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III

8. Part II of the 1939 Act defines the "activities prejudicial to the
preservation of public peace and order or to the security of the State".
Part III contains provisions relating to organisations whose
activities come under the Act and any which may therefore be declared
an "unlawful organisation" by order of the Government. Section 21 of
the 1939 Act provides as follows:

"(1) It shall not be lawful for any person to be a member of an
unlawful organisation;

(2) Every person who is a member of an unlawful organisation in
contravention of this section shall be guilty of an offence under this
section and shall:

(a) on summary conviction thereof, be liable to a fine not exceeding
fifty pounds, or at the discretion of the court, to imprisonment for a
term not exceeding three months or to both such fine and such
imprisonment; or

(b) on conviction thereof on indictment, be liable to imprisonment for
a term not exceeding two years."

Part IV of the 1939 Act contains various provisions relating to the
repression of unlawful activities, including, in section 30, the
following provision relating to the arrest and detention of persons
suspected of being concerned in unlawful activities:

Section 30:

"(1) A member of the Gárda Síochána (if he is not in uniform on
production of his identity card if demanded) may without warrant stop,
search, interrogate, and arrest any person, or do any one or more of
those things in respect of any person, whom he suspects of having
committed or being about to commit or being or having been concerned
in the commission of an offence under any section or sub-section of
this Act, or an offence which is for the time being a scheduled
offence for the purposes of Part V of this Act or whom he suspects of
carrying a document relating to the commission or intended commission
of any such offence as aforesaid.

(2) Any member of the Gárda Síochána (if he is not in uniform on
production of his identity card if demanded) may, for the purpose of
the exercise of any of the powers conferred by the next preceding
sub-section of this section, stop and search (if necessary by force)
any vehicle or any ship, boat, or other vessel which he suspects to
contain a person whom he is empowered by the said sub-section to
arrest without warrant.

(3) Whenever a person is arrested under this section, he may be
removed to and detained in custody in a Gárda Síochána station, a
prison, or some other convenient place for a period of twenty-four,
hours from the time of his arrest and may, if an officer of the Gárda
Síochána not below the rank of Chief Superintendent so directs, be so
detained for a further period of twenty-four hours.

(4) A person detained under the next preceding sub-section of this
section may, at any time during such detention, be charged before the
District Court or a Special Criminal Court with an offence, or be
released by direction of an officer of the Gárda Síochána, and shall,
if not so charged or released, be released at the expiration of the
detention authorised by the said sub-section.

(5) A member of the Gárda Síochána may do all or any of the following
things in respect of a person detained under this section, that is to
say:

(a) demand of such person his name and address;

(b) search such person or cause him to be searched;

(c) photograph such person or cause him to be photographed;

(d) take, or cause to be taken, the fingerprints of such person.

(6) Every person who shall obstruct or impede the exercise in respect
of him by a member of the Gárda Síochána of any of the powers
conferred by the next preceding sub-section of this section or shall
fail or refuse to give his name and address or shall give, in response
to any such demand, a name or an address which is false or misleading
shall be guilty of an offence under this section and shall be liable
on summary conviction thereof to imprisonment for a term not exceeding
six months."

Part V of the 1939 Act is concerned with the establishment of "Special
Criminal Courts" to try persons charged with offences under the Act.

Lastly, Part VI of the 1939 Act contained provisions authorising any
Minister of State - once the Government had brought that Part of the
Act into force - to order, in certain circumstances, the arrest and
detention of any person whom he was satisfied was engaged in activities
declared unlawful by the Act.

9. On 23rd June 1939, i.e. nine days after the entry into force of
the Offences Against the State Act, the Government made an order under
section 19 of the Act that the IRA, declared an "unlawful organisation",
be dissolved.

10. About 70 persons were subsequently arrested and detained under
Part VI of the Act. One of those persons brought an action in the
High Court of Ireland, challenging the validity of his detention.
The High Court declared the detention illegal and ordered the release
of the person concerned by writ of habeas corpus.

The Government had all the persons detained under the same clauses
released forthwith.

11. Taking note of the High Court's judgment, the Government tabled
in Parliament a Bill to amend Part VI of the Offences against the
State Act, 1939. The Bill, after being declared constitutional by the
Supreme Court, was passed by Parliament on 9th February 1940, becoming
the Offences against the State (Amendment) Act, 1940 (No. 2 of 1940).

This Act No. 2 of 1940 confers on Ministers of State special powers of
detention without trial, "if and whenever and so often as the
Government makes and publishes a proclamation declaring that the powers
conferred by this Part of this Act are necessary to secure the
preservation of public peace and order and that it is expedient that
this Part of this Act should come into force immediately"
(section 3, sub-section (2) of the Act).

Under section 3, sub-section (4) of the Act, however, a Government
proclamation bringing into force the special powers of detention may
be annulled at any time by a simple resolution of the Lower House of
the Irish Parliament.
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