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Speech by the Minister for Justice and Equality, Charlie Flanagan TD on Motions on Offences Against the State (Amendment) Act and Criminal Justice (Amendment) Act

Check Against Delivery

The House will be aware that the Offences Against the State (Amendment) Act 1998was enacted in the wake of the murder of 29 people by the Real IRA in Omagh.

Thankfully, through the efforts of the democratic people north and south of this island, and the ongoing watchfulness of An Garda Síochána and their colleagues in the Police Service of Northern Ireland, there has not been another tragedy of the scale of Omagh.  It nonetheless remains crucial that those who display utter contempt and disregard for the people of Ireland, and who continue with their efforts at death and destruction are given a clear statement that this behaviour will not be tolerated.

I do want to address at the outset the amendments that have been put down by Members of this House. I cannot accept that the information that is put before the House today is insufficient for Deputies to reach a considered view on the continuation of these provisions. I know that some Members of the House are concerned about the role of the Special Criminal Court in the justice process. However, none of us can be blind to the threat posed to the criminal process by individuals, terrorists and organised criminal groups who seek to subvert the system through intimidation of citizens.

I want to make clear that I am not averse to a review of this legislation.  Indeed, far from it, as will become clear in the months ahead.  Deputies will be aware of the intensive work taking place to implement the recommendations of the Commission on the Future of Policing in Ireland. That root and branch blueprint for policing incudes a comprehensive review of security legislation.  Work is ongoing in my Department to bring forward that review and the Offences Against the State legislation will, of course, be part of it, including the provisions before us today. Therefore, I would ask Deputies to withdraw their amendments and support the motions before the House today, in line with their valued and welcome support for the recommendations of CoFPI and the implementation of its ambitious vision for policing in this State.

Returning to the 1998 Act, I have laid a report before the House in relation to the operation of the relevant provisions to be renewed.

The report also sets out a brief assessment of the security situation. The Garda assessment is that there remains a real and persistent threat from republican paramilitary groups on this island. We all know these dissidents are opposed to democracy and the rule of law.

The ruthless and continuing attempts to murder and maim, such as the attempt earlier this year to smuggle a bomb on a Belfast passenger ferry to coincide with Brexit, demonstrate the scant regard for human life these people have. The cowardly attempts to intimidate journalists and politicians demonstrates their contempt for an open and free democracy.

In the previous year there has been an increase in paramilitary shootings and attacks in Northern Ireland, including attempts to murder and maim members of the PSNI. The continuing discovery of arms caches, including recent finds in this jurisdiction, such as that in Galway in April this year, are stark reminders of their intent. 

We see the use of these provisions culminating in the most serious cases being brought before the Special Criminal Court. The first conviction for directing terrorism under these provisions goes back to 2003, with the most recent in 2017. These are very significant cases, involving those at the most senior level in these organisations. In addition, in recent years, there have been important convictions for membership of an unlawful organisation, where the Court has been able to draw inferences using these provisions.

The report before the Houses provides data that these provisions have been utilised in excess of 70 times in the period under review.  In this period, the total number of people arrested under the provisions of the Offences Against the State Act 1939 is 146, of which 40 people were detained for offences contrary to the provisions of the 1998 Act. There have been 7 convictions secured in the Courts in the reporting period and a further 34 persons are currently awaiting trial.

It is our duty to ensure that those tasked with protecting us from this threat – and who frequently risk their own lives in doing so - have at their disposal the appropriate measures to meet it. The powers available under the 1998 Act are considered by An Garda Síochána as essential to maintaining preventative action against the terror groups. As such, I am advised by the Garda Commissioner that there is a clear need for the continuance of these provisions.

In addition to the threat posed by domestic terrorists, and the importance of countering that threat, it is important not to lose sight of the threat from international terrorism. While the 1998 Act was a strong response to our own domestic troubles, its provisions form an essential element of the State’s response to the threat of terrorism from any source.

Ireland is very fortunate to have been spared the kinds of attacks that have visited upon our European partners. However, as an open democracy we cannot consider ourselves immune from such a threat, and in co-operation with our EU and international partners, we will continue to identify and respond to that threat.

It is essential, I believe, that the relevant provisions should continue in force for a further 12 months to support the ongoing investigation and disruption of terrorist activity.

I turn now to section 8 of the Criminal Justice (Amendment) Act 2009, which is also the subject of a motion before the House.

The Act was a response to a number of difficulties which were being experienced and where the entire justice system was considered to be under serious threat. At the time, the Gardaí were encountering difficulties in persuading people to give assistance in their investigations. There was significant evidence of intimidation of witnesses.

The measures contained in the Act were designed to tilt the balance firmly in favour of the rule of law and justice.

In view of the very real threat posed by organised crime, Section 8 of the 2009 Act provides for a limited number of specific “organised crime” offences to be prosecuted in the Special Criminal Court, subject to the prerogative of the Director of Public Prosecutions to direct that the offences be tried in the ordinary courts.  The ability to use the Special Criminal Court for a limited number of organised crime offences removes the possibility of jury tampering or intimidation of jurors.

Our society greatly values trial by jury, and we must protect that value, but we cannot ignore the reality of organised crime, and the very real threat that it poses to the criminal justice process.

There is, unfortunately, stark evidence of the willingness of these organisations to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. We are all aware that the reach of these groups is not limited to the State – nor are the efforts of the Gardaí who work closely with a range of police and law enforcement bodies internationally.

Some security risks that in the past were mainly associated with subversive paramilitaries are now also associated with criminal groups. There is evidence of inextricable links between those who engage in paramilitary activity and organised crime.

It is also clear that age is no barrier to becoming a victim of their barbaric violence. The gruesome and cruel killing of a teenage boy earlier this year is stark evidence of their contempt and lack of humanity. That shocking act is a reminder, as if one is needed, of their ever increasing depravity.

Let me be clear - if criminals are prepared to take human life, then they are quite prepared to subvert the system of justice. Accordingly, there is a necessity for legislation that anticipates this possibility to be in place.

That view is echoed by the views of An Garda Síochána which are set out in the Report.

I am therefore satisfied that Section 8 of the Criminal Justice (Amendment) Act 2009 should continue in operation for a further 12 months.

In conclusion, the existence of these provisions means that those engaged in terrorist activity and those involved in organised crime are aware that the State remains resolute in its determination to use every lawful means to defeat them.

I commend the motions to the House.