I move:
That Dáil Éireann resolves that sections 2 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 of 12 months beginning on 30 June 2002.
The resolution before the House today seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act, 1998, which would otherwise cease to be in operation on 30 June 2002. Members of this House will need no reminding of the circumstances in which these provisions were enacted in 1998, that is the Omagh bomb in August of that year. There was a determination, nowhere more so than in this House, that those responsible for this mass murder would not succeed in subverting the democratically expressed will of the people on this island that the conflict should be resolved only by peaceful means and on the basis of consent. To date, one person has been convicted in this jurisdiction on a charge related to the Omagh bomb and the investigation is continuing with excellent co-operation between the Garda and the Police Service of Northern Ireland. The Garda Síochána will not give up the search for those responsible.
Deputies will recall that, in recognition of the particular circumstances surrounding the enactment of the provisions of the 1998 Act, there was general agreement that the Act should be regularly revisited by the Oireachtas to see if the circumstances then prevailing justified the continuance in force of its provisions or whether there had been a change in circumstances sufficient to convince the Oireachtas that the provisions were no longer needed. Under section 18 of the Act, therefore, as amended by section 37 of the Criminal Justice Act, 1999, and by virtue of resolutions passed by each House of the Oireachtas first on 20 June 2000 and more recently on 26 June 2001, sections 2 to 12, 14 and 17 will cease to operate on and from 30 June 2002 unless a further resolution is passed by each House authorising the sections to continue to operate for such period not exceeding 12 months as may be specified in the resolution.
Included also in the Act was a requirement on the Minister for Justice, Equality and Law Reform to lay a report on the operation of the Act before each House of the Oireachtas prior to consideration by the Houses of the renewal of the provisions. The Minister for Justice, Equality and Law Reform laid such a report before this House on 17 April. The conclusion of that report is that the renewal of the provisions for a further year is necessary. The sad reality is that those responsible for the Omagh bomb continue to pursue and plan a campaign of violence and that there is no change of substance to the circumstances which led to the enactment of the 1998 Act.
I will turn now to the individual sections, which this House is asked to continue in force for a further 12 months, outline their purpose and indicate where they have been utilised in the past 12 months.
Section 2 provides that where, in any proceedings against a person for membership of an unlawful organisation, evidence is given that the accused when questioned failed to answer or gave false or misleading answers to any question material to the investigation of the offence, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. This provision has been utilised on many occasions in questioning persons arrested on suspicion of being members of an unlawful organisation. Charges do not of course result in every case in which the provision is used, but since 1 June 2001, charges were preferred in 22 cases in which section 2 was utilised. Two of these cases resulted in a conviction, while the remaining cases are currently before the courts. In addition, three persons were convicted during the period under report having been charged prior to that period in cases where this section was utilised.
Section 3 of the Act provides that, in proceedings for an offence of membership of an unlawful organisation, the accused must give notification of an intention to call a person to give evidence on his or her behalf, unless the court permits otherwise. This section was utilised by accused persons on two occasions.
Section 4 amends section 3 of the Offences against the State (Amendment) Act, 1972. The effect of the 1972 provision is that any statement or conduct by a person accused of membership of an unlawful organisation implying or leading to a reasonable inference that he was at a material time a member of such an organisation, shall be evidence that he or she was then such a member. It originally defined the expression "conduct" as including an omission by an accused person to deny published reports that he was a member of an unlawful organisation. The change made by section 4 of the 1998 Act was to expand the definition of "conduct" to include movements, actions, activities or associations. This simply aligns the definition of conduct in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.
Section 5 provides for the drawing of adverse inferences in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts, and any offence arising out of the same set of facts as such an offence, provided that the offence carries a penalty of five years imprisonment or more. The effect of this section is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she could reasonably have been expected to mention during questioning or on being charged, but did not do so. This section was utilised on 13 occasions in the past nine months.
Section 6 established the offence of, at any level of the organisation's structure, directing the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act, 1939. While this section was not utilised during the period under report, one person remains before the courts having been charged with such an offence prior to that period.
Section 7 made it an offence for a person to possess articles in circumstances giving rise to a reasonable suspicion that the article is in his or her possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. This section was utilised on 20 occasions.
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. Two persons were convicted under this section in the period under report, having been charged prior to that period.
Section 9 made it an offence to withhold information which a person knows or believes might be of material assistance in preventing the commission by any other person of a serious offence or securing the apprehension, prosecution or conviction of any other person for such an offence, and who fails without reasonable excuse to disclose such information to a member of the Garda Síochána. This section was utilised on 115 occasions.
Section 10 extends the maximum period of detention permitted under section 30 of the Offences against the State Act – which otherwise is 48 hours – to 72 hours on the authorisation of a District Court judge. The judge must be satisfied, on the application of an officer of the Garda Síochána not below the rank of superintendent, that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The person being detained is entitled to be present in court during the application and to make submissions, or have them be made, on his or her behalf. In the past year, 39 persons have had their periods of detention extended under this provision and five of those were subsequently charged with offences.
Section 11 allows a District Court judge to permit the re-arrest and detention of a person in respect of an offence for which he or she was previously detained under section 30 of the Offences against the State Act, but released without charge. This further period must not exceed 24 hours and can only be authorised in circumstances where the District Court judge is satisfied, on information supplied on oath by a member of the Garda Síochána, that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence and about which they wish to question the suspect.
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.
The effect of section 14 is to make these new offences scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing such offences are liable to arrest under section 30 of the 1939 Act. This section was utilised on 56 occasions.
Section 17 builds on the provision in the Criminal Justice Act, 1994, for the forfeiture of property. Essentially, the 1994 provision empowers a court in its discretion, whenever any person is convicted of an offence, to order the forfeiture of any property in the possession of that person which was used, or intended to be used, to facilitate the commission of the offence. The effect of section 17 is, in the case of a person convicted of specified offences relating to the possession of firearms or explosives, and where there is property liable to forfeiture under the 1994 Act, to require the court to order the forfeiture of such property unless it is satisfied that there would be a serious risk of injustice if it made such an order.
This information on the use made of these provisions of the 1998 Act over the past nine months is based on information received from the Garda authorities and is contained in the report on the Act laid by the Minister for Justice, Equality and Law Reform before the House.