Diarmuid Breatnach

(Reading time: 7 mins.)

On June 24^th, as the repressive Offences Against the State Act was up for debate in the Dáil, it was voted for renewal by TDs of the Fianna Fáil, Fine Gael and Green parties, along with Labour, while only a Solidarity/People Before Profit and two Independent TDs voted against. For the first time since Sinn Féin had TDs present in the Dáil in 1997, they abstained in the vote. They failed to vote against an undemocratic Act that was brought into being precisely to repress their own political ancestors.

          The Offences Against the State Act was made law by the De Valera Government (Fianna Fáil) in 1939 and 1940 to nullify the writ of habeas corpus served by Seán McBride (Irish Republican, former IRA officer and later one of the founders of Amnesty International) which gained the release of IRA prisoners interned without trial under the previous Emergency Powers Act 1939. The Act established the Special Criminal Court which processed the rearrested internees and sent them back to prison and concentration camp in the Curragh.

BRITISH INTELLIGENCE FATAL BOMBING HELPED TOUGHEN LAW AGAINST REPUBLICANS

          In 1972 the Fianna Fáil Government sought to strengthen the Act even further, among other attacks on civil liberties to permit an inference of guilt by the Special Criminal Court from refusal to answer questions by the Gardaí, along with the taking of a senior Garda officer’s word, unsupported by any substantial evidence, as the main “proof” of membership of an illegal organisation. However, the forecast looked bad for the Government since the Labour Party and Fine Gael were predicted to vote the Amendment down. During the debate, two bombs exploded in Dublin killing two Dublin public transport workers and injuring a number of others, some horrifically (two years later a similar bombing team was to kill 33 and injure around 260 in Dublin and Monaghan). The 1972 explosions, most likely the work of Loyalists working with British Intelligence, were blamed on the IRA and the opposition to the Amendment crumbled, ensuring it passed into law — and there it has remained.

The Act empowers the Government to bring internment without trial into force by order (i.e without debate, even if the Government should be a minority one). Among its powers the OAS permits the State to ban organisations and subsequently (with its 1972 Amendment) jail people for membership of said organisation, the unsupported testimony of a Garda not below the rank of Chief Superintendent being considered prima facie evidence of said membership.

In a state where trials of all indictable offences under criminal law are by jury with a judge presiding, the Special Criminal Court is a non-jury court. Virtually all Irish Republicans serving time in prisons of the State have been convicted in the SCC, where even the unsupported word of a senior Garda officer is considered important proof and the standard of additional evidence required is very low. As one might expect in such conditions, the conviction rate is unusually high. On the charge of “membership of an illegal organisation” and largely on the word of senior Garda officer, conviction is almost certain and becomes an easy way to remove Irish Republican activists from circulation for the standard two years.

“GREATEST MISCARRIAGE OF JUSTICE IN THE IRISH STATE”

           In two trials in 1978, the Special Criminal Court, in what has been called “the greatest miscarriage of justice of the Irish State”, tried and sentenced three Republicans to long terms of imprisonment for a mail train robbery at Sallins in which they had played no part. The judges in the Court chose to believe what 12 jurors would likely not have done: that the defendants had voluntarily confessed to actions they had not committed, that they had not been beaten by Gardaí and that the defendants’ bruising had been self-inflicted. The Garda “Heavy Gang” went on to obtain “voluntary confessions” from others, including Joanna Hayes and her relations in the “Kerry Babies” case, later also cleared and recipients of a Government apology in 2019. Those convicted of the Sallins mail train robbery were eventually cleared and released. The circumstances of those false “voluntary confessions” accepted by the SCC have never been investigated.

In 2001 Colm Murphy was convicted in the Special Criminal Court of conspiracy to cause a bombing on the basis of Garda evidence which Murphy said was untrue — but the judges chose to believe the Gardaí. The Court of Appeal ordered a retrial when it was shown that the Gardaí’s notes had been fabricated and Murphy was cleared in the SCC in 2010.

In 2003 Michael McKevitt was convicted in the Special Court of leadership of the Real IRA on evidence widely believed not to have met the standard necessary for conviction, including that given by a paid informer. McKevitt is still serving his 20-year sentence.

Although the title of the Court includes the word “criminal” it was clearly created for political purposes and until 1998 all but one of its trials have been of Irish Republicans. That did not prevent the TDs of the Greens, a party with a record of previous opposition to the Act, using gang crime along with Labour as an excuse for voting for the Act’s renewal during the recent debate.

“THE SPECIAL BRANCH ACT”

          The granting of wide powers to the State to use against their political opponents has resulted in even those powers being regularly exceeded. Without ever even charging anyone with any crime, the Act has been used by generations of the Special Branch, the political police renamed the Special Detective Unit, to harass and intimidate Republican activists and their supporters. People have been approached and their contact details demanded by these secret police when they have attended a protest picket or rally, public meeting, visited a Republican office or were observed talking to a Republican. People have been searched in the street, had their vehicles stopped and searched also.

Sellers and distributors of Republican newspapers have been harassed and threatened. Without any authorisation even by the Act, officers have approached parents of young activists and their school or college, as well as the place of employment of older activists, to express their concern at the activity or associations of the activists concerned. Officers of the special unit, all of which go armed, have displayed their weapons on occasion to intimidate Republicans (on one famous occasion discharging their firearm in a busy shop). They have filmed and photographed Republicans without any legal right to do so, followed them around, sat obtrusively outside their offices and even their homes, often day after day for months or even years. So widely have the secret police of the Irish State come to see the Act as entitling their intimidation and file-building that when, at a recent Dublin picket about political prisoners, a Republican asked what legal authority the officer had for harassing him, the man replied in all seriousness: “Special Branch Act.”

But on the 24^th June, only three TDs voted against the Act’s renewal: Mick Barry (Solidarity/ People Before Profit), Michael MacNamara (Independent, formerly Labour) and Thomas Pringle (Independent). Two TD abstentions were recorded: Pa Daly and Martin Kenny (both Sinn Féin).

“UNTENABLE IN A DEMOCRACY”

          Traditionally, Sinn Féin, along with other Irish Republicans, have opposed this undemocratic repressive legislation. But not just SF, also the Irish Council for Civil Liberties, Amnesty International, Irish and international jurists and UN Rapporteurs and Committees on democratic rights of the United Nations. And not just once but a number of times. The following statement was released by the ICCL in the week before the debate.

23 June 2020

The Irish Council for Civil Liberties (ICCL), ahead of the mooted renewal of the Offences Against the State Act next week and the Dáil debate tomorrow, renews our call for repeal of the Act and with it the abolition of the non-jury Special Criminal Court.

There is no jury at the Special Criminal Court and it accepts secret evidence from gardaí. This is in violation of our right to a fair trial, our right to trial by jury and our right to equality before the law. ICCL has opposed both the Act and the Court since their introduction to deal with a terrorist threat in 1972. We continue to strongly oppose these emergency measures which have now become the norm in dealing with organised crime.

ICCL’s Executive Director, Liam Herrick, said:

“It’s untenable that in a democracy like ours, which prides itself on its human rights record abroad, a law and court like these can exist.

The State contends that it needs the Special in order to protect juries but it has never considered alternatives to abandoning jury trial.”

The protection of jury members is of deep concern to ICCL. But the State has never demonstrated, as required by human rights law, that alternatives to a non-jury trial are ineffective. There are a number of obvious options for protecting juries such as anonymising juries, the use of video link for juries, or granting special protections for juries.

Last year at the Special Criminal Court, Judge Tara Burns acquitted two men of IRA membership after the head of the Garda Special Detective Unit refused to disclose underlying evidence pertaining to “belief evidence” to the prosecution. This meant gardaí were seeking a conviction without disclosing evidence to the defendant’s legal team, the Court or the DPP. ICCL welcomed the Judge’s decision but the case revealed some concerning attitudes and practices at the Court.

ICCL is not alone in our opposition to the Special Criminal Court. Various UN human rights independent experts and the UN Human Rights Committee have repeatedly declared the State to be in violation of its human rights obligations because of the continued use of the Court beyond the emergency it was designed to address. Eminent Irish legal experts, Mr. Justice Hederman, Professor Dermot Walsh and Professor William Binchy have also called for abolition of the Court.

At its introduction in 1972, the Special Criminal Court was considered a radical and purely temporary departure from the norm. Forty years have passed since then. It’s time for its abolition. Statement ends.

CONCLUSION

          Defenders of Sinn Féin have said that dropping opposition to the OAS from their election program for government and even after their party won the highest number of elected TDs (delegates) in the February 2020 General Election, was purely a temporary tactical one. Presumably this decision was in response to Mícheál Martin’s statement last year that Sinn Féin was not a legitimate choice for government because they were against the Act.

Not a legitimate choice for whom? one might ask. Do the mass of working people in the country want this undemocratic Act in place? Not that they were ever asked by any Irish Government! Now there was an opportunity to put this before the electorate — but it is not the opinion of the mass of working people that Sinn Féin worries about but that of the ruling class and their media hounds.

When however the two main parties of the Irish Gombeen capitalist class went into coalition with the “alternative” Green Party in order to exclude Sinn Féin from government – and one might have thought SF had nothing now to lose by voting against the renewal of the OAS – even then they failed to oppose it. Some say SF’s tacticians expected the negotiations between the other parties to collapse and then to be able to put themselves forward as a credible alternative. But again, credible to whom?

For years now, Sinn Féin has been at pains to demonstrate that it is a safe pair of hands for Irish capitalism (which entails also being safe for foreign capitalism and British colonialism). It is not necessarily a question of supporting armed struggle or not but to enter into the administration of an invader, as SF did in 2007 when it became part of the British colony’s government, would for most patriots and anti-imperialists be considered a clear crossing of the line. After WW2 many liberated countries executed a number of those who had taken part in such administrations and from one example, a new adjective entered the English language: “quisling”.

Sinn Féin has gone even further now to show the Irish ruling classes and both states that their panoply of repression on both sides of the British Border is safe: undemocratic legislation granting special powers to the police, politicised police forces and special non-jury courts with low quality “proof” required for convictions.

It is understandable with so little viable alternative choice that so many voted for SF candidates in February and in fact, would probably have elected even more had the party fielded sufficient candidates. All the other main parties and even the Greens have been in Government previously, all have approved bank bailouts and austerity budgets.

Sinn Féin is the only major party who had not been in Government and those who wanted to see them in practice had a reasonable point. But seeing them in “opposition” is also instructive. A political party that is so afraid of the ruling class and its media that even in opposition it will not vote against undemocratic repressive legislation and instruments, that were brought in precisely against its own earlier members and supporters – is not going to be braver in government, when it will inevitably be in a coalition with a capitalist party or parties.

However, the undemocratic Offences Against the State Act and its non-jury Special Courts remain and must be opposed. The struggle against them will continue to be waged by its victims, currently the “dissident” Republicans and by people and bodies concerned with civil rights. As the State encounters increasing resistance to austerity measures it may well be that it will widen the list of targets of this Act to include social and economic campaigners, as it was rumoured considering against the Jobstown water protest defendants in 2017, all of whom were cleared by the jury who did not believe Garda witness lies (exposed by recordings).

It is essential to oppose this Act and a wider opposition to it needs to be built – one that does not depend on false friends.

End.

REFERENCES

Official record of the debate: https://www.oireachtas.ie/en/debates/vote/dail/33/2020-06-24/15/

Irish Times report: https://www.irishtimes.com/news/politics/sinn-f%C3%A9in-abstains-for-first-time-in-offences-against-state-act-renewal-vote-1.4287325

The Offences Against the State Act as on the Statute Book: http://www.irishstatutebook.ie/eli/1998/act/39/enacted/en/print.html

History and some discussion on the Offences Against the State Act: https://en.wikipedia.org/wiki/Offences_against_the_State_Acts_1939%E2%80%931998

Creation of the Act to frustrate Act of habeas corpus: https://en.wikipedia.org/wiki/Irish_Republican_Army_(1922%E2%80%931969)

Amendment 1972: http://www.irishstatutebook.ie/eli/1972/act/26/enacted/en/html

British bomb in Dublin helped ensure vote in favour of Amendment: https://en.wikipedia.org/wiki/1972_and_1973_Dublin_bombings#Keith_and_Kenneth_Littlejohn

https://www.irishtimes.com/news/british-behind-1972-dublin-attack-widow-tells-hearing-1.1296467

FURTHER INFORMATION

Find ICCL’s latest position paper on the Special Criminal Court here: https://www.iccl.ie/wp-content/uploads/2020/06/ICCL-Review-of-the-Special-Criminal-Court-2020.pdf

Comments by the Special Rapporteur on Counter-Terrorism, Fionnuala Ní Aoláin: https://www.iccl.ie/news/un-expert-criticises-special-criminal-court/

Link to the “Hederman Report”, the Report of the Committee to Review the Offences Against the State Acts 1939 -1998 and Related Matters – http://www.justice.ie/en/JELR/hederman%20report.pdf/Files/hederman%20report.pdf

Report of the Human Rights Committee criticising Ireland’s use of the SCC and calling for an end to its use from 2000:https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=A%2F55%2F40%5BVOL.I%5D(SUPP)&Lang=en

United Nations Human Rights Committee, ‘Concluding observations on the fourth periodic report of Ireland’, CCPR/C/IRL/CO/4 (19 August 2014) – http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsieXFSudRZs%2FX1ZaMqUUOS9yIqPEMRvxx26PpQFtwrk%2BhtvbJ1frkLE%2BCPVCm6lW%2BYjfrz7jxiC9GMVvGkvu2UIuUfSqikQb9KMVoAoKkgSG

Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, 26th February 2013, UN General Assembly, in which the Special Rapporteur says Ireland should aim for the end of the SCC jurisdiction https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-47-Add-3_en.pdf