National Security Law in Ireland


Published: Jan. 2019

By: Eoin O'Connor
Format: Paperback
Edition: 1st.
ISBN: 9781784519162

About National Security Law in Ireland
National Security Law in Ireland addresses national security law in the context of the criminal trial, examining the use of informers, surveillance and interception, and national security law issues outside the criminal context.

National security law is becoming increasingly relevant in the fields of immigration and asylum law and media law in that can affect newspapers' ability to publish stories which concern national security issues. Therefore this book, as well as dealing with criminal law, also covers a broader panoply of subjects of interest to lawyers and the layperson.

Table Of Contents
Part 1

Chapter 1 Theoretical Perspectives on National Security Law
1. Defining national security
2. Defining 'national security law'
3. The Constitutional position – The Rule of Law versus National Security
4. The European Convention on Human Rights
5. The European Charter of Fundamental Rights and Freedoms
6. Examination of the various theoretical models for considering national security law, and in particular those propounded since 9/11.

Chapter 2 - National Security and the Courts
1. The development of the justiciability of national security issues
2. The shift from non-justiciability to Public Interest Privilege
3. Informer privilege, State Secrets Privilege, and the Public Interest Immunity Certificates in the UK
4. The shift in the UK to the Closed Material Procedures
5. Contrasting perspectives in particular in relation the US, Canada and Australia

Chapter 3 - National Security and the Oireachtas
1. Examination of the various legislative reforms in Ireland which have placed national security on a legal foundation and brought national security issues into court
2. The Official Secrets Acts (as amended)
3. Contrasting perspective between Ireland and the UK

Chapter 4 - Coercive Interrogation and the Law on Intelligence Sharing

Examination of the legal limits to the acquisition and deployment of intelligence

Part 2 - National Security, the Criminal Trial and the Prosecution of Terrorism

Chapter 5 - National Security and the Law Relating to Surveillance
1. Examination of the Criminal Justice (Surveillance) Act 2009

Chapter 6 –National Security and the Interception of Communications
1. Postal and Telecommunications Services Act, 1983
2. Postal Packets and Telecommunications Messages (Regulation) Act 1993
3. Criminal Justice (Mutual Assistance) Act 2008, s110 and its provision for the establishment of secret courts to prosecute companies which refuse or fail to comply with interception requests
4. Legal issues relating to data that is encrypted

Chapter 7 - Informer Privilege: Its Origins And Development
1. Terminology
2. Who Is An Informer
3. History Of Informing
4. The Doctrine Of Approvement
5. Approvers And Corroboration
6. From Approvers To Informers
7. R v Hardy
8. Post Hardy
9. The Irish Decisions On Informer Privilege
10. Modern Case Law
11. Informer Privilege And 'Belief Evidence'
12. Conclusion
Chapter 8 - The Right To A Fair Trial And The Right To Confrontation
1. Introduction
2. The Right To A Fair Trial
3. History Of The Right To Confrontation
4. Ancient Times
5. The Right to Confrontation in The United States
6. Crawford v Washington
7. The Right to Confrontation in Other Common Law Countries
New Zealand
England And Wales
8. The European Court Of Human Rights
9. Development Of The 'Sole Or Decisive' Test
10. Al-Khawaja And Tahery v The United Kingdom
11. Conclusion
Chapter 9 - 'Special Crime', Informer Privilege And Confrontation
1. Introduction
2. The Right To Confrontation In Irish Law
3. The Historical Background to the Prosecution of Subversive Crime in Ireland
4. The Nineteenth Century
5. The Constitution
6. The Offences Against the State Act 1939
7. Parliamentary Oversight
8. Offences Under the Offences Against The State Act 1939
9. Belief Evidence
10. Early Cases on Section 3(2)
11. The People v Kelly
12. What Kelly Established
13. DPP v Binead And Donohue
14. The Director Of Public Prosecutions v The Special Criminal Court
15. DPP v Donnelly & Ors
16. The ECHR and Belief Evidence
17. Reflections on Donohoe v Ireland
18. Conclusion
19. Another Approach To Membership Charges
20. The Use Of 'Belief Evidence' In Ordinary Crime
Chapter 10 – Informers And 'Ordinary' Crime
1. Introduction
2. The Right To Disclosure
3. DPP v Special Criminal Court
4. R v Basi
5. Assessing Whether A Witness Is An Informer Deserving Of Protection Under Informer Privilege
6. R v Named Person B
7. Innocence At Stake Exception
8. R v McClure
9. R v X and Y
10. Comment On The Canadian Approach To The Innocence At Stake Exception
11. Innocence At Stake Exception And How To Deal With Protected Information That Is Not Documented
12. Inadvertent Disclosure Of An Informer's Identity
13. 'Attacking' Informer Privilege - R v Barros
14. Comment On Barros
15. The Constitutionalisation Of The Innocence At Stake Exception
16. Informers, Informer Privilege And The Exclusionary Rule
17. DPP v JC
18. Scrutiny Of The Basis For The Warrant
19. People (DPP) v Morgan
20. People (DPP) v Tallant
21. Procedural Options
Chapter 11 – Informers And 'Special Measures'
1. Special Measures For Informers As Witnesses
2. Evidence Via Live Television Link
3. Criminal Evidence Act 1992
4. Criminal Justice Act 2006
5. Witness Anonymity
6. R v Davis
7. Anonymous Witnesses And The European Convention On Human Rights.
8. Ellis, Simms And Martin v The United Kingdom
9. Special Advocates
10. Conclusion
Chapter 12 – Informer Handling
1. Introduction
2. Informer Handling In The Period Leading Up To The Morris Tribunal Report
3. Four By Four Assessment In Practice
4. The Morris Report Recommendations
5. Public Statement by the Commissioner on the Use of CHIS
6. Comment on the Chis System
7. GSOC Report On Informer Handling
8. Kieran Boylan
9. Participating Informers
10. Lessons On Informer Handing From Northern Ireland
11. Police Ombudsman of Northern Ireland Report on The Murder Of Raymond McCord Jr.
12. Criticisms of Informer Handling
13. The De Silva Report
14. Blelloch's Review of Informer Handling And Criminal Liability
15. Comment On McCord and DeSilva
16. Remunerating Informers In Return For Information
17. The Effect of Remuneration on Informers
18. Motivation for Informing
19. Suitability of Informers
20. Child Informers and Irish Law
21. Manipulation of The Informer by the Handler
22. Rebalancing the Rights Between Informer and Handler
Chapter 13 - Entrapment
1. Entrapment and Agent Provocateurs
2. The United States
3. Canada
4. Australia
5. The ECHR
6. Entrapment – Summary
7. Predisposition
Chapter 14 - Informers and The Witness Protection Programme In Ireland
1. Introduction
2. Whether The State Should Protect Criminals In Return For Testimony
3. The Legal Basis Of The Witness Protection Programme
4. Case Law On The Witness Protection Programme
5. Witness Protection Programme Participant
6. Accomplice And Witness Protection Programme Participant
7. Aspects Of The Witness Protection Programme
8. Placing The Witness Protection Programme On A Statutory Footing
9. Particular Aspects Of The Operation Of The Witness Protection Programme
10. The Witness Protection Programme And The Special Criminal Court
11. Conclusion
Chapter 15 - Conclusion - National Security and the Criminal Trial
1. Introduction
2. The Development Of Informer Privilege In Irish Law
3. How Legislation Has Influenced The Development Of Informer Privilege In Ireland
4. How Informer Privilege In Ireland Has Evolved
5. The Status Of Informer Privilege And The Innocence At Stake Exception In Irish Law
6. Surveillance and National Security
7. Informer Handling
8. Witness Protection Programme
9. Conclusion - Future Trajectory Of Informer Privilege And The Treatment Of Informers
10. Final Comment

Part 3 - National Security outside of the Criminal Context

Chapter 16 - National Security and Immigration/Asylum
1. Striking a balance between the competing demands of national security and human rights
2. The Refugee Acts
3. Mallak v Minister for Justice [2012] 3 IR 297 – Obligation of Minister to provide reasons if refusing naturalisation
4. 'ISIS Recruiter' case – XX v Minister for Justice [2016] IEHC 377
5. The European Convention on Human Rights – Article 3
6. The ECHR judgments in re Deporting of suspects and their Article 3 Rights
7. Legal status of diplomatic assurances provided by foreign states as to the prohibition on torture and guarantees related to a fair trial in that foreign state.
8. Examination of the Special Immigration Appeals Commission (SIAC) in the United Kingdom

Chapter 17 – National Security versus the Principle of Open Justice

1. Introduction
2. Al Rawi & Others v The Security Service [2011] UKSC 34
3. Closed Material Proceedings
4. R (on the application of Wang Yam) (Appellant) v Central Criminal Court and another (Respondents) 2015] UKSC 76 - UK Supreme Court judgment on the question of whether 'closed' or privileged material can be opened to the ECHR, and whether such a restriction affects an accused's right to a fair trial.
5. Erol Incedal Trial

Chapter 18 - National Security, Foreign Policy and Justiciability
1. Introduction
2. Asset freezing measures
3. The UN Regime, EU Sanctions Regime, and US sanctions regime