Vol. 286 No. 9
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 beginning on 30th June, 2022 and ending on 29th June, 2023.
I thank the House for taking these two motions. The two motions before the House today seek the approval of the Seanad to continue in force provisions in the Offences against the State (Amendment) Act 1998 aimed at tackling terrorism, and the Criminal Justice (Amendment) Act 2009 in respect of organised crime. Given the nature of these provisions, the Houses of the Oireachtas has decided that they should be reconsidered annually. The Minister for Justice, in accordance with the provisions, has laid reports on the use of these powers covering the 12 months up to 31 May 2022.
As the House will be aware, the Offences against the State (Amendment) Act 1998 contains a series of amendments to the Offences against the State Acts to make them more responsive to the threat from certain groups. This robust legislation was enacted by the Oireachtas in the wake of the murder, by the Real IRA, of 29 innocent people in the bombing of Omagh in August 1998. That atrocity demanded a resolute response from the State, and the legislation enacted then was a necessary and proportionate measure to defend the desire of the vast majority of law-abiding people on this island to live in peace. The report laid before this House on 7 June includes information provided by the Garda Commissioner on the use of the provisions in question over the past 12 months, and a table setting out reported usage figures for each of the years since the Act came into operation. The report also provides a brief assessment of the security situation. Regrettably, despite the enormous progress made towards a lasting peace on this island, there remains to this day a real and persistent threat from those same paramilitary groups who have set their faces against peace. We know these groups are vehemently opposed to peace and seek to attack the institutions of Northern Ireland. Their callous targeting of PSNI officers underlines the morally vacant path which these dissident groups seek to follow. While the recent lowering of the threat level in Northern Ireland is to be welcomed, the threat level remains substantial and the State cannot be complacent in this regard. I pay tribute to the members of An Garda Síochána and the Police Service of Northern Ireland, who work tirelessly and co-operate to counter the threat from paramilitary organisations. The report also notes the clear view of the Garda Commissioner that the Act continues to be an important tool in ongoing efforts in the fight against terrorism. Of course, while the 1998 Act was a response to a domestic threat, as an open democracy it is very important that we do not lose sight of the threat from international terrorism. We are not immune from this threat. Many provisions of the Offences against the State Acts form part of the response to that threat.
The House will be aware that in February last year the Minister for Justice established an independent expert review group, under the chairmanship of Mr. Justice Michael Peart, to examine all aspects of the Offences against the State Acts, taking into account the current threat posed by domestic-international terrorism and organised crime, the duty to deliver a fair and effective criminal justice system to ensure the protection of communities and the security of the State, and Ireland's obligations in relation to constitutional and ECHR rights and international law. The chair of the review group has recently reported that the group has had significant engagement with relevant stakeholders, statutory agencies and civil society organisations. The group's final report is expected in the autumn. I would like to thank Mr. Justice Peart and the members of the review group for undertaking this significant and complex task, and I expect full engagement with any recommendations they might have for this important legislation. In the meantime, the report laid before this House notes the clear view of the Garda authorities that the Act continues to be one of the most important tools in ongoing efforts in the fight against terrorism. In the circumstances, I must conclude that these provisions continue to be required and that they should remain in operation for a further 12 months.
I will now turn to section 8 of the Criminal Justice (Amendment) Act 2009, which is also the subject of a motion before the House. It refers to a small number of serious organised crime offences that are set out in Part 7 of the Criminal Justice Act 2006. Section 8 of the 2009 Act makes these offences scheduled offences for the purposes of Part V of the Offences against the State Act 1939. That is to say, trials for these offences are to be heard in the Special Criminal Court subject to the power of the Director of Public Prosecutions to direct that the offences be tried in the ordinary courts. The purpose of the provision is to guard against the possibility of interference with jury trial by ruthless criminal gangs. Of course, it is the case that jury trial should be preserved to the greatest extent possible. However, we cannot ignore the fact that organised crime gangs have shown a particular ruthlessness in their activities, including attacks on witnesses and intimidation of jurors. The report on this section that has been laid before the House includes information provided by the Garda Commissioner on the use, over the past 12 months, of the provisions in question and details of the offences in question. No one can be under any illusion as to the threat that society and the criminal justice system face from organised crime gangs who will stop at nothing in pursuit of their criminal activities. The Garda authorities are working intensively to bear down on these criminal gangs and to disrupt their activities. An Garda Síochána deserves praise for the considerable successes it has had against these gangs. With the Government's support, that work will continue. The views of An Garda Síochána are set out clearly in the report, namely, that the continued operation of the provision is required. It is my view, therefore, that section 8 should continue in operation for a further 12 months.
As set out in the two reports that have been laid before the House, it is the clear view of An Garda Síochána that the provisions in the 1998 Act and the 2009 Act continue to be necessary and effective in ongoing efforts in the fight against terrorism and serious organised crime. On the basis of the information set out in the report, and on the advice of Garda authorities, I propose that the House should approve the continued operation of the relevant provisions of the 1998 Act and the 2009 Act for a further 12 months commencing on 30 June.
The Minister of State is very welcome back to the House. I, on behalf of the Fianna Fáil Senators, support these motions that provide for the continuance of certain provisions under the Offences against the State (Amendment) Act 1998 and also the continuance in operation of section 8 of the Criminal Justice (Amendment) Act 2009. I thank the Minister of State for outlining in great detail his case for the continuance of these measures.
We fully agree with the continuance in operation of the Offences against the State (Amendment) Act 1998, which was a central provision in the battle against dissident republican groups engaged in terrorism. The Act, as the Cathaoirleach Gníomhach will know, was introduced by Fianna Fáil in 1998 in response, as the Minister of State outlined, to the Omagh bombing. We as a State must remain vigilant to the continuous threat from dissident republican terrorists who refuse to recognise the legality or existence of the Irish State and, as the Minister of State also outlined, other threats as well.
Section 8 of the Criminal Justice (Amendment) Act 2009 is a vital tool in the battle against organised crime and was also introduced by Fianna Fáil. Section 8 allows for the prosecution of individuals before the Special Criminal Court without a jury for directing a criminal organisation or participating in or contributing to the activity of a criminal organisation for the purpose of committing or facilitating the commission of a serious offence. Unfortunately, we are all used to the activities of these criminal gangs, as they continue to murder and be involved with the supply of drugs, firearms and explosives. As the Minister of State outlined, this legislation is necessary to protect those who are members of juries from intimidation.
It was mentioned that it is the view of the Garda it is important both these pieces of legislation continue for another 12 months. I welcome that and take the opportunity to commend the Garda on the work it does in this dangerous field on behalf of us all, and indeed on the many successes it has had in this particular area.
The Minister of State mentioned the review group is due to report in the autumn. I am wondering what the timeframe is thereafter as far as the two pieces of legislation at issue are concerned.
On behalf of Fianna Fáil Senators, I am happy to support both motions.
Cuirim fáilte roimh an Aire Stáit ar na rúin thábhachtacha seo. I am a huge fan of juries. They are a fantastic part of our criminal justice system. They take out of the realm of tired and jaded lawyers and judges questions of fact that should be determined by people who are fresh to the system, instead of people who are used to the system. They are people with fresh eyes, fresh perspectives and represent the strand of common sense that runs through our criminal justice system.
Let us be in no doubt, therefore, that juries are an incredibly important part of the fairness of our system, and I do not want to in any way denigrate that. That is not to say, just as has been recited in the report laid before the Houses on 7 June, that there are not cases that need to be heard by courts other than ones with juries. The reality is jurors, as ordinary citizens who come to court, are potentially exposed to intimidation and other tactics that we know have happened in the past and we know may happen again if certain cases are put in the charge of juries.
I see the Special Criminal Court as something that is flawed in many ways but it is a necessary evil nonetheless. It is a system we have put in place, as has been said already, as a response to certain activities by certain groups. It is a system that continues to work in respect of certain types of prosecution. Also important is where one has a Special Criminal Court sitting, there is not, for example, a consistent level of guilty verdicts. The judges who sit in the Special Criminal Court take their duties as judges and jurors - which is de facto what they are - very seriously. The presumption of innocence accorded to a defendant is a serious precept of Irish criminal law. The judges apply that and we can see that in the fact cases result in acquittals in the Special Criminal Court.
Those who express concerns about the operation of the Special Criminal Court are justified in doing so. It is an aberration in a system that recognises the importance of the presumption of innocence in respect of individuals. As I said, it is a necessary evil and we must acknowledge there are certain cases that merit this particular non-jury court, no matter how much we might find it distasteful or have concerns about it. As long as it is a necessary evil I am happy on behalf of the Fine Gael group to second these motions and support the notion of the continuation of the Special Criminal Court in force.
I also recognise the value of having this debate, even though it takes place every year and even though I often make the same remarks about it. There is a value in coming back to the Oireachtas, as the Houses that represent the people, and getting the imprimatur of the elected representatives of the people and more importantly perhaps, forcing An Garda Síochána and by extension the State to justify each year the basis upon which the continuation of this court is necessary. I welcome all that, notwithstanding my misgivings.
I also welcome the fact the Minister and the Department have put in place a review. There is no better man to lead it than Mr. Justice Michael Peart, who is a judge of singular authority and respect within the system. He is somebody who I am certain will approach his task with the even-handedness and fairness we expect. I look forward to what his review has to say in that regard and to being able to analyse the issues that may arise in the course of that review.
One of the issues I raise in this regard every year is the fact the current legislation allows the Director of Public Prosecutions, DPP, to designate whether a case is appropriate for the Special Criminal Court or not. The DPP does that of her own motion, as it were, and she decides, for example, if a case is an appropriate case for the Special Criminal Court. That should not happen. I do not criticise any of the decisions she has made. I am not aware of any case that has gone to the Special Criminal Court that did not objectively belong there. However, there is a case to be made for a separate, independent and objective process for that decision to be made, perhaps by way of an application by the DPP to the High Court and perhaps even in camera if that is the appropriate way to do it. That decision should be put in the hands of an independent, non-prosecutorial body and the High Court would seem to me to be the most the obvious place to do that. I have made that suggestion on previous occasions and submitted it to Mr. Justice Peart's review as well.
It is very important for people to understand what these motions are about and to understand elements we need protection from and that juries need protection from as well. I do not mean to score any political points but it is remarkable Sinn Féin has changed its position insofar as it was so vehemently opposed to it and now it has stepped back. It seems to me another attempt to normalise its relations, notwithstanding the fact it has unjustifiably opposed the existence of the Special Criminal Court in the past and it is worth remarking on that.
I welcome the motions and support them on behalf of the Fine Gael group.
I thank the Senator for seconding them but Government motions do not require a seconder. I am sure the seconding is welcome anyway.
Our next contributor is Senator Martin.
I thank the Cathaoirleach Gníomhach. I welcome the Minister of State to the Chamber and acknowledge his dedicated efforts. Jury trials are a cornerstone of our justice system. The UN Human Rights Committee has said one should only dispense with a jury trial in very exceptional circumstances. They are extraordinary courts for extraordinary times.
Senator Ward said they are a necessary evil. I submit if they are such a necessary evil, that they be backed by the very latest evidence to justify the continuation of a necessary evil. I am concerned about the perceived rubber-stamping of this every year, though I welcome that it comes to the Oireachtas every year and is held to account, but I am concerned it is more in ceremony and less in substance.
A jury is the cornerstone of the criminal law system as it ensures that the innocence or guilt of a person charged with an offence is determined by 12 randomly chosen members of the community, each of whom brings to the process the benefit of his or her life experience and individual perspective. In typically colourful language, Lord Denning, one of the most senior judges in the common law world, stated that trial by jury "is the lamp that shows that freedom lives". When the Birmingham Six took a civil action against the West Midlands Police, he could not fathom that the police would lie, as that would create an appalling vista. In a better moment, however, he, while Master of the Rolls, properly summed up the importance of trial by jury.
It is only in the most exceptional circumstances that I would support dispensing with the constitutional right to trial by jury. The Constitution contains many rights that point to only getting rid of jury trials in the most exceptional of circumstances. The Constitution guarantees equality before the law, including the right to equal protection of the law. With the renewal of these provisions in the Acts, we will continue to have the bizarre situation whereby two citizens in Ireland can be tried on the same serious offence, referred to as a scheduled offence, in two different court formats. One of them will have the benefit of a jury trial while the other will not have the benefit of his or her peers as jurors. Of course, with the Special Criminal Court comes a different evidential outline in terms of the evidence that is allowed. With the utmost respect, it is a weaker evidence test in respect of opinion evidence and interpretation evidence.
I have concerns. There is a guarantee in our laws to defend and vindicate the personal rights of the citizen. We have a duty to uphold the rights of citizens and we must do so. That includes the right to a fair trial and a jury trial. The test is whether there is an alternative. This is the crux of what I am coming to. If it is an absolutely necessary and unavoidable evil, then, of course, we protect our people. Where is the evidence that alternatives have been sought, however? In this day and age, having learned from Covid, we have remote hearings. Why can we not have screen jurors or anonymised jurors? I am not convinced that this is being taken seriously enough. This right is being taken away from people without it being convincingly shown that it is totally necessary. Human rights organisations not just in Ireland but throughout the world would state that only in the most exceptional circumstances should non-jury trials be conducted.
A certain political party has been riding high in the opinion polls for some time. It is entitled to change its mind or do U-turns. The late Brian Lenihan Snr. once spoke about the futility of consistency. Such a U-turn is acceptable if it is based on courage and working it out, rather than on political expediency. Only the people who are making the U-turn can answer for that, however. They alone truly know. In a democracy, we need a vibrant Government and a vibrant Opposition to hold the Government to account. There could be a long run-in to the next election. It could be a long and winding road. I would not like to see the balance and checks of opposition stultified by people in opposition looking over their shoulders and dropping such a firmly held principle due to political expediency. Is it because they are preparing to be more ready to be in government or whatever? Only they can answer that. I am concerned that I have not seen the evidence. I am not asking people to vote for or against this today. That is everyone's individual right. At least, however, they should not lose their voice. If they held to something for many years, they should not lose that voice suddenly. Where is that voice gone if there has been a deeply held concern about this for many years?
A functioning democracy needs jurors and, I am afraid to say, I have not seen convincing evidence to justify the continuation of trials without jurors.
Cuirim fáilte roimh an Aire Stáit chuig an Seanad agus roimh an seal labhairt faoin rún atá os ár gcomhair inniu. The Minister of State is very welcome to the House. Sinn Féin will do whatever it takes to get criminal gangs off the streets. We need 21st century laws to tackle 21st century criminals. That means everything: more gardaí on the streets, more resources and, yes, special courts that protect jurors and those giving evidence against these dangerous gangs.
Our approach to all of this has been to improve the legislation. For the past three years, we have called for a review of the criminal justice system to ensure the Garda and the courts have all the powers they need to take on organised crime. It is welcome that the Minister, Deputy McEntee, has started that review. The renewal of the Offences against the State Acts will pass through the Oireachtas this week and Sinn Féin will not oppose that. It is to be hoped that by this time next year, the review team will have brought forward its proposals for improvement and the Government will have legislated for that. We want to work with the Government to bring about necessary change and, crucially, improvement. We can improve on what is there. That is the job of legislators. I do not see how laws crafted in the 1940s can possibly be fit for purpose in the 21st century. In that regard, I point to the shocking cyberattack carried out on the HSE last year. I do not see how having an aspect of the crime-fighting legislation subject to annual review is a good thing either. I support all the courts but a fundamental question is whether we can improve upon them. I believe we can. Can we improve the current legislation? I believe we can do that, too. For example, in its submission to the review, Sinn Féin argued for improved protection for juries, including a new offence of jury tampering, and an end to the annual renewal, which would bring certainty to the process. Decisions in respect of the types of offences being tried within particular courts should be centred within the courts system, be they jury trials, anonymised jury trials or, in exceptional circumstances, non-jury trials. All present want the same thing, namely, safer and vibrant communities. Our job as legislators is to put the tools in the hands of the Garda and the courts to make sure that happens.
I will not repeat much of what has already been stated. There is a lot in the Acts in question but I will focus on the Special Criminal Court. There is much talk, nationally and internationally, about how we need to protect European values and democracy. If we are serious about protecting and defending democracy, we must scrap the Special Criminal Court. The cornerstone of any democracy lies in its justice system and the cornerstone of such a justice system is the right to a fair trial by a jury of one's peers. The Irish Council for Civil Liberties is one of many organisations to have called for the abolition of the Special Criminal Court. It highlighted many concerns, such as the lack of a jury, the judge serving as both judge and jury, the extensive powers of the Director of Public Prosecutions, DPP, and the claims of privilege by members of the Garda. I do not believe we need two criminal justice systems. For example, if jury intimidation is widespread, there are better ways to address that. The Irish Human Rights and Equality Commission has concerns and wants rid of the Special Criminal Court.
My colleague, Senator Ruane, has spoken passionately in the House in respect of rehabilitation. In many cases, punishment is not the answer. I agree with her in respect of helping people re-integrate back into society. Members must remember that Senator Ruane and I come from two communities that are very different from those of most people in the Houses. We have seen these issues on the ground. Unfortunately, the justice system only works for the few, not for the many. In the context of the justice system, it all depends on the community from which you come.
Many people I know from the Traveller community are judged based on the fact that they are from the Traveller community, not on the crime that was committed. Travellers in Ireland make up 1% of the population and yet we make up 10% of the prison population. Traveller women make up at least 15% of all women in prison. In Ireland people from minority groups and indigenous communities are over-represented in prison and we see that all over the world. The 1963 report of the Commission on Itinerancy spoke of our Traveller way of life and way of making a living as a problem within Irish society. For some people, there is no justice in the justice system. We see all over the world the rise of oppressive governments. One of my biggest fears moving forward is about future governments, which could have the power in their hands that would work to their advantage. We need to be very careful moving forward around the Special Criminal Court and how it can impact and oppress people within our society, and be mindful of future governments.
I thank the contributors for their comments. In regard to Senator Gallagher's question on what happens once the review is provided to the Minister, the Minister will consider that review, have a look at the recommendations and any timeline thereafter will depend on the extent of any recommendations made and whether legislation, for example, may be required. I will endeavour to get a timeline for Senator Gallagher.
In regard to Senator Ward's contribution, I agree absolutely on the importance of the jury in the criminal trial system. What we are doing here is necessary in the circumstances to deal with the threat from serious criminal gangs and terrorists, but it is no more than what is necessary in that respect. I hear Senator Martin's concerns in regard to needing evidence and the concern about rubber stamping. The reports have been laid before the Houses. This comes before both Houses for consideration. I am here in this House and the Minister, Deputy McEntee, is in the Dáil. There is no greater place than these Houses for giving that in-depth consideration and being able to look at the matters. Mr. Justice Michael Peart is doing an in-depth review which will look at the current threats, the duty to deliver a fair and effective criminal justice system and our obligations under the Constitution and the ECHR. We will see what Mr. Justice Peart comes back with in regard to his review.
Senator Ó Donnghaile pointed out that Sinn Féin will not oppose the motion. In regard to the tools, neither myself nor the Minister, Deputy McEntee, have been found wanting in terms of passing significant legislation in regard to strengthening the hands of the gardaí and our criminal justice system in the two years we have been here, and in terms of the amount of legislation we are bringing forward. In the budget in October, funding was put in place for an additional 800 gardaí and an additional 400 civilian staff for An Garda Síochána that would free up gardaí from administrative duties and put them on the front line. We are giving very strong tools to An Garda Síochána to deal with the threat. However, what we are doing here is, and remains, necessary and proportionate.
In regard to Senator Flynn’s call for the abolition of the non-jury courts, again I would say that what we are doing is necessary and proportionate. We face a very serious threat from criminal gangs and terrorists, both domestic and international. It is only for those most serious situations that we have the non-jury courts. I agree that rehabilitation is absolutely critical. Our new justice strategy has provided significant additional funding, more than 33%, into youth justice funding to redirect young people who are at risk of, or who are, coming into contact with the criminal justice system. That proves that we very much believe in rehabilitation. However, when dealing with very serious criminal gangs and terrorist organisations which do not believe in the justice system and want to undermine it through threats and intimidation of jurors and witnesses, we say this is necessary for those very special and rare occasions and that it is both necessary and proportionate.
I am grateful to the House for its consideration of these important motions. I thank all the Senators for their contributions, particularly those who supported the motions. As I said, terrorist groups remain a threat to the people on this island. They are opposed to the benefits that have flowed from the peace process and are determined to undermine it. The State must retain in its laws the capacity to defeat them and we have a duty as legislators to ensure that this is so. Likewise the renewal of section 8 of the 2009 Act is an important contribution to the overall framework of measures in tackling organised crime. We are all too well aware of the appalling damage caused by organised crime, in particular the damage caused by the drug trade, on individuals, families and communities. By renewing these important provisions this House is sending a message loud and clear that this State will not tolerate the activities of terrorists and organised crime groups and is committed in its resolve to see them defeated.
