Laws concerning membership of illegal organisations set to lapse

A failure to renew two laws aimed at membership of illegal organisations and involvement in organised crime is unlikely to affect any cases pending before the Special Criminal Court, according to sources.

Provisions of the Offences Against the State (Amendment) Act 1998, and the Criminal Justice (Amendment) Act 2009, which have to be renewed annually if they are to remain in force, are due to lapse on June 29th next.

The fact that a new Seanad has not been fully appointed since the recent general election means that the laws may not be renewed prior to the end of the month. It that happens they would lapse until a full, new Seanad is appointed and the Oireachtas can renew the two provisions.

However, legal and courts sources said they did not think there were any cases pending before the Special Criminal Court, where the particular offences are tried, that involved the provisions that are in danger of lapsing.

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No case currently being heard before the non-jury court would be affected by a failure to renew the offences prior to the end of the month, the sources added.

Omagh bombing

The main offence affected under the 1998 Act, which was introduced in the wake of the bombing of Omagh that year, concerns inferences that may be drawn by the court from an accused’s silence when questioned about membership of an unlawful organisation.

In relation to the 2009 Act, the relevent sections have the effect of making “scheduled offences”, or offences heard in the Special Criminal Court, crimes contained in the Criminal Justice Act 2006.

These have to do with directing the activities of a criminal organisation, participating in or contributing to certain activities of a criminal organisation, and committing an offence for a criminal organisation.

Court proceedings

Labour Senator Ivana Bacik is one of a number of Senators who have taken High Court proceedings seeking a declaration that it is constitutional for the Seanad to sit and pass legislation without the 11 nominees selected by the Taoiseach which have remained unfilled since the election.

She said the most important of the provisions that may lapse is probably the one to do with the drawing of an inference from an suspect’s decision not to respond to questioning.

A lawyer who formerly practiced before the Special Criminal Court, she said that if the affected laws did lapse, legal representatives of persons brought before the court in the future might, in certain circumstances, seek to use that fact as part of their arguments in favour of their clients.

It is expected that the Special Criminal Court will operate until the end of July, then break for August, but possibly return in September, earlier than would normally be the case. The early return is part of the courts’ efforts to deal with the backlog created by the coronavirus pandemic.