The Offences against the State (Amendment) Bill 1998 is an awful piece of legislation. It is unlikely to have any significant impact on its supposed targets and it is certain to cause grave injustice to innocent people.
The first significant change proposed in this new Bill is to make it easier to convict people of being members of an illegal organisation. The Offences Against the State (Amendment) Act 1972 permitted senior Garda officers to give in evidence their opinion on whether an accused person was a member of an illegal organisation.
On the basis of this amendment, a large number of people, all of whom refused to recognise the court and failed to deny the charge, was convicted of membership of the IRA.
However, when the penalty for membership of an illegal organisation was increased in the Offences Against the State (Amendment) Act 1976 to three years, republicans started to recognise the court and deny the charge. The courts refused to convict persons accused of membership, once the charge was denied, without corroborative evidence.
Now this Bill provides that such corroborative evidence shall be a refusal to answer questions about membership of an illegal organisations while being questioned by the Garda.
This change will raise concerns about possible abuse by some gardai. In instances where the Garda wants to put someone away for membership, officers could give in evidence their opinion that the accused is a member and then testify that he or she refused to answer questions while under interrogation, whether that be true or not.
Of course this implies perjury on the part of members of the Garda Siochana. Anyone with even a passing acquaintance with how the criminal justice system works knows the Garda's record in relation to suspects held in its custody has not been an unblemished one. Of course, apprehension over this matter could be alleviated if the Bill were amended to provide that only in instances in which the Garda interrogation was video-recorded could evidence of refusal to answer questions be adduced. But that is not and will not be part of the Bill. Assurances that now, 14 years after it was first proposed, the recording of Garda interviews is to become common practice should not be believed for a moment. Section 4 of the Bill provides that evidence of membership of an illegal organisation can be the "associations" of an accused person - the Kafkaesque nightmare made real: guilt by association. Again the scope for abuse is extensive.
Section 5 further encroaches on what is known as the right to silence. It provides that if a person accused of a terrorist offence adduces in evidence facts which he/she did not mention under interrogation, then the court be entitled to draw inferences from that failure. Thus, if a person, frightened by being arrested and questioned by gardai, fails, due to nervousness and apprehension, to mention some obvious facts in their own defence, that failure may be seen as corroboration of their guilt. And of course the problem of Garda perjury arises again.
Section 7 provides that anybody found in possession of an article that could be used in connection with a terrorist offence must be able to prove that they had such article for a lawful purpose - the burden of proof radically shifted in one small legislative enactment.
Section 8 is worse. It provides that a person in possession of information that could be used for terrorist purposes must be able to prove that they had such information for a lawful purpose, otherwise they shall be confined and liable to up to 10 years' imprisonment.
Section 9 provides that a person who "knows or believes" they have information which might be of material assistance in preventing a serious offence or securing the arrest and conviction of a person for a serious offence, shall themselves be guilty of an offence unless either they inform the Garda or have a reasonable excuse for not doing so.
THIS section could have serious repercussions for journalists, who would often have information that could be of assistance in securing the conviction of persons for serious offences. Whether the courts would accept that journalists have a "reasonable" excuse for not informing the Garda is not at all clear.
Although in the common law there is the offence of "misprision of felony", which makes it an offence to fail to report a crime of which one has become aware, this is far more menacing and, again, could be the subject of widespread abuse.
It means, for instance, that spouses can be threatened if they fail to inform on their partners, or parents on their children. The abuse could arise from gardai forcing "confessions" from people through threatening to prosecute their near relatives should they fail to "co-operate".
The Bill also provides for an extension of the period of detention under the Offences Against the State Act, again providing the opportunity for widespread abuse by the Garda.
Garda brutality and misconduct is not a mere memory of 22 or 23 years ago. There is evidence of a recurrence of such brutality and of (again) official indifference to its occurrence.
In a report published last year, Amnesty International reported on three people who were arrested in connection with the shocking murder of Garda Jerry McCabe in June 1996. There were suggestions that two of these people may have sustained injuries while in Garda custody. Amnesty asked the Government to investigate this. Nothing has happened.
Amnesty also expressed concern about the apparent lack of adequate safeguards to prevent ill-treatment of people held in police custody and during interrogation.
It noted the absence of provision for the recording of such interrogations and for the presence of lawyers during interrogations. Amnesty repeated some of these concerns to the Government again in March of last year. The Department of Justice replied that it was "reviewing" these matters. Nothing has happened.
Now, in the absence of inquiries into serious evidence of Garda misconduct, in the absence of facilities for recording interviews of suspects, in the absence of a provision whereby an arrested person's lawyer can be present throughout interrogation, we are about to enact further measures which will greatly expand the scope for abuse.
And have no doubt but that this will happen. This is not because our police force is particularly bad. It is not.
It is because police forces by their nature exceed their lawful powers, partly in response to political and public pressure and partly for reasons of machismo.
Internment would be better and more honest.