Criminal Justice (Terrorist Offences) (Amendment) Act 2015

1. Definition

1. In this Act “Principal Act” means the Criminal Justice (Terrorist Offences) Act 2005.

2. Regulations

2. The Principal Act is amended by the insertion of the following section after section 3:

“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.”.

3. Amendment of section 4 of Principal Act

3. Section 4 of the Principal Act is amended by—

(a) the substitution of the following definition for the definition of “Framework Decision”:

“‘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;”,

(b) the substitution of the following definition for the definition of “terrorist-linked activity”:

“ ‘terrorist-linked activity’, subject to subsections (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 in Part 2 of Schedule 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 in Part 3 of Schedule 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;”,

(c) the insertion of the following definitions:

“ ‘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 with section 4A;

‘recruitment for terrorism’ shall be construed in accordance with section 4B;

‘training for terrorism’ shall be construed in accordance with section 4C.”,

(d) the designation of that section (as amended by paragraphs (a), (b) and (c)) as subsection (1), and

(e) the addition of the following subsections:

“(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 under section 6(1)(a) insofar as that provision relates to a terrorist activity, to have actually been committed.”.

4. Public provocation to commit terrorist offence

4. The Principal Act is amended by the insertion of the following section after section 4:

“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.”.

5. Recruitment for terrorism

5. The Principal Act is amended by the insertion of the following section after section 4A (inserted by section 4):

“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 under section 3 of the Criminal Law Act 1976.”.

6. Training for terrorism

6. The Principal Act is amended by the insertion of the following section after section 4B (inserted by section 5):

“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 of subsection (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 the Biological Weapons Act 2011;

‘chemical weapons’ has the same meaning as in section 2 of the Chemical Weapons Act 1997;

‘explosive’ means an explosive within the meaning of the Explosives Act 1875 and any other substance or thing that is an explosive substance within the meaning of the Explosive Substances Act 1883;

‘firearm’ has the same meaning as in section 1 of the Firearms Act 1925;

‘nuclear material’ has the same meaning as in section 2 of the Radiological Protection Act 1991.”.

7. Amendment of section 6(1)(a)(ii) of Principal Act

7. Section 6(1)(a)(ii) of the Principal Act is amended by the insertion of “other than public provocation to commit a terrorist offence,” after “a terrorist-linked activity,”.

8. Amendment of section 7(1) of Principal Act

8. Section 7(1) of the Principal Act is amended—

(a) in paragraph (d), by the substitution of “a maximum term of less than 10 years of imprisonment,” for “a maximum term of less than 10 years of imprisonment.”, and

(b) by the addition of the following paragraph:

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

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

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

9. Amendment of section 44(2) of Principal Act

9. Section 44(2) of the Principal Act is amended by the substitution of the following paragraph for paragraph (a):

“(a) in relation to an act committed outside the State—

(i) a certificate that is signed by an officer of the Minister for Foreign Affairs and Trade and states that a passport was issued by that Minister of the Government to a person on a specified date, and

(ii) a certificate that is signed by an officer of the Minister and states that, to the best of the officer’s knowledge and belief, the person has not ceased to be an Irish citizen,

is evidence that the person was an Irish citizen on the date on which the offence concerned is alleged to have been committed, unless the contrary is shown,”.

10. Insertion of Schedules to Principal Act

10. The Principal Act is amended by the insertion—

(a) after Schedule 1, of Schedule 1A as set out in Schedule 1 to this Act, and

(b) after Schedule 1A (inserted by paragraph (a)), of Schedule 1B as set out in Schedule 2 to this Act.

11. Amendment of Part 1 of Schedule 2 to Principal Act

11. Part 1 of Schedule 2 to the Principal Act is amended—

(a) by the insertion of the following paragraph after paragraph 7:

“Offences relating to maritime navigation and fixed platforms located on the continental shelf

7A. Any offence under section 2 of the Maritime Security Act 2004.”,

(b) in paragraph 10, by the addition of the following subparagraph:

“(f) section 2 of the Biological Weapons Act 2011 (development, etc. of biological weapons).”,

and

(c) in paragraph 11—

(i) in subparagraph (c), by the substitution of “(offences against internationally protected persons);” for “(offences against internationally protected persons).”, and

(ii) by the addition of the following subparagraph:

“(d) section 13 (offence of financing terrorism).”.

12. Short title, collective citation and commencement

12. (1) This Act may be cited as the Criminal Justice (Terrorist Offences) (Amendment) Act 2015.

(2) The Principal Act and this Act may be cited together as the Criminal Justice (Terrorist Offences) Acts 2005 and 2015.

(3) This Act shall come into operation one week after the day of its passing.

SCHEDULE 1 Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on Combating Terrorism

Section 10

“SCHEDULE 1A

Council Framework Decision 2008/919/JHA

of 28 november 2008

amending Framework Decision 2002/475/JHA on combating terrorism

The Council of the European Union,

Having regard to the Treaty on European Union, and in particular Article 29, Article 31(1) (e) and Article 34(2) (b) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament [^1],

Whereas:

(1) Terrorism constitutes one of the most serious violations of the universal values of human dignity, liberty, equality and solidarity, respect for human rights and fundamental freedoms on which the European Union is founded. It also represents one of the most serious attacks on democracy and the rule of law, principles which are common to the Member States and on which the European Union is based.

(2) Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [^2] is the basis of the counter-terrorist policy of the European Union. The achievement of a legal framework common to all Member States, and in particular, of a harmonised definition of terrorist offences, has allowed the counter-terrorism policy of the European Union to develop and expand, subject to the respect of fundamental rights and the rule of law.

(3) The terrorist threat has grown and rapidly evolved in recent years, with changes in the modus operandi of terrorist activists and supporters including the replacement of structured and hierarchical groups by semi-autonomous cells loosely tied to each other. Such cells inter-link international networks and increasingly rely on the use of new technologies, in particular the Internet.

(4) The Internet is used to inspire and mobilise local terrorist networks and individuals in Europe and also serves as a source of information on terrorist means and methods, thus functioning as a ‘virtual training camp’. Activities of public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism have multiplied at very low cost and risk.

(5) The Hague Programme on strengthening freedom, security and justice in the European Union, adopted by the European Council on 5 November 2004, underlines that effective prevention and combating of terrorism in full compliance with fundamental rights requires Member States not to confine their activities to maintaining their own security, but to focus also on the security of the Union as a whole.

(6) The Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union [^3], recalls that a global response is required to address terrorism and that the expectations that citizens have of the Union cannot be ignored, nor can the Union fail to respond to them. In addition, it states that attention must focus on different aspects of prevention, preparedness and response to further enhance, and where necessary complement, Member States’ capabilities to fight terrorism, concentrating particularly on recruitment, financing, risk analysis, protection of critical infrastructures and consequence management.

(7) This Framework Decision provides for the criminalisation of offences linked to terrorist activities in order to contribute to the more general policy objective of preventing terrorism through reducing the dissemination of those materials which might incite persons to commit terrorist attacks.

(8) United Nations Security Council Resolution 1624 (2005) calls upon States to take measures that are necessary and appropriate, and in accordance with their obligations under international law, to prohibit by law incitement to commit terrorist act or acts and to prevent such conduct. The report of the Secretary- General of the United Nations ‘Uniting against terrorism: recommendations for a global counter-terrorism strategy’ of 27 April 2006, interprets the above- mentioned Resolution as providing for a basis for the criminalisation of incitement to terrorist acts and recruitment, including through the Internet. The United Nations Global Counter-Terrorism Strategy of 8 September 2006 mentions that the Member States of the UN resolve to explore ways and means to coordinate efforts at the international and regional level to counter terrorism in all its forms and manifestations on the Internet.

(9) The Council of Europe Convention on the Prevention of Terrorism establishes the obligations of States parties thereto to criminalise public provocation to commit a terrorist offence and recruitment and training for terrorism, when committed unlawfully and intentionally.

(10) The definition of terrorist offences, including offences linked to terrorist activities, should be further approximated in all Member States, so that it covers public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism, when committed intentionally.

(11) Penalties should be provided for natural persons having intentionally committed or legal persons held liable for public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism. These forms of behaviour should be equally punishable in all Member States irrespective of whether they are committed through the Internet or not.

(12) Given that the objectives of this Framework Decision cannot be sufficiently achieved by the Member States unilaterally, and can therefore, because of the need for European-wide harmonised rules, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity, as set out in Article 5 of the EC Treaty and referred to in Article 2 of the EU Treaty. In accordance with the principle of proportionality, as set out in Article 5 of the EC Treaty, this Framework Decision does not go beyond what is necessary in order to achieve those objectives.

(13) The Union observes the principles recognised by Article 6(2) of the EU Treaty and reflected in the Charter of Fundamental Rights of the European Union, notably Chapters II and VI thereof. Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as freedom of expression, assembly, or of association, the right to respect for private and family life, including the right to respect of the confidentiality of correspondence.

(14) Public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism are intentional crimes. Therefore, nothing in this Framework Decision may be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions, including terrorism, falls outside the scope of this Framework Decision and, in particular, of the definition of public provocation to commit terrorist offences.

(15) The implementation of the criminalisation under this Framework Decision should be proportional to the nature and circumstances of the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discrimination,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1