Modern Anti-Terrorism Legislation
There exist three strands of antiterrorist legislation in Ireland. The first derives from subversive activity in the early years of the State. The second derives from the so-called Northern Ireland troubles and the third derives from post-9/11 internationally driven antiterrorist legislation.
Modern antiterrorism legislation has been adopted under the EU framework decision on combating terrorism. Terrorist groups are those defined under the EU framework decision. A terrorist group that engages in and promotes, encourages, or advocates terrorist activity in or outside the State, is an unlawful organisation.
It is deemed an unlawful organisation under the Offences against the State Act. The Offences against the State Act, therefore, applies to modern international terrorist legislation and has an effect in relation to terrorist groups as if they were named in it.
The consent of the DPP is required with respect to certain terrorist prosecutions. Certain presumptions are created by the legislation.
A person guilty of a terrorist offence is punishable in accordance with the gravity of the offence as specified in the legislation.
Terrorist Activity and Linked
It is an offence to engage in terrorist activity or terrorist-linked activity who attempt to do so or to threaten to do so whether in or outside the State.
Terrorist activity means an act committed either in or outside the State constituting certain offences specified in the legislation which are committed with the intention of
- seriously intimidating a population,
- unduly compelling a government or international organisation from performing or abstaining from an act or
- seriously destabilising or destroying the fundamental political constitutional economic or social structures of a state or international organisation.
Terrorist activity embraces offences such as murder, manslaughter, non-fatal offences against the person, torture, sexual offences, criminal damage, malicious damage, offences to aircraft, explosives, and firearms offences, offences relating to chemical, radiological weapons.
Terrorist linked activity is activity inside or outside the State constituting offences of the type specified, committed with a view to engaging against terrorist activity. It is an offence outside the State if the act is
- committed onboard an Irish ship or aircraft,
- is committed by a citizen or resident of Ireland, or legal person established in Ireland
- is directed against an Irish citizen or an institution of the European Union.
Other activity outside the State may also constitute an offence subject to under certain circumstance, where extradition or a European arrest warrant is refused or where it is expedient because of special circumstances to take the prosecution in the State.
Terrorist activity does not apply in respect of the activities of armed forces during armed conflicts in so far as they are governed by international and humanitarian law of armed forces in the exercise of their official duties in accordance with international law. Engaging in protest advocacy, dissent, strikes, lockout or industrial action is not of itself sufficient to constitute terrorist activity.
Hostage Taking and Bombing
There is a special offence of hostage-taking done inside or outside the State for terrorist purposes. The person is liable for imprisonment for life.
There is a special offence of terrorist bombing either in or outside the State. Bombing covers explosive or lethal devices which are capable of causing death, serious bodily injury, or substantial material damage. This covers a range of weapons and devices including chemical, microbiological toxins and radioactive substances.
It is an offence within or outside the State directly or indirectly, to unlawfully provide collect or receive funds knowing that they will be used in part or whole to carry out terrorist activity or other acts intended to cause death or serious bodily injury. This does not apply to persons taking active part in hostilities in an armed conflict.
The offence is committed irrespective of how and whether or not the funds are so used. The offence may be committed outside the State and be prosecuted inside the State in the same circumstances as set out both respect of terrorist offences generally. A person may be convicted on summary conviction with a fine of up to €3,000 and imprisonment of 12 months or both or on conviction on indictment, to a fine and imprisonment up to 20 years or both.
Special Garda Powers
There are comprehensive provisions allowing application to be made to freeze and confiscate funds which are used or intended to be used for facilitating or committing terrorist offences. These are similar to the r provisions in relation to the proceeds of crime and money laundering. The application can be made pre-emptively. Funds forfeited can be disposed of and transferred to the Exchequer. Persons claiming ownership of the funds must be heard. Terrorist financing assets may be confiscated.
The Gardai can require traffic and location data relating to mobile phone communication to be retained and made available. There are certain protections in relation to the access of data which must be for bona fide security requirement. See the section in relation to information technology.