By Edward Maxwell
Kate Hoey’s questioning of the Chief Constable during the Northern Ireland Affairs committee went some way to exposing the shaky legal rationale for the PSNI’s seizure of both historic, and conflict related, loyalist memorabilia.
Recent search warrants obtained under Schedule 5 of the Terrorism Act have been authorised on the basis of seeking ‘paramilitary memorabilia’ as part of a Police investigation into terrorist activity.
Other items listed on the such warrant could easily be sought under Section 24 Schedule 3 of the Justice and Security (Northern Ireland) Act 2007, therefore the only rational purpose for including ‘paramilitary memorabilia’ is to provide a gateway to obtaining a warrant under the provisions of Terrorism Act which would also bring into play Section 41 of the same act, giving the PSNI permission to make an arrest without a warrant.
Of course it is a most basic point that the items sought within any warrant should themselves constitute a criminal offence. It is a reasonably sound position to contend that contemporary or historical memorabilia does not amount to a criminal offence. Therefore many warrants obtained by the PSNI under the Terrorism Act may well be invalid, given that there is no offence of possessing historical or conflict related memorabilia.
The only possible offence that could be suggested would be Section 57 of the Terrorism Act in which items are possessed for terrorist purposes. This is defined within Section 57 (1) , whereby it is made clear that an offence is only committed if the articles are for the “commission, preparation or instigation of an act of terrorism“.
Memorabilia is defined in the Oxford dictionary in the following terms;
Objects kept or collected because of their associations with memorable people or events.
Therefore it is clear that even by its very definition memorabilia is objects associated with a past event. It is difficult to conclude that any memorabilia seized could in any way be used for the “commission, preparation or instigation” of terrorism in the present or future tense. Accordingly there is no associated offence and as such the PSNI warrants are actually based on seeking perfectly legal material.
What is further concerning is that the PSNI have displayed loyalist memorabilia seized in the context of contending criminal activity is associated with possession of these materials. That is plainly false and misleading.
However, what is even more concerning is that if this legally unsound policy is being pursued across the board by the PSNI, then why has there been no searches of the IRA museum at Conway Mill?
The partisan nature of the PSNI policy in this regard can be easily flushed out. All that is required is for some industrious individual to make a PSNI complaint under Section 57 of the Terrorism Act in relation to Conway Mill and observe the PSNI’s response.
If the PSNI wish to stand over their contention that the type of material they have seized from loyalists is indeed connected with an offence under the Terrorism Act, then naturally they will have to use the same rationale across the board and as such we can expect the swift seizure, and subsequent display for the media, of IRA material from their museum at Conway Mill.
By the same token if the PSNI back off from pursuing the IRA museum under the Terrorism Act then their basis for seeking warrants searching for “paramilitary memorabilia” falls.
Further than this if the rationale for obtaining a warrant under Schedule 5 of the Terrorism Act is that there must be a prima facie case against the individual in terms of membership and/or possessing items falling under Section 57 then prominent journalist Malachi O’Doherty stated live on the Stephen Nolan show that he “possesses a UVF membership card.”
It should also be noted that the PSNI’s ‘paramilitary task force’ came into effect following the Fresh Start agreement, the genesis of which lay in the IRA murder of Kevin McGuigan. It would therefore be prudent for someone to ask the PSNI the following very simple question;
Are there any former or current members of the Provisional IRA under investigation by the Paramilitary Crime Task Force?
Of course given the Government position is that the IRA continue to oversee Sinn Fein, then naturally should members of the IRA be under investigation by the task force then this leaves Unionism with a very clear choice in terms of the talks process; either go into government with Sinn Fein who are still inextricably linked to an active crime gang, or opt for Direct Rule.