Criminal Justice (Terrorist Offences) Act 2005

PART 1 Preliminary Matters

1. Short title.

1.—This Act may be cited as the Criminal Justice (Terrorist Offences) Act 2005.

2. Commencement.

2.—Section 32 comes into operation 4 months after the passing of this Act.

3. Interpretation.

3.—(1) In this Act, except where the context otherwise requires—

“act” includes omission and a reference to the commission or doing of an act includes a reference to the making of an omission;

“Act of 1939” means the Offences against the State Act 1939;

“Act of 1965” means the Extradition Act 1965;

“Act of 1985” means the Offences against the State (Amendment) Act 1985;

“Act of 1994” means the Criminal Justice Act 1994;

“Act of 1996” means the Proceeds of Crime Act 1996;

“Act of 1998” means the Offences against the State (Amendment) Act 1998;

“Act of 2003” means the European Arrest Warrant Act 2003;

“Irish ship” has the same meaning as in section 9 of the Mercantile Marine Act 1955;

“Minister” means Minister for Justice, Equality and Law Reform;

“ship” includes any vessel used in navigation.

(2) In this Act a reference to a state includes a reference to the sub-sovereign entities of the state.

(3) A person who has his or her principal residence in the State for the 12 months immediately preceding the commission of an act referred to in section 6(2), 9(3), 10(4) or 13(6) is, for the purposes of this Act, considered—

(a) if he or she is a stateless person, to be habitually resident in the State on the date of the commission of that act, and

(b) in any other case, to be resident in the State on that date.

(4) In this Act—

(a) a reference to a section, Part or Schedule is to a section or Part of, or a Schedule to, this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any other enactment is to that enactment as amended by or under any other enactment, including this Act, unless the context otherwise requires.

3A. F2[Regulations

3A.(1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.]

PART 2 Suppression of Terrorist Groups and Terrorist Offences

4. Definitions for Part 2.

4.—F3[(1)] In this Part—

F4["Framework Decision" means Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism^2, the text of which is set out for convenience of reference in—

(a) Part 1 of Schedule 1, in the case of the Irish language text, and

(b) Part 2 of Schedule 1, in the case of the English language text,

as amended by Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism^3, the English language text of which is set out for convenience of reference in Schedule 1A;]

F3["Prevention of Terrorism Convention" means the Council of Europe Convention on the Prevention of Terrorism, done at Warsaw on 16 May 2005, the English language text of which is set out for convenience of reference in Schedule 1B;

"public provocation to commit a terrorist offence" shall be construed in accordance withsection 4A;

"recruitment for terrorism" shall be construed in accordance withsection 4B;]

“terrorist activity” means an act that is committed in or outside the State and that—

(a) if committed in the State, would constitute an offence specified in Part 1 of Schedule 2, and

(b) is committed with the intention of—

(i) seriously intimidating a population,

(ii) unduly compelling a government or an international organisation to perform or abstain from performing an act, or

(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation;

“terrorist group” has the same meaning as in the Framework Decision;

F4["terrorist-linked activity", subject tosubsections (2)and(3), means—

(a) an act that is committed in or outside the State and that—

(i) if committed in the State, would constitute an offence specified inPart 2ofSchedule 2, and

(ii) is committed with a view to engaging in a terrorist activity,

(b) an act that is committed in or outside the State and that—

(i) if committed in the State, would constitute an offence specified inPart 3ofSchedule 2, and

(ii) is committed with a view to engaging in a terrorist activity or with a view to committing an act that, if committed in the State, would constitute an offence under section 21 or 21A of the Act of 1939,

(c) public provocation to commit a terrorist offence,

(d) recruitment for terrorism, or

(e) training for terrorism;]

F3["training for terrorism" shall be construed in accordance withsection 4C.]

F3[(2) A terrorist-linked activity may be committed wholly or partially by electronic means.

(3) In determining whether an act is a terrorist-linked activity, it shall not be necessary for an offence undersection 6(1)(a)insofar as that provision relates to a terrorist activity, to have actually been committed.]

4A. F5[Public provocation to commit terrorist offence

4A.For the purposes of this Part, public provocation to commit a terrorist offence means the intentional distribution, or otherwise making available, by whatever means of communication by a person of a message to the public, with the intent of encouraging, directly or indirectly, the commission by a person of a terrorist activity.]

4B. F6[Recruitment for terrorism

4B.For the purposes of this Part, recruitment for terrorism means—

(a) the intentional recruitment of another person—

(i) to commit, or participate in the commission of, a terrorist activity,

(ii) to commit an act in or outside the State that, if committed in the State, would constitute an offence under section 6 of the Act of 1998, or

(iii) to commit an act in or outside the State that, if committed in the State, would constitute an offence under section 21 or 21A of the Act of 1939,

or

(b) the intentional commission of an act in or outside the State that, if committed in the State, would constitute an offence undersection 3of theCriminal Law Act 1976.]

4C. F7[Training for terrorism

4C.(1) For the purposes of this Part, training for terrorism means intentionally providing instruction or training in the skills of—

(a) making or using, for the purpose of committing, or contributing to the commission of, a terrorist activity—

(i) firearms or explosives,

(ii) nuclear material,

(iii) biological weapons, chemical weapons or prohibited weapons, or

(iv) such other weapons, or noxious or hazardous substances, that may be used in a terrorist activity as the Minister may prescribe,

or

(b) such other techniques or methods for the purpose of committing, or contributing to the commission of, a terrorist activity as the Minister may prescribe,

knowing that the skills provided are intended to be used by a person receiving the instruction or training for the purpose of committing, or contributing to the commission of, a terrorist activity.

(2) The Minister may, if he or she considers it appropriate to do so, make regulations for the purposes ofsubsection (1)and he or she shall—

(a) before making such regulations, 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, and

(b) in making such regulations, have regard to the following:

(i) the capability of the weapon, substance, technique or method concerned to cause the death of or serious bodily injury to persons or substantial material damage to property;

(ii) the capacity of the weapon, substance, technique or method concerned to be used for the purposes of a terrorist activity and the likelihood of it being so used;

(iii) the extent to which instruction or training—

(I) in the making or use of the weapon or substance concerned, or

(II) in the use of the technique or method concerned,

is required for the making or use, as the case may be, of that weapon, substance, technique or method for the purpose of committing, or contributing to the commission of, a terrorist activity.

(3) In this section—

"biological weapon" and "prohibited weapon" have the same meanings as in theBiological Weapons Act 2011;

"chemical weapons" has the same meaning as insection 2of theChemical Weapons Act 1997;

"explosive" means an explosive within the meaning of theExplosives Act 1875and any other substance or thing that is an explosive substance within the meaning of theExplosive Substances Act 1883;

"firearm" has the same meaning as insection 1of theFirearms Act 1925;

"nuclear material" has the same meaning as insection 2of theRadiological Protection Act 1991.]

5. Terrorist groups.

5.—(1) A terrorist group that engages in, promotes, encourages or advocates the commission, in or outside the State, of a terrorist activity is an unlawful organisation within the meaning and for the purposes of the Offences against the State Acts 1939 to 1998 and section 3 of the Criminal Law Act 1976.

(2) For the purposes of this Act, the Offences against the State Acts 1939 to 1998 and section 3 of the Criminal Law Act 1976 apply with any necessary modifications and have effect in relation to a terrorist group referred to in subsection (1) as if that group were an organisation referred to in section 18 of the Act of 1939.

(3) Subsections (1) and (2) are not to be taken to be limited by any other provision of this Act that refers to provisions of the Offences against the State Acts 1939 to 1998 or that makes provisions of those Acts applicable in relation to offences under this Act.

(4) Subsections (1) and (2) apply whether the terrorist group is based in or outside the State.

6. Terrorist offences.

6.—(1) Subject to subsections (2) to (4), a person is guilty of an offence if the person—

(a) in or outside the State—

(i) engages in a terrorist activity or a terrorist-linked activity,

(ii) attempts to engage in a terrorist activity or a terrorist-linked activity, F8[other than public provocation to commit a terrorist offence,] or

(iii) makes a threat to engage in a terrorist activity,

or

(b) commits outside the State an act that, if committed in the State, would constitute—

(i) an offence under section 21 or 21A of the Act of 1939, or

(ii) an offence under section 6 of the Act of 1998.

(2) Subsection (1) applies to an act committed outside the State if the act—

(a) is committed on board an Irish ship,

(b) is committed on an aircraft registered in the State,

(c) is committed by a person who is a citizen of Ireland or is resident in the State,

(d) is committed for the benefit of a legal person established in the State,

(e) is directed against the State or an Irish citizen, or

(f) is directed against—

(i) an institution of the European Union that is based in the State, or

(ii) a body that is based in the State and is set up in accordance with the Treaty establishing the European Community or the Treaty on European Union.

(3) Subsection (1) applies also to an act committed outside the State in circumstances other than those referred to in subsection (2), but in that case the Director of Public Prosecutions may not take, or consent to the taking of, proceedings referred to in section 43(2) for an offence in respect of that act except as authorised by section 43(3).

(4) Subsection (1) does not apply in respect of—

(a) the activities of armed forces during an armed conflict insofar as those activities are governed by international humanitarian law, or

(b) the activities of the armed forces of a state in the exercise of their official duties insofar as those activities are governed by other rules of international law.

(5) To avoid doubt, the fact that a person engages in any protest, advocacy or dissent, or engages in any strike, lockout or other industrial action, is not of itself a sufficient basis for inferring that the person is carrying out an act with the intention specified in paragraph (b) of the definition of “terrorist activity” in section 4.

(6) Where a person is charged with an offence under subsection (1), which in the opinion of the Attorney General was committed in or outside the State with the intention of—

(a) unduly compelling the government of a state (other than a member state of the European Union) to perform or abstain from performing an act, or

(b) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of such a state,

then, notwithstanding anything in this Act, no further proceedings in the matter (other than any remand in custody or on bail) may be taken except with the consent of the Attorney General.

(7) Where in proceedings for the offence of engaging in or attempting to engage in a terrorist activity—

(a) it is proved that the accused person committed or attempted to commit an act—

(i) that constitutes an offence specified in Part 1 of Schedule 2, or

(ii) that, if committed in the State, would constitute an offence referred to in subparagraph (i),

and

(b) the court is satisfied, having regard to all the circumstances including those specified in subsection (8), that it is reasonable to assume that the act was committed, or the attempt was made, with the intention of—

(i) seriously intimidating a population,

(ii) unduly compelling a government or an international organisation to perform or abstain from performing an act, or

(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation,

the accused person shall be presumed, unless the court is satisfied to the contrary, to have committed or attempted to commit the act with that intention.

(8) The circumstances referred to in subsection (7), include—

(a) whether the act or attempt referred to in subsection (7)(a)—

(i) created or was likely to create a collective danger to the lives or physical integrity of persons,

(ii) caused or was likely to cause serious damage to a state or international organisation, or

(iii) caused or was likely to result in major economic loss,

and

(b) any other matters that the court considers relevant.

(9) Where the Director of Public Prosecutions considers that another Member State of the European Communities has jurisdiction to try a person for any act constituting an offence under this section, the Director—

(a) shall co-operate with the appropriate authority in that other Member State, and

(b) may have recourse to any body or mechanism established within the European Communities in order to facilitate co-operation between judicial authorities,

with a view to centralising the prosecution of the person in a single Member State where possible.

7. Penalties for terrorist offences.

7.—(1) A person guilty of an offence under section 6(1)(a) is liable on conviction to be punished according to the gravity of the offence as follows:

(a) to the sentence of imprisonment fixed by law, if the corresponding offence specified in Schedule 2 is one for which the sentence is fixed by law;

(b) to imprisonment for life, if the corresponding offence specified in Schedule 2 is one for which the maximum sentence is imprisonment for life;

(c) to imprisonment for a term not exceeding 2 years more than the maximum term of imprisonment for the corresponding offence specified in Schedule 2, if that corresponding offence is one for which a person of full capacity and not previously convicted may be sentenced to a maximum term of 10 or more years of imprisonment;

(d) to imprisonment for a term not exceeding 1 year more than the maximum term of imprisonment for the corresponding offence specified in Schedule 2, if that corresponding offence is one for which a person of full capacity and not previously convicted may be sentenced to F9[a maximum term of less than 10 years of imprisonment,]

F10[(e) in the case of an offence that is a terrorist-linked activity referred to—

(i) inparagraph (c)of the definition in section 4 of "terrorist-linked activity"—

(I) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(II) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years or both,

(ii) inparagraph (d)of that definition, on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both, and

(iii) inparagraph (e)of that definition, on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.]

(2) A person guilty of an offence under section 6(1)(b) is liable on conviction to the penalty to which he or she would have been liable had the act that constitutes the offence been done in the State.