Judgments - R v. Z (On Appeal from the Court of Appeal in Northern Ireland) (Northern Ireland)

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    52.  Mr Macdonald for the appellant sought to escape from this by submitting that by the time Parliament passed the Northern Ireland (Emergency Provisions) Act 1973 the Provisional IRA was the only organisation regarded as the IRA and that in the public mind it and it only had become and still remained the Irish Republican Army. It therefore was the body at which the proscription in the 1973 Act and successive enactments was aimed, and this was certainly the case when Parliament passed the Terrorism Act 2000. In my opinion this argument is unsustainable. Whatever the standing in the popular mind of the Provisional IRA at the present time, as to which I express no opinion, it cannot be successfully maintained that in 1973 it had succeeded in supplanting any other organisation to the extent of holding the position in ordinary parlance of the Irish Republican Army. The split from what became known as the Official IRA was of relatively recent occurrence and public documents such as the Diplock Report (Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland) (Cmnd 5185), published in December 1972, regularly refer in the same breath to the Official IRA and the Provisional IRA. It cannot be supposed that a few months later Parliament could have regarded the Provisional IRA as the only body fitting the description of "The Irish Republican Army".

    53.  A further argument advanced on behalf of the appellant was that the inclusion of the names of the Cumann na mBan and Fianna na hÉireann, the women's branch and junior wing respectively of the IRA, tended to show that the name "Irish Republican Army" in the legislation was not intended to be an umbrella term, otherwise it would have been unnecessary to name these organisations specifically. I think that this argument also fails. It is not difficult to understand why the legislature should have named them separately for the sake of certainty. Unless judicial notice had been taken that they came under the umbrella of the IRA, a case might have been made that they were not proscribed and it would then have been necessary for the prosecution to adduce the very type of evidence that proscribing specific organisations by name was designed to avoid.

    54.  I accordingly conclude that the Real IRA is included in the term "The Irish Republican Army" in Schedule 2 to the 2000 Act. I would answer the certified question in the affirmative. I would do so on the basis, like my noble and learned friend Lord Brown of Eaton-under-Heywood, that the case comes within section 3(1)(a) of the Act. Like him, I consider that paragraphs (a) and b) of section 3(1) are mutually exclusive. I would reserve my opinion on the ambit of section 3(1)(b), which may require decision on some future occasion.

    55.  I would therefore dismiss the appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    56.  I have had the opportunity of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill and gratefully adopt his exposition of the relevant facts and the legislation as it has developed down the years. I agree with Lord Bingham's conclusion and with almost all of his reasoning. My only reservation will shortly become clear.

    57.  The question for your Lordships' determination is whether a person commits an offence contrary to section 11(1) of the Terrorism Act 2000 (the "2000 Act") if he belongs or professes to belong to the Real Irish Republican Army (the "Real IRA"). Section 11(1) provides that a person commits an offence if he belongs or professes to belong to a proscribed organisation.

    58.  Section 3(1) provides that for the purposes of the 2000 Act an organisation is proscribed if:

    "(a)  it is listed in Schedule 2, or

    (b)  it operates under the same name as an organisation   listed in that Schedule."

    Schedule 2 to the Act lists amongst other proscribed organisations: "The Irish Republican Army" (the "IRA").

    59.  At paragraph 22 of his speech Lord Bingham concludes that section 3(1)(a) and (b) "imposes a single composite test: is this the body listed in the Schedule or a part or emanation of it or does it in any event operate under the name of an organisation listed in the Schedule?" It is this part of my Lord's reasoning with which I have some difficulty.

    60.  True it is, of course, that section 3(1) offers two alternative bases upon which an organisation can properly be found to be proscribed. True it is too that it is unnecessary for the prosecution to specify on which basis a section 11 charge is brought: ultimately all that matters is whether or not the accused belongs (or professes to belong) to a proscribed organisation, and not the basis of any finding that he does. But what worries me about my Lord's approach is that it tends to obscure, if not evade, the specific questions which to my mind have to be addressed and answered on this appeal. Section 3 provides for two mutually exclusive ways in which an organisation may be regarded as proscribed. I think it necessary to examine whether the Real IRA is indeed proscribed in one of these ways.

    61.  In my opinion the Crown's case here stands or falls upon the first limb of section 3(1), their contention that the appellant belonged to an organisation listed in Schedule 2. This particular appellant was charged under section 11 with belonging to the Real IRA. He might just as well, however, have been charged with belonging to the IRA. I repeat, the question for this House is whether a member of the Real IRA commits an offence contrary to section 11: the particular form of charge cannot affect the answer to that question. One can therefore pose the critical question arising under section 3(1)(a) in either of two ways:

    1)  Is the Real IRA listed in Schedule 2?

      or

    2)  Does a member of the Real IRA belong to the IRA?

    62.  Whichever way one poses the question it is necessary to construe what is meant by the term "The Irish Republican Army" within Schedule 2. The Attorney General's submission is that this is an umbrella or generic name (a blanket description as my Lord calls it) intended and apt to include all manifestations of that body. In the Northern Ireland (Emergency Provisions) Act 1973, following the split in 1969 between the Official IRA and the Provisional IRA (and the Official IRA's declaration of a ceasefire in 1972) the name covered both branches. Similarly in 2000, after the further split in May 1997 between the Provisional IRA and the Real IRA (and the Real IRA's commission of the Omagh bombing in August 1998), the name covered both factions (and in turn Continuity IRA). The IRA, in short, as a named organisation, encompasses any and all smaller organisations which by their name claim to embody or represent the IRA.

    63.  Mr Macdonald QC, SC for the appellant is, of course, forced to acknowledge that the Real IRA was (even) more, rather than less, deserving of proscription than the Provisional IRA and that Parliament must have intended in 2000 to proscribe it but, he submits, the legislation simply failed to achieve this. He submits that the name, the IRA, certainly by the time Schedule 2 was enacted in 2000, unambiguously meant the Provisional IRA and nobody else. The question as to which body was referred to as the IRA in 1973—whether the Official IRA, the Provisional IRA or both—is more problematic for him but, he argues, by 2000 there could be no doubt about it: it was the Provisional IRA alone.

    64.  He furthermore submits that the 2000 Act as a whole is drafted in terms which make it clear that Schedule 2 lists single organisations only and not groups of organisations even if they have the same object, let alone if they have conflicting objects and are thus in a real sense rival organisations. In this regard he relies in particular upon the statutory scheme for deproscription: section 3(3)(b) (which enables the Secretary of State by order to remove an organisation from Schedule 2), section 4 (which allows the organisation or any person affected by its proscription to apply for a section 3(3)(b) order), and sections 5-9 (which provide for appeals against the refusal of such a deproscription application). This whole deproscription scheme, he argues, cannot work if the Secretary of State is able to list an umbrella group of organisations under a generic name. Take this very case and assume that the Real IRA (or perhaps less unrealistically the Provisional IRA) had wished to be deproscribed: the Secretary of State could achieve this only by deproscribing all the organisations within the group.

    65.  Finally Mr Macdonald submits that if an umbrella organisation can be listed there would be nothing to stop the Secretary of State from simply listing "all organisations engaged in terrorism in Northern Ireland".

    66.  In my opinion there is no substance in any of these arguments. I see no warrant for construing "the IRA" to mean "the Provisional IRA" at any time, least of all after 1997 when plainly the Real IRA constituted the greater terrorist threat. Once the original IRA had begun to fracture into other organisations incorporating the name, the term "the IRA" would most naturally apply to each and all of them. No problem in reality arises with regard to deproscription. In the situation postulated by Mr Macdonald, the Secretary of State, if minded to deproscribe a sub-group within a named umbrella organisation, would simply deproscribe the whole named organisation and immediately then reintroduce the remaining organisation(s) within the umbrella to the Schedule under a more specific label; alternatively amend the Schedule in some other way, perhaps by the addition of a note, to achieve this objective. Nor does this approach carry with it the consequence that the Secretary of State could simply list "all organisations engaged in terrorism in Northern Ireland" as Mr Macdonald suggests. What the Secretary of State must proscribe are named organisations and "the IRA" is precisely that: the issue is simply as to which persons comprise "the IRA" within the meaning of the 2000 Act.

    67.  Were there any conceivable doubt about all this, it is to my mind conclusively settled by an understanding of the effect of sections 107 and 108 of the 2000 Act. As Lord Bingham explains in paragraphs 9, 10 and 22 of his opinion, these provisions had their precursors in amendments made to the 1996 Act in the immediate aftermath of the Omagh bombing in 1998 and their effect is to allow opinion evidence to be given by a senior officer in a section 11 case that the person charged belongs to a specified organisation. A specified organisation is defined by section 107 as an organisation specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, which is or forms part of a proscribed organisation. It necessarily follows from this that a specified organisation may be part of a larger proscribed organisation. Given, moreover, that section 3(8) of the 1998 Act provides for the specification of only those terrorist organisations which are not operating a full ceasefire, these, in cases where they form part only of a proscribed organisation, are likely to be following a different and more violent objective than the non-specified part(s) of the proscribed organisation. The scheme of the legislation, in short, is custom built for the Real IRA, a specified organisation, to be regarded as part of the proscribed organisation, the IRA.

    68.  As I said earlier, the Crown's case to my mind stands or falls on section 3(1)(a) of the 2000 Act. If the Real IRA are not comprised within the name "the IRA" and thus listed in Schedule 2 to the Act, I cannot see how they can be said to be operating under "the same name." Section 3(1)(b) seems to me intended and apt to cover only those cases where an organisation operates under an identical name to that of an organisation listed in Schedule 2—say, for example, The Irish National Liberation Army—but asserts that it is completely independent of the listed organisation. But for paragraph (b) it could claim not itself to be proscribed under the Act.

    69.  It is therefore on the basis of section 3(1)(a) alone that I too would answer the referred question in the affirmative and dismiss the appeal.

 
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