20 August 1998 Edition
Repressive laws to be rushed through Leinster House
A raft of draconian legal measures was announced by the Irish government on Wednesday after a Cabinet meeting called in the wake of the Omagh bombing. Major changes include fundamental restrictions on the right to silence.
The Dáil and Seanad are to be recalled in two weeks and the government will put before them a Bill to amend the Offences Against the State Acts (OASA).
The amending legislation will ``allow inferences to be drawn from the failure of a person to answer relevant questions, which inferences would be capable of corroborating other evidence including the opinion of a Chief Superintendent that a person is a member of an unlawful organisation''.
Already under the OASA a person can be convicted of membership of an illegal organisation on the basis of the word of a senior garda but the courts since the mid-70s have required corroborating evidence. This new proposal would effectively mean that a person exercising his or her right to silence would be providing the necessary corroborating evidence.
The new laws will impose further restrictions on the right to silence for people charged under the OASA or for an offence carrying a maximum period of imprisonment of at least five years. The proposed restrictions would allow a court to ``draw inferences'' where an accused person ``fails to mention particular facts to the Gardai during questioning or on being charged, which he/she subsequently relies upon in his/her defence''.
The right to silence is hit again with the creation of a new offence of ``withholding information'' on an offence under the OASA.
Offences similar to those introduced in the late 1980s by the British government are to be created including ``directing'' an unlawful organisation, possession of items ``for purposes connected with specified firearms or explosives offences'', and unlawfully ``collecting information''.
Under the present OASA gardai can hold people for questioning for a maximum of 48 hours. This is now to be extended to 96 hours - four days. Bail restrictions are also to be invoked.
While the political circumstances are very different the rush to bring in these measures is reminiscent of the drastic measures introduced by the Irish government under the OASA in 1972 and the British government in 1974, both of which resulted in numerous miscarriages of justice. None of these laws made any contribution to the resolution of conflict but only served to fuel it.
Legal repression a threat to everyone's freedom
Annual PJ McGrory Lecture
In light of the repressive legal moves threatened by the Dublin and British governments, the annual PJ McGrory lecture given by West Belfast solicitor Bara McGrory at the West Belfast Festival may serve as reminder of the potential for abuse that such legislation holds.
Quoting directly from the Good Friday document, Bara McGrory said, ``jurisdiction shall be exercised with rigorous impartiality on behalf of all the people...founded on the principles of full respect for, and equality of, civil, political, social and cultural rights [and] freedom from discrimination''.
McGrory said ``if these words mean anything and if they are given true expression within the new institutions and structures, they have the power to transform this part of Ireland.''
He continued, ``Although partitionist in nature, for the first time this century there is the basis for meaningful administration on a 32 county basis. And for the first time within British law there is a mechanisim to end partition.''
Outside the political situation and expressing his own desire for an eventual political re-unification, McGrory turned to the sections on Rights, Safeguards, Equality of Opportunity and Policing and Justice, and rhetorically asked what the document offered now.
He said, ``the criminal justice system is a benchmark on which the issues of equality, fairness and inclusiveness that the `agreement' demands can be judged. The current structure of the criminal justice system utterly fails the standards which are required if the agreement is to work''. He said not only was it used by the British government in the form of the Emergency legislation and other oppressive measure as a tool to ``ignore the political reality of a significant minority'' but that it was ``fundamentally flawed and in need of radical change to undo the damage'' it had caused. The scale of this change he said was, ``far beyond anything envisaged by some of the documents' signatories.''
McGrory emphasised that ``nowhere in the document is there a recognition of the wholescale distortion and corruption of our justice system by 76 years of uninterrupted Emergency legislation.''
He spoke of the Special Powers Act of 1922 that was the ``envy of the South African Justice Minster at the height of apartheid, such that he would swap all of the Coercion Acts for just one clause of the SPA.'' And its subsequent replacement with Emergency Provisions and the Prevention of Terrorism Acts of 1973 and 1974 that had led to -
Non-jury, Diplock courts
Entry and search of homes without a warrant
7 day detention, unrecorded and unsupervised interrogation
Denial of access to lawyers
New offences, eg collection of information
Shifting of the burden of evidence to the accused in possession cases
Powers to compel for `financial investigators'
McGrory said, ``never has there been a time when such powers were not part of everyday life'', the searching of a whole street when one house was being investigated or the stopping of an individual 24 times in two weeks. ``This,'' he said, ``is normality.''
``A government that has such powers and keeps them on the statute book for 76 years is sending out a message to its judiciary and police force. It suggests that certain behaviour is acceptable, in a way that would not be acceptable in any other situation; where results are the goal and the ill-treatment of suspects is not only tolerated but expected.''
The undermining of the role of defence lawyers and their stigmatisation was McGrory's next thread. He spoke of the 327 complaints by 63 lawyers between 1989 and 1997, the recent UN report issued by the UN rapporteur and the killing of solicitor Pat Finucane after the disgraceful comments by British Minister Douglas Hogg. He said, ``Hogg reflected an attitude taken from his civil service and security' advisors.''
McGrory emphasised that, ``there are people in high places that regard legal representaion as a threat to their function and this mindset is a direct result of and actively encouraged by the legal structure that has now been in place for 25 years.''
He said, ``like the RUC, the mindset and attitudes of the judiciary are shaped by legal framework in which they operate,'' one based on Castlereagh confessions and where the courts work against the accused. He added that ``a system based on the assumption that the RUC will tell the truth'' is compromised by witholding independent monitoring of their behaviour.
McGrory said, ``laws can easily be changed but mindsets cannot. The review of the Criminal Justice system must undo the damage of so many years of Emergency legislation.'' He suggested the removal of the RUC from conducting prosecutions at an early stage, a more open system of appointments, and said ``for too long those who have held and still hold positions of power and influence have ignored and marginalised nationalists.''
Concluding, McGrory said, ``But if these words [the document] mean anything, they mean we can no longer be ignored.''
In the ensuing debate, speakers emphasised that Dublin still had many draconian and unjust pieces of legislation on its statute books and had frequently used them to persecute republicans. Some stressed the need to action ``sooner rather than later'' and one Englishman said, ``Blair is not to be trusted, the British government has too many uses for PTA legislation. Even if it goes it may well be back in a different guise.''