Review of Offences Against the State Acts

Clare Independent TD Michael McNamara has received confirmation of a review the Offences Against the State Acts, which he described as “black mark on the Irish justice system in their current operation.”

The Minister for Justice, Helen McEntee TD, has appointed a group of six experts chaired by Mr Justice Michael Peart, former Judge of the Court of Appeal, to examine all aspects of the legislation.

“An overhaul of the Offences Against the State Acts and the current operation of the Special Criminal Courts, which are consistently criticised by United Nations Treaty bodies and human rights bodies in Ireland, is long overdue,” stated Deputy McNamara, who received confirmation of the review following a Parliamentary Question submitted to the Justice Minister on the matter last week.

He continued, “My primary concern is that the Director of Public Prosecution (DPP) can certify that a case be tried in the Special Criminal Court and she does not have to justify that decision, removing the right to a jury trial, and such decisions cannot be challenged in the Courts.”

“The review committee, led by led by former Judge of the Supreme Court and former Attorney General, Mr Justice Hederman, set up under the Belfast Agreement, recommended that this be changed and the UN Human Rights Committee also found in 2001 that sending cases to the Special Criminal Court on the basis of a certificate from the DPP without any explanation violated the rights of the accused to a jury trial,” added Deputy McNamara.

In a response to Deputy McNamara’s PQ of 8 February, 2021, in which he asked the Minister for Justice to provide an update on the progress of the review into the operation of the Special Criminal Court and the Offenses Against the State Act 1939 promised by her predecessor, Minister McEntee said, “I can inform the Deputy that on 16 February I brought a Memorandum to Cabinet informing the Government of my proposals for the establishment of a group of experts to undertake an independent review of the Offences Against the State legislation.”

The other members of the Group, chaired by Mr Justice Peart, are –
• Dr Alan Greene, Birmingham Law School, University of Birmingham;
• Ms Anne-Marie Lawlow SC, Barrister;
• Ms Caitlín Ní Fhlaitheartaigh, former Advisory Counsel at the Office of the Attorney General;
• Professor Donncha O’Connell, School of Law, NUI Galway;
• Mr Ken O’Leary, former Deputy Secretary General at the Department of Justice.

In response to Deputy McNamara, Minister McEntee added, “The review will examine all aspects of the legislation, taking into account the current threat posed by domestic and international terrorism and organised crime. The group will commence its work by 1 March and I have requested that an interim report be provided within three months with an indication of the timescale required to complete this work.”

“I am disappointed that the Minister made such little progress before receiving my question, particularly given that her predecessor as Minister for Justice, Charlie Flanagan TD, undertook to have a review carried out before it was next before the Oireachtas for a vote on its continuation, in June 2021,” McNamara concluded.