Criminal Justice (Amendment) Bill 2009: Committee and Remaining Stages.

Sections 1 and 2 agreed to.
SECTION 3.

I move amendment No. 1:

In page 4, line 22, to delete "in relation to the commission of an offence".

This is a drafting amendment to section 3. The amendment deletes a reference in the definition of "structured group" to "in relation to the commission of an offence" in the context of two people acting in concert. The words are unnecessary as they are contained in the definition of criminal organisation in subsection (1)(a) and the structured group is an element of that definition.

I do not oppose this amendment but I require some clarification from the Minister. The amendment refers to section 70 of the 2006 Act which was debated at length in the last Dáil. How many cases have been brought referring to this section? What were the difficulties with the section that gave rise to this amendment?

Section 70 of the original Act described a criminal organisation as:

a structured group, however organised,that—

(a) is composed of 3 or more persons acting in concert,

(b) is established over a period of time,

(c) has as its main purpose or main activity the commission or

facilitation of one or more serious offences in order to obtain, directly or indirectly, a financial or other material benefit;

Why is it necessary to add to the definition? Where stands the interpretation of section 70? When was it brought into force? When was it referred to in criminal trials and how many times? Does the Minister regard section 70 as successful in bringing gangland figures to justice, which he has often stated as the aim of this legislation? I do not wish to oppose the amendment but do wish to ascertain the rationale behind it.

I do not wish to take up too much of the precious time that we have to debate this Bill but I have the same questions as Deputy Charles Flanagan. I hope that we will receive answers because I considered this at length but I am not sure that I can see the difference. Is the nuanced difference being imported into this Bill because the previous definition did not work? Has this section never been resorted to in order to put gang leaders behind bars and will the minimal changes made here transform that picture?

One of the big difficulties, which has been accelerating since the former Deputy Michael McDowell became Minister for Justice, Equality and Law Reform is that we have had criminal justice Bill after criminal justice Bill and yet whole sections of legislation have never been used. It is puzzling to hear Government Deputies and the Minister himself, on occasion, suggesting that the reason thugs and crime bosses are on our streets is a gap in the law or a shortage of legislation. To the rest of us it is about a gap in enforcement, for whatever reason, such as the resourcing of the Garda Síochána in electronic tools etc.

I find it difficult to determine the difference between this and what we did in the 2006 Bill. How will this work when the Minister has not bothered to invoke the 2006 Act in thisregard?

The revised definition of organised crime is simpler. The notion of the period of time contained in the 2006 Act has been removed and it is also now clear that it is enough for two persons to act in concert rather than three persons, as before. It is no longer necessary to show that the commission of a serious offence was to obtain a financial or material benefit. For example, directing the intimidation of a witness or a juror without proving financial benefit would be encompassed by the new definition but not by the old one.

I understand there has been one successful prosecution since the commencement of this suite of legislation regarding organised crime in the 2006 Act. The person in question pleaded guilty. When we considered this legislation in the context of the aftermath of the two recent murders of Shane Geoghegan and Roy Collins, one factor emerged strongly from the advice we received. We provide the legislation in this House but the Director of Public Prosecutions, based on the evidence garnered by the Garda Síochána, directs what sections are to be used. I have no say as to whether a prosecution should be taken under section 70, or any other section, of the 2006 Act. It is worth emphasising that fact.

Since the passing of the suite of legislation related to organised gang crime, the issue of participation in particular of a gangland organisation has proven difficult. It has not been used as often as this House would have liked. In the revised definition, we have made it simpler and easier to prove participation in a gang. Coupled with the surveillance legislation which I hope will be passed, the Garda can use both pieces of legislation in a better way to prove participation or the overall involvement in organised gang crime.

This was an effort to simplify the process and to make it somewhat easier to ground a prosecution. Time will tell on this and given that we have built into the legislation an annual review, the House may revisit the issue to see if it has been successful. This House has moved on a number of occasions to change legislation as events unfolded. We did that in the case of mandatory sentencing for drug offences, as the Oireachtas came back on three occasions recently to amend legislation and to give a strong signal on the gravity of the serious offences relating to drug crime. That is the rationale behind this definition and I thank Deputies for their acceptance that this is necessary.

Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."

I am not opposing every section but I oppose the Bill as a whole. Although action is required, I do not believe the Bill is required in its entirety, particularly with the method by which it has been introduced without the normal structured debate. Such debate would allow time between stages for all those willing to participate to regroup and to reconsider the matter having assessed information from the Minister, or in the Minister's case from the Deputies. That time has not been made available and while the Minister has said this is urgent and the increase in the rate of gangland crime requires action, this is not the right step at the right time, particularly in regard to this section, which deals with the definition of a criminal organisation contained in the Criminal Justice Act 2006.

The Minister is misleading the public into thinking that this section is either necessary or useful in tackling gangland crime. The definition is almost identical to that in the 2006 Act and other Deputies have spoken about that. I stand to be corrected, as I heard the Minister say there was one conviction, but I was led to believe there were no convictions. I do not know how this change will make the process any easier, less complicated or more effective given the existing legislation from 2006.

I argued on Committee Stage of the 2006 Bill and warned that the definition to be introduced at that time would be unworkable, and what has transpired since seems to have proved that. I contended that any effort to use it would eventually lead to a legal challenge. I do not encourage people to challenge the 2006 Act but the 1937 Constitution demands certainty in law, and the European Convention on Human Rights demands foreseeability in law. The definition introduced in the 2006 Bill and now being slightly amended is loose and vague.

The then Tánaiste and Minister for Justice, Equality and Law Reform, former Deputy Michael McDowell, was in charge of the 2006 Bill and we discussed during the long debate on Committee Stage the ability of legislation to define a loose group of people which did not necessarily have a hierarchical structure or constitution and were not bound by a loyalty. People could be in one group on one day and in another by the next day. We debated how legislation would deal with the issue of an organisation not having a formal structure. The Minister at the time admitted the dangers on Committee Stage but continued with the Bill.

I recall at the time highlighting a case from the Supreme Court in British Columbia, as that type of definition had been used in Canada. The then Tánaiste and Minister for Justice, Equality and Law Reform based the part of the 2006 Act which deals with this issue on the definition contained in the Canadian criminal code. That definition was eventually found to be in violation of the Canadian Charter of Rights and Freedom.

We are all aware of the activities of the various criminal gangs. The constituency I represent is still greatly affected by the activities of such gangs, particularly in the context of their supplying illegal drugs. It appears that even the Garda Síochána cannot admit that these are criminal gangs. A senior officer from Crumlin addressed a conference recently and stated that, despite the fact that 13 people have been killed, there is no feud in the Crumlin-Drimnagh area. It is strange the Garda cannot seem to see that two feuding gangs are operating in the area. It is obvious that a series of vicious, premeditated crimes have been carried out by a group of individuals acting in concert.

There is a great deal of existing legislation which could be usefully employed in the area to which I refer. The difficulty is that action was not taken in the past. The reason for this lack of action has sometimes been that gardaí in the area did not have access to either the intelligence necessary or the resources required to properly target and tackle the individuals who have destroyed communities or held them to ransom. Most of the wealth of these individuals comes from the drugs trade. They also have at their disposal vast quantities of weapons with which they can intimidate communities. Such weapons enter the country in virtually every shipment of drugs that arrives here. In another era, the Provisional IRA might have been proud of some of these weapons. However, if one considers the type and amount of them that the gangs possess, it is clear that the only purpose to which they can be put is to intimidate and hold communities to ransom.

The only way to deal with the availability of these weapons is to tackle the drugs trade and to intercept drug shipments entering the country. That is why I supported the passage of the Criminal Justice (Surveillance) Bill 2009 last week. I am of the view that the Garda Síochána should be provided with proper resources. The roll-out of the radio system which it has long been demanding should be accelerated and the freeze on recruitment and promotion should be lifted in order that there will be nothing to hamper the force in carrying out undercover investigations against the drugs gangs in our communities.

If one asks the Garda authorities, they will indicate that the most effective units within the force are the drugs units. Given that this is the case, the number of these units must be increased and additional resources must be provided in order that the drugs trade might be destroyed and the profits being used by these gangs to keep some of their associates in line or which are encouraging certain individuals to feud with each other be removed. As stated previously, we should see this as a national crisis and we should get all hands on deck in order to deal with it.

I am opposed to section 3 because I cannot see the benefit of changing the existing definition, particularly because it has not worked and is not likely to.

Section 3 refers to the involvement of "2 or more of those persons". Does the Minister regard a criminal gang as comprising two or more or three or more individuals?

Three or more people constitutes a gang, whereas the commission of the offence relates to two or more persons.

If two people are involved in criminal activity, under the legislation can they be prosecuted as being part of a gang?

There must be three or more.

Is there a reason for that? Does it relate to section 70 of the 2006 Act?

The provision is based on the UN standard.

I welcome the section, which will be of assistance in the fight against organised crime, and so will the people of Limerick. I am of the view that it may allow us to avoid the need for juries or witnesses in certain instances. The key point is that we should have sufficient time to tease out whether what is intended in the legislation will be capable of being applied in practice. That is why my party has tabled amendment No. 4.

Is it correct that on the opinion evidence of a chief superintendent — as suggested in amendment No. 5 — and surveillance evidence provided, a prosecution could take place under a judge in the Special Criminal Court? In such circumstances, there would be no need for either a jury or other witnesses. That is a key point in the context of using the Criminal Justice (Surveillance) Bill, when enacted, and this legislation in the fight against crime. Will the Minister clarify the position in respect of this matter, which relates to the structure of gangs?

I will reply first in respect of the matter raised by Deputy O'Donnell. There has been a great deal of misinformation regarding what a later section provides in respect of expert evidence on the existence of gangs. In addition, a number of individuals have misconstrued the position in this regard. Such evidence does not in any way go to the guilt of a person. It is merely evidence provided by a garda — perhaps an officer of ordinary rank — who would have knowledge or information in respect of the existence of a gang in a particular area. However, this is not opinion evidence that can be used to attribute guilt of a person against whom charges have been brought. There has been a misconception in respect of this matter and some of the amendments that have been tabled betray a misunderstanding of what constitutes expert evidence.

As matters stand, there are no provisions in existing legislation or in that before the House which would allow opinion evidence — allied to surveillance evidence — to be given by a chief superintendent in respect of someone directing a criminal gang. Such a provision does exist in respect of those who direct terrorist organisations but we have not gone that far in this Bill.

Deputy Ó Snodaigh is opposed to both the section and the Bill. Following the murder of Shane Geoghegan, I was criticised for not taking sufficient action. I am in possession of quotes relating to that matter which were made by various people, both inside and outside the House. On 13 November 2008, Deputy Jan O'Sullivan stated in the Dáil that "people want us to do whatever is necessary to smash these gangs". She went on to state:

The overall message that must emanate from this House is that we are determined to treat this matter [gangland crime in Limerick] with urgency. I am not sure that sense of urgency is evident in [any]one on the Government side ... Every measure . . . should be taken.

On 11 November 2008, Deputy Gilmore stated in the Dáil: "The public wants to get a sense that these gangs will be smashed." He then stated:

We do not want to hear the reasons certain things cannot be done. We need to see, led by Government, which my party will support in this, definitive measures taken that will solve and address this problem.

Last week on Second Stage, I quoted Deputy Rabbitte's comments, made after the Shane Geoghegan murder but before that of Roy Collins, in which he stated there must come a tipping point. He went on to state:

I acknowledge that these are exceptional powers that the Dáil has now been asked to provide to the gardaí, but, subject to proper oversight, they are necessary to deal with the exceptional threat being posed by armed criminal gangs, which have claimed 11 victims so far this year.

I agree with the Deputy. Deputy Kenny also stated: "Treating them with an easy hand and a bland response is not good enough." He also said: "The Government response to this latest atrocity has been too bland and too easy." He then stated: "This is a war; win it." I have to hand copious other quotations from Members of this House.

At the time, I believed we had in place all the requisite legislation and resources. On the issue of resources, I have seen allegations in the media recently that I wish to nail to the effect that the Garda Síochána does not have the requisite resources. I assure the House that it does and that every available resource will be made available to it. The Garda Síochána will get everything it seeks in respect of this issue of gangland crime, regardless of whether it is in Limerick or anywhere else on this island. The Garda Síochána has all the resources it requires and will receive more if it requires more. I wish to nail that allegation on the head.

Moreover, I have not picked this legislation out of the sky. I refer to the murder of Roy Collins and wish to emphasise a point because I read an article in a newspaper during the week in which it was stated that Roy Collins was killed because he was a witness in a court case. However, he was not a witness. He was killed because he was the son of a witness in a court case, that is, someone who was doing his duty. I thought long and hard after the murder of Roy Collins and discussed it initially with the Garda Commissioner at the funeral of the garda who was killed in a car crash in County Donegal. Consequently, I asked that we should meet the Attorney General within a couple of days, which we did. At that time, I clearly indicated publicly that I intended to consider the types of measures that previously had been applied to paramilitary organisations and was giving strong consideration to applying them in this respect.

Two months ago, on 13 May, I issued a detailed statement as to what was being proposed in this Bill. As the contents of that detailed statement have been replicated in the Bill before the House, I reject any suggestion that it has been plucked out of the sky or that Members have been given insufficient time. The only way in which it differs from the contents of the statement issued on 13 May is that the issue of membership of a criminal gang has been removed, due to the difficulty of producing evidence and proving in court the membership of a criminal gang. Instead, the offence of directing a criminal gang has been proposed. Moreover, it is a requirement, under the United Nations Convention Against Transnational Organised Crime, to have in our legislative suite an offence against directing a criminal organisation.

We also considered the issue under discussion by Members at present in respect of this amendment and section, namely, how to make easier the proving of participation in a criminal organisation. I believe the Government discussed this issue at least three times in recent weeks before publishing the legislation. The Government discussed it at length with the Attorney General and with the Garda Commissioner's management team to ensure that it got this right. That is the reason each section addresses particular issues that have come to the Government's attention. While I have heard people commenting to the effect that this constitutes a colossal change in legislation, that is not the case. Much of what I have proposed is already contained in existing legislation and, on examination, people will find this is not a seismic change in respect of the manner in which such offences will be tried.

The Government believes strongly that the Oireachtas must send a strong signal to these criminal gangs that they cannot usurp the State or the people who live in it, which is what they are doing at present on a daily basis in places such as Limerick, Dublin and elsewhere. I referred during the Second Stage debate to a convention that the Minister for Justice, Equality and Law Reform generally is constrained in what he or she can say regarding issues of which he or she has knowledge on foot of discussions with the Garda Commissioner and his team. However, when the Garda Commissioner tells the Government that, given the Garda's experience in recent years, it is necessary to introduce some of the issues that are being dealt with in this Bill, I disagree with Deputy Ó Snodaigh. Moreover, this does not simply pertain to the issue of scheduling offences but also to other issues pertinent to this legislation.

The Minister would not even talk to the spokespersons about this. Although he speaks of United Nations conventions being disregarded, he did not even talk to the spokespersons.

One is not obliged to take into account either my comments or those of the Garda Commissioner to the Government on the necessity for these changes. One need only listen to statements on RTE by people such as the Limerick State solicitor, Mr. Michael Murray. Anyone who missed his appearance on "The Week in Politics" should listen to his comments in respect of what is going on regarding the intimidation of juries in Limerick and other issues to which he referred. Moreover, during the Second Stage debate, two Deputies from this side of the House, namely, the Minister for Defence, Deputy Willie O'Dea, and the Minister of State, Deputy Peter Power, were absolutely adamant about the necessity for this legislation on the basis of their own personal knowledge. They stated that their constituents were coming to their clinics in fear, having received a summons regarding jury service in the Limerick area. Undoubtedly, other Deputies from the Limerick area would be able to provide similar testimony.

This legislation is absolutely necessary. It is necessary to pass the legislation before the House rises in order that, coupled with the surveillance legislation, the Garda Síochána can have the tools to bring these people to justice. I refer to the sentiments Members expressed in November 2008 after the shameful murder of Shane Geoghegan. Subsequently, a relation of someone who gave evidence as a witness in a trial was murdered four years after the event. Does anyone for a minute suggest that those involved in organised crime gangs would make any distinction between a witness and a juror? It would be utterly naïve for anyone to suggest this of such gangs, particularly in respect of the new offences proposed in this Bill. I refer to the offence of directing, which pertains to the very people who do not pull the trigger but who direct patsies to shoot people on orders. When referring to the awful killing of Shane Geoghegan during the Second Stage debate, the Minister, Deputy Willie O'Dea, suggested the attackers even had a doubt as to the identity of the person they were killing, which demonstrates the level to which such people will go.

I repeat to Members that the Government does not take this matter lightly. However, it believes its measures are proportionate and reasonable. I have no doubt but that it will make the prosecution of criminal gangs easier. I believe it will do what Deputies such as Deputy Gilmore and others eloquently stated in the House on occasion on the necessity to take those measures that Members might not tolerate in normal times.

It is entirely fruitless to insinuate that there is any division in this House about the necessity to bring to an end the mayhem on our streets, especially in urban Ireland.

That includes all Deputies on all sides of the House and, if I may take the freedom to say so, Deputy Ó Snodaigh. There is no division. We want to put the gang bosses behind bars. We are horrified on this side of the House at the frequency of resort to extreme violence and the number of fatalities we have seen in recent years. I do not like the word "scum" but these people are the scum of the earth. We are at one in this House in wanting to take them off our streets but that is not the issue here. The Minister quoted a number of Deputies on this side of the House. We are prepared to take any measures within the law. Some of us did not envisage standing the criminal justice system on its head to do so.

It is not doing so.

I did not interrupt the Minister. I am prepared to stand the criminal justice system on its head if that is what is necessary but I have not had the evidence from the Minister that the pivotal measure in this Bill will make it more effective.

Deputy O'Donnell asked the Minister to deal with the distinction between witnesses and jurors. All the Minister said was that it would be folly to seek to draw distinctions. There is a major distinction because at the Special Criminal Court one must still provide witnesses. The Minister invited Members to watch "The Week in Politics" on Sunday night, when the State solicitor from Limerick, Mr. Michael Murray, appeared. What the Minister quoted does not say what the Minister suggested. Mr. Murray was confronted by a live video of Deputy Willie O'Dea, admittedly a challenge at any time, and asked if he agreed with him. He replied:

The Minister is well known for walking the streets of Limerick and is out every given hour that he has at the weekends. I am not going to contradict the Minister because, in fairness to him, if anybody knows what is going on on the streets of Limerick, he does. I cannot say I have any evidence of widespread intimidation.[. . .] I have not seen a lot of evidence of intimidation of jurors. In the recent past I have come across one case where a jury was quite clearly frightened and had been intimidated. As a result of that I asked the gardaí to investigate the matter.

Deputy Rabbitte did not choose to quote what he said initially.

I have a quotation from Mr. Justice Paul Carney, who went to Limerick and who is the most experienced judge in the criminal courts. He said he had no experience of difficulties in getting convictions in his jury court. Deputy Flanagan has been pursuing the Minister to answer a parliamentary question on the intimidation of jurors. The Minister did not answer the question but, in the cut and thrust of debates on the last day, he was required to say that he would write to Deputy Flanagan, who now has that letter. The letter says that the Minister has no evidence or intimidation of jurors and no statistics.

No, it does not.

I have the letter here, it is in black and white in the Minister's hand and prepared for him by the Department. The Minister draws attention to the fact that, under section 41 of the Criminal Justice Act 1999 it is an offence to seek to intimidate persons assisting in a criminal investigation. The Minister writes:

I am informed by the Garda authorities that separate records are not maintained of offences under section 41 as between those directed against witnesses and those directed against jurors.

It does not say that it does not happen.

I did not interrupt the Minister, who should contain the bantam cock side of his personality for a moment. If the Minister had any evidence of interference with jurors, he would have included it in that letter to Deputy Flanagan. The Minister does not have any evidence. He says the statistics do not exist and I suggest that the reason they do not exist is because there is none. Mr. Justice Paul Carney is the most senior, experienced judge in the criminal courts. Those of us on these benches want to see these thugs made amenable to the law. If the Minister has evidence that there is intimidation of juries, I will withdraw my opposition to that section. I have made it plain that we do not oppose any measures, within the law, designed to combat organised crime. The issue is whether the Minister can establish that in this section.

The Minister should remember that he dodged the issue on "Morning Ireland" and that he allied witnesses and jurors into the same sentence on every opportunity he has been given to talk about this. As a lawyer, the Minister knows the difference but he knows that there are people outside the House who do not readily pick up on the difference. As a result, we are dealing with something about which we do not have evidence. There is no merit in trying to suggest that the House is divided or that there is any party or Member not dedicated to the rule of law and putting gangsters behind bars. We want to do so with the most effective measures available to us. That is the only issue. If the Minister can rewrite the letter he wrote to Deputy Flanagan and provide us with the evidence, I am prepared to change my mind.

The time remaining will not give me sufficient opportunity to deal with the Minister's rather general overview of the Bill and the reasoning behind its introduction. This is a pity because time is of the essence if we are to give this Bill appropriate scrutiny. I regret that the Minister started off with a general debate and a high degree of party political content. This is a subversion of the parliamentary process. Nobody accused the Minister of plucking this legislation from the sky. I never heard that comment, other than from the Minister. What I said is that we are charged with dealing with this legislation on a line by line basis because it is complex, in spite of what the Minister suggests. The reason we are amending section 75 on the 2006 Act is because of complexity, difficulty and the fact that we did not get it right in 2006 and 2007. That is the reason we are revisiting this, because of failures of Government in the past that the Minister is repeating this evening. The Minister put forward a political smokescreen to the effect that Members are against dealing with gangland figures.

When this debate resumes I will address the matter of resources. The resources issue is significant and substantial. One can have all the legislation in the world but, if it is not accompanied by appropriate enforcement measures, it is worth nothing.

Progress reported; Committee to sit again.