Covid-19, Offences Against the State and ‘Sunset Clauses’

    Senator Ivana Bacik, Trinity College Dublin

The Covid-19 pandemic has generated immense heartbreak and hardship worldwide and in Ireland has caused over 1,700 deaths. It has also had enormous political and legal consequences, not least exacerbation of the lengthy political stalemate following the 8 February General Election. It has taken more than four months to form a new government. 

With the country only now emerging from lockdown after months of political uncertainty, on Monday 29^th June 2020 an urgent legislative deadline loomed, related to the trial of offences against the state and organised crime. If both Houses of the Oireachtas had not passed annual motions required under section 18 of the Offences Against the State (Amendment) Act 1998 and section 8 of the Criminal Justice (Amendment) Act 2009 by midnight on that date, certain provisions of those Acts would have ceased to be in operation. The renewal motions were debated and passed by the Dáil on Wednesday 24 June following a commitment by the Minister for Justice to conduct a comprehensive review of security legislation, in line with recommendations from the Commission on the Future of Policing in Ireland.. The motions were then passed at the first meeting of the incoming Seanad, just a few hours before the midnight deadline. 

But what would have happened if the motions had not been passed by the required deadline, either this year or in any future year? This blog considers the potential consequences of non-renewal. 

Consequences of Non-Renewal 

Article 38.3. 1° of the Constitution provides by way of exception to the due process guarantee in Article 38.1 that ‘Special courts may be established by law for the trial of offences in cases where .. the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’. The continued existence of the ‘special’ legal framework emanating under this provision from the Offences Against the State Act 1939 and governing operation of the non-jury Special Criminal Court has been criticised by human rights bodies with recent calls for abolition of that court; but instead the framework has been extended by amending legislation, notably the 1998 Act passed following the Omagh bombing. That Act created several new offences and provided additional powers to gardai. Annual parliamentary oversight applies under section 18to sections 2-4, 6-12, and sections 14 and 17. The substantive offences created are: section 6 (directing an unlawful organisation); section 7 (possession of articles for certain purposes); section 8 (‘unlawful collection of information’); section 9 (withholding information); and section 12 (training in the use of firearms and explosives). 

 

The other provisions are procedural: section 2 enables inferences to be drawn from an accused’s silence when questioned about membership of an unlawful organisation; section 3 concerns notification of witnesses; section 4 enables inferences to be drawn from certain conduct by an accused. Section 10 allows for extension of detention under section 30 of the OASA 1939; section 11 provides for re-arrest under section 30; section 14 states that the new offences are scheduled (tried before the Special Criminal Court); and section 17 provides for forfeiture of property.

Even if the section 18 motion is not renewed in any year, the Special Criminal Court would continue in operation and much of the OASA framework remain in force. Non-renewal would mean that 1998 Act offences committed before the renewal deadline could still be prosecuted; but they would cease to be scheduled and instead would be tried in the ordinary jury courts, unless referred by the DPP to the Special Criminal Court under section 46 of the OASA 1939. They would also cease to be in operation into the future but could be legislated back into existence by the Oireachtas - although not retrospectively. Thus, any relevant acts committed in the interim period following non-renewal and before passage of further legislation could not be prosecuted under the Act. Significantly, the procedural provisions used by gardai in investigating offences would no longer continue in force; so inferences could not be drawn from the silence of accused persons under questioning (section 2); nor would extension of detention and re-arrest under sections 10 and 11 be permitted. Again, these powers could be re-introduced prospectively through primary legislation.

Annual reports are laid by the Minister for Justice before the Oireachtas on the operation of the relevant provisions. The June 2020 report establishes that section 2 (inferences) was used on 11 occasions over the previous 12 months; the sections 10 and 11 powers were used nine and four times respectively and the section 7 offence 20 times, whereas sections 4, 6, 8, 12 and 17 were not used at all. A total of 35 persons are awaiting trial. Where pending proceedings are reliant on some of these provisions, non-renewal could create a potential basis for challenging the bringing of criminal proceedings or conduct of trials before the Special Criminal Court.

Non-renewal of the 2009 Act provisions would also have consequences. Section 8 provides for the scheduling of certain ‘organised crime’ offences under Part 7 of the Criminal Justice Act 2006: section 71A (directing the activities of a criminal organisation); section 72 (participating in activities of a criminal organisation); section 73 (committing an offence for a criminal organisation) and section 76 (liability for offences by a body corporate). The June 2020 report discloses that 72 arrests were made over the last year in respect of these offences. Non-renewal would mean that the offences could still be prosecuted in the ordinary courts; they would cease to be scheduled but could be sent individually by the DPP to the Special Criminal Court.

Conclusion

 

Non-renewal of the relevant provisions in any year could create legal and political difficulties and potentially impede criminal investigations and prosecutions. The uncertainty surrounding renewal also illustrates a general problem with post-enactment parliamentary oversight and sunset clause requirements. If criminal provisions are used regularly and effectively without undue encroachment on due process rights, their retention in force for periods longer than one year should be considered. Conversely, where a clear pattern of non-usage has emerged, the repeal of special provisions should be considered.  These issues should be considered in the context of the forthcoming comprehensive review. Overall, legislators should make decisions on renewal of extraordinary police and prosecution powers with due regard to constitutional rights; otherwise the special OASA framework risks becoming ‘normalised’ within the criminal justice system. 

 

 

Ivana Bacik LL.B., LL.M., B.L., F.T.C.D. has been sitting Senator for Dublin University since 2007. She has practised as a barrister before the Special Criminal Court; and as a Senator has participated in Oireachtas debates on the renewal motions discussed in this blog. 

Suggested citation: Ivana Bacik, ‘Covid-19, Offences Against the State and "Sunset Clauses’’' COVID-19 Law and Human Rights Observatory Blog (2 July 2020) http://tcdlaw.blogspot.com/2020/07/covid-19-offences-against-state-and.html

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