Vol. 246 No. 2
I move:
That Seanad Éireann resolves that sections 2 to 4, inclusive, 6 to 12, inclusive, 14 and 17 of the Offences against the State (Amendment) Act 1998 (No. 39 of 1998) shall continue in operation for the period beginning on 30 June 2016 and ending on 29 June 2017.
I acknowledge the presence in the Visitors Gallery of the former Cathaoirleach Charles McDonald. I welcome him to the House, of which he was a distinguished Member.
I welcome the Minister of State, Deputy David Stanton. I congratulate him on his elevation to office, in which I wish him a good and long career.
Thank you, a Chathaoirligh. I congratulate you and wish you well in your role. I also congratulate the new Leas-Chathaoirleach. I also wish the new Leader of the House and the other Members of the Seanad well in their deliberations.
I am in the House on behalf of the Tánaiste and Minister for Justice and Equality to discuss the Offences against the State (Amendment) Act 1998. The House will recall that the Act was passed following the callous Omagh bombing, a terrorist atrocity in which 29 innocent people lost their lives. That appalling act lives in all our memories and our sympathy remains with the families of the victims.
The 1998 Act made a series of amendments to the Offences Against the State Acts. It principally provides for 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, the possession of certain articles and collecting information; and extending to 72 hours the maximum period of detention permitted under section 30 of the Offences Against the State Act 1939. The Omagh atrocity demanded a clear and resolute response from the State in defence of the desire of the vast majority of law abiding people on the island to live their lives in peace.
Section 18 of the Act, as amended by section 37 of the Criminal Justice Act 1999, provides that sections 2 to 4, inclusive, 6 to 12, inclusive, 14 and 17 must be renewed by the Oireachtas at specified intervals if they are to remain in force. By virtue of resolutions passed by both Houses of the Oireachtas in June 2015, these sections were continued in force for a period of 12 months. Prior to moving a motion for renewal, the Act requires that the Minister lays before the Oireachtas a report on the operation of the relevant provisions. The current report covers the period from 1 June 2015 to 31 May 2016 and was laid before the House on 10 June.
Given the time available, I will not go through all of the relevant sections in detail. The report, based on information provided by the Garda authorities, sets out the detail of usage of the various sections in the period. It also includes a table of comparative usage for each of the years since the Act came into operation. It indicates that two sections, sections 6 and 12, were not used during the reporting period in question. However, it should not be inferred that these provisions are in some way redundant as the usage of the different sections can vary from year to year. It is the clear view of the Garda Commissioner that the Act continues to be a most important tool in ongoing efforts in the fight against terrorism. The Garda authorities have stated the provisions of the Act are used regularly, which is evident from the report. They are, in short, a necessary legislative support in the fight against terrorism.
There remains on the island a persistent threat from republican paramilitary groups that are, simply, opposed to peace. They have no support; they have no reason to remain in being and should go away for good. The Tánaiste's decision to bring the second Special Criminal Court into operation is in response to this threat. It is now up and running and underlines the Government's determination to deal with serious crime affecting the security of the State. The threat level in Northern Ireland is severe. The appalling murder of the Northern Ireland prison officer, Adrian Ismay, earlier this year highlighted the lethal nihilism of these groups that act in direct opposition to the democratic wishes of the majority on the island.
The Garda authorities work tirelessly and in co-operation with their counterparts in the Police Service of Northern Ireland, PSNI, in countering the activities of these paramilitary organisations and deserve credit for their ongoing work. Combating the security threat is a key priority for the Government and the additional funding the Tánaiste has secured for the Garda Vote this year will go in part towards support for measures against terrorism. The Government is determined that these groups will never prevail and that there will be no let-up in actions to tackle them. It would be a happy day if provisions in the law such as those we are discussing were no longer needed because the threat they target was no longer in place. The sad truth, however, is that they are still needed because that threat persists.
I will now refer to the second motion to be discussed on section 8 of the Criminal Justice (Amendment) Act 2009. It proposes the continuation in force for another year of section 8 of the Criminal Justice (Amendment) Act 2009, which section provides for a limited number of serious, organised crime offences to be tried in the Special Criminal Court, thus removing the possibility of jury tampering or the intimidation of jurors or potential jurors. The offences in question are set out in Part 7 of the Criminal Justice Act 2006. They are, in section 71A, directing the activities of a criminal organisation; in section 72, participating in or contributing to certain activities of a criminal organisation; in section 73, committing a serious offence for a criminal organisation; and in section 76, liability for these offences committed by a body corporate.
The 2009 Act makes these scheduled offences for the purposes of Part V of the Offences Against the State Act 1939. While this means that the Special Criminal Court will hear trials for these offences, the Director of Public Prosecutions retains the power to direct that the offences be tried in the ordinary courts.
In order to assist Senators in their consideration, section 8(6) provides that the Minister must prepare a report which shall be laid before both Houses on the operation of the section. That report, covering the period from 1 June 2015 to 31 May 2016, was laid before the House on 10 June. Section 8 was not used during the period in question. It has not been used since 2009. This does not invalidate the reasoning for having such a provision available for use if it is needed, nor does it diminish its potential value in bringing organised criminals to justice. The operation of the provision to date highlights the considered approach of the Director of Public Prosecutions in using her discretion to direct that cases be tried in the ordinary courts where it is possible to do so. This is proof positive of the balance that has been struck with this provision. It is a robust but nonetheless proportionate power.
In the period under report there were a total of 17 arrests under two of the four offences covered by section 8 - seven arrests under section 72 and a further ten under section 73. Sections 71A and 76 were not used in the reporting period in question. Of course, there is a variety of other provisions of the criminal law that have been and are being used against organised criminals. My Department is examining whether there are other changes to the law that might be made to tackle these gangs. The Minister will shortly be bringing forward changes to the law to strengthen the powers of the Criminal Assets Bureau in seizing the proceeds of crime.
None of us can be under any illusion about the danger to society from organised crime. Recent gang related murders in the Dublin region put into stark relief the utter disregard of these criminals for human life and the rule of law. Counteracting this danger presents very real challenges for the State. However, the State has faced down such gangs in the past and will do so again. The Government is fully committed to providing An Garda Síochána with the necessary resources to confront these criminal thugs and bring them to justice. To this end, as I have said, the Minister secured substantial additional funding of €55 million for An Garda Síochána for the remainder of 2016 that will, among other things, support the necessary activities to target gang-related crime.
The Garda Commissioner has made clear her view that this provision will be required for some time to come and we must have the utmost regard for her analysis. Trial by jury is the standard for our system and should be preserved to the greatest extent possible. However, none of us can afford to ignore the threat to the rule of law from violent, organised criminals who will stop at literally nothing to protect themselves and their profits. We have a duty as legislators to ensure we respond robustly but proportionately to that threat. I commend the motions to the House.
This debate has a time constraint of 50 minutes. We must move away from the very lengthy Order of Business this morning when I allowed everybody some indulgence. When a time limit is set for these matters, we have no choice but to adhere to it. The spokesperson for each party will have five minutes and if there is time, the second person will have three minutes.
I will keep my contribution as brief as possible. On behalf of the Fianna Fáil group, I voice our support for the two motions before the Seanad. Both the Criminal Justice (Amendment) Act 2009 and the Offences against the State (Amendment) Act 1998 require that certain sections of the Acts be renewed by the Oireachtas on an annual basis. Fianna Fáil has consistently supported the renewal of these sections and does so today as it believes both statutory provisions are necessary. We hope that in the future the threat of dissident republican activity on the island will no longer be a reality but until then, we must have effective mechanisms to deal with it.
In the aftermath of the shocking act of terror in Orlando, we are reminded of the ever-present threat of international terrorism. Unfortunately, Ireland is not immune to this threat. It is, therefore, not appropriate to remove the powers from An Garda Síochána at this time when there is no evidence that these powers have been abused. The police force needs to have the ability to act immediately in the face of terrorism.
Section 8 of the 2009 Act allows serious organised gangland crime offences to be tried by the Special Criminal Court similar to some of the proposals contained in the Offences against the State Act. The operation of drug gangs in Ireland is to the forefront of our minds due to the horrific murder in the Regency Hotel in February 2016 and subsequent murders. Communities are being terrorised and calling for a tough response from An Garda Síochána.
Opposition to these provisions is mainly based on the fact that these crimes are tried in Special Criminal Court settings without a jury. Unfortunately, some offences cannot be tried by jury as it would jeopardise the safety of jury members. We have a duty to ensure the criminal justice system operates fairly. The system cannot operate if jury members can be intimidated or harmed in any way. Gangland criminals have murdered journalists and innocent members of the public in broad daylight. Intimidating jury members would not be beyond the pale. Witnesses were intimidated during the trial of four members of the Provisional IRA for the killing of Detective Garda Jerry McCabe. This intimidation resulted in the lesser charge of manslaughter being laid against the four accused. If witnesses have been intimidated in the past by dissident republicans, there is a real possibility that jury members will also face intimidation in the future should these provisions not be renewed.
Putting in place the witness protection programme for jury members, as has been suggested in the past, would be completely unworkable. Trial by jury was provided for in Bunreacht na hÉireann to ensure a fair criminal justice system. Owing to the nature of the crimes that are the subject of these provisions, trial without jury is required to achieve the same outcome - a fair criminal justice system. Therefore, I support the motions.
I welcome the Minister of State and wish him every success in his new role in the Department of Justice and Equality. I think it is his first occasion in the House as Minister of State.
I welcome the motions which have my full support. It is important that we give the necessary support to gardaí who are working at the coal face. History has shown that if that support had not been given, it would not have been possible in years gone by to take criminal proceedings against certain people. The Special Criminal Court has at all times been very effective and very fair. The criminal justice system has always been very balanced. Where there is any threat to a fair trial taking place and a prosecution cannot proceed because jurors might be intimidated, it is important that the appropriate procedures be put in place. That is the reason two pieces of legislation were passed.
It is also important that there be checks and balances and that they not be abused. That is the reason the provisions come back for review every 12 months. It is extremely important that they receive our full support. The Minister and the Minister of State do not take this decision lightly. They take it because they have received the advice that in respect of the criminal justice system operating properly, certain elements could not be prosecuted unless these procedures are in place. That is the reason they are bringing forward these motions and why they seek the continuance of section 8 of the Criminal Justice (Amendment) Act 2009 and the appropriate section in the Offences against the State (Amendment) Act 1998.
It is also welcome that an extra €55 million has been allocated to the Garda to give it the necessary back-up support because it cannot operate unless it has sufficient support and expertise to deal with criminal elements. Crime is becoming more sophisticated and a way of sidestepping the Garda and the judicial process is available to the criminal community. It is important that we have the appropriate procedures for the Garda and the Director of Public Prosecutions. Therefore, I support the motions, as does Fine Gael.
There are checks and balances. The sections will come back for review again in 12 months time.
Gabhaim buíochas leis an Aire Stáit as teacht isteach chun labhairt linn inniu. Beidh mise leanúnach le seasamh Shinn Féin maidir leis an ábhar seo agus ar ndóigh beidh muid ag caitheamh vóta in éadan na moltaí atá os ár gcomhair inniu.
As the Minister of State knows, criminality is a scourge for communities. All parties across the island must be both united and relentless in their pursuit of ending criminality. It must be made clear that those responsible for the recent killings and the ongoing feud in Dublin or anyone involved in organised crime must face the courts and be brought to justice. There can be no equivocation in that respect. If they are found guilty and prosecuted, they must face the sentences handed down to them. There is no equivocation in that regard.
The Minister spoke yesterday evening in the Dáil about improved and increased resources to An Garda Síochána to help combat organised crime. It should be noted that in recent years it was the Fianna Fáil Party that closed the Garda College in Templemore and stopped recruitment of members to the force, a measure continued by the previous Fine Gael Government, but now both want a tough response to such matters. While I welcome the recent announcement of increased investment in tackling crime, it has to go beyond investment in armed response units. If we want long-term solutions to deal with organised crime, we need to prevent young people from going down that path in life. We need to invest in programmes with a proven track record of working such as the youth and juvenile diversion programmes. These are areas in which we need increased investment. The legislation we are being asked to extend for a further 12 months does not have the effect of ending criminality in communities. It clearly has not worked, although it has been in existence for the past 20 years. We also have to look at international best practice and what actually does work. What does is increased investment at community level in meaningful programmes that prevent young people from engaging in criminality. It is important to say it is not only young people who engage in criminality. Sinn Féin is opposed to criminality and we will support any measure we believe will work in ending it.
The Fresh Start agreement negotiated in November last year by the Executive in the North deals with measures around stronger law enforcement and co-operation with the Government in this state aimed at tackling organised crime and criminality. A new joint agency task force has been established, led at senior management level by An Garda Síochána and the PSNI, the Revenue Commissioners, Revenue and the Customs service. This new inter-agency task force will bring together the expertise of a range of law enforcement agencies involved in tackling organised crime gangs that seek to exploit the Border between the two jurisdictions. The Good Friday Agreement which preceded it requires steps towards security normalisation, including the progressive elimination of the Act's provisions. It is not justifiable to continue with this legislation with the Good Friday Agreement now in place for a full 18 years.
There is no emergency that could justify the continuation of the draconian measures contained in the sections that are up for renewal, or the rest of the Offences against the State Acts. This legislation has a highly corrosive effect on human rights, civil liberties and democratic life in the State. We in Sinn Féin are not alone in holding that opinion, given that the UN Human Rights Committee, Amnesty International and many other groups have stated this issue needs to be dealt with by the State as a matter of urgency. Certainly from a Northern perspective, I have worked with the PSNI and seen the change in policing, moving away from a very negative, draconian and oppressive culture. Although the change is still incomplete and imperfect, much has been achieved in terms of independent oversight and creating a force that is community oriented and compliant with human rights. There are lessons to be learned to set the highest possible standard for international best practice for both policing services across the island which puts the ending of criminality but also the rights of and protections for citizens at its heart.
I welcome the Minister of State, Deputy David Stanton. It is my first opportunity to do so and think it is his first opportunity to be with us. I welcome him and congratulate him on his appointment, having working with him on the Joint Committee on Justice, Defence and Equality, which he so ably chaired for the past five years. I know that he will do a great job and I wish him the very best with his work.
On the motions before us, I welcome the opportunity to be back debating them. Every 12 months these provisions have to be reviewed. It is important that the Oireachtas keep them under scrutiny, given that they interfere with due process rights of accused persons. It is in that context that we are back discussing them. Having said that, we all recognise the major threat posed, in particular, by organised crime. We would all be very conscious of events in Dublin's north inner city and the real fear that so many members of that community are living under. We all watched the Taoiseach and other Ministers meeting community leaders last night in the north inner city. Clearly, there is a significant threat from organised crime and from paramilitary crime.
I should declare an interest as somebody who practised as a barrister in the Special Criminal Court in previous years. I have been here, speaking about the renewal of these provisions, for some years. We need to keep them under scrutiny. On a practical level, while a report has been laid before the Oireachtas, in previous years a table of usage has been appended to the Minister's speech which we have been provided with in advance of each of these debates. It is very useful to see for ourselves the pattern of application of the provision. That would be very helpful. I know that the Minister of State dealt with this a little, but it is also useful to have the overview provided for us.
Looking first at the Offences against the State (Amendment) Act 1998 motion and its renewal, as has been said, these provisions do depart from normal principles of due process. Section 3 requires an accused to give notice of an intention to call a person to give evidence on his behalf when charged with membership of an unlawful organisation, and section 4 potentially gives rise to guilt by association, allowing inferences to be drawn from conduct such as associations on the part of the accused concerning evidence of membership of an unlawful organisation, an offence which, we will all be conscious, is a very serious one. I looked previously at a 15-year pattern of usage of these provisions and some of them were not used for many years. This requires that we look at the utility of continuing them in force. Section 4, in fact, had not been used for some years between 2008 and 2014 and was then used. Having said that, as the Minister of State said, the fact a provision is not used for some years does not mean that it will not be and that it will not be useful. We need to take a balanced approach to this. The Minister of State said two sections, sections 6 and 12, had not been used during the reporting period in question, that is, the past year. While he pointed out that it should not be inferred that these sections were redundant, as the usage varies from year to year, as we have seen in the past, it is still something that requires us to keep under review. I understand section 12 has not been used since 2002. That is 14 years in which section 12 has not been used. There is a strong question to be asked about keeping the utility of that provision under review.
I will deal briefly with the motion on the Criminal Justice (Amendment) Act 2009. We are looking at another provision that interferes with due process rights. Section 8 provides for the right to a jury trial to be bypassed by the Director of Public Prosecutions in respect of certain offences. In the period under review no cases were, in fact, sent forward to the Special Criminal Court through the exercise of the Director of Public Prosecutions's discretion. Since 2009, no cases have been sent forward under that provision. Section 8 has not been used since 2009, as the Minister of State said. As I said last year, this indicates the considered approach being taken by the Director of Public Prosecutions who is not exercising her discretion in any liberal fashion. That is right and proper, given the encroachment section 8 represents.
One also has to look behind section 8 and look at the provisions it refers to, which are laid out in Part 7 of the Criminal Justice Act 2006. Looking at these provisions, it is clear from the Minister of State's contribution and speeches made and data we were given in previous years that sections 72 and 73, the two offences of participating in or contributing to the activities of a criminal organisation and committing a serious offence, are well used. The Minister of State has pointed out there were seven arrests under section 72 and a further ten under section 73. However, he says, section 71A, directing the activities of a criminal organisation, and section 76, liability for these offences committed by a body corporate, have not been exercised. Looking back, as far as I know, they have not been exercised for the past three years. One should look at the merit of retaining them in their current form and whether there is something about them that makes them unworkable.
Clearly, the directing of activities of a criminal organisation is an offence which one hopes should have a utility on the Statute Book, given the very serious offences that have been committed in the name of criminal organisations in recent months. There is a question to be asked about these offences being kept in their current form if they are not, in fact, being used. I simply raise these questions. I certainly do not oppose the motions, but we need to keep these sections under careful scrutiny and be critical, where necessary, of aspects of the motions without simply passing them every year in a knee-jerk or token way.
Ba mhaith liom buíochas a ghabháil leis an gCathaoirleach. I welcome the Minister of State, Deputy David Stanton, and congratulate him on his appointment. As Senator Ivana Bacik said, the Minister of State brings with him years of dedicated service at the justice committee. I was pleased, when Chairman of the health committee, to work in a cross-departmental way with him on the issue of drugs. I wish him well.
It is important that the Minister of State said the Act was an important tool in the ongoing fight against terrorism and that we must ensure An Garda Síochána and the Government had every tool available to them in the war and fight against organised crime. We must eradicate organised crime.
I listened to Senator John Dolan's comments and agree with some of what he said about how we could tackle this issue through education, empowerment and rebuilding inner cities, in particular, through working in a cross-departmental and cross-sectoral way to make life better for people. That work could begin in a multiplicity of ways. However, if we do not allow for the State to be able to do its work and have resources and measures such as these, we are in big trouble.
Equally, the issue of resourcing, the rostering of staff, community gardaí and education are very important. We saw the amount of money which had been invested through the RAPID programme in inner city areas. I worked with it while a member of Cork City Council where we enhanced the public realm and domain in streetscapes to improve people's quality of life. That means that we must look at the issue of child care and its affordability, housing, including affordable housing, in tandem with resourcing the Garda and ensuring community leaders and citizens, with An Garda Síochána and the courts, can tackle and eradicate gangland crime.
It is important that this cycle be ended and, equally, that we work together to ensure a situation where we will not need this legislation because, as Senator Ivana Bacik rightly said, some of the sections has not been used at all. When we talk about new politics, it is important that we take it out of the Chamber and, following on from the visit by the Taoiseach yesterday evening to the inner city, ensure there will be a new way of doing business, a way where community leaders and those employed by the State, by city councils and NGOs, in tandem with active volunteers, can make life better and where the culture and attitude among people will change also. I say this as someone who has been in schools. As the Minister of State knows from his own background, education is critical. Empowering young people and giving them a dream of a better future and a vision of a better life would be a great step forward. I hope the visit of the Taoiseach last night will not just be seen as a photo opportunity, as it was reported in some of the newspapers today, but as the beginning of something different.
I thank Senators for their welcome and kind words. I hope it will last.
I am grateful to the Seanad for its consideration of these matters. I thank Senators on all sides for their contributions to the debate on both motions. Naturally, I welcome the support expressed by a number of speakers for continuing these provisions. I also appreciate the shared commitment in the House to maintaining in place a robust legal framework for the Garda and the courts when dealing with the most serious of offences that may threaten the State and the operation of the criminal justice system. I also recognise that there are genuinely expressed concerns about the robust nature of these provisions. However, we simply cannot ignore the activities of so-called dissident paramilitaries; neither can we ignore the grave threat posed by gang-related crime.
The ongoing actions of the Garda in combating the paramilitary groups, including, fortunately, seizures of explosives and firearms, bear witness to the real and persistent threat presented by these groups to the people, both in this state and Northern Ireland. These terrorist groups have no support and no mandate. They cannot now and never will offer anything positive. We must do all we can within the law to stop them. By the same token, the Garda continues daily to take action against the criminal gangs, the activities of which seek to undermine society. The recent series of gang-related murders in the Dublin region bears witness to the ruthlessness and lawlessness of these criminals.
As public representatives, we have all seen the profound damage drugs, in particular, have inflicted on communities across the State. We cannot be blind to the fact that there are serious criminals who are only too happy to feed on that misery and misfortune and will literally stop at nothing to protect their well funded lifestyles. I take on board the comments made by Senators John Dolan, Jerry Buttimer and others about the other side of the coin in boosting communities, education and youth services, youth centres and so on which are also vitally important. However, we cannot ignore the fact that we are dealing with ruthless people.
In the face of these threats we must, as legislators, do our utmost to ensure the protection of the State and its institutions and to protect the lives of citizens. In doing so we must strike a balance between necessity and proportionality. This is not always an easy balance to strike, but I am of the clear view that it is achieved by these provisions. While they are outside the normal course of the criminal law, the measures are a response to extraordinary circumstances. I also emphasise that these provisions do not somehow operate in glorious isolation from the rest of the criminal law and the range of protections available in the criminal process and at trial for persons charged with serious offences. We are fortunate to have a robustly independent and impartial Judiciary which has time and again proved to be the bulwark in protecting the citizen's fundamental rights. I remind Senators also that provisions of the Offences against the State Acts and the Special Criminal Court have faced challenges to their operation and constitutionality on many occasions in the Supreme Court and at the European Court of Human Rights in Strasbourg and have largely withstood them. I remind the House of the key role of the Director of Public Prosecutions in the process, a role carried out independently in accordance with the law.
Some concerns were expressed about the process for renewal of these provisions. It may be difficult to identify an ideal way to do this, but I emphasise that the current arrangements place the legislators in control. This House and the Dáil, together, have the final say. This is the democratic way which I believe has much to recommend it. The Garda deploys considerable operational resources to tackle terrorism and organised crime and we, as legislators, must provide it and the courts with the necessary means to bring terrorists and serious criminals to justice. I am sure we all wish circumstances were otherwise and that laws such as these were not needed. However, the stark reality is that until conditions allow, these provisions are a necessary addition to the general criminal law. I commend the motions to the House.
