The Offences Against the State Act 1939 at 80: A Model Counter-Terrorism Act?

Description

This timely edited collection brings together experts in the fields of legal history, criminal justice, human rights and counter-terrorism law to appraise Ireland’s Offences Against the State Act on the eightieth anniversary of its enactment. The origins, development, invocation and extension of the powers contained in the legislation are analysed and critiqued using a broad range of methodologies. The book engages fully with the 1939 Act’s scope and complexity including consideration of the impact of the Act on issues as diverse as trial by jury, paramilitary organisations, organised crime, disclosure, the rules of evidence, freedom of expression and association, parliamentary oversight of legislation and adherence to international human rights norms. In addition, the interplay of the Act with the universal themes of normalcy, exceptionalism, contagion and due process are explored throughout. This book will appeal to an audience beyond those with a particular interest in the Act itself. It combines historical and contemporary insights with theoretical and practical perspectives that will enrich the reader’s understanding of emergency law, wherever it arises. Volume 8 in Hart Studies in Security and Justice Foreword Acknowledgements Contents List of Contributors Table of Cases Table of Legislation Introduction 1. The Prehistory of the Offences Against the State Act I. Introduction II. 'Coercive' Legislation in Ireland III. Themes of Control IV. Offences Under the Coercion Acts V. Powers under the Coercion Acts VI. Conclusion 2. Precursors to the Offences Against the State Act – Emergency Law in the Irish Free State I. Introduction II. Emergency Law and the Origins of the State III. Army (Emergency Powers) Resolution IV. The Public Safety Acts 1923 V. Permanent Measures 1925 to 1926 VI. The Assassination of Kevin O'Higgins VII. The Insertion of Article 2A into the 1922 Constitution VIII. Emergency Law under a New Constitutional Order IX. A Process of Normalisation? X. Conclusion 3. A Certain Ambivalence: Independent Ireland and Trial by Jury I. The Roots of Ambivalence: The Pre-Independence Experience II. Tripping the Policeman: 1922 to 1937 III. Post-1937 Jury Ambivalence IV. Conclusion 4. The Special Criminal Court: A Conveyor Belt of Exceptionality I. Exceptional Courts in Ireland II. Analysing the Relationship of Arrest and Detention to the Special Criminal Court III. Conclusion 5. Terrorism Trials and the Offences Against the State Acts in Comparative Perspective I. Introduction II. Fora for terrorism trials III. Identity of the decision-maker IV. Procedures V. Evidentiary rules VI. Conclusion 6. Threats to Security and Risks to Rights: 'Belief Evidence' under the Offences Against the State Act I. Introduction II. Section 3(2) of the 1972 Act III. The Presumption of Innocence IV. The Right to Cross-Examination V. The Right to Disclosure VI. Other Evidentiary Issues VII. Conclusion 7. Disclosure and Privilege: The Dual Role of the Special Criminal Court in Relation to Belief Evidence I. Introduction II. Non-disclosure on the grounds of privilege and the discretion to inspect III. Belief evidence and the problem with inspection by the Special Criminal Court IV. Practice upheld by the Superior Courts and the ECHR V. Inspection by the Special Criminal Court as a safeguard? VI. The dilemma for an accused in relation to inspection VII. The viability of alternative options VIII. Conclusion 8. The Offences Against the State Acts and Non-Subversive Offences I. Introduction II. The 'Scheduling' of Non-Subversive Offences III. Trials without jury in the Special Criminal Court IV. Conclusion 9. The Proscription of Organisations in the Republic of Ireland I. Background and History of Proscription II. Powers to proscribe and the selection of impugned organisations III. Conclusion 10. New Media, Free Expression, and the Offences Against the State Acts I. Introduction II. Origins III. The Offences Against the State Act IV. New Media, New Threats V. Conclusion 11. The Offences Against the State Acts and International Human Rights I. Introduction II. The Offences Against the State Acts before the UN Human Rights Committee III. The Offences Against the State Acts and the European Court of Human Rights IV. International human rights in the Irish Courts and Legislature V. Conclusion 12. The Offences Against the State Acts: Reflections from Practice and the Legislature I. Introduction II. Practice in Green Street III. Development of Jurisprudence and Legislation on the Special Criminal Court IV. Critiques of the SCC: Insistence on 'Due Process' V. Oversight Role of Legislators within OASA Framework – 'Sunset Clauses' VI. Annual Renewal Motions before the Oireachtas VII. Oireachtas Renewal Motions 2019-2020 VIII. Conclusion 13. A Less Exceptional State of Exception: The Offences Against the State Act as an Emergency Response I. Introduction II. The Emergency Paradigm and the Irish Constitution III. The OASA and 'Less Exceptional' Emergency Powers IV. Internment and Normalcy Under the Irish Constitution V. The Quarantining Effect of Ireland's Emergency Powers VI. Conclusion: Suggestions for Reform 14. 'Contagion' between the Special and the Normal in Criminal Justice: A Comparative Perspective I. Introduction II. The OASA and Contagion in Ireland III. Contagion in Europe after 9/11 IV. Conclusion Index