Deference to State
The Constitution of Ireland was adopted shortly before the Second World War. It was a time in which subversive activity against the State had reached a particular height. See the section on legal history in relation to the emergency legislation of that period.
Historically and internationally, courts have been reluctant to review executive decisions in relation to State security. In the United Kingdom, courts undertake a limited judicial review only of State security decisions on the basis of the Human Rights Act. Indemnity Acts were passed in the early years of the State following the 1920 to 1923 periods of insurrection, rebellion.
The Irish courts have been willing, in principle, albeit with deference, to consider the constitutionality of State action. In a challenge to section 31 of the Broadcasting Act, the court was satisfied that the Government had acted rationally.
The Constitution protects Freedom of Expression. However, even Freedom of Expression has been limited in the context of anti-terrorism legislation. Orders made under the Broadcasting Act prohibited broadcasting by or on behalf of members of certain proscribed organisations, including Sinn Fein. The legislation was found to be constitutional on the basis of being required in the interest of public order for the preservation of the State.
In a challenge to the Special Criminal Court in 1996, the Supreme Court was very reluctant to review governmental Acts, even where they were grounds for arguing that ordinary courts were sufficient in the circumstances.
Offences against the State
The Offences against the State Act was enacted shortly after the Constitution, to replace a series of legislation aimed at Republican activity against the Irish Free State, and the State established under the Constitution. As set out in the section on legal history, the measures were largely successful in incapacitating the Republican groups from undermining the State during the Second World War.
Under the Constitution, the Oireachtas is given exclusive power to raise and maintain military and armed forces. Private armies are prohibited.
The Offences against the State Act 1939 was adopted to combat actions and conduct calculated to undermine public order and the authority of the State. It remained with amendments, one of the principal mechanisms used to combat subversive and terror activity through the Northern Ireland “troubles”.
A significant amount of modern and recent anti-terrorism legislation derives from International Conventions. See generally the relevant sections under criminal law. The State has adopted anti-terrorism legislation as well as terrorist financing legislation on foot of UN Conventions and measures adopted from the European Union.
The Constitution specifically provides that treason shall consist only in levying war against the State or assisting the State or persons in inciting or conspiring with any person to levy war against the state or attempting by force of arms or other violent means to overthrow the organs of the State established by the Constitution or of taking part or being concerned in or inciting or conspiring with any person to make or take part or be concerned in any such attempt.
This is reflected in the Treason Act 1939 based on Article 39 of the Constitution.
The common law offence of sedition covers conduct which tends to raise discontent and dissatisfaction among or promote the ill will of the State’s citizens which incites persons to use or attempt to use any unlawful means and in particular physical force in any public matter connected with the State or brings into hatred or contempt the government, the laws or the Constitution. Its status in modern times is unclear.
Part VI of the Offences against the State Act 1939 allowed for internment. A declaration by the Government was required that internment powers were necessary to secure peace and order. The Minister for District Justice might direct a person’s arrest and detention if satisfied that the person was engaging in activities calculated to prejudice the preservation of the peace, order or security of the State.
The Offences against the State Act had not been enacted under the emergency provisions of the Constitution, notwithstanding its era and the fact that the text of the emergency provisions in the Constitutions was extended during the three-year period when the Constitution could be amended by ordinary legislation.
In the State (Burke) v. Lennon, the court found that these provisions were unconstitutional. This was on the basis that the ministerial power exercised the judicial function, and breached the protection of liberty, due process of law clause in the Constitution.
The courts found that the prisoner had been interned as an alternative to prosecution. The purported ministerial power was in the nature of a judicial decision, which was reserved for the courts. It was also found to be against the personal rights of the citizens, including in particular, the right to liberty.
The State passed the Offences against the State (Amendment) Act, 1940, after the case providing for powers of detention and internment. The Bill was referred to the Supreme Court. Notwithstanding the similarity with the 1939 Act, the Bill was upheld by the Supreme Court.
The Minister was granted powers of detention of indefinite duration where he was of the opinion that certain circumstances existed. The Supreme Court indicated that the detention was intended to be preventative rather than punitive and was not to be regarded as the administration of justice.
The Court held that it could not challenge the validity of the Minister’s opinion. The right to undertake preventative detention effectively permitted. The provision remains in place immune from a challenge (because of the provisions of the Constitution preventing a further challenge), notwithstanding that it is very unlikely that the same conclusion would be reached by the Supreme Court today.
Internment in the 1950s
The internment provisions were recommenced with the so-called border campaign in Northern Ireland, 1956 to 1962. Given the constitutional immunity of the 1940 Act, a challenge was made on the basis of the European Convention on Human Rights. The European court upheld the detention on the basis of a derogation entered by the State from the Convention on the basis that the internment powers were necessitated by political and security considerations.
The Minister may detain persons under the Act, indefinitely. Persons arrested may be fingerprinted and searched. Members of An Garda Síochána may arrest the person concerned without a warrant.
The Prisoners of War and Enemy Aliens Act 1956 enables the Minister to intern prisoners of war and enemy aliens. He must be of the opinion that their detention is absolutely necessary for the security of the State. Persons who are detained enjoy the benefit of the Geneva Convention on Protection of Civil Persons in Time of war.
The Constitution allows for the establishment of special courts. It provides that:
special courts may be established by law for the trial of offences and cases, where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of peace, public peace and order.
Their Constitution powers, procedures of such special court shall be prescribed by law. The provisions of Article 34 and 35 of the Constitution do not apply to them.
The Special Criminal Court in its original form was established by the Offences against the State Act, 1939. It lapsed in 1962 and was re-established in 1972. It has been retained in being after the Belfast Agreement and the cessation of the Northern Ireland “Troubles”.
The Offences against the State Act enables the government to establish the Special Criminal Court when it determines that the existing courts cannot function adequately. A proclamation is to be made that the existing courts are inadequate to secure the effective administration of justice and preservation of peace and order.
The Criminal Justice (Amendment) Act 2009 declared that serious organised crime was required to be dealt with through the Special Criminal Court and the declaration is renewed by a resolution of the Oireachtas.
Certain classes of offences are heard by the Special Criminal Court,
- so-called scheduled offences are to be dealt with by the Special Criminal Court.
- other offences, where the DPP certifies that in his or her opinion, the ordinary courts are inadequate for trying the accused on the charge, for trying the accused.
Challenges to Special Courts
The Court acts by a majority. There is no jury. Generally, it consists of a judge of the High Court, Circuit Court, and District Court sitting together. The appointees may be a judge, barrister or solicitor of seven-year standing or a member of the Defence Forces, rank of commandant or above. In its earlier form, it comprised exclusively of army officers. Since 1972, it consists entirely of judges.
In a challenge made in the 1990s to the continued existence of the court, where it was claimed no longer necessary, the Supreme Court considered the matter to be primarily political and was not willing to review the matter.
A challenge was made to convictions by the Special Criminal Court, consisting of a serving judge and two retired judges. These judges could be removed at will as declared by the Minister for Justice. It was held that the general requirements for judicial independence continued to apply, notwithstanding the Constitutional provision facilitating the Special Criminal Court.
Judges must be independent. If either the government or Minister was to seek to exercise power in a manner capable of interfering with the judicial independence of the court, it would infringe the constitutional rights of persons brought before the court. Any such attempt would be prevented and corrected by the courts established under the Constitution.
Courts have been reluctant to review the decision of the DPP to have non-scheduled offences tried before the court. Initially, it was held that the decision was entirely unreviewable. Later court decisions suggested, it might be capable of review in principle, if it was not done for a proper purpose or was done in bad faith.