The Bombs in Omagh and their Aftermath: The Criminal Justice (Terrorism and Conspiracy) Act 1998
| DOI | http://doi.org/10.1111/1468-2230.00242 |
| Published date | 01 November 1999 |
| Date | 01 November 1999 |
| Author | Clive Walker |
LEGISLATION
The Bombs in Omagh and their Aftermath: The Criminal
Justice (Terrorism and Conspiracy) Act 1998
Clive Walker*
The background to the legislation
There are two sharply distinct histories and purposes behind the Criminal Justice
(Terrorism and Conspiracy) Act (hereafter ‘the 1998 Act’). Both broadly deal with
the threat and use of violence for political ends (commonly called ‘terrorism’, and
thus defined by the Prevention of Terrorism (Temporary Provisions) Act 1989,
section 20(1)),1and do so by augmenting existing and already substantial legislative
codes, the Northern Ireland (Emergency Provisions) Act 1996 (as amended in 1998)
(the ‘EPA 1996’) and the Prevention of Terrorism (Temporary Provisions) Act 1989
(as amended in 1996) (the ‘PTA 1989’). The first purpose relates to the group of
provisions (under the heading ‘Proscribed organisations’) which are targeted against
paramilitary groups or individuals within Northern Ireland who seek to undermine
or destroy the ‘peace process’ which culminated in the historic British Irish
Agreement reached in the Multi-Party Negotiations (the ‘Belfast Agreement’) in
April 1998.2The challenge to the Agreement, as represented by the Republican
dissident group responsible for the Omagh bombing in August 1998, was to be
counteracted by the passage of the 1998 Act which came into force without further
ado on the date of Assent, 4 September 1998. The second block of measures is
directed against persons engaged in ‘conspiracy to commit offences outside the
United Kingdom’. These rules are by no means confined to those plotting terrorism,
but the activities of foreign political dissidents within the United Kingdom did
provide the main motivation for the passage of this part of the 1998 Act.
The overall impact of the 1998 legislation, especially the first set of measures, is
officially admitted, and indeed intended, to be ‘Draconian’ (repeating the epithet
used by the Home Secretary, Roy Jenkins, when introducing the original
Prevention of Terrorism legislation in 1974).3Echoing the legislative history of
the 1974 Act and also the more recent Prevention of Terrorism (Additional
Powers) Act 1996, the legislative process entailed not only parliamentary passage
within a remarkably short space of time (two days) but also the extraordinary recall
of both Houses of Parliament during the summer recess. Though the words
‘emergency’ or ‘temporary’ do not appear in its short title, the life of this Act is
predictably finite. The Inquiry into Legislation against Terrorism by Lord Lloyd
ßThe Modern Law Review Limited 1999 (MLR 62:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 879
* University of Leeds. An earlier version of parts of this text appeared as the annotations to the Act (c 40)
in Current Law Statutes 1998 (London: Sweet & Maxwell, 1998). The author acknowledges the permission
of the publishers to reproduce this material.
1 See further C. Walker, The Prevention of Terrorism in British Law (Manchester: Manchester
University Press, 2nd ed, 1992).
2 Cm 3883, 1998.
3 HC Deb vol 882 col 35 25 November 1974. The word was first used by the Irish Taoseach, Bertie
Ahern, (The Times 20 August 1998) and was then repeated by Prime Minister Tony Blair on a visit to
Omagh (The Daily Telegraph 26 August 1998).
recommended the reform and consolidation of anti-terrorist legislation,4and the
Government issued a consultation paper, Legislation against Terrorism, in late
1998.5Given that the EPA 1996 cannot be extended beyond 24 August 2000
(according to the amending EPA of 1998, section 1), some changes can be
expected by that deadline though certainly not the total disappearance of the
special legislative codes, including the 1998 Act. The prognosis offered by the
consultation paper will be considered more fully later in this paper.
The responses to the Omagh bombing
Proscribed organisations
As noted above, the peace process in Northern Ireland was brought to an
apparently successful finale on 10 April 1998 by the Belfast Agreement. There was
elation at the prospect of a substantial diminution in the political and sectarian
conflict which had bedevilled Northern Ireland ever since its foundation (under the
Government of Ireland Act 1920). There was further progress when the Belfast
Agreement was endorsed by a referendum on 22 May 1998 in both Northern
Ireland and the Republic of Ireland, and the next step was elections for the new
Northern Ireland Assembly on 25 June 1998. The election was conducted under the
terms of the Northern Ireland (Elections) Act 1998, and the Northern Ireland Act
1998 further implemented major constitutional and institutional components of the
Belfast Agreement. In the meantime, the Northern Ireland (Sentences) Act 1998,
again reflecting the Belfast Agreement, dealt with the sensitive issue of the release
of those paramilitary prisoners who belong to organisations which have declared
and are maintaining cease-fires which are complete and unequivocal (though the
controversial word ‘permanent’ is not mentioned).6
Yet, there was always concern that this prospect of peace (or at least the absence
of armed conflict) would not be palatable to elements within the Northern Ireland
paramilitary groups, either on the political grounds that their ideals were not being
fulfilled or because they wished to perpetuate the lucrative racketeering and other
criminal activities which have developed alongside terrorism.7These fears became a
tragic reality when on 15 August 1998, a large car-bomb, planted by the Republican
splinter-group the Real IRA, exploded in the centre of the town of Omagh, killing 28
persons and injuring at least 220.8This massive bombing, apparently punishing
communities which had chosen to reject paramilitary solutions,9was seen as a direct
4 Cm 3420, 1996.
5 Cm 4178, 1998.
6 For previous negotiations which centred around issues of permanacy, see T.P. Coogan, The Troubles
(London: Arrow Books, 1996); E. Mallie and D. McKittrick, The Fight for Peace (London:
Heinemann, 1996). Up until 31 December 1998, 544 prisoners had applied to the Sentence Review
Commissioners for a declaration that they are eligible for release in accordance with the provisions of
the Northern Ireland (Sentences) Act 1998; 372 prisoners have received substantive determinations
advising that their applications had been successful (HC Deb vol 325 col 374wa 15 February 1999).
7 See J. Adams, The Financing of Terrorism (London: New English Library, 1986); P.K. Clare,
Racketeering in Northern Ireland (Chicago: OICJ, 1989); P. Norman, ‘The Terrorist Finance Unit and
the Joint Action Group on Organised Crime’ (1998) 37 Howard Journal 375.
8 See The Times 17 August 1998. For a history of the group, see P. Taylor, ‘The secret power struggle
that spawned Omagh’, The Times 25 August 1998. On the main grouping, see P. Bishop and E.
Mallie, The Provisional I.R.A. (London: Heinemann, 1987); T.P. Coogan, The I.R.A. (Isle of Man:
Fontana Books, 3rd ed, 1987); P. Taylor, Provos (London: Bloomsbury, 1997).
9 The Real IRA claimed its target was commercial and part of its ongoing ‘war against the Brits’: The
Times 19 August 1998.
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