Article in Justice of the Peace

168 JPN, 4 Sep 2004 694

Doc. No. 2004.020 JPN027A

Introductory Note by Francis Bennion

The following article disagrees with the decision on appeal in a case on whether the Real IRA is a proscribed organisation.The article contains a detailed example of the working out of a statutory interpretation exercise according to the NESSSI method.

After the article was published the decision was upheld by the House of Lords (see R v Z [2005] UKHL 35, [2005] 3 All ER 95), contrary to the view expressed in the article.

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The Real IRA Is Proscribed After All

FRANCIS BENNION*

Another Surprise Ruling

In an article earlier this year 1 I argued that Girvan J was right to hold, in what might have seemed a surprise ruling until you looked at the law, that the Real IRA is not a proscribed organisation under the Terrorism Act 2000. Now I have to report that he has been surprisingly reversed by the Northern Ireland Court of Appeal (NICA).2 I am informed by Mr Kevin Winters, solicitor for the appellant Mr Kevin Murphy, that the NICA have given leave for an appeal from their decision to the House of Lords, and that it is intended that this appeal will go ahead.

The reversal by the NICA is surprising because there are strong arguments in favour of the original decision, which are set out in my previous article. In the present article I describe the NICA decision and assess its correctness. First I need to state the problem.

A Statement of the Problem

Following the ruling by Girvan J, a number of defendants who had been charged under the Terrorism Act 2000 with belonging to the Real IRA, described as a proscribed organisation, were acquitted on the ground that it is not that. The Terrorism Act 2000 says-

3(1). For the purposes of this 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

The Irish Republican Army

* * *

A body cannot be a proscribed organisation unless it is an “organisation” within the meaning of the 2000 Act. Section 121 of the Act says that “organisation” includes any association or combination of persons.

What association or combination of persons is intended to be denoted by the words “The Irish Republican Army” in Schedule 2? Use of the definite article indicates that only one “organisation” is intended to be referred to. Similarly with the phrase “the same name” in section 3(1)(b). The latter also indicates that the description in Schedule 2 is the “name” of the organisation in question.

In other words the listed (and therefore proscribed) organisation has the name “The Irish Republican Army”. The difficulty with this is that there is no such body, as indicated by the following passage from the single judgment of the NICA-

“Judicial notice can be taken of the fact that until 1969 an organisation calling itself the Irish Republican Army existed as a cohesive unit . . . In or about 1969 a major split in the ranks of the IRA occurred. Some members of the organisation, claiming to be true inheritors of the mantle of the IRA, in effect declared a ceasefire in 1972. This group became known as the Official IRA. Other members of the organisation continued to assert the right to and signalled their intention to continue to use violence to achieve the reunification of Ireland. This group became known as the Provisional IRA. The two organisations existed independently of each other thereafter . . . Dissident groups within PIRA opposed [certain] moves. In late 1997 one group dissociated itself from the Provisional leadership and styling itself the “Real” IRA declared that the ceasefire was over. It has since claimed responsibility for a number of violent incidents, most notoriously the bombing of Omagh in August 1998 which killed 29 people and two unborn children.” 3

This indicates that when the Terrorism Act 2000 was passed there was no organisation in existence with the name “The Irish Republican Army”. That body had earlier split into two distinct bodies, the Official IRA and the Provisional IRA. In turn some members of the latter had broken away, calling themselves the Real IRA.

So the 2000 Act, which is penal in nature, is purporting to proscribe a body which was well known to be no longer in existence when the Act was passed. This poses a problem which brings to bear conflicting interpretative criteria.

Applying NESSSI

In the previous article I mentioned my system known as NESSSI, short for New Scientific System of Statutory Interpretation, based on the method set out in my textbook STATUTORY INTERPRETATION (4th edn, 2002), to which I shall refer in this article as “SI”. Under the NESSSI system, which relates of course to the established methods of statutory interpretation but treats them more scientifically, it is first necessary to identify all relevant interpretative criteria.

The interpretative criteria derive from statutory and other rules, principles of legal policy, presumptions arising from the nature of legislation, and linguistic canons of construction. Having identified those that are relevant it is then necessary to arrive at what they have to say concerning the immediate problem, consider the weight each one has in that regard, and then carry out a balancing exercise.

The precise problem in the present case was posed to the NICA by the Attorney General for Northern Ireland as follows-

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“Does a person commit an offence contrary to section 11(1) of the Terrorism Act 2000 if he belongs or professes to belong to the ‘Real’ Irish Republican Army?”4

The answer turns entirely on whether the Real IRA is a proscribed organisation, so I turn to consider the arguments for and against. My book STATUTORY INTERPRETATION consists of a code with numbered sections followed in each case by a detailed commentary. I will now set out the relevant sections of the book, and follow each one with brief comments.5 I begin with the sections favouring the view that the Real IRA is proscribed.

continued . . .

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*Francis Bennion is a member of the Oxford University Law Faculty and a Research Associate, Oxford University Centre for Socio-Legal Studies.

1. 168 JP (19 June 2004) 472.

2. R. v Z. [2004] NICA 23. In the Matter of a Reference under Section 15 of the Criminal Appeal (Northern Ireland) Act 1980, ref. KERC5003. Judgment delivered 30 June 2004.

3. NICA judgment, paras. [28]-[30].

4. NICA judgment, para. [3]. Sections 11 to 13 of the Terrorism Act 2000, headed “Offences”, deal with membership, support, and uniform. A person commits an offence if he belongs or professes to belong to a proscribed organisation, does a specified act in support of a proscribed organisation, or wears the uniform of a proscribed organisation.

5. The detailed commentary to each section as printed in SI gives the authority for the section, but there is not space to reproduce that here.