Offences against the State (Amendment) Act 1998 and Criminal Justice (Amendment) Act 2009: Motions

29 June 2020

Ivana Bacik

I welcome the Minister to the House and to join others in congratulating her on her recent appointment and on her great work in her previous role. I am glad to see four great women nominated as Ministers but I am sorry there are not more women in Cabinet. In this incoming Seanad, 40% of Senators are women and that is a notable high, which I am glad to see. Many of us will keep pressing for greater participation of women in politics and greater recognition in Cabinet because we still have very poor overall numbers of women who have served in Cabinet.

Like many colleagues, I have spoken on various occasions in previous years in debates on these renewal motions. I am pretty sure we have never debated the renewal motion so close to the deadline. We are four hours away from the time at which the provisions will cease to be in operation, to use the words in both Acts, so we are treading very close to the deadline. I very much welcomed the proposal by the Minister's predecessor for a comprehensive review of security provisions and of these motions. That is very timely. Like Senator Ward, I have an attachment to the principle of jury trial, as do must people who have practised criminal law or know something about it. Indeed, I practised in the Special Criminal Court so I know the way it operates. It should be an exception and it is an exception in our constitutional system. Under Article 38.3.1°, it is an exception to the due process guarantee in Article 38.1, because special courts under the Constitution may be established by law in cases where the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. We would do well to remember that when we debate these motions every year and when the review is undertaken.

I want to address a point that Senator Higgins has made, and that both my colleague in the Dáil, Deputy Sean Sherlock, and I made when we debated these motions last year. This and one other point need to be highlighted in the welcome review that is to be undertaken. The first point relates to circumstances where special courts are being established and non-jury trials are being retained in respect of certain offences, through the renewal of the provisions such as those we are debating where such offences are scheduled offences under these Acts.. In such circumstances, the inadequacy of the ordinary jury courts to determine justice must be determined in accordance with law. This time last year, Deputy Sherlock tabled amendments in the other House seeking to copperfasten that requirement to ensure that more information would be provided to us as legislators each year in the annual report as to why the Government says that the ordinary courts were inadequate to administer justice. We get these reports every year. I read them again this year. The reports disclose very little information. They disclose basic numbers, which the Minister outlined, as to the number of times each year various provisions have been used. For example, section 2, the inference-drawing section, was used on 11 occasions in the past 12 months. Section 7 was used 20 times. However, a number of provisions were not used at all in the past 12 months, namely, sections 4, 6, 8, 12 and 17. I recall that last year, a number of those sections had not been used in the previous 12 months, either, namely, sections 6, 8, 12 and 17. That is in respect of the Offences against the State (Amendment) Act 1998

. In respect of the Criminal Justice (Amendment) Act 2009, we see a similar pattern. As the Minister stated, there were 72 arrests in the past 12 months for offences under this Act but some provisions were not used at all, notably section 71A, which provides for the offence of directing the activities of a criminal organisation. Patterns of usage and non-usage are disclosed in the reports but there is little substantive information as to why the Government says the ordinary courts are inadequate to secure the administration of justice. That specific point was the subject of our amendment, where we sought last year to obtain further information on this from the Government.

The previous Minister, Deputy Flanagan, rejected that amendment, saying that Members would engage in their own research, consideration and knowledge, which will form their views as to the operation of normal courts and their capacity to administer justice. The amendment was lost. The difficulty with the previous Minister's response is that we, as Oireachtas Members, must inform ourselves on points when we are debating these motions every year and it can be countered that much of the information which would be useful to us is primarily within the domain of the Government, and not within the domain of us as legislators. There are alternative ways of going about this. In the case of the financial emergency measures in the public interest legislation, for example, there is a requirement for the laying of certain financial information before legislators when we are making decisions on renewal. That point about the basis on which the Government seeks to bring offences before non-jury courts is one I would like to see taken on board in a comprehensive review.

The second point also relates to the information contained in the reports we get each year, specifically information about patterns of usage and non-usage. I have already pointed out that some provisions are typically not used over the previous 12 months. If one looks back over different years, one sees that certain provisions are almost never relied upon by prosecutors while others very frequently are. Legislators and whoever is conducting the review should be looking at these patterns to see whether the retention of certain provisions enforced for periods longer than one year should be considered. Conversely, where there is a clear pattern of non-usage of a provision over a number of years, the repeal of such provisions should be considered. These provisions are sunset clauses, in effect, but it raises the question of how useful such clauses are if there is very little substantive scrutiny each year. Perhaps we should be looking instead at a more considered approach to the specific provisions under review.

Having said that, I am very glad that a review is promised. That is very important. The review should consider the nature of the renewal procedure and, in particular, the sort of information legislators should have if we are to continue having these sorts of sunset clauses in place. It should also consider the taking of more decisive action in respect of specific provisions where patterns of usage and non-usage are disclosed. The Labour Party group will not be opposing these motions but we very much welcome the review and we very much want to ensure there is substantial scrutiny of these provisions, particularly in the light of the importance of the principle of jury trial. The Irish Council for Civil Liberties and many other human rights bodies have made very robust calls for the abolition of the Special Criminal Court, or for its less frequent usage. That also needs to be borne in mind in any review.

Lastly, I refer to Senator Ward's comments regarding a personalised attack on the Judiciary. I agree with the Senator that it is never appropriate for Members of the Oireachtas to make personalised attacks on judges. It is one thing to criticise a judgment or the outcome of a court case but it is quite another to make personalised attacks on judges. That is not appropriate in a democracy. I again congratulate the Minister on her appointment.