Offences Against the State Act: Is it still needed?

The Act has been deployed against the IRA at various times in the past but that threat no longer exists

On December 17th, 1939 the self-styled government of the Republic of Ireland announced it had taken over Dáil Éireann and the IRA. This government consisted of the seven surviving members of the Second Dáil of 1921 who had refused to recognise the State.

They included the extremist Mary MacSwiney, sister of Terence MacSwiney who had died on hunger strike in Brixton Gaol in 1920, and George Plunkett, father of the Proclamation signatory Joseph Mary Plunkett, who had been executed in 1916.

They had both lost their Dáil seats in the 1927 general election. Plunkett twice lost his deposit in subsequent elections.

A month later the IRA, acting on the instructions of this “government”, declared war on behalf of the Irish people, who were never consulted about it.


It was these two acts that prompted the real government, led by Éamon de Valera, to introduce the Offences Against the State Act in May 1939.

The IRA may have been playing at being a sovereign army, but it was in deadly earnest. In January 1939 it launched Operation Sabotage, which involved more than 300 attacks in Britain. Power plants, Tube tunnels and railway stations were targeted, culminating in the deaths of five people on August 25th, 1939, when bombs went off in Coventry, just a week before the start of the second World War.

The original Offences Against the State Act was targeted against “unlawful associations and organisations”, the then minister for justice Patrick Ruttledge explained, meaning the IRA, which had attempted to usurp the authority of the State. The Act allowed for internment without trial and hundreds of IRA prisoners were incarcerated during the second World War.

Part V of the Act allowed for the establishment of the Special Criminal Court, which were juryless courts designed to ensure there would be no intimidation of jury members nor sympathetic judges in relation to the actions of the IRA. The Special Criminal Court remained in place until 1946 and handed down many sentences, including death sentences, to IRA prisoners.

Predictably, republicans hated the Special Criminal Court. Speaking in the Dáil in 1946 the minister for justice Gerald Boland said it was accurate to call it a “terror court – that is exactly what it was. It was a terror court, a court set up to meet terror in a drastic and summary manner in order to save this nation from the perils which threatened it at the time.”

Much of the emergency legislation introduced during the second World War was stood down afterwards along with the Special Criminal Court, but the Offences Against the State Act remained in place.

It was used during the IRA’s Border campaign of 1957 to 1962 to again intern hundreds of IRA men. The Special Criminal Court was reestablished for a short period between 1961 and 1962 and ended when the IRA campaign finished.

The outbreak of the Troubles in 1969 saw the Offences Against the State Act being once again deployed against the IRA. Again it was a Fianna Fáil government that reestablished the Special Criminal Court, this time in 1972, and allowed for the jailing of IRA suspects on the word of a Garda Superintendent.

The Offences against the State (Amendment) Act was introduced in 1998 following the Omagh bomb. This Act created certain new offences; it curtailed the right to silence and extended the period of time during which a suspect could be detained from 48 hours to 72 hours. It also made it a crime to be involved in “directing an unlawful organisation”.

The Offences Against the State Act was specifically set up to deal with republican subversives though Part V is now used successfully to deal with gangland crime too. The Criminal Justice (Amendment) Act 2009 allows for gangland crime cases to be tried in the Special Criminal Court.

The Act has been renewed every year since its inception although there is little in the way of a threat to the State any more from dissident IRA groups. There is no appetite politically to get rid of the Special Criminal Court in relation to gangland crime.

There has been a debate for many years about whether the Offences Against the State Act is needed any more. The long-awaited review by retired Appeal Court judge Mr Justice Michael Peart has recommended its abolition.

However, the review also suggests that the Special Criminal Court should remain in place on a permanent statutory footing using new legislation.