1 The Minister for Justice, Equality and Law Reform, Mr John O'Donoghue TD, has yesterday (31 August) published the Offences against the State (Amendment) Bill, 1998.
2 The Bill is intended to give legal effect to the series of measures announced by the Government in the wake of the bombing in Omagh.
3 The Minister said: "This Bill contains a series of harsh measures which are regrettably necessary in the fight to ensure that the will of the vast majority of people on this island is not thwarted by the murderous activities of a few." The Minister said that great care had been taken in the drafting of the measures to ensure that they struck the right balance and were proportional to the serious threat which was faced. Provision was included in the Bill for the measures to lapse at the end of the year after next unless renewed by the Oireachtas.
4 The Bill includes provisions in relation to membership of an unlawful organisation; the right to silence; the creation of new offences; increased powers of detention; unlimited fines and the forfeiture of property where that property is used for storage of firearms or explosives.
Membership of an unlawful organisation
5 The Bill provides that in any proceedings for membership of an unlawful organisation evidence is given that the accused failed during Garda questioning to answer any question material to the investigation of the offence the court may draw such inferences from the failure as appear proper. The failure (which includes the giving of wrong or misleading information) may on the basis of such inferences be treated as corroboration of any evidence in relation to the offence but a person shall not be convicted solely on an inference drawn from such a failure. In addition, the accused must be warned at the time of questioning of what the effect of such a failure might be.
6 It is also provided that in proceedings on a membership charge the accused is obliged to notify the prosecution of any witness which he or she intends to call in his or her defence against the charge (this provision mirrors provisions which are already contained in the Criminal Justice Act, 1984 relating to calling "alibi" witnesses).
7 The reference to "conduct" of an accused in the Offences against the State (Amendment) Act, 1972 is being defined to include "movements, activities, actions or associations".
The right to silence:
8 In addition to the specific change in relation to membership offences, the Bill contains a general provision in relation to inferences from silence. This will apply to
(a) an offence under the Offences against the State Acts, 1939 to 1998,
(b) a scheduled offence under the Offences against the State Act, 1939,
(c) an offence arising out of the same set of facts as an offence at (a) or (b) where the offence carries a penalty of five years' imprisonment or more.
This provision, which is based on a similar provision in the Criminal Justice (Drug Trafficking) Act, 1996, will allow a court to draw inferences where the accused relies on something in his or her defence that he or she could reasonably have been expected to mention during questioning etc and did not do so. The failure may on the basis of such inferences be treated as corroboration of any evidence in relation to the offence but a person shall not be convicted solely on an inference drawn from such a failure. In addition, the accused must be warned at the time of questioning of what the effect of such a failure might be.
New Offences
9 The Bill creates five new offences: Directing an unlawful organisation; Possession of articles for purposes connected with certain offences; Unlawful collection of information; Withholding information; and Training persons in the making or use of firearms etc.
Directing an unlawful organisation:
Provision is made for an offence of directing, at any level of the organisation's structure, the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act, 1939.
Penalty: up to life imprisonment.
Possession of articles for purposes connected with certain offences:
Provision is made for an offence of possessing articles for a purpose connected with the commission, preparation or instigation of specified firearms/ explosives offences. It will be a defence to prove that the materials were not in the person's possession for those purposes.
Penalty: fine or imprisonment up to 10 years or both.
Unlawful collection of information:
Provision is made for an offence of collecting, recording or possessing information likely to be useful to members of unlawful organisations in the commission of serious offences. A serious offence is defined as an offence punishable by imprisonment for a term of five years or more involving loss of human life, serious personal injury, false imprisonment or serious loss of or damage to property or a serious risk of any such loss, injury, imprisonment or damage. It will be a defence to prove that the information in question was not being collected for such a purpose.
Penalty: fine or imprisonment up to 10 years or both.
Withholding information:
It will be an offence for a person who has information which he or she knows or believes might be of material assistance in
(a) preventing the commission by any other person of a serious offence, or
(b) securing the apprehension, prosecution or conviction of any other person for a serious offence and fails without reasonable excuse to disclose that information as soon as practicable to a member of the Garda Siochana.
A "serious offence" is defined as for the offence of unlawful collection of information.
Penalty: fine or imprisonment for up to five years or both.
Training persons in the making or use of firearms, etc:
It will be an offence (without lawful authority or reasonable excuse) for a person to instruct or train or receive instruction or training in the making or use of firearms or explosives.
Penalty: fine or imprisonment up to 10 years or both.
Detention powers
10 At present a person arrested under section 30 of the Offences against the State Act, 1939 may be detained for up to 48 hours. The Bill provides for a court to extend this period for a further 24 hours on application by a member of the Garda Siochana where the court is satisfied that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously.
In addition, the Bill provides for the rearrest for the same offence of a person detained under section 30 and released without charge. The rearrest may take place where a judge of the District Court is satisfied on information supplied on oath by a member of the Garda Siochana that further information has come to the knowledge of the Garda about the person's participation in the offence. The maximum period of detention for a person rearrested under this provision is 24 hours.
Penalties/forfeiture
11 At present the law does not provide for the imposition of fines in relation to the major offences dealing with the possession of firearms and explosives. The Bill will allow unlimited fines to be imposed in these cases.
12 Section 61 of the Criminal Justice Act, 1994 dealing with the forfeiture of property used in connection with the commission of offences is being strengthened so that where a person is convicted of specified offences relating to the possession of firearms/explosives the court shall order the forfeiture of property unless it is satisfied that there would be a serious risk of injustice if it made the forfeiture order.
Other measures
13 The Bill also contains provisions which will mean that the new offences being created will be scheduled offences for the purposes of Offences against the State Act, 1939 (thus providing for powers of arrest etc) and the Bail Act, 1997 (thus allowing the offences to be regarded as "serious offences" when bail applications are being considered).
14 In the context of the changes proposed in the Bill in relation to the failure of a person to answer questions, an amendment is also being made to section 52 of the Offences against the State Act, 1939 which provides for an offence of failing to give specified information to the Garda. The amendment provides that this section will not have effect unless, where a demand for information is made of a person under the section, that person is informed that the demand is being made under that section and the consequences of failing to comply with that demand.