Offences Against the State Act 1939
Prior to the adoption of the Constitution in 1937, there existed a series of emergency legislation designed to deal with subversive anti-government activity. The 1922 Constitution was largely suspended and overwritten by this legislation. This position was upheld in a very famous case in 1931 State (Ryan) v Lennon.
The Offences against the State Act 1939 coincided with the commencement of the Irish Constitution, the outbreak of World War II and background of continuing IRA activity. The Act was introduced in the context of the 1937)Constitution. There was a short period in which the Constitution could be amended by ordinary legislation. In view of domestic subversive activity and the imminent war in Europe, provision was made for a declaration of emergency in a situation other than where the State is directly a combatant.
A state of emergency was declared at the commencement of the Second World War which continued in existence up to the 1990s being renewed in 1976 on the basis of the Northern Ireland “troubles”. Various emergency legislation was introduced.
The Offences against the State Act 1939 was strengthened in 1972 and reactivated with the escalation of political violence in Northern Ireland.
The Special Criminal Courts were re-established in 1972 in the context of “troubles”. It has been since extended to a wide class of criminal cases for which the ordinary courts are deemed, unsuitable including so-called “gangland” crime.
There are a series of offences which criminalise
- the usurpation or obstruction of government,
- the creation of rival governments,
- alternative armies, and
- expressions of loyalty to the same.
These reflected the existence at the early years of the State of factions purporting to represent the “true” government of the Irish Republic, which they claimed to date back to the “mandate” of the 1918 General Election. They sought to undermine and subvert the government established under the Constitution, on this basis.
Each of the following is deemed a serious offence with a penalty on conviction of up to 20 years imprisonment.
- unlawfully usurping or exercising any function of government in any manner including setting up alternative government tribunals, armed forces, police forces other than the lawful bodies s established or aiding, abetting conspiring with others to do any such thing.
- preventing or obstructing by force of arms or violent means the carrying on of government, whether by the government, parliament or judiciary or aiding or abetting or conspiring to do any such thing.
Any interference with military or other employees of the State with intent to undermine public order or the State’s authority, acts of violence against such persons, or interference with equipment or arms is an offence with imprisonment of up to 2 years.
Inciting and encouraging any person employed by the State to refuse or neglect to perform their functions in a manner that would obstruct the State is punishable by up to 3 years imprisonment.
Distribution of Material
It is an offence to type, publish, post, distribute or offer for sale, documents that are incriminating, treasonable, or seditious. It is not lawful for any person to send or contribute to a newspaper or other publication or publish any letter, article, or communication which is sent or contributed on behalf of an unlawful organisation or which is of a character which would contravene the foregoing. It is also an offence to possess such a document.
Newspapers and publications printed outside the State may be seized, destroyed, or prohibited if they contain any publication which is seditious or contravenes the Offences against the State legislation. It is an offence to possess any treasonable, seditious or incriminating document.
An incriminating document is one issued or emanating from an unlawful organisation purporting to assist or promote such an organisation. A treasonable document is one related to the commission of treason, i.e., the overthrow of the State. A seditious document is one calculated or tending to undermine public order, undermine the authority of the government or military forces.
Any person printing a document must put his name and address on the document and retain a copy for at least 6 months. Gardai may require the production of the document. Any person printing any document which he knows or has reason to believe is to be sold or distributed to the public or part of the public must print his name on the document. Failure to do so is an offence that may be prosecuted summarily. Certain exemptions apply.
It is unlawful for persons to engage in unlawful military exercises. This includes training, drilling and practising in military exercises. It is an offence to organise, promote, or maintain any secret society amongst the police or army or attempt to promote or organise such a society or to take part or be concerned in any such promotion management or induce, solicit, or assist any person to join the same.
It is an offence to administer unlawful oaths, declarations, or engagements purporting to be binding on persons to do any of the following.
- commit, plan, contrive or assist in the commission of any crime or breach of the peace,
- join or become a member of any organisation having its objects, the commission of crime or breach of the peace;
- abstention from giving information in relation to such organisation or body or from giving evidence against them or abstaining or disclosing from giving information in relation to the commission or intended commission of any crime or breach of the peace,
Persons taking or administering such oaths are also guilty of an offence.
Organisations and bodies which
- engage, promote, encourage, or advocate the commission of treason,
- advocate, encourage or procure by force or violence by unconstitutional means, the alteration of the Constitution,
- raise or attempt to raise a military or armed force in contravention of the Constitution,
- engage in promote, encourage, or advocate commission or a criminal offence or the obstruction of the administration of justice.
- engage, promote, encourage, advocate the attainment of an objective lawful or unlawful by a violent criminal or other unlawful means or
- promote or advocate non-payment of monies to the State
are deemed unlawful organisations and are subject to the provisions of the legislation.
The government may suppress organisations which it determines to be unlawful and declare that it is in the public interest that they be suppressed. The organisations concerned have the option of applying to the High Court for a declaration of legality.
Membership and Paramilitary Activities
It is an offence to be a member of an unlawful organisation. This is subject on conviction summarily to €3,000 fine and up to 12 months imprisonment or on indictment, \ fine or imprisonment up to 8 years. It is a defence if the person did not know the organisation was unlawful or after becoming aware of the nature of the organisation or the suppression order ceased to be a member.
If a suppression order is made, all property of the organisation is forfeited to the Minister for Justice. The Minister may take possession of all such lands and premises and sell them.
Where a chief superintendent of the Garda is satisfied, that the building is being used for the purposes of an unlawful organisation an order may be made closing it.
In criminal proceedings in relation to treasonable, seditious, and incriminating documents alleged to be published by the accused, the opinion of a chief superintendent of the Garda Síochána that he believes the document is so published is evidence thereof.
It is unlawful to conduct a public meeting on behalf of or in concert with an unlawful organisation or which purports to be for the purpose of supporting, aiding, abetting, or encouraging an unlawful organisation or advocating it. A chief superintendent of Garda Síochána may if he believes such a meeting is proposed to be held and would be unlawful, publish a notice prohibiting the meeting. Persons who organise or hold a meeting in contravention of the provision are guilty of an offence.
Certain meetings in the vicinity of the Oireachtas are unlawful if a member of Garda Síochána at the rank of chief superintendent or higher gives notice that the meeting is prohibited or if a member from Garda Síochána calls upon persons participating in such meeting to disperse. It is an offence for a person to organise, hold, or take part or attempt to organise such a meeting.