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Seanad Éireann díospóireacht -
Wednesday, 20 Jun 2012

Vol. 216 No. 2

Offences against the State (Amendment) Act 1998: Motion

I welcome the Minister, Deputy Shatter.

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 of 12 months beginning on 30 June 2012.

It seems to have been an exciting morning in this Chamber. I do not know what is going on at all.

The House will be aware of the background to the Offences against the State (Amendment) Act 1998. It was enacted in the aftermath of the Omagh bombing of August 1998, in which 29 people were murdered in an indiscriminate and barbarous bomb attack. Those innocent lives were lost as a consequence of a futile and senseless gesture by individuals who refuse to live by the will of the majority of people on this island. The Act, which was drawn up to meet the threat posed by these individuals, contains a series of amendments to the Offences against the State Acts 1939 to 1985. The amendments principally concern changes in the rules of evidence for certain offences under the Acts, including the drawing of inferences in certain circumstances; the creation of new offences, such as directing an unlawful organisation, possessing certain articles and collecting information; and the extension to 72 hours of the maximum period of detention permitted under section 30 of the 1939 Act. Section 18 of the 1998 Act, as amended by section 37 of the Criminal Justice Act 1999, provides that sections 2 to 4, 6 to 12, 14 and 17 of the Act may continue in operation for a specified period only if the Oireachtas passes a resolution to that effect. By virtue of resolutions passed by both Houses of the Oireachtas in June 2011, these sections were continued in force until 30 June 2012.

Prior to moving any motion for renewal, the Act requires me to lay before the Oireachtas a report on the operation of the relevant provisions. The present report, which was laid before the Houses of the Oireachtas on 8 June 2012, covers the period from 1 June 2011, which was the end date of the previous report, to 31 May 2012. Following a commitment I gave this House when I sought the renewal of these sections of the 1998 Act this time last year, a table showing certain figures for each of the years since the Act came into operation is included with the documentation that has been furnished to Senators. This is helpful in demonstrating the importance of the Act in equipping the Garda to detect and prevent terrorist actions. I say with all sincerity that my fervent wish is that the time will come when these provisions will no longer be required. As Minister for Justice and Equality, I must have regard to the unfortunate reality of the current situation. I cannot ignore the Garda assessment of the terrorist threat level in Northern Ireland, which is that it is severe. This assessment, which is shared by the PSNI, clearly demonstrates the need for the continuance of these provisions. If Senators needed reminding of that need, it was clearly and tragically evidenced by the murder of PSNI Constable Ronan Kerr on 2 April 2011 and the earlier murders of Constable Stephen Carroll and members of the British Army. I am not forgetting the numerous other attacks on PSNI and security personnel. If any further evidence of the threat from such groups was required, it was provided a few days ago — on Saturday, 9 June last — when a quantity of explosives was found during a search in County Mayo. Two individuals have been arrested and charged as a result.

North-South co-operation in the area of security is vital. I can assure the House that it has never been better. I keep in close contact with the Secretary of State for Northern Ireland, Owen Paterson, and my colleague and opposite number, the Northern Ireland Minister for Justice, David Ford. I know the Garda Commissioner maintains close and frequent contact with the Chief Constable of the PSNI, Matt Baggott. This is mirrored by contacts between the two forces at every level. While it is important to counter the threat posed by dissident groups, we must not lose sight of the threat from international terrorism. While the 1998 Act grew out of our own domestic troubles, its provisions form an essential element of the State's response to the threat of terrorism from any source. We cannot ignore the growth of the international terrorist threat in recent years. In co-operation with our EU partners, we must continue to counteract any threat from such sources. The 1998 Act forms part of the response to that threat. The firm view of the Garda Síochána is that the Act continues to be a most important tool in its ongoing efforts in the fight against terrorism. The Garda authorities have said that the provisions of the Act are used regularly, which is evident from the report which I have laid before the House. In view of the Garda assessment and given the considerable threat posed by some dissident groups, it is essential that the provisions of the Act should continue in force to support the ongoing investigation and disruption of terrorist activity.

I would like to turn to the provisions of the 1998 Act which are the subject of the resolution. As I mentioned, I have laid before the Houses a report on the operation of the relevant sections of the Act between 1 June 2011 and 31 May 2012. The report demonstrates the value of the relevant sections to the Garda and the need for them to continue to be available when tackling the terrorist threat.

Turning to the sections themselves, section 2 allows a court, in proceedings for membership of an unlawful organisation, to draw appropriate inferences where an accused person fails to answer or gives false or misleading answers to questions. However, a person cannot be convicted of the offence solely on the basis of such inference. There must be some other evidence which points towards a person's guilt. The section was used on 47 occasions in the period covered by the report.

Section 3 requires an accused, in proceedings for membership of an unlawful organisation, to give notification of an intention to call a person to give evidence on his behalf. The section was used on four occasions.

Section 4 provides that evidence of membership of an unlawful organisation can be inferred from certain conduct, including matters such as "movements, actions, activities, or associations on the part of the accused". The section was not used in the period covered by the report.

Section 6 creates the offence of directing the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act 1939. The section was not used in the period covered by the report.

Section 7 makes it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the article is in possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. It was used on 15 occasions.

Section 8 makes it an offence to collect, record or possess information which is likely to be useful to members of an unlawful organisation in the commission of serious offences. It was not used in the period covered by the report.

Section 9 makes it an offence to withhold certain information which might be of material assistance in preventing the commission of a serious offence or securing the apprehension, prosecution or conviction of a person for such an offence. It was used on 83 occasions.

Section 10 extends the maximum period of detention permitted under section 30 of the Offences against the State Act from 48 hours to 72 hours, but only on the express authorisation of a judge of the District Court following an application by a garda of at least superintendent rank. Furthermore, the person being detained is entitled to be present in court during the application and to make, or to have made, submissions on his behalf. An extension was granted in 11 cases.

Section 11 allows a judge of the District Court to permit the re-arrest and detention of a person in respect of an offence for which he was previously detained under section 30 of the Offences against the State Act but released without charge. The further period must not exceed 24 hours and can only be authorised where the 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. It was used on 17 occasions.

Section 12 makes 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. It was not used in the period covered by the report.

Section 15 is, in effect, a procedural section which makes the offences created under sections 6 to 9 and 12 of the 1998 Act scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing these offences may be arrested under section 30 of the 1939 Act. It was used on 98 occasions during the period under report.

Section 17 builds on the provision in the Criminal Justice Act 1994 providing for the forfeiture of property. Where a person is convicted of offences relating to the possession of firearms or explosives, and where there is property liable to forfeiture under the 1994 Act, the court is required 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. The section was used on three occasions during the period covered by the report. Senators will note, by reference to the table, that this is the first reporting period that has recorded a usage of this most valuable provision. I very much welcome this development.

As I have already stated, terrorist groups remain a threat to the existence of the State. They are opposed to the benefits that have flowed from the peace process and are determined to undermine it. The State, I believe, must retain, in its laws, the capacity to defeat them. On the basis of the information set out in the report, and on the advice of the Garda authorities, I consider that the relevant provisions of the 1998 Act should remain in operation for a further 12 months and I so recommend to the House.

I thank the Minister. The debate will proceed with spokespersons having five minutes each for their contribution. I call on Senator Thomas Byrne first.

I assure the Minister that despite the Opposition defeating the Government twice in the Seanad this morning, the Fianna Fáil side wholeheartedly supports the Bill and will ensure that it is passed. I find very little done by the Government to be persuasive but the Minister's speech here has been extremely persuasive, not that we need persuading. He clearly outlined the security situation in the State and in the adjoining state. He also clearly explained the sections of the Act that need to be renewed in order to have full force and effect. I am persuaded by the evidence provided by him of the usage of the various sections of the Offences Against the State Act on multiple occasions throughout the year. The provisions have not been used on a daily basis but more than a weekly basis. That detail would persuade anyone that needs such evidence or anyone tempted to oppose these provisions.

While these provisions are draconian they relate to the fundamental security of the State and are used by the Garda authorities and the gardaí in the course of their duties. The provisions are necessary to protect the State and its foundations and we support it. We agree with the Minister that dissident groups remain a huge threat to the existence of the State and the peace process. The legislation is crucial and my party supports it.

Once again I welcome the Minister to the House. As his speech indicated, he would prefer not to be here seeking the continuation of this particular Order but circumstances dictate otherwise. I agree with the assessment of the previous speaker, Senator Byrne, that the production of facts and figures by the Minister, particularly the necessity, on many occasions over the past 12 months, to use the powers provided by the Oireachtas prove once again that the legislation, while not something we generally welcome, is still necessary.

When one reflects on the Minister's speech one realises that since 1939 we have had various governments of different hues and shapes that introduced legislation on offences against the State. This shows that there is an ongoing battle against the people who would try to bring disorder where there is order. The year 1939 was a very different world and a very different Ireland. The Taoiseach at that time, Mr. de Valera, and his colleagues introduced the Offences Against the State Act in 1939. Ten years earlier they would have thought differently about the Act's provisions but politics evolves. Today people might oppose this type of legislation but once circumstances change and they assume political power and responsibility they would see a need for it.

The Minister may wonder where my next comment is leading but in John F. Kennedy's famous speech he told the people of Berlin that they lived in "a defended island of freedom". We live on an island of freedom but that island must be defended and have the powers and resources to defend itself against those people who would wish to take our freedoms away. I join with the Minister in hoping that the day will come when this legislation is no longer necessary but that time has not arrived. The legislation is a result of the Omagh bombing that, sadly, is still fresh in the minds of virtually every member of the House and every person on this island. It was another horrendous act of violence, in the litany of horrendous acts, perpetrated North and South of the Border.

I thank the Minister for his clarification. I also thank him for pointing out how frequently the legislation or order has been used and hope that the provision has saved lives. It has prevented people from being killed and prevented people from killing others and spending a lifetime in jail. As the Minister has said, I hope that there will come a time when it will not be necessary but we have to take his advice, and that of his officials, that it needs to be kept on the books. I support the Minister's request in that regard.

Given that organised crime is a serious issue in the State it is worth reflecting on the damage it does to communities and individuals who are victims. Many of the criminals have no respect for law and order or citizens and citizens' rights. However, that is no excuse for abuse of human rights by the State or draconian legislation. We do not support the renewal of this legislation. The Criminal Justice (Amendment) Act 2009 is wide open to abuse. It is an affirmation that the Special Criminal Court is a normal part of the legal system. I cannot accept that the Special Criminal Court is that — it is a damning indictment of the system that we have an emergency non-jury court which was supposedly set up to deal with a particular emergency, but which has become normal. Is the Government saying we live in a State that is permanently on an emergency setting and, if so, how long does the Minister expect that to continue?

I refer to last year's debate because a number of important contributions were made, one by Senator Bacik who is present. Speaking about section 8 she said that if it is to be retained for a further 12 months then when the Minister comes to the House and it has not been used within that further 12 month period we must take a serious step towards changing the nature of section 8 to ensure we no longer have draconian measures in place unless we can be sure that they are effective in the fight against organised crime. I too note the Minister's report. No convictions have been sent for trial under section 8, yet it is being renewed again. That is outrageous and the party of which I am a member has consistently called for its repeal. It is clear from our perspective that the powers and provisions provided for in the criminal law books are more than sufficient for the purposes the Government suggests. The Minister said a number of investigations have recently been conducted by the Garda. Those investigations can be carried out under the plethora of legislation in place without recourse to this legislation. Given the poor rate of convictions it is our firm view that the legislation is simply being used for trawling and emergency gathering. Clearly, that is an abuse of the legislation and is not for what emergency powers should be used. Certainly, we will not support the motion and, accordingly, will call for a vote.

I welcome the Minister to the House and the opportunity to debate again the review of the continuance in operation of the relevant provisions of the Offences against the Stage (Amendment) Act 1998. I declare an interest, having appeared in court representing people in connection with the legislation. I did speak on it last year and on every previous occasion. I said then and I say it again that we all appreciate the ongoing nature of the terrorist threat. The Minister spelt that out clearly in this contribution, not only in his reference to the appalling atrocity in Omagh 14 years ago but also to serious attacks, particularly the murders he mentioned of PSNI Constable Ronan Kerr last year and the ongoing intimidation, particularly of Catholic members of the PSNI, which is an appalling occurrence witnessed on an ongoing basis. It is on that basis that those of us who have spoken in support of the continuance of the legislation do so.

We must always balance legislation of this nature and ensure there is a balance within it as well as adequate protections and safeguards. I said last year that it is helpful to have figures from the Minister on how frequently each section has been used. Heightened levels of scrutiny must be given to sections that are not used within a previous 12 month period. Senator Cullinane referred to section 8 which was not used in the period covered by the report. Section 4 effectively refers to guilt by association and how evidence of membership may be inferred from certain matters. That section was not used in the past 12 months and, I think I am correct in saying, not in the previous 12 months either. It would be useful to have some sense of the likely future use of such sections, where they have not been used in the past year, and why they should remain in force.

I note from the Minister's contribution that section 17, which had not been used in any reporting period previously, has, in the past 12 months, been used on three occasions. I note there are sections that may, effectively, remain dormant for some years and which then become of use. It is important to note where a section has been used for the first time. We all appreciate that the Minister referred to this as the first reporting period where section 17 has been used. It would be helpful to get a sense of likely future usage or on what basis the section should remain in force where it has not been used. That is, perhaps, the only information that would be useful in respect of certain sections. It is a matter of ensuring balance, that adequate safeguards are in place and that the Oireachtas has a role in monitoring the continuance in force of these provisions, which we are doing and have done in previous years.

As no other Senators have indicated they wish to speak——

I apologise, I understood we were debating the two motions together and had referred to the Criminal Justice (Amendment) Act 2009. It was my mistake.

I thank the Senators who have expressed support for this important measure. I acknowledge what Senator Thomas Byrne said. It is appropriate and right that Members of both Houses have the most detailed information that can be furnished on the use of the provisions. The provisions, as we have correctly stated, relate to the fundamental security of the State, a matter of very substantial importance, and of direct concern and obligation of government and Members of the House. The intent was to provide as much information as possible in the utilisation of the various sections. I hope I did that. In so far as there are some sections, two have been mentioned that have not been utilised, nevertheless, they are part of the backdrop legislative armoury that can be used by the Garda Síochána in protecting the security of the State. Circumstances may well arise in which resort may need to be made to them. In circumstances where the Garda Commissioner is of the view that these provisions should remain in force, it is appropriate that we take his expert advice in that context. It is worth noting that one of the sections referred to last year that had not been utilised has been utilised on four occasions in the past 12 months.

I thank Senators Bradford and Bacik for their support. On the issue Senator Bacik raised as to why two sections have not been used or will they be used, it is matter for the Garda Síochána in making operational decisions to determine the appropriateness of utilising a particular section. I see the various provisions which are the subject matter of the motion, as part of the architecture necessary to provide the Garda with the essential tools and the courts with the essential law to facilitate the court to deal with the terrorist threat. I listened with respect to what Senator Cullinane had to say but is it not time that Sinn Féin smelt the roses and came to terms with reality. I listened with some amusement to him say there is no excuse for this legislation as essentially it is an abuse of human rights and the measures are draconian.

The basic and most fundamental human right on this island is to go about one's life in peace and without it being threatened and to go about one's business without being targeted by terrorist groups who may attempt to murder one or a member of one's family or which may result in one suffering such serious injury as to substantially destroy the quality of one's life.

In the past 12 months there has been a range of incidents of bombs being placed in particular locations and of individuals being targeted. I mentioned in this House relatively recently, and another contributor mentioned earlier, the extraordinary perversion of so-called dissident Nationalists or terrorist Nationalists targeting members of the Catholic community who have joined the Police Service of Northern Ireland and contributed to making it a cross-representative force of the different communities in Northern Ireland and substantially reflects the reality of the population in Northern Ireland. Could there be a greater perversion of people presenting themselves as republican Nationalists in favour of the unity of this island than their targeting members of the Catholic community who have joined what is now a cross-community police force? What warped mentality has led individuals down that road? What peculiarity in the history of Sinn Féin, and its former engagement as Provisional Sinn Féin in violent activities in this island, has created such ambivalence to the Offences against the State Act, such double standards? We are carrying the baggage of it having been utilised in respect of some of its members in years gone by who were engaged in violence. They still fail to recognise the need for this democracy to protect itself against individuals who would subvert democracy and whose objective is to destroy the peace process, which Sinn Féin constantly states it supports, and ignore the democratic will of the overwhelming majority of people on this island that we do not return to violence and that individuals in all communities on this island lead a life of peace.

The Minister is making a political speech. You can leave your political speeches outside the door.

It has reached the point where Sinn Féin——

I will come back to your point.

——should stop engaging in ambivalent language——

There was no ambivalence.

——dancing on the head of a pin and talking about——

You should properly resource the Garda to allow gardaí do their jobs and not come in here with optics——

The Minister without interruption.

The Senator should speak through the Chair.

The Minister is engaging in political posturing.

Senator, the Minister without interruption.

I have obviously hit a particularly vulnerable point in the positioning Sinn Féin has taken——

——because it is a falsehood. The positioning is a falsehood.

The Minister's position is a falsehood.

If it favours the peace process, if it is opposed to terrorist organisations targeting individuals, if it is opposed to individuals being shot or maimed, if it supports the cross-community police force——

The Minister should properly resource the Garda. Those are real policies.

——in the PSNI, if the Senator believes that people who live in this State——

He should not cut the numbers in the Garda.

Perhaps I could continue my contribution without interruption.

The Minister, without interruption.

If Sinn Féin is opposed to individuals in this State targeting other individuals, if it recognises that this democracy, like every other democracy, is entitled to have in place legislation which protects democracy and ensures it is not subverted and that those still committed to murder and mayhem are brought before our courts, there is no answer other than to support the continuation of this legislation. The only reason for not continuing it in the context of Sinn Féin is the historical baggage that besets that party.

That is outrageous. It is nonsense.

It also indicates very clearly that Sinn Féin still has not——

The Minister does not understand our position.

——sufficiently matured to play any serious role in the governance of this country——

Is our civil rights based Judiciary system now immature?

Senator, allow the Minister speak.

——because if Sinn Féin is incapable of recognising that the crucial civil right is to recognise that democracies can protect themselves, that governments and indeed this House, like Dáil Éireann, have an obligation to protect the people on this island from the violence and mayhem that the terrorists we tragically still have are intent on perpetrating, Sinn Féin has not yet got it.

Question put.

Senators

Votáil.

Will the Senators claiming a division please rise?

Senators David Cullinane, Trevor Ó Clochartaigh, David Norris and Kathryn Reilly rose.

As fewer than five Senators have risen, I declare the question carried. The names of the Senators who rose will be recorded in the Official Journal of the Proceedings of the Seanad.

Question declared carried.
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