That Dáil Éireann resolves that sections 2 to 12 and 14 and 17 of the Offences against the State (Amendment) Act, 1998 (No. 39 of 1998), shall continue in operation for the period of twelve months beginning on the 30th day of June, 2000.
The resolution before the House today seeks approval for the continuation in operation of those sections of the Offences against the State (Amendment) Act, 1998, which would cease to be in operation on 30 June 2000 unless they are continued for a further period.
Section 18 of the Act, as amended by section 37 of the Criminal Justice Act, 1999, provides that sections 2 to 12 and 14 and 17 will cease to operate on and from 30 June 2000 unless a resolution is passed by each House of the Oireachtas authorising the sections to continue to operate for such period not exceeding 12 months as may be specified in the resolution.
Members of the House will appreciate that although this legislation has been in force for a relatively short period, the Act itself, as amended by section 37 of the Criminal Justice Act, 1999, recognised the importance of revisiting the provisions at an early date. The intention was to afford Members of the House an opportunity to examine and debate the issues involved which go to the very core of our duty to protect fundamental rights and our responsibility as Members of this House to protect the security of the State.
The purpose of the Offences against the State (Amendment) Act, 1998, which was enacted in the aftermath of the Omagh bomb, was to provide the additional protections and powers needed to tackle the threat to the security of the State and the integrity of the peace process presented by certain malevolent dissident groups, by making amendments to the Offences against the State Acts, 1939 to 1972. Principally these amendments made changes in the rules of evidence in relation to the offence of membership of an unlawful organisation and, more generally, other offences under the Offences against the State Acts and scheduled offences. The Act also created new substantive offences and extended the maximum period of detention permitted under section 30 of the 1939 Act. It might be useful if I set out in some detail those legislative provisions – provisions the Government wishes to see continued.
The provisions of sections 2 to 12 and 14 and 17 of the Act can be divided into four categories with four essential purposes. First, the Act made changes to the rules of evidence that previously applied to both the offence of membership of an unlawful organisation and, more generally, for the purpose of other offences under the Offences against the State Acts and scheduled offences under those Acts. Second, the Act created certain new substantive offences of particular relevance to the activities of unlawful organisations and those who provide support for them. Third, the Act gave additional power to the courts in respect of those who provide support to the activities of unlawful organisations or engage in offences on their behalf; and, fourth, the Act extended the maximum period of detention permitted under section 30 of the Offences against the State Act.
The first category of sections under discussion, sections 2 to 5 of the Act, concern changes in rules of evidence. Section 2 has specific reference to the offence of membership of an unlawful organisation and is one of the key provisions of the Act. Its effect is to provide that where, in any proceedings against a person in relation to that charge, evidence is given that the accused failed to answer or gave false or misleading answers to any question material to the investigation of the offence while being questioned in relation to that offence, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. The section goes on to provide that references to any question material to the investigation of the offence include any references to any questions requesting the accused to give a full account of his or her movements, actions, activities or associations during any specified period. The section also provides that any such inference may be treated as, or as capable of, amounting to corroboration of any other evidence relating to the offence of membership of an unlawful organisation. The section contains two important safeguards: it provides that the section does not have effect unless the accused was told in ordinary language what the effect of a failure or a false or misleading answer might be, and provides that a person shall not be convicted solely on an inference drawn from a failure to answer a question or from the furnishing of a false or misleading reply.
Section 4, which amended section 3 of the Offences against the State (Amendment) Act, 1972, made a related and consequential change. The effect of the former section 3 of the 1972 Act, which provided that any statement or conduct by an accused implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, when pro ceeded against for membership, be evidence that he or she was then such a member, was also to define the expression "conduct" as including an omission by an accused person to deny published reports that he was a member of an unlawful organisation. The change made by section 4 was to align the definition of conduct with the expression used in section 2 of the Bill, that is, "conduct" was defined to include movements, actions, activities or associations in addition to the failure to deny such a report.
Section 3 of the Act, which made the second important change in the area of evidence, also has specific reference to the offence of membership of an unlawful organisation. It provided that in proceedings for such an offence the accused shall not, without leave of the court, call any other person to give evidence on his or her behalf unless notice has been given of his or her intention to do so. The procedures to be followed in this are set out in subsections (2) to (7), inclusive, of the section, which are closely modelled on the existing provisions of our criminal law on the requirement to give notice of an alibi on which an accused intends to rely for the purpose of his or her trial. The section also provides that the requirement on giving notice will not apply to a witness whose evidence is solely on the matter of sentence.
The third change in the area of evidence was made by section 5. This section is not restricted to the offence of membership but, provided that the offence carries a penalty of five years imprisonment or more, has application to any offence under the Offences against the State Acts, scheduled offences for the purpose of the 1939 Act and offences arising out of the same set of facts as an offence under the Acts or a scheduled offence. The effect of this section, which is closely based on a similar provision in the Criminal Justice (Drug Trafficking) Act, 1996, is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she could reasonably have been expected to mention during questioning or on being charged but did not do so. This section, as with section 2, incorporated important safeguards whereby it will not have effect unless the accused was told in ordinary language what the effect of a failure to mention such a fact might be, and provides that a person shall not be convicted solely on an inference drawn from such a failure.
The second category of provision created five new substantive offences. These were provided for in sections 6 to 9, inclusive, and section 12 and include directing an unlawful organisation; possession of articles for purposes connected with certain offences; unlawful collection of information; withholding information and training persons in the making or use of firearms, etc.
Section 6 established the offence of directing, at any level of the organisation's structure, the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act, 1939. That offence attracts a penalty of up to life imprisonment.
Section 7 made it an offence to possess articles in circumstances giving rise to a reasonable opinion that the article is in his or her possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. The section also provided that it will be a defence to prove that the materials were not in the person's possession for such purposes. The offence attracts a penalty of a fine or imprisonment for up to ten years or both.
Section 8 made it an offence to collect, record or possess information, which is of such a nature that it is likely to be useful to members of an unlawful organisation in the commission of serious offences. A serious offence is defined for the purpose of the section as an offence punishable by imprisonment for a term of five years or more involving loss of human life, serious personal injury, false imprisonment or serious loss or damage, and includes an act or omission done or made outside the State which would be such an offence if done within the State. The section also provides that it will be a defence to prove that the information in question was not being collected and so on for the purpose of being used in the commission of a serious offence. The offence of unlawful collection of information attracts a penalty of a fine or imprisonment for up to ten years or both.
Section 9 made it an offence to withhold information which a person knows or believes might be of material assistance in preventing the commission by any other person of a serious offence or securing the apprehension, prosecution or conviction of any other person for such an offence and who fails without reasonable excuse to disclose such information to a member of the Garda Síochána. A serious offence has the same meaning as it has in section 8. This offence attracts a penalty of a fine or imprisonment for up to five years or both.
Section 12 made it an offence for a person to instruct or train another person in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse. This offence attracts a penalty of a fine or imprisonment for up to ten years or both.
As I indicated during discussions in the Oireachtas leading to enactment of this Act, these offences have limited application, they are of a type that are likely to be committed by members of unlawful organisations arising from the activities of such groups. They are, therefore, targeted at specific activities, such as the collection of information which would be of assistance in planning terrorist attacks or the possession of material which can be used in making improvised explosive devices in which members or supporters of such groups can, and do, engage. Likewise, the offence of directing an unlawful organisation calls for evidence over and above that of membership of such an organisation. It was, nevertheless, considered prudent to provide for such an offence which is capable of attracting the higher penalty of life imprisonment, to deal with circumstances where such evidence may exist. The offence of withholding information has a wider potential application, but the message it is intended to underscore is that it is the duty of persons who have knowledge of planned offences involving death, serious injury or destruction, or information which would lead to the conviction of those responsible for such offences, to make that information available to the Garda.