Article in Justice of the Peace
168 JPN (19 Jun 2004) 472
||Doc. No. 2004.008 JPN026A
Introductory Note by Francis Bennion
The following article discusses a case on whether the Real
IRA is a proscribed organisation.
After the article was published the decision was reversed on appeal, in a way corresponding to the
view expressed in the article. See the further article 2004.020.
Start of page 472
Is the Real IRA a Proscribed
A Surprise Ruling
Real IRA held not to be terrorists! Thus the headlines (inaccurate
as always, but true in substance), on the morrow of Mr Justice Girvan’s ruling
that the Real IRA is not included in Schedule 2 to the Terrorism Act 2000, and therefore
is not a “proscribed organization”. Charges against four men of being members
of the Real IRA were promptly dropped.
Reuters reported on 28 May 2004 that Girvan J's surprise
ruling was an embarrassment for the Government, which had assumed that the Real IRA,
a breakaway faction of the mainstream Irish Republican Army, was among the Northern Irish
armed groups banned under anti-terrorism laws. The Reuters report continued-
“Clearing four men of charges of Real IRA membership,
Girvan said that because the organization was not specifically named in a list of proscribed
groups in the Terrorism Act 2000 it was not illegal. He rejected the prosecution argument
that the mainstream IRA's listing applied equally to its dissident off-shoots.
“The Real IRA split from the mainstream IRA
after the latter called a ceasefire in 1997. In August 1998, the Real IRA killed 29
people when it detonated a car bomb in the market town of Omagh, the bloodiest
attack in three decades of violence in the province.
“The name ‘Real IRA’ was coined by the media to distinguish the group from both the
mainstream IRA and another dissident faction, the Continuity IRA, and has been widely adopted in political
and security circles. The small band of militants who make up the group usually call themselves ‘Oglaigh
na hEireann’, the Irish name literally meaning ‘army of Ireland’ also used
by the mainstream IRA.”
The DUP View
On 2 June 2004 the Democratic Unionist Party issued the
“The Secretary of State must act to clear up
the mess which has been exposed by the ruling that the Real IRA is not an illegal organization.
The decision by Mr Justice
Start of page 473
Girvan that the Real IRA is not proscribed as a terrorist
group under the Terrorism Act 2000 has highlighted a major flaw in the present anti-terrorism
legislation. It has allowed those believed to be involved with the organization to evade
conviction of the offence of membership of a proscribed organization on what is clearly
a technicality. It is essential that the Secretary of State comes to the House of Commons
to explain how this situation came about, to explain what went wrong and to take the
necessary steps to prevent this situation reoccurring. Indeed this very issue was raised
during the course of the passage of the Bill in Standing Committee D on Tuesday 25 January
“Mr. Simon Hughes: I wish
to test two points that follow on from what the Minister said. As of now, would proved
members of Continuity IRA be covered by the schedule? In other words, in a court case,
is the advice to Ministers that a member of Continuity IRA would be caught by the list?
“Mr. Ingram: On the question of Continuity IRA, I draw the hon. Gentleman's attention to the fact
that the provisional IRA is not listed because the Irish Republican Army covers the whole gambit. We
have had the best legal advice on that and the Real IRA, Oglaigh na hEireann, as it calls itself—its
use of the IRA name—is that that would be covered by the blanket name Irish Republican Army,
although I cannot say what a court would decide.
“It is clear that the Government’s view on this issue in Parliament was misleading and as
a result possible convictions have fallen through. Adam Ingram admitted at the time ‘it is not
clear what a court would decide’ yet the Government proceeded to legislate on this basis rather
than to cover any possible loophole. This was a reckless approach to take resulting in the decision of
“It was bad judgement that this grouping was not specifically proscribed in the Schedule to the
Act. Indeed only ‘The Irish Republican Army’ is mentioned without any particular mention
of the Provisional IRA, the Continuity IRA, or the Real IRA. It is vital that immediate steps are
taken to ensure that all of these groups are brought within the remit of the provisions of the Terrorism
before anyone else escapes conviction on these grounds.”
A Problem for NESSSI
Mr Justice Girvan’s ruling sets up a nice problem
in statutory interpretation. Let’s see if we can work out, with NESSSI’s
help, how the appeal should result. We can achieve a confident forecast here if we know
what we are about. This is a matter for scientific exploration of precision drafting.
There should not be any doubt at all.
I decided to give the name NESSSI, short for New Scientific
System of Statutory Interpretation, to the method set out in my textbook STATUTORY
INTERPRETATION (4th edn, 2002), to which I shall refer in this article as “SI”. The
method I am calling NESSI shows you that a problem like this needs to be tackled step
by step, scientifically. The first step is always to find out and set down the exact
wording of the doubtful enactment, stripping it of unnecessary words.
An enactment is a legal proposition laid down in an Act
or other legislative text with the effect that, when the facts fall within an indicated
area called the factual outline, specified legal consequences called the legal thrust
are called forth.
Here the doubtful enactment is made up of the following
words in the Terrorism Act 2000 section 3(1): “For the purposes of this Act an
organization is proscribed if it is listed in Schedule 2 or it operates under the same
name as an organization listed in that Schedule” coupled with the following words
in Schedule 2: “The Irish Republican Army”. For convenience of discussion
this can all be set out in the following formula (“the disputed formula”),
which uses the statutory words but is clearer in form-
(1) For the purposes of this Act an organization
is proscribed if
(2) it is listed in Schedule 2, or
(3) it operates under the same name as an organization
listed in Schedule 2.
* * *
The Irish Republican Army
* * *
The doubt is whether or not the factual outline thus engendered embraces the Real IRA,
or in other words whether that body is comprised in the description “The Irish
Republican Army”. The opposing constructions are:
A. The Real IRA is comprised in the formula “The
Irish Republican Army”.
B. The Real IRA is not comprised in the formula “The
Irish Republican Army”.
NESSSI says what we should do next is conduct a careful
examination of the wording of the doubtful enactment, and its surrounding words in the
Terrorism Act 2000, in order to pick up clues.
The Legal Thrust
We must never neglect the nature of the legal thrust, says
NESSI. That tells us the significance of the opposing constructions. So what here is
the legal thrust, that is the precise legal effect of an organization’s being labelled
a proscribed organization?
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 organization, does a specified act in support
of a proscribed organization, or wears the uniform of a proscribed organization. So that
is the legal thrust.
Next we should ask what is meant by the word “organization”.
A body cannot be a proscribed organization unless it is an “organization” to
start with. Section 121 of the Terrorism Act 2000 says that “organization” includes
Start of page 474
or combination of persons. So what association or combination
of persons is intended to be denoted by the words “The Irish Republican Army”?
Use of the definite article suggests that only one “organization” is
intended to be referred to here. Section 6(c) of the Interpretation Act 1978 says that,
unless the contrary intention appears, words in the singular include the plural. The
contrary intention does appear here. The use of specific language and capital initials
indicates that one distinct body only is picked out: the body known as the Irish Republican
Army. The difficulty is that there are at least
three bodies that might be intended, as the DUP statement points out: the Provisional
IRA, the Continuity IRA and the Real IRA. It seems that none of them actually uses the
name Irish Republican Army. Reuters, as mentioned above, say that the small band of militants
who make up the Real IRA usually call themselves ‘Oglaigh na hEireann’, the
Irish name literally meaning ‘army of Ireland’ also used by the mainstream
IRA. As we have seen, the same was said by a Government Minister Mr Ingram in relation
to the continuity IRA.
So the question which Irish Republican body is meant to
be labelled a proscribed organization is what is usually called a dog’s dinner.
Can NESSSI help further? Here one should run through the various rules, principles, presumptions
and linguistic canons that make up the interpretative criteria. Prominent
among them is the principle against penalisation under a doubtful law. This
runs as follows, and is alone sufficient to justify the ruling by Brennan J-
It is a principle of legal policy that a person should
not be penalised except under clear law (the principle against doubtful penalisation).
The court, when considering, in relation to the facts of the instant case, which of the
opposing constructions of the enactment would give effect to the legislative intention,
should presume that the legislator intended to observe this principle. It should therefore
strive to avoid adopting a construction which penalises a person where the legislator’s
intention to do so is doubtful, or penalises him or her in a way which was not made clear.
Pepper v Hart
The disputed formula is obviously ambiguous or obscure,
which allows us to apply the rule in Pepper v Hart. Under
this, reports of the parliamentary proceedings relating to the passage of the Bill which
became the Terrorism Act 2000 may be consulted. I mentioned above that Adam Ingram MP,
the Armed Forces Minister, said in Standing Committee during the passage of the Bill
“ . . . the Provisional IRA is not listed because the Irish Republican Army covers
the whole gambit. We have had the best legal advice on that and the Real IRA, Oglaigh
na hEireann, as it calls itself—its use of the IRA name—is that that would
be covered by the blanket name Irish Republican Army”.
This clearly indicates that it was the Government’s intention when drafting the
Bill for the Terrorism Act 2000 that the term “Irish Republican Army” in
Schedule 2 should include the Real IRA. Does that decide the matter?
The parliamentary materials may show that the Government intended the Real IRA to be
a proscribed organization. However the test is not what the Government intended, but
what Parliament is to be taken to have intended. In
a penal matter, a person can be validly convicted only if he has contravened a provision
of which the legal meaning is clear beyond reasonable doubt. That is not the case here,
so the appeal court should uphold Mr Justice Girvan’s ruling.
168 JP (19 June 2004) 472
The method is not really new, but presents a novel rationalization of existing rules,
principles, presumptions and linguistic canons.
. SI section 138.
For the opposing constructions see SI section 149.
. A body which operated under
the same name as The Irish Republican Army would also be included (see above).
. See SI section 180.
. SI section 271.
. SI section 217.
. SI section 163.