The terms of the Belfast Agreement envisaged that the historic peace settlement would result in a normalisation of the criminal justice system in this State as well as in Northern Ireland, writes Dermot Walsh.
The exceptional police powers and special courts introduced by the Offences against the State legislation to combat the IRA threat would be decommissioned and the normal criminal justice process allowed to return centre stage.
However, if the majority of the committee which reviewed the legislation has its way,these fine objectives will be stillborn and the exceptional police and criminal justice measures will become the norm in this jurisdiction.
The key elements are: the draconian powers of arrest and detention under section 30; the offence of withholding of information about a criminal offence from the police; the offence of membership of an unlawful organisation; the provisions which permit guilt to be inferred from silence in the face of police questioning; and the trial of serious offences without a jury in the Special Criminal Court.
The combined effect of these measures is to create a parallel system of justice in which the rights of the individual are much more restricted that they otherwise would be in the ordinary criminal process.
The net effect is that it is much easier for the prosecution to drag individuals into and process them through the system. This constitutes a serious attack on the rights and freedoms of the individual and substantially increases the risk of miscarriages of justice.
I do not find the majority's arguments for going down this road persuasive. Their primary justification is the need to combat terrorism and organised crime.
It is not enough, however, simply to assert that the current or future threat from terrorism and organised crime requires such a fundamental realignment in our criminal justice system.
It is necessary to show that the nature and extent of the threat is such that it cannot be met by the ordinary police powers and procedures. The majority offer no such justification. Indeed, it is difficult to see how they could do otherwise given the nature and extent of the ordinary police powers already available as set out in chapter 10 of the report itself.
The majority's arguments are also seriously compromised by the fact that the draconian measures in the legislation are not confined to terrorism and organised crime. Indeed, they have a long history of being applied extensively to ordinary crime.
The majority have not managed to come up with any convincing strategy for ensuring that this does not continue to happen in the future. If their recommendations are adopted the normalisation of these exceptional measures will be virtually complete, a result which is surely contrary to the spirit of the Belfast Agreement.
There are, of course, many positive features in report. The very fact that the review was carried out at all is welcome in itself.
There has been a deplorable failure to subject our police and criminal justice system to the sort of regular, independent reviews that have been a feature of neighbouring jurisdictions. It is at least arguable that we are reaping the consequences of that failure in the current controversies afflicting the Garda Síochána.
While the committee might not be perceived as being totally independent, it nevertheless incorporated a sufficient range of expertise to subject the legislation to rigorous scrutiny. The results are clearly evident in the report.
Not only are the inherently objectionable elements in the legislation exposed, but the role of the legislation in the criminal justice system as a whole is assessed in great depth.
The bewildering array of majority and minority positions on whole range of issues is testimony to the complexity of the issues involved and the seriousness with which individual members of the Committee took their work.
Ultimately, the value of the report is the contribution that it can make to the public understanding of and debate on our criminal justice system, and the values that should underpin it for the first few decades of the twentieth first century.
It is vital, therefore, that the report is read and considered in its entirety, including majority, minority and dissenting opinions. Public confidence in the criminal justice system and the full implementation of the Belfast Agreement will be heavily influenced by decisions taken on foot of the report.
Dermot Walsh is professor of law in the University of Limerick and a member of the committee on the Offences Against the State Acts whose report was published yesterday