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7 October 2014

A Chathaoirligh, Senators

I am very pleased to have this opportunity to initiate the Criminal Justice (Terrorist Offences) (Amendment) Bill in this House, of which I am a former member. It is a very significant, timely piece of legislation. The Bill has two main objectives. Firstly, to amend the Criminal Justice (Terrorist Offences) (Amendment) Act 2005 in order to give effect to Council Framework Decision 2008/919/JHA which amended Council Framework Decision 2002/475/JHA on combating terrorism. The Framework Decision is covered by the Lisbon Treaty and as such must be transposed into Irish law by 1 December next. Secondly, the Bill will allow Ireland to ratify the Council of Europe Convention on the Prevention of Terrorism in due course.

The Bill creates three new offences in relation to terrorist activity which are covered by the amending Framework Decision and also the Council of Europe Convention, to which Ireland is already a signatory. The three new offences are:
1. Public provocation to commit a terrorist offence;
2. Recruitment for terrorism; and
3. Training for terrorism.

This Bill shows the Government’s commitment to combat terrorism, in all its guises. The scourge of terrorism is unfortunately more evident in the world than ever and I am sure that Senators will appreciate the importance of tackling it at source so as to be able to deal, when necessary, with incitement, recruitment and training for terrorist activities.

This legislation will enable Ireland to further fulfil our international commitments in the area of counter-terrorism and to stand united with our European colleagues, and indeed democratic nations across the globe, in combating terrorist crimes and protecting innocent citizens everywhere. Those who would threaten the lives of ordinary people by engaging in acts of terrorism, whether on this island or elsewhere, must be brought to justice and know that the international community will not tolerate their activity and will take all possible action to prevent and punish it.

This legislation is being introduced at a time when international terrorism is, unfortunately, very much to the fore. It builds on an existing body of Irish legislation that is aimed at combating terrorist activity and ensures that there are no gaps in our laws by dealing with the more subtle and indirect aspects of modern terrorism. Existing legislation, such as the Offences Against the State Acts and the Criminal Justice (Terrorist Offences) Act 2005, the latter which this Bill updates, contain offence provisions which cover a broad range of terrorist activities and terrorist-related activities. The 2005 Act incriminates terrorist offences as a separate category of crime and contains lists of offences which, with the requisite intent, would constitute terrorist offences. Penalties for such offences are severe and, if sufficiently serious, include life imprisonment.

Terrorism is a constant threat to the fundamental values of freedom, democracy and the rule of law. There is considerable concern across Europe and elsewhere at the phenomenon of individuals travelling to conflict areas in the Middle East and the consequential threat posed to national security. The compilation of accurate statistics in relation to the numbers of actual foreign fighters is problematic due to the secretive nature of those travelling and the many and circuitous routes some individuals take in reaching their destination of choice.

There has been widespread reporting on this matter in the media, both in Ireland and abroad. An American television news network has, for instance, stated that Ireland has one of the highest per capita numbers of foreign fighters in the world: 30, from a Muslim population of around 50,000. These reports are not entirely accurate.

It should be pointed out that the collation of these numbers began in or around the time of the onset of the Arab Spring and within that number are individuals who travelled to Libya and other Arab States to take part in the popular uprisings there. Within that number are some who travelled for humanitarian reasons. Also, some of these are known to have returned and there have been three known fatalities amongst that number. Accordingly, it would not be appropriate to say that 30 Irish citizens are aligned with IS or other groups similar in nature, such as Al Qaida.

The phenomenon of individuals travelling from all over Europe to the fighting has affected the majority of European States and is one to which Ireland gave priority during the Irish Presidency of the Council of the European Union in 2013. In that connection Ireland was successful in gaining the agreement of the Member States to carry out a review of the EU Strategy for Countering Radicalisation and Recruitment to Terrorism.

A primary point of focus in this review was the foreign fighter issue and a number of initiatives at EU level have been developed to combat this phenomenon, including community relations initiatives, media campaigns, enhanced tracking of movements, engagement with third countries - notably Turkey - and engagement with internet service providers to curb radical online content.

It is widely accepted that this problem cannot be resolved by security-related measures alone and that a key element in addressing it is a programme of pro-active engagement with the communities most affected. Meaningful engagement with communities is an essential part of this process in order to avoid any sense of profiling or the stigmatising of sectors of the population. The protection of fundamental rights and recognition from the outset that the majority of people wish to go about their daily lives in peace, and to play a productive part in society, is enshrined within that engagement. The Garda Síochána, through its Racial, Inter-cultural and Diversity office, operates a policy of continuous engagement with communities deemed at risk.

Finally, while the threat level to Ireland from international terrorism is considered low, we must remain vigilant, particularly where the possibility of lone wolf type actions witnessed elsewhere in Europe is concerned. The random and unpredictable nature of such attacks makes them a particular matter for concern.

It is very important, therefore, that we have all the relevant tools at our disposal to deal with terrorist threats, in all their forms and at all stages, including incitement and other preparatory activities. By criminalising the terrorist-linked activities of provocation, recruitment and training, this legislation further strengthens our hand in this regard.

I would now like to focus and elaborate on the three main elements of the Bill – the three new offences that it creates.

Firstly, the Bill provides that the offence of “public provocation to commit a terrorist offence” is committed when a person distributes or otherwise makes available by whatever means of communication, a message to the public, with the intention of encouraging, directly or indirectly, the commission of a terrorist activity. A person who is convicted of the offence is liable on summary conviction to a class A fine - that is, up to €5,000 - or imprisonment for up to 1 year, or both; and on conviction on indictment to a fine or imprisonment for up to 10 years, or both.

Secondly, a person is guilty of the offence of “recruitment for terrorism” if they recruit or attempt to recruit another person to engage in terrorist activity or other offences contained in section 6 of the Offences Against the State Act 1998, section 21 or 21A of the Offences Against the State Act 1939, or section 3 of the Criminal Law Act 1976. A person convicted of this offence is liable on conviction on indictment to a fine or imprisonment for up to 10 years, or both.

Finally, the offence of “training for terrorism” is committed where a person provides instruction or training in the skills of making or using firearms or explosives, nuclear material, biological, chemical or prohibited weapons or other such weapons or noxious or hazardous substances, as the Minister may prescribe, knowing that the skills provided are intended to be used for the purpose of terrorist activity. The offence also covers training in techniques or methods for use in terrorist activity. A person convicted of this offence is liable on conviction on indictment to a fine or imprisonment for up to 10 years, or both.

I now propose to outline, in a little more detail, the contents of the Bill before us, which contains 12 sections and two schedules which append the aforementioned amending Council Framework Decision and Council of Europe Convention.

Section 1 simply clarifies that references to the Principal Act relate to the Criminal Justice (Terrorist Offences) Act 2005 which is being amended here.

Section 2 is a standard provision allowing for the making of Ministerial regulations. It amends the 2005 Act by inserting a new section 3A into that Act. The power to make regulations is required, for example, in order that the Minister may, if deemed necessary, introduce regulations adding to the list of weapons and techniques or methods covered by the training offence in section 6.

Section 3 amends section 4 of the 2005 Act by
(a) substituting the definition of “Framework Decision” in the Principal Act with a new definition that includes reference to the 2008 Framework Decision. For ease of reference, the text of both Framework Decisions will be appended to the Act;
(b) substituting the definition of “terrorist-linked activity” with a new definition that includes the three new offences being covered by the Bill;
(c) inserting definitions of the “Prevention of Terrorism Convention” and the three new offences;
(d) designating section 4 of the Act as it stands as subsection (1) of section 4;
(e) adding two new subsections, (2) and (3). Subsection (2) provides that a terrorist-linked activity may be committed wholly or partially by electronic means, such as over the Internet. This provision was specifically made following consultation with the Office of the Director of Public Prosecutions and reflects the use, or perhaps more accurately, misuse, of modern technology in the context of terrorist activity. Subsection (3) provides that a terrorist-linked activity may occur even if an offence of terrorist activity under section 6(1)(a) of the Principal Act has not actually been committed. This provision is in line with the amending Framework Decision and the Council of Europe Convention and is necessary in order to ensure that a person can be prosecuted for any of the three new offences where no terrorist activity actually took place on foot of provocation, recruitment or training.

Section 4 creates the new offence of “public provocation to commit a terrorist offence” that I described in my introduction to the Bill.

Section 5 provides for the new offence of “recruitment for terrorism” which I also outlined earlier.

Section 6 creates the new offence of “training for terrorism” which I also mentioned in my introduction. This section provides for the making of Ministerial regulations, if considered necessary, to add to the list of weapons or substances already prescribed in the section and also to cover other possible techniques or methods that could be used for the purpose of committing a terrorist activity. Before making such regulations the Minister is obliged to consult with the Commissioner of the Garda Síochána, the Minister for Defence and such other Minister of the Government as the Minister considers appropriate, having regard to the weapons, substances, techniques or methods concerned. The section also sets out the issues to which the Minister is to have regard when making the regulations. It also clarifies the meanings of certain terms used in the section.

Section 7 amends section 6(1)(a)(ii) of the Principal Act to provide that it is an offence to attempt to commit the offences of “recruitment” and “training” but not the “public provocation” offence. This is in line with the amending Framework Decision and the Council of Europe Convention and reflects the fact that the offence of “public provocation”, as defined, or elements of it, is more conceptually difficult to “attempt”. Furthermore, the notion of intent is already covered in the public provocation offence as framed.

Section 8 sets out the fines and penalties that the three new offences will attract and it amends section 7(1) of the Principal Act to include a new paragraph (e) to provide for this. The penalty for the public provocation offence on summary conviction is a class A fine or up to 12 months in prison or both, while a fine or imprisonment for up to 10 years may be imposed on conviction on indictment. The penalty on conviction on indictment for both the training and recruitment offences is a fine or imprisonment for up to 10 years.

Section 9 relates to evidence of Irish citizenship in the context of legal proceedings relating to an offence and amends section 44(2) of the Principal Act by providing that it is an officer of the Minister for Foreign Affairs and Trade rather than an officer of that Department who certifies that a passport was issued and that it is an officer of the Minister for Justice and Equality who certifies that the person has not ceased to be an Irish citizen. This is a relatively minor, technical amendment which properly reflects the administrative and functional roles of the two Departments concerned in relation to citizenship.

Section 10 inserts the amending Framework Decision on combating terrorism and the Council of Europe Convention on the Prevention of Terrorism into the Principal Act.

Section 11 amends Part 1 of Schedule 2 to the Principal Act. Part 1 of Schedule 2 lists the offences for the purpose of the definition of terrorist activity. Paragraph (a) provides for the insertion of a new paragraph 7A to add any offence under section 2 of the Maritime Security Act 2004 to the list of terrorist activity. These offences relate to ships and fixed platforms. The amendment at paragraph (b) adds offences under section 2 of the Biological Weapons Act 2011 which relate to the development or use of biological weapons for a hostile purpose. The amendment at paragraph (c) adds the offence of financing of terrorism under section 13 of the Principal Act. This latter amendment is required to meet the Convention of the Prevention of Terrorism requirement that offences under the International Convention for the Suppression of the Financing of Terrorism, which has been ratified by Ireland, are included in the definition of “terrorist activity”.

The final section of the Bill, section 12, is a standard provision providing for the short title, collective citation and commencement of the legislation.

I am pleased, therefore, to commend the Bill to the House.