Offences against the State (Amendment) Act 1998
Offences against the State (Amendment) Act 1998: Motion
Senator Ivana Bacik: I welcome the Minister. As I did last year, I must declare my interest in that I have practised in the courts, including the Special Criminal Court, and used these provisions. In common with other Members, I support the Minister’s proposal that they be renewed again. However, there is a sense of déjà vu in that Members are back again, as they must be, to sanction their extension for a further 12 months. However, the context for this debate is much more positive. One year ago it took place against the relatively recent backdrop of the appalling murders of Mark Quinsey and Patrick Azimkar at Massereene Barracks, as well as the murder of PSNI Constable Steven Carroll. At the time the outlook appeared to be bleak.
I take the Minister’s point that there remains an ongoing threat posed by dissident republicans. The extensive use of section 9 of the Act, in particular — it was used 117 times in the last 12 months — shows there still is a need for at least some measures of this nature. However, as others have noted, the publication of the Saville report this week provides Members with a much more positive context for this debate. It certainly has allowed everyone to see the benefits of having an open and transparent inquiry into events that both had caused immense trauma and heartbreak for the families of the victims and many others at the time and had poisoned the political process in
The report also serves as a reminder that the marchers on what became known as Bloody Sunday were marching for civil rights and civil liberties. As the Minister remarked, it is a matter of genuine regret for all Members that measures of this nature which encroach on the normal due process rights of accused persons remain necessary because they would all welcome a situation where one could rely on the normal criminal justice measures to deal with criminal acts, rather than being obliged to rely on such special or emergency measures. However, one must ensure balance and that due process rights will be protected as far as is possible, given the ongoing threat. Members must be conscious that the provisions of the Offences against the State Act were criticised by former Senator Mary Robinson in a highly influential publication she wrote some years ago about the Act, as well as by the expert committee which reviewed the Act.
When one examines the report produced by the Minister to which he referred, it is important not to perceive it as a rubber-stamping exercise. As Senator Quinn stated, it is of great value to have a report on the operation of an Act such as this. However, I would like to see more information provided. I note that Members have been given information on the extent to which each of the relevant sections was utilised in the last 12 months. However, they have not been given information that the Minister provided last year which provided for a comparison with the figures for the previous 12 months and which I found to be extremely useful. Last year Members received information on the figures in the 2007-08 period and it was very useful to make comparisons with the figures for different years to see a pattern. For example, where the use of a section is not required, should it continue in operation? I refer the Minister to section 12 which was not used in the period 2007-08 or 2008-09 and, according to the report presented today, was not used in the last 12 months. This is the section that deals with the issue of training in the use of firearms. There is a question in that regard. I do not suggest one should simply drop the provision, but my point is that Members must ask the reason it was not used. Is there a problem with the provision, or does it need to be amended or strengthened in some way? Can the Garda assist Members on what the force needs? If the Garda believes training in the use of firearms is taking place, why has the section not been used for the past three years? I note that last year the Minister did not renew section 5 of the Act because it had been largely superseded by Part 4 of the Criminal Justice Act 2007. Consequently, there is a precedent for non-renewal in cases where a section is no longer necessary.
Other information that might be useful is what is meant by the word “utilise”. Are there links with the figures for convictions and charges that have been provided for Members? I note, for example, that the terms of section 10 which deals with the extension of the period of detention by a District Court judge were applied on 25 occasions. While an extension was granted on all 25 occasions, the report states charges only resulted in 12 cases. Again, some information from the Garda on the resultant charges in the case of other sections would be useful for Members. For example, section 9 was utilised on 117 occasions. Does this mean charges were brought on each occasion? How many convictions were achieved as a result?
While the Labour Party does not exactly welcome the legislation, we accept the need for its continued operation. We accept, as the Minister stated, that it is a matter of regret that the renewal of any of its provisions is needed. Clearly, however, there is such a need, as the Garda has outlined. Although the Labour Party accepts this, I ask for sufficient information when Members come to review the position every 12 months to enable them to make an informed decision on whether each individual provision of the Act should be renewed. This is of vital importance. I note the Minister has not provided Members with the same level of information this year as last year. This is a pity, as it is useful for Members to see the pattern of usage of the different sections, as they then can be sure there is a need to renew each individual section.
My final point relates to section 2. I asked last year about the special caution that had been promised to put into effect the section 2 warning for an accused person. Will the Minister indicate whether a caution has been drafted in that regard?
Motion
Senator Ivana Bacik: I welcome the Minister of State. I declare my own interest in this matter as I have represented people before the Special Criminal Court and have, therefore, worked with the provisions at issue in the motion. I echo Senator Alex White’s words by expressing some concern about the procedure and the low level of scrutiny we give to these measures. It is important we retain the power of annual review.
Before I speak in detail about the provisions, I join other Senators in condemning the dreadful atrocity in Omagh which gave rise to the 1998 amendment Act. We all remember that appalling tragedy only too well. Since we debated this matter last year we have seen the further appalling murders of Mark Quinsey and Patrick Azimkar at Massereene barracks and of Constable Stephen Carroll. We all join the Minister of State in condemning those and in expressing our sympathy to the relatives and families of the people killed. This morning, we heard disturbing news of further attacks in
Having expressed those concerns and our recognition of the need for special measures to deal with ongoing threats to State and individual security, it is important to point out that the Offences against the State Acts, including the 1998 amendment Act, represent a significant departure from the normal criminal justice rules and procedures and the general protections for accused persons in our criminal justice system. The fact that the 1998 Act, in particular, represents such a departure is acknowledged in the inclusion of a provision for an annual review. It is, indeed, an emergency or special powers legislative measure. It should also be recalled that the House is currently debating a criminal procedure Bill which will also make inroads into established protections for civil liberties and the rights of accused persons, particularly regarding the rule against double jeopardy. We must be wary of undue encroachments on civil liberties and, in particular, the rights of the accused.
There have been notable criticisms of the Offences against the State Acts over the years. The former Senator, Mary Robinson, expressed a great deal of concern about the operation of the Special Criminal Court in a well known pamphlet she prepared in the 1970s, in which she expressed reservations about the use of a non-jury court to try serious offences. More recently, the report of the expert group set up to review the Offences against the State Acts also expressed reservations about certain aspects of the legislation. There has also been international criticism of the use of the Special Criminal Court to try non-scheduled offences.
We must be cautious not just about the use of the Special Criminal Court but also about particular provisions in the Offences against the State Acts code. One of the new provisions introduced in the 1998 Act was in section 2. It allows a court to draw inferences from the failure of an accused person to answer questions where they are in detention and being questioned by a garda about an offence, notably membership of an unlawful organisation. The court can draw inferences from silence. The failure to answer questions may be capable of amounting to corroboration. Section 2, in conjunction with earlier offences against the State legislation, means in practice that a person can be convicted of membership of an unlawful organisation on the word of a chief superintendent alone - this is based on the 1972 amendment Act - corroborated by a failure to answer material questions. We should have some concern about the relatively low levels of proof required.
We might also be concerned about the special caution that is required to put into effect the section 2 warning for an accused person who is being questioned by gardaí. Again, little work has been done in this regard. A special caution was promised whereby accused persons would be made aware that they were being asked material questions in the course of a Garda interview. The caution would put them on notice that a failure to answer those questions would lead to inferences being drawn. Many of us who practice in the area have some procedural concerns about the operation of the 1998 Act.
The Minister helpfully referred to the number of times particular provisions of the 1998 Act were used in the past year. Clearly, there was greater use and application of many of the provisions last year than in the previous year. However, a small number of provisions were not used. I note that section 12 was not used in the period covered by the Minister’s report today, nor was it used in the 2007-08 period. That begs the question of the continued need for its existence. The Minister noted that section 5 of the Act will not be renewed this year as it has effectively been superseded by Part 4 of the Criminal Justice Act 2007. That is a useful precedent; there might be other provisions in the 1998 Act that need not be renewed to meet threats from terrorism and organised crime.
My main concern is, as Senator Alex White mentioned, that we should not simply rubber-stamp the renewal of an Act of this importance every 12 months. I welcome the principle that we should have a debate on this, even if that debate is too short and somewhat cursory in nature. It is important to have legislative scrutiny and that the scrutiny take place at least every year. I urge the Minister not to accede to any requests that the time period between reviews be lengthened. It is important to retain the annual review and that each year we examine individual provisions of the 1998 Act to assess how effective and necessary they are in dealing with the very real and recognised threat of terrorism. If they are not necessary or effective, we should give serious consideration to not renewing those provisions.
