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 to be heard in the Special Criminal Court subject to the power of the Director of Public Prosecutions to direct that the offences be tried in the ordinary courts.
The purpose of this provision is to guard against the possibility of interference with jury trial by ruthless criminal groups which seek to behave as though they are beyond the law. It was enacted as a response to a number of difficulties where the criminal justice system was considered to be under serious threat from organised crime. Organised crime groups had shown a particular ruthlessness in their activities, including attacks on witnesses and intimidation of jurors. It was an imperative that the criminal justice system was robust enough to withstand the assault launched upon it. Of course, it is the case that jury trial should be preserved to the greatest extent possible. I believe that most Senators will agree that that imperative remains.
Everyone in this House is aware of the threat that society and the criminal justice system face from organised crime groups which will stop at nothing in pursuit of their criminal activities. Their willingness to resort to extreme violence and their flagrant disregard for communities has been apparent in recent months in shocking killings witnessed in Blanchardstown and Drimnagh which have been linked to feuds between rival gangs. The Government is fully committed to supporting An Garda Síochána in combating those involved in organised crime. This is reflected in the record allocation of over €2.35 billion in budget 2024, which includes investment in boosting surveillance capability with the purchase of new enhanced air support.
The Garda authorities are working intensively to bear down on these criminal gangs and to obstruct their activities, making significant seizures of drugs, cash and weapons, bringing criminals to justice and most importantly preventing further loss of life.
I draw attention to the joint task force operations, resulting in the largest drugs seizure in the history of the state on the MV Matthew off the coast of Cork last year. Senators will be aware of other significant cases in which individuals have been sent forward to trial at the Special Criminal Court in recent weeks. I acknowledge this important work and the gardaí who persevere with it day in and day out.
The views of An Garda Síochána are clearly set out in the report on the operation of section 8 of the Criminal Justice (Amendment) Act 2009. It is its view that the continued operation of this provision is required. It is also the Minister's view, therefore, that section 8 should continue in operation for a further 12 months.
The House will be aware that in June 2023 the Minister for Justice published both the majority and minority reports of the independent review group appointed to examine all aspects of the Offences against the State Acts following their consideration by Government. Following the publication of the report, officials in the Department of Justice have engaged in detailed consultation on all the recommendations of the review group. Having examined the reports from a variety of perspectives, including policy, governance and legislation, the outputs from this consultation and analysis are informing the preparation of a substantive response to the review which the Minister will bring to Government for approval in due course.
I believe that the Offences against the State Acts have served us well in combating subversives and organised crime and fulfil a vital role in our criminal justice system. The Special Criminal Court was established to respond to the threat to the State and its people from republican terrorism over the decades and it continues to deal with the threat posed by terrorism and the most serious organised crime cases. It serves to eliminate the very real risk to jurors and potential jurors by subversives and ruthless crime groups who place no value on human life.
There is a responsibility not to ignore the threat posed by such groups. The Special Criminal Court is only used in very limited circumstances. I am informed that 15 people were sent forth for trial to the Special Criminal Court last year on 35 charges.
Given the importance of this legislation over many decades, any proposals for reform must be thoroughly considered and approached with care. Of utmost importance will be to ensure we do not do anything to undermine the efforts of authorities with responsibility for countering terrorism and organised crime in affected communities. A further period of consideration is needed before the Minister brings her response to the offences against the state review to Government for approval.
Meantime, and having regard to clear view of the Garda authorities, as noted in the report before the House, that the 1998 Act continues to be one of the most important tools in ongoing efforts in the fight against terrorism, the Minister is satisfied that these provisions continue to be required and should remain in operation beyond 30 June. The House will also be aware that the majority and minority of the independent review group were broadly aligned in their view that further consideration be given to the issue of jury reform and the need to improve transparency around the operation of the Special Criminal Court. During last year's renewal debates, the Minister indicated that the officials in the Department of Justice would be engaging further with these matters, including through consultation with the relevant State agencies where required. On the issue of jury reform some years ago, the Law Reform Commission, LRC, set out a series of measures which may protect jurors where potential issues arise. While such measures are unlikely to completely eliminate the risk of jury intimidation in every case, they may in a particular case avoid the need for a non-jury trial. The Minister intends to engage with stakeholders to review progress since the LRC report would have viewed the further reform.
Publication of court judgments was also recommended to improve transparency of cases. I welcome that the Courts Service has now put procedures in place to publish judgments of the Special Criminal Court on its website in a similar manner to judgments of other superior courts. I expect this will take place soon. The review group also recommended greater transparency as to how cases get to the Special Criminal Court and how the Director of Public Prosecutions arrives at a decision to direct cases for trial. I understand the Office of the DPP has committed to making such narrative information available to the public, both on its website and in future publications which is also a welcome development.
I welcome the Minister of State back to the House. On behalf of the Fianna Fáil party, I welcome the debate and support both motions. The Minister of State outlined that unless we pass both motions, they will be discontinued from the end of this month, so it is important that we pass them. They are important legislative measures and unfortunately the need arises for us to continue with them. He outlined that the advice of the Garda Commissioner, and in due course, of the Government itself is that it is necessary. Dissident paramilitary groups remain a significant threat and the threat level in Northern Ireland is classified as substantial. That means an attack is likely, so we cannot ignore that information and have to act upon it. In a similar way, not just from a domestic perspective, but from an international one, we are not immune from international terrorism and have to act. We also have our own organised crime gangs who unfortunately still engage in murder, the supply of drugs and firearms and so on. As the Minister of State did, I commend gardaí on the great work they do in apprehending these criminals and putting their own lives at risk on behalf of us all. It is important we mention that. I am delighted to support both motions. The Minister of State outlined everything in his presentation that needed to be outlined.
Have he any idea of the timeline for the ongoing independent review? Has he a date for when we expect that work to be complete? In the meantime, we unfortunately have no choice but to support both motions as outlined. I am delighted to do so when the time arises.
I support the two resolutions and it would be a mistake at this time to allow either set of legislative provisions to lapse. The Minister of State's speech makes reference to the attempted murder of an RUC officer and the finding of improvised explosives devices in Ravensdale, County Louth, in recent times. There is in our society a movement that still believes it is somehow part of the Irish Republican Army, and its ideology, crazy as it may seem, is that the army council of that organisation is the legitimate government of this country. Anybody who doubts me should look at their green book. They arrive at that view by saying that in 1938 some surviving members of the second Dáil, which was elected in 1920, convened and vested the powers of the second Dáil in the army council of the IRA. Thereafter we have faced a group of people who have denied the legitimacy of this State and who claim they commit no crime when they act on the authority of the army council of the IRA. Of course, the army council of the IRA is a moveable feast, because these people regard themselves as the legitimate army council of the IRA and therefore commit no crimes when they shoot Irish gardaí, PSNI men or British soldiers or when they extort, bomb, maim and do all of the things that terrorism has done on this island. The sad fact is there are many people here, and some in this House, who still believe in that ideology. They still believe that the legitimate powers of the 1916 republic are vested in the army council of the IRA, and that this State is an illegitimate and temporary arrangement in which they participate, and its democratic institutions fall into that category. They have never publicly renounced what is in the green book, and what all of their volunteers undertook on oath to uphold and which they have always defended. What are called the dissident republicans are willing to kill in furtherance of that mad ideology. It is about time that all political parties fully subscribed to the proposition that, in this State, there is one legitimate government, which is the legitimate government of this State, and no other group outside the institutions that exist north and south of the Border has any power or legitimacy, or a higher ranking in legal or constitutional authority. That is the first thing.
The second thing I want to say is I believe passionately in jury trial. I believe so strongly in jury trial, that it would almost make you weep on occasions when you see, particularly in the United Kingdom, proposals to abridge the right to criminal trial, in complex fraud cases for example, or to get rid of the current backlog of cases post Covid. The constitutional right to trial by jury is happily guaranteed in the Constitution. From that point of view, there are not such pressures here. However, I recall on one occasion as Attorney General having to consider the issue as to whether petty theft could be made a non-jury case triable in the District Court. I remember thinking, and being strongly of the view, that if a bishop, Taoiseach, Tánaiste or somebody else is accused of shoplifting and convicted, it is the end of his or her career. To say to a young lad from a working-class background that he cannot have a trial by jury, but important people can, would be utterly at variance with constitutional values.
In that context, I remember researching what some judges have said. The late Cearbhall Ó Dálaigh stated, and it has rankled with me ever since, that the constitutional provision protecting the right to trial by jury was not in any sense a statement that the then existing Judiciary, of which he was one, was not suitable to try crimes by itself but a bulwark against a possible future Judiciary which would not be so impartial. Judges, by their very nature, become case-hardened. This is particularly so in the District Court where non-jury trial for summary offences is available. When it comes to that court, district judges are always in the position that if they say they have a reasonable doubt about a garda’s evidence, they are effectively saying they do not believe the garda. This is the man who comes up before them every day of the week. By saying they have a reasonable doubt about whether his evidence or his account of this is true, they are effectively painting themselves and the garda into a corner.
In important matters, there should always be a trial by jury, and that applies to every crime that one can imagine. On the other hand, I know from my own experience that the killers of a well-known garda did their best through their own organisation to procure the non-attendance of witnesses at trial and to avoid convictions for murder. That is the kind of thing that has happened in the past - that use of organisational influence to try to procure a miscarriage of justice. I have no doubt that the super-gangs we see based in the Middle East, Spain and the like would have the capacity to interfere with and intimidate jurors. Our protection of juries is very lax and they are not protected in any real shape or form. Anybody with a bit of nous and determination could identify the jurors, follow them home and intimidate them or members of their family very easily. Therefore, preserving the right to trial by jury for the great majority of people on occasion does force us to accept what is written into the Constitution, namely, where the ordinary courts are inadequate to secure the proper administration of justice, there can be special criminal courts. Of course, they should be used in a minority of circumstances and used sparingly.
I note what the Minister of State said about transparency in regard to the process whereby the Director of Public Prosecutions directs prosecution in a non-jury court rather than a jury trial. That decision is, by judicial decision, beyond the purview of the Judiciary, which has said this is not an issue on which it can intervene. The law says that, under the Constitution, it has been determined in accordance with law that a particular case is to go to a non-jury trial and the Judiciary does not have a function to investigate whether that is a correct or incorrect decision. All that I am saying is that people can press for transparency on that front but if they press for transparency to the point where judicial review of that decision becomes possible, the proper mechanisms, which have worked so well in ensuring the Special Criminal Court operates and is not abused, will be subject to being dragged into the legal mire of people squabbling at great length, up and down through the High Court, the Court of Appeal and the Supreme Court, about the venue of their trial. That should not be permitted.
I am strongly in favour of the two motions even though I am passionately committed to the principle of jury trial for the great majority. I simply say that if we want to preserve public faith in jury trial for the great majority, we must be willing to support what the Constitution says, and the Constitution says that Special Criminal Courts may be established where it has been determined in accordance with law that the ordinary courts are inadequate to secure the proper administration of justice.
As a practising barrister, I believe deeply in the value of juries. It is very important that people have an opportunity to go before a jury of their peers to put their case to people who are not jaded, who have not heard it all before and who are not preconditioned to have a particular view on it. I agree with what Senator McDowell has said about the difficulty that district judges face in this regard because they have to deal with things on their own and they are seeing the same offences, day in, day out, sometimes the same defences and, unfortunately, sometimes the same offenders before them. However, a district judge is not doing his or her job if he or she does not consider each case individually and decide whether there is sufficient evidence to overturn the presumption of innocence. I know Senator McDowell agrees with me on this. I also recognise how difficult it can be sometimes. However, no garda should ever think that the finding by a summary judge of a reasonable doubt necessarily constitutes disbelief in what the garda said. I know that I believe certain things that have subsequently been proven to be untrue. You see something happening and you believe it happened in a particular way but CCTV subsequently shows that it did not happen. That happens to everyone and everyone is fallible, and it is entirely appropriate that a judge would make that finding.
The beauty of a jury system is that 12 citizens are brought in, and they are 12 people who are not used to the court system and who have not seen it all before. They bring their own life experience and their own objective analysis of the situation to render a decision that is just. On the whole, we are lucky to have a system that is incredibly fair in that regard, and I say that of the Judiciary as well. We have a Judiciary that, on the whole, functions extremely well. We do not have a significant number of miscarriages of justice in this jurisdiction, and we compare very favourably to other common law jurisdictions in that regard, including our neighbouring jurisdiction and certainly the United States. I have high praise for our judges but also for the men and women who serve on juries in this State. They do an enormous service to us, as a country and as a polity, in doing that job. My experience in dealing with juries is that they do so incredibly conscientiously. When people take on the role of serving on a jury, they take it seriously. They expend time, effort and energy listening to the case and the evidence and applying their skills to it in the way the judge directs them to do in accordance with law. That is why the system works.
As has been said, however, those juries are vulnerable. It is very easy to identify who is on a jury, even in the Criminal Courts of Justice in Dublin, which are in a building that was expressly built to separate jurors, persons in custody and the Judiciary from each other. The building consists of different channels so they do not mix with each other in the corridors and there is not the embarrassing situation where a defendant or an accused person is bumping into somebody from the jury in the corridor, the toilet, the restaurant or whatever it might be. That does not happen in the Criminal Courts of Justice yet the jurors all must leave the building at the same time and they all go out the front door. Therefore, if somebody wants to nefariously interfere with a jury, it is easy for them to identify who is on that jury. Interference with a jury does not have to be at the end of a gun, and it can be as much as somebody sitting next to them in a café or on a bus and saying something intimidating. It is very easy to interfere with the jury process.
Thankfully, in the vast majority of cases, that does not happen. However, nobody in these Houses is in any doubt that there are elements out there that absolutely will do that if they get the chance, whether they are terrorists or terrorist organisations, or individuals involved in simple criminality but somehow self-justified through political or so-called political ideology. Whether it is those people, members of gangland or whoever it might be, I do not think anybody is in any doubt that there is an element out there that will use the vulnerability of the jury system to interrupt it and destroy the system of criminal justice if we allow them to do it. While I love juries and the jury system, and I think the system works, I also recognise there are times when there is a danger that it will not. Therefore, the necessary evil in solving that is the Special Criminal Court.
There are, of course, two ways to do it. One is to have what we have in the non-jury court.
The other is to have some kind of secure sequestering system for jurors, where they get locked away and separated from people for the duration of the service. That is not a particularly practical solution. It certainly would be vastly more onerous than the current system for the people who agree to serve on a jury. It would be very unfair on jurors, particularly in a long Central Criminal Court trial that might last weeks or even months, not to be able to see their family and friends or socialise with anyone outside the jury. It is not a reasonable response to a situation that can be solved in a different way. As much as I dislike the Special Criminal Court system and am uncomfortable with non-jury courts, I recognise that, at least for the moment and probably for some time, the Special Criminal Court is a necessary evil in our system to safeguard the criminal justice system and fair trial process we value so much.
This week, there has been quite an amount of public criticism of the Judiciary in this country. As I said, our Judiciary is functional and serves the country incredibly well and incredibly fairly. That is also true of the judges of the High Court, Circuit Court and District Court who sit on the Special Criminal Court. Experience shows us they are discerning and critical in their analysis of cases. They recognise that they are taking the place of a jury. There have been instances, which were often very unpopular with the public and media, where the Special Criminal Court Bench has made a finding, probably akin to what a jury would have found, whereby it dismissed charges when, in the view of some people, there might be substantial evidence for a conviction. The judges approach cases with the critical starting point that the person is innocent until proven guilty and that the requirement for a conviction is that this presumption must be overturned beyond a reasonable doubt. The judges have done that and, in so doing, have demonstrated their ability, notwithstanding their extensive experience in the legal and court systems, not to be jaded and to see the matter before them as not just another case where a person has to be dealt with. They have shown their discerning ability to separate the case where there is sufficient evidence for conviction beyond reasonable doubt from the case where there is not such evidence. As I said, they have often been criticised publicly for their decision to find a person not guilty, exclude evidence or whatever. However, that is a crucial element of the protection of our system. If the Special Criminal Court worked in such a way that its judges did not apply the rule of law we expect of them, it would not work and it would not be an adequate safeguard for the jury system and the criminal justice system. It is a necessary evil. The reality is we have a system that is vulnerable. We must protect it and this is probably the most efficient and fairest way to do so, notwithstanding that it is far from perfect.
Unfortunately, my next point is one I make in every debate like this. I am still waiting for the Department of Justice to realise the wisdom of what I am saying. I might be waiting a long time. There is a conflict of interest for the Director of Public Prosecutions in being the sole decider as to which cases go to the Special Criminal Court. I have nothing but the height of respect for the DPP, as a prosecutor, and for the directing officers and the various highly professional staff within her office. However, in terms of the need for Caesar's wife to be seen to be clean, they are not a disinterested party in any criminal prosecution. The reality is that the DPP's office, as the prosecutor on behalf of the people of Ireland, has an interest in certain matters proceeding in a certain way. While I might trust its ability to discern which cases require the protection of the Special Criminal Court, that is not necessarily and transparently so for everyone in this country. I feel very strongly that the decision as to whether a case goes to the Special Criminal Court, and, thereby, whether a person accused of a serious crime is denied the opportunity to have a jury trial, should be made by an independent body. The decision should be made by way of an in camera application on behalf of the DPP to a High Court judge. That would remove the possible suggestion, or even the fear, of a conflict of interest.
We are duty-bound to protect our jury system and criminal justice system. We are duty-bound to pass these motions today to ensure the continuation of the Special Criminal Court and its ability to do the job it does in bringing justice where that is required in a way that cannot simply be overdone by those who would seek to undermine a system that is so valuable and has had such an important role in delivering justice within our society. On behalf of the Fine Gael group, I support the motion. We are happy to vote to approve the continuation of the Special Criminal Court.
I am firmly opposed to the renewal of the Offences Against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009. My colleagues in the Civil Engagement Group echo that view. I reiterate the concerns that we have expressed on each previous occasion on which motions for renewal have been considered. Those concerns are well founded and have been raised regularly by many other legal and political representatives, civil and human rights groups, such as the Irish Council for Civil Liberties, ICCL, and multilateral organisations, including the United Nations Commission on Human Rights.
As my colleagues have noted, the Special Criminal Court was originally established under the Offences Against the State Act 1939 to prosecute members of the IRA and ensure the new State was not undermined. The version of the court we know today came into operation in 1972 as a stated emergency response to the Troubles. Since then, it has been in continuous use, with its scope expanded to include responding to the threats posed to the State by terrorism and, since 2006, organised crime. The court has been routinely opposed by human rights advocates and organisations since the 1970s, including the former President of Ireland, Mrs. Mary Robinson, who delivered an address in this Chamber a fortnight ago.
While the context for the court's original establishment is, of course, legitimate, it is deeply concerning that it has become a de facto permanent fixture of Ireland's criminal justice system. The calls for its abolition and reform over the years have been consistent and powerful but, to date, they have fallen on deaf ears. I hope the Minister of State will update the Seanad on the prospect of reform in the lifetime of the Government in response to the recommendations of the independent review group in its review of the Offences Against the State Acts, which was commissioned by the Minister, Deputy McEntee, in 2021.
I will briefly highlight some of the main issues with the Special Criminal Court and its continued operation. The first is that the court operates without a jury. While the independent review group agreed in its 2023 reports that the right to trial by jury is not an absolute right under the Constitution, it stated that it is a fundamental part of the right to a fair trial as guaranteed by Article 38.1. Trial by jury is a foundational pillar of a fair and impartial criminal justice system, ensuring that the innocence or guilt of a person is determined by 12 of their representative peers. The minority report of the 2023 independent review group, signed by Dr. Alan Greene and Professor Donncha O’Connell, highlighted that, notwithstanding a paucity of data, conviction rates in the Special Criminal Court are "markedly higher than those of the High Court and Circuit Court where juries are used". This finding is a matter of significant concern. While the intention of this provision is to prevent the intimidation of jurors, there are various other mechanisms that could be employed to achieve this without forgoing the principle of a trial by jury.
Separately, in 1972, the Government introduced a controversial provision in the Act which allowed for the uncorroborated opinions of a chief superintendent of An Garda Síochána to be treated as fact in cases before the court, with no evidence required. This problematic practice continues to the current day. While entirely unrelated to the motion we are considering today, there is a not entirely dissimilar provision in the Parole Act and the attending Procedures of the Parole Board wherein the perspective of an arresting garda can be sought as part of the consideration of an individual's readiness for parole. The garda's view is not required to be corroborated and, in some cases, shared, with the individual, particularly in circumstances where there is a perceived threat to the security of the State. This is not directly related to the motion we are considering today but it is related in terms of how we deliver justice for some. I flag it to the Minister of State.
Another concern I have relates to a person's fundamental right to silence, which is infringed on in Special Criminal Court proceedings. In proceedings of the court, if a person accused of a crime chooses to remain silent, his or her silence can be used as supporting evidence in the case being taken against him or her. While an individual is not explicitly precluded from remaining silent on account of this provision, it has the effect of denying people that right owing to the high risk of a miscarriage of justice.
We cannot and should not normalise or embrace this part of our ordinary criminal justice system, the provisions of emergency legislation, especially in circumstances where there is such a significant risk of human rights infringements and miscarriages of justice. By continuing with these emergency provisions, we are effectively stating that our ordinary courts are not capable of delivering justice in respect of the serious matters generally referred to the Special Criminal Court. I do not believe this to be the case. I am a confident that the Minister shares this view.
Both in 2000 and in 2003, independent review groups were explicit in their calls for reform. There is no longer any justification for our inaction. I understand that the Department has engaged in detailed consultation on the recommendations of the 2023 independent review group. In considering its report I hope the Minister of State, in his reply, will be in a position to provide greater clarity about the Department's response to the reports and their recommendations, and provide a timeline for long-overdue reform of the Special Criminal Court.
I understand the history of the Special Criminal Court and why it was necessary. However, through my work with the groups of people I work with, I know that people have ended up before the court under the guise of organised crime who may be men with very little power in any organised crime group. However, because they were either used or had to do something that was definitely not within their power to say "No" to, they are also denied a jury. This means they are both powerless in the world of what we call organised crime, and their power is further reduced by not having access to a jury.
It is somewhat an aside but sometimes, when looking at organised crime, there is an idea that it is about gangs, which makes the Special Criminal Court necessary. Often, in some communities a group is considered a gang because the members grew up on the same street and happen to be involved in a similar crime or they happen to be involved in whatever. However, a group of people does not necessarily create a gang. Just because a person is adjacent to what may be considered an organised crime gang, does not mean he or she has the protection of that crime gang. This means the person not only has not the protection of the illegitimate power of an organised crime gang, but is not protected by the State in being able to have access to jurors. That is wrong. The decisions that are made about who does or does not end up before the Special Criminal Court are seriously questionable.
In 2002, the Hederman review into the Offences Against the State Act was published. It made several key recommendations, including to repeal the existing Offences Against the State Acts and to replace them with one single, consolidated Bill that should contain significant reform of the Acts. The most recent review of the Acts, published just under a year ago, reflected the recommendations of the Hederman review. More than 20 years have passed since the review. Another year has passed since the most recent review, another year since my Sinn Féin colleague stood here and called for an end to the annual charade of this renewal vote. What has changed in this period with respect to the Acts? In a word, nothing. We remain with the legal uncertainty whereby we are called to renew this legislation on an annual basis. There are also underlying issues. This is all the more baffling when we consider that, to quote the most recent review, "Many of the recommendations which follow throughout this report are simply a reiteration of what the Hederman committee recommended in 2002."
The solution is clear. It has been clear for more than 20 years. It is not just Sinn Féin saying it. It is the solution of legal and academic expert analysis. Indeed, on one hand the Government appears to accept the overwhelming weight of all legal and academic analysis in establishing and publishing a review. Yet, it continues to act as though it has no credible, legal alternative to this groundhog day piece of annual theatre. Do we really have no credible legal alternative to this annual piece of theatre?
The approach we take does not make any sense, except of course for Fine Gael trying to bolster a faltering reputation as being a party of law and order. The fact is its record since taking responsibility for the justice portfolio more than 13 years ago belies this reputation. Many categories of crime are up and serious threats are posed to our society by organised crime. There is a retention and recruitment crisis in An Garda Síochána. Courts throughout the State have a huge backlog and have lengthy waits for trials. Inquests and coroners courts are similarly delayed. Prisons do not have the necessary resources, which increases the risks to staff and public safety.
As I said previously, the solution to this annual stage show here is readily available. The report of the review group points the way forward. All courts need to integrate into a single, reformed, modern criminal justice system. Resources must be provided to An Garda Síochána and special provisions for juries, where there is a likelihood of intimidation or tampering, need to be implemented. Evaluations of this risk should be based on statistics and intelligence evaluations and supervised by judges. The majority opinion of the review group backs this very clearly. It also recommends that the current system should not continue. The sole power for deciding on the use of a non-jury court would remain with the DPP, but it is recommended that an oversight mechanism be introduced. We need to see a stronger review of this power, at a minimum. The current system is simply not acceptable.
There are great merits in the views of the majority, and indeed the minority report. We will consider them fully when the enabling legislation is brought forward. Other measures outside the court systems are required also. More experts are needed in the Criminal Assets Bureau to deal with financial crime. The Commission of the Future of Policing in Ireland made several recommendations relating to cybercrime and cybersecurity. These recommendations must be implemented.
Like many of my colleagues, I once again urge the Minister to resist the temptation to hold this political set piece again next year. The report can be completed, the Bill can be moved within that timeline. Sinn Féin is willing to facilitate this in a timely manner. We do not want another charade over a renewal vote.
I am grateful to the House for its consideration on these important motions today. I thank all the Senators for their contributions, particularly those in support of the motions.
As I have said, 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. We have a duty as legislators to ensure that this is so. Likewise, the renewal of section 8 of the 2009 Act is an important contribution to the overall framework of measures aimed at tackling organised crime.
We are all too well aware of the appalling damage caused by organised crime, particularly the damage caused by the drugs trade to individuals, families and communities. By renewing these important provisions, this House is sending a message out, loud and clear, that this State will not tolerate the activities of terrorists and organised crime groups and is committed in its resolve to see them defeated. These threats require an effective response from the criminal justice system. As legislators, we have a duty to support An Garda Síochána and the justice system in tackling these threats. Retaining these measures in respect of the most serious crimes associated with terrorism and organised crime, ensures that justice can be served and is free from any attempts to thwart the criminal justice process.
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 30th June, 2024 and ending on 29th June, 2025.”
